Jane Alison Farish v King

Case [2024] NZSC 65

ORDER PROHIBITING PUBLICATION OF THIS JUDGMENT, THE MEDIA RELEASE AND THE MINUTES, AND ANY INFORMATION THEREIN, UNTIL THE JUDGMENT IS DELIVERED AT 2.00 PM ON 11 JUNE 2024.

ORDER PROHIBITING PUBLICATION OF CERTAIN EVIDENCE AND SUBMISSIONS CONTAINED IN THIS JUDGMENT PURSUANT TO S 205 OF THE CRIMINAL PROCEDURE ACT 2011. SEE PARAGRAPH [82].

ORDER REDACTING PARTS OF THE JUDGMENT THAT IS MADE PUBLICLY AVAILABLE.

 ORDER PROHIBITING SEARCH OF THE FILES FOR THIS APPEAL WITHOUT THE LEAVE OF A JUDGE OF THIS COURT.

IN THE SUPREME COURT OF NEW ZEALAND

I TE KŌTI MANA NUI O AOTEAROA
 SC 90/2023
 [2024] NZSC 65
BETWEEN

JANE ALISON FARISH
Appellant

AND

THE KING
Respondent
Hearing:

28 February 2024

Court:

Winkelmann CJ, Glazebrook, Ellen France, Williams and Miller JJ

Counsel:

F E Guy Kidd KC and K T Dalziel for Appellant
B C L Charmley and T R Simpson for Respondent
E D Nilsson and K M Hursthouse for Stuff Ltd as Intervener

Judgment:

11 June 2024

JUDGMENT OF THE COURT

A        The appeal is allowed. 

BWe make an order prohibiting publication of this judgment, the media release and the minutes, and any information therein, until the judgment is delivered at 2.00 pm on 11 June 2024.

C        We make an order prohibiting publication of certain evidence and submissions contained in this judgment pursuant to s 205 of the Criminal Procedure Act 2011.  See paragraph [82].

DWe make an order redacting parts of the judgment that is made publicly available.

EWe make an order that the files for this appeal are not to be searched without the leave of a Judge of this Court.

____________________________________________________________________

REASONS
(Given by Miller J)

Table of Contents

Para No

Introduction and summary  [1]
Narrative  [8]
The appeal to this Court  [21]
Section 205 of the Criminal Procedure Act 2011  [25]
The courts’ approach to suppression in criminal proceedings  [34]
The public interest in the submissions and evidence in this case  [37]

The evidence about [REDACTED]  [37]

The public interest in this information  [40]

The public interest in judges not being seen to receive special treatment            [47]

The evidence about likelihood of risk to personal safety  [53]
The likelihood that publication will result in endangerment  [57]
Should the Court forbid publication of evidence and submissions?                 [71]
Disposition  [80]

Introduction and summary

  1. The question in this appeal is whether the Court of Appeal was wrong to decline suppression of part of the evidence adduced and submissions made before it in a proceeding in respect of an offence, exercising jurisdiction under s 205(2)(c) of the Criminal Procedure Act 2011. 

  2. The proceeding was the prosecution of Ian Dallison for attempted murder and wounding with intent to injure.  The evidence and submissions comprised information about the circumstances of the appellant, Jane Farish, who was Mr Dallison’s girlfriend.[1]  She is a District Court judge.  It is common ground between her and the Crown that she knew nothing of his plans and had no involvement in the offending. 

    [1]That is the term she uses to describe…

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AGLC
Jane Alison Farish v King [2024] NZSC 65
Case
[2024] NZSC 65
Decision Date

CaseChat Overview and Summary

The appellant, Jane Alison Farish, appealed a decision of the District Court of New Zealand, which suppressed evidence in proceedings against the respondent, Mr Dallison. The suppression order was made under section 205 of the New Zealand Evidence Act 2006, which allows a court to forbid publication of evidence or submissions in a proceeding in respect of an offence. The suppression order was made to prevent undue hardship to a victim of the offence and to prevent endangerment to the safety of any person. The appellant argued that the suppression order was excessive and that it was not necessary to suppress the evidence to prevent undue hardship or endangerment of safety. The court was required to determine whether the suppression order was justified under section 205 of the Act.

