R v MVD

Case [2016] NZHC 333 2 March 2016

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IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI-2016-485-00009 [2016] NZHC 333

BETWEEN
THE QUEEN

Appellant

AND

M V D Respondent

Hearing: 12 February 2016

Appearances:

K S Grau for the Appellant
N J Sainsbury for the Respondent

Judgment:

2 March 2016

JUDGMENT OF THOMAS J

This judgment was delivered by me on 2 March 2016 at 4.00 pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date:………………………….

Solicitors:

Crown Solicitor, Wellington.
Greig Gallagher & Co., Wellington

R v M V D [2016] NZHC 333 [2 March 2016]

Introduction

[1] The respondent, Ms D, pleaded guilty to a representative charge of delivering false invoices.1 She was convicted and sentenced by a District Court Judge on
16 December 2015 at Wellington.

[2] The Judge also granted her permanent name suppression. The Crown now appeals that decision on the grounds the Judge did not fully consider the public interest in publication of the respondent’s name when exercising his discretion.

Context

[3] The respondent is the director of a company (the Company) which offers management consultation and facilitation services for people who are renovating property. The victims entered into an agreement with the Company in relation to the renovation of their property.

[4] The agreement provided for them to pay to the Company a 9 per cent fee based on the value of the contract and part or all of any “procurement commission”. The agreement did not define procurement commission or specify the amount of procurement commission to be paid.

[5] The charge relates to invoices the respondent provided to the victims on behalf of the Company between May 2008 and April 2009. These invoices overstated the value of the work and the respondent retained the additional funds as procurement commission.

[6] The respondent has franchised the Company business to other individuals and entities who are running businesses under this corporate banner.

The law

[7] Suppression of the identity of a defendant is provided for by s 200 of the

Criminal Procedure Act 2011 (CPA) which relevantly provides:

1 Secret Commissions Act 1910, s 7.

200 Court may suppress identity of defendant

(1) A court may make an order forbidding publication of the name, address, or occupation of a person who is charged with, or convicted or acquitted of, an offence.

(2) The court may make an order under subsection (1) only if the court is satisfied that publication would be likely to—

(a) cause extreme hardship to the person charged with, or convicted of, or acquitted of the offence, or any person connected with that person; or
(b) cast suspicion on another person that may cause undue hardship to that person; or
(c) cause undue hardship to any victim of the offence; or
(d) create a real risk of prejudice to a fair trial; or
(e) endanger the safety of any person; or
(f) lead to the identification of another person whose name is suppressed by order or by law; or
(g) prejudice the maintenance of the law,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v MVD

Details

AGLC: R v MVD [2016] NZHC 333
Case: [2016] NZHC 333
Decision Date: 2 March 2016

CaseChat Overview and Summary

The appeal in this case concerns the granting of permanent name suppression to the respondent, Ms D, who pleaded guilty to delivering false invoices. The Crown appealed the decision of the District Court Judge, who granted permanent name suppression, on the grounds that the Judge did not fully consider the public interest in publication of the respondent’s name when exercising his discretion. The Court considered whether the District Court Judge properly applied the statutory criteria for name suppression and exercised his discretion appropriately.

The Court found that the Judge had considered the threshold criteria for name suppression under s 200(2)(a)-(h) of the Criminal Procedure Act 2011. The Court held that the Judge was correct in concluding that publication of the respondent’s name was likely to lead to the identification of the Company, which had been granted suppression. The Court found that the link between the respondent and the Company was such that it was more likely than not that publication of the respondent’s name would lead to the identification of the Company, satisfying the criterion in s 200(2)(f).

Regarding the exercise of discretion, the Court found that the Judge did not explicitly mention weighing the interests of the franchisees against the public interest of publication. However, the Court held that it was clear the Judge had considered the public interest issue throughout the proceedings. The Court found that, given the circumstances of the case, the public interest did not outweigh the risk of identifying the Company, whose name had been suppressed by consent. The Court ultimately concluded that the Judge’s decision to grant permanent name suppression was correct.

The appeal is dismissed.

Orders