Raue v M - [2024] NZHC 2701

ORDER PROHIBITING PUBLICATION OF NAME, ADDRESS,

OCCUPATION OR IDENTIFYING PARTICULARS OF M PROHIBITED BY S 200 OF THE CRIMINAL PROCEDURE ACT 2011 REMAINS IN FORCE.

SEE

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CRI-2024-485-21

[2024] NZHC 2701

BETWEEN
KATHERINE RAUE

Appellant

AND

M

Respondent

Hearing: 4 June 2024

Appearances:

Appellant in person (supported by Ms Chambers) K R Smith and S A Avery for Respondent

Judgment:

18 September 2024

JUDGMENT OF McQUEEN J

[1] Ms Raue seeks leave to appeal the District Court judgment dismissing a charge against M under s 147 of the Criminal Procedure Act 2011.1 If leave is granted, the Court is required to determine the appeal.

[2]Leave to appeal is declined and the appeal is dismissed.

Background

[3] Mr Te Ringa Mangu Mihaka sought to bring a private prosecution against M for misuse of a telephone on 12 March 2020, pursuant to s 112(2) of the

1 The respondent was granted permanent name suppression in the District Court: Raue v [M] [2024] NZDC 4755. Accordingly I have anonymised her name in this judgment.

RAUE v M [2024] NZHC 2701 [18 September 2024]

Telecommunications Act 2001. A direction was made in the District Court that the charging document be accepted for filing, under s 26 of the Criminal Procedure Act.2

[4] The alleged offending underpinning the charge may be briefly described as follows.3 Mr Mihaka and Ms Raue (and others) met with M on 4 March 2020 at Ministry of Health offices to raise a complaint about the provision of mental health services to kaumatua and kuia in the Far North, including the misuse of personal information. At that time, M was an employee of the Ministry of Health (the Ministry).

[5] On 12 March 2020, M is said to have called the mobile phone shared by Mr Mihaka and Ms Raue numerous times, as well as sending over 50 text messages containing disturbing and offensive content from her mobile phone. It is said the mobile phone number matches that listed on M’s official emails from her work profile with the Ministry. In these communications, it is said that M claimed to be someone else. That person denies any involvement in the communications.

[6] The purpose of the calls is alleged to have been to obstruct the Ministry’s processes for investigating and resolving complaints.

[7] Unfortunately, Mr Mihaka became unwell and later died. Ms Raue was substituted as prosecutor in relation to the charge against M.4

[8] M applied to the District Court to have the charge dismissed and/or stayed under s 147 of the Criminal Procedure Act (the s 147 application). That application was heard on 11 December 2023. Ms Raue appeared in person. Counsel appointed as amicus also appeared. The charge was dismissed.5 Ms Raue now appeals that decision.

Decision under appeal

[9] In a decision dated 4 March 2024, the District Court Judge noted that the s 147 application was made on several…

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 Raue v M

Details

AGLC: Raue v M [2024] NZHC 2701
Case: [2024] NZHC 2701
Decision Date: 18 September 2024

CaseChat Overview and Summary

In the High Court of New Zealand, Katherine Raue appealed the District Court's decision dismissing a charge against M under s 147 of the Criminal Procedure Act 2011. The background of the case involves a private prosecution initiated by Mr Te Ringa Mangu Mihaka against M, an employee of the Ministry of Health, for misuse of a telephone. The alleged misconduct occurred on 12 March 2020, when M allegedly called and sent numerous offensive text messages to a shared mobile phone of Mr Mihaka and Ms Raue. After Mr Mihaka's death, Ms Raue continued the prosecution, but M applied to have the charge dismissed under s 147, which was ultimately granted by the District Court.

The appeal centered on whether the District Court Judge had erred in law when dismissing the charge. The legal issue was whether the District Court's decision to dismiss the charge constituted a misdirection of law, an oversight of a relevant matter, or an error of law that was plainly wrong. Ms Raue argued that the prosecution was essential for her to clear her name and restore her mana, especially since she was a public figure. She also claimed that the delay in prosecuting the case was not entirely her fault and that there was a significant public interest in the matter. However, counsel for M argued that Ms Raue had failed to identify a question of law and that the District Court Judge's decision was based on relevant factual matters.

The Court found that there was no error in law in the District Court's decision. The Court noted that the delay in prosecuting the case was significant, impacting M's fair trial rights. The Court also found that the Judge had considered relevant facts and had not overlooked any relevant matter. As such, the Court declined leave to appeal and dismissed the appeal. The Court further noted that it could not consider Ms Raue's request to remove the permanent suppression order on M's name since no appeal had been filed against that decision. Costs were to be determined based on a memorandum if M sought costs under the relevant Acts.

Orders