JAH v Police
[2012] NZHC 408
•12 March 2012
NOTE: PUBLICATION OF NAME(S) OR IDENTIFYING PARTICULARS OF COMPLAINANT(S) PROHIBITED BY S 139 CRIMINAL JUSTICE ACT
1985.
NOTE: PUBLICATION OF THE APPELLANT'S NAME PROHIBITED UNTIL 5.00 PM ON FRIDAY, 16 MARCH 2012: SEE [26] AND [27] OF THIS JUDGMENT.
IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY
CRI-2012-470-000003 [2012] NZHC 408
JAH
Appellant
v
NEW ZEALAND POLICE
Respondent
Hearing: 29 February 2012
Counsel: S Malaviya and T Shah for the Appellant
R W Jenson for the Respondent
Judgment: 12 March 2012
JUDGMENT OF DUFFY J
[Re Application for Continued Name Suppression]
This judgment was delivered by Justice Duffy on 12 March 2012 at 4.00 pm, pursuant to
r 11.5 of the High Court Rules
Registrar/Deputy Registrar
Date:
JAH v POLICE HC ROT CRI-2012-470-000003 [12 March 2012]
[1] The appellant is facing serious indictable charges alleging that he has sexually molested his stepdaughter and his wife’s grandchildren. When he appeared in the District Court to answer to the charges, he sought and was refused interim name suppression. He now appeals against that refusal to this Court. The appeal is opposed.
[2] The appellant faces 12 representative charges of indecent assault under s 132(2) of the Crimes Act 1961 and five representative charges of unlawful sexual connection under s 128(1)(b) of the Crimes Act. With the grandchildren, the offending is alleged to have occurred while they were visiting their grandmother during weekends and school holidays. The children were aged between five and 15 years. With the stepdaughter, the offending is alleged to have commenced when she was about 16.
[3] In the District Court, the appellant sought name suppression on the grounds that:
(a) Publication of his name would be detrimental to his presumption of innocence, considering the seriousness of the charges, such that it would prejudice his right to a fair trial;
(b)Publication would damage his business, which he runs jointly with his wife. Publication would also damage his brother’s company, given the company name. This company also holds a franchise contract for the same franchise that the appellant’s company does;
(c) Publication will lead to the complainants being identified as it is well known that they share a close personal relationship. Section 139 of the Criminal Justice Act 1985 bans publication of any details that would lead to the identification of the victim;
(d) Publication will cause irreversible damage to the appellant’s
reputation in the community; and
(e) Suppression will not harm the general right of the public to be informed as it is sought on an interim basis only.
[4] The District Court rejected all the grounds for name suppression advanced by the appellant. The District Court Judge found:
(a) There was no basis for thinking that publication would damage the appellant’s presumption of innocence or prejudice his right to a fair trial, given that the trial will not be dealt with in his local court;
(b) Publication would not be detrimental to his business.
In this regard, the appellant was relying on the terms of his franchise contract to prove detriment. The District Court found that the relevant terms in those contracts that allow the franchisor to terminate require a conviction, or proof or commission of certain offences, or some harm to the business standing of the franchisor. The Judge was not satisfied that any of those elements existed;
(c) The company of the appellant’s brother is a completely separate company with a different name from the company run by the appellant and his wife, and the brother’s company is subject to a completely separate franchising agreement. It is unlikely that the publication of the appellant’s name would affect his brother’s business;
(d)There is no basis on which the complainants can be precisely identified. Even though the appellant lives in a relatively small community and the children still have some association with that community, they now live elsewhere and they do not share any surname with the appellant;
(e) The Judge did not accept that publication would damage the appellant’s reputation as an acquittal should be sufficient to dispose of any damage that should arise;
(f) Sections 5 and 14 of the New Zealand Bill of Rights Act 1990 make freedom of expression the paramount principle in New Zealand courts. There is a prima facie presumption against name suppression. The public interests and the public being aware of these allegations outweigh the private interest of the appellant and his family.
Approach on appeal
[5] At the relevant time, the suppression of a defendant’s identity was governed by provisions in the Criminal Justice Act 1985. Suppression is now governed by s 200 of the Criminal Procedure Act 2011. However, the transitional provisions in that Act provide that where proceedings were commenced before s 200 came into force and have not been finally determined (which includes appeals), the proceeding must continue in accordance with the previous law.
[6] Section 139 of the Criminal Justice Act prohibited publication of the name of the complainant in offences like the present, or particulars likely to lead to the identification of that person, subject to certain exceptions.
[7] An appeal against an exercise of power under s 139(1) is by way of general appeal. Section 119 of the Summary Proceedings Act 1957 states that general appeals are to be heard by way of re-hearing, that is the appellate court may consider the merits of the case afresh: see K v B [2011] 2 NZLR 1 at [32].
[8] Section 140(1) of the Criminal Justice Act gave the court the power to prohibit the publication of any details of the persons accused, convicted, or connected with the proceedings, or any particulars likely to lead to that person’s identification.
