Jayme v Ministry of Business, Innovation and Employment
[2016] NZHC 165
•10 February 2016
IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY
CRI-2015-419-000055 [2016] NZHC 165
LORAINE ANNE JAYME
v
MINISTRY OF BUSINESS, INNOVATION AND EMPLOYMENT
Hearing: 10 February 2016 Appearances:
R Laybourn for Appellant
T Needham for RespondentJudgment:
10 February 2016
ORAL JUDGMENT OF WYLIE J
Solicitors/counsel:
Crown Solicitor, Hamilton
R Laybourn, Hamilton
JAYME v MINISTRY OF BUSINESS, INNOVATION AND EMPLOYMENT [2016] NZHC 165 [10 February
2016]
Introduction
[1] The appellant Ms Jayme faces 284 charges of dishonesty. She has not to date entered a plea in respect of the same. The charges allege that she falsified various documents to support applications for work visas from Filipino nationals wanting to come to New Zealand.
[2] The charges were first laid in October 2015. Ms Jayme was granted interim name suppression on 17 November 2015 until a hearing which took place on 14
December 2015 in front of Judge Otene. At that hearing she sought to continue name suppression, and requested that the order should be extended to suppress any further details that might identify her.
[3] The informant, the Ministry of Business, Innovation and Employment, opposed any continued or expanded suppression.
[4] Judge Otene declined to suppress Ms Jayme’s name or to extend the order.
Ms Jayme now appeals that decision.
District Court Decision
[5] Before Judge Otene, Ms Jayme advanced her application on the grounds set out in s 200(2)(a) and (e) of the Criminal Procedure Act 2011. She argued that publication of her name would be likely to either cause extreme hardship to her or to her family, or to endanger her safety or the safety of her family.
[6] Judge Otene noted that Ms Jayme’s case as to extreme hardship was threefold. First, she argued that publication of her identity would lead to the identification of her children – aged three and seven – and potentially expose them to hurtful comments at school and in the rural community where they live. Secondly she argued that her mother-in-law, her father-in-law and her brother, who are resident overseas, suffer serious ill health and that their conditions could be exacerbated by publication of her name and identity. Thirdly she argued that she had received threatening emails from two unidentified persons containing threats to harm her and her family. She argued that those emails demonstrated a real risk that there are
members of the public and/or of the Filipino community in New Zealand and in the
Philippines who may seek to harm her or her family if her identity is published.
[7] Judge Otene summarised the relevant statutory provisions. She recorded that the starting point is the importance of freedom of speech, open judicial proceedings and the right of the media to report proceedings fairly and accurately as surrogates of the public.
[8] Judge Otene recorded that having considered the submissions and evidence before her, she was not satisfied that publication would be likely to cause extreme hardship to Ms Jayme or her family or endanger her safety or that of her family.
[9] In relation to the children she acknowledged that the children of defendants can be at risk of exposure but considered that that of itself did not amount to extreme hardship. Nor did the fact that the children live in a small rural town. She noted that the evidence of potential psychological stress for the children was no more than an assertion by Ms Jayme. In relation to the health of her family members, she did not consider that evidence of their medical conditions which was before the Court established the gravity of those conditions. She found that it did not address the likely affect of publication on their health. She also took into account the fact that the family members reside overseas and that they would therefore have some shield from the immediacy of publication of Ms Jayme’s identity. In relation to the threatening emails she noted that Ms Jayme’s identity is already known to the authors of those emails. She noted that the persons who wrote the emails appear fearful that her alleged actions may have compromised their immigration status. She noted advice she had received from the informant’s counsel that all affected workers had had their visas confirmed and that they are not at risk of deportation. The Judge noted that the alleged offending appears to have affected a distinct group in the Filipino community and she considered that it was reasonable to infer that those persons directly affected by the alleged offending, and indeed the wider Filipino community, would already know Ms Jayme’s identity.
[10] Accordingly, Judge Otene found that the threshold to grant name suppression was not met and the application for continued and extended suppression was declined.
Submissions
[11] Mr Laybourn, appearing for Ms Jayme, argued that the Judge dismissed Ms Jayme’s concerns relating to the risk to the children, and in particular the seven year old, too lightly. He submitted that the reality must be that a school child who is a Filipino national is conspicuous, and that publication of allegations against his/her mother would inevitably become well known and relatively quickly. He noted that there is no dispute that Ms Jayme’s family members suffer from various states of ill health. He acknowledged that while it is impossible to look into the future, it is conceivable that relatives in the Philippines could suffer health effects from the probable publication of Ms Jayme’s name in that country if suppression is lifted. He disputed Judge Otene’s observations that the family members reside overseas and that they would therefore have some shield from the immediacy of publication. He argued that the reality of the internet is that news agencies can publish material worldwide within a very short timeframe. He noted that there is no dispute that Ms Jayme’s received threatening emails. He argued that there is a very strong likelihood that the risk of serious threats can only increase with the publication of Ms Jayme’s name. He disputed the Judge’s inference that members of the wider Filipino community would already know Ms Jayme’s identity.
[12] Ms Needham for the Crown supported Judge Otene’s decision. She noted that any appeal against a refusal of name suppression proceeds as an appeal against the exercise of a judicial discretion. She noted that the threshold of extreme hardship put in place under s 200(2)(a) of the Criminal Procedure Act is very high. She submitted that there is no evidence to demonstrate the effects alleged publication may have on the children, and put it to me that in any event name suppression should not be available simply because the child of an alleged offender may be exposed to some measure of embarrassment or vulnerability. She also argued that any risk in that regard can be appropriately managed. She submitted that Judge Otene was right to consider that the threshold was not met in regards to the health issues of family
members. She submitted that any impact publicity may have on the appellant’s overseas family members is at best, limited. Ms Needham did not dispute that Ms Jayme has received death threats. She however reiterated the Judge’s finding that the threats must have come from people who already know her name and details and that publication of her name is likely to have little effect in encouraging further threats. She went further and submitted that publication may in fact reduce the threat to Ms Jayme’s safety as it would inform those aggrieved that Ms Jayme is being dealt with through the judicial system.
The Appeal
[13] Section 283 of the Criminal Procedure Act 2011 provides that an appeal may be brought as of right against a name suppression decision. A first appeal Court must determine a first appeal by confