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…

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 Police

Details

AGLC: B v Police [2021] NZHC 2073
Case: [2021] NZHC 2073
Decision Date: 11 August 2021

CaseChat Overview and Summary

Mr B appeals against the refusal of the District Court to continue an interim order of name suppression. The appeal was heard in the High Court at Wellington, and was dismissed by Gwyn J on 11 August 2021. Mr B faces one charge of supplying a class B controlled drug (ecstasy). He has pleaded not guilty and elected trial by jury. The application for name suppression was considered and dismissed by Judge Johnston in the District Court at Porirua on 27 July 2021. The interim order of suppression was, however, continued by the District Court to allow Mr B to file this appeal. Mr B applied for continuation of the interim order of name suppression on the grounds that publication would cause extreme hardship to him, his family, and his employees. Judge Johnston found that Mr B had not established the threshold of extreme hardship, and dismissed the application. Mr B submits that the District Court 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. Mr B also seeks leave to file fresh evidence in the form of a further letter from his doctor about his mental health, which confirms he has experienced “suicidal thoughts”. The Crown submits that the District Court Judge was not required to consider the cumulative effect of the grounds for name suppression, and that it was open to the Judge to conclude that the potential consequences on Mr B, his family, and his business did not rise to the level of extreme hardship. The Crown also submits that if the Court found that Mr B did meet the test for extreme hardship, the Court should acknowledge the greater weight of a risk of extreme hardship pre-trial, when Mr B retains the presumption of innocence. Gwyn J found that Mr B had 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. The appeal was dismissed.

Orders