[9] Unlike an appeal against the exercise of power under s 139, an appeal against an exercise of power under s 140(1) is an appeal against the exercise of a discretion. In an such appeal, the appellate court may not consider the merits of the case afresh. The requirements for a successful appeal are somewhat stricter than on general appeal, being limited to (see K v B at [32]):
(i) Error of law or principle;
(ii) Taking account of irrelevant considerations;
(iii) Failing to take account of irrelevant considerations; or
(iv) The decision being plainly wrong.
Was the Judge correct to refuse to grant name suppression under s 139(1) of the
Criminal Justice Act?
[10] The welfare of the victims is the exclusive focus of this section: see R v W [1998] 1 NZLR 35 (CA) at 40. This protective ethos is reinforced by s 139(1AA), inserted by the Victims Rights Act 2002.
[11] R v W interpreted “likely to lead to identification” as meaning having an “appreciable risk” of identification. The role for the appellate court is to make its own assessment of this risk.
[12] There is nothing before me that would persuade me that the risk of identification of the victims is more than minimal. The complainants do not share a common surname with the appellant and they live in a different part of the country. The fact the complainants may still have some connection to the appellant’s community and that it is a rather small community may make it possible for certain people who are familiar with the appellant and his community to deduce who the complainants are. For example, people who know that the grandchildren used to regularly stay at the appellant’s home and who observe the grandchildren and stepdaughter are no longer visiting may conclude from that, and their knowledge of
the charges the appellant faces, that the grandchildren and his stepdaughter are the complainants. However, this risk would be limited to a very small class of people.
[13] Furthermore, the Police oppose the application. I consider it permissible to infer from their opposition that they would have discussed the matter with the complainants and/or their parents, and would have made their own assessment on whether publication would lead to the identification of the complainants. The fact they oppose the application insofar as it is made on this ground is a factor that informs me that the appreciable risk of the complainants being identified must be low. Otherwise, I would expect the Police to support the application on this ground. I am satisfied, therefore, that there is no basis for granting interim name suppression under s 139(1).
Was the Judge correct to refuse to grant name suppression under s 140(1)?
[14] There is a prima facie presumption in favour of openness in reporting, given the importance in a democracy of freedom of speech, open judicial proceedings and the right of the media to report on such proceedings fairly and accurately as proxies for the public: see R v Liddell [1995] 1 NZLR 538 at 546. The correct approach is to start with this presumption and consider whether other factors are sufficient to displace it: Serious Fraud Office v Singh HC Auckland CRI-2007-404-219, 28
August 2007. This includes considering whether, in the circumstances, an order under s 140 of the Criminal Justice Act 1985 is a reasonable limitation upon the right to receive and impart information in terms of ss 5 and 14 of the New Zealand Bill of Rights Act 1990.The balance must come down clearly in favour of suppression if the presumption is to be overcome: see Lewis v Wilson & Horton [2000] 3 NZLR 546 (CA) at [43].
[15] Though the Court of Appeal has specifically avoided laying down specific guidelines (see R v Liddell at 547), certain criteria have commonly been considered relevant, including:
(a) Significant adverse impact on the accused, for example, if publication would potentially compromise a fair trial if it means the accused is unable to defend himself adequately:
In R v W (No 2) (2004) 21 CRNZ 937 (HC), the accused was charged with the murder of his baby daughter. The Court deemed that publication (and the consequent media attention) may render him unable to conduct himself calmly through the trial, and therefore compromise his ability to defend himself. That was an identifiable harm clearly extending beyond what is ordinary in the circumstances and being disproportionate to the public interest involved (see Lewis v Wilson & Horton at [68]).
(b) Adverse impact on an accused’s family:
In W v Police [1997] 2 NZLR 17 at 20, Gendall J stated that adverse effects on families carry little weight in the case of serious offending. However, in W v Police (1984) 1 CRNZ 174, the Court granted interim name suppression until the accused was committed for trial for rape, on the basis that publication would in all probability exacerbate the difficulties for the accused’s wife and stepdaughter and would have jeopardised attempts to reconcile.
(c) Impact of publicity on defendant’s employer:
Name suppression will not be granted where the effect of such publicity is simply a normal consequence of the offending. In Proctor v R [1997] 1 NZLR 295 (CA), the Court of Appeal refused to grant name suppression to a general surgeon charged with sexual abuse charges, who argued that publicity would destroy his professional practice. Whereas in T v Commissioner of Police HC Auckland AP282/91, 29 November 1991, the Court granted name suppression to an accused who worked at a centre for intellectually handicapped
children on the basis that the centre would be adversely affected by
publication of the accused’s name on a charge of aggravated robbery.
(d) Prejudice to the accused’s right to a fair trial:
In R v A [2007] 2 NZLR 218, the accused was granted name suppression on the basis that he and his co-accused faced other charges on unrelated matters. Publication of his name in relation to a charge relating to a sex crime was said to distort the proceedings for those future charges.
