Haden v New Zealand Police
| Jurisdiction | New Zealand |
| Judge | Goddard J |
| Judgment Date | 26 March 2021 |
| Neutral Citation | [2021] NZCA 94 |
| Court | Court of Appeal |
| Docket Number | CA171/2018 |
| Date | 26 March 2021 |
[2021] NZCA 94
Brown, Clifford and Goddard JJ
CA171/2018
IN THE COURT OF APPEAL OF NEW ZEALAND
I TE KŌTI PĪRA O AOTEAROA
Criminal Procedure, Law Practitioners — appeal against a conviction for breaching a name suppression order given by the Lawyers and Conveyancers Disciplinary Tribunal pursuant to s240 Lawyers and Conveyancers Act 2006 — the name suppression order had been given orally — the penalty decision had not referenced an order — requirements for making a valid suppression order under the Act
Appellant in person
P D Marshall for Respondent
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A The questions of law set out at [36] are answered at [57] of this judgment.
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B The appeal is allowed.
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C Ms Haden's convictions are set aside.
(Given by Goddard J)
In December 2017, Ms Haden was convicted in the District Court on five charges of breaching a suppression order made by the New Zealand Lawyers and Conveyancers Disciplinary Tribunal (Tribunal) under the Lawyers and Conveyancers Act 2006 (Act). 1 The prosecution was brought on the basis that a suppression order had been made under s 240(1)(c) of the Act in a written decision of the Tribunal dated 24 November 2016 (the November 2016 decision). 2 Ms Haden defended the charges on the basis that no formal order under that provision had ever been made. Judge Adeane did not accept that argument. He entered convictions on the five charges. 3 Ms Haden's appeal to the High Court was unsuccessful. 4 Ms Haden sought leave to appeal to this Court. Leave was declined. 5
A charge in relation to breach of the same suppression order was subsequently laid against Mr Vincent Siemer. In the District Court, Mr Siemer was convicted of breaching a suppression order made by the Tribunal. 6 Mr Siemer's appeal to the High Court was unsuccessful. 7 However he was then granted leave to appeal to this Court, 8 and that appeal succeeded ( Siemer (CA)). 9 This Court held that the Tribunal's November 2016 decision did not make it sufficiently clear that an order had been made under s 240 of the Act. 10
When Ms Haden became aware of the outcome in Siemer (CA), she applied for recall of this Court's first leave decision (First CA leave decision) and for leave to appeal to this Court. Those applications were granted. 11
We agree with the conclusion reached by this Court in Siemer (CA) that the Tribunal did not make an order under s 240 of the Act in the November 2016 decision. The position appears to be that a s 240 order was made orally at the penalty hearing before the Tribunal on 8 November 2016; the November 2016 decision set out the Tribunal's reasons for making that order but did not itself contain a s 240 order.
There is force in the Crown's submission that although the November 2016 decision did not make a s 240 order, it evidenced the prior making of a s 240 order. The November 2016 decision did not expressly say that a s 240 order had been made orally at the hearing on 8 November 2016. But arguably it is implicit in the November 2016 decision, read in context, that such an order was already in existence. Be that as it may, Ms Haden's trial in the District Court proceeded on the basis that the relevant suppression order had been made in the November 2016 decision. There was no reference at the trial to an order being made orally on 8 November 2016. It would be a miscarriage of justice for Ms Haden's conviction to stand in circumstances where neither the date on which the order was made, nor the terms of that (oral) order, were in evidence at her trial. Ms Haden's conviction is therefore set aside.
These proceedings have their origin in disciplinary proceedings brought before the Tribunal against a lawyer, Mr Wells. 12 Mr Wells sought interim suppression of his name pending the hearing of disciplinary charges against him under s 240(1)(c) of
240 Restrictions on publication
(1) If the Disciplinary Tribunal is of the opinion that it is proper to do so, having regard to the interest of any person (including (without limitation) the privacy of the complainant (if any)) and to the public interest, it may make any 1 or more of the following orders:
…
(c) an order prohibiting the publication of the name or any particulars of the affairs of the person charged or any other person.
