Abraham v Police
[2018] NZHC 2685
•17 October 2018
ORDER PROHIBITING PUBLICATION OF A REQUEST FOR DISCHARGE WITHOUT CONVICTION (AT PARAGRAPHS [3], [20], [21] AND [39]
HEREIN) IN NEWS MEDIA OR ON THE INTERNET OR OTHER PUBLICLY AVAILABLE DATABASE UNTIL FINAL DISPOSITION OF TRIAL. PUBLICATION IN LAW REPORT OR LAW DIGEST PERMITTED.
NOTE: PUBLICATION OF THE REQUEST FOR A SENTENCING INDICATION IN ANY NEWS MEDIA OR ON THE INTERNET OR OTHER PUBLICLY ACCESSIBLE DATABASE IS PROHIBITED BY SECTION 63 OF THE CRIMINAL PROCEDURE ACT 2011 UNTIL THE DEFENDANT HAS BEEN SENTENCED OR THE CHARGE DISMISSED. SEE
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CRI-2018-485-61
[2018] NZHC 2685
BETWEEN MARCUS AOTEA ABRAHAM
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 9 October 2018 Counsel:
J C Hughson for Appellant
T G Bain and M A Shaw for Respondent
T G H Smith for NZME. Publishing LimitedJudgment:
17 October 2018
JUDGMENT OF THOMAS J
ABRAHAM v NEW ZEALAND POLICE [2018] NZHC 2685 [17 October 2018]
[1] The appellant, Mr Abraham, is charged with one count of common assault.1 He now appeals the decision of Judge Tompkins declining to continue interim name suppression.2
Factual background
[2] The following are the allegations taken from the police summary of facts. The appellant and the complainant were in a relationship which ended in the days leading up to 21 April 2018. On that day, the appellant was asleep in bed. The complainant let herself into his house at 5.45 am and tried to wake him. He told her to leave. She got into his bed and went to sleep. She awoke and again tried to wake him. He pushed her, causing her to fall off the bed. The complainant kicked the appellant in the stomach and pushed him away. He then punched her to the right side of her forehead and left the address.
[3] The appellant maintains he acted in self-defence. He is, however, seeking a discharge without conviction in a sentence indication.
[4] Unknown to the District Court at the time name suppression was considered, the complainant allegedly broke into the appellant’s home on 19 August 2018 and assaulted the appellant, his flatmate and the police when they arrived to remove her. She has also allegedly continued a pattern of harassment against the appellant, including through text and social media messages, calls, messages left with mutual friends, and intercepting him at music concerts. The complainant is apparently being prosecuted in relation to some of this behaviour. The appellant applied for and was granted a without-notice protection order against the complainant on 3 September 2018.
[5] The appellant was, up until 22 April, the lead singer in a well-known Wellington band (the band). He was suspended from the band on account of the charge, other band members not wishing to bring the band into disrepute.
1 Crimes Act 1961, s 196, maximum penalty one year imprisonment.
2 Police v Abraham DC Hutt Valley CRI-2018-096-1277, 6 August 2018 (minute of Judge Tompkins).
[6] The complainant made a Facebook post about the incident, in which she named the appellant and the band.
The evidence
[7]Affidavit evidence was filed at various stages of the District Court proceedings.
[8] In his affidavit of 14 May 2018, the appellant said he had been a musician in the band for almost three years. The band consists of seven members who have worked hard to build their reputation. The band is the main source of income for all band members. The appellant said it was important for the band to maintain and portray family values as part of the band’s identity.
[9] The appellant now works as a support worker for people with intellectual disabilities.
[10] The appellant’s concern was that publication of his name would impact negatively on the band. At that time, the band was scheduled to begin a tour on 11 May 2018. The appellant noted the band had already experienced some backlash and reduced ticket sales for the upcoming tour. He was concerned the band would suffer financially because of his association with them.
