B v Police

[2023] NZHC 141

ORDER PROHIBITING PUBLICATION OF NAME, ADDRESS,

OCCUPATION OR IDENTIFYING PARTICULARS OF APPELLANT PURSUANT TO S 200(4) CRIMINAL PROCEDURE ACT 2011. SEE

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

I TE KŌTI MATUA O AOTEAROA TE PAPAIOEA ROHE

CRI-2023-454-1

[2023] NZHC 141

BETWEEN

B

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:

8 February 2023 (via AVL/VMR)

Counsel:

Appellant in Person

A M Barham for Respondent

Judgment:

8 February 2023

JUDGMENT OF ELLIS J

[1]    B faces a charge of breaching a suppression order, pursuant to s 211(1)(a) of the Criminal Procedure Act 2011 (the CPA). The suppression order in question relates to the defendant in a private prosecution instituted by B.

[2]I do not need or intend to set out the background or relevant allegations here.

[3]    B’s first appearance on the charge took place on 1 December 2022, before Judge Northwood in the District Court. A bail condition sought by police was the main focus of the appearance. At the conclusion of this hearing, however, B sought interim name suppression. The Judge told B that the hearing had concluded and that he was not “dealing with that today”. B immediately filed an appeal against that

B v NZ POLICE [2023] NZHC 141 [8 February 2023]

decision in the High Court but, for reasons that remain unclear it was lost or, at least, not actioned for some time.

[4]    B’s second appearance in the District Court was on 10 January 2023, before Judge Singh. The Judge advised him it was a “list date” and if there was any substantive application to be made then a hearing date would need to be set. B again tried to make an application for interim name suppression. He told the Judge it was “contrary to the law” for Judge Northwood not to have dealt with his application for interim name suppression at the first appearance and advised he had filed an appeal. But Judge Singh reiterated that B would need to file a formal (written) suppression application that would then need to be the subject of a separate fixture. The Judge referred to a fixture scheduled for 6 March in relation to B’s oral evidence application for oral evidence and suggested that name suppression could be dealt with then.1 B immediately filed an appeal against that “decision” too.

[5]Both B’s appeals came before me today.

The relevant statutory provisions

[6]Section 200 of the Criminal Procedure Act 2011 (CPA) provides:

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

1      Legal discussion before Judge A Swaran Singh, above n 1.

(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.

(3)        The fact that a defendant is well known does not, of itself, mean that publication of his or her name will result in extreme hardship for the purposes of subsection (2)(a).

(4)        Despite subsection (2), when a person who is charged with an offence first appears before the court the court may make an interim order under subsection (1) if that person advances an arguable case that one of the grounds in subsection (2) applies.

(5)        An interim order made in accordance with subsection (4) expires at the person’s next court appearance, and may only be renewed if the court is satisfied that one of the grounds in subsection (2) applies.

(6)        When determining whether to make an order or further order under subsection (1) that is to have effect permanently, a court must take into account any views of a victim of the offence conveyed in accordance with section 16B of the Victims’ Rights Act 2002.

[7]    Suppression order appeals are dealt with in subpt 7 of Pt 6 of the CPA. Of relevance here are ss 283, 286 and 287, which respectively provide:

283 Right of appeal against decision on suppression order

(1)        A person specified in subsection (2) may appeal under this subpart to the first appeal court against a decision of a court—

(a)to make or refuse to make a suppression order; or

(b)to renew, vary, or revoke a suppression order under section 208.

(2)The persons who may appeal are—

(a)the applicant for the suppression order; or

(b)the prosecutor; or

(c)a member of the media to whom section 210(1) applies.

…

286Interim suppression order pending determination of first appeal

(1)        This section applies if a court refuses to make the suppression order sought by the applicant and the applicant for the order satisfies that court that an appeal against that decision is to be filed under section 285.

(2)        The court must make an interim order to the effect sought by the applicant.

(3)An interim order made under subsection (2) continues in force until—

(a)the expiry of the period specified in section 285(2) for filing a notice of appeal or notice of application for leave to appeal; or

(b)the appeal is finally determined, if the notice is filed within that specified period.

287First appeal court to determine appeal

A first appeal court must determine a first appeal by—

(a)confirming the decision appealed against; or

(b)varying the decision appealed against; or

(c)setting aside the decision appealed against; or

(d)making any other order it considers appropriate.

Discussion

[8]    As Ms Barham for the Crown responsibly acknowledged, things have gone a little awry here. As she said, there is no requirement that an application for interim name suppression must  be made in writing.2  Moreover,  as she  also acknowledged, s 200(4) provides that a Court may make an order for interim name suppression at the first appearance if a defendant advances an arguable case that one or more of the grounds in s 200(2) apply. B wished, but was denied the opportunity, to advance an arguable case on either appearance. Similarly, it is at least arguable that (as B submitted) an interim order should have been made pending these appeals by dint of s 286.

[9]    I accept that, on one analysis, there has been no actual decision in the District Court declining B’ application for interim name suppression and so (arguably) the right

2      Criminal Procedure Rules 2012, r 2.12.

of appeal conferred by s 283 of the CPA does not apply. But in my view, the refusal to hear B’s oral application does constitute a decision refusing to make an order. Were it not so, appeal rights could be avoided simply by declining a hearing.3

[10]   As I have said, the Crown accepts that the relevant decisions were wrong, and I agree. The question then becomes how I should determine B’s  appeals in terms of  s 287. Again, the fit is not an entirely easy one, but the fifth dispositional option (the appeal court may make “any other order it considers appropriate”) is useful and I rely on it below.

[11]   At the hearing today I asked B to outline for me the grounds on which he would have advanced his case for interim suppression had he been permitted to do so in the District Court. He referred to the grounds set out in s 200(2)(a), (e) and (f). Put briefly there are concerns around his own mental health and also a concern that submission that suppression of his name is necessary because otherwise the suppression orders made in relation to the defendant in his private prosecution (and the complainant in the prosecution of him) might be undermined.

[12]   It suffices for present purposes to focus on s 200(2)(a).I am satisfied that B has an arguable case for suppression under that provision, based on the likely impact of publication on his own mental health. The report of Dr Barry-Walsh referred to in my 2020 decision relating to another matter involving B suggests a degree of fragility and lends at least some support for that conclusion. This is a conclusion with which I understood Ms Barham to agree.

[13]   So in the unusual circumstances of this case I consider that the appropriate course is to allow the appeals and make an interim order suppressing B’s name. That is the nearest I can come to restoring the position as (in my view) it would now be in the District Court, had the matter not derailed. By virtue of s 200(5) that order will then expire at B’s next appearance in the District Court unless he can meet the higher

3      I am not attracted by Ms Barham’s alternative suggestion that this should be treated as an appeal on a question of law under s 296 of the CPA. Not only does such an appeal require leave of the appeal court but it is predicated on some “ruling” have been made. That presents the same—if not greater—difficulty than does the wording of s 283.

(s 200(2)) threshold by satisfying the Court that one of the grounds for suppression in that subsection does exist.

[14]   For the avoidance of any doubt, I record my expectation that B’s application for continued suppression will be heard and determined at that next appearance.

Rebecca Ellis J

Solicitors:

Crown Solicitors, Palmerston North