However, they say the court process has destroyed their marriage and reputation and they are now seeking compensation.
Antony Swarbrick,Christina Kewa-Swarbrick, and Martha Fretton were found guilty by a jury at trial in the Hamilton District Court in February last year on four representative charges of aiding and abetting completion of a visa application known to be false or misleading, and provision of false or misleading information.
But the Swarbricks appealed on the basis of Judge Robert Spear’s direction to the jury during his summing up, with the Court of Appeal ultimately agreeing a miscarriage of justice occurred and ordered a retrial.
The jury heard that instead of filling out work visas, Kewa-Swarbrick got the 16 workers to unwittingly complete visitor visas after failing in her bid to get them into the country under the Recognised Seasonal Employer (RSE) scheme between 2013 and 2016.
The couple arranged for groups of seasonal workers from Papua New Guinea to work illegally at a Hawke’s Bay vineyard and in Cambridge for low wages.
In Antony Swarbrick’s appeal, the Court of Appeal noted the judge’s summing up “undermined the defence and invited rejection of the defence case, particularly in relation to the question of Mr Swarbrick’s intent”.
“The summing up took a key issue away from the jury.
“Viewed overall, the judge forcefully suggested what the jury would, and impliedly should, find by way of the elements of the offence.
“The judge made the ultimate assessment that was for the jury to make.
“The trial was unfair to Mr Swarbrick for that reason. We conclude that this resulted in a miscarriage of justice.”
Kewa-Swarbrick then filed her appeal on the same basis, with the Crown noting that there was “no principled basis to differentiate the appellant’s position from Mr Swarbrick”, and she had “received the same defective summing up”.
The Crown accepted if Mr Swarbrick’s trial was found to be unfair, then so should Kewa-Swarbrick’s case.
“That is an unavoidable concession by the Crown,” the Court of Appeal judges noted, and allowed her appeal against her conviction.
The couple’s case was called again on May 30 in the Hamilton District Court for a callover to discuss the retrial, where through their counsel, they sought a Section 147 dismissal of their charges.
The Crown had filed a Section 146 application to withdraw the charges.
Christina Kewa-Swarbrick. Photo / Mike Scott
In his decision, Judge Stephen Clark said the Crown wanted to withdraw the charges on the basis that “many of the witnesses are based in Papua New Guinea and that will be difficult to engage them”.
“Reference is also made to the passage of time,” he said.
Judge Clark added in the fact that the Swarbricks had both been sentenced, with Antony Swarbrick serving all of his time, while Kewa-Swarbrick served nine of her 10 months’ home detention.
“Faced with all of that, my view is that rather than grant the Section 146 application that I should dismiss the charges pursuant to Section 147.
“I make an order to that effect.”
‘We lost our public integrity, dignity, image, name, reputation’
In a statement, Kewa-Swarbrick said she believed the judge “was never interested in listening to our fair defence statements or our witnesses’ defence statements”.
In her opinion, he had “basically manipulated the trial and the jury because he had a preconceived idea of the outcome of a ‘guilty verdict’”.
She believed the Court of Appeal decision now exonerated her.
“I am not a criminal and never was. I fed thousands and made enough money in my business to help thousands. What crime did I commit against humanity that the NZ justice system had to sentence me?
“The charges have been dismissed, yes, but who shall now pay for all the damages and loss?”
“Compensation is going to be a necessary process to help us rebuild our lives for losses since 2016 when everything was shut down on us.”
The Crown had earlier said workers had to pay the couple $1100 to $1500 to come to New Zealand.
Kewa-Swarbrick said it was $1000 for the complainants’ contribution to their holiday living costs in New Zealand.
Antony Swarbrick pictured during his sentencing in the Te Awamutu District Court last year. Photo / Mike Scott
“Any Kiwi would appreciate the actual costs of living in NZ for three months. Does $1000 take anyone far for three months in New Zealand? No.”
The “real costs” were met by herself and her husband, she said.
“We were kind, generous and good Christians and they took advantage of our kind hearts and giving nature. We accommodated them in our 11 bedroom, 10 bathroom family mansion in Tamahere ... we clothed them and fed them five meals a day, an allowance for them to help themselves while here in NZ on a highly paid holiday by Christina and Antony Swarbrick.”
‘How can you quantify the cost of losing everything?’
Antony Swarbrick felt some relief knowing the charges were dismissed, but now they had to try and rebuild their lives and reputation.
“How can you quantify the cost of losing everything from our offshore employment, business, marriage, and a home. Even our five children have been traumatised for years watching this public ridicule for a crime we never committed.
“How do you rid the embarrassment and stigma that goes with the case?
