B v Police

[2021] NZHC 2073

NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS OF ANY COMPLAINANT UNDER THE AGE OF 18 YEARS PROHIBITED BY S 204 OF THE CRIMINAL PROCEDURE ACT 2011. SEE

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CRI-2021-485-000057

[2021] NZHC 2073

BETWEEN

B

Appellant

AND

THE NEW ZEALAND POLICE

Respondent

Hearing:	10 August 2021
Counsel:	C Stanley for the Appellant J Garden for the Respondent
Judgment:	11 August 2021

JUDGMENT OF GWYN J

(Appeal against refusal to continue name suppression)

Introduction | Whakatakinga

[1]                 The appellant, Mr B faces one charge of suppling a class B controlled drug (ecstasy).1 He has entered a plea of not guilty and elected trial by jury.

[2]                 Mr B applied for continuation of interim name suppression, previously granted at his first appearance, on the grounds that publication would cause extreme hardship to him, his family, and his employees. Judge Johnston in the District Court at Porirua declined that application on 27 July 2021.2

1      Misuse of Drugs Act 1975, s 6(1)(c) and (2)(b); maximum penalty 14 years’ imprisonment.

2      Police v B [2021] NZDC 15028.

B v THE NEW ZEALAND POLICE [2021] NZHC 2073 [11 August 2021]

[3]                 Mr B now appeals that decision on the basis the threshold applied by the Judge was too high, and there are sufficient grounds for the continuation of the name suppression.

[4]                 The Judge granted continuation of interim name suppression, to allow Mr B to file this appeal.

The alleged offending

[5]                 The presumption of innocence applies to Mr B, and at this stage the details I now recite remain allegations.

[6]                 Mr B, who is in his 40s, was a swimming coach for a swimming club. In December 2020, Mr B was at his home, with two people (including the complainant, who was 17 years old) who were participating in a programme he was running. Mr B and the complainant were in the kitchen together, when Mr B offered the complainant a small clear crystal of ecstasy. Mr B placed a similar crystal in his mouth, and told the complainant to place the crystal under her tongue. She did not, and instead left the crystal on Mr B’s table, before leaving the house.

[7]                 The complainant later told the other person what had happened, and they returned to Mr B’s address and collected the crystal. A few days later, the complainant delivered the crystal to the Police and reported the matter.

The District Court decision

[8]                 The Judge recorded that Mr B applied for name suppression on the grounds that publication would cause extreme hardship to him due to his mental health, to his children due to the reaction of their peers, and to his employees and family due to the purported financial impact on his business. The Judge noted the Police were neutral on the application.

[9]                 The Judge first set out the two-stage test required under s 200(2) of the Criminal Procedure Act 2011 (the CPA), and noted the importance of open justice in

Court proceedings. He also noted extreme hardship is a “significant threshold to cross.”3

[10]             In terms of the hardship to Mr B, the Judge recorded that medical information had confirmed he was suffering from symptoms of anxiety and depression. Although accepting these symptoms may be worsened as a result of facing trial, the Judge did not consider that such a consequence would be beyond the ordinary consequences associated with publication. He noted there was no evidence before him to indicate a high risk of suicide.

[11]             Turning to the risk to Mr B’s business, the Judge referred to Byrne v Police, where the Court held that serious consequences on a defendant’s business were not sufficient to meet the threshold of extreme hardship.4 The Judge also noted name suppression is not a tool to protect commercial interests.5 The Judge found the hardship to Mr B’s business was not beyond the ordinary consequences of publication.

[12]             Finally, in relation to Mr B’s children, the Judge referred to Tranter v R, where hardship experienced by the defendant’s stepdaughter, who attended the same school as the complainant, did not meet the threshold of extreme hardship.6 The Judge also noted no evidence was advanced as to how the lifting of name suppression would exacerbate any of the existing issues faced by Mr B’s children in relation to the charge against him.

[13]The Judge therefore concluded the threshold for extreme hardship was not met.

The law | Te Ture

[14]             Mr B applies for a continuation of name suppression primarily on the grounds of extreme hardship and risk of prejudice to a fair trial, as provided for in s 200(2)(a) and (d) of the CPA:

3 At [9].

4      Byrne v Police [2013] NZHC 3416 at [20]-[23].

5      Hughes v R [2015] NZHC 1501 at [41].

6      Tranter v R [2019] NZHC 1423.

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

…

(d)      create a real risk of prejudice to a fair trial; or

…

[15]             The Court of Appeal in Robertson v Police confirmed that s 200 contemplates a two-stage analysis:7

[39]   … Stage one is a threshold determination. Stage two is a discretionary assessment.

