The Queen v Hart

[2009] NZCA 592

IN THE COURT OF APPEAL OF NEW ZEALAND

CA768/2009
[2009] NZCA 592

THE QUEEN

v

COLLEEN SYLVIA HART

Hearing:11 December 2009 (by telephone conference)

Court:Hammond, Chambers and Robertson JJ

Counsel:G C Gotlieb for Appellant

B D Tantrum for Crown

Judgment:11 December 2009 

ORAL JUDGMENT OF THE COURT

The appeal is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Robertson J)

[1]        The appellant, Mrs Hart, appeals against a refusal to grant her interim name suppression until sentencing in the High Court in New Plymouth on 4 February 2010.

[2]        On 21 September 2009, Mrs Hart pleaded guilty to four counts of the possession of methamphetamine for supply. 

[3]        At a hearing before Duffy J on 24 November 2009, the issue of suppression of her name until sentence was raised.  Because of a shortage of time, the issue was adjourned until a further hearing on 9 December 2009 in Auckland with suppression continuing in the meantime.

[4]        Following the further hearing, Duffy J determined that there was no basis for suppression and ruled accordingly.  She permitted suppression of Mrs Hart’s name until 5pm 11 December 2009 to enable Mrs Hart to consider the position and take further steps.

[5]        An appeal was filed with this Court this morning.  When the hearing commenced, Mr Gotlieb sought an adjournment of this appeal to enable him to obtain a psychological report about the position of Mrs Hart’s son. We were unwilling to grant an adjournment as the opportunity has existed for nearly three months for such material to be obtained and it had been particularly in focus for the last two weeks.

[6]        The High Court Judge described the factual situation as follows:

[4]         …The applicant has been charged with and pleaded guilty to four charges of possession of methamphetamine for supply.  On 17 December 2008, she bought five grams of methamphetamine; on 30 December 2008, she bought four grams of methamphetamine; between 4 and 5 January 2009, she requested 10 grams of methamphetamine from her supplier; and, on 27 January 2009, she purchased 14 grams of methamphetamine.  The total comes to 33 grams, purchased between December 2008 and late January 2009.  This is well in excess of the presumption in s 2(1A) and schedule 5 of the Misuse of Drugs Act 1975, which deems possession of five or more grams of methamphetamine to be possession for the purpose of supply.  I do not, for the purpose of this application, propose to make findings of fact that are more relevant to the applicant’s application for a discharge without conviction, which is to be dealt with on sentencing on 4 February 2010.  I propose instead to work with the facts as acknowledged by the applicant.

[5]         In this case, the applicant has admitted to Police that she supplied methamphetamine to her now deceased husband.  At the time, he was terminally ill with cancer, and the methamphetamine was being used by him to counter the sedative effects of the pain relief medications he had been prescribed.  Whilst this is not the usual type of supply of methamphetamine, it still constitutes the offence of possession for supply under the Misuse of Drugs Act.

[6]         While the applicant had initially sought to present herself as someone who was not a user of methamphetamine, and had no knowledge of methamphetamine use, in the course of the disputed facts hearing, when the applicant was cross-examined by Crown counsel, she admitted to some recreational use of methamphetamine herself, and she accepted that one of the transcripts of her text messages to the supplier involved the applicant asking the supplier about supplying methamphetamine to another family member.  There was also a very small amount of methamphetamine in what looked to me like a plastic ziplock point bag found in her wallet.  The applicant’s admissions and the possession of the so called point bag in her wallet indicate to me that the applicant is not someone who has come into contact with methamphetamine simply as a result of a desire to assist in the palliative care of her dying husband.

[7]        Convictions have not been entered because Mrs Hart proposes to endeavour to persuade the sentencing Judge that the impact of convictions would be disproportionate to her culpability.  It is submitted that the suppression question requires consideration in tandem with this matter.

[8]        A second issue raised before the Judge was described as follows:

[9]         Another concern is the impact on her young teenage son, should her offending become public knowledge.  I am informed that at present he is unaware of the charges against his mother.  He has already lost his father, and the information I have available to me shows that his emotional state is fragile.  Him learning about his mother’s predicament will, no doubt, have a harmful impact on his wellbeing.

[9]        Duffy J considered the relevant principles as discussed by this Court in R v Liddell [1995] 1 NZLR 538 and subsequently in Lewis v Wilson & Horton Ltd [2000] 3 NZLR 546.

[10]       She was of the view that the application for name suppression was separate from the endeavour to avoid convictions being entered and, although sympathetic to the plight of the teenage son, held it was not sufficiently out of the ordinary to justify suppression.

[11]       In a careful and detailed judgment, the Judge considered all the competing factors in exercising her judicial discretion.  There is nothing to suggest that a wrong principle has been applied, any relevant factor has been overlooked, or new material is available which could impinge upon the exercise of her discretion.

[12]       On the basis of the presumption in favour of open justice, there is nothing which suggests that the discretion was wrongly exercised.  The appeal is accordingly dismissed.

Solicitors:

Crown Law Office, Wellington