Allied Press Limited v Police

[2017] NZHC 2773

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE

CRI-2017-412-47

[2017] NZHC 2773

BETWEEN

ALLIED PRESS LIMITED

Appellant

AND

NEW ZEALAND POLICE

Respondent

CRI-2017-412-46

BETWEEN

ALLIED PRESS LIMITED
Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:

6 November 2017

Appearances:

M J Wright and N E Mirkin for Appellant C E R Power for Respondent

M J Scally for Mr Glasgow
M Taylor-Cyphers for Mr Magrath

Judgment:

13 November 2017

JUDGMENT OF NICHOLAS DAVIDSON J ON APPEAL

ALLIED PRESS LIMITED v NEW ZEALAND POLICE [2017] NZHC 2773 [13 November 2017]

Background

[1]    Allied Press Limited (“Allied Press”), the owner of the Otago Daily Times, has appealed  against  two  decisions  of  the  District  Court  made  in  Dunedin  on  7 August 2017, in which orders for final name suppression were made for two defendants upon their separate discharges without conviction. The cases were not otherwise connected.

[2]    One defendant had been charged with disorderly behaviour and assaulting the Police when he was found intoxicated in the Octagon, Dunedin. The Judge concluded that he should be discharged without conviction under s 106 of the Sentencing Act 2002, applying s 107 of the Act which reads:

The court must not discharge an offender without conviction unless the court is satisfied that the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offence [or offending].

[3]    The defendant had no prior convictions. He was remorseful and had carried out voluntary work and attended counselling. The Judge concluded that his culpability was low and he addressed the consequences of a conviction on the defendant’s search for employment, his dual citizenship status, and his small business interests. He had attended University and Polytech. The Judge recognised that these consequences may be weighed in the balance, citing Nash v Police.1 He thought that the defendant had learned his lesson, and his offending should not “follow him in his life”, and therefore a discharge without conviction was appropriate.

[4]    There was no application for name suppression but the Judge went on to say that “for the reasons that [he had] previously articulated” for what he called “low level offending”, there should be final name suppression, and he made an order to that effect. In an Appendix to judgment, he referred to his earlier decision, which he followed in that respect.2

1      Nash v Police HC Wellington CRI-2009-485-7, 22 May 2009.

2      Police v [      ] DC Dunedin CRI-2017-012-15, 28 June 2017.

[5]    The other defendant had been given an indication that if he attended a programme and counselling, the Judge would favourably consider an application for discharge without conviction for breach of a court order. The Police did not oppose. The defendant completed a 25 week programme, and the Judge referred to authority that the gravity of the offending should be assessed against all aggravating and mitigating factors at the time of the offence, not when the court exercises its discretion.3

[6]    The background involved what the Judge described as “an altercation and some pushing and shoving”. The defendant had no relevant convictions. The victim did not want him charged, and the Judge concluded that the gravity of the offending and his level of culpability were at the lower end of the scale. The Judge considered the consequences of a conviction, that the defendant was young, had made a mistake, and he was discharged without conviction.

[7]The Judge made an order suppressing the defendant’s name and said:

As I have previously articulated, I take the view that when defendants are discharged without conviction, that should follow. I appreciate that I have not heard from anyone from the press, but I think I have made my views on this matter known before and I see no difference in these circumstances to take a different view on this occasion. So there will be name suppression ordered.

[      ]

[8]    In both cases, the Judge followed his decision in Police v [ ].4 There the Police opposed a  discharge  without  conviction.  The  defendant  had  completed  20 hours of voluntary community work and the Stopping Violence programme. The Judge sought further submissions regarding the consequences of a conviction. There were no formal submissions about that, but there were references in support from his employers and members of the community.

[9]    The Police did not consider the offending to be at a low level, whereas for the defendant it was submitted that his breach of a protection order related to a single text

3      Z v R [2012] NZCA 607.

4      Police v [      ], above n 2.

message, polite and not threatening, and part of ongoing consensual communication. The defendant had no prior convictions, a good record, and was of good character.

[10]   The Judge concluded that the gravity of his offending and his culpability was very much at the lower end of the scale and while there was little information about the consequences of a conviction, there were obvious potential consequences in relation to travel, given his dual citizenship and other national ethnicity. The Judge said it was well known that there would be difficulties for travel, particularly to one country of his citizenship.

