B v NZME Publishing Limited
[2018] NZHC 1042
•14 May 2018
NOTE: PUBLICATION OF NAME OR IDENTIFYING PARTICULARS OF DEFENDANT PROHIBITED BY S 140 OF THE
CRIMINAL JUSTICE ACT 1985.
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI 2017-441-44
[2018] NZHC 1042
BETWEEN B
Appellant
AND
NZME PUBLISHING LIMITED
Respondent
Hearing: 27 February 2018 Counsel:
M J Phelps for Appellant
K M Wilson for Respondent
Judgment:
14 May 2018
JUDGMENT OF ELLIS J
[1] In 2009 B was charged with one charge of common assault and male assaults female. The complainant was B’s (then) wife, C. At an early stage in the proceedings against him the Court made an order for the interim suppression of B’s name.
[2] B pleaded guilty to the charges and, on 8 September 2009, Judge Mackintosh discharged him without conviction pursuant to s 106 of the Sentencing Act 2002. At the time of his discharge he sought, and was granted, permanent name suppression pursuant to s 140 of the Criminal Justice Act 1985 (CJA) (the 2009 order).
B v NZME PUBLISHING LTD [2018] NZHC 1042 [14 May 2018]
[3] In late 2016, B stood as a candidate in his local body elections and was elected to the relevant District Council. Shortly before his election, NZME Publishing Limited (NZME) received an anonymous letter referring to B’s “domestic violence charges”. I infer that NZME then made its own inquiries, which disclosed the historic charges, their resolution, and the existence of the suppression order. There was, as far as I know, no publication of the charges and no steps were taken to challenge ongoing suppression at that time.
[4] A few months later, B announced that he would be standing for mayor. Less than a month before the election NZME applied to have B’s name suppression revoked. Shortly before the hearing of that application, the local newspaper received another communication referring to the historic violence charges.
[5] The revocation application was heard and granted in the District Court just before the election results were finalised.1 B immediately signalled that he would appeal, which meant that he automatically had the benefit of interim name suppression, pending the release of this judgment.2
[6] B was unsuccessful in his bid for mayor, B remains a member of the local council.
District Court decision
[7] The District Court Judge began by considering her jurisdiction to revoke the order in light of the repeal and replacement of the CJA.3 Relying on the recent decision of the Court of Appeal in Taylor v C, she said that the provisions of the Criminal Procedure Act 2011 (CPA) now governed suppression orders made under the CJA.4 On that basis, she found that the power to revoke suppression orders contained in s 208(1)(c) of the CPA gave the District Court the relevant jurisdiction. She
1 NZME v B [2017] NZDC 26175.
2 Criminal Procedure Act 2011, s 286.
3 At the time B’s suppression order was made permanent, the District Court had no ability subsequently to revisit that order. The order could be challenged only by way of judicial review or appeal. But since then, the CJA has been repealed and replaced by the Criminal Procedure Act 2011 (the CPA). Section 208(1)(c) of the CPA provides that any permanent suppression order made under s 200 of that Act may be revoked at any time.
4 NZME v B, above n 1, at [3], citing Taylor v C [2017] NZCA 372 at [21]–[23].
nonetheless rejected the submission that the “exceptional circumstances” threshold adopted in Taylor (which was concerned with the revocation of name suppression for informants or Crown witnesses who were imprisoned) pertained to all applications for the revocation of permanent suppression orders.5
[8] Next, the Judge noted that this Court’s decision in Forsyth v District Court at Lower Hutt set out matters to be considered in determining whether to revoke a suppression order.6 These included:
(a)the reason for making the original suppression order;
(b)the length of time since the suppression order was made;
(c)the reason for any delay in bringing the application for revocation;
(d)the views of any victim; and
(e)the consequences of publication for the offender now, compared with the consequences at the time the order was made.
[9]She then considered each of those factors.