[40]      At the first stage, the Judge must consider whether he or she is satisfied that any of the threshold grounds listed in s 200(2) has been established. That is to say, whether publication would be likely to lead to one of the outcomes listed in subs (2). The listed outcomes are prerequisites to a court having jurisdiction to suppress the name of a defendant. It is “only if” one of the threshold grounds has been established that the judge is able to go onto the second stage.

[41]      At the second stage, the judge weighs the competing interests of the applicant and the public, taking into account such matters as whether the applicant has been convicted, the seriousness of the offending, the views of the victims and the public interest in knowing the character of the offender.

[16]             This appeal against the first stage of the analysis, in relation to whether the threshold under s 200(2)(a) is met, is determined in accordance with the approach in Austin, Nichols & Co Inc v Stichting Lodestar:8

Those exercising general rights of appeal are entitled to judgment in accordance with the opinion of the appellate court, even where that opinion is an assessment of fact and degree and entails a value judgment. If the appellate court’s opinion is different from the conclusion of the tribunal appealed from, then the decision under appeal is wrong in the only sense that matters, even if

7      Robertson v Police [2015] NZCA 7 (footnotes omitted).

8      Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141, (2007) 18 PRNZ 768 at [16] (footnote omitted).

it was a conclusion on which minds might reasonably differ. In such circumstances it is an error for the High Court to defer to the lower Court’s assessment of the acceptability and weight to be accorded to the evidence, rather than forming its own opinion.

Submissions

Mr B

[17]             Ms Stanley, counsel for Mr B, submitted that the Judge erred in his approach to the test for extreme hardship by looking at each ground in isolation and considering whether that particular ground met the test, rather than viewing the grounds of hardship cumulatively. Ms Stanley emphasised that Mr B has pleaded not guilty, and therefore has the benefit of the presumption of innocence at this stage. Ms Stanley sought leave under s 334(3) of the CPA to file fresh evidence, in the form of a further letter from Mr B’s doctor about his mental health, which confirms he has experienced “suicidal thoughts”.

[18]             Ms Stanley also raised the issue of Mr B’s right to a fair trial (by jury), in light of recent media coverage.

[19]             Ms Stanley submitted there is no need for the public to be protected from Mr B by knowing his name; the local swimming community appear to know he has been charged, and he is no longer coaching swimming.

The Crown

[20]             The Police adopted a neutral position when the matter was considered before Judge Johnston.

[21]             Mr Garden, counsel for the Crown, said first that, as Ms Stanley observed, it is not clear whether the Judge considered the cumulative impact of each factor, as the judgment assessed each in turn. Equally, however, Mr Garden said there is no indication that the Judge expressly discounted certain factors, as the High Court did in X v R.9 Because this Court must come to its own view as to whether the threshold is made out, it may be unnecessary to determine whether the Judge erred in this respect.

9      X v R [2020] NZCA 387.

[22]             Mr Garden also addressed the suggestion for Mr B that the District Court failed to apply the principle that the assessment of risk of substantial hardship may have greater weight in pre-trial proceedings, before a finding of guilt. Mr Garden said that the Judge expressly referred to and endorsed this principle.10

[23]             Overall, Mr Garden acknowledged that Mr B and his family are experiencing significant and understandable distress from the prosecution. Notwithstanding that, it was open for the District Court to conclude that the impact of publication on Mr B, his family and those connected with his business did not rise to the high level of extreme hardship. In relation to Mr B’s mental health, Mr Garden acknowledged the update from Mr B’s GP and that Mr B is clearly suffering significant mental distress arising from the proceedings, but said there is only limited information available that could lead the Court to conclude that there is an appreciable risk of self-harm or suicide.

[24]             In relation to harm to Mr B’s family, the Crown’s submission was that the Court has evidence of a difficult situation particularly in relation to Mr B’s daughter, but there is little evidence to suggest that lifting name suppression would cause that situation to appreciably deteriorate.

[25]             Finally, in relation to Mr B’s business, Mr Garden concluded that it was open to the Judge to conclude that the potential consequences on the business were not sufficient to displace the presumption of open justice.