[11]   There was no request for suppression of the defendant’s name. The Judge said he had requested submissions and did not know the press position in that regard, but if suppression was an issue, he would deal with it. The Judge granted interim name suppression.

[12]By a Minute of 28 June 2017, the Judge said;

In my view, the fact that the defendant has actually been discharged elevates the likely impact on him of any publication.

[13]The Judge then went on to say:

[1]        While I accept the law with regard to publication does not change where a defendant is discharged without conviction, it is, in my view, a factor to be taken into account particularly as it relates to the impact on the defendant of publication. In my view, the fact that the defendant has actually been discharged elevates the likely impact on him of any publication.

[2]        Further, publication of a discharge without conviction and the associated facts in and of itself can amount to extreme hardship. One of the purposes of publication is to impose consequences in line with the purposes and principles of the Sentencing Act 2000, for example in relation to deterrence and denunciation for wrongdoing – but if a defendant is discharged without conviction the level of wrongdoing is to limited, it not erased, that such purposes and principles should not apply.

[3]        To ignore this in a situation such as this would be to largely render pointless the process of discharge without conviction. Any negative impact caused by publication of details of a discharge without conviction amounts to extreme hardship in my view.

These appeals

[14]   Mr Wright appeared with Mrs Mirkin, as counsel for Allied Press, on both appeals.    Allied  Press is entitled to appeal as it is “member of the media”  under     s 210(1) Criminal Procedure Act 2011 (“the Act”).5 The standing of the media to appeal, or otherwise to appear on an appeal, is consistent with their being “the watchdogs of the public interest” and “an external check on the integrity of the criminal process”.6

[15]   While counsel referred to other authority, it is sufficient to refer to the principle that:7

…the healthy winds of publicity should blow through the workings of the Courts. The public should know what is going on in their public institutions. It is important that justice be seen to be done.

[16]In R v Liddell,8 the Court of Appeal said:

The starting point must always be the importance in a democracy of freedom of speech, open judicial proceedings and the right of the media to report the latter fairly and accurately as “surrogates of the public”.

[17]This statement was cited with approval in Lewis v Wilson & Horton Ltd.9

[18]   Mr Wright with Mrs Mirkin referred to the fundamental principle that criminal proceedings are open to the public under s 196 of the Act. The New Zealand Bill of Rights Act 1990 (“BORA”) refers to a public hearing under s 25(a). Section 14 of BORA refers to the “right to freedom of expression” and Mr Wright submits that the right to report is not just a right to freedom of expression, but a “public right”.10

[19]   Freedom of the press is of fundamental importance to our society. It includes the right to impart information of general interest or concern, and the right of the public to receive it. Any constraint on that must be justified in terms of s 5 of BORA:

5      Criminal Procedure Act 2011, s 283(1)(b) and (2)(c).

6      Broadcasting Corporation of New Zealand v Attorney General [1982] 1 NZLR 120 at 134, line 20.

7      M v Police (1991) 8 CRNZ 14 at 15.

8      R v Liddell [1995] 1 NZLR 538 (CA) at 546.

9      Lewis v Wilson & Horton Ltd [2000] 3 NZLR 546 at [41].

10     O’Connor v Police [1992] 1 NZLR 87 at 98, line 3.

Subject to section 4, the rights and freedoms contained in this Bill of Rights may be subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

[20]   I agree with Mr Wright and Mrs Mirkin that freedom of expression can and must only be restricted to the minimum necessary, according to established principles, consistently applied.

Suppression of name

[21]   The appellant refers to Court of Appeal authority with regard to suppression of name.11 There are two stages involved in the decision whether to grant name suppression.   First, the Court must be satisfied that one or more of the  grounds of    s 200(2) the Act are made out.

(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.

