The Court of Appeal decision in full - part 2

...continuation

The decision in the District Court


[27] The transcript of what took place in Court on 6 January and 7 January was in evidence in the High Court. It is set out in full in paragraphs [35] and [38] below. But the record was acknowledged to be an incomplete account of what took place and the Judge's reasons. It was supplemented by a memorandum to the High Court by Judge Harvey indicating that he had turned his mind to questions of extra-territoriality and the utility of the s140 order. The Judge's reasons for his decision on the s140 order were also enlarged upon by him in the subsequent judgment of 17 January on the application by Wilson & Horton for access to the Court file. An affidavit by the Registrar conducting the Otahuhu Court on 6 January and 7 January was also before the High Court. Further detail as to what transpired was given to the High Court by counsel and a transcript of the information given was available in the present appeal.


[28] In his memorandum dated 27 April supplied to the High Court, Judge Harvey advised that before Court started on 6 January, when the matter was first called and before a plea was entered, he had been seen in Chambers by the Police prosecutor and counsel for the appellant. Counsel for the appellant told the High Court that the chambers interview had been requested by the Police prosecutor who "wanted to make the position of the Police clear before we went back into open Court", given "the unusual circumstances of the case, namely importation, request for s19 and application for name suppression". At the chambers hearing, Judge Harvey had before him lengthy written submissions on behalf of the appellant which had been faxed through to the Court earlier. He knew that counsel was seeking both a discharge without conviction under s19 and an order forbidding publication of the appellant's name under s140.


[29] From material placed before the High Court as to the sequence of events, it is clear that the written material provided was supplemented by oral submission or discussion. That is confirmed by Judge Harvey in his later judgment of 17 January on the application by Wilson & Horton to have access to the Court file as well as by his memorandum to the High Court of 27 April. No record of the discussions in Chambers was made and the Judge himself did not keep a note of them. As appears from the Judge's memorandum to the High Court, however, there was discussion in Chambers about the fact that the suppression order was sought "principally to prevent publication of the defendant's name overseas". The Judge says in the memorandum:

* I advised counsel that I had no power to make an order binding on overseas publications or on what was published on the Internet for overseas sources, nor could such an order be enforced.

* Counsel conceded that this was so, but observed that for publication to be effected beyond the jurisdiction, there would have to be publication from New Zealand to an overseas news source. Such publication would be in breach of the order.

* The issue of publication overseas was considered by me before any orders were made.


[30] Ms Dyhrberg, counsel for "L", told the High Court that in addition to the matters canvassed in her written submissions, she advised the Judge in Chambers that her client was prepared to make a donation of approximately $50,000 to a drug rehabilitation charity, a matter she had already discussed with the Police. She also advised the Judge that there was a risk, if the appellant were convicted and the fact publicised, that he would have to be removed from boards to which he belonged because of possible adverse consequences for the stockholders. If his income were affected in that way, it might affect the appellant's capacity to continue the substantial charitable donations referred to in the written submissions. Neither of these matters had been raised in the written submissions.


[31] In his judgment of 17 January, Judge Harvey confirmed that "there were discussions in Chambers regarding this matter which were not recorded and a note of which was not kept":

* It is agreed by Ms Dyhrberg that the essence of the decisions both for discharge without conviction and for suppression are encapsulated in her written submissions and the matters contained therein were accepted by the Police.


[32] A difficulty with treating the submissions as encapsulating the Judge's reasons through direct adoption is that the written submissions do not refer to the donation or the other additional matters discussed in Chambers as acknowledged by the Judge (as to the protection of the appellant's reputation in the United States) or counsel (as to the risk to the appellant's board membership and income). Nor is it known what was made by the Judge of the submission received from New Zealand Customs.


[33] The written submissions covered both the application for s19 discharge without conviction and the s140 name suppression. Most of the factors of hardship to the appellant put forward in the submissions related to the discharge without conviction. They were answered by the decision of the Judge to exercise his discretion under s19 to discharge the appellant without conviction.


[34] In the hearing of the present appeal, counsel for the appellant acknowledged that only four submissions not answered by the discharge without conviction supported the s140 order prohibiting disclosure of the appellant's identity. They were:

* the appellant's lack of previous criminal convictions and his ready acceptance of responsibility for his actions;

* the likely "undue" media interest in the appellant, given his standing as "an extraordinarily successful businessman, community leader and philanthropist", who contributes to a number of charitable and business organisations;

* the likely adverse consequences to the various professional, business and charitable organisations with which the appellant is associated, which potentially "could" be wrongfully associated with the appellant's criminal conduct with consequential undermining of their reputations, built up over many years of hard work; and

* the risk that those reading the reports or the news media in the reporting would derive a connotation of "drug trafficking" from the charge of "importation" despite the acknowledgement that the drugs were imported by the appellant for personal use.


[35] When the matter was called in Court on 6 January, guilty pleas were formally entered to the charges. A transcript records what then took place. Judge Harvey indicated that he had read the submissions. Counsel for the appellant suggested that the summary of facts did not need to be read out. The Judge expressed the view that the matter involved personal use only:

* I have had a look at the submissions that have been made Ms Dyhrberg. The principle as I understand it, and as you have outlined, is that although these charges are laid indictably it is quite clear that it is a personal use issue only and that the attraction of the seriously laid charges has come about as a result of the way in which this stuff came into the country, in other words across the border.

