H v Police HC Wellington CRI 2010-485-83

[2010] NZHC 2053

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI 2010-485-83

BETWEEN  H

Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         12 October 2010

Counsel:         L Ord for Appellant

M W Snape for Respondent

Judgment:      12 October 2010

ORAL JUDGMENT OF MILLER J

[1]      Mr H   appeals against refusal of permanent name suppression.

[2]      While  a  police  constable  on  traffic  duties,  he  committed  the  offence  of careless driving causing injury.  He was driving slowly along Evans Bay Parade and pulled over on a straight stretch of road to let traffic pass.  He then began a U-turn. Regrettably  he  did  not  see  a  motorcyclist  who  was  last  in  the  line  of  passing vehicles.   His patrol car struck the motorcycle.   The rider suffered a hairline hip fracture and abrasions, and required some 16 weeks rehabilitation before he could walk unaided.  He appears to have recovered, fortunately.  Reparation was ordered for uninsured losses to boots and helmet, but not for lost income.

[3]      At the age of 32 Mr H   had no previous convictions.  As a serving police officer he has received two awards for bravery.   Those commendations may have contributed to evident media interest in this otherwise unremarkable case.   He considers that publicity, particularly if accompanied by photographs, would affect

his ability to do his job.

H V NEW ZEALAND POLICE HC WN CRI 2010-485-83  12 October 2010

[4]      In fact Mr H  ’s name has been published twice in connection with the incident.    He  did  not  initially seek  suppression,  but  it  is  said  that  he  suffered difficulties in his work as a result of accused persons and witnesses knowing that he had been charged.  Media representatives then sought permission to photograph him in Court.   Permission to do so was declined and interim name suppression was ordered.

[5]      At sentencing the Judge dealt briefly with the question of name suppression. His  principal  focus  was  on  Mr  H  ’s  application  for  a  discharge  without conviction.   That application was refused.   Mr H   was disqualified for three months and ordered to pay reparation as I have indicated.   The Judge noted that Mr H   had been promoted to the rank of sergeant since the incident, suggesting that the police recognise his culpability was low, as indeed it was.   When dealing with suppression, the Judge simply referred to R v Liddell, noting that “in terms of”

that case the application was declined.[1]

[1] R v Liddell [1995] 1 NZLR 538 at 545, 546 and 547.

[6]      On appeal, Ms Ord contends that the Judge did not apply the legal test or refer to the authorities cited or refer to written submissions.   He did not hear oral argument on the question of suppression.  She submits that the Judge may have been unsympathetic to Mr H   because of delay in finalising the matter, but that was not to be laid at his door.  The offending is not serious and the public has no interest in knowing Mr H  ’s character.   Publication would affect his personal and professional life.  Indeed, it has already done so when his name was first published. For example, accused persons and witnesses with whom he has been dealing would ask him about his case, which detracts from his authority.  The police respond that his name has already been published and it is speculative to suggest that publication will make his work more difficult.  The public have an interest in knowing the names of police officers who commit offences, and it is important that police officers are seen to be accountable.

[7]      Mr H   appears to be a fine officer who has paid a substantial price for a mistake of a sort that any driver might make.  Notwithstanding that the motorcyclist was injured, this was a minor offence, an offence of carelessness, and in such cases

the damage caused by publicity may outweigh any real public interest in knowing the offender’s name.  This is not a case of the public needing to know the identity of a person of bad character.[2]    And his citations for bravery do not place him in the same category as those who have courted celebrity status.  I do not attach weight to the suggestion that the police must be seen to be accountable.  Accountability has been exacted through his conviction and sentence.

[2] Lewis v Wilson & Horton Ltd [2000] 3 NZLR 546.

[8]      Against that, the open justice principle ordinarily requires that offenders not have their identities suppressed, particularly after conviction.   The Judge must identify some basis on which, to précis what the Court of Appeal said in Liddell, the presumption of open reporting should yield.  When doing so the Judge must consider whether  suppression  is  a  reasonable  restriction  on  the  media’s  right  to  free expression.

[9]      In this case the offence itself has not affected Mr H  ’s employment and there is no reason to suppose that publicity about it will do so.   I do accept that knowledge of the conviction detracts somewhat from his authority when dealing with accused persons and witnesses but that could only be in a minor and transitory way.   It is speculative to suggest that he will be seen to lack credibility when he gives evidence, as he suggested in one of his affidavits.  (It is much more likely that defence counsel’s attempt to make something of his conviction would reflect badly on counsel’s judgement.)  The offence must already be well known among the police officers with whom he works.  I accept that publicity is distressing for him and his young family, but there are no particular circumstances that suggest that publicity would cause harm substantially exceeding that which is inherent in a public conviction.

[10]     In the end, and not without some regret, there is not enough to displace the open justice principle in this case.  The balance comes down against Mr H  .

[11]     The appeal must be dismissed.

Miller J

Solicitors:

Ord Legal, Wellington for Appellant

Luke Cunningham & Clere, Wellington for Respondent