[26]             Mr Garden submitted that if the Court found that Mr B did meet the test for extreme hardship, when exercising its discretion the Court should acknowledge the greater weight of a risk of extreme hardship pre-trial, when Mr B retains the presumption of innocence. Mr Garden noted, however, that both the complainant and her father oppose a continuation of name suppression.11

10     Police v B, above n 2, at [11].

11     The Court must take into account the views of a victim of the offending when considering permanent name suppression: Criminal Procedure Act 2011, s 200(6).

Analysis | Tātari

Extreme hardship

[27]             As the District Court Judge observed, there is a high threshold for the test for extreme hardship:12

[48] As regards the level of hardship required by the phrase “extreme hardship”, we consider it clear beyond argument that it connotes a very high level of hardship. The word “hardship” on its own means “severe suffering or privation”. The addition of the qualifier “undue” in s 200(2)(c) indicates that something more than hardship simple is required, while the word “extreme” in s 200(2)(d) indicates something more again.

[28]             The stringency of the test is highlighted in the following comments of Palmer J in R v Police in relation to the relevant grounds under s 200(2):13

[32]      The substantive points made by the Court of Appeal in Lewis v Wilson & Horton Ltd still apply since enactment of the Act in 2011. But the courts have determined that the test in s 200(2) involves two steps:

(a)First, the court must consider whether publication would be likely to lead to extreme hardship. “Likely” in ss 200(2) … has been held to mean “a real and appreciable possibility”. The Court of Appeal has stated the thresholds of extreme hardship in s 200(2)(a) … and a “real risk” of prejudice in para (d) are “comparative standards”:

The adjectives indicate that these are comparative standards. They require that the court compare the consequences of publication in the instant case with those that normally attend prosecution. Distress, embarrassment and adverse personal and financial consequences usually attend criminal proceedings, and something out of the ordinary is needed if the applicant is to get across the threshold.

…

[29]             As Ms Stanley submitted, the Court of Appeal has confirmed hardship is to be assessed cumulatively:14

[40] The correct approach is to identify all likely hardship arising from publication, as the Judge here did. But the ultimate assessment of whether the likely hardship would be extreme must be based on all such hardship, looked

12     Robertson v Police, above n 7 (footnotes omitted).

13     R v Police [2019] NZHC 2901 (footnotes omitted).

14     X v R, above n 9.

at cumulatively. It is not “orthodox” to discount some of the identified hardship on the basis it somehow does “not qualify as hardship”. It must all be factored into the “hardship calculus”.

Mr B’s children

[30]             In his affidavit provided for the District Court proceedings, Mr B explained he has concerns about two of his children if his name is published: one of his teenaged children goes to school with the complainant; and another of his teenaged children has been removed from school, suffering mental health issues, which began as a result of the actions of other students when the complaint was first made against Mr B.

[31]             I agree with the Judge that the situation in relation to Mr B’s children is similar to the case of Tranter v R.15 Mr Tranter faced charges of serious sexual offending, and his stepdaughter attended the same school as the complainants. Her mother advised that the stepdaughter was being bullied and teased as a result of the charges. In refusing name suppression, Dunningham J held:

[31]      There is no doubt, therefore, that Mr Tranter’s stepdaughter has faced considerable distress as a result of the inappropriate bullying which has followed him being charged. …

[32]      I accept that the stepdaughter is currently facing hardship, possibly even undue hardship, because many of her peers know about her stepfather being charged. … it is clear from the evidence … that there is considerable knowledge in the local community of the charges Mr Tranter faces. If name suppression is now lifted, it is difficult to see how that, of itself, would cause the stepdaughter any additional hardship, let alone extreme hardship.

[33]      As the cases cited by counsel show, “extreme hardship” is a high threshold to meet and undoubtedly requires more than “undue hardship” and more than the ordinary distressing and embarrassing consequences of being associated with someone facing criminal charges.

[32]   Similarly, it is difficult to see how publication of Mr B’s name now would add to the hardship his child is suffering, having already been removed from school. There is no medical evidence before me to show publication would have an impact on his children’s mental health that would constitute extreme hardship.  The evidence in  Mr B’s affidavit is insufficient to show his children would experience extreme hardship if his name were published.

15     Tranter v R, above n 6.

Mr B’s business

[33]   In relation to his business, Mr B explained he is involved in two businesses: his main business, which “revolves around [him]”, is in sales and marketing and employs four people; he is also part owner of an online business. He was previously also working part time as a swimming coach, but has been stood down as a result of the alleged offending. Mr B explained that his business relies on his reputation, and he is concerned he may lose a “substantial” amount of business if his name is published. He also explained that, as he is the primary income earner for his family and is responsible for paying the large mortgage on their family home, any financial impact on the business will have a significant impact on his family.

