R v Wallace [2019] NZDC 5986 (3 April 2019)

Last Updated: 23 August 2023

EDITORIAL NOTE: CHANGES MADE TO THIS JUDGMENT APPEAR IN [SQUARE BRACKETS]

NOTE: PUBLICATION OF NAME(S), ADDRESS(ES), OCCUPATION(S) OR IDENTIFYING PARTICULARS OF COMPLAINANT(S) PROHIBITED BY S 203 OF THE CRIMINAL PROCEDURE ACT 2011. SEE http://www.legislation.govt.nz/act/public/2011/0081/latest/DLM3360350.html

IN THE DISTRICT COURT AT AUCKLAND I TE KŌTI-Ā-ROHE KI TĀMAKI MAKAURAU

CRI-2017-004-001926 [2019] NZDC 5986

THE QUEEN

v

JAMES HAY WALLACE MIKA X MUSTAFA ERINC YIKAR

Date of Ruling:	4 March 2019
Appearances:	S Foote and H Benson-Pope for the Crown D Jones QC and H Drury for the Defendant Wallace B Hunt and H Rogers for the Defendant X S Buckley and B Archibald for the Defendant Yikar
Date of Result:	5 March 2019
Reasons Judgment:	3 April 2019

REASONS JUDGMENT OF JUDGE R J COLLINS

[For declining name suppression for the defendant Mika X]

[1] On 27 April 2018 the defendant Mika X first appeared on the following charges:

R v JAMES HAY WALLACE [2019] NZDC 5986 [3 April 2019]

(i) between 3 April 2017 and 26 April 2017 jointly with James Hay Wallace attempted to dissuade [complainant A] by bribes and corrupt means, namely a $15,000 payment by cheque and potential future work opportunities from giving evidence in the trial of Sir James Wallace;

(ii) between 1 May 2017 and 29 May 2017 jointly offended with Mustafa Erinc Yikar and James Hay Wallace attempted to dissuade [complainant A] by bribes and corrupt means, namely potential future work opportunities from giving evidence in the trial of Sir James Wallace;

(iii) between 18 September 2017 and 22 September 2017 attempted to dissuade [complainant A] by threats and corrupt means, namely threat of arrest and being the subject of a lawsuit upon arrival in New Zealand, in order to stop him from returning to New Zealand and giving evidence in the trial of Sir James Wallace.

[2] Mr X was granted name suppression on his first appearance by consent. Name suppression was continued on an interim basis pending a substantive hearing. The reason he was initially given suppression was the publication of his name would identify his co-defendant James Hay Wallace who had name suppression. The substantive hearing of James Hay Wallace’s application for name suppression was not heard until determination of his application for severance and then subsequent appeal against refusal of severance. The substantive hearing then of James Hay Wallace’s application for name suppression did not occur until the first day of trial on 4 March 2019. Mr X’s application was heard at the same time.

[3] On 5 March 2019 I refused both James Hay Wallace’s application and Mr X’s application. What follows are my reasons for dismissing Mr X’s application.

The application

[4] The application was advanced on the basis that extreme hardship would be caused to connected persons, the Mika Haka Foundation (the “Foundation”), and those who were employed by the Foundation and those who benefitted from the Foundation’s work. The defendant was required to demonstrate extreme hardship under s 200(2)(a). Given I have also refused James Hay Wallace’s application no arguments of identification of James Hay Wallace by refusing suppression of X’s name need consideration.

[5] To establish extreme hardship the applicant filed affidavits from Kelly Henare, Phillipa Campbell, Julie Te Amo and himself.

[6] None of the affidavits provide any evidential foundation the defendant himself would suffer any hardship personally.

[7] The affidavits speak consistently of the following:

• (i) the defendant has many fine personal attributes and qualities;
  
• (ii) he is the critical fundraiser for the Foundation;
  
• (iii) the Foundation does commendable work. Publication of the defendant’s name would see funding decline then dry up and the good work of the Foundation would come to a halt.
  

[8] Extreme hardship has been described as:

In Robertson v Police, 1 it was noted that “hardship” on its own means severe suffering or privation. The qualifier undue in subs (2)(c) indicates something more while the word extreme indicates something more again. The assessment requires a comparison between the contended hardship and the consequences normally associated with the publication of the defendant’s name. The hardship must be something well beyond the ordinary associated consequences.2

1 [2015] NZCA 7 at [48].

2 Adams on Criminal Law CPA 200.02(1).

[9] It is for the defendant to establish hardship and to establish the hardship would be extreme. While it can be quickly accepted there may be some difficulty encountered by the Foundation there is an insufficient evidential foundation to establish the threshold needed. In fact the evidence adduced does not meet the lower threshold in s 202(2)(a) of undue hardship.

[10] What has been presented is the assertions, or the personal opinions, of the three deponents. I do not doubt the sincerity of the deponents but the applicant has not filed:

• (i) any statement of accounts or balance sheet of the Foundation;
  
• (ii) no schedule of funds received, no schedule of current funders nor the purpose of any extant grants;
  
• (iii) what projects are fully funded, or projects which are pending funding, or projects which need funding but applications have not yet been filed.
  

[11] There is an absence of any evidence such as would allow a meaningful evaluation of the assertions made in the affidavits.

[12] In the circumstances there is an insufficient evidential basis on which I could be satisfied the high threshold of extreme hardship had been met.

[13] There is one further aspect. The defendant deposed at paragraph 9 of his affidavit as follows:

I understand that should I be convicted of the allegations I am facing, I may to face the media spotlight. I realise this, but that day is not yet.

[14] Since the arrest the defendant has had nearly two years to organise the affairs of the Foundation for the day he says has not yet come but which he clearly anticipates as a possibility. At the point the trial was aborted an objective informed observer would be entitled to conclude the Crown case against Mr X was strong. The new evidence which emerged and which was the cause of the trial being aborted only strengthens the Crown case against Mr X.

[15] Therefore, even if I had been persuaded the gateway of extreme hardship to the foundation had been met I would not have exercised discretion in favour of name suppression by the time trial was reached.

R J Collins

District Court Judge