The court considered the threshold for suppression under section 205(2)(a) and (c) of the Act. The threshold for suppression under section 205(2)(a) is whether publication would be likely to cause undue hardship to any victim of the offence. The court found that publication of the evidence would not cause undue hardship to the victim. The threshold for suppression under section 205(2)(c) is whether publication would be likely to endanger the safety of any person. The court found that publication of the evidence would not endanger the safety of any person. The court noted that the risk of endangerment is a function of the linked risks that publication will cause an action and that the action will endanger the safety of any person. The court was satisfied that there was a real and appreciable possibility that publication would put the safety of any person in danger. The court concluded that the suppression order was justified under section 205(2)(c) of the Act.

The court dismissed the appeal and upheld the suppression order. The court found that the suppression order was necessary to prevent the risk of endangerment to the safety of any person. The suppression order was not excessive and was proportionate to the risk of endangerment. The court noted that the risk of endangerment was not hypothetical and that it was not necessary to wait until actual harm occurred before taking action to prevent it. The court also noted that the suppression order did not prevent all publication of the evidence, but only publication of the evidence that was likely to endanger the safety of any person. The court considered that the suppression order was an appropriate and necessary measure to prevent the risk of endangerment to the safety of any person.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

Section 205 provides:205 Court may suppress evidence and submissions(1)A court may make an order forbidding publication of any report or account of the whole or any part of the evidence adduced or the submissions made in any proceeding in respect of an offence.(2)The court may make an order under subsection (1) only if the court is satisfied that publication would be likely to—(a) cause undue hardship to any victim of the offence; or(b) create a real risk of prejudice to a fair trial; or(c) endanger the safety of any person; or(d)lead to the identification of a person whose name is suppressed by order or by law; or(e)prejudice the maintenance of the law, including the prevention, investigation, and detection of offences; or(f) prejudice the security or defence of New Zealand. As a matter of construction, this provision rests on the premise that the evidence adduced and submissions made in any proceeding in respect of an offence may be published unless there are grounds to forbid publication and the court decides to forbid it. One of the thresholds in subs (2) must be crossed before the court has jurisdiction to forbid publication of evidence adduced or submissions made. The threshold under subs (2)(a) is the only one that requires the court to consider whether hardship is undue. It is concerned with the impact of publication on a victim of the offence. The others all require that the court consider whether publication of the information concerned is likely to cause the specified consequence. The risk to which the court is directed under subs (2)(c) is that of endangerment of the safety of any person. To “endanger” someone is to put them in danger, or to expose them to peril or harm.[23] “Safety” plainly includes their physical safety from assault or injury.[23]Bryan A Garner (ed) Black’s Law Dictionary (11th ed, Thomson Reuters, St Paul (Minnesota), 2019) at 667. The statutory language recognises that there will be instances where publishing case-related information may trigger an action that may result in harm to “any person”. In such cases, the court must consider the likelihood both that publication will cause that action and that the action will endanger the safety of any person. The risk of endangerment is a function of those two linked risks. The court need not be satisfied that actual harm to personal safety will result. It must be satisfied that there is a real and appreciable possibility that publication will put the safety of any person in danger. We have explained that the same threshold—danger to the safety of any person‍—applies to suppression of the name, address or occupation of a connected person under s 202(2)(c). In practice, danger to personal safety may be addressed by prohibiting publication of identifying information, so ensuring the connected person remains anonymous. In this case, the appellant is to be identified as a connected person of Mr Dallison’s. That may elevate any risk posed to her, or to other people through her, from the publication of evidence or submissions. For example, publication of her identity makes it easier for a reader to seek out publicly available information about her, [REDACTED].

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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