[34]   Again, I agree with the Judge that the situation in relation to Mr B’s business is similar to the case of Byrne v Police.16 Mr Byrne ran a gym and had been convicted of six charges of selling cocaine. He unsuccessfully applied for permanent name suppression in order to protect his family’s source of income and his friends’ investments in the gym.

[35]   Ms Stanley submitted Mr B’s case can be distinguished from Byrne in two respects: Mr Byrne had partly withdrawn from the business (his wife was running it), whereas Mr B is the “central figure” in his business; and the seriousness of Mr Byrne’s offending was “far greater” than the alleged offending in the present case.

[36]   I am not persuaded by either of these factors. Mr Byrne was still involved in his business, and his offending also involved drugs. Because Mr B is self-employed his assessment of the possible consequences of publication is necessarily subjective. Mr B has not provided any information about the income he receives from his businesses, or his wife’s salary, as evidence of the likely financial impact on him and his family. It is also relevant that his business is not connected to coaching swimming, and does not involve any sort of particularly public role. I find the potential impact on Mr B’s business alone is not sufficient to establish extreme hardship.

16     Byrne v Police, above n 4.

Mr B’s mental health

[37]   I deal now with the fresh evidence in relation to Mr B’s mental health, which is an undated letter from Mr B’s GP provided to Mr B’s counsel since the District Court hearing.17 Mr B’s GP confirms he provided a letter for Mr B on 21 July 2021, for the purpose of the District Court hearing. He confirms he has seen Mr B again since then. Mr B’s GP advises:

I have known Mr B since November 2013 and while he has suffered from depression in the past, it has not been to the degree that he is presenting with currently and I consider this to be a major episode. I remain very concerned for Mr B’s mental health, in particular the reported suicidal thoughts which I consider to be genuine.

Mr B suffers from Obsessive Compulsive Disorder, which means he will constantly chew over the present predicament that he finds himself in without being able to switch it off, and this exacerbates the negative impact on his mental health.

[38]   Fresh evidence on appeal requires the Court to assess whether the evidence passes the sequential tests the Privy Council set out in Lundy v R:18

The Board considers that the proper basis on which admission of fresh evidence should be decided is by the application of a sequential series of tests. If the evidence is not credible, it should not be admitted. If it is credible, the question then arises whether it is fresh in the sense that it is evidence which could not have been obtained for the trial with reasonable diligence. If the evidence is both credible and fresh, it should generally be admitted unless the court is satisfied at that stage that, if admitted, it would have no effect on the safety of the conviction. If the evidence is credible but not fresh, the court should assess its strength and its potential impact on the safety of the conviction. If it considers that there is a risk of miscarriage of justice if the evidence is excluded, it should be admitted, notwithstanding that the evidence is not fresh.

[39]   I find the letter from Mr B’s GP to be both credible and fresh, and I therefore grant leave to adduce it.

[40]   In terms of the risk to Mr B’s mental health, I note the comments of the Court of Appeal in D v Police:19

17     Counsel advised that she received the letter on 3 August 2021.

18     Lundy v R [2013] UKPC 28; [2014] 2 NZLR 273 at [120].

19     D v Police [2015] NZCA 541 (footnotes omitted)

[30]      It is not uncommon for applicants to seek suppression on the ground that publication will cause them to self-harm or commit suicide. A review of the principal cases is instructive. A number of points may be made:

(a)The possibility of self-harm or suicide always gives a court cause for anxious consideration. Suicide would be a devastating and unacceptable consequence of publication and it cannot always be assumed that an at-risk person will behave rationally. But the court cannot adopt the stance that any risk is unacceptable. Under s 200 it must be satisfied that the relevant subs (2) risk is likely; that is, a real and appreciable possibility.

(b)Judges know that people may experience suicidal ideation when confronted with criminal proceedings, which are immensely stressful, but very seldom, if ever, act upon it. The proceeding is normally the principal cause of stress, although publication identifies the proceeding with the defendant and may cause great anxiety at particular points in time.

(c)For these reasons a defendant who relies on a risk of self-harm or suicide attributable to publication of his or her name must normally point to something more than the usual feelings of anxiety and despair that may attend proceedings. It is usual to offer evidence that the defendant is psychologically troubled for other reasons and is particularly susceptible to publicity.