[10] Although the reasons for the original name suppression order were not available, the Judge did have access to certain information contained on the original Court file. This comprised:7
(a)B’s affidavit and his counsel’s submissions in support of the application for discharge without conviction (these did not mention name suppression);
5 NZME v B, above n 1, at [13].
6 Forsyth v District Court at Lower Hutt [2015] NZHC 2567, [2016] 2 NZLR 248. This decision is not, however, concerned with the s 208 power to revoke, strictly so called, but rather with an application for judicial review challenging (a) the historic grant of interim name suppression to an offender, (b) a subsequent failure to review or discharge that interim order and (c) a more recent District Court finding that the continuation of the suppression order was not conditional upon the maintenance of the statutory suppression in favour of the complainants.
7 NZME v B, above n 1, at [18]–[20].
(b)two letters from the complainant (C). The first related to the discharge application, expressing concerns about her husband’s employability if he were to have a conviction on his record. The second asked the Court to grant B permanent name suppression to protect her family and, in particular, her children.
[11] The Judge regarded the absence of any reference to name suppression in either B’s affidavit or his lawyer’s submissions as “significant”.8 She said she had no way of knowing whether oral submissions had been made on the issue. But, she said, it could reasonably be inferred that permanent name suppression had been granted to protect the identity of B’s wife and their children. The Judge observed that there was nothing on the Court file indicating that it was contended that B himself would experience undue hardship without permanent name suppression.
[12] The Judge noted that s 200 of the CPA involved a more exacting test for suppression than s 140 of the CJA, and that B did not have to meet the s 200 test retrospectively.9 Viewed through a CPA lens, however, the ground for the 2009 suppression order would be that which was now articulated in s 200(2)(c), namely that publication of B’s name would cause “undue hardship for the victim of the offence”.10
[13] Turning then to the other considerations in Forsyth, the Judge said that it had been nine years since suppression had been granted.11 In terms of delay in applying for revocation, she recorded NZME’s submission that the legitimate public interest in knowing B’s identity arose principally as a result of his much more recent prominence. The editor of the local newspaper had also deposed that there had been no time to apply for revocation prior to the first (Council) election in 2016.
[14] Turning then to the complainant’s present position, the Judge noted that she and B were no longer married but that she had indicated her continued support of permanent name suppression to protect her and her family’s privacy. The Judge took the view that, in order to warrant maintaining the suppression order, the complainant’s
8 At [22].
9 At [17].
10 At [23].
11 Forsyth v District Court at Lower Hutt, above n 6.
concerns would need to meet the threshold in s 200(2)(c) of the CPA, namely that she and her family would suffer undue hardship in the event of publication.12 In that regard, the Judge noted that the complainant had since changed her name, lived elsewhere in New Zealand, and was no longer married to B. Their children (who were 12 and 14 in 2009) are now in their twenties. This did not, in the Judge’s view, amount to “hardship” as the Courts have interpreted that threshold.13
[15] Lastly, the Judge compared the consequences of publication for B today with the consequences he would have faced at the time the order was made. Relevant to this comparison was that at the time of the hearing and the judgment’s delivery the election for the mayoralty was still open. B was then particularly concerned that if the suppression order was revoked he would immediately face lurid headlines which would affect his candidacy, without him having any opportunity to put his version of events in the public arena. B had also articulated concerns about the effect of publication on his future employment possibilities, his ability to support his new family and potential embarrassment for organisations with which he now works. He again stressed that he had immediately entered guilty pleas, acknowledged responsibility and undertaken counselling for his offending behaviour.
[16] In response, NZME had said that it was speculative to consider how the media would deal with the issue but there was nothing to indicate that a mainstream newspaper, bound by a code of conduct, would not deal with B fairly. NZME stressed the public interest in voters knowing about the criminal history of candidates for mayoralty.
[17] On balance, the Judge found that the detrimental effects of publication (even if the media did not report in a balanced and reasonable way) outweighed the legitimate public interest in voters knowing the background of mayoral candidates.14 She observed that, at the time B chose to run for public office, there was always a prospect that his past would become a legitimate matter of public interest and that an application such as this would be made. She granted the application for revocation accordingly.
