Allen v Police

[2017] NZHC 1305

IN THE HIGH COURT OF NEW ZEALAND BLENHEIM REGISTRY

CRI 2017-406-6 [2017] NZHC 1305

BETWEEN

CAROL MONICA ALLEN

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:	13 June 2017 (via AVL)
Counsel:	K R Hennessy for Appellant S Revell for Respondent
Judgment:	14 June 2017

JUDGMENT OF ELLIS J

[1]      Ms Allen is 58 years old and has no previous convictions.  She now faces a single charge of assaulting her sister, Lorraine Eade, while both women were attending a tangi at a marae in Blenheim.  Although Ms Eade says that her face was tender after the assault she suffered no permanent damage.

[2]      Ms Eade has said that, after discussing what had happened with her family, a decision was made to make a complaint because the family perceive that the assault was the result of Ms Allen’s mental health issues, for which she needs help.  The family believe that engaging the court process is possibly a way of getting her the help she needs.  Ms Allen does not accept she has any mental health issues, although she does suffer from stress and stress-related medical conditions.

[3]      Ms Allen sought name suppression in the District Court.  That was declined by Judge Russell on 8 May 2017.1   Ms Allen now appeals against that decision.

1      Police v Allen [2017] NZDC 10724.

ALLEN v POLICE [2017] NZHC 1305 [14 June 2017]

Background

[4]      Before turning to consider the suppression appeal it is necessary to say a little more about the allegations giving rise to the assault charge.

[5]      At around 10:30 am on Saturday 8 April 2017 Ms Allen and Ms Eade were at the marae on Wairau Bar Road in Blenheim.  Another of their sisters, Margaret, was also present.  Ms Allen started an argument with Margaret.  Ms Eade intervened and said to Ms Allen that “this behaviour will not be tolerated on the marae”.  She asked Ms  Allen  to  leave.    Ms  Allen  then  switched  her  attention  to  Ms  Eade.    She approached her, yelling.   Ms Eade again told Ms Allen to leave, but she did not. Ms Eade  grabbed  her  sister  by the  collar  to  get  her  away.    Ms Allen  punched Ms Eade in the face with a closed fist, hard enough to knock her glasses off her head. Ms Eade’s husband then helped to take Ms Allen away from the marae.  As I have said, Ms Eade suffered minor tenderness to her left cheek.

[6]      Ms Allen partially admitted the facts outlined above but has told Police she had  acted  in  self-defence.    She  sought  to  lay  a  complaint  with  Police  about Ms Eade’s behaviour but no action has been taken.

District Court decision

[7]      Judge Russell noted that the reasons advanced for name suppression were that Ms Allen is a senior member of the small Māori community in Blenheim and that she has some health issues (although he noted the lack of medical certificate in this respect).  The Police were opposed to suppression.  The Judge found that he was not satisfied on the information before him that Ms Allen would suffer extreme hardship (the statutory threshold) if her name was published and declined the application accordingly.

Victim’s views

[8]      There is a memorandum from a victim advisor dated 25 May that records the Ms Eade’s views.  She says that she is neutral on the question of name suppression. She suggests that Ms Allen has a mental disorder which causes her to be verbally and

physically aggressive, to misinterpret comments, and to be deeply suspicious of others’ motives.  As I have said, she says that she complained to the Police as a way of getting help for her sister.

The appeal

[9]      Mr Hennessey acknowledges that there is a lack of evidence supporting the suppression  application.    He  says  that  he  has  not  been  able  to  obtain  affidavit evidence from iwi members due to cultural issues.   Instead he recorded the information that has been provided to him by Ms Allen herself.

[10]     Among other things, Ms Allen says that, due to internal politics within her iwi, people in the community have been nasty to her for some time.  She says that Ms Eade and her husband assaulted her, and it is Ms Eade, not her, who should have been charged.  The alleged failure by the Police to act on her complaint has caused her to lodge a complaint to the Independent Police Complaints Authority (IPCA). Ms Allen has set out – at length – her version of events on the day.

[11]     Ms Allen also says that the Māori community in Malborough is small and

everyone knows each other.

[12]     Mr Hennessey also submitted that:

(a)      the presumption of innocence weighs in favour of suppression until the end of trial;

(b)there is a risk that Ms Allen will be pressured not to defend the charge, or not to pursue her complaint against the Police if there is publicity in relation to her;

(c)       the charge is minor;

(d)      Ms Allen has no previous convictions;

(e)      the Court should have regard to the rights to privacy and freedom from discrimination, and the extent of legitimate public interest in publication;

(f)      the right to reputation has significant value in the Māori world, and reputations in that context are built on the deliberation of tribal members;

(g)in  the  Māori  world,  an  individual’s  action  brings  shame  to  the whanau, hapū, iwi and even ancestors;

(h)there is a risk of unlawful punishment from the Māori community in the  form  of  ostracisation  and  social  sanctions  such  as  not  being allowed onto the marae;

(i)the Court should also have regard to the right of economic survival versus freedom of expression and seeing justice in action.  Ms Allen is starting her own clothing business from small beginnings.  She also works as a carer and is concerned about the effects of publication on her employment;

(j)she has physical health issues including eczema which is caused by stress,  and  publication  of  her  name  will  further  the  stress  she  is already under as a result of the charge;

(k)      crossing between the Māori world and the Pākehā world is in itself

stressful; and

(l)the mental health concerns raised in the victim impact statement are inappropriate and an abuse of that process.

Analysis

[13]     Section 200 of the Criminal Procedure Act relevantly provides that a court may make an order forbidding publication of the name, address, or occupation of a person who is charged with an offence only if it is satisfied that publication would be likely to do one of the matters listed in subsection (2).   Those matters include, at paragraph  (a), causing  extreme hardship to  the person charged.   Subsection (6) requires the views of any victim to be taken into account before any permanent suppression order is made.

[14]     Accordingly, s 200 requires a two-stage analysis.   The first is a threshold determination and the second is discretionary.2   For name suppression to be granted the balance must “clearly favour” suppression.3

[15]     In this case, the Judge appeared to find that the threshold was not  met. Accordingly, this is a general appeal not an appeal against the exercise of discretion.4

[16]     Even taking into account what Ms Allen has told Mr Hennessey, I am not persuaded that there is anything she says or in the submissions advanced on her behalf which demonstrate that the extreme hardship threshold is met.  Most of the matters raised are general in nature and are speculative.  In order for me to take into account any of the cultural matters raised, the Court would need some form of evidence, either as to the specific circumstances in Ms Allen’s iwi or of an expert kind.  Moreover, Ms Allen’s position that she would suffer harm simply because of the size and dynamics of the Maori community in Blenheim does not seem to be supported by Ms Eade (who is also a member of that community) who otherwise appears concerned for her sister’s welfare.

[17]     As  presently  articulated,  the  matters  raised  do  not  demonstrate  hardship

beyond the normal consequences associated with publication of a defendant’s name.

2      Robertson v Police [2015] NZCA 7 at [39].

3      D (CA443/2015) v Police [2015] NZCA 541, (2015) 27 CRNZ 614 at [12].

4      NN v Police [2015] NZHC 589 at [13]. I do not accept the Crown submission that it is an appeal against the exercise of discretion.

[18]     I accept that if there were established mental health concerns, then that might weigh in favour of suppression.  But given Ms Allen’s express denial of any such concerns (and the absence of any medical evidence) it is difficult to make anything of that point.

[19]     In short there is simply nothing before the Court that establishes that the required  threshold  is  met.    While  I  am  not  without  sympathy  for  the  position

Ms Allen finds herself in, her appeal must be dismissed.

Rebecca Ellis J