On 25 July 2016, the Tribunal issued a written decision on interim name suppression (July 2016 interim decision) in which it concluded that the threshold for suppression had been reached. 13 Public interest considerations were outweighed by the factors identified by the applicant, including the fact that he had retired from practice, was in bad health, and had for some 10 years been “harassed through the courts, by a vexatious litigant”. 14 The July 2016 interim decision did not contain any language expressly making an interim order under s 240 of the Act, but it was clear from that decision that the Tribunal considered that interim suppression should be ordered.
On 6 September 2016, the Tribunal proceeded to hear the charges against Mr Wells. He was found guilty of one charge of negligence such as tended to bring the profession into disrepute. 15
The Tribunal then held a further hearing on 8 November 2016 to determine the penalties to be imposed in respect of that breach. At that hearing Mr Wells sought permanent suppression of his name under s 240 of the Act. At the end of the hearing the Tribunal conferred, then the Chair said:
Alright [Mr Wells] we have been able to reach a consensus about the penalty orders that ought to be imposed. We have determined that we can stop short of suspension. And instead we will be imposing a Censure which you will
receive in written form. Fine of $5,000. An order that you refund the fee of $3,648.94. We decline to reimburse by way of compensation Mr P's fees and we'll give reasons for that. We are ordering a contribution to the Standards Committee's costs in the sum of $15,000. There will be an order against the New Zealand Law Society for the s 257 Tribunal costs which will be certified in due course but probably are in the region of about $7,000. And there will be an order that [Mr Wells] fully reimburse the s 257 costs also, to the Law Society. And name suppression will be granted.
On 24 November 2016 the Tribunal issued the November 2016 decision, which was headed “Reasons of the Tribunal for Decision on Penalty”. We set out in full the Tribunal's discussion of name suppression: 16
[22] The reasons for interim name suppression are set out in our interim decision of 25 July 2016.
[23] The Standards Committee submit that the public interest in openness of the disciplinary process demands that the practitioner's name be published.
[24] We accept that an adverse finding means that the threshold for suppression is higher than at an interim stage.
[25] Mr Davey accepted the decisions of H and ABC. Both allowed permanent suppression in cases where the practitioners had serious health concerns. In the latter case the likely detriment to the practitioner's mental health had been certified by a psychiatrist. Mr Davey submits that, in the absence of a certificate from a psychiatrist, the Tribunal ought not to be satisfied in this regard. In the H matter both psychological and physical health problems were involved and the serious adverse consequences which might be suffered by the practitioner were his name published, tipped the balance against publication in that matter.
[26] In the present case there is ample information before the Tribunal to accept that there are both psychological and physical health conditions at a serious level. In addition to that, as referred to in our interim decision, the practitioner has in the past been pursued by a litigious and irrational person who might be expected to re-engage in a campaign against the practitioner should the present matters come to that person's attention.
[27] The litigation pursued by this person has been the subject of adverse judicial comment at all levels.
[28] Given that there is no risk to the public posed by this practitioner in the future, we consider that the combination of factors referred to above do, in this unusual set of circumstances, justify the permanent name suppression of the practitioner, his former client and any identifying details.
Ms Haden was the person whom the Tribunal identified at [26] of its decision as litigious, and potentially re-engaging in a campaign against Mr Wells.
It appears that the Tribunal's November 2016 decision was published, with the name of the practitioner anonymised as “Mr M”, on the Ministry of Justice website.
Shortly after the November 2016 decision was delivered, the New Zealand Law Society (NZLS) published on its website the following statement (the NZLS statement):
Name suppression granted to censured lawyer
28 November 2016
The New Zealand Lawyers and Conveyancers Disciplinary Tribunal has found a lawyer guilty of negligence or incompetence of such a degree as to reflect on his fitness to practise or as to bring the profession into disrepute. The lawyer has been granted permanent name suppression.
The lawyer, Mr M, had been friends with the complainant for over 40 years and she appointed him as her attorney under an Enduring Power of Attorney ( EPA) after consulting her own lawyer. Mr M did not understand that in acting as attorney, as well as being Chair of the local branch of a charity to which the complainant would make donations, he was placing himself into a position of divided loyalties.
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