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.…

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 The Queen v Hart

Details

AGLC: The Queen v Hart [2009] NZCA 592
Case: [2009] NZCA 592
Decision Date: 11 December 2009

CaseChat Overview and Summary

In the Court of Appeal of New Zealand, the appellant, Colleen Sylvia Hart, sought to appeal a decision made by the High Court Judge, Duffy J, concerning the interim suppression of her name until sentencing. Mrs Hart had pleaded guilty to four counts of possession of methamphetamine for supply and the matter was due to be sentenced on 4 February 2010. The primary legal issue before the court was whether the appellant's name should be suppressed until sentencing, and if so, under what conditions.

The High Court Judge, Duffy J, had previously ruled against the suppression of Mrs Hart's name until sentence, permitting suppression only until 5pm on 11 December 2009 to enable her to consider her position and take further steps. The High Court Judge considered the relevant principles of open justice and the impact on the appellant's teenage son, who was unaware of the charges against his mother. The court noted that Mrs Hart had admitted to some recreational use of methamphetamine and that the quantity involved exceeded the presumption of possession for supply under the Misuse of Drugs Act. The Judge held that the application for name suppression was separate from the endeavour to avoid convictions being entered and, while sympathetic to the son's situation, did not consider it sufficiently out of the ordinary to justify suppression.

The Court of Appeal, in dismissing the appeal, found that the High Court Judge had carefully considered all the competing factors and applied the correct principles in exercising her judicial discretion. The appeal court held that there was no basis to interfere with the Judge's decision, as there was no evidence of a wrong principle being applied, any relevant factor being overlooked, or new material being available that could impact the exercise of discretion. Consequently, the appeal was dismissed, and the decision of the High Court Judge stood.

Orders