Waters v Ministry of Economic Development

[2016] NZCA 96

IN THE COURT OF APPEAL OF NEW ZEALAND

CA378/2015
[2016] NZCA 96

BETWEEN	GERALD WATERS Applicant
AND	MINISTRY OF ECONOMIC DEVELOPMENT Respondent

Court:

Ellen France P, Keane and Dobson JJ

Counsel:

A Arman for Applicant
Y Moinfar for Respondent

Judgment:

(On the papers)

8 April 2016 at 4.15 pm

JUDGMENT OF THE COURT

AThe application for an extension of time to apply for special leave to appeal is declined.

B        The application for special leave to appeal is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Dobson J)

1. On 31 May 2013, the applicant (Dr Waters) was found guilty in the Auckland District Court on two charges of being a party to an offence under s 382 of the Companies Act 1993.[1]  That section prohibits any person with a relevant conviction from acting as a director, or being concerned in the management, of a company for a period of five years after conviction.  Dr Waters was convicted and fined $2,000 on each charge.[2]

   [1]Ministry of Economic Development v Waters DC Auckland CRN 12004502012, 31 May 2013. 

   [2]R v Waters DC Auckland CRI-2012-004-9765, 24 July 2013.

2. Dr Waters appealed both his conviction and sentence.  The appeal was dismissed on 18 December 2013 by Andrews J.[3]  On 29 May 2014, her Honour declined an application for Dr Waters to pursue a second appeal to this Court.[4]

   [3]Waters v Ministry of Economic Development [2013] NZHC 3463.

   [4]Waters v Ministry of Economic Development [2014] NZHC 1168.

3. On 7 July 2015, Dr Waters applied for special leave to appeal to this Court, pursuant to s 144(3) of the Summary Proceedings Act 1957.  The relevant test requires Dr Waters to raise a question of law which, by reason of its general or public importance or for any other reason, ought to be submitted to this Court for decision.

4. The application for special leave was filed more than a year out of time.  The Crown opposed the application for the necessary extension of time, given the substantial length of the delay.  It was argued that Dr Waters advanced inadequate reasons for the delay and that the proposed appeal lacked merit. 

5. The delay is indeed substantial.  Dr Waters has not provided any evidence as to the reasons for the delay.  The submissions on his behalf stated that he does not qualify for legal aid and has only been able to retain private counsel recently.  That reason is less than compelling.  Dr Waters has been represented by different counsel in each court. 

6. Given the parties’ consent to the Court considering the application on the papers, we have undertaken an assessment of the possible merits of the application so that we can weigh the Crown’s ground of objection that any merit is lacking. 

7. Dr Waters is a medical practitioner.  The offending arose out of his association with Jonathan Mann, who Dr Waters says had duped him into participating as a director of two companies in which Mr Mann was involved.  The business of the companies, which comprised an operating company and its parent holding company, was in marketing medicinal products.  Throughout the period to which the convictions related, Mr Mann had a relevant dishonesty conviction, which prevented him acting as a company director, or taking part in the management of the company. 

8. Dr Waters claims, in his unsworn affidavit in support of the application for special leave, that when interviewed by a Ministry of Economic Development (MED) investigator, he chose to misstate his understanding of Mr Mann’s predicament during the period in which Dr Waters acted as a director of the companies.[5]  Dr Waters now claims that he wrongly indicated he was aware of Mr Mann’s predicament on the basis of legal advice that Dr Waters’ own participation in those circumstances did not expose him to any risk of liability.  He now accepts it was foolish to attempt to “bluff his way through the matter” in that way, and wishes ultimately to have a re-hearing in the District Court on the basis that he could disavow the evidence obtained during his interview with the investigator.  The prosecutions depended on Dr Waters’ acknowledgements in the interview.

   [5]On request Dr Waters provided a signed copy of the affidavit and his counsel advised a sworn version would be forthcoming but it has not as yet been filed.  In these circumstances, it is doubtful whether any weight should be attributed to the affidavit.

9. The questions claimed to justify special leave are expressed in the following terms:

   In relation to the conviction

   (a) Did the learned trial Judge err in concluding that by aiding and abetting in respect of the subsidiary company, the applicant was held to have aided and abetted in respect of the holding company?

   (b) Did the learned trial Judge err when he misidentified the relevant test under s 66(1) of the Crimes Act 1961?

   (c) Did the learned appeal Judge err when she identified the correct test under s 66(1) of the Crimes Act 1961, but made a conclusion in the absence of evidence?

   (d) Is a confession of primary offending sufficient to render a safe verdict in cases of secondary offending in the absence of any corroborative evidence?

   (e) Can a defendant be convicted as a party to offending when the only evidence of the primary offending is the defendant’s recanted statement?

   In relation to the sentence

   (f) Was the learned sentencing Judge correct in focusing on the superficial gravity of the offence rather than focusing on the conduct of the defendant, in line with the established precedent in Z (CA447/2012) v R?

   (g) Can a discharge without conviction still be available where the gravity of the offence is high, in terms of maximum sentence, but the offending within that spectrum is not that serious?

   (h) When applying s 107 of the Sentencing Act 2002, does the term “gravity of the offence” allow for the words offence and offending to be used synonymously?

10. Each question was prefaced in counsel’s formulation with the phrase “As a matter of law …” but that addition cannot change the character of the issue raised by the terms of the question that followed.  A number of the issues were either not argued in the High Court, or are re-formulations of issues on which the first appeal was unsuccessful.

11. Proposed questions (a), (d), and (e) raise questions that are exclusively or predominantly matters of fact arising in this particular case.  To the extent that any issues of law can be isolated, they certainly do not have any general or public importance.

12. As to questions (b) and (c), the submissions in support of the application argue that the Supreme Court decision in Ahsin v R reveal an error of law, both by the trial Judge and Andrews J on the application of the tests under s 66(1) of the Crimes Act 1961.[6]  We are not satisfied that the issues on party liability addressed by the Supreme Court have any application to the respects in which s 66 was relevant in these prosecutions.

    [6]Ahsin v R [2014] NZSC 153, [2015] 1 NZLR 493.

13. Questions (f) to (h) regarding a discharge without conviction are questions of law.  However, there is no basis in either the sentencing decision or the High Court appeal for finding an error of the type alleged.  The Judge took into account all factors relevant to the gravity of offending.

14. Accordingly, we accept the Crown submission that there are no real prospects of success.  When added to the lack of any satisfactory explanation for the very long delay in seeking special leave, we are satisfied that an extension to bring the application for special leave so long out of time ought not to be granted. 

15. The application for an extension of time to apply for special leave to appeal is declined, and the application for special leave is dismissed. 

Solicitors:
Crown Law Office, Wellington for Respondent