Hayward v Police

[2019] NZHC 848

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2019-404-95

[2019] NZHC 848

BETWEEN

SHAYNE DUDLEY REGINALD HAYWARD
Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	16 April 2019
Appearances:	J Holden for the Appellant J C Bull for the Respondent
Judgment:	16 April 2019

ORAL JUDGMENT OF GAULT J

Solicitors:

Mrs J Holden, Barrister, Auckland ([email protected])

Ms J C Bull, Meredith Connell, Office of the Crown Solicitor, Auckland

SHAYNE DUDLEY REGINALD HAYWARD v POLICE [2019] NZHC 848 [16 April 2019]

[1]    The appellant, along with his brother, is charged with the theft of a rather valuable gnome, worth approximately $55,000. The gnome was stolen from an Auckland art gallery. The theft attracted considerable media attention.

[2]    In addition, the appellant is also charged with possession of a pipe used for methamphetamine and with possession of cannabis.

[3]    The appellant and his brother applied for interim name suppression in the District Court under s 200(4) of the Criminal Procedure Act 2011. The grounds for suppression were that publication would cause extreme hardship to the appellant’s niece – because she would be bullied at school as she shares his last name – and because publication would affect their fair trial rights. Judge C M Ryan, who heard the application, declined to grant name suppression, finding there was no arguable case for either ground.1

Alleged facts

[4]    The Police allege that the appellant and his brother were outside the Gow and Langsford Art Gallery in Auckland Central around 12:30 am on Christmas day last year. They are alleged to have waited in the area for approximately an hour, before approaching the gnome and breaking it free from its concrete plinth. They then took it away in their car.

[5]    Police later conducted a search of the appellant’s address on 24 January 2019. They found a plastic container containing cannabis next to the appellant’s bed, and two glass pipes with a white crystal residue under the living room TV cabinet. The police allege the pipes are used to smoke methamphetamine. The appellant said to the police that he uses them for aromatherapy.

District Court decision

[6]    Judge Ryan found there was no arguable case in respect of either extreme hardship or a risk to fair trial rights.

1      R v H and H DC Auckland CRI-2019-004-746, 20 February 2019.

[7]    In relation to the risk of extreme hardship to the appellant’s niece, the Judge considered that it was not arguable in this case, for the following reasons:

(a)The appellant’s name is a common one.

(b)Most schools have anti-bullying policies and in situations like this are very protective.

(c)There is no evidence that the school the child attends is one where teasing and bullying is so rife that there is a real risk she may be bullied.

(d)There is no evidence that she is more prone to being upset by school- yard remarks than any other child.

[8]    In terms of the risk of prejudice to the appellant’s trial rights, the Judge held there was no arguable case, for the following reasons:

(a)There is a presumption of open justice.

(b)Publicity of a defendant’s name, even in serious cases, is a common occurrence. There must be more than an assertation of a risk to fair trial rights.

(c)Juries are often empanelled in high profile cases, and any publicity is dealt with by jury directions.

Approach on appeal

[9]A decision on name suppression involves a two-stage analysis.2

[10]   First, the Judge must be satisfied there is an arguable case that one of the threshold grounds in s 200(2) of the Criminal Procedure Act exists. These grounds

2      Robertson v Police [2015] NZCA 7 at [39]; and Fagan v Serious Fraud office [2013] NZCA 367 at [9].

include that publication would cause extreme hardship to the person charged, create a real risk of prejudice to a fair trial, or endanger the safety of any person.3

[11]   Secondly, if satisfied that one of these grounds exists, the Judge must make a discretionary assessment as to whether a name suppression order is necessary. At this stage of the analysis, the Judge weighs the competing interests of the applicant and the public, taking into account such matters as whether the applicant has been convicted, the seriousness of the offending, the views of the victim(s) and the public interest in knowing the character of the offender.