12 NZME v B, above n 1, at [30].
13 At [28]–[29] citing Beacon Media Group Limited v Waititi [2014] NZHC 281 at [27].
14 At [35].
Grounds of Appeal
[18] B appeals on the grounds that Judge Edwards’ decision to revoke the permanent name suppression order was wrong in fact and in law. In terms of the legal challenge he contends that the Judge was wrong:
(a)not to apply the “truly exceptional circumstances” threshold for revocation that had been confirmed by the Court of Appeal in Taylor;15
(b)to retrospectively apply the “undue hardship” test contained in s 200(2)(c) of the CPA when considering the revocation of an order made under the CJA;
(c)in placing too much weight on the “public interest” and insufficient weight on the interests of both B and the complainant, and on the fact that B was discharged without conviction.
[19] Mr Phelps, counsel for B, also raised a factual challenge. He said that Judge Edwards was wrong to find that NZME had not delayed in making the revocation application. Mr Phelps submitted that there was more than a year between NZME becoming aware of the charges and it filing the application.
The nature of the revocation power
[20] In light of the Court of Appeal’s decision in Taylor, I necessarily approach this appeal on the basis that “the CPA now governs” the 2009 order.16 So I turn to s 283 of the CPA, which deals with appeals from suppression order (including revocation) decisions.17
[21] So, what then is the relevant threshold for revocation? As noted earlier, Mr Phelps said that the Judge got this wrong because she:
15 Taylor v C, above n 4.
16 At [23].
17 That section makes it clear that such appeals may be brought by the applicant for the order, the prosecutor or by those members of the media described in s 210(1) of the CPA.
(a)declined to apply the “truly exceptional circumstances” test for revocation endorsed by the Court of Appeal in Taylor;18 and
(b)determined the revocation issue by treating the application as a fresh application for suppression and applying the thresholds contained in s 200 of the CPA.19
[22] As to the first matter, my own view is that the “truly exceptional circumstances” test is not a “test” at all. That phrase is merely descriptive of the (obvious) point that it will only be in such truly exceptional circumstances that the suppression of the name of a secret witness or Police informant will be lifted or revoked. That is because the policy reasons for granting such suppressions are unlikely to change over time. This was made clear by the Court of Appeal in R v Burns (whence the “truly exceptional circumstances” term originated).20 There, the Court said:21
At the hearing before Chambers J the Crown opposed the revocation of the suppression order. Its concern related to the position of those who place themselves at risk by giving evidence against criminal associates. The Crown’s ability to persuade such witnesses to give evidence would be compromised if ostensibly permanent suppression orders might routinely be revisited where witnesses later commit serious offences of their own. Chambers J recognised the Crown’s concerns, emphasised that suppression orders of the kind made in the Furlan proceeding will not lightly be reviewed, and stressed that the circumstances of the present proceeding are truly unique. He held that such orders should only be disturbed in exceptional circumstances. In light of this firm expression the Crown did not press this point on appeal. It became clear before us, however, that Mr Bums could be more correctly described as a secret witness rather than a police informant as he was regarded in the Court below. But the same principles apply. The Courts will be most difficult to persuade that the name of a secret witness should be divulged in the absence of truly exceptional circumstances.
[23] In a case such as Taylor or Burns,22 the question will be whether something has happened since the making of the original order which means that the policy considerations referred to in this passage are no longer in play (or are outweighed by
18 Taylor v C, above n 4.
19 Namely “exceptional hardship” when considering the effect of revocation on B and “undue hardship” when considering the effect of revocation on the complainant.
20 R v Burns [2002] 1 NZLR 387 (CA).
21 At [24].
22 Taylor v C, above n 4; R v Burns, above n 19.
some powerful countervailing factor). In such a case, the very nature of those policy considerations makes such a change unlikely. Hence the proposition that revocation is also unlikely, absent of circumstances that are “truly exceptional”.
