B v NZME Publishing Limited - [2018] NZHC 1042

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…

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 B v NZME Publishing Limited

Details

AGLC: B v NZME Publishing Limited [2018] NZHC 1042
Case: [2018] NZHC 1042
Decision Date: 14 May 2018

CaseChat Overview and Summary

The appellant, B, was successful in his appeal against the District Court's decision to revoke a permanent name suppression order. The suppression order had been granted in 2009 in relation to charges of common assault and male assaults female, with B's then-wife, C, as the complainant. The suppression order was made pursuant to s 140 of the Criminal Justice Act 1985, and was intended to protect the identity of C and their children. In 2016, B stood for election as a local body representative, and shortly before the election, NZME Publishing Limited applied to have the suppression order revoked. The District Court granted the application, finding that the public interest in knowing about B's past criminal conduct outweighed the interests of B and C in maintaining the suppression order. B appealed the District Court's decision, arguing that the Court had erred in fact and in law in revoking the suppression order. The High Court allowed the appeal, finding that the District Court had not properly balanced the relevant interests in reaching its decision. The Court held that while B's assumption of elected public office was a relevant change of circumstance that might warrant revisiting the suppression decision, the balancing of the relevant interests did not ultimately favour lifting the suppression order. The suppression order was therefore to remain in place.

Orders