Allied Press Ltd v S
[2023] NZHC 1343
•29 May 2023
ORDER PROHIBITING PUBLICATION OF NAME(S), ADDRESS(ES), OCCUPATION(S) OR IDENTIFYING PARTICULARS OF
APPELLANT(S)/RESPONDENT(S)/ACCUSED/DEFENDANT(S) PURSUANT TO S 200 CRIMINAL PROCEDURE ACT 2011. SEE
IN THE HIGH COURT OF NEW ZEALAND TIMARU REGISTRY
I TE KŌTI MATUA O AOTEAROA TE TIHI-O-MARU ROHE
CRI-2023-476-000007
[2023] NZHC 1343
BETWEEN ALLIED PRESS LTD
Appellant
AND
S
First Respondent
AND
NEW ZEALAND POLICE
Second Respondent
Hearing: 29 May 2023 Appearances:
L S Collins for the Appellant
J J McCall for the First Respondent
A M MacRae for the Second RespondentJudgment:
29 May 2023
ORAL JUDGMENT OF GENDALL J
Introduction
[1] On 7 February 2023, Judge Farish, in the Timaru District Court, continued the interim suppression order prohibiting publication of Ms S’s name. Allied Press Ltd, the owner of Otago Daily Times, now appeals the decision.
ALLIED PRESS LTD v S [2023] NZHC 1343 [29 May 2023]
[2] Ms S opposes the appeal. The Police maintain their initial opposition to the lifting of name suppression which Ms MacRae for the Crown confirms before me, but formally they will abide the decision of the Court here.
Facts
[3] Ms S faces one charge of theft of between $500 and $1,000,1 and four charges of theft under $500.2 Ms S is . It is alleged that the thefts took place in the
. Ms S is alleged to have stolen two pairs of airpod
earphones and cash from while they had left their belongings in the in the course of conducting their work.
Parties’ positions
[4] The appellant contends the Judge in the District Court erred by not complying with s 200(5) of the Criminal Procedure Act 2011. Suppression in this case, Mr Collins says, goes against the principles of open justice. The value and necessity of open justice is heightened in this case because of Ms S’s profession. There is a genuine and legitimate public interest in reporting on Ms S’s identity.
[5] Ms S, the first respondent, submits that the lifting of suppression would cause extreme hardship to her, relying on s 200(2)(a) of the Criminal Procedure Act. This would involve serious mental health consequences for Ms S, and serious ramifications for Ms S’s current employment and her future prospects, as well as for Ms S’s current employer.
[6] As I understand it, the second respondent, the Police, consented to this existing name suppression for Ms S on her initial application until determination of the propensity applications and/or her trial. This was on the basis that the employment and mental health consequences that may result from publication would amount to extreme hardship for Ms S. Before me here, the Police continue to maintain this position.
1 Crimes Act 1961, ss 219 and 223(c) carry a maximum sentence of one year’s imprisonment.
2 Sections 219 and 223(d) carry a maximum sentence of three months’ imprisonment.
Relevant law
[7] Courts may suppress the identity of a defendant under s 200 of the Criminal Procedure Act 2011. The starting point for a s 200 analysis is the principle of open justice.3 Courts have consistently emphasised a presumption in favour of openness in reporting.4 Publication is the norm. Suppression orders are only to be made in restricted circumstances and the threshold is high.5
[8] Section 200 contemplates a two-stage test.6 The first stage is a threshold determination. The court may only order name suppression if it is satisfied that one of the consequences listed in s 200(2) would be likely to follow if no order were made.7 This first stage is met if the Court is satisfied there is a real or appreciable risk that the consequence will follow from publication.8 It is not necessary to establish that the risk of harm is more likely than not to occur.9
[9] If one of the threshold grounds under s 200(2) is met, the Court must then determine whether to exercise its discretion to suppress the defendant’s name.10 At this point, the Judge weighs the competing interests of the applicant and the public, taking into account such matters as whether the applicant has been convicted, the seriousness of the offending, the views of the victim(s) and the public interest in knowing the character of the offender.11 In exercising its discretion, the Court must weigh the competing interests of the applicants and the public interest in open justice.
3 Erceg v Erceg [Publication restrictions] [2016] NZSC 135, [2017] 1 NZLR 310 at [2].
4 R v Liddell [1995] 1 NZLR 538 (CA) at 546. See also Proctor v R [1997] 1 NZLR 295 (CA) at 298–299; Robertson v Police [2015] NZCA 7 at [43]–[47]; and Re Victim X [2003] 3 NZLR 220 (CA) at 238.
5 Robertson v Police, above n 4, at [44].
6 Fagan v Serious Fraud Office [2013] NZCA 367 at [9]; and Robertson v Police, above n 4, at [39]–[41].
7 Fagan v Serious Fraud Office, above n 6, at [9].
8 Beacon Media Group Ltd v Waititi [2014] NZHC 281 at [17]; Huang v Serious Fraud Office [2017] NZCA 187 at [10]; Peglar v Police [2014] NZHC 1184 at [23]; and JM v R [2015] NZHC 426 at [33]–[36].
9 Beacon Media Group Ltd v Waititi, above n 8, at [17].
10 Fagan v Serious Fraud Office, above n 6, at [9]; and Robertson v Police, above n 4, at [39] and [41].
11 Robertson v Police, above n 4, at [41], citing Lewis v Wilson & Horton Ltd [2000] 3 NZLR 546 (CA) at [42].
There is a high threshold to be reached before suppression is justified,12 and the balance must “come down clearly in favour of suppression”.13
[10] The Court, on appeal, must adopt a bifurcated approach. An appeal against the first decision is a factual assessment and subject to the ordinary approach on a general appeal.14 The appellate court is entitled to come to its own opinion about the facts and the law.15 The Court must determine whether or not any of the threshold criteria in s 200(2) have been established. If the appellate court’s opinion is different, the lower court decision is regarded as erroneous even if it was a conclusion “on which minds might reasonably differ”.16
[11] An appeal against the second limb is an appeal against discretion.17 An appellant must establish that the Judge below has “acted on some wrong principle, taken into account an irrelevant factor, ignored a relevant factor or was plainly wrong”.18 If there is such an error, the appellate court considers the discretion afresh.19
Analysis
[12] I accept that Judge Farish’s brief minute continuing interim name suppression did not contain reasons nor make reference to s 200 of the Criminal Procedure Act. However, I am of the view that the result the Judge came to was nonetheless correct and therefore the appeal should be dismissed.
[13] Ms S is facing charges of minor seriousness. I accept there are serious mental health concerns for her to be cognisant of here. The nominal trial date in Timaru is set down for 29 May 2023 but regardless of whether the trial takes places at that date or not, it is not too far away. In these circumstances I do not consider it would be appropriate to revoke suppression at this time only for Ms S to then possibly be
12 Robertson v Police, above n 4, at [41]–[44].
13 Lewis v Wilson & Horton Ltd, above n 11, at [43], followed in D (CA443/2015) v Police [2015] NZCA 541, (2015) 27 CRNZ 614 at [12].
14 Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141.
15 At [16].
16 At [16].
17 Wilson v R [2018] NZHC 1778 at [14].
18 Saggers v R [2012] NZCA 560 at [25]; and see B (CA860/10) v R [2011] NZCA 331 at [9]; and
Lawrence v R [2011] NZCA 272 at [11].
19 Kacem v Bashir [2010] NZSC 112, [2011] 2 NLZR 1 at [32].
acquitted soon after, if that transpires to be the case. Serious damage would already have been done, owing in part to Ms S’s profession.
[14] Lifting interim name suppression could have serious consequences for Ms S’s employment prospects, and possibly her present employment arrangements in Dunedin in terms of the evidence on this before this Court. The appellant’s submissions concede that a rumour against a person in Ms S’s profession could have a serious long term damaging effect on their career. That is true for Ms S too, even if those rumours later prove to be unfounded. I accept the second respondent’s suggestion that the fact Ms S is should also be subject to the suppression order to prevent such rumours being made against others in the profession, noting the relatively small size of the profession in the Dunedin community. I note too that Ms MacRae for the Crown before me confirmed again the Crown accepts that extreme hardship has been made out here and interim name suppression should continue. I am satisfied flow on effects would be felt by her employer too, an entirely unconnected party here.
[15] Additionally, because of the explicit and potentially dangerous mental health difficulties described in evidence before me by Ms S’s doctor, along with the employment consequences discussed above, I am satisfied that publication of her name would be likely to cause Ms S extreme hardship. It is not the case that Ms S has been convicted of these offences at this point. At this stage they are only allegations which means the importance of the presumption of innocence takes on greater weight as a balancing factor against open justice. As Fisher J observed in M v Police:20
… one must recognise a crucial difference between the approach which is appropriate where the defendant is merely charged with an offence, and the approach where he or she has been convicted. Publication of name is frequently a major and appropriate element of an offender’s punishment once it is established that he or she is guilty. But punitive considerations are obviously irrelevant before conviction. At that stage the defendant is entitled to the presumption of innocence. Yet the stigma associated with a serious allegation will rarely be erased by a subsequent acquittal. Consequently, when a Court allows publicity which will have serious adverse consequences for an unconvicted defendant, it must do so in the knowledge that it is penalising a potentially innocent person. That is far from saying that suppression should
20 M v Police (1991) 8 CRNZ 14 (HC) at 15–16.
always be granted before guilt is established. But in my view the presumption of innocence and risk of substantial harm to an innocent person should be expressly articulated in these cases to avoid the danger that they will be overlooked.
[16] The presumption of innocence is strongest at this stage of the proceeding, before the trial takes place. Needless to say, the fact the test for suppression is made out now does not imply that suppression will continue later or if Ms S is subsequently convicted.
Conclusion
[17] For these reasons the appeal is dismissed. The interim suppression prohibiting publication of both Ms S’s name and her profession as will continue.
Gendall J
Solicitors:
L Collins Law for the Appellant Papprills for the First Respondent
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