B v R HC Auckland CRI-2010-404-466

[2010] NZHC 2120

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2010-404-466

UNDER  Section 140 Criminal Justice Act 1985

BETWEEN  B

Appellant

ANDTHE QUEEN Respondent

Hearing:         1 December 2010

Appearances: M Kan (on instructions from M A Edgar) for Appellant

N R Williams for Respondent

Judgment:      1 December 2010

JUDGMENT OF BREWER J

SOLICITORS

Mark Edgar (Auckland) for Appellant

Meredith Connell (Auckland) for Respondent

B V R HC AK CRI-2010-404-466  1 December 2010

Introduction

[1]      Mr B   appeals against a refusal of a District Court Judge to extend an order suppressing publication of his name.

[2]      On 25 November 2010 Mr B   was convicted of seven counts of dishonestly accessing a computer system under s 249 of the Crimes Act 1961.

The facts

[3]      The factual background to the charges broadly was that Mr B   was the chief financial officer of a company.  The allegation which the District Court Judge found  proved  beyond  reasonable  doubt  was  that  on  a  number  of  occasions  he accessed the company's computer system for the purpose of providing himself with a financial benefit.

[4]      Following conviction the District Court Judge declined to extend the name suppression order which had hitherto been in effect, save for a period of one day. That extension was to permit Mr B   to advise his family of his convictions and to prepare them for the lifting of name suppression.

Grounds of application

[5]      The  grounds  upon  which  Mr  B    seeks  extension  of  the  name suppression order are, firstly, that he intends to appeal against the conviction.  He cannot do that until after sentencing, which is scheduled for the end of this month.

[6]      Secondly, he points to serious consequences for himself and members of his family if the convictions become publicly known.   For himself the consequences relate to his reputation as a chartered accountant and a prominent financial advisor in Auckland.  He has been a director of the Auckland Regional Transport Authority and of Hortresearch.  However, I am advised by counsel that he has resigned from those

directorships.   It is not known whether he is a director of other public entities, although it is thought unlikely that he is.

[7]      Mr  B    describes  himself  as  a  self-employed  consultant  and  it  is beyond question that publication of his convictions will affect his reputation and very likely result in difficulties in obtaining work.

Submissions

[8]      Submissions have been made by Mr Kan, on instructions from Mr Edgar who is counsel for Mr B  , to the effect that the stress and worry of the criminal proceedings have adversely affected Mr B  's mental health.   In the written submissions filed by Mr Edgar this is put as an increase to the risk of self-harm.[1]

Mr Kan  in  his  oral  submissions  has  advised  me  that  his  instructions  are  that

Mr B   is now seeking professional help because he has become suicidal.

[1] Para 2.9 of submissions.

[9]      In addition, as a further ground of appeal, Mr B   points to the likely adverse impact of publicity on his family.  I do not need to go into detail but there are, on the submissions filed in writing, several members of his extended family who for personal and medical reasons could be affected by publicity to an extent said to be disproportionate to the seriousness of the offending.

[10]     For  the  Crown,  Mr  Williams  simply  relies  upon  the  case  law  which  is applicable in these situations.

Decision

[11]     I take as the starting point the well known dicta of the Court of Appeal in Re Victim X.[2]    The question is: are there then compelling reasons or very special circumstances justifying departure from the open justice principle?

[2] Re Victim X [2003] 3 NZLR 220.

[12]     The open justice principle is simply that justice that is done in the name of the public must be known to the public if the integrity of the justice system is to be preserved.   Those are easy words to say.   It is how they are applied to particular human examples which make them complicated.

[13]     Mr B   has been tried and convicted.  He is no longer entitled to the presumption of innocence.   Whenever a person is convicted the publicity of that conviction will have an impact on reputation and hence the ability to make a living. That effect is heightened when the person convicted is a professional who is self- employed.   But that does not create a special category.   The presumption of open justice applies equally.

[14]     Further, the stress that goes with the publication of a conviction is always present.  Family members will be affected adversely - some to a greater extent than others.

[15]     The simple point that I am left with is that, although I accept the likely effects of publication as urged upon me by Mr Kan, there is nothing here which lifts the case into the realm of very special circumstances and nor can I find compelling reasons on the matters that are before me.

[16]     Finally,  I note that the New Zealand Herald newspaper has published an article about this case which goes quite close to the point of breaching the interim suppression order by providing details which if they would not readily lead to the identification of Mr B   would, in my view, cast doubt or suspicion on people who fit into the categories described in the article.  That is not a major point I take into consideration but it is one of the reasons why open justice is important; that is to say, so suspicion is not cast upon the innocent.

[17]     Accordingly, the appeal is dismissed.

Brewer J