* What I cannot understand, "L", is notwithstanding the fact that you have obviously engaged in the consumption of cannabis on a recreational basis for a considerable period of time, how a person as successful as you, and obviously used to making the right decisions, could make such a wrong one in this particular case. Notwithstanding your views as I assume you must have about whether or not cannabis use should be criminalised, the fact of the matter is in this country it is criminal and the obligation is upon you to make sure that you do not breach the law when you are coming into this country and when you are in this country.

* Having said that, one wonders whether or not the imposition of a conviction in this particular case would be appropriate or useful having regard to the good character that you have, the obvious honesty and frankness that you have disclosed your involvement in this type of offending, you haven't tried to hide behind the law or anything of that nature. I see, "L", that you have made substantial donations to charitable causes.

* "L". Yes Sir.

* THE COURT. And I wonder Ms Dyhrberg if something in that way could not be done?

* MS DYHRBERG. That can certainly be done on a voluntary basis Your Honour.

* THE COURT. Yes.

* MS DYHRBERG. I have had a figure in mind. I have spoken already with Odyssey House.

* THE COURT. Yes.

* MS DYHRBERG. As I have of course with "L" and the representative and that can be done today.

* THE COURT. Right.

* MS DYHRBERG. Obviously Odyssey House, is a – Your Honour will –

* THE COURT. I think it is most appropriate given the offending Ms Dyhrberg.

* MS DYHRBERG. It is Your Honour, and they struggle for – it will be a voluntary one and it will be substantial.

* THE COURT. Sergeant?

* PROSECUTOR. Yes Your Honour. The Police who brought the prosecution have no adverse comments in respect of the course that has been taken in this matter although I have been provided, and this has only recently come to light, I don't know whether Ms Dyhrberg is aware of it, some views from the New Zealand Custom Service which I have been asked to place before Your Honour.

* THE COURT. Yes.

* PROSECUTOR. I apologise that they are in a handwritten format but as I say this has only just come to light.

* THE COURT. I had better have a look. (pause) Well quite clearly the Customs people have carried out their duty as guardians of our borders in ensuring that substances do not come into the country and have taken the appropriate steps. What I am going to do is this Ms Dyhrberg, I am going to reserve the matter until tomorrow. I am going to remand this gentleman on bail until tomorrow morning. He can make a voluntary donation to Odyssey House and then I will give consideration to a section 19 discharge.


[36] The handwritten memorandum from the New Zealand Customs Service opposed the s19 discharge on the basis of the need for even-handed application of the law. It expressed concern about possible perceptions that those entering the country on "super yachts" were being more favourably treated by New Zealand Customs. That perception was refuted in the memorandum which declared that "the Customs and Excise Act 1996 applies equally to everyone regardless of their status".


[37] As is apparent from the transcript of what was said in Court, the written and oral information with which the Judge had been supplied by counsel was not addressed by counsel in open court and was not referred to by the Judge.


[38] The remarks made by the District Court Judge on 7 January in open court in discharging the appellant under s19 and in making the order for non-publication of his name under s140 were recorded in full and were preceded by counsel handing to the Judge a receipt for the charitable donation and referred to in the exchange between Judge and counsel at the outset:

* THE COURT. Very well.

* MS DYHRBERG. Yes Your Honour it translates into 53,000 New Zealand.

* THE COURT. Yes thank you Ms Dyhrberg. Well it appears that in the final analysis Mr L some good will be done for some people and that is great. I am going to discharge you without conviction under section 19 of the Criminal Justice Act so that your record will remain clear. As I indicated yesterday and said to the previous gentleman "L", enjoy the fresh air in New Zealand. Our harbour is a wonderful place and I am sure that you will be out there watching the yacht races. Just don't let anything get in the way of you and the atmosphere. You may stand down.

* MS DYHRBERG. Sorry Your Honour, there was a second application.

* THE COURT. Yes.

* MS DYHRBERG. Pursuant to section 140.

* THE COURT. Name suppression?

* MS DYHRBERG. Yes.

* THE COURT. Yes. There will be an order for suppression of name.

* MS DYHRBERG. I notice Your Honour that media is here and I will just explain that to them exactly what that means.

* THE COURT. There will be an order.

* MS DYHRBERG. Nothing to identify.

* THE COURT. Order accordingly.

* MS DYHRBERG. Thank you.

* THE COURT. Yes you may stand down "L".

* MS DYHRBERG. As Your Honour pleases.


[39] There was no reporter in Court on 6 January. It was not in contention, and was the subject of evidence in the High Court, that a reporter from the New Zealand Herald had made inquiries of the Registrar on the morning of 7 January about a defendant whose name did not appear on the Court list for the day. It is accepted that the person the reporter was making the inquiries about was the appellant. The reporter was later in Court when the matter was called and the orders were made. She did not seek to intervene in the hearing to ask to be heard on the name suppression application.


Continued in part 3