(e) That publication is contrary to the appellant’s presumption of
innocence:
Though the Court of Appeal in Proctor held that this was a significant factor, its relevance is problematic. Being charged does not necessarily imply legal guilt, though publicity may lead the public to think the accused is guilty. This factor is better justified by reference to the potential hardship to the accused.
(f) The seriousness of the crime, especially where there is public interest in knowing about the character of the accused in cases involving sexual offending is a strong factor militating against the granting of name suppression: see Lewis v Wilson & Horton and R v Liddell.
Did the Judge approach the case correctly?
[16] The Judge took the correct approach in noting the prima facie presumption of openness. As for each of the grounds the appellant raised, it was within the Judge’s discretion to dismiss them.
Presumption of innocence and the appellant’s fair trial rights
[17] The Judge could not see how either the presumption of innocence or fair trial
rights were prejudiced by the publication of the appellant’s name. I agree. Issues of
fair trial usually involve the influence of media attention and public opinion on the jury, or on the compromising of evidence. I agree with the Judge’s contention that the fact that the trial will not take place in the appellant’s local court should remove the risk of jury contamination. Further, juries are always directed by a trial judge to disregard anything they have learnt in the media about the offending or the accused. Such directions are regularly given in courts in this country and there is nothing to suggest they are not effective.
The detriment to the appellant’s business
[18] The appellant had argued that a company in which he and his wife were shareholders operated under a franchise agreement that enabled the franchisor to terminate the agreement if the company or its shareholders were charged with an offence.
[19] The Judge did not accept that the appellant’s franchise contract would be terminated, given the actual terms of the contract. I do not completely agree with the Judge. I consider that clause 22.1(g) of the contract does allow the franchisor to terminate the contract if:
The franchisee commits … or is charged with any offence (whether arising out of the franchisee’s performance of the obligations imposed under this agreement or not) which in the opinion (of the franchisor) adversely affects, or is likely to adversely affect the business or standing of the franchisor.
[20] The Judge’s response to this at [8] was that he could conceive of no
circumstances:
in which it could fairly be said that the appellant who is entitled to the presumption of innocence, could be thought by any franchisor to have adversely affected the business or standing of the franchisor company.
However, this overlooks the fact that clause 22.1(g) is at the franchisor’s sole discretion. I think the fact that the appellant is charged with multiple counts of sex crimes against children could give rise to a risk that the franchisor would attempt to terminate the contract on the grounds set out in clause 22.1(g). Nonetheless, the Judge’s view that the franchisor was not likely to cancel the agreement when the
offending had nothing to do with performance of the agreement was a reasonable view for him to adopt.
[21] Furthermore, the appellant, acting on behalf of his company, signed up to the franchise agreement, which included clause 22.1(g). The appellant cannot now complain about any potential adverse outcome through the franchisor exercising its rights under clause 22.1(g) when the appellant is the person who knowingly subjected his company, and indirectly himself and his wife, to the risk of that clause being exercised against them in circumstances where either the company or one of the shareholders was charged with an offence.
Detriment to brother’s business
[22] I agree with the Judge’s assessment; the brother’s company has a different name and is subject to a separate franchising agreement. There is no legal risk of that franchising agreement being terminated.
Effect on reputation
[23] I agree with the Judge’s assessment of the effect of publication on the appellant’s reputation. As with other persons facing serious criminal charges, any damage to reputation will be rectified by an acquittal. There is nothing about the appellant’s circumstances to remove him from the general body of persons who find themselves facing criminal charges and are subsequently acquitted.
Conclusion
[24] Overall, the considerations for granting name suppression fall short of outweighing the presumption in favour of publication, especially given that the appellant has been charged with relatively serious crimes of a sexual nature.
[25] At the hearing, I complimented counsel for the appellant on the thoroughness of the preparation and presentation of the appellant’s case. Counsel were instructed at short notice, but have presented an exemplary case for the appellant.
[26] If the appellant wants to pursue a further appeal for name suppression to a higher court, time will be needed to take those steps. I propose, therefore, to leave in place the temporary name suppression that was made in the District Court until
5.00 pm on Friday, 16 March 2012. At that time, the temporary name suppression order will automatically lapse. Any continuation of name suppression will depend on the appellant’s ability to persuade a higher court to grant him name suppression.
Result
[27] The application for interim name suppression is dismissed. The present temporary name suppression made in the District Court is continued until 5.00 pm on Friday, 16 March 2012, after which time it will automatically lapse.
Duffy J
Counsel: S Malaviya and T Shah Equity Law Chambers P O Box 8333 Symonds Street
Auckland 1150 for the Appellant
Solicitors: Ronayne Hollister-Jones Lellman P O Box 13063 (DX HP40041) Tauranga Central Tauranga 3141 for the Crown
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