[24] By contrast, in a case such as the present, the kind of changed circumstances which might give rise to revocation are likely to be much more varied. And what they might be will depend on the particular grounds on which the original order was made. By way of example only, an obvious relevant change of circumstances in a case where a suppression order is made in reliance on s 200(2)(d) (which relates to the need to protect fair trial rights) would simply be the completion of the trial (and possibly the appeal) process.23
[25] So, I think the starting point is to ask whether there has been a “triggering” change of circumstances that might warrant revisiting the suppression decision. This must necessarily involve some kind of clear “triggering” event; it cannot simply be an interested party taking the view that the original suppression order was wrong. In the case of witness C in Taylor, the triggering event was his prosecution for perjury.24 In Forsyth it was the revocation of the complainants’ own name suppression.25 Here, it is B’s more recent rise to a position of local prominence.
[26] Once that point is reached the question must be whether the change in circumstances are such that they might justify taking away B’s existing right and/or expectation. The precise nature of the existing right or expectation in the particular case will be relevant to that inquiry and I return to that question shortly. But the signal point for present purposes is that whether or not to revoke an existing order is not (in my view) to be found simply by asking whether the same order would be made under the CPA today. In that regard, I agree with Mr Phelps that a revocation decision should not be viewed simply as the re-exercise (or a de novo exercise) of the original suppression power. As he said, the starting point should not be the principle of open justice, but rather the fact of an existing right in the form of a permanent suppression order which, given that it was not appealed at the time it was made, must be assumed
23 I acknowledge, however, that that kind of order is unlikely to be regarded as “permanent” in the first place.
24 Taylor v C, above n 4, at [14].
25 Forsyth v District Court at Lower Hutt, above n 6, at [3].
to have been rightly made. The power to revoke an order otherwise described as “permanent” cannot sensibly be interpreted as simply being a power to revisit the merits of the order at any time.
[27] Accordingly, the response to the second submission (recorded at [21](b) above) must be that if the Judge simply decided the matter as if it were a fresh application under s 200(2)(c) of the CPA, then that would be wrong in principle. As it happens, however, I do not think that that is the Judge did. Whether the present s 200(2)(c) of the CPA threshold would be reached is just one of several matters that she took into account in reaching her conclusion.
Approach on appeal
[28] It follows from what I have said above that the exercise of the revocation power is not the same as the de novo exercise of the power under s 200 of the CPA. Rather, the test involves an inquiry into whether a relevant triggering change of circumstances has occurred, followed by a balancing of those circumstances against the existing right or expectation in order to determine where the interest of justice lie. In my view that entails an evaluative exercise to which, on appeal, the normal Austin Nicholls principles apply.26
[29] Before I turn to apply that approach to the case at hand, it is necessary briefly to say something about the evidence that was sought to be adduced in the appeal.
New evidence
[30] An affidavit from C was filed in support of B’s appeal. Although her continued support for the suppression order was made known to the District Court Judge, she deposed in her affidavit that she had only been alerted by Police to the District Court hearing shortly before it took place and had not had a proper opportunity to present her views. In these circumstances, I consider it is appropriate to take into account the contents of her affidavit.
26 Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141.
[31]Relevantly, she deposed:
(a)she had supported B’s original application for name suppression;
(b)when the order was made she had understood that his name would be suppressed “for good”;
(c)she and B are no longer married. Although she no longer uses his surname she has not officially changed her name;
(d)she is still well-known as B’s ex-wife;
(e)she and B have a very amicable relationship;
(f)she has moved to a city some distance away from where B presently lives but visits that region regularly as her mother and extended whanau live there;
(g)two of her adult children and her granddaughter live in the same area as B and she wishes to protect them from “potential risk and embarrassment”;
(h)since the charges were laid and dealt with, she and her whanau have worked hard to forgive B and move forward; and
(i)her current partner (whom she is soon to marry) has children who are not aware of what happened between her and B.
