G v Police HC Auckland CRI 2008-404-155
[2008] NZHC 1005
•1 July 2008
This case has been anonymized
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI 2008-404-000155
G
Appellant
v
NEW ZEALAND POLICE
Respondent
Hearing: 27 June 2008
Appearances: G King for Appellant
A Longdill for Crown
Judgment: 1 July 2008 at 2.15 p.m.
JUDGMENT OF VENNING J
This judgment was delivered by me on 1 July 2008 at 2.15 p.m. pursuant to Rule 540(4) of the High
Court Rules.
Registrar/Deputy Registrar
Date……………
Solicitors: Crown Solicitor, Auckland
Copy to: G King, Wellington
B Hart, Auckland
G V NEW ZEALAND POLICE HC AK CRI 2008-404-000155 1 July 2008
[1] Ms G appeals against Judge Bouchier’s decision not to continue the interim suppression of her name.
Background
[2] Ms G is charged with five counts of false accounting and two counts of using a document to obtain a pecuniary advantage. Ms G is a qualified lawyer. The alleged offending is said to have occurred when she was employed by two separate law firms between 20 March 2002 and 15 February 2007. It involves a substantial sum of money, in excess of $190,000. The two law firms in question have name suppression.
[3] Ms G was arrested and first charged on 10 August 2007. She was granted name suppression.
[4] In his decision on 18 September 2007 confirming name suppression would continue Judge Hole noted that it was an interim measure:
The application for suppression is for a relatively limited time. ... When the details of the alleged offending are more readily available, at that stage it would seem that publication of the defendant’s name will become an inevitability. That is a factor the Court can take into account when considering the principle of open justice because non-publication would be of relatively temporary duration.
The decision under appeal
[5] The matter was reviewed by Judge Bouchier on 22 April 2008. The grounds advanced for continued name suppression before her were:
• the effect on the accused;
• the effect on the accused’s new-born son; and
[6] The Judge reviewed the relevant authorities before identifying the issues as:
[55] (i) The stage of the proceedings. It is now post-depositions so a prima facie case has been found. ... (ii)
The presumption of innocence applies. That is a factor which must be weighed carefully and properly in the balance.
(iii)
The effect of publication on the accused and the ability to have a fair trial.
(iv)
The effect on any family member.
(v)
Whether the accused is likely to have disproportionate publicity as a result of their particular profession.
[7] The Judge then concluded:
Weighing all those matters with the serious nature of the offending involved and having been told that the link between the accused and the law firms would possibly be thin, I am of the view that there should not be a continued order for suppression of her name and that it should lapse. ...
Principles to apply
[8] As an appeal from an exercise of discretion the onus is on the appellant to show that the Judge misdirected herself, applied an inappropriate principle, failed to take into account relevant factor(s) or took into account irrelevant factor(s) or that there has been a significant change in circumstances since the date of the decision: S v R (1994) 12 CRNZ 290.
Further evidence
[9] The first issue is whether the further affidavit evidence the appellant has filed for the purposes of this appeal is admissible at this stage.
[10] The appellant seeks to file four further affidavits in support of the appeal. The affidavits are by Dr Fitzmaurice, the doctor treating the appellant’s mother; Mrs
Uvhagen, the accused’s mother; Mrs McElwee the Deputy Mayor of Taupo; and an affidavit by the appellant herself.
[11] Section 119(3) of the Summary Proceedings Act 1957 provides:
(3) The [High Court] shall have the same jurisdiction and authority as the [District Court], including powers as to amendment, and shall have full discretionary power to hear and receive further evidence, if that further evidence could not in the circumstances have reasonably been adduced at the hearing, and for that purpose shall have the same jurisdiction and authority to make any order under section 31 or section 32 of this Act as the Court from whose decision the appeal is made, or a [District Court Judge], had.
[12] In Ropiha v Police HC NAP AP3/2003 5 June 2003 France J stated:
The commentary on Cross on Evidence provides some explanation on what is considered “fresh evidence” as follows:
“Whether evidence is “fresh” depends on the circumstances in which it came to light, not merely on whether in a physical sense the proposed witness and that witness’s evidence were available at the time of the trial [R v Arnold [1985] 1 NZLR 193 (CA)]. If counsel chose not to ask questions about certain topics, or not to call potential witnesses, this does not mean that the evidence which may have resulted was not available [R v Makata (CA 533/94, 28 September 1995)].”
[13] The gist of the evidence in the affidavits of Mrs Uvhagen, Mrs McElwee and Dr Fitzmaurice is to confirm the details of Mrs Uvhagen’s health condition and the risk to her health of stress, to confirm Mrs Uvhagen’s involvement in local and national politics and Mrs McElwee’s opinion of the potential effect on her reputation of publication of the appellant’s name. The appellant provides further information about both her and her son’s health. She also gives evidence about the public connection between her and the two law firms that have name suppression.
[14] With perhaps the exception of the public connection between the law firms and the appellant those matters were all raised before Judge Bouchier, even if only supported by general evidence from the appellant. I note for instance that the Judge recorded in relation to the mother’s standing in the community and her health:
[16] The third ground is the effect on the accused’s mother. It is submitted that publication of her name would have an effect on the livelihood of her mother. Her mother is a councillor in a local town and has many other active roles in the community. She is well known in the area and provides weekly reports to the local paper. The community is small and her
livelihood depends on her public persona within the community. She intends to run for mayor at the next elections.
[17] Further it is submitted that her mother’s health is precarious. The health problems that her mother suffers are set out in paragraph 6 of the submissions. She has heart problems and has had major heart surgery in the last five years, is permanently on Warfarin and also has a rare neurological disorder.
[18] She is still grieving from the passing of her husband recently and the adverse effect of publication on her health is a significant risk in the submission of the defence.
[15] The matters of the appellant’s and her son’s health were also before the Judge and were considered by her in her decision:
[14] ... It is submitted she has fragile health, having suffered recently from depression and pneumonia. ...
[15] The next ground which the defence rely on is the effect on the accused’s newborn son. She is said to be a single mother who cares for the child, who was born prematurely. He has a number of associated health problems as a result of his prematurity. ... [details were then set out].
[16] The affidavits the appellant seeks to file for the purposes of the appeal merely provide further detail of those matters, and particularly in the case of the appellant’s mother confirm the Doctor’s opinion as to the risk to her health of stress.
[17] The appellant filed a further affidavit on the morning of the appeal to explain why the evidence which relates primarily to her mother was not provided earlier. She said that she had not told her mother about the charges against her when the matter was before the Court on 22 April 2008 because her mother was under enormous stress having recently lost her husband, the appellant’s father. She did not want to add to her stress. She did not tell her mother until the weekend of 25 April.
[18] The Court can understand that the appellant may have had personal reasons for not wanting to tell her mother of the changes she faced at that time, but I have to observe the matter has been before the Court since 10 August 2007. By the hearing in April the appellant had had over six months to tell her mother about the offending.
[19] More importantly, while the appellant’s affidavit of 27 June 2008 explains, from a personal point of view, why she may not have wanted to trouble her mother it
does not answer the legal test for whether it could be said the evidence was fresh or not. For understandable personal reasons the appellant did not wish to trouble her mother but that does not mean the evidence which she now seeks to put before the Court by way of affidavit for the purposes of the appeal was not available at that time.
[20] There are sound policy reasons for not relaxing the test set out in s 119(3) for the requirement that evidence must be fresh if it is to be admitted on appeal. A relaxation would encourage counsel and parties to adopt a two-stage process whereby the District Court decision would simply be a stepping stone with the matter refined and even restructured on appeal with evidence that should have been presented in the District Court. Such an approach is to be discouraged or, at the least, not encouraged.
[21] Mr King suggested that perhaps a different approach could be taken where the matter appealed from was effectively an interim or interlocutory order as opposed to an appeal on a conviction. But s 119(3) makes no distinction between the two types of appeals. It could be said there is more reason to restrict the admission of further evidence on an appeal from an interlocutory order where it is an appeal from the exercise of a discretion as in the present case.
[22] The further evidence the appellant seeks to admit is inadmissible.
[23] However, I took the evidence in on a without prejudice basis. I can indicate that having considered it on that basis it would have made no difference to the outcome of the appeal in any event.
Why the appeal must be dismissed
[24] The grounds advanced in support of the appeal are:
• the effect on the appellant’s former employers;
• the Judge’s over-reliance on the decision of Warburton v NZ Police HC HAM CRI 2004-419-85 24 August 2004 Priestley J;
• the adverse effect of publication; and
• general considerations.
[25] In his written submissions Mr Hart had submitted that publication of the appellant’s name would clearly reveal the connection to the firms despite the suppression order in relation to those firms. As Mr King realistically acknowledged this was perhaps not the best point for the appellant. That is particularly so where the firms in question took a neutral stance as to the issue of the appellant’s name suppression before the District Court Judge. Further, having had the appeal and the supporting papers referred to them the firms have confirmed, in the case of one, that it considers any effect on it should be disregarded and in the case of the other, that the effect of publication of the appellant’s name on them is not an issue for it. There is nothing in the first point.
[26] Next, it was submitted that the Judge had placed too much emphasis on the Warburton decision. Warburton was a case involving a solicitor charged with a number of counts of dishonesty. In written submissions counsel submitted that the Judge should have distinguished Warburton and that the appellant’s profession together with the allegations would cause a degree of publicity far in excess of that given to offending by other persons, a fact which should have been considered by the Judge. In failing to do that it is submitted that Judge Bouchier omitted to consider the consequences that would have on the appellant. Mr King spoke to those submissions in his oral presentation.
[27] I am unable to accept that the Judge placed any undue emphasis on the Warburton decision. In the course of her decision the Judge certainly did refer to the Warburton decision as a decision involving name suppression where the accused was a solicitor. She was well aware, however, of the differences between the facts of the Warburton decision and the case before her. Warburton was still in practice. The Judge recorded that she was well aware the appellant was no longer practising.
After discussing a number of extracts from Priestley J’s decision in Warburton the Judge summarised the matter by noting the factors to be considered (referred to at para [6] above) and then noted that in the case of Warburton the Judge did not consider the factors raised before him displaced the principle of open justice. In doing that, the Judge was doing no more than confirming that on her consideration of the various factors to be weighed in the balance there was no basis to maintain the suppression order and that there was nothing arising out of the fact the appellant was a solicitor, as was Mr Warburton, that changed the result, or improved the situation from the appellant’s point of view. The Judge’s approach cannot be criticised.
[28] Further, the Judge was aware of the possibility of prejudice to the appellant because of her position as a solicitor and that she might be treated more harshly or that there may be some more adverse publicity as a consequence of that. At para [13] of her decision she noted the submission for the appellant that:
allegations of fraudulent conduct in the role of a practising solicitor will attract a level of publicity that will inevitably be out of all proportion to persons in other occupations.
It was clearly a factor the Judge identified and considered.
[29] The next issue that arises for consideration is the impact of publication on the appellant, her son and her mother. All those factors were raised before the Judge. They were properly considered by her. I have to observe that although a submission is advanced that the mother is in a frail health condition, it is apparent, from the appellant’s first affidavit, that her mother is a councillor and is actively involved in a number of other community boards and societies. She also has an involvement with national politics. Despite her health condition she is apparently able to undertake those activities. While confirmation of the doctor’s concern for the mother was not before the Judge the appellant had deposed in her affidavit for that hearing that her mother was born with a hole in her heart, had undergone major heart surgery in the last five years, was permanently on Warfarin and had fortnightly checks on her blood levels. The appellant also said that her mother intended to run for mayor at the impending local body elections. The District Court Judge was well aware of the mother’s reputation and her health issues. It cannot be suggested she did not take those matters into account.
[30] Further, while the effect of publication on family members is a consideration it can be overstated. As Mallon J said in the recent case of Iosefa v Police HC CHCH CRI 2008-4-9-69 23 May 2008 (coincidentally a case of a solicitor charged with dishonesty):
Mr Iosefa’s affidavit also set out details about his wife’s high profile in the community and his concern that publication of his name or identifying particulars would have a serious negative impact on her employment affecting her ability to generate an income. There is no reason why that should be so. She is not facing the charge and nor is she in anyway implicated in the matter. While there may be some level of public comment about Mr Iosefa, despite the presumption of innocence, that his wife and family may wish to avoid, that is an unfortunate consequence for all families of those who face charges and must appear in the courts. The evidence does not establish any disproportionate harm in this respect such as to outweigh the public interest in open justice.
[31] The remaining issues are the appellant’s and her son’s health. Again, the
Judge properly took those factors into consideration.
[32] Perhaps the most significant submission made for the appellant was that advanced by Mr King in oral submissions, namely that the appellant was now moving to a sentencing indication hearing in August. At that hearing the issue of reparation will be considered. Mr King invited the Court to continue the interim suppression until that time so that submissions could be addressed at the issue of final name suppression. He submitted that it was also likely that any ability to pay reparation would be dependent on the appellant continuing in work which could well be affected if her name was not suppressed.
[33] But, there is no evidence that the appellant’s current employment would be lost if her name was not suppressed. Mr King said that her employer knows of the charges she is facing.
[34] As a counter argument, one of the reasons for publication of name is that those dealing with a person charged with dishonesty offences have the right to know the nature of the charges the person is facing.
[35] The matter must be dealt with at this time. There is no proper basis to extend the order for name suppression any further.
[36] In summary, the appellant fails to satisfy this Court that Judge Bouchier applied any improper principle, failed to take into account into relevant factors or took into account irrelevant factors. Nor has there been any significant change in circumstances since the date of the decision sufficient to lead this Court to interfere with the exercise of her discretion.
[37] I note finally that recently the Court of Appeal in the case of R v B (CA459/06) [2008] NZCA 130 considered the issue of name suppression prior to trial. Baragwanath J identified the summary of considerations as:
[62] In summary:
(a) the starting point is open justice ([55]);
(b) the judgment under ss 138 and 140 must take account of all essential factors including the stage the case has reached ([25]-[30]);
(c) fairness of trial trumps all other considerations ([2], [37]-[40]
and [49]);
(d) prospects of severance and of exclusion of other evidence at trial are powerful pointers to an interim order prohibiting publication ([58)];
(e) the presumption of innocence and the rights of personal privacy and to human dignity ([41]-[43]) are relevant factors, as also is the apparent strength or weakness of the Crown case ([44] and [58]). But they must be weighed against the presumption of openness of the court process and the fact that in the end there will normally be identification of the accused and the counterproductive effect of unjustified secrecy ([55]). The presumptive ability of jurors to comply with directions as to the use of prejudicial evidence may be relevant ([35]);
(f) it follows that, unless there are particular factors pointing to prohibition of publication, prohibition will normally be declined.
[38] Those are essentially the issues that the District Court Judge took into account. There are no fairness of trial or severance issues in the present case. The short point is that there are no particular factors in this case pointing to prohibition of publication. In that case prohibition must be declined.
Result
[39] The appeal is dismissed.
Venning J
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