De Kort HC Auckland CRI 2010-404-12

[2010] NZHC 145

IN THE HIGH COURT OF NEW ZEALAND

AUCKLAND REGISTRY

CRI-2010-404-12

BETWEEN  MARCUS DE KORT

Appellant

ANDPOLICE Respondent

Hearing:         16 February 2010

Appearances:  B J Hart and A J Haskett for Appellant

S N B Winsett for Respondent

Judgment:      17 February 2010

JUDGMENT OF COOPER J

This judgment was delivered by Justice Cooper on

17 February 2010 at 3.00 p.m., pursuant to

r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Date:

Solicitors:

B J Hart, PO Box 47 016, Ponsonby, Auckland

Meredith Connell, Crown Solicitors, PO Box 2213, Upper Shortland Street, Auckland 1140

DE KORT V POLICE HC AK CRI-2010-404-12  17 February 2010

[1]      The appellant appeals against the decision of Judge Andree Wiltens, sitting in the Manukau District Court, refusing his application for interim suppression of name.  The application had been advanced under s 140 of the Criminal Justice Act

1985  and  relates  only  to  the  appellant’s  name  and  other  particulars  potentially leading to his identification.  It is sought that the order have effect only down to the conclusion of the defended hearing.

[2]           The offence alleged against the accused is that he drove a motor vehicle when the  proportion  of  alcohol  in  his  blood  exceeded  80  milligrams  of  alcohol  per  100 millilitres  of  blood,  contrary  to  s 56(2)  of  the  Land  Transport  Act  1998. It  was contended in the District Court, and again on appeal, that publicity concerning the charge  would  adversely  impact  on  the  appellant’s  reputation,  and  on  his  business affairs.  The basis of those contentions is the fact that the appellant is a director and shareholder  in  three  companies  which  operate  in  the  transport  industry.   His  roles include  operations  management,  customer  services,  sales  and  on  occasion  driving trucks.  Counsel contend that the transport industry is extremely competitive and one in which reputations are at a premium.  Similarly, road safety is a paramount concern in the industry and those dealing with transport operators expect them to operate in compliance with the laws relating to land transport.

[3]      It  has  also  been  suggested  that  because  the  appellant  suffers  from  elevated blood pressure, anxiety attendant on publication of his name would be deleterious to his health.

[4]      These  circumstances,  in  combination,  are  said  to  over-ride,  at  least  on  the interim  basis  for  which  suppression  is  sought,  the  presumption  of  openness  that generally applies to court proceedings.

The District Court decision

[5]      In the District Court, the Judge noted that the application was based on the claimed effect on the appellant’s business, and his high blood pressure. He continued at [4] and [5]:

[4]         The authorities on this subject make it far more difficult than that to obtain interim suppression of name.   There is the case of a doctor who was charged with indecent assault on a patient whose name was not suppressed by the Court of Appeal, even though  he  had  a  wife  and  children  and  his practice would suffer if the news got out. The threshold is therefore extremely  high. The  fact  that  you  have  high  blood  pressure  is  really  a commonplace occurrence and while it might be exacerbated by publication, there is medication that can be taken to deal with high blood pressure and as I understand your affidavit, you are already on some sort of medication.

[5]      In terms of your business, I find it very difficult to believe the fact that you might be charged with an  offence  of  driving  with  excess  breath alcohol would affect any client and thereby imperil your business or affect it

in any way.   In this day and age, I believe that most of our society accepts that criminal charges are laid and often not proved.   People wait until after

conclusion  of  these  matters  before  jumping  to  conclusion,  something  they may  not  have  done  in  earlier  times,  but  I  am  pretty  convinced  that  most people now know that an allegation is simply an allegation.

[6]      On this basis, he declined the application.

The appeal

[7]      The appellant is critical of the Judge’s statement at [5] that there was public acceptance that criminal charges are laid as an allegation, and that they would wait until the matter was concluded before reaching a conclusion.  Counsel submitted that the Judge’s reasoning failed to recognise that the presumption of innocence and the appellant’s  privacy  interests  had  to  be  weighed  against  the  principle  of  openness. They contend that it was not enough to speculate that the public would recognise and apply the presumption of innocence and that the enactment of s 140 of the Criminal Justice Act recognises that published allegations may not be treated judiciously by the public.  It was also contended that the Judge had given insufficient weight to the potential damage to the appellant’s business interests.

