R v Napier - [2023] NZHC 707

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2020-404-454

[2023] NZHC 707

THE KING

v

NAPIER

Hearing: 30 March 2023

Appearances:

S Teppett for the Crown

F Pilditch KC for Mr Napier

Judgment:

31 March 2023

JUDGMENT OF ROBINSON J

This judgment was delivered by me on 31 March 2023 at 4:00 pm.

Registrar/ Deputy Registrar

Solicitors/counsel:
Meredith Connell, Auckland F Pilditch KC, Auckland

R v NAPIER [2023] NZHC 707 [31 March 2023]

[1] On 24 August 2022 Mr Napier was convicted of 45 dishonesty charges under the Crimes Act 1961.1 On 23 November 2022 he was sentenced to four years and 10 months’ imprisonment.2

[2] Mr Napier continues to face one charge of perjury.3 The Crown applies pursuant to s 146 of the Criminal Procedure Act 2011 (CPA) for leave to withdraw the charge. It says that in light of Mr Napier’s convictions and sentence on the other dishonesty charges the public interest no longer favours prosecution.

[3] Mr Napier opposes the application; because withdrawal of a charge under s 146 is not a bar to any other proceeding in the same matter.4 On his behalf Mr Pilditch KC submits that in the circumstances it is in the interests of justice that Mr Napier has finality, and that the charge should be dismissed.

Procedural history

[4] The charge of perjury arises out of statements made by Mr Napier during the course of a civil proceeding against him in 2015 alleging that he had misappropriated funds from Torbay Rest Home Limited.5 Judgment was entered against Mr Napier in those proceedings. The criminal charges of which Mr Napier has been convicted arose out of the same matters canvassed in the civil trial.

[5] The Crown issued the Crown Charge Notice in July 2019. On 2 October 2019 Mr Napier applied under s 147 of the CPA for the perjury charge to be dismissed, or alternatively to be severed. Whata J declined to dismiss the application under s 147, holding that there was sufficient evidence upon which a properly directed jury could reasonably convict Mr Napier.6 However, Whata J severed the charge and directed it be tried separately. The Crown issued a Charge Notice in respect of the severed perjury charge on 29 October 2020.

1      R v N [2022] NZHC 2115 at [1].
2      R v N [2022] NZHC 3072.
3      Crimes Act 1961, ss 108 and 109(1). Maximum penalty seven years’ imprisonment.
4      Criminal Procedure Act 2011, s 146(2).
5      Torbay Holdings Ltd v Napier [2015] NZHC 2477, [2015] NZAR 1839.
6      R v N [2020] NZHC 2439.

[6] The Crown now says that it has reassessed the public interest in light of the convictions entered and the custodial sentence imposed on Mr Napier for the dishonesty charges. The Crown has determined that the public interest does not currently favour prosecution of the perjury charge. Counsel for the Crown submits that it is in the interests of…

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 Napier

Details

AGLC: R v Napier [2023] NZHC 707
Case: [2023] NZHC 707
Decision Date: 31 March 2023

CaseChat Overview and Summary

In the High Court of New Zealand, the case of R v Napier involved a Crown application for leave to withdraw a charge of perjury against the defendant, Mr Napier. The Crown argued that the public interest no longer favoured prosecution of the perjury charge, given Mr Napier's recent convictions and imprisonment for dishonesty charges. Mr Napier opposed the application, arguing that the withdrawal of the charge should not bar any other proceedings in the same matter. The case had a complex procedural history, including previous applications for dismissal or severance of the perjury charge, which had been declined. The court needed to decide whether it was in the interests of justice to allow the Crown to withdraw the charge under s 146 of the Criminal Procedure Act 2011.

The court considered whether the Crown's reassessment of the public interest was justified and whether it was in the interests of justice to grant the application. The court noted that previous cases where the Crown had been granted leave to withdraw charges under s 146 were based on evidential insufficiency, which was not the case here. The court found that there was sufficient evidence for Mr Napier to be convicted of perjury, and the Crown had the ability to proceed with the prosecution. The court also considered the importance of finality for all parties, including Mr Napier, and his right to be tried without undue delay. The court concluded that it was not in the interests of justice for the charge of perjury to remain pending over Mr Napier's head without a realistic prospect of being tried.

The court declined the Crown's application for leave to withdraw the charge of perjury under s 146 of the Criminal Procedure Act 2011. The court emphasised that the application was under s 146, and not under s 192, which would have allowed the court to either grant leave or dismiss the charge under s 147. The court reserved leave for the parties to apply further if necessary.

Orders