Byrne v Police

[2013] NZHC 3416

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2013-404-000319 [2013] NZHC 3416

BETWEEN  MICHAEL BYRNE Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:                   6 December 2013

Appearances:           R M Mansfield for Appellant

W P Cathcart for Respondent

Judgment:                17 December 2013

JUDGMENT OF COURTNEY J

This judgment was delivered by Justice Courtney on 17 December 2013 at 12.00 noon

pursuant to R 11.5 of the High Court Rules

Registrar / Deputy Registrar

Date………………………..

BYRNE v NZ POLICE [2013] NZHC 3416 [17 December 2013]

Background

[1]      The appellant, Michael Byrne, stood trial in the District Court at Auckland on six counts of selling cocaine.  At the end of the Crown case, Judge Moses made a finding under s 9 of the Criminal Procedure (Mentally Impaired Persons) Act 2003 (CPMIPA) that, on the balance of probabilities, Mr Byrne had been involved in the offending.1   The Judge later held that Mr Byrne was not fit to stand trial on account

of  his  medical  and  psychiatric  conditions,  including  dementia.2      He  discharged

Mr Byrne under s 25(1)(d) of the CPMIPA and stayed the proceedings against him.

[2]      Prior to becoming ill Mr Byrne ran a gymnasium in Auckland.  It is now run by his wife, though Mr Byrne still works in it part-time. Three of Mr Byrne’s friends have  put  money  into  the  business.     Mr  Byrne  applied  for  permanent  name suppression  in  order  to  protect  his  family’s  source  of  income  and  his  friends’

investments.  Judge Moses refused the application3.  Mr Byrne appeals the decision.

[3]      The appeal is brought pursuant to s 115C Summary Proceedings Act 1957. Collins J recently summarised the approach to name suppression appeals in JR v Police and I gratefully adopt his summary:4

[7]       Name suppression appeals are conducted by way of rehearing.5    In Austin, Nichols & Co Inc v Stichting Lodestar6 the Supreme Court held that when the High Court conducts an appeal from a decision of a lower court by way of rehearing the High Court must reach its own views on the merits of the case and reach its own independent assessment of the merits of the appellant’s position in order to truly conduct an appeal by way of rehearing. However, in May v May7 the Court of Appeal held that in relation to appeals for name suppression an appeal should only be allowed if the District Court Judge made an error of principle, failed to consider all relevant matters, took into account irrelevant matters, or came to a conclusion that was plainly wrong.   The approach taken by the Court of Appeal in May v May was endorsed  by  the  Supreme  Court  in  Rowley  v  Commissioner  of  Inland

1      R v Byrne (Ruling 7) DC Auckland CRI-2010-092-15204, 8 October 2013.

2R v Byrne (Ruling 8) DC Auckland CRI-2010-092-15204, 8 October 2013 and R v Byrne DC Auckland CRI-2010-092-15204, 25 October 2013.

3      R v Byrne DC Auckland CRI-2010-092-15204, 25 October 2013. The decision to refuse name suppression was made under the Criminal Justice Act 1985. The Criminal Procedure Act 2011

does not apply.

4      JR v Police [2012] NZHC 3091.

5      Summary Proceedings Act 1957, s 115C.

6      Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141.

7      May v May (1982) 1 NZFLR 165 (CA).

Revenue.8    Thus, this appeal is to be determined on the basis of the May v

May standards.

[4]      The grounds of appeal are that:

(a)      The Judge accorded too much weight to Mr Byrne’s involvement in the offending, given that this finding was on the balance of probabilities and Mr Byrne has been discharged;

(b)The Judge treated as relevant the effect of non-publication on  other gyms without any evidential foundation;

(c)      The Judge did not put sufficient weight on the effect of publication on Mr Byrne’s health, financial position and the financial interests of his family and investors.