…

(f) The opinions of medical professionals deserve respect, but a  court need not defer to them. It is unlikely to question an uncontradicted medical diagnosis of the defendant’s condition, but such opinions may assume that any risk is too much risk or (as in this case) urge suppression without adequately addressing alternative ways in which the risk might be managed.

…

(h) Suppression does  not  follow automatically from  the court  being satisfied that a relevant risk exists. The court must further consider the second issue: whether an order ought to be made in the exercise of discretion.

[41]In R v Wilson, Whata J said:20

[37]      There can be no bright line threshold for when emotional distress will amount to extreme hardship. But I consider that where emotional distress is raised as a basis for suppression, there must be probative evidence that publication may result in a severe impact on the mental health of the offender.

20     R v Wilson [2014] NZHC 32 (footnotes omitted).

[38]      In the present case, [a psychologist] observes that it is highly probable that [the defendant’s] mental health would acutely decline and in the form of a relapse of the anxiety and depressive symptoms she previously experienced. He concludes that her “risk of suicide can certainly not be excluded in the event of publication of her name”. …

[39]      … I am satisfied that [the defendant] is likely to suffer significant emotional distress if her name is published. But I am not persuaded that publication is likely to result in the type or scale of extreme emotional hardship contemplated by s 200(2)(a). The vast majority of offenders will be greatly affected by the publication of their offending, especially of the kind currently under scrutiny, and this may result in significant emotional distress, including depressive symptoms such that the risk of suicide cannot be discounted. In my view however, something more than this is necessary in order to qualify as extreme, as was the case in BL v R where there was evidence of a high risk of suicide and post traumatic stress syndrome that could not be mitigated by available protective structures. By comparison, [the] conclusion that the risk of suicide cannot be excluded is not sufficiently compelling to signal the need for suppression.

[42]   In BL v R, the defendant had regularly contemplated suicide, had planned how to end his life, and had the means to carry out that plan.21 Although Winkelmann J (as she then was) ultimately granted suppression, she noted, with reference to s 200(2)(e) (which allows a Court to grant suppression if publication would be likely to “endanger the safety of any person”):22

Where there is a risk of suicide, the Court must consider the medical evidence before it. Where a risk of suicide is established, name suppression does not automatically follow; the existence of a suicide risk is a relevant, but not determinative, factor.23

[43]   I acknowledge Mr B has experienced “suicidal thoughts” and is suffering from serious symptoms of depression and anxiety. I do not underestimate the seriousness of these symptoms and it has certainly given me cause for anxious consideration. However, there is not enough evidence before me to show that suicide is a “real and appreciable possibility”.24 While Mr B describes the symptoms he is experiencing in his affidavit, he does not mention any risk of suicide. There is also no medical evidence before me which establishes that publication of his name (or the prospect of publication) is the cause of those symptoms, rather than the stress of the criminal proceeding itself. I do take account of the cumulative effect of the hardship Mr B

21     BL v R [2013] NZHC 2878.

22 At [23].

23     R v Suttie [2007] NZCA 201.

24     D v Police, above n 19, at [30].

potentially faces, in particular the impact any financial stress would have on his mental health. However, on the evidence before me, the high threshold of “extreme hardship”, imposed by the authorities I have referred to has not been met.

Fair trial

[44]   Ms Stanley also submitted there is a possibility that publication of Mr B’s name may result in his right to a fair trial being undermined, given the nature of the media reporting to date. She said this has extended beyond the bounds of the events giving rise to the charge against him, and such publicity may have the effect of “infecting” the jury pool.

[45]   A “real risk” of prejudice to a fair trial is a comparative standard.25 While I accept there is likely to be more media coverage if Mr B’s name is published, his trial is likely to be at least one year away – meaning potential jurors will likely have minimal, if any, recollection of the reporting at this stage.26 Additionally, jurors are routinely directed to approach their task objectively on the basis of the information presented to them at trial, and not to conduct their own research.27 I am satisfied that any risks can be managed by appropriate directions to the jury. Therefore I am not satisfied publication is likely to create a real risk of prejudice to a fair trial.

Conclusion | He kupu whakakapi

[46]   Mr B has not established that publication would be likely to cause extreme hardship to himself, his family, or his business, or create a real risk of prejudice to a fair trial. It is therefore not appropriate for name suppression to continue.

25 See above at [28].

26     Te Pou v Police [2020] NZHC 2 at [6].

27 At [8].

Result

[47]The appeal is dismissed.

Gwyn J

Solicitors:

Crown Solicitor, Wellington

Thomas Dewar Sziranyi Letts, Lower Hutt