Beck v Police [2016] NZHC 2281 (27 September 2016)

Last Updated: 17 October 2016

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

CRI-2016-441-27 [2016] NZHC 2281

BETWEEN	RONALD MANAHIA BECK Appellant
AND	NEW ZEALAND POLICE Respondent

Hearing:	27 September 2016 via AVL (Heard at Welllington)
Counsel:	P N Ross for Appellant C R Stuart for Respondent
Judgment:	27 September 2016

_{JUDGMENT OF ELLIS J}

_{I direct that the delivery time of this judgment is}

_{3 pm on the 27}^th _{day of September 2016}

BECK v NEW ZEALAND POLICE [2016] NZHC 2281 [27 September 2016]

[1] Mr Beck faces a charge of breaching a protection order pursuant to s 49 of the Domestic Violence Act 1995 (the DVA). It was a condition of the protection order that he must not engage in behaviour which amounts to psychological abuse of A, who is the protected person under the order.

[2] It is not in dispute that Mr Beck telephoned A’s current employers and told them that A had been fired from her previous job, at New Zealand Credit Union Baywide (NZCU) for dishonesty, and that she had stolen money from Mr Beck’s account. The charge is that this was behaviour amounting to psychological abuse.

[3] Mr Beck would have a defence to a charge under s 49 if he could show that he had a reasonable excuse for the breach. Mr Beck wished to avail himself of the defence by establishing that what he told A’s employer was true. He therefore applied for third party disclosure against the trustees of NZCU.

[4] Judge Mackintosh in the District Court declined to permit Mr Beck to pursue the application.¹ She held that whether the statement made by Mr Beck was true was irrelevant to the charge and to his proposed defence.² Mr Beck sought to appeal that decision.

[5] Following receipt of Mr Stuart’s submissions, however, Mr Ross responsibly accepted that this Court had no jurisdiction to hear the appeal. The absence of jurisdiction arises from the operation of the relevant provisions in the Criminal Disclosure Act 2008 (CDA), which was described in this way by Court of Appeal in Blagojevich v R:³

[46] The Criminal Disclosure Act provides a process by which non-party disclosure may be obtained. The starting point is s 24. It provides that a defendant may apply for an order granting a hearing to determine whether information held by a non-party should be disclosed. Section 25 provides that, if the Court is satisfied the information is likely to exist and is relevant, it may grant an application for a non-party disclosure hearing. If such an application is granted, the Act then provides a procedure by which the non- party may engage in the hearing and be heard. Section 29 provides for the orders that may be made following the non-party disclosure hearing. The short point, however, is that there is no jurisdiction to appeal a refusal to

¹ _{Police v Beck [2016] NZDC 14233.}

² _{Alofaki v Police [2007] NZHC 168; (2007) 26 FRNZ 676.}

³ Blagojevich v R [2011] NZCA 217.

grant an application for a non-party disclosure hearing. Section 33 of the Criminal Disclosure Act only provides for an appeal right in relation to the determination of the Court following a hearing under s 29 itself. It does not provide for an appeal from a decision not to hold a hearing.

[6] Although not made express in the learned District Court Judge’s decision it is quite clear from its terms that she was exercising that s 25 gate-keeping function, namely whether to grant a hearing. It was for that reason that she considered whether the disclosure sought was relevant. There is no right of appeal from her decision that it was not.

“Rebecca Ellis J”

Solicitors: Cathedral Lane Law, Napier, for Appellant

Elvidge & Partners, Napier, for Respondent