[32]She concluded by saying:
18. I can honestly say that I do not agree with the revocation of suppression and I am dreading the possibility of it.
19. The impact that would have on all of us would be immensely detrimental. I'm fearful and am terrified of being exposed in the media & that I would be identified as well. It would also make the future special occasion that we have planned to come home for very awkward for me and it would cause me unnecessary hardship.
20. Since this has all come to light again, it has had brought a lot of unnecessary anxiety to me.
21. I don't wish to have such a personal experienced that happened to me in front of my children publicized in the media for people to judge. I have tried to put these events behind me but the publication of [B]’s name would force me to relive this incident.
22. I have even had to look at reactivating counselling as I am now genuinely scared of the detrimental impact this will have on my own mental health.
23. As a result of the distress of this application I approach my Doctor and I have now been pre-scribed anti- anxiety mediation.
24. Again I can't express enough the possible negative impact that publication of [B]’s name would continue to have on me, my partner and our children and families.
Analysis
[33] As indicated earlier, I accept that a relevant triggering event has occurred here, namely B’s assumption of elected public office. I do not think it can be disputed that this change of circumstance necessarily involves a shift in the level of legitimate interest that the public might have in any past criminal conduct.
[34] As noted above, it seems to me that once that preliminary threshold is passed, a fresh exercise must be undertaken whereby the change of circumstances is balanced against the existing right or expectation to which the original suppression order gave rise. That requires, first, an examination of the nature and content of the existing right.
Nature of the existing right or expectation
[35] In the present case, the beneficiaries of the right or expectation created by the making of the suppression order are B himself and, more importantly, C who was the complainant in the suppressed offending. While B has enjoyed the privilege conferred by the order and may have an expectation that it continue, its true object is C, for whose benefit it was made. B’s own interests, however, cannot be completely disregarded.
[36] Before turning specifically to consider the respective positions of B and C, however, it seems relevant to note that when a “permanent” name suppression order is made under the CPA, the existence of an express revocation power necessarily diminishes the reasonableness of any expectation that it will stay in force forever.27 But the present order was not made under the CPA. Moreover, and by contrast with a case such as Taylor,28 the original suppression order here was made by the District Court under a statute which conferred no power on the District Court to revoke such an order.29 However anomalous the absence of such a power might have been,30 the reality is that at the time the order was made both B and C had good grounds for assuming that, absent any appeal,31 the order would endure in perpetuity. That this expectation was real has been confirmed by C in her affidavit.
[37] On this point, therefore, I may differ from the District Court Judge. At [11] of her decision she accepted that B had a reasonable expectation of finality but then said: “…the extent to which he can rely on that is necessarily limited by the clear wording in s 208 and its application both to orders made under the current legislation and its predecessors”. While I necessarily acknowledge that s 208 permits revocation, it seems to me that the exercise of this power should take into account the nature and extent of any such expectation which will, necessarily, include the fact that the order was made at a time when no revocation power existed, the length of time for which the order has been in force and any other relevant intervening matters.
[38] So, as far as B himself is concerned, the first point is that he had a permanent suppression order made in his favour at a time when the word “permanent” meant what it said. Secondly, any doubt about whether it would, indeed, continue in perpetuity would reasonably diminish with the effluxion of time. And thirdly, it is also relevant that during the nine years that have elapsed B has not reoffended. Moreover, his active rehabilitation and the steps he has taken to contribute positively to his community during that intervening period seem unarguable.
27 Criminal Procedure Act 2011, s 208.
28 In Taylor v C, above n 4, the original suppression order had been made under the High Court’s inherent jurisdiction and it was accepted that that jurisdiction also enabled the Court to revoke the order.
29 NZME v B, above n 1, at [11].
30 The anomaly was noted, and proposed to be rectified, by the Law Commission in its report
Suppressing Names and Evidence (NZLC R109, 2009) at [6.69].
31 Or, I suppose, an application for judicial review to this Court.
[39] The relevance of this last point is, I think, underscored by the fact that B was discharged without conviction. That necessarily conveys an indication of the Court’s view about the relative seriousness of the matter and, no doubt, of B’s prospects of rehabilitation. It would, I think, undermine the order for discharge if the matter were to be made public now.