[12]   On appeal, the Court must approach the first stage of the analysis as a general appeal,4 and the second stage of the analysis as an appeal against the exercise of a discretion.5 In a general appeal, the appellate court may come to its own view on the merits. On an appeal against discretion, however, the appellant must establish that the Judge has acted on some wrong principle, taken into account an irrelevant factor, ignored a relevant factor or was plainly wrong.6

Submissions

[13]   Mrs Holden, counsel for the appellant, says the Judge erred in finding there was no arguable case for extreme hardship on the grounds advanced, noting there is a lower threshold under s 200(4), i.e. an application for suppression on a first appearance, than on an ordinary or later application. She submits there was a sufficiently arguable case that there would be extreme hardship to the appellant’s niece. She also submits there is a real risk of prejudice to a fair trial but that was not her main focus.

[14]   In addition, the appellant seeks leave to adduce new evidence, and effectively a new ground for suppression, being his own mental health. He seeks to produce an affidavit from a “good friend”, who testifies to his fragile mental health. The appellant

3      Criminal Procedure Act 2011, ss 200(2)(a), (d), and (e).

4      Meaning it is determined in accordance with the principles in Austin, Nichols & Co Ltd v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141.

5      NN v Police [2015] NZHC 589 at [13]-[14].

6      Saggers v R [2012] NZCA 560 at [25].

submits the new evidence should be admitted because it is both fresh and credible, and it is in the interests of justice that it be admitted.

[15]   Ms Bull, counsel for the respondent, submits there is no arguable case that there is extreme hardship to either the appellant or his niece. The respondent submits that extreme hardship is a very high bar to meet, and there is no evidence that suggests there is even an arguable case here.

[16]   On the appellant’s new evidence, the respondent did not oppose it being admitted. However, Ms Bull submits it discloses no grounds for a finding of an arguable case for extreme hardship. She submitted that there needs to be a connection between a mental health issue and publication, and that connection is lacking on the evidence. The respondent also submits it is problematic that the appellant himself has not filed any affidavit.

[17]   In respect of hardship to the appellant’s niece, the respondent simply says Judge Ryan was correct in her finding for the reasons she gave. In addition, the respondent points to two cases, Moors v Police and R v H, where there was a real prospect a child would be bullied, and the relevant offending was much more serious, and suppression was still declined.7

The further evidence

[18]   The affidavit is filed by a self-described  “good  friend”  of  the appellant. She states that the appellant has struggled with his mental health, and that publication would adversely affect his reputation in Ohope, where he used to live, his reputation as an artist, affect his three sons, and consequently negatively impact his fragile mental health.

[19]   The respondent does not object to the admission of this evidence. I will allow the evidence in, but, for the reasons that follow, I do not consider it helpful.

7      Moors v Police [2017] NZHC 1067; and R v H HC Auckland CRI-2016-92-5315, 31 August 2016.

Decision

[20]   What is at issue here is whether there is an arguable case that publication of the appellant’s name would cause extreme hardship to either the appellant or his wider family.

[21]   In Robertson v Police, the Court of Appeal stated that the threshold of “extreme hardship” requires a very high level of hardship:8

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

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.

[22]   In terms of extreme hardship to the appellant’s niece, I agree with Judge Ryan and the respondent that there is no arguable case. I echo Judge Ryan’s reasons in this respect; I do not consider more needs to be said. As to hardship to any other family member, such as the appellant’s sons, I do not have any evidence to support there being an arguable case beyond the new affidavit which is not sufficient.

[23]   In terms of hardship to the appellant, I also consider there is no arguable case. The affidavit filed does not disclose any evidence that the appellant will suffer consequences different from any other person who faces a serious charge.   While     I accept he may struggle with his mental health, as many people do, I would require stronger evidence to reach the threshold of an arguable case. I accept such evidence that is normally adduced on strong applications, such as psychiatrists’ reports, may not be available for an early application such as this was in the District Court. But at the very least the appellant would have needed to file a compelling affidavit or an affidavit from a medical professional. The Courts often decline name suppression in far more compelling cases than this.

8      Robertson v Police [2015] NZCA 7 at [48]-[49].

[24]   Even if there were an arguable case, weighing the competing interests of the applicant and the public, including open justice, I do not consider that an interim name suppression order is necessary.

Result

[25]The appeal is dismissed.

Gault J