[22]   If such a ground is established, the Court has a discretion whether to grant name suppression. In Robertson v Police, the Court of Appeal confirmed that appeals in respect of the first stage are general appeals and only the second stage involves the exercise of a discretion.12

11     Fagan v Serious Fraud Office [2013] NZCA 367.

12     Robertson v Police [2015] NZCA 7.

[23]   On this appeal, the first stage of the test is engaged. This Court on appeal may reach judgment in accordance with its own opinion even where that opinion is an assessment of fact and degree which involves a value judgment. The appellant bears the onus of satisfying the court that it should reach a different decision.13

[24]   Mr Wright with Ms Mirkin submits that the Judge failed to identify any one of the s 200(2) grounds, which is a prerequisite for a suppression order. He submits that the Judge’s Minute in [ ] is wrong in law, and, by extension his reliance on it on  these two occasions led him into error. He submits that in [ ] the Judge did not apply the two-stage approach and did not make a finding of extreme hardship (or any other ground). The presumption of open judicial proceedings means the onus is on the defendant to meet that threshold test. The principles of a discharge are not to be applied to suppression, and discharges do not lead to a suppression order. A discharge is not ‘pointless’ without a suppression order. In particular, it is not the case that “any negative impact caused by publication of details of a discharge without conviction amounts to extreme hardship”.

[25]   Whether undue hardship is made out depends on the facts of the case, but the circumstances must be “out of the ordinary” to meet the high threshold test, explained in the Court of Appeal’s discussion of ‘extreme hardship’ in Robertson:14

The word “hardship” on its own means “severe suffering or privation”. The addition of the qualifier “undue” in s 200(2)(c) indicates that something more than hardship simple is required, while the word “extreme” in s 200(2)(d) indicates something more again.

[26]   Mr Wright submits the courts are bound to be careful not to elevate ordinary hardship and stress arising from name publication to ‘undue’ or ‘extreme’ hardship unless there is a firm factual foundation for such.

13     Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103; [2008] 2 NZLR 141.

14 At [48].

Submissions on behalf of the Police

[27]   Mr Power for the Police accepts that the Judge appears to have conflated the separate tests required for a discharge without conviction and name suppression, and says it cannot have been the intention of Parliament that someone receiving a discharge without conviction is entitled to name suppression. The Police did not in their written submission express a view on the Judge’s factual assessment as to whether grounds for suppression were made out in either case, but at the appeal hearing Mr Power did not identify any sufficient grounds.

Submissions on behalf of the defendants

[28]   Ms Taylor-Cyphers accepts the test for name suppression is the two-stage enquiry outlined above. In this case, the only s 200(2) grounds that are arguable are extreme hardship to Mr Magrath or his family, or undue hardship to a family victim.

[29]   Counsel submits that while the Judge did not explicitly refer to such, there was sufficient evidence to make a finding that the extreme hardship threshold was met. She notes there was evidence before the Court that there would be consequences for Mr Magrath’s career, and says this was enough for the Judge to draw an inference that extreme hardship may follow from publication. Further, she submits that in Mr Magrath’s bail application his partner and child were identified as “potentially vulnerable” should the proceedings become public and that was enough for the Judge to infer that undue hardship would follow from publication. “Undue hardship” is a test reserved for victims.

[30]   Ms Scally for Mr Glasgow submits that the Judge did in effect make a finding of extreme hardship. She says the Judge was relying on grounds for discharge set out in an affidavit, including poor health, the possible effect a conviction would have on Mr Glasgow’s academic studies and his prospects of part time work, and the development of his new music business. In a small community like Dunedin, and given the small number of people in the live music industry of which Mr Glasgow is a part, publication is submitted likely to have a “chilling effect” on his business.

[31]   By his reference to [ ], Ms Scally submits the Judge weighed a number of factors including the low level of the offending, the fact of acquittal and the nature  of the offending, which does not pose a risk to public safety. She says in light of all this he made no error.

Analysis

The approach to name suppression

[32]   All counsel agree that the two-stage process under s 200 of the Act is the only route by which a court may order name suppression.

[33]   The factors in s 200(2) of the Act are heavily fact dependent. They envisage particular adverse outcomes, to particular people, and they require close analysis.

[34]   Unlike the test for discharge without conviction, the test for suppression does not turn on whether adverse effects outweigh the gravity of the offending. The gravity of the offending does not come into the first stage of the suppression test. It is entirely possible that the effects of publication would be ‘disproportionate’ to the gravity of the offending without extreme or undue hardship being made out.