[11] The band manager filed two affidavits. In his first, dated 16 May 2018, he stressed that what had happened with the appellant was separate from the band but described a backlash from supporters which included negative, as well as threatening, messages towards band members. The planned three-month tour due to start on 11 May 2018 had been impacted by fans requesting refunds. Sales were usually at 80 per cent or greater but, by 16 May, sales were only at 35 per cent. A planned TV segment for the band had been cancelled as a result of the allegations. In the manager’s opinion, promoters of future events were being far more restrained in their dealings with the band and that impacted negatively on the band’s ability to negotiate deals.
[12] The band manager stressed the severe financial consequences for band members and their families if the financial viability of the tour was put at risk.
[13] In his second affidavit dated 13 June 2018, the band manager said the appellant’s name was synonymous with that of the band. He supported continued name suppression, saying it was the only way the band’s name could be suppressed.
[14] He said ticket sales for the tour were significantly below expectations and the tour was a financial loss. He described the impact of the charges on the band as devastating. Importantly, he said:
Allowing the interim name suppression to continue would at least provide some buffer for us to rethink whether the band will be able to survive. I am trying to stress that this band is not a “hobby” – it is a serious business enterprise which many people rely on for their livelihoods. As I say, we are essentially the “business” that is suffering because of the allegations against one “employee”.
…
So long as the name suppression is in place it limits the negative publicity surrounding the band. The band have been clear that we do not condone domestic violence.
We are asking the Court to consider the harsh consequences already brought down on the band and its members – and are asking the Court for a period of respite to regroup and re-plan the next steps while the Court case against [the appellant] continues.
[15] The band’s co-manager and music producer provided an affidavit dated 25 June 2018 in which she requested continued interim name suppression for the sake of the band and its members. She said that, “since the initial story broke on social media and the media in general”, there had been a steep decline in ticket sales. She then said:
The entire band has inadvertently become associated with the issue of domestic violence through the complainant naming our band in her original facebook post regarding the incident (which she later took down). However, while the post was still up, it was shared over 1,000 times within a matter of hours and the number of viewers would have increased exponentially as a result of the post.
[16] The co-manager also described the appellant’s name as synonymous with the band. She said the appellant had been instantly suspended to protect the reputation of the band. The band made a public statement saying it in no way condoned violence and spent a lot of time on damage control.
[17] The co-manager described a planned tour for August and the hope the band would be able to regain some momentum in ticket sales. She said, “This August tour will be a test for whether the band is able to survive”.
[18] No further evidence has been filed. In particular, there is no evidence as to whether or not the August tour took place, and if so, whether or not it was successful.
District Court decisions
[19] The appellant was originally granted interim name suppression on 30 April 2018 by Judge Tompkins. On 11 June 2018, Judge O’Dwyer continued interim suppression.3 She did so expressly on the basis of harm to the band, not to the appellant, and on an interim basis in order for the band to address the impact of the incident on them and re-evaluate their future plans. She emphasised it was for that reason alone and for a short period only. On 25 June, Judge O’Dwyer heard and granted a “new application” for interim suppression supported by the June affidavit of the band’s co-manager.
[20] Various extensions of the interim suppression order were granted until Judge Tompkins heard the matter on 6 August, when the appellant was seeking an adjournment to complete an anger management course prior to a sentence indication. The appellant indicated he was seeking a discharge without conviction. An oral, rather than written, application for name suppression had been made but there was no updating affidavit evidence. The Judge noted that the appellant’s name, in association with the band and the offending, had already been published on Facebook and in news media, and that Judge O’Dwyer had offered a temporary reprieve only.4 Judge Tompkins concluded, in those circumstances, no proper basis for continued interim suppression could be made out.5
3 Police v Abraham DC Hutt Valley CRI-2018-096-1277, 11 June 2018 (minute of Judge O’Dwyer) at [5]–[6].
4 Abraham, above n 2, at [6]–[8].
5 At [11].
Submissions
[21] Ms Hughson, for the appellant, submitted the Judge erred in declining to continue name suppression, advanced on the same basis as previously argued. She suggested the risks of extreme hardship to the band and to the appellant’s reputation pointed to the need to continue interim suppression, particularly in circumstances where the appellant will seek a discharge without conviction which the police do not oppose. The sentence indication is scheduled for 7 November 2018.