[8]      In advancing the appeal in this Court, the appellant has relied on his affidavit

of 20 January 2010.  In that affidavit he gave details of the three companies of which

he is a director. He recorded that his primary business was in the transport industry, noting that he employed 32 persons. One of the companies  operates 24 trucks in Auckland and four in Christchurch. There is an emphasis on the carriage of containers for sea and air freight. Another company  is  in  the  business  of  the distribution of goods. Another company owns  and  rents  commercial  properties  to

various tenants.   He expresses his opinion that as a director of the businesses it is imperative  that  his  reputation  remains  clear  from  any  “criminal  accusation”  and specifically any action “relating to the transport industry”.  He records that he is very concerned that any publication of his name would affect all of the businesses on an ongoing basis, and expresses the view that any level of publicity would  inevitably impact negatively them.

[9]      Insofar as his blood pressure is concerned, the appellant states in his affidavit that  he  suffers  from  increased  blood  pressure  if  the  stress  in  his  environment  is substantially increased  over a  short  period  of  time.   He expresses  the  opinion  that any  publication  would  cause  increased  stress  and  speaks  of  his  concern  about  the medical implications of publication.   He attached is a patient medical history form, evidently a print-out from his doctor’s records.  Counsel did not dwell on the details of  the  medical  history. I  note  that  the  most  recent  information  concerning  the appellant’s  blood  pressure  seems  to  be  from  23 November  2005. Three  readings were given for that day, the highest of which was 161 over 100.  The information is not  recent  and  although  it  might  be  described  as  elevated  at  the  time,  there  is  no medical evidence before the Court that suggests that his blood pressure would pose a particular difficulty.  Counsel did not place much emphasis on this aspect of the case, and I do not consider that it is at all significant in resolving the appeal.   I will not refer to it further.

[10]     For the respondent, Mr Winsett has opposed the application.  He submits that the basis upon which the application is advanced is insufficient.  He maintains in fact that there is no actual evidence before the Court that there will be any damage to any relevant interest of the appellant.

The law

[11]     Counsel referred me to a number of authorities in the course of argument and

it is not necessary to refer to all of them. In my view the relevant principles are to be found in the decisions of the Court of Appeal in R v Liddell [1995] 1 NZLR 538, Lewis v Wilson & Horton Ltd [2000] 3 NZLR 546, Procktor v R [1997] 1 NZLR 295

and R v B [2009] 1 NZLR 293. In Lewis v Wilson & Horton Ltd Elias CJ, for the

Court, said at [41]:

[41]     In  R  v  Liddell  [1995] 1 NZLR 538 at pp 546 – 547 this Court declined to lay down any code to govern the exercise of a discretion conferred by Parliament in terms which are unfettered by any legislative prescription. But it recognised that the starting point must always be the importance of freedom of speech recognised by s 14 of the New Zealand Bill of Rights Act 1990, the importance of open judicial proceedings, and the right of the media to report Court proceedings:

“What  has to  be stressed  is  that  the  prima  facie  presumption  as  to reporting is always in favour of openness.”

[12]     In the following paragraph, the  judgment  listed  a  number  of  factors  that would usually be taken into account. Plainly it is relevant to consider the seriousness of the offending (as Elias CJ noted, if the charge is trivial, particular damage caused by  publicity  may  outweigh  any  real  public  interest);   any  adverse  impacts  on  the prospects  for  rehabilitation; the  public  interest  in  knowing  the  character  of  the person  seeking  name  suppression,  (especially in  cases  involving  sexual  offending, dishonesty and drug use) and circumstances personal to the person appearing before the  Court,  family  members  and  those  who  work  with  him;  and  any  impact  upon financial and professional interests.   Where the  issue arises prior to trial, as in the present case, it is of course necessary to bear in mind the presumption of innocence, and the fact that the appellant intends to defend the charge.

[13]     At [43] the judgment emphasised the important issues at stake:

[43]     The Judge must identify and weigh the interests, public and private, which are relevant in the particular case. It will be necessary to confront the principle  of  open  justice  and  on  what  basis  it  should  yield.  And  since  the Judge is required by s 3 to apply the New Zealand Bill of Rights Act 1990, it will be necessary for the Judge to consider whether in the circumstances the order prohibiting publication under s 140 is a reasonable limitation upon the s  14  right  to  receive  and  impart  information  such  as  can  be  demonstrably justified in a free and democratic society (the test provided by s 5). Given the congruence of these important considerations, the balance must come down clearly in favour of suppression if the prima facie presumption in favour of open reporting is to be overcome.

