Sperry v The King - [2024] NZHC 1956

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2024-404-000317

[2024] NZHC 1956

BETWEEN
MICHAEL JOHN SPERRY

Appellant

AND

THE KING

Respondent

Hearing: 15 July 2024

Appearances:

P R Marshall for Appellant C Antenan for Crown

Judgment:

16 July 2024

JUDGMENT OF ANDERSON J

[Appeal against suppression]

This judgment was delivered by me on 16 July 2024 at 2.30 pm.

………………………………
Registrar/Deputy Registrar

Solicitors:
Meredith Connell, Auckland

SPERRY v R [2024] NZHC 1956 [16 July 2024]

[1] Mr Sperry faces six charges of money laundering. He is alleged to have been reckless as to whether or not money received was the proceeds of an offence.1 A two-day trial has been set for 22 July 2024. I was advised that the appellant will seek to adjourn the trial due to disclosure issues, but that issue has yet to be addressed.

[2] Mr Sperry appeals the decision of Judge J B Berseng in the District Court at Auckland declining:2

(a)An application by Mr Sperry for continued name suppression under s 200(2) of the Criminal Procedure Act 2011 (CPA), namely that publication of his name would cause extreme hardship to himself, his business associates and family.

(b)An application by Mr Sperry as director of Omega Finance Ltd (OFL) under s 202 of the CPA on the basis of undue hardship to that company in connection with the proceeding.

Charges

[3] It is alleged that unknown offshore criminals set up a fake webpage claiming to be a broker for long term deposits. The complainant believed he was transferring
$800,000 to Citibank for the purpose of creating a long-term deposit. Instead, on 20 April 2023, the money was received into a bank account held by OFL. An unknown person posing to be the owner of Sparco Bank contacted OFL. He is alleged to have asked Mr Sperry to act as custodian of the funds.

[4] Mr Sperry is a director of OFL. It is said that on 3 May 2023, Mr Sperry made six transfers from the account, totalling $126,358.43. It is alleged that Mr Sperry was reckless as to the provenance of the funds.

1 Crimes Act 1961, s 243(2). Maximum penalty seven years’ imprisonment.
2 R v Sperry [2024] NZDC 11806.

Grounds for seeking suppression orders

[5] By s 200(1) of the CPA a court may make an order forbidding publication of the name of a person who is charged with, or convicted or acquitted of, an offence. As relevant to this appeal, by s 200(2)(a) a court may make an order if it is satisfied that publication “would be likely to cause extreme hardship to the person charged with…the offence, or any person connected with that person”.

[6] By s 202 of the CPA, a court that is hearing a proceeding in respect of an offence may make an order forbidding publication of the name, address, or occupation of any person who is connected with the proceedings, or is connected with the person…

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 Sperry v The King

Details

AGLC: Sperry v The King [2024] NZHC 1956
Case: [2024] NZHC 1956
Decision Date: 16 July 2024

CaseChat Overview and Summary

Michael John Sperry appeals against the decision of Judge Berseng in the Auckland District Court declining his application for continued name suppression under the Criminal Procedure Act 2011. Sperry faces charges of money laundering, and he argues that publication of his name would cause extreme hardship to himself, his business associates, and family. Additionally, Sperry sought suppression of his name as a director of Omega Finance Ltd (OFL) on the basis of undue hardship to the company.

The court needed to decide whether the District Court correctly assessed the threshold for extreme and undue hardship under the Criminal Procedure Act 2011. The court also needed to consider whether the District Court erred in declining to suppress Sperry's name in the exercise of its discretion.

The court found that the District Court was correct in concluding that the high threshold for extreme hardship had not been met. The evidence provided by Sperry was speculative and lacked detailed, up-to-date information on the potential consequences for his business projects. The court emphasised that something more than the ordinary consequences of facing criminal charges was required to meet the threshold of extreme hardship. The court also found that the threshold for undue hardship to OFL was not met, as there was insufficient evidence to show that publication would cause disproportionate hardship to the company. The court agreed with the District Court that the public interest in open justice and the reporting of criminal proceedings outweighed the potential hardship to Sperry and his associates. The appeal was dismissed, and no interim orders were sought.

Orders