Fairfax New Zealand Ltd v C

[2008] NZCA 39

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IN THE COURT OF APPEAL OF NEW ZEALAND

CA429/07
[2008] NZCA 39

BETWEENFAIRFAX NEW ZEALAND LIMITED

Appellant

AND"C"

First Respondent

ANDNEW ZEALAND POLICE

Second Respondent

Hearing:5 February 2008

Court:O'Regan, Robertson and Ellen France JJ

Counsel:R K P Stewart and B J Marten for Appellant

M B Ryan for First Respondent
M F Laracy for Second Respondent

Judgment:29 February 2008 at 3.30 pm

JUDGMENT OF THE COURT

The appeal is dismissed for want of jurisdiction.

REASONS OF THE COURT

(Given by Ellen France J)

Table of Contents

Para No.

Introduction  [1]

Issues on appeal  [6]
Jurisdiction  [8]
         Is Fairfax a “party”?  [9]
         A “civil” proceeding?  [30]
         Rehearing under s 57(4) of the Judicature Act 1908?  [34]
         Another option  [37]
         Conclusion  [39]
The relationship between diversion and suppression orders  [40]
         Judgments in the District Court and the High Court  [41]
         Submissions  [45]
         Discussion  [48]
Result  [64]

Introduction

[1]       The first respondent, C, faced a charge of intentionally or recklessly making an intimate visual recording of another person.   The charge arose after C used a video camera in a bag he was carrying to film up under the clothing of women in a shopping complex.

[2]       After C was arrested and charged, his counsel sought diversion.  Meanwhile, the Registrar made an interim order suppressing publication of C’s name and identifying details.  When C next appeared in Court (on 10 May 2007), he was offered diversion.  He was further remanded to 25 July to complete the requirements for diversion and the Registrar made another interim suppression order.

[3]       The Registrar’s power to make this further suppression order was challenged by a reporter from the local newspaper.  The Registrar accepted he had no power to make the second order.  The issue of further interim name suppression was referred to a District Court Judge.  In a decision delivered on 10 May 2007, Judge O’Driscoll refused to continue interim name suppression: DC PMN CRN 07054001889.

[4]       That decision was appealed to the High Court and interim name suppression continued pending appeal.  In a decision delivered on 28 June 2007 (HC PMN CRI 2007‑454‑19), Wild J allowed C’s appeal and made an interim order under s 140 of the Criminal Justice Act 1985 prohibiting publication of C’s name and identifying particulars pending further order of the District Court.  That order remains in force and there is a hearing scheduled in the District Court on 6 March to consider C’s application for permanent name suppression.

[5]       Fairfax New Zealand Limited, who had been heard by the High Court on C’s appeal, sought leave to appeal to this Court under s 144 of the Summary Proceedings Act 1957 from the making of the interim order.  On 6 August 2007, Wild J granted leave on the question of the “relationship between the Police Diversion Scheme and the Court’s discretion” to prohibit publication under s 140.

Issues on appeal

[6]       The appeal raises two issues:

(a)Whether there is jurisdiction for this Court to hear Fairfax’s appeal; and,

(b)If so, whether Wild J’s approach to the relationship between diversion and name suppression is correct.

[7]       We take each issue in turn.

Jurisdiction

[8]       The question of this Court’s jurisdiction to hear an appeal by Fairfax was not raised in the High Court.  In this Court, both respondents say there is no jurisdiction to hear the appeal essentially because the right of appeal is limited to those who are parties and Fairfax is not a party.  Fairfax submits that the Court should adopt a liberal interpretation of the provisions conferring appeal rights so that Fairfax can pursue the appeal.   Three possible bases for the Court’s jurisdiction are advanced and we consider them below.

Is Fairfax a “party”?

[9]       The first argument is that Fairfax is a “party” and so has a right of appeal in terms of s 144 of the Summary Proceedings Act.  Section 144 states that “either party” may appeal with the leave of the High Court to the Court of Appeal or, where the High Court refuses leave, with the special leave of this Court.

[10]     Fairfax submits that the Court should interpret “party” liberally to ensure that the media can perform its role in relation to the criminal justice system as “surrogates of the public”.  Fairfax says this will also avoid the anomalies and unevenness in appeal rights that otherwise will exist.  In this context, Fairfax points out that if the District Court Judge had granted C interim name suppression, media interests could have applied to rescind or vary that order, and be heard on that application, or sought judicial review of the District Court Judge’s decision.  Fairfax submits that it is anomalous for the media to have lost any right to challenge the interim name suppression order because of the way in which the matter has progressed.  That anomaly was emphasised, in Fairfax’s submission, by the fact that in these cases the police as informant appear not to have an interest in challenging the High Court’s decision.

[11]     The term “party” is not defined in either the Summary Proceedings or Criminal Justice Acts.  However, the statutory scheme suggests that it is not intended that merely being heard on an application will confer “party” status. 

[12]     It is necessary to go first to s 140 of the Criminal Justice Act, which gives the court a discretion to grant name suppression on application.  The section is silent as to those persons who can seek suppression orders but, for summary proceedings, the right of appeal to the High Court against suppression decisions under s 140 is limited to “the applicant” for suppression or to “the informant” (s 115C of the Summary Proceedings Act and, for indictable cases, see s 28E(2B) of the District Courts Act 1947 which confers appeal rights on the applicant or the prosecutor).  Fairfax is neither the applicant nor the informant and the fact Fairfax has been heard on the application does not confer that status. 

[13]     The reference to “either” party in s 144 reinforces the intention to confine the appeal rights to those who have sought suppression and to the informant.    Similarly, in the pretrial context, there is a right of appeal to this Court from the making or refusal to make an order under s 140 for the “accused person” and “the prosecutor” (s 379A(1)(ba) of the Crimes Act 1961).

[14]     The role of the media as the “watchdogs of the public interest in this respect” (Broadcasting Corporation of New Zealand v Attorney-General [1982] 1 NZLR 120 at 134 per Richardson J (CA)) reflects the importance of freedom of expression in this area both at common law and in s 14 of the New Zealand Bill of Rights Act 1990. However, these sorts of considerations are not such as to justify the interpretation of “party” advanced by Fairfax.

[15]     The standing of media interests to be heard in name suppression cases is well established.  For example, in R v L [1994] 3 NZLR 568 at 569 (HC), Smellie J stated:

Nonetheless it is clear that in New Zealand the media does have standing to apply for suppression orders to be discharged, rescinded or varied.  That is clear from two Court of Appeal decisions, namely Re Wellington Newspapers Ltd’s Application [1982] 1 NZLR 118 and Broadcasting Corporation of New Zealand v Attorney-General [1982] 1 NZLR 120. …

In the United Kingdom there is recent authority which I find logical and compelling to the effect that the news media does have and always has had the right to seek an audience and be heard on the question of suppression or not.  In particular I refer to the case of R v Clerkenwell Magistrates’ Court, ex parte Telegraph plc [1993] 2 All ER 183. This was a decision of a divisional Court and in the judgment of Lord Justice Mann there is a statement to the effect that his own practice when sitting in the Crown Court was to hear any representation which the press desired to make regarding suppression or otherwise.

[16]     Smellie J went on to observe that a similar approach had been taken in Western Australia in Re Bromfield Stipendiary Magistrate, ex parte West Australian Newspapers Ltd (1991) 6 WAR 153 (SCWA).

[17]     This is not a case where Fairfax will be without a remedy.  The order made is an interim one and the matter will be back in the District Court next month.  If that Court makes a final order for name suppression, Fairfax can bring judicial review proceedings.  We accept that this adds some procedural complexity and cost to the process but it does mean media interests can have their say.  There is no need in this sense to expand the meaning of “party” beyond its usual meaning, for example, in the District Courts Act (s 2(1)) or in the High Court Rules (r 3(1)). Any unevenness of this result is the effect of the statutory arrangements for appeals in this area.

[18]     Nor do the authorities relied on by Fairfax extend appeal rights to the media in a case like this. 

[19]     In Broadcasting Corporation v Attorney-General, this Court dealt with a challenge by the Corporation and New Zealand Newspapers Limited to a decision in the High Court to sentence an unnamed offender in closed court.  This Court rescinded the Judge’s order and substituted less restrictive orders suppressing publication of various facts relevant to sentencing.  However, the matter was dealt with in this Court after the High Court had removed the Corporation’s proceedings directly to the Court of Appeal.  No appeal rights were involved.

[20]     At issue in Re Wellington NewspapersLtd’s Application [1982] 1 NZLR 118 (CA) was an application for discharge of a suppression order. The suppression order was made by this Court when it allowed an appeal against conviction. After the retrial, the media applied to this Court to discharge its order. The relevant statutory provisions under which the application was made (ss 375 and 396 of the Crimes Act now repealed) did not spell out who could be an applicant, but simply gave the Court power to make such orders. The Court, not surprisingly, said it could revisit its own order on application.

[21]     The question of the Court’s jurisdiction to grant media interests leave to appeal a suppression order was left to one side in R v Liddell [1995] 1 NZLR 538 at 541 – 542 (CA) as it was not necessary to decide the matter in that case.

[22]     Our approach is consistent with that in other jurisdictions.  In R v ClerkenwellMetropolitan Stipendiary Magistrate, ex parte The Telegraph plc [1993] QB 462 (DC) cited by Smellie J in R v L, Mann LJ pointed out that there was no express provision as to who could make representations about the relevant power to prohibit publication. But, Mann LJ said at 470:

Section 159(1) of the Criminal Justice Act 1988 gives to a “person aggrieved” a right of appeal with leave against an order made in relation to a trial on indictment.  The publisher of a newspaper can be a person aggrieved for this purpose: see [R v Beck, ex p Daily Telegraph plc [1993] 2 All ER 177 at 179]. There is no equivalent provision in regard to an order made in relation to a summary trial, although a newspaper publisher has a sufficient interest to apply for judicial review (see, for example, Reg. v Horsham Justices, Ex parte Farquharson [1982] Q.B. 762), and he may also be a person “aggrieved” within the meaning of s 111(1) of the Magistrates’ Court Act 1980 and thus able to obtain a statement of case on law or jurisdiction. The scope for argument under those two procedures is by their nature a limited one.

[23]     Mann LJ went on to describe his own practice as noted by Smellie J and concluded at 471:

The power which I have identified is a discretionary one.  The occasion and manner of its exercise are matters for the court invested with the power, but I expect that the power will ordinarily be exercised when the media ask to be heard either on the making of an order or in regard to its continuance.  The power will ordinarily be exercised because the court can expect to find assistance in representations from the news media.  In practice, it will be convenient if the press are able to present a single view, thereby avoiding any need for the court to restrain repetition.

[24]     The background to the phrase “person aggrieved” in s 159(1) of the Criminal Justice Act was set out by the Court of Appeal in Ex parte The Telegraph Group plc [2001] 1 WLR 1983 at [2]:

The background to the enactment was that an application had been made to the European Court of Human Rights complaining that there was no procedure whereby the media could challenge any order restricting court reporting under section 4 or section 11 of the Contempt of Court Act 1981: Hodgson, Woolf Productions and National Union of Journalists and Channel Four Television (1987) 10 EHRR 503. Once the complaint had been treated as admissible by the European Commission, the United Kingdom government decided to make statutory provision for a right of appeal by “persons aggrieved” by any such order. That phrase was intended primarily to embrace the media whose freedom of communication was thereby restricted.

[25]     That legislative change was made by way of a “friendly settlement” of the matter in accordance with art 28(b) of the Convention for the Protection of Human Rights and Fundamental Freedoms (1950) 213 UNTS 222: see Hodgson v United Kingdom (1988) 56 DR 156 and also Hodgson v United Kingdom (1987) EHRR 503; (1987) 51 DR 136 (the admissibility decision). Accordingly, there was no final substantive ruling on the complaint.

[26]     A similar approach was taken by the Supreme Court of Victoria in The Herald and Weekly Times Ltd v The County Court of Victoria [2000] VSC 280. In that case, the media interests were treated as having standing to be heard in relation to a suppression application. But, Beach J said, the newspaper was not a party in terms of the provision conferring appeal rights (at [15]).

[27]     Fairfax says that if media interests have a right of appeal in a case such as the present, there does not need to be any concern about the potential scope of those rights.  Rather, Fairfax argues, the media interests’ appeal rights will be confined to those cases where the police are not opposing name suppression.  However, it is difficult to see how the media’s appeal rights could then be limited to suppression  cases.  There are other aspects of the criminal justice process in which the media could well claim a right to reflect public concerns, but expanded appeal rights for the media would not sit well with the statutory scheme which sets out in some detail the rights of the various participants in the process.  For example, rights of victims to have their views on name suppression taken into account are set out in s 28 of the Victims’ Rights Act 2002. 

[28]     Nor does Fairfax’s approach fit well with the various procedural provisions in the Summary Proceedings Act which generally proceed on the basis that there will be two parties, the informant and the defendant.  (For a recent discussion of third party rights in that Act, albeit in a different context, see R v De Bruin [2007] NZCA 600 at [31].)

[29]     Ultimately, we agree with counsel for the police that the status of the media in a case like the present is more analogous to that of an intervener appointed under r 81 of the High Court Rules who is not a party in terms of appeal rights (see: Contradictors v Attorney-General (No 2) [1999] 2 NZLR 519 (CA)).

A “civil” proceeding?

[30]     The second basis for jurisdiction advanced by Fairfax is that there is a right of appeal under s 66 of the Judicature Act 1908.  This argument depends on the proceedings being characterised as “civil proceedings”.  That is because it is accepted that s 66 only confers a right of appeal in relation to cases in the court’s civil as opposed to its criminal jurisdiction (Mafart v Television New Zealand Ltd [2006] 3 NZLR 18 per Elias CJ writing for herself and for Blanchard and McGrath JJ at [12], Tipping J at [42] and [51], and Eichelbaum J at [54] (SC)).

[31]     Fairfax relies in this context on the observations in Mafart that s 66 should be interpreted to avoid anomalies in terms of appeal rights.  In particular, the Chief Justice said:

[37]     The system of appeals provided by the Judicature Act and the Crimes Act together is relatively comprehensive.  Section 66 is framed in wide terms.  And the parties to criminal proceedings on indictment under the Crimes Act have, in addition to the rights of appeal post-conviction and on reservation of a point under s 383, expedited appeals available under s 379A pretrial in appropriate cases.  Where the Court file to which access is sought is created in criminal proceedings, non-parties who are affected would be in an anomalous position in the general scheme of appeals if applications for access which affect their interests in information or in privacy are regarded as criminal proceedings.  If affected in matters of great significance to them, recognised by New Zealand law as important rights and interests, they would have no ability to appeal.  Such result is not attractive.  It engages the New Zealand Bill of Rights Act, as Cooke P suggested in R v B [[1995] 2 NZLR 172 at 179 (CA)].

[38]     The outcome of treating access to criminal files as criminal proceedings would also be uneven in application.  If a third party is affected by an order about access to Court files made in the course of criminal proceedings in the District Court (whether summary or on indictment), he will be able to seek judicial review of the determination in the High Court, and then may further appeal under s 66 to the Court of Appeal.  In Re Victim X, the Court of Appeal did not think such unevenness required an order under s 140 of the Criminal Justice Act to be treated as a civil proceeding.  But it is highly material to the question whether an application to search a file in criminal proceedings is properly to be regarded as a civil or criminal proceeding.  The definition of “civil proceedings” in s 2 of the Judicature Act should be interpreted if reasonably possible to avoid such unevenness.

[32]     There is some overlap between this argument and that in relation to the interpretation of “party”.  We accept there is some unevenness in approach as was apparent also in Field v Burgess [2007] NZSC 110. We also accept the media’s watchdog role is an important one. But we do not see that it is reasonably possible to interpret the statutory scheme in the way contended for by Fairfax.

[33]     We do not accept Fairfax’s argument that the present appeal arises in the  court’s civil jurisdiction.  Whether the matter is civil or criminal is a question of substance and not form:  Mafart at [31] and [32] per Elias CJ and see also Tipping J at [48]. Elias CJ also observed that “[a]pplications necessarily linked to determinations of crime or punishment are … properly regarded as criminal proceedings” (at [30]). The Chief Justice said that it is not necessary for someone to be in jeopardy of conviction or facing sentence for an application to be properly viewed as criminal, “if it is inextricably linked with criminal process” (at [30]). This Court in R v Liddell at 544 treated the suppression order in that case as part of a sentence so that the Solicitor-General had a right of appeal. It would be odd to say now that for these purposes the application is not “inextricably” linked to the criminal process. In Re Victim X [2003] 3 NZLR 220, this Court similarly saw name suppression for the victim of a crime as part of the criminal justice process. While the Supreme Court in Mafart was critical of the reasoning adopted in that case, the Court did not find it necessary to express any view on the correctness of the outcome (see Elias CJ at [32]).

Rehearing under s 57(4) of the Judicature Act 1908?

[34]     The third basis advanced by Fairfax is that this Court should treat the appeal as an application to discharge the earlier order acting as High Court judges in terms of s 57(4) of the Judicature Act.

[35]     This Court in Re Victim X at [14] declined to adopt that course on the basis that once a final order had been made by the High Court, another High Court judge(s) cannot in general rehear or review the order without legislative provision to that effect.

[36]     The order in issue here is an interim order pending further order of the District Court.  It is however, a final order in the sense of being dispositive of the appeal.  We do not consider that we have jurisdiction to rehear the matter as High Court Judges.  Even if we did have such jurisdiction we would not be prepared to do so. The matter is shortly to be referred back to the District Court.  That Court will have all of the relevant information before it and will best be in a position to determine the matter.

Another option

[37]     Finally, we need to mention the possibility of a fourth basis advanced as a matter of completeness by Ms Laracy.  That is, the argument that ss 138 to 140 are entirely separate to the underlying proceedings and effectively stand alone.  This might gain support from the fact that s 140 does not say who can make an application for suppression.

[38]     It is, however, difficult to see the media as applicants under ss 138 to 140.  It is artificial in the end to treat this as a stand alone application. 

Conclusion

[39]     We are satisfied that, on any view of the matter, there is no jurisdiction to hear this appeal.

The relationship between diversion and suppression orders

[40]     As we heard argument on the matter and, given the importance to the parties, we do make some brief observations on the relationship between the diversion scheme and suppression orders.

Judgments in the District Court and the High Court

[41]     Judge O’Driscoll took the view that the discretion under s 140 was not to be “read differently” in diversion cases (at [9]).  Applying the orthodox approach to s 140, the Judge decided that the material before him did not give rise to special circumstances such that there should be name suppression.  The Judge continued at [11]:

I have no doubt that the defendant will find publication of his name very embarrassing.  That position will also extend to members of his family.  Embarrassment and shame are part of the consequences of offending in the vast majority of cases.  I could not find that there was anything in the documentation presented to me which took this case out of the ordinary to such a position as to warrant continued interim suppression of name.

[42]     In the High Court, Wild J accepted that name suppression was not automatic for an offender granted diversion.  The Judge did, however, see the fact that an offender had been granted diversion as highly relevant to the exercise of the s 140 jurisdiction.  The Judge then identified a number of aims of the diversion scheme and took the view that most, if not all, of these aims would be defeated if the name or other identifying particulars of an offender granted diversion were published.  Wild J summarised the position at [19] as follows:

[A]lthough name suppression is not automatic for an offender who completes diversion, it is fundamental to the whole point of diversion, and ought to be granted unless there is some quite unusual reason or circumstance requiring name publication.  For example, it may be that the offender and his/her family want the offender’s name published and ask that no s 36(1B) order be made.  If the [newspaper] is suggesting that the public interest is served by publication of the names of successfully diverted offenders, then I cannot agree with the newspaper.  I consider that the public interest is served by diversion operating effectively, because of its twin aims of preventing re-offending and making good harm done to the victims of the first offending.

[43]     Wild J said that in case he should be thought to have overlooked the presumption in favour of open justice, he took the view that the offer of diversion to a first offender and a successful completion of diversion by that offender are “compelling reasons” or “very special circumstances” justifying a departure from the presumption that all offenders’ names should be published (at [20]).

[44]     In the event that the Judge was wrong about that, he went on to consider whether the s 140 discretion was applicable.  On what the Judge described as a “conventional” exercise of the s 140 jurisdiction, Wild J concluded that all relevant considerations should have indicated to the District Court that the presumption of open reporting was “well and truly rebutted here” and that there should have been continued suppression of C’s name (at [26]).

Submissions

[45]     Fairfax says that the fact that a person has completed the requirements for diversion is irrelevant to the exercise of the discretion under s 140 because the defendant’s status will have been considered as part of the usual balancing exercise.  Alternatively, if diversion is a relevant factor, then it is only a factor to be weighed in the balance. 

[46]     The first respondent essentially supports the view taken by Wild J.  Mr Ryan, who argued the matter for “C”, submitted that the successful completion of diversion is of itself a compelling reason or a very special circumstance which justifies the making of an order prohibiting publication.

[47]     The police submit that Wild J went too far in the weight he attached to the fact of diversion but accept that this is a relevant factor.  Ms Laracy’s written submissions put it this way:

[W]here there is any evidence or reliable information adduced in a particular case which tends to show that one or more of diversion’s purposes are likely to be impeded if the individual’s name is not suppressed, that may well be a sufficiently compelling or special circumstance to displace the presumption in favour of publication.

Discussion

[48]     Fairfax is not right that the fact of diversion is irrelevant to the exercise of the discretion under s 140.  The fact of an acquittal or conviction is a relevant factor in the exercise of the s 140 discretion and we cannot see why diversion should be any different (see:  R v Liddell at 547).

[49]     The nature of the diversion scheme was explained in the following terms by Panckhurst J in Thompson v Attorney-General (2000) 17 CRNZ 628 at [18] (HC):

It has no statutory basis.  Rather, it is what might be termed a restorative justice initiative initiated by the police.  It has internal police recognition in the form of the Manual of Best Practice.

[50]     Panckhurst J went on at [18] to point to the “limited” statutory recognition of the existence of diversion in s 36(1A) of the Summary Proceedings Act.  We come back to s 36 shortly.

[51]     The Judge also noted at [18] that the operation of the scheme:

[H]as a prerequisite that a criminal information must be laid, regardless that diversion may ultimately be offered.  Where the conditions of the diversion  programme are successfully completed, then withdrawal of the charge will follow.

[52]     We received evidence, without objection, of the current police practice.  That information shows that another prerequisite for diversion is that the person charged accepts responsibility for the offence (New Zealand Police “Police Adult Diversion Scheme Policy” (Paper, November 2007) at 15).

[53]     The diversion scheme is seen by police as playing a useful role in the criminal justice process.  The underlying objectives of rehabilitation and putting things right are pertinent ones.

[54]     However, we agree that Wild J has put the matter too high in so far as diversion is treated as, in itself, a special circumstance justifying a departure from the open justice principle.  In each case it will be necessary to be satisfied that there is a basis for diversion.  In that respect, the approach taken in Younger v Police (HC AK A169/00 31 October 2000 Robertson J) must be right.  That is, absent legislative intervention, the Registrar’s decision still requires the exercise of the discretion in terms of s 140.  That was this Court’s view in Lewis v Wilson & Horton Ltd [2000] 3 NZLR 546 at [40] where Elias CJ stated:

Where a police programme of diversion has been completed and the Registrar has granted leave to a police informant to withdraw the information under s 36(1A) of the Summary Proceedings Act 1957, the Registrar, with the consent of the police may make a permanent order under s 140: s 36(1B).  In all other cases, where disposition of the proceedings is a matter of judicial determination (as will be the case where the person charged is convicted, acquitted or discharged under s 19 of the Criminal Justice Act 1985), s 140 orders are made by the Judge.  The consent of the police to an order prohibiting publication is not a precondition of the exercise of the jurisdiction.  Nor is it determinative.  The decision to prohibit publication is a judicial decision which falls to be determined in accordance with law.

[55]     The nature of the discretion being exercised in the present case does, however, have to be kept in mind. 

[56]     The Registrar’s powers in s 36 of the Summary Proceedings Act recognise the possibility of diversion and are as follows:

36       Withdrawal of information by informant

(1)     Any information may by leave of the Court be withdrawn by the informant before the defendant has been convicted or the information has been dismissed or, in any case where the defendant has pleaded guilty, before he has been sentenced or otherwise dealt with.

(1A)     A Registrar may exercise the power conferred by subsection (1) to grant leave if the informant is a sworn or non-sworn member of the police and has notified the Registrar in writing that the defendant has successfully completed a programme of diversion (being a programme conducted by the police).

(1B)     A Registrar may exercise the power conferred by section 140 of the Criminal Justice Act 1985 (which relates to orders prohibiting the publication of names) to make an order that has permanent effect if –

(a)       the Registrar grants leave under subsection (1A); and

(b)      the informant agrees to the making of that order. …

[57]     The Registrar’s decision in the present case however was made under s 46A of the Summary Proceedings Act.  That section gives the Registrar power to make a name suppression order having effect for up to 28 days (s 46A(2)).  This power may only be exercised in the situations spelt out in s 46A(1), that is if:

(a)       the Registrar either–

(i)       adjourns the hearing of any charge under section 45A; or

(ii)grants a defendant bail under section 28 of the Bail Act 2000; or

(iii)remands the defendant in custody under section 46(2); and

(b)either, –

(i)where the defendant asks for the making of the order, the informant agrees to that order being made; or

(ii)where the informant asks for the making of the order, the defendant agrees to that order being made.

[58]     The limited nature of the Registrar’s powers is emphasised by the fact that the Registrar may only exercise this power once in relation to any particular information (s 46A(3)).

[59]     It is plain from the Parliamentary debates that the idea of giving Registrars these powers was to free up the time of judges from matters that were “administrative” or undisputed ((23 Jul 1998) 570 NZPD 10764).  As Hammond J put it in Haskett v Thames District Court (1999) 16 CRNZ 376 at [26] (HC), the “whole thrust” of the provision was “to lift the burden of a myriad of (usually) non‑contentious matters of what are more truly an administrative character” from District Court judges.

[60]     The Parliamentary debates indicate that it was, however, envisaged that Registrars were exercising a discretion for which they would receive some training ((4 Aug 1998) 570 NZPD 11011 – 11012). It was also recognised that if a matter became “complicated” or “controversial” then the Registrar could decline to exercise the power and ensure that a Judge considered the matter ((2 Dec 1997) 656 NZPD 5897).

[61]     In that context, the debates also suggest that the requirement of consent on the part of the informant was seen as a safeguard ((2 Dec 1997) 656 NZPD 5897 and (4 Aug 1998) 570 NZPD 11013).  The current practice, we were advised, is for the police “not to object”.   It is difficult to see that the approach of the police fulfils the statutory requirement that it “agrees”, so it is questionable if the Registrar’s power can be exercised when this occurs.

[62]     Accordingly, while the Registrar is still required to turn his or her mind to the s 140 balancing exercise, given the confined nature of the power under s 46A, it seems unlikely that Parliament intended Registrars to be overburdened with information about the suppression decision.  For that reason, although we agree generally with the approach advocated by the police in their submissions, in the context of s 46A decisions, the Registrar is not likely to require a great deal of information in order to be satisfied of the need for suppression.  In that context, the effect of publication on rehabilitation in particular will in many cases be obvious.

[63]     We express no view on the merits of suppression in this particular case.  Wild J’s application of the orthodox principles to the merits of this case does not give rise to a question of law.

Result

[64]     The appeal is accordingly dismissed for want of jurisdiction.

Solicitors:

Izard Weston, Wellington for Appellant
M B Ryan, Solicitor, Palmerston North for First Respondent
Crown Law Office, Wellington for Second Respondent