EP HP AND THE KING

[2023] NZHC 1573

NOTE: ORDER FOR THE CONTINUATION OF THE PRESENT INTERIM SUPPRESSION ORDER UNTIL THE APPEAL IS FINALLY DETERMINED (SEE PARA [56] OF THIS JUDGMENT).

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2022-004-1470

[2023] NZHC 1573

BETWEEN

EP

First Applicant

HP
Second Applicant

AND

THE KING

Respondent

Hearing:	14 June 2023
Appearances:	S L McColgan for Applicant E T Fletcher for Respondent
Judgment:	23 June 2023

JUDGMENT OF ANDERSON J

This judgment was delivered by me on 23 June 2023 at 2.00 pm.

………………………………

Registrar/Deputy Registrar

Solicitors:

Kayes Fletcher Walker, Auckland

EP v R [2023] NZHC 1573 [23 June 2023]

Introduction

[1]        Mr P faces one charge of possession of methamphetamine for supply and one charge of participation in an organised criminal group.

[2]        He applies to extend interim name suppression granted in the Manukau District Court on 2 March 2022. Mr P’s wife, Mrs P, also applies in her own right for orders forbidding publication of her name.1 Mr and Mrs P seek suppression until the start of the trial when their counsel accepts the orders would need to be reassessed. The Crown opposes the applications.

[3]        The applications are based on the submission that publication of Mr P’s name would cause undue hardship or extreme hardship to Mrs P as a person connected to Mr P.2 Mrs P works at two medical centres in Auckland. At Centre A she is currently the senior registered nurse. At Centre B she is part way through an internship to gain registration as a nurse practitioner under the supervision of her employer there. As a requirement of the internship, Mrs P is receiving mentoring from the senior doctor at Centre A and has obtained his commitment of employment upon registration. The foundation for the applications is the impact of publication on Mrs P’s career and employment.

Summary of allegations against Mr P

[4]        Mr P and nine co-defendants face charges arising out of Operation Weirton, which centred on the interception of a consignment of 613 kilograms of methamphetamine imported from Malaysia. In late February 2022, the police and the New Zealand Customs Service intercepted the consignment containing 27 boxes each holding 22-23 square shaped items declared as PVC edging. Each item allegedly contained approximately one kilogram of methamphetamine.

[5]        The police summary of facts alleges that the consignment was collected by two of the defendants in a rental truck and transported to an address in Weymouth where

1      Criminal Procedure Act 2011, s 202(2)(a). In written submissions filed in advance of the hearing the Crown contended that there was no separate application by Mrs P. At the hearing, Mr Fletcher advised that the Crown did not pursue this point.

2      The applications are supported by an affidavit of Mrs P sworn the day before the hearing.

Mr P and another defendant, Mr Ula, were waiting. Five of the 27 boxes were then removed from the truck and transported to an address in Manurewa, with Mr P following in a van. Mr P and Mr Ula then allegedly began transferring the remaining boxes within the shipment from the rental truck into the van at which point the police arrested them. Between the two vehicles there were 17 boxes stacked in the rear of the van, one was on the concrete to the rear of the van and four boxes in the truck.

Statutory context

[6]By s 200 of the Criminal Procedure Act 2011 (CPA):

(1)A court may make an order forbidding publication of the name, address, or occupation of a person who is charged with, or convicted or acquitted of, an 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 extreme hardship to the person charged with, or convicted of, or acquitted of the offence, or any person connected with that person; or

(b)cast suspicion on another person that may cause undue hardship to that person; or

…

(f) lead to the identification of another person whose name is suppressed by order or by law; or

…

(4)Despite subsection (2), when a person who is charged with an offence first appears before the court the court may make an interim order under subsection (1) if that person advances an arguable case that one of the grounds in subsection (2) applies.

(5)An interim order made in accordance with subsection (4) expires at the person’s next court appearance, and may only be renewed if the court is satisfied that one of the grounds in subsection (2) applies.

[7]By s 202 of the CPA:

(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 –

…

(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

…

(3)Subsection (1) applies whether or not the court has made an order under section 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 may be prohibited only by an order made under section 200) or the nature of the charge.

Grounds for seeking suppression orders

[8]        Mrs P applies for name suppression under s 202(2)(a) on the ground that publication of her name would be likely to cause “undue hardship”3 to her as a person connected to Mr P.

[9]Mr P’s application relies on three alternative grounds:

(a)That publication would be likely to cause “extreme hardship” to Mrs P.4

(b)That publication would be likely to “cast suspicion on [Mrs P] that may cause undue hardship [to her]”.5

(c)That publication would be likely to lead to the identification of Mrs P, being a “person whose name is suppressed by order or by law” by virtue of the order I will have made under s 202.6

3      Section 202(2)(b).

4      Section 200(2)(a).

5      Section 200(2)(b).

6      Section 200(2)(f).

Approach to ss 200 and 202

[10]      Applications under ss 200 and 202 involve a two-step process.7 The Court first considers whether it is satisfied that any of the threshold grounds have been established. At the second stage, the Court then considers whether name suppression should be granted in the Court’s discretion.

[11]      At the threshold stage, the Court must be satisfied that “publication would be likely” to result in one of the listed consequences. The word “likely” in this context means “a real and appreciable risk”8 or a “real risk that cannot be readily discounted”.9

[12]      The likely consequences relied on by the applicants involve “undue hardship” or alternatively “extreme hardship.” In Robertson v Police, the Court of Appeal held:10

[48]      As regards the level of hardship required by the phrase “extreme hardship”, we consider it clear beyond argument that it connotes a very high level of hardship. The word “hardship” on its own means “severe suffering or privation”. The addition of the qualifier “undue” in s 200(2)(c) indicates that something more than hardship simple is required, while the word “extreme” in s 200(2)(d) indicates something more again.

[49]      An assessment of whether the contended hardship is “extreme” cannot take place in a vacuum. It is self-evidently contextual and in our view must entail a relative comparison between the contended hardship and the consequences normally associated with a defendant's name being published. It must be something beyond the ordinary associated consequences. Accordingly, it was in our view no error for Gendall J to take into account, for example, that the hardship to Mrs Robertson's family was simply a natural consequence of her offending. As the Judge put it, the hardship suffered by the family “simply [did] not fall outside the ordinary experience”.

(footnotes omitted)

[13]      “Undue hardship” has also been held to entail “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 of expression”.11

7      Robertson v Police [2015] NZCA 7 at [39]; Beacon Media Group Ltd v Waititi [2014] NZHC 281.

8      Wallis v Police [2015] NZHC 2904 at [22].

9      Beacon Media Group Ltd v Waititi, above n 7, at [17] and see Huang v Serious Fraud Office [2017] NZCA 187 at [9]–[10]; LF v R [2022] NZHC 2547 at [44]–[46].

10     Robertson v Police, above n 7.

11     Beacon Media Group Ltd v Waititi, above n 7, at [27].

Mrs P’s situation

[14]      Mr and Mrs P have been together for four years. They were married on 12 May 2023, over a year after interim name suppression had been granted in favour of Mr P. The Court was told that Mr P’s family name is unusual. All others of that name in New Zealand are related to him. Mrs P deposed that since her marriage she has started to change her name in her various roles from her maiden name, Ms S.

[15]      Mrs P is a committed nurse with 10 years’ experience following completion of her Bachelor of Nursing in 2013. Her background includes being nominated for Young Nurse of the Year Award in 2015. Mrs P has now completed her Masters in Nursing. She has been studying for 11 years.

[16]      I referred earlier to Mrs P’s current roles at two medical centres. At Centre A she is the senior registered nurse. Mrs P’s work includes full triage consult, diagnosis and generating prescriptions for a doctor’s sign off. It also includes mentoring and educating other nurses. Mrs P has worked at Centre A for five and a half years. Mr P is known to Mrs P’s colleagues at Centre A through social events and the like.

[17]      At Centre B, Mrs P is a nurse intern under a full scholarship as part of the nurse practitioner programme. Mrs P gained entry to the programme this year. As at 13 June 2023 she had completed 100 of the 500 hours required.

[18]      Mrs P emphasised that on completion of the internship Mrs P will be qualified for registration as a nurse practitioner in family health where she will have her own patients and greater responsibility including prescribing controlled drugs. She further said that in the meantime, as an intern, her responsibilities include prescribing drugs under the supervision of a senior doctor.

[19]      Mr P is not known to Mrs P’s employer and colleagues at Centre B. However, Mrs P’s married name is on university internship forms lodged with Centre B.12 Mrs P deposed that Centre B is situated near the place where the consignment of drugs was

12     This was not expressly stated in Mrs P’s affidavit but was confirmed by Mrs P at the hearing (following confirmation from the Crown that it did not object to that course).

intercepted and that her workmates were discussing the most recent appearances in the High Court on the matter which were reported in the media.

Consequences – Mrs P’s concerns

[20]      In her affidavit, Mrs P sets out her primary concerns as to the consequences of publication:

(a)Her employers will revoke their commitment to support her internship and the commitment of employment at the end of her training.

(b)If either of her employers learn of the connection to Mr P and of his alleged offending, they would be quick to report this to the Nursing Council. She would be investigated with the possibility of having her practising certificate taken away.

(c)Mrs P’s connection to Mr P and the serious allegations against him would bring into question Mrs P’s integrity in her role with vulnerable people and administration of controlled substances. This would lead to a loss of trust by her work colleagues and Mrs P would in turn lose confidence dealing with controlled substances around her work colleagues.

[21]      Mr McColgan, counsel for Mr and Mrs P, contended that the consequences above would constitute both undue hardship and extreme hardship within ss 200 and

202. He said that there was a close link between the charges against Mr P involving illicit controlled drugs and Mrs P’s role and internship associated with prescribing controlled drugs. Mr McColgan submitted that it was difficult to postulate worse optics for a medical centre.

[22]      I was referred to downstream consequences if Mrs P lost her present employment and intern opportunities. Mrs P said that she covers the remainder of the couple’s expenses beyond contribution from Mr P’s minimum wage job. Mrs P is paid well above the multi-employer collective agreement, and she says she would not get

her current wage elsewhere. Mrs P deposed that registration as a nurse practitioner will triple Mrs P’s hourly rate.

Other circumstances relied upon

[23]      Mr McColgan submitted that Mr P’s alleged involvement was only on the fringe of the operation. He referred to a lack of evidence against Mr P. He also referred to Mr P’s alleged involvement in the drug operation as less relative to other defendants. For example, he said the police summary of facts identified more material intercepted on the phones of others than Mr P. It was submitted that any publication would tar Mr P with the same brush as those with a greater evidential case against them.

[24]      Mr Fletcher for the Crown disputed Mr McColgan’s characterisation of Mr P’s involvement as “fringe”. He also pointed to an intercepted exchange in the summary of facts that he said demonstrated Mr P knew what was in the boxes he was alleged to have been moving. Mr McColgan’s submissions were directed in part to the strength of the Crown case. That is not relevant to this application. Mr P’s innocence is presumed for the purposes of the ss 200 and 202 assessment.13 Nor is it relevant to whether threshold grounds are met that Mr P may be alleged to have a lesser role than others, although this would be relevant if I reached the second stage of the enquiry.14

Threshold

[25]These applications fail because none of the threshold grounds are established.

[26]      First, I consider the threshold test for Mrs P’s application under s 202(2)(a) (undue hardship to Mrs P). I then consider the threshold grounds on Mr P’s applications under s 200(2)(a) (extreme hardship to Mrs P) and s 200(2)(b) (casting suspicion causing undue hardship to Mrs P).

[27]      Because I have found that the threshold for Mrs P’s application is not met, I do not reach Mr P’s application under s 200(2)(f), which relies upon an order having been made suppressing Mrs P’s name. However, I go on to consider the interplay between

13     Jefferies v Police [2014] NZHC 2379 at [16]–[18].

14 At [25].

these two applications in the event I am wrong in my conclusions on the s 202 threshold.

Section 202(2)(a)—undue hardship

[28]      There are two aspects to consider. The first is whether the consequences constitute undue hardship. The second is whether I am satisfied that there is a likelihood of those consequences occurring.

[29]       The first two consequences relied upon (outlined at [20]) are specific effects on Mrs P’s internship, registration and employment. While negative financial consequences are ordinary consequences for the partner of someone accused of serious offending, Mrs P says it is likely she will lose her progression to becoming a registered nurse practitioner and her current job. She says she may even lose her registration as a nurse. I accept that were these consequences to occur, they would constitute undue hardship to her.

[30]      Although I acknowledge that Mrs P is genuine in her concern about these potential consequences, I must consider the likelihood that they will occur.

[31]      Mrs P’s affidavit confirms that she has a commitment from the senior doctor at Centre A for employment upon registration. She has been an employee there for over five years. She has clearly been independently assessed by her employer as worthy of employment at the end of her internship. Her affidavit confirms that she is a talented and committed nurse. Mrs P has also been awarded a fully funded internship which she is some way through. She has developed the confidence of her colleagues to date. I am not satisfied that there is any real or appreciable risk that the allegations against Mr P could realistically found a basis for interference with either the internship or commitment of employment. I was not provided with any independent evidential support for that proposition.

[32]      Nor was I provided with any objective basis for Mrs P being reported to the Nursing Council or of her registration being taken away. That seems inherently unlikely to me on the grounds of charges being laid against Mr P. I was not provided

with any specifics of how that would be possible absent an assertion of wrongdoing by Mrs P herself.

[33]      Mr McColgan suggested that in the “real world” all the consequences are likely. I do not accept that I can rely on this speculation, certainly not in the absence of any detailed submissions or evidence on how they could occur in the specific scheme of the internship regime and despite Mrs P’s background and experience.

[34]      Mr McColgan also said from the bar that the potential consequences are so sensitive that it was not practicable to obtain any independent affidavit support. Even if comment on an anonymised scenario could not be obtained, further details of the internship and commitments within the regime required no such affidavit.

[35]      Accordingly, I am not satisfied that loss of Mrs P’s nursing registration, internship and commitment to employment are consequences that are likely to occur for the purposes of s 200(2)(a).

[36]      The third consequence Mrs P relies upon is that her name and current role would be put into disrepute, leading to a loss of trust by her work colleagues and a corresponding loss of confidence in dealing with controlled substances around her work colleagues.

[37]      Mrs P’s role as an intern nurse practitioner has a relation to the allegations Mr P is facing given that she is involved in prescribing controlled drugs. However, I do not agree that there is a real and appreciable risk that this “link” will result in a loss of trust and confidence by Mrs P’s colleagues. Mrs P has already developed their trust, confidence and goodwill based on her own attributes and talents. I do not accept that the charges against Mr P would so significantly undermine that trust and confidence as to constitute undue hardship.

[38]      I accept that Mr P’s alleged involvement in the drug operation will cause significant embarrassment to Mrs P, especially given her current profession. However, embarrassment is a usual consequence. I do not consider the heightened

embarrassment here creates undue hardship. It is not sufficiently greater in degree than the usual consequences for a partner of a defendant facing serious charges.

Section 200(2)(a) – extreme hardship

[39]      I have found that a likelihood of undue hardship has not been established. It follows that there is no likelihood of extreme hardship. If I am wrong on the prospects of the consequences occurring, I am not satisfied that the consequences are so severe as to constitute extreme hardship. That is a very high test. Here, Mrs P would remain able to be employed as a registered nurse. It is not a situation as in P (CA170/2018) v R (discussed below) where the connected person was working in a small community in the mental health sphere and would be unlikely to re-join the workforce.15

Section 200(2)(b) – “cast suspicion … that may cause undue hardship”

[40]      In the alternative, counsel for Mr P contended that a link between the allegations against Mr P (possession of controlled drug for supply) and Mrs P’s line of work as a nurse and nurse practitioner intern will cast suspicion on her. This ground for continuing name suppression was not strongly argued. I accept the Crown’s submission that there is no appreciable risk that suspicion of involvement in the alleged offending may be cast upon Mrs P if Mr P’s name is publicised.16 The mere fact that Mrs P’s role includes learning to prescribe controlled drugs provides no objective basis for implicating her in her husband’s alleged offending.

Principal cases relied on by counsel on the threshold

[41]      Mr McColgan referred me to B (CA860/2010) v R17 and P (CA170/2018) v R. The Crown referred me to R v Wilson.18 The cases demonstrate that it will be a question of degree on the facts as to whether the circumstances relied upon meet the threshold grounds.

15 P (CA170/2018) v R [2018] NZCA 302.

16 Compare Jefferies v New Zealand Police, above n 13, at [36] where the Court rejected that an objective and reasonable person reading publicity about the defendant and the charges of drug possession he was facing would conclude that his partner in the legal firm was implicated.

17 B (CA860/2010) v R [2011] NZCA 331.

18 R v Wilson [2018] NZHC 1778.

B (CA860/2010) v R

[42]      This was a case under s 140 of the Criminal Justice Act 1985 which did not have statutory thresholds.19

[43]      Mr B had pleaded guilty to 21 charges of being in possession of objectionable material. He had an unusual surname well known in the district where his separated wife and children lived. The Court of Appeal found that publication of Mr B’s name would cause incalculable hurt to individual family members and the family group.

[44]      I accept the Crown’s submission that the determinative factors for the Court (publication seriously compromising the ability of Mrs B and her daughters to do their jobs as public-facing court staff and potential to seriously disrupt the eight year old’s development) were of materially different degree to those present here.

P (CA170/2018) v R

[45]      The accused sought suppression pending trial on historic charges of rape and indecent assault against members of his extended family. His wife of 40 years was a registered medical professional specialising in mental health with clinical and teaching roles in their small community.

[46]      There had been a recent history of paedophilia in the area that had garnered strong sentiment amongst the small local population. The Court characterised the case as involving a “particular and unique set of circumstances” justifying a conclusion of extreme hardship: it was unchallenged by the Crown that the wife would need to give up her job (and would be unlikely on account of her age to resume it) due to the stigma of the alleged offending.20 Her clients were all locals, and she would be identified as supportive of him. She would lose all credibility as a mental health professional.

[47]      In my view, the outcome in P (CA170/2018) v R is specific to the small community in which the offender and his wife lived and the particular background

19     In Beacon Media Group Ltd v Waititi, above n 7, at [5] Gilbert J noted the need for some caution in reference to cases under the previous Act when applying the replacement provisions.

20     P (CA170/2018) v R, above n 15, at [16].

context. Moreover, I do not consider the significant consequences relied upon by Mrs P  are  likely,  as  compared  with  consequences  that  were  not  contested  in   P (CA170/2018) v R.

R v Wilson

[48]      The defendant was a doctor who had pleaded guilty to multiple counts of making an intimate recording including at his home and at the hospital. Dr Wilson’s wife was also a registered medical practitioner and shared her husband’s name. She applied for continued suppression on the basis that publication was likely to cause extreme hardship to her and their children.

[49]The Court considered that:

[36]      It is difficult to see how any objective and responsible employer or future employer of Dr Juliet Wilson would think ill of her because of her husband’s offending. It is plain that she has done nothing wrong and should not suffer prejudice in her professional life over the unfortunate events that have beset her and her family.

[37]      Dr Wilson will undoubtedly suffer humiliation and significant distress if her husband’s name is published in connection with his offending. Those consequences, however, fall well short of extreme hardship set out in s 200(2)(a) of the Act.

[50]      The nature of Dr Wilson’s medical position/practice was not specified in the judgment. Mr McColgan submitted that Mrs P’s internship including learning to prescribe drugs means that her role is so linked with the alleged offending that the observations made by the Court have no similar application here. It will be evident from my analysis above that I disagree. As in R v Wilson, I reject that any objective and responsible employer will think ill of Mrs P because of her husband’s alleged offending; or take the steps Mrs P considers will flow simply on the basis of the “optics”.

[51]      For the above reasons the applications fail. However, I nonetheless consider whether I would have exercised my discretion had the threshold been established under s 202.

Interconnection between ss 200 and 202

[52]      The focus of the oral argument was on Mrs P’s application under s 202 as the route whereby I would then order continuing suppression of Mr P’s name under s 200(2)(f). That reflects that the threshold under s 202 requires the lesser standard of “undue hardship” as opposed to “extreme hardship” required under s 200(2)(a) to a connected person. The interplay between these sections has not fully been worked through in the case law.21

[53]      The argument tended to collapse the discussion of Mrs P’s application into an assessment of hardship arising to Mrs P from publication of Mr P’s name. Suppressing Mrs P’s name has no utility or practical effect unless I also suppress Mr P’s name. But despite the s 202 test focusing on the impact on Mrs P as a connected person, there was no individual focus on assessing Mrs P’s application through a standalone lens of s 202. Mrs P is concerned about her employer and colleagues learning that her husband is a defendant in the proceedings. This is not a case where there is any credible prospect of public reporting about Mrs P in connection with the proceeding,22 in contrast to cases where, for example, the relative of an accused is a public figure.23 The fact that there is no realistic likelihood of publication of Mrs P’s name may be a further reason that the s 202 threshold test is not met.24

[54]      Mrs P had originally sought suppression of her maiden name, Ms S, because the application was made prior to her marriage. That is not a name that would be recognised as associated with Mr P other than to those who know the connection. This

21     See A (CA605/2016) v R  [2017] NZCA 49; W (CA639/2016) v R  [2017] NZCA 580; R v  MVD

[2016] NZHC 333; and Solicitor-General v [A] [2016] NZHC 2643 as cited in LF (CA596/2022) v R [2022] NZCA 656 at [44]. Leave to appeal LF (CA596/2022) v R has been granted by the Supreme Court: E (SC 13/2023) v R [2023] NZSC 61 although the present situation is distinguishable.

22 In the context of whether a suppression order had been breached, the Supreme Court held that for the purposes of s 200 “publication” generally means publication to the public or a section of the public at large. However passing on to one other person or to a small number of persons (including dissemination by word of mouth) in a situation where that will undermine the purpose of suppression, is also captured. The section does not encompass the dissemination of information to persons with a genuine need or interest in knowing, where the genuineness of the need or interest is objectively established: ASG v Hayne [2017] NZSC 59, [2017] 1 NZLR 777 at [79].

23 Beacon Media Group Ltd v Waititi, above n 7, at [29].

24 Compare LF v R, above n 9, at [40].

underlines that in the circumstances of this particular case, the application under s 202 is being pursued as a platform for the s 200 application to suppress Mr P’s name.

[55]      Even if I was satisfied that the threshold test was met, in the circumstances of this case I would not have exercised the discretion to suppress Mrs P’s  name under   s 202. Alternatively, I would not have exercised my discretion to suppress Mr P’s name under s 200(2)(f). The presence of both s 200(2)(f) and s 202(2)(a) provides flexibility to respond to a variety of circumstances including to avoid an outcome that enables a defendant to achieve name suppression through someone connected with them obtaining suppression by demonstrating the lower test of undue hardship under s 202(2)(a).25

Result

[56]      I decline to make orders under ss 200 or 202 forbidding publication of Mr and Mrs P’s names. Mr McColgan requested I continue name suppression so as to enable him to take instructions on an appeal. I grant that request. Mr P’s name suppression will continue until 20 working days after the date of this judgment.

Anderson J

25     Solicitor-General v [A], above n 21, at [60]. Leave to appeal refused in A (CA605/2016) v R

[2017] NZCA 49.