Allied Press Limited (Otago Daily Times) v Police

[2017] NZHC 1641

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

CRI-2017-412-000027 [2017] NZHC 1641

BETWEEN

ALLIED PRESS LIMITED (OTAGO

DAILY TIMES) Appellant

AND

NEW ZEALAND POLICE First Respondent

JEREMY FRASER BUIS Second Respondent

Hearing:	17 July 2017
Appearances:	C D Carr and W Wright for Appellant M J Thomas for First Respondent A Stevens for Second Respondent
Judgment:	17 July 2017

ORAL JUDGMENT OF GENDALL J

Introduction

[1]      The appellant Allied Press Limited appeals against a decision of Judge Kellar in  this  proceeding  to  grant  permanent  suppression  of  the  second  Respondent, Mr Jeremy Buis’ occupation.   Pursuant to s 210(2) of the Criminal Procedure Act

2011 (“the Act”), the media has standing to initiate, and be heard in relation to, any

application for a suppression order.

[2]      Mr Buis was convicted in the District Court at Dunedin on one charge of criminal harassment, one charge of wilful damage, and one charge of threatening to

kill.

ALLIED PRESS LIMITED v NEW ZEALAND POLICE [2017] NZHC 1641 [17 July 2017]

[3]      This  appeal  is  not  opposed by the police.    Ms Thomas,  counsel  for the Crown, says they take a neutral position here.  However, the appeal is opposed by Mr Buis for whom Mrs Stevens appears.

Background

[4]      At the time of the offending in question, Mr Buis was serving as a Police

Officer in Dunedin.

[5]      The background to his offending began as what can only be described as a relatively trivial dispute.  In June 2012, Mr Buis parked outside the victim’s business premises.   The victim contacted the Dunedin City Council Parking Division and complained, which resulted in Mr Buis’ vehicle being ticketed.  This began Mr Buis two and a half year harassment campaign against the victim.  This included Mr Buis vandalising public spaces with phrases insinuating that the victim is homosexual and leaving the victim’s contact details at places known to be popular spots for homosexual men to meet.  The victim would often get disturbing texts and images from unknown numbers.  The victim also received a courier bag of male sex toys at his work premises. The courier bag had no sender’s detail.

[6]      The victim’s neighbours also received letters insinuating that the victim was a sex offender and being investigated by the police.

[7]      The victim’s business premises were also subject to a paint bomb attack.  A

light bulb had had its cap removed, filled with paint and released with a plastic cap.

[8]      Mr Buis was found guilty on charges of criminal harassment, one charge of wilful damage, and one charge of threatening to kill. He was sentenced to 200 hours’ community service and $15,000 reparation.

District Court Decision

[9]      Judge Kellar’s decision in the Dunedin District Court to suppress Mr Buis’

occupation but not to suppress his name is brief.  In a minute issued on the 21 April

2017, his Honour held:

I note that Mr Buis’ name suppression, which had been until today, but will lapse as from now.  I will continue to order suppressing his occupation and any reference to that.  In terms of reporting, it is a matter for you but that will have to continue as you have done already.

[10]    Judge Kellar also noted that the victim, a Mr Pryde, also consented to publication of his name.

[11]     I accept submissions, which have been advanced before me on behalf of the appellant,  that  the  minute  issued  by  Judge  Kellar  is  generally  insufficient  to discharge His Honour’s obligation under s 207 of the Act to provide reasons for making, varying or revoking a suppression order.

Law

[12]     Section 200(1) of the Criminal Procedure Act states that “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.”  However, the court may only order suppression if it 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.

[13]      The Court of Appeal in D v Police recently confirmed the two step inquiry as to whether a suppression order should be granted.1   First, the Court must be satisfied

1      D v Police [2015] NZCA 541 at [10].

that publication will likely cause one of the grounds in s 200(2) to be established.  If the first limb is met, the second step requires the court to balance the competing interests of open justice and the likely consequences of publication.

Submissions

[14]     Turning to submissions made in this matter, the appellant submits that the fact that publication of criminal actions by a person having a particular occupation or calling might embarrass or reflect badly on that occupation is not a ground for suppression.  The appellant contends too that publication of Mr Buis’ occupation is not likely here to cause any of the consequences as established in s 200(2), including undue hardship and maintenance of law and order.

[15]     As noted above, the Crown solicitor for the New Zealand Police indicates the

Police position on this appeal is a neutral one.

[16]     However, Mrs Stevens, counsel for Mr Buis, suggests that publication of his occupation will prejudice the maintenance of the law, contrary to s 200(2)(g) of the Act.  In particular Mrs Stevens submits:

A large part of policing, particularly when police officers are on their own or in smaller communities, requires respect for the police as an institution to be able to operate safely and effectively.  If the Court did not forbid publication of  Mr  Buis’ profession  then  the  emphasis  will  switch  from  him  as  an individual to him as a police officer.  That is the very reason the applicant seeks to have the suppression order made.

As the applicant states it is possible by internet searching to find out Mr Buis is a police officer but the police cannot be forced into centre stage and by implication   be   criticised   and   shown   contempt   because   of   the   non- publication.  The focus is where it should be for the public interest objects to be met, that is on the offender.

Policing is a difficult task. It can be very easily made dangerous by contempt or ridicule.  The maintenance of the law is directly linked to the office itself being held in high regard as one of integrity.   It takes little to tarnish a reputation.  The order of non-publication by the Court sends a clear message that the office or institution is not at fault here.  It is Mr Buis.  It is Mr Buis’ integrity that is in issue, not the police’s.

Analysis

[17]   The grounds on which Judge Kellar granted occupation suppression are generally  unclear.     Presumably,  it  was  to  protect  the  integrity  of  the  police profession.   However, under s 200(2), a court may only order suppression if it “causes extreme hardship to the person or any person connected with that person.” The police in general do not fall into the category of “any person connected” with Mr Buis.  The police profession can also not be considered as a person “connected with the proceeding or connected with” Mr Buis as contemplated under s 202.

[18]     “Any person” under ss 200(2)(a) and 202(1) of the Act must be specifically an identifiable individual and not simply a group or class of persons.   There must also be sufficient nexus between the person and the defendant or the defendant’s offending.  By law, a court may not order a blanket ban on the publication of a group or class of persons without being satisfied that each and every individual of that group or class is likely to suffer either undue or extreme hardship.

[19]     I  do  not  accept  Mrs  Steven’s  submission  that  publication  of  Mr  Buis’ occupation prejudices the maintenance of the law or security of New Zealand in terms of s 201(g) and (h).  While I accept that the police profession must be seen as one having integrity and the reputation of the institution needs to be respected, giving special treatment is contrary to the rule of law and the interests of open justice, in my view.

[20]     The Supreme Court in Erceg v Erceg recently confirmed the importance of open justice in the Courts:2

The principle of open justice is fundamental to the common law system of civil and criminal justice.  It is a principle of constitutional importance, and has been described as “an almost priceless inheritance”.   The principle’s underlying rationale is that transparency of court proceedings maintains public confidence in the administration of justice by guarding against arbitrariness or partiality, and suspicion of arbitrariness or partiality, on the part of courts.  Open justice “imposes a certain self-discipline on all who are engaged  in  the adjudicatory process  –  parties,  witnesses,  counsel,  Court offices and Judges.”  The principle means not only that judicial proceedings should be held in open court, accessibly by the public, but also that media representatives should be free to provide fair and accurate reports of what

2      Erceg v Erceg [2016] NZSC 135 at [2].

occurs in court.   Given the reality that few members of the public will be able to attend particular hearings, the media carry an important responsibility in this respect. The courts have confirmed these propositions on many occasions, often in stirring language

(citation omitted)

[21]     Ordering suppression of Mr Buis’ occupation because he is a police officer, in my view, undermines the principle that all members of society are equal under the law.  The police, like any other profession, is not entitled to special treatment.  This ensures that individual members of the police force act in a manner expected by their office and if their conduct falls below standards expected of their profession, they are held accountable for their actions.

[22]     Furthermore, the fact that Mr Buis was a police officer at the time of the offending is an aggravating feature of his offending.   In the victim’s text to his associates, he complained of the fact that Mr Buis “will get off coz he’s a cop”.  The perception that any member of the society is above the rule of law is contrary to the interests of a free and democratic society.   I therefore find that there is significant public interest here in publishing Mr Buis’ occupation.

Result

[23]     For all these reasons the present appeal is allowed.  Permanent suppression of details of Mr Buis’ occupation is quashed. This may be reported by the media.

...................................................

Gendall J

Solicitors:

Wilkinson Rodgers, Dunedin

Preston Russell Law, Invercargill

Anne Stevens, Dunedin