District Court decision

[5]      Judge Moses began his consideration of the name suppression application by considering the submission that Mr Byrne had  not been convicted and that the finding of his involvement in the offending was made on the balance of probabilities. Acknowledging this to be so, the Judge nevertheless approached the issue on the usual principles, citing the Court of Appeal’s decision in Erwood v Ministry for Social Development.9

[6]      Mr Erwood had been found to be unfit to stand trial.   The District Court Judge found that on the balance of probabilities, he had been involved in the offending under s 9 CPMIPA and declined the application for name suppression. Miller J dismissed the appeal to the High Court, agreeing with the District Court that the issue of name suppression where a person had been found to have been “involved” in offending was approached in the same way as when a person was

found guilty.   The detrimental effect of publication on his welfare was only one

8      Rowley v Commissioner of Inland Revenue [2011] NZSC 76 at [4]-[5].

9      Erwood v The Ministry of Social Development [2010] NZCA 619. See also R v Scipio [2012] NZHC 1483.

consideration to be weighed against the public interest in open justice.  The Court of

Appeal agreed:10

In the present case, it would be necessary for Mr Erwood to establish that cases dealt with as his was under s 9 and 25(1)(d) of the CP (MIP) Act should form an exceptional class of case obliging the Court to grant name suppression.  Such an argument is untenable for a number of reasons.  First, there is no provision in the CP (MIP) Act to that effect.   Second, a broad general rule in those terms would plainly be contrary to the case by case balancing of relevant considerations with the starting point of open justice which flows from this Court’s previous decisions.   Third, the proposition would be contrary to the stance adopted in other cases involving persons suffering from mental illnesses.

[7]      In  accordance  with  Erwood  Judge  Moses  approached  the  application  on general principles.11     He considered the seriousness of the offending, the public interest  in  knowing  the  character  of  the  person  seeking  name  suppression, Mr Byrne’s medical problems and the impact on his family.  In relation to the impact on the business the Judge said:

[28]      … It is submitted that by publishing your name and the name of your business, your business which has been providing income for you and your family will be adversely affected and that you would lose goodwill that is attached to the business.

[29]     Mr  Byrne,  I  find  that  to  be  simply  a  consequence  of  your involvement in serious offending and is a consequence of decision that you have decided to take or not take over the last two years.  I have no direct reports showing the current state of the business and its financial viability and I am making this ruling the absence of any such reports.  I must say, in any event, it would be my view that whilst I accept that an effect on your business is a consequence of lifting named suppression it would not amount to  extreme  hardship  such  that  permanent  name  suppression  should  be granted but is rather, as I say, a natural consequence of your involvement and my finding of involvement in these offences.

[8]      The Judge concluded that the consequences to Mr Byrne, his family and business would not cause such hardship as to justify preventing the reporting of his name and the name of his business.

The appeal

The weight to be given to the finding of involvement under CPMIPA

10     Erwood at [38].

11     Lewis v Wilson & Horton Ltd [2000] 546.

[9]      Although  Mr  Mansfield,  for  Mr  Byrne,  expressed  disagreement  with  the Erwood approach, he accepted that the Judge was bound to approach his task in accordance with it, and apply the usual principles in assessing an application for name suppression.   Mr Mansfield also accepted that Erwood was binding on this Court, so any invitation to depart from that approach would be declined.

[10]     Mr Mansfield, for Mr Byrne, however, urged on me that the Judge was in error in not giving greater weight to the fact that the finding against Mr Byrne was on the balance of probabilities and that Mr Byrne was effectively denied that opportunity to defend the allegations.  He argued that Mr Bryne would undoubtedly suffer the stigma of being labelled a drug dealer despite not being convicted.  Where there has been no conviction Mr Mansfield said that there should be no publication where that would amount to a sanction.

[11]     The risk with this approach is that it would mean that most, perhaps all, those in Mr Byrne’s position could expect name suppression simply as a result of the weight given to these factors.  That would be contrary to what the Court of Appeal has stated to be the right approach. This ground must therefore fail.

The impact on other gyms

[12]     With the exception of his criticism regarding the Judge’s concern about the impact on other gyms, Mr Mansfield accepted that the Judge had considered the relevant factors in an orthodox manner; the importance of open justice, the seriousness of the offending, the public interest in knowing what had been going on at Mr Byrne’s gym, the impact on Mr Byrne and his family, the impact on his business were all taken into account.  However, the Judge also identified as relevant the fact that interim name suppression had “cast a cloud over other gyms and other gyms owners and it is ... in the public interest for the public to know” of Mr Byrne’s involvement and the name of his business.

[13]     The  fact  that  name  suppression  may  result  in  suspicion  falling  on  other similar businesses is a relevant factor to take into account when assessing the public

interest in publication.12    However, Mr Mansfield said that there was no evidence that interim name suppression had cast suspicion over other gyms or affected their businesses and the Judge therefore erred in according weight to this factor.

[14]     There is no merit in this submission.  The prevalence of gyms in Auckland is so well-known and speculation as to which gym was being used for drug dealing so likely that the Judge did not require an evidential foundation for his observation.  I find no error in the Judge’s approach or conclusion on the material before him.