[14]     The Court of Appeal’s decision in  Procktor  made it plain, at 298 that the principles set forth in R v Liddell were to be applied to the issue of name suppression

both before and after trial, and  there  is  nothing  in Lewis v Wilson & Horton  Ltd

which suggests a different approach.

[15]     Where, as in the present case, adverse financial consequences are relied on, it

is necessary to bear in mind that, as was noted in Lewis v Wilson & Horton Ltd at

[42], adverse personal and financial consequences as well as distress and embarrassment are the normal consequence of criminal proceedings. Consequently, for such considerations to justify a prohibition on the publication of  a defendant’s name,  some   damage   which   can   be   said   to   be   “out   of   the   ordinary   and disproportionate  to  the  public  interest  in  open  justice  in  the  particular  case”  is necessary to displace the presumption in favour of reporting.

[16]     Again, in the context of a pending charge, the “damage” that might arise must

be  less  than  would  follow  publication  after  conviction,  because  many members  of the  public  will  appreciate  that  the  charge  is  yet  to  be  proved.   That  would  not  of course apply universally, and in some cases it will be possible to postulate real and lasting  harm  to  a  person’s  reputation  or  other  interests  arising  out  of  pre-trial publicity even though an acquittal is the ultimate outcome:   see the observations of Baragwanath J in R v B [2009] 1 NZLR 293 at [41].

[17]     Another point that should be recognised is that where the issue arises pre-trial the presumption of innocence must be taken into account.   This was emphasised in Procktor, Thomas J observing at 298 that the weight to be given to it will depend on the particular circumstances of the case. While it deserves consideration in the present context, I doubt that it can have a great deal of weight bearing in mind that the charge is based upon an analysed amount of alcohol in the appellant’s blood.

[18]     This  is  not  a  case  where  it  can  be  said that  there  is  any issue  that  pre  trial publicity would have an impact on any issue concerning the appellant’s right to a fair trial.   There will be no jury here.   There are no  severance or other pre-trial issues needing  to  be  dealt  with.        The  only  issue  that  can  be  advanced  in  support  of suppression  is  that  on  which  the  appellant  focuses,  namely  potential  adverse financial  impact  on  his  business  affairs  and  consequently himself,  personally,  as  a result of the publicity.  The argument, of course, assumes that there will be publicity

and I deal with it on that basis, however unlikely it may be that a common or garden charge of excess blood alcohol will attract any media or other interest.

[19]     I am not satisfied on the basis of the evidence upon which the appellant relies that there will in fact be any substantial adverse affect as a consequence of any such publicity. The appellant’s affidavit simply makes assertions and records his fears as

to  what  might  occur. However,  I  consider  that  it  is  inherently  implausible  that members of the public who might otherwise have chosen to do business with one of the appellant’s companies would be persuaded not to do so or to cease doing so as a consequence  of  knowledge  that  he  was  subject  of  a  charge  of  driving with  excess blood  alcohol.        I  consider  also  that  the  suggestion  that  his  commercial  property interests might be adversely affected is fanciful.

[20]     While it might be possible, pointing simply to the words used by the Judge,

to criticise his decision on the basis that it did  not  on  its  face  show  a  thorough balancing of the relevant issues, in my view that would be unrealistic and it would ignore the context. District Court Judges have to make such decisions in the context

of full lists and with little time available for the purpose.   It is understandable if the

Judge expressed himself shortly in the context of this case, where it is really difficult

to see how there is any substantial issue of an impact arising from the nature of the charge.

[21]     There is a paradox that affects these cases inasmuch as, while it can be said that a charge such as excess blood alcohol, is towards the lower end of the scale and often  therefore  not  significant  in  terms  of  the  Bill  of  Rights  Act  principles  that underpin  the  right  of  the  public  to  know  what  is  happening  in  the  Courts,  it  can equally be said that the implications of publication are also not significant.  Where it cannot  be  said  that  there  would  be  a  significant  adverse  impact  arising  from publication, it is necessary to go back to the starting point which essentially leaves the choice as to what is published or what is not to the news media.  As was said in Lewis  v  Wilson  &  Horton  Ltd  at  [41]  the  starting  point  must  always  be  the importance of freedom  of speech, of open  judicial proceeding and  the  right of the media to report.

[22]     In  my  view,  the  appellant  cannot  demonstrate  the  possibility  of  damage which  is  “out  of  the  ordinary  and  disproportionate  to  the  public  interest  in  open justice” such as would justify the making of an order prohibiting publication of the appellant’s name under s 140 of the Criminal Justice Act.

[23]     The appeal is dismissed.