[22] Mr Bain, for the police, submitted the Judge’s decision was unassailable because the appellant could not make out material detriment (let alone extreme hardship) to himself or the band in circumstances where his name has already been published in relation to the charges.
[23] Submissions for NZME effectively endorsed Mr Bain’s approach. Mr Smith, for NZME, suggested that neither the band nor the appellant himself could establish extreme hardship, and the public interest in open justice clearly outweighed any need for suppression.
Law
[24] Courts may suppress the identity of a defendant under s 200 of the Criminal Procedure Act 2011:
200 Court may suppress identity of defendant
(1)A court may make an order forbidding publication of the name, address, or occupation of a person who is charged with, or convicted or acquitted of, an offence.
(2)The court may make an order under subsection (1) only if the court is satisfied that publication would be likely to—
(a)cause extreme hardship to the person charged with, or convicted of, or acquitted of the offence, or any person connected with that person; or
(b)cast suspicion on another person that may cause undue hardship to that person; or
(c)cause undue hardship to any victim of the offence; or
(d)create a real risk of prejudice to a fair trial; or
(e)endanger the safety of any person; or
(f)lead to the identification of another person whose name is suppressed by order or by law; or
(g)prejudice the maintenance of the law, including the prevention, investigation, and detection of offences; or
(h)prejudice the security or defence of New Zealand.
(3)The fact that a defendant is well known does not, of itself, mean that publication of his or her name will result in extreme hardship for the purposes of subsection (2)(a).
(4)Despite subsection (2), when a person who is charged with an offence first appears before the court the court may make an interim order under subsection (1) if that person advances an arguable case that one of the grounds in subsection (2) applies.
(5)An interim order made in accordance with subsection (4) expires at the person’s next court appearance, and may only be renewed if the court is satisfied that one of the grounds in subsection (2) applies.
(6)When determining whether to make an order or further order under subsection (1) that is to have effect permanently, a court must take into account any views of a victim of the offence conveyed in accordance with section 28 of the Victims’ Rights Act 2002.
[25] The starting point is the principle of open justice. Section 200 operates as an exception to the general rule that the community is entitled to know the identity of those coming before the courts. There is a two-stage test. First, the Court must be satisfied of the likelihood of a s 200(2) consequence and, secondly, if so satisfied, the Court must determine whether to exercise its discretion to suppress the defendant’s name.6 In the discretionary stage generally, dislodging the presumption of open justice is a high threshold,7 and the balance must “come down clearly in favour of suppression”.8
[26] The claimed ground in this case, extreme hardship under s 200(2)(a), is not statutorily defined, but case law establishes a very high threshold, significantly greater
6 Fagan v Serious Fraud Office [2013] NZCA 367; and Robertson v Police [2015] NZCA 7.
7 Robertson v Police, above n 6, at [41]–[44].
8 Lewis v Wilson & Horton Ltd [2000] 3 NZLR 546 (CA) at [43]; recently followed in
D (CA443/2015) v Police [2015] NZCA 541, (2015) 27 CRNZ 614 at [12].
than undue hardship.9 The fact that a defendant is well-known is insufficient grounds for establishing such hardship.10
[27] The fact an application is made pre-trial is relevant as part of the factual matrix relevant to the assessment, as is the strength of the Crown case.11 As the Court of Appeal has said, “[w]hat is required is a careful appraisal of each of the competing values and their importance within the context of the particular facts and circumstances of the case”.12
[28] On appeal, different approaches apply to the different stages of the test. The first stage is a factual assessment, subject to the ordinary approach to appeals.13 The second stage is a discretionary one, subject to the approach reserved for appeals against discretion, that is where the decision was contrary to principle, took into account irrelevant matters, failed to take into account relevant matters, or was plainly wrong.14
Analysis
[29] Financial hardship to a defendant and those associated with him or her can be seen as an ordinary consequence of offending.15 In Chand v Internal Affairs Department, impact on an associated business and community organisations was unsupported by evidence and the organisations were unrelated to Mr Chand’s offending.16 Name suppression was declined. In Shepherd v Police, a submission that publication would detrimentally affect an employer trust were rejected due to a lack of evidence of detriment and the fact the offending had nothing to do with the trust.17 Similar criticisms can be levelled at the appellant’s application: claims of future financial loss are speculative (no financial statements have been provided), financial
9 See for example Bond v R [2015] NZCA 488 at [33]; and Robertson v Police, above n 6, at [48].
10 Criminal Procedure Act 2011, s 200(3).
11 R v B [2008] NZCA 130, [2009] 1 NZLR 293 at [58] and [60].
12 At [29].
13 Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141.
