Hayward v Police

[2019] NZHC 847

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2019-404-89

[2019] NZHC 847

BETWEEN

JAMIE MATHEW HAYWARD

Appellant

AND

NEW ZEALAND POLICE

Respondent

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

ORAL JUDGMENT OF GAULT J

Solicitors:

Mr DHP Schellenberg, Barrister, Auckland ([email protected]) Ms J C Bull, Meredith Connell, Office of the Crown Solicitor, Auckland

JAMIE MATHEW HAYWARD v POLICE [2019] NZHC 847 [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]    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 of suppression were that publication would cause extreme hardship to the appellant’s daughter – because she would be bullied at school as she shares his 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

[3]    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.

District Court decision

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

[5]    In relation to the risk of extreme hardship to the appellant’s daughter, 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.

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

(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.

[6]    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

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

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

[9]    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,

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

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

the seriousness of the offending, the views of the victim(s) and the public interest in knowing the character of the offender.

[10]   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

[11]   The appellant says the Judge erred in finding there was no arguable case for extreme   hardship   on   the   grounds   advanced.    Counsel    for   the   appellant, Mr Schellenberg, notes that the appellant is entitled to the presumption of innocence, and that the Judge erred in finding that this did not displace the principle of open justice. Counsel submits there is  also  a  real  risk  of  prejudice  to  fair  trial,  but Mr Schellenberg acknowledges there is nothing particular about this case suggesting a jury could not follow directions.

[12]   Mr Schellenberg notes he has been unable to take instructions since filing the appeal, and as such can put forward no new affidavit. The appellant has, apparently, broken his tailbone, which makes walking difficult. He is not responding to efforts by his counsel to contact him.

[13]   Despite this, Mr Schellenberg submits the appellant’s daughter will suffer extreme hardship. The appellant and his daughter share both a first and last name. He says the daughter has already suffered serious bulling at school in the past, and it is having a major effect on her wellbeing.

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].

[14]   Mr Schellenberg further argues that the Judge erred by placing insufficient weight on the fact the appellant is “merely facing the allegations, and enjoys the presumption of innocence guaranteed by … the New Zealand Bill of Rights Act”.

[15]   Ms Bull, counsel for the respondent, submits that the threshold for extreme hardship is high, and that the evidence on this application does not meet that test, even on the lower threshold of an “arguable case”.

[16]   The respondent accepts that the appellant is entitled to the presumption of innocence but says that has never been an overriding factor in favour of name suppression.7 The respondent says Judge Ryan was correct to decline suppression for the reasons she gave, and that there is no evidence that the appellant’s daughter will, in fact, suffer bullying of the type alleged by Mr Schellenberg.

Decision

[17]   I do not consider there is an arguable case for extreme hardship to the appellant’s daughter.

[18]   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.

[19]   I accept that the appellant’s daughter shares his name, first and last. However, I have no evidence before me, not even an affidavit from the appellant, that shows that the appellant’s daughter suffers from any particularly egregious bullying, or is

7      Citing Procter v R [1997] NZLR 295 (CA) at 299.

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

particularly susceptible to it. I note suppression on the ground that a defendant’s child will be bullied has been denied in cases with much stronger facts than this.9

[20]   It is, of course, regrettable that a defendant’s family suffers humiliation or distress on a loved one being charged or convicted of an offence. However, the principle of open justice runs strongly through our system, and it is not easily displaced.

[21]   I do, of course, accept that the appellant is entitled to the presumption of innocence. However, I accept the respondent’s submission that, while it is a factor to be considered, it is not a reason of itself to grant suppression.

[22]   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

[23]The appeal is dismissed.

Gault J

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