In re Albert Royle Henry [1979] CKHC 5; APP 002.1979 (23 August 1979)

IN THE HIGH COURT OF THE COOK ISLANDS
RAROTONGA REGISTRY
A. 2/79
713-4/78

IN THE MATTER of the Conviction
of ALBERT ROYLE HENRYunder the above case.

Counsel: Deobhakta for appellant
Mitchell for the Crown

Hearing: 23 August 1979

(ORAL) JUDGMENT OF BEATTIE J

This is a Notice of Appeal against the sentence imposed on Albert Royle Henry on 20^th August 1979 in the High Court at Rarotonga in the Cook Islands. He pleaded guilty to an offence of conspiracy to defraud brought pursuant to s280 of the Crimes Act 1969. By that sentence the appellant was fined $200, ordered to pay $2,000 contribution towards the cost of the prosecution, but more particularly he was placed on probation for a period of three years with a condition that he should not offer himself or become a candidate for election to the Legislative Assembly of the Cook Islands or for any other political office in the Cook Islands. As I understand from Mr. Deobhakta, it is the latter of these conditions that is the subject matter of this appeal.

The Court must grant the appeal as of right because the penalty is one which allows that situation. The real consideration the Court must give is as to the security to be fixed and as to the nature of the record to be transmitted to the Supreme Court of New Zealand, Auckland registry. Now first, as to the security, the maximum security permissible pursuant to s.158(3) of the Cook Islands Act 1915 is $200 and I order that that security of $200 be paid into the court at Rarotonga within 28 days from today pending determination of this appeal. I also order that so far as the record is concerned the prime documents available for the Supreme Court of New Zealand should be the submissions of the Assistant Crown Prosecutor, Mr. Grieve, on sentence (they were in written form), together with my own reasons for sentence. As well, counsel will endeavour to formulate the substance of the submissions of Mr. Lloyd Brown, Q.C. for the defence.

In addition, I think it proper, in case the Court in New Zealand requires it, to send a full copy of the extradition proceedings brought against one Finbar Kenny of America, together with the supplementary affidavits that were handed to me as the trial judge last week. Counsel should settle what they do in fact consider forms a true and valid record. I refer particularly to the affidavit evidence of Superintendent Kahn which gathers together the various fabrics of this case and puts then into a settled form.

In my opinion it is necessary that with the type of condition I have imposed in this case, this appeal should be heard as soon as is reasonably possible and I request the Registrar of the Supreme Court at Auckland to arrange with the Executive Judge for an early hearing. I have in mind particularly s.160 of the Cook Islands Act 1915.

As I have mentioned, I also respectfully suggest that as this is an appeal from a Supreme Court Judge of New Zealand, though sitting as a High Court Judge of this country, the appellate Court should be a Full Court, and Mr. Mitchell as Advocate-General has informed me he will make representations to this effect.

BEATTIE J