[40] Finally, it may be observed that had B been convicted and discharged, rather than discharged without conviction, the Criminal Records (Clean Slate) Act 2004 would have, as of 8 September 2016, operated automatically to:32
(a)deem B to have no criminal record for the purposes of any question asked of him about his criminal record;33 and
(b)confer on B the right to have his criminal record concealed by persons who hold or have access to that criminal record (including government agencies).34
[41] As a matter of principle, it is difficult to see why the important policy objectives underlying that Act would not reinforce the strength of B’s interest in the order and therefore operate in favour of continued suppression here.35
[42] As for C, the starting point is that, in granting the original suppression order, Judge Mackintosh must have regarded the likely effects of publication on her as sufficiently serious to warrant the making an order. Secondly, there can be no doubt that the publication of B’s name today, together with the date and nature of the charges, would still operate to identify her as the complainant and (accordingly) as a victim of
32 There can be no question that B would have been eligible in terms of s 7 of the Act.
33 Section 14; Notably, the term “criminal record”, as defined in s 4, includes any charges that have led to a conviction. In other words, an eligible person under the Act is entitled not only to deny the existence of any conviction but also the fact that he or she was ever charged with the offences leading to the convictions.
34 Section 17; In the present case I do not know whether NZME obtained the information about B’s discharge without conviction from the Ministry.
35 The object of the Criminal Records (Clean Slate) Bill (183-1), which later became the Act, was expressed in the following way in the explanatory note at 1:
The Bill creates a legislative scheme, the clean slate scheme, which is intended to enable law-abiding citizens to live free from the adverse effects of historical criminal records, in particular circumstances
domestic violence.36 As noted in the revocation decision, however, C’s divorce from B, her move away from the area and their children attaining adulthood are all matters which arguably lessen the impact of the disclosure on her.
[43] I nonetheless accept her evidence that the impact would still be felt, and would cause hardship to all family members concerned. While I tend to agree with the District Court Judge that this hardship would not meet the present “undue” threshold in s 200(2)(c), that is not determinative. It must be weighed against:
(a)her (reasonable) expectation that the order would continue which, for the reasons I have given, could (reasonably) be expected to increase over time; and
(b)the fact that the hardship would be made more acute by the extent of the publicity that would almost certainly be engendered if B’s name was made public as a result of B’s present position.
[44] As well, there is the point touched on earlier that C was a victim of domestic violence. Because (as far as I am aware) C did not apply for a protection order under the Domestic Violence Act 1995 and B was not charged under that Act, the restrictions on publication imposed by that Act do not apply. There remains some force in the proposition that in an otherwise analogous case (i.e. in cases involving intimate partner violence) the view of the complainant about suppression should be given particular weight.
[45] All the above matters must, as I have said, be weighed against the relevant change of circumstance here, namely the fact that B has, more recently, attained a degree of public standing and influence. I accept entirely that this gives rise to a public interest in knowing about past criminal behaviour which did not exist before. There is, however, no suggestion that such behaviour continues to be a concern and nor is it of a kind that might have a direct bearing on his performance of his official functions.
36 Regardless of whether the charges were actually laid under the Domestic Violence Act 1995.
If the 2009 charges had involved dishonesty, for example, then different considerations might pertain.
[46] As well, there is the fact that the mayoralty contest had ended several months before the present appeal was heard. The immediacy of the public interest in the issue that existed at the time of the District Court hearing is no longer. While I accept that the public interest in the matter has not evaporated completely, it is relevant that NZME made no application for some time after it first became aware of the charges, during which time B occupied the position that he continues to hold.
[47] In my view, the balancing of the relevant interests discussed above does not, ultimately, favour lifting the suppression order. It follows that I consider the District Court was wrong to order otherwise.
[48]The appeal is allowed. The suppression order is to remain in place.
Rebecca Ellis J
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