Beacon Media Group Ltd v Waititi
[2014] NZHC 281
•26 February 2014
IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY
CRI 2013-463-000106 [2014] NZHC 281
BETWEEN BEACON MEDIA GROUP LIMITED
Appellant
AND
EDWARD TAIKA WAITITI Respondent
Hearing: 5 February 2014
(Heard at Tauranga)
Appearances:
R K P Stewart for the Appellant
C M Andersen for the RespondentJudgment:
26 February 2014
JUDGMENT OF GILBERT J
This judgment is delivered by me on 26 February 2014 at 10am pursuant to r 11.5 of the High Court Rules.
..................................................... Registrar / Deputy Registrar
BEACON MEDIA GROUP LIMITED v WAITITI [2014] NZHC 281 [26 February 2014]
Introduction
[1] On 21 November 2013 Judge L M Bidois sentenced Edward Taika Waititi in the Whakatane District Court to a term of 40 months’ imprisonment following his guilty pleas to six charges including cultivation and supply of cannabis. The Judge declined Mr Waititi’s application for name suppression but made an order prohibiting the publication in connection with the sentencing of the name, address, occupation, relationship and any other identifying features of any of Mr Waititi’s relatives. Beacon Media Group Limited, which publishes the newspaper, the Whakatane Beacon, appeals against this suppression order.
Statutory Context
[2] The Judge made the suppression order pursuant to s 202 of the Criminal
Procedure Act 2011 which relevantly provides:
202Court may suppress identity of witnesses, victims, and associated persons
(1) A court that is hearing a proceeding in respect of an offence may make an order forbidding publication of the name, address, or occupation of any person who—
(a) is called as a witness; or
(b) is a victim of the offence; or
(c) is connected with the proceedings, or is connected with the person who is accused of, or convicted of, or acquitted of the 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 undue hardship to the witness, victim, or connected person; or
(b) create a real risk of prejudice to a fair trial; or
(c) endanger the safety of any person; or
(d) lead to the identification of another person whose name is suppressed by order or by law; or
(e) prejudice the maintenance of the law, including the prevention, investigation, and detection of offences; or
(f) prejudice the security or defence of New Zealand.
[3] Subsection (1) applies whether or not the court has made an order under s 200 suppressing the identity of the defendant.
[4] An order under subsection (1) suppressing the identity of a witness, victim, or connected person may not prevent publication of the name of the defendant (which can only be prohibited by an order made under s 200) or the nature of the charge.
[5] Unlike s 140 (1) of the Criminal Justice Act 1985, which conferred an unfettered discretion on the Court to make suppression orders in respect of anyone connected with the proceeding, s 202 of the new Act restricts the Court’s power to make such an order to those cases where at least one of the threshold tests set out in ss (2) is met. Section 202(2) operates as a gateway; it is only if the threshold is met that the Court is able to consider whether to exercise its discretion to make an order. No such restriction applied under s 140 of the old Act and cases decided pursuant to that section will therefore need to be treated with some caution when applying the provisions of the new Act.
[6] Mr Waititi’s relatives are “connected persons” for the purposes of ss (2)(a). In this case the Court has no power to make a suppression order in relation to any of Mr Waititi’s relatives unless the Court is satisfied that publication would be likely to cause undue hardship to that person. The statutory test must be met in relation to each person subject to the order.
Beacon’s appeal
[7] Beacon Media Limited has standing to bring this appeal pursuant to s 283(2) of the Act. The Court has the power to determine the appeal by confirming, varying or setting aside the decision appealed against or making any other order it considers appropriate.1
[8] The essence of Beacon’s appeal is that the threshold test set out in s 202(2)(a)
was not satisfied on the evidence before the Judge. Beacon concedes that if, contrary
1 Criminal Procedure Act 2011, s 287.
to its submission, the threshold test was satisfied, there would be no basis to disturb the Judge’s exercise of discretion in making the order.
[9] Whether the threshold test in s 202 is satisfied in any particular case involves an assessment of fact and degree. Appeals limited to the issue of whether the test was satisfied in a particular case should be dealt with in accordance with the approach directed by the Supreme Court in Austin, Nichols.2 The appellant is entitled to this Court’s assessment of whether the threshold test is met even though reasonable minds might come to differing conclusions on this issue. The constraints
on an appeal from the exercise of a discretion do not apply in this case because this aspect of the decision is not challenged.
[10] Before turning to the evidence, it is necessary to determine the correct interpretation of the words “likely” and “undue hardship” in s 202(2)(a).
What is the meaning of “likely” in s 202?
[11] Mr Stewart relies on the Shorter Oxford English Dictionary meaning of the word “likely” in support of his submission that an applicant for name suppression must demonstrate that it is more likely than not that the feared consequence said to amount to undue hardship will occur. Mr Stewart submits that this interpretation of the word “likely” in s 202 best serves the legislative purpose of securing the public interest in the open reporting of court proceedings and also gives effect to the right to freedom of expression protected by s 14 of the New Zealand Bill of Rights Act 1990.
[12] In R v W the Court of Appeal considered the meaning of the word “likely” in the context of s 139(1) of the Criminal Justice Act 1985 which prohibited the publication of identifying particulars of the victim in specified sexual cases.3 It relevantly provided:
139Prohibition against publication of names in specified sexual cases—
(1) No person shall publish, in any report or account relating to any proceedings commenced in any court in respect of an offence against
2 Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141 at [16].
3 R v W [1998] 1 NZLR 35
any of sections 128 to 142A of the Crimes Act 1961, or in respect of an offence against section 144A of that Act, the name of any person upon or with whom the offence has been or is alleged to have been committed, or any name or particulars likely to lead to the identification of that person...
[13] Richardson P, who delivered the judgment of the Court, observed that the meaning of the word “likely” depends on the statutory context and can range from a possibility sufficient to be recognised to a high probability.4 The Court considered that s 139 did not involve any question of balancing the public interest in the open reporting of court proceedings against the prospect of harm to the victim.5 The sole focus of the section was to protect victims from the unacceptable risk of harm through the publication of any material that may lead to their identification.6 The Court concluded that it was not necessary to show that publication of the relevant particulars was more likely than not to lead to the identification of the victim before any order could be made.7 In the context of s 139, the word “likely” was interpreted to mean any risk or possibility that could not be disregarded as fanciful.8
[14] Given that this is the well-established meaning of the word “likely” in this general context, the legislature may well have intended this meaning to apply under s 202. However, before reaching this conclusion it is necessary to consider the phrase in context.
[15] Unlike s 139, the exclusive focus of which was to protect complainants in specified sexual cases, s 202 will usually require the court to balance the public interest in the open reporting of court proceedings against the prospect or risk of harm to the classes of person covered by the section. This could indicate that a more restrictive interpretation of the word “likely” should be applied under s 202 than was appropriate under s 139. Further, the word “likely” in s 139 is concerned with the prospect of identification through publication whereas s 202 is concerned with the
prospect of the specified harm occurring as a result of publication.
4 At 38.
5 At 40.
6 At 40.
7 At 40.8 At 40.
[16] Section 139 of the Criminal Justice Act has been replaced by s 203 of the Criminal Procedure Act which prohibits publication of the name, address or occupation of the complainant in specified sexual cases unless the complainant is over 18 years of age and the Court permits such publication. Significantly, the words “likely to lead to the identification”, as used in s 139 of the old Act have been replaced by the expression “may lead to the identification” in ss 203(5) and 204(5) of the Criminal Procedure Act. This indicates that the legislature intended that different meanings should be ascribed to the words “may” and “likely” in this part of the Act. However, this does not mean that the legislature intended that the meaning of “likely” as determined by the Court of Appeal in R v W should not continue to apply where that word is used in s 202. On the contrary, it indicates that a lower test is to be applied under ss 203 and 204 than that which previously applied in relation to the former s 139.
[17] I conclude that the word “likely” in s 202 means more than “may” so that a mere possibility would not suffice. However, it is not necessary for an applicant for an order under s 202 to show that the risk of harm is such that it is more likely than not to occur. In my view, the word “likely” in s 202 means a real risk that cannot be readily discounted.
[18] This wider definition of “likely” in s 202 is also indicated by the section itself. For example, under s 202(2)(d) the Court may make a suppression order if publication is likely to lead to the identification of another person whose name is suppressed by statute or court order. The legislature cannot have intended that the Court would have no power under s 202 to make a suppression order to ensure that the object of any such statutory or court ordered prohibition is not defeated unless it is satisfied that this is more likely than not to occur. Similarly, the legislature cannot have intended that the court would have no power to intervene by making an order under s 202(2)(f) unless it is shown that without such an order the security or defence of New Zealand would be more likely than not to be prejudiced.
[19] The same logic applies to the concerns addressed by s 202(2)(c), “endanger the safety of any person” and s 202(2)(e), “prejudice the maintenance of the law, including the prevention, investigation, and detection of offences”. The legislature
cannot have intended that the court would have no power to make a suppression order unless it is proved that it is more likely than not that the maintenance of the law will be prejudiced or a person’s safety will be endangered. A real and appreciable risk of danger to the safety of a person or to the maintenance of the law would be sufficient. Similarly, under s 202(2)(a) with which this appeal is concerned, it should not have to be proved that it is more likely than not that a witness, victim or connected person will suffer undue hardship before the court has any power to make a suppression order to avoid or alleviate that undue hardship.
[20] It could be argued that the wording of s 202(2)(b) points to a more restrictive definition of the word “likely” because it is concerned with “a real risk of prejudice to a fair trial”. If the word “likely” means “a real risk”, the threshold test in s 202(2)(b) would be met if there was “a real risk” of creating “a real risk of prejudice to a fair trial”. I do not consider that this compels a different interpretation of the word “likely”. Fair trial concerns are always paramount. It is understandable that a real possibility of a risk of prejudice to a fair trial would be sufficient in itself to justify conferring a discretion on the Court to make an order under s 202 in an appropriate case.
[21] For the reasons given, I consider that the word “likely” in s 202 means more than a mere possibility but does not require proof that the concerns addressed by the section are more likely than not to eventuate. The discretion of the Court to make an order under s 202 will be engaged if it is shown that the stated harm or risk of harm is a real and appreciable possibility that cannot be dismissed or ignored as being remote or fanciful.
What is the meaning of “undue hardship” in s 202?
[22] As the Court of Appeal recognised in R v Liddell innocent family members will almost inevitably suffer anguish when an offender is convicted of a serious crime.9 However, such normal consequences will rarely be sufficient to displace the public interest in the open reporting of court proceedings. The public interest in open justice and freedom of expression will only yield in the case of a defendant in
criminal proceedings where it can be shown that the harm likely to be suffered as a
9 R v Liddell [1995] 1 NZLR 538 (CA) at 544.
result of publication is extreme or excessive. By contrast, victims, witnesses and others connected with the proceedings or the defendant need only show that they are likely to suffer undue hardship as a result of publication of their details in connection with the proceedings. “Undue hardship” is therefore something more than the hardship that would normally attend publicity surrounding criminal proceedings but less than “extreme hardship”. This is the balance Parliament has struck between the competing public interest in open justice and freedom of expression and the right of an individual to be protected from harm likely to result from publication.
[23] The concepts of undue and extreme hardship were introduced with the new Act and formed no part of the previous regime. However, these are familiar expressions which have been adopted from other contexts.
[24] The Oxford English Dictionary defines hardship as “[t]he quality of being hard to bear; hardness; rigour; severity; painful difficulty”. There is no indication that any different meaning was intended in s 202.
[25] In other legislative contexts “undue hardship” has been held to mean hardship which is “disproportionate”.10 It is hardship which is greater than that which is justified by the countervailing interests that give rise to the hardship. For example, the court may grant a limited licence to a disqualified driver if the applicant can show that otherwise he or she will suffer extreme hardship, or that another person will suffer undue hardship. In such cases undue hardship means hardship beyond
that which is justified by the purposes of the disqualification. In Dalton v Auckland City the phrase was considered to mean “excessive or greater hardship than the circumstances warrant.”11
[26] In its report on the name suppression provisions proposed under the Criminal Procedure Bill, the Law Commission relied on these decisions in recommending the standard of undue hardship to apply to victims and to other persons connected with the proceedings or the defendant.12 I conclude that the expression “undue hardship”
in s 202 has the same meaning, namely excessive or greater than the circumstances
10 Lyall v Solicitor-General (1997) 15 CRNZ 1 (CA) at 6.
11 Dalton v Auckland City [1971] NZLR 548 (SC) at 550.
12 Law Commission Suppressing Names and Evidence (NZLC R109, 2009) at [3.38].
warrant, that is to say it is disproportionate. It follows that the analysis of whether publication is likely to cause hardship which is undue will require consideration of competing interests.
[27] In the present context undue hardship will mean any hardship that is disproportionate to the purpose which justifies publication, namely the public interest in the open reporting of court proceedings and the right to freedom expression assured by the New Zealand Bill of Rights Act 1990.13 This is consistent with the approach under the Criminal Justice Act where the principle of open justice was always the starting point.14
Is the test satisfied in this case?
[28] As noted, the Judge’s suppression order extended to cover any relative of Mr Waititi’s family. There is no suggestion that any relative, other than the individual with whom this appeal is primarily concerned, whom I shall refer to as “X”, will suffer any particular hardship as a result of publication. Certainly any hardship they will suffer does not reach the standard of undue hardship.
[29] X is internationally renowned in his field. Because of the particular nature of his work, X’s continued success is strongly dependent on his personal reputation and standing. In the particularly competitive and image sensitive industry in which he is engaged, any taint can be fatal to ongoing work. This is not contested. X’s unchallenged statements to this effect in his affidavit are supported by letters from a number of industry participants, all of whom refer to the likely damaging effect which publication will have on X’s career and livelihood. The evidence satisfies me that if publication occurs it is likely to damage X’s reputation to such an extent that it will have a major, if not catastrophic, effect on his career in this industry. The Judge was persuaded that the degree of hardship likely to be suffered was extreme, not just undue.
[30] There is no doubt that the media interest in reporting X’s identity in connection with this case is simply because of his high international profile. X had
13 New Zealand Bill of Rights Act 1990, s 14.
14 R v Liddell, above n 9, at 546.
no involvement or participation in the trial, and there is no implication that he was in any way connected with Mr Waititi’s offending. Mr Stewart acknowledges that the public interest in the open reporting of court proceedings will not in any way be served by publishing X’s name or any other details that might lead to his identification. The principle of open justice is not engaged in this case. Here the balancing exercise requires weighing the harm that is likely to be suffered by X through publication against the right to freedom of expression.
[31] While freedom of expression is a fundamentally important right, it is not unlimited. There is limited public interest in the publication of X’s identity in connection with this case because he has no connection with it. While such publication would be potentially sensational, it does not justify the harm that X is likely to suffer as a result. In other words the likely hardship to X is excessive and disproportionate to the public interest and therefore amounts to undue hardship.
[32] I emphasise that this case must be distinguished from the usual run of cases where the applicant is in some way involved in the events giving rise to the trial or the trial itself. In such cases, the public interest in publication may be greater.
[33] For the reasons I have given, I am satisfied that X is likely to suffer undue hardship if his identifying particulars are published in connection with Mr Waititi’s conviction or sentencing. However, there is no evidential basis to justify extending the suppression order to include Mr Waititi’s other relatives.
Result
[34] I set aside the order made by Judge Bidois and replace it with an order pursuant to s 202(1)(c) of the Criminal Procedure Act 2011 forbidding publication of the name, address or occupation of X in connection with the conviction or
sentencing of Edward Taika Waititi.
M A Gilbert J
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