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ASG v Hayne

ASG v Hayne

Case [2017] NZSC 59 3 May 2017

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NOTE: THE SUPPRESSION ORDERS MADE IN THE EMPLOYMENT COURT ON 27 MAY 2014 AND 4 JUNE 2014, PROHIBITING PUBLICATION OF THE NAME AND ANY OTHER IDENTIFYING PARTICULARS OF APPELLANT, REMAIN IN FORCE.

IN THE SUPREME COURT OF NEW ZEALAND

SC 61/2016 [2017] NZSC 59

BETWEEN
ASG

Appellant

AND

HARLENE HAYNE,

VICE-CHANCELLOR OF THE UNIVERSITY OF OTAGO Respondent

Hearing: 8 February 2017

Court:

William Young, Glazebrook, Arnold, OʼRegan and
Ellen France JJ

Counsel:

C R Carruthers QC and P Cranney for the Appellant
R E Harrison QC for the Respondent

Judgment:

3 May 2017

JUDGMENT OF THE COURT

A The appeal is dismissed.

BThe appellant is to pay to the respondent costs of $25,000 plus usual disbursements (to be fixed by the Registrar if necessary).

REASONS

(Given by Ellen France J)

Table of Contents

Para No.

Introduction [1]

The statutory scheme [12]

Did disclosure to the respondent breach s 200? [24]

The legislative history [29]

ASG v HARLENE HAYNE, VICE-CHANCELLOR OF THE UNIVERSITY OF OTAGO [2017] NZSC 59 [3 May 2017]

The law reform process [37]

The relevant jurisprudence [43]

Discussion [66]

Application to the present case [82]

Result [89]

Introduction

[1] The primary issue on this appeal is whether the actions of the respondent, the Vice-Chancellor of the University of Otago, breached an order made under s 200 of the Criminal Procedure Act 2011 preventing “publication” of the appellant’s name and other details. The issue arises in this way.

[2] The appellant, ASG, is employed by the respondent as a campus security guard. Whilst in this employment he pleaded guilty to one count of wilful damage and another of assaulting a female. Both charges related to an incident with ASG’s wife, from whom he is now separated. ASG appeared before Judge Flatley in the District Court for sentencing on these charges in 2013. The Judge discharged ASG
without conviction on both charges.1 In addition, Judge Flatley made an order under

s 200 of the Criminal Procedure Act suppressing the respondent’s name and all details relating to ASG and the offending. Section 200(1) allows a Court to make an order “forbidding publication” of the name and other details of persons charged with, convicted or acquitted of an offence.

[3] As it happened, the Deputy Proctor of the University of Otago was in Court whilst ASG was being sentenced. He had been told, not by ASG, that ASG was being sentenced that day. The Deputy Proctor made notes during the hearing.

[4] Once the sentencing was completed, the Deputy Proctor sought some advice from a registry officer as to the implications of the suppression order. It was suggested he obtain legal advice, which he did. The University’s lawyer’s advice was that the suppression order did not encompass the bare communication of information to genuinely interested people on a one-to-one basis. The lawyer also
said there was a legitimate interest for an employer in the fact an employee had

1 Under ss…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading ASG v Hayne

Details

AGLC: ASG v Hayne [2017] NZSC 59
Case: [2017] NZSC 59
Decision Date: 3 May 2017

CaseChat Overview and Summary

In ASG v Hayne, the Supreme Court of New Zealand addressed the question of whether the disclosure of suppressed information by an employer to its employee's superiors constituted a breach of a suppression order under the Criminal Procedure Act 2011. The appellant, ASG, was employed as a campus security guard by the University of Otago and had pleaded guilty to charges of wilful damage and assault related to an incident with his wife. A suppression order was made under s 200 of the Criminal Procedure Act, prohibiting publication of ASG's name and details of the charges. Despite this, the University's Deputy Proctor, who was present in court during the sentencing, disclosed the information to relevant University officials, leading to ASG's suspension and a final written warning. ASG argued that this constituted a breach of the suppression order and led to his unjustifiable disadvantage in employment. The Supreme Court found that the disclosure did not breach the suppression order, as the University had a legitimate interest in the information due to ASG's employment role and the nature of his offending. The Court held that the suppression order was not intended to prevent communication to those with a genuine interest in the information, such as an employer in the context of employment-related misconduct. The appeal was dismissed, and ASG was ordered to pay costs to the University of Otago.

Orders