14 B v R [2011] NZCA 331 at [9]; and Lawrence v R [2011] NZCA 272 at [11].
15 Hughes v R [2015] NZHC 1501 at [41]; and Byrne v Police [2013] NZHC 3416 at [21]–[23];
16 Chand v Internal Affairs Department [2016] NZHC 3112.
17 Shepherd v Police [2018] NZHC 1167.
loss is an expected outcome of offending and the band is unrelated to any domestic violence in which the appellant may have been involved.
[30] No further evidence has been placed before the Court as to the band’s current position and the success or otherwise of its intended August 2018 tour.
[31] There appears to be somewhat of a shifting sands approach by the appellant. His affidavit was primarily concerned with the impact on the band itself. Counsel’s submissions, however, appeared to focus more on the need to continue interim name suppression for the benefit of the appellant. Ms Hughson stressed the changing circumstances whereby the initial charge of male assaults female was downgraded to one of Crimes Act assault, the summary of facts was changed, the appellant has obtained a protection order against the complainant and criminal charges against her have been laid.
[32] The appellant has already left the band and it is unclear on the evidence whether he intends to resume his musical career. In any event, as discussed with Ms Hughson, given there has already been publicity about the appellant, it is difficult to see that either he or the band could further be harmed by the lifting of name suppression. Indeed, arguably, it would improve the position because the earlier publicity would be leavened by clarification of the allegations and surrounding circumstances.
[33] Finally, in my assessment, the fact of the earlier publicity means continued suppression is futile.18 Both parties and Mr Smith referred to articles in online news media that recorded the names of the band and the appellant, along with the allegations and the fact the appellant had been removed from the band. Neither party produced these articles into evidence but a simple Google search of the band name proves the point. The third entry is an article on Stuff, the first sentence of which records that the band has “parted ways” with the named appellant following a domestic violence accusation by his former partner. The article then records the band’s statement that:
By now a lot of you would have heard about an alleged incident that happened yesterday, involving one of our singers …
18 Tucker v News Media Ownership Ltd [1986] 2 NZLR 716 (HC) at 735.
As a result the remaining members and management of [the band] have agreed that it’s best to part ways with this person, so he can focus on those personal matters.
[34] The band manager is recorded as having made a statement to the effect the band did not in any way condone domestic violence.
[35] Ms Hughson sought to draw a distinction between the reporting of the complainant’s allegations and the fact the appellant had been charged. In these circumstances, that submission can carry little weight. It would be of no surprise to the public that criminal charges have been laid where an allegation of domestic violence has been made. Indeed, as referred to above, the appellant’s position can only be improved by reporting of the developments which have occurred since the complainant’s allegations on Facebook.
[36] Given the band has been publicly on the front foot in respect of the allegations right from the outset, it is unable to substantiate any claimed extreme hardship as a result of publication of the appellant’s name. Even if the appellant’s name were able to be removed from any existing publications, the confluence of timing of the appellant’s departure from the band and the band’s statement means that anybody with any knowledge of the band will know the allegations involved the appellant.
[37] For these reasons, it is clear that the test of extreme hardship is not met either in relation to the band or the appellant personally. Continued suppression of the appellant’s name cannot be justified.
[38]The appeal is dismissed.
[39] In light of s 63 of the Criminal Procedure Act, I make an order prohibiting publication of a request for discharge without conviction (at paragraphs [3], [20] and
[21] herein) in news media or on the internet or other publicly available database until final disposition of trial. Publication in law report or law digest permitted.
Thomas J
Solicitors:
Crown Solicitor’s Office, Wellington for Respondent Bell Gully, Auckland for NZME. Publishing Limited
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