[35]   The Judge did not apply the correct test, and seems to be of the view that suppression should follow a discharge as a matter of course. While I understand his thinking that a discharge may be diluted in its effect by name publication, he did not analyse the effects on either defendant or their families to address extreme or undue hardship. The logic behind the Judge’s approach is that where a discharge has been granted the offending will be at a low level and thus publication of name will be disproportionate in its effect. This conflates the tests for discharge and suppression. The severity or otherwise of the offending and the public interest in details of this being published may be relevant to the exercise of discretion in the second stage of the suppression test, but they are irrelevant to whether ‘extreme hardship’ or one of the other grounds is made out.

[36]   In summary, the idea that suppression should “follow” a discharge is not tenable given the statutory scheme. Discharges without conviction and suppression orders are exceptions to the general principle of sanction following offending, and open justice. Open justice requires public knowledge of the ways in which the criminal justice system sanctions offending, and how it embodies principles of leniency and compassion. It is important for the public to be aware of when and why the courts respond to personal hardship to see that they are doing so fairly and in a principled manner, so as not to favour those of a class with particular characteristics.

[37]   To allow the appeal the Court must be satisfied that the name suppression decisions were wrong on the merits of the respondents’ cases. There is nothing to suggest that Mr Magrath or his family will suffer extreme hardship, or that members of his family will suffer undue hardship as a result of publication. That publication will have ‘consequences’ for his career is not enough unless the consequences are ‘extreme’, and no evidence suggests this will be the case. The threshold set out in the statute as explained by the Court of Appeal in Robertson is indeed set high.

[38]   Similarly, evidence before the Court that his partner and child are ‘vulnerable’ is not enough for a finding of undue hardship. That test only applies if they are victims. In the recent case of SSB v R Nation J dismissed an appeal against a refusal to grant suppression.15 There was evidence that the offender’s children had quite severe anxiety-related problems and evidence from a doctor that these would be exacerbated by publication. Further, there was evidence that the offender’s wife would lose a significant part of the customer base of her accountancy business, and that the family would be shunned by the close-knit immigrant community they were part of. This was not enough for a finding of undue hardship, Nation J finding these were the ordinary consequences of being associated with criminal offending. There is nothing before the Court to suggest anything approaching extreme or undue hardship.

[39]   The evidence in relation to Mr Glasgow also fails to meet the high threshold of ‘extreme hardship’. The consequences mentioned, such as a ‘chilling effect’ in his

15     SSB v R [2017] NZHC 2590.

business and difficulties securing funding for further study are ordinary consequences of offending, and are not extreme.

Disposition

[40]   In both cases, the Court failed to apply the appropriate test for name suppression, and the orders were made in error. Applying the correct test, there is nothing before the Court which would justify granting name suppression in either case, and as such both appeals are allowed. The orders for suppression of the defendants’ names are set aside, in each case. There is no restriction on publication.

Observation

[41]   Where there is no order for name suppression, a defendant in a New Zealand court may or may not have his or her name published in the media, or some other forum.

[42]   There is a level of chance about that. First, the media no longer covers all court proceedings, if it ever did. This is often the case even when a prosecution alleges quite serious offending. Secondly, the media follows its own dictate as to what it regards as of public interest and how it manages its own resources. Thirdly, there is no doubt that the media from time to time exercises a sympathetic discretion not to publish a name, so it may make no report of a case, or report a case without attribution of name when it could have done so. I regard this as the media reflecting the broader interests of the public and the circumstances of a defendant, and often a defendant’s family. That, in my view, reflects a responsible tradition of the media. Yet the bottom-line remains, that the media remains free to publish the name of a defendant unless forbidden to do so.

[43]   The unfortunate consequence of these appeals is that through no initiative of those discharged without conviction, low level offending has become part of the narrative. They did not seek suppression of their names. The Judge took that step

unilaterally and they are caught up in this process. Their names can be published but whether the media does so is entirely for it. Their names appear in this judgment as they are directly affected by it, and they are represented by counsel.

……………………………………………….

Nicholas Davidson J

Solicitors:

Wilkinson Rodgers Lawyers, Dunedin Public Defence Service, Dunedin

Police Prosecution Service, Dunedin Crown Solicitor, RPB Law, Dunedin

Ministry of Public Defence Service, Dunedin