ASG v Hayne - [2016] NZCA 203

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NOTE:THE SUPPRESSION ORDERS MADE IN THE EMPLOYMENT COURT ON 4 JUNE 2014 REMAIN IN FORCE.

IN THE COURT OF APPEAL OF NEW ZEALAND

CA703/2014 [2016] NZCA 203

BETWEEN
ASG

Appellant

AND

HARLENE HAYNE,

VICE-CHANCELLOR OF THE UNIVERSITY OF OTAGO Respondent

Hearing: 26 November 2015

Court:

Harrison, Wild and Kós JJ

Counsel:

P Cranney for Appellant
R E Harrison QC and B C Dorking for Respondent

Judgment:

16 May 2016 at 11 am

JUDGMENT OF THE COURT

A The questions for decision are answered as follows:

(1) Question: In interpreting s 200 of the Criminal Procedure Act 2011, did the Employment Court err at [47]–[49] of its judgment, in holding that, where an order forbidding publication of information has been made, it is not a “publication” to make disclosure of that information to that person’s employer where the employer has a genuine interest in that information?
Answer: No.
(2) Question: If the answer to question (1) is Yes, was it nonetheless open to the employer, the Vice-Chancellor of the University of Otago, to rely on and use information obtained contrary to the order?
Answer: None required.

B The appellant must pay the respondent’s costs for a standard appeal on a

band A basis plus usual disbursements.

ASG v HAYNE, VICE-CHANCELLOR OF THE UNIVERSITY OF OTAGO [2016] NZCA 203 [16 May 2016]

REASONS OF THE COURT

(Given by Wild J)

Introduction

[1] This appeal concerns the ambit of the suppression of names provisions in the Criminal Procedure Act 2011, and in particular the ambit of an order made under s 200. Those parts of s 200 that are important in deciding this appeal are:

200 Court may suppress identity of defendant

(1) 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.

(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.

…

[2] For decision are these two questions:

(1) In interpreting s 200 of the Criminal Procedure Act, did the

Employment Court err at [47]–[49] of its judgment, in holding that,

where an order forbidding publication of information has been made, it is not a…

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 [2016] NZCA 203
Case: [2016] NZCA 203
Decision Date: 16 May 2016 at 11 am

CaseChat Overview and Summary

In the case of ASG v Hayne, the Court of Appeal of New Zealand considered whether the Employment Court had erred in its interpretation of section 200 of the Criminal Procedure Act 2011, which pertains to the suppression of names and details in relation to defendants in criminal proceedings. The appellant, ASG, argued that the Employment Court had incorrectly held that disclosure of suppressed information to an employer with a genuine interest in the information did not constitute a publication in breach of a suppression order. The Court of Appeal found that the Employment Court had not erred in its interpretation of section 200 and that the suppression order did not apply to the disclosure of information to the employer in this case. The Court held that the University of Otago, as the employer, had a legitimate interest in the information regarding ASG's criminal charges, as the charges were relevant to his employment as a security officer. The Court also suggested that in future cases, District Court judges should be mindful of the statutory obligations on employers when framing a suppression order under section 200(1). The appeal was dismissed, and the appellant was ordered to pay the respondent's costs.

Orders