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Tussle over a perjury charge in the wake of 45 dishonesty convictions

5 May 2023

| Author: Jamie Dierick

Criminal Procedure Act 2011 s 146 – application for withdrawal of charges – application by the Crown to remove charges – application denied – defendant wanting to dismiss charges not withdraw – leave reserved for the parties to further apply

R v Napier [2023] NZHC 707 (Robinson J)

Note: the charges of perjury discussed in this case arise from the civil proceedings in the case of Torbay Holdings Ltd v Napier [2015] NZHC 2477, [2015] NZAR 1839. The result of this case in the Court of Appeal decision was that Duncan John Napier and Sara Ann Napier were ordered to repay the Auckland rest home the $1.46 million they gained from excess salary and unauthorised payments.

The case concerned an application to have a charge of perjury removed under s 146 of the Criminal Procedure Act 2011.

On 24 August 2022, Duncan John Napier was convicted of 45 dishonesty charges under the Crimes Act 1961. On 23 November 2022, he was sentenced to four years and 10 months’ imprisonment. He continued to face one charge of perjury.

The perjury charge arose from statements made by Napier during a civil proceeding against him in 2015, alleging he had misappropriated funds from Torbay Rest Home Limited.

Napier originally applied to have the charge dismissed under s 147 after the Crown charge notice was issued in July 2019. However, Whata J declined on the basis that there was sufficient evidence for a jury to convict the defendant. The Crown then issued a charge notice in October 2020 in respect of the severed perjury charge.

In the present case, the Crown applied pursuant to s 146 of the Criminal Procedure Act 2011 to have the charge removed on the basis that public interest no longer favours prosecution. The application was opposed on the basis that it is in the interests of justice that Napier has finality, and the that the charge should be dismissed.

Napier’s counsel referred several cases to the court in which the Crown was given leave to withdraw charges under s 146, leaving open the possibility of the defendant being charged again in the future. These cases included those where there was insufficient evidence, unlike the present case.

Robinson J agreed with counsel for the defendant, stating, “It is not in the interests of justice for Damocles’ sword to remain over Mr Napier’s head.”

As a result, the Crown’s application to withdraw the charges was denied, but leave was given for the parties to apply further. Robinson J also noted that had the Crown applied under s 147 to dismiss the charge as opposed to merely removing it, then he would have granted that application.

Held: Crown’s application to withdraw charges dismissed, leave reserved for parties to apply further.

R v Napier (1)

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