The effect of publication on Mr Byrne’s health, family and on the business

[15]     Mr  Mansfield  was  critical  of  the  Judge’s  statement  that  the  effects  of publication on Mr Byrne’s family and business were “simply a consequence” of Mr Byrne’s  involvement  in  the  offending.     Mr  Mansfield  submitted  that  this statement indicated a view by the Judge that Mr Byrne should be sanctioned or punished for his conduct and that publication would be such a sanction.  As a result, the Judge erred in putting too much weight on  Mr Byrne’s involvement in the offending and not enough weight on the likely effect of publication.  Mr Mansfield argued that the effect of publication could not be considered a natural or proper consequence of a finding of involvement where a defendant was unfit to stand trial and therefore unable to offer a defence.  This submission significantly overlaps with the earlier submission that I have rejected.

[16]     Nor do I consider that the Judge was wrong in taking the view that the adverse effects of publication are really a consequence of the offending.  The point is whether the effect of the publication is such as to displace the presumption in favour of reporting, as Elias CJ observed in Lewis v Wilson & Horton Ltd:13

Circumstances personal to the person appearing before the Court, his family or those who work with him and impact upon financial and professional interests. As it is usual for distress, embarrassment and adverse personal and financial consequences to attend criminal proceedings, some damage out of the ordinary and disproportionate to the public interest in open justice in the particular case is required to displace the presumption in favour of reporting.

12     Lewis v Wilson & Horton Ltd [2000] 3 NZLR 546 (CA) at [42]; W v R [2013] NZHC 489;

Benjamin v R HC Auckland CRI-2010-404-466,1 December 2010.

13     Lewis v Wilson & Horton Ltd above n12.

[17]     This ground therefore fails.

[18]     When  Judge  Moses  made  his  decision  he  noted  that  he  did  not  have information  about  the  financial  affairs  of  the  business.    Mr  Mansfield  has  put material on the issue before me and I therefore turn to consider whether the Judge’s decision could have been different with the benefit of that information.

[19]     Ms Pedder, the chartered accountant who acts for Mr Byrne and for the business, has provided a letter which addresses the likely effect of publication on the business.    She advises  that  since the start  of the proceedings  there has  been  a significant decrease in turnover and profits, with devastating financial consequences for Mr Byrne and his family.  However, she considers that the name of the business retains an element of goodwill, with many current clients associating Mr Byrne’s name with that of the business.  As a result, Ms Pedder is concerned that publication would cause further difficulties for the company in terms of losing current clients and being unable to attract new ones.   A decrease of as little as six per cent in turnover will result in the company making a loss.

[20]     Three  people  who  have  invested  money  in  Mr  Byrne’s  business  have provided affidavits.  A 43 year old businesswoman, who has known Mr Byrne for about seven years, invested $73,745.38 in the business.  Most of this had previously been  invested  with  an  ASB  Group  investment  fund.    She  is  worried  that  if Mr Byrne’s name is published in connection with the charges the gym will lose members and her investment will be lost.

[21]     A 51 year old manager who has known Mr Byrne for about 11 years and first met him by attending his previous gym invested $55,105.76 in the gym.   He is worried that publication of the allegations will cause members to resign from the gym, loss to the company and the consequent loss of his investment.

[22]     A 50 year old manager who has known Mr Byrne for about eight years lent him $16,993.00 for the gym.  This investor is worried because the gym relies heavily on Mr Byrne’s personality and good reputation and that if that suffers his investment will not be paid back.

[23]     One cannot help but have sympathy for Mr Byrne’s family who face financial hardship and for the investors who face financial loss in the business being affected. However the question remains whether those effects are sufficient to displace the presumption of open justice.  The business seeks to retain its clients and attract new clients based, in part, on the reputation that it has previously enjoyed. Knowledge of Mr Byrne’s involvement in the offending may well affect the level of interest from existing and prospective clients.  Of course, many customers will base their decision on the facilities and services provided and may not be put off by offending which took place some three years ago.  Whatever the response is, however, I consider that both existing and prospective clients are entitled to know what happened.  The likely consequences of publication are not so out of the ordinary as to justify displacing the interest of those members of the public in knowing.

Result

[24]     I am satisfied that Judge Moses did not make any error in his assessment of the relevant factors.   Nor does the new information provided justify a different

outcome. The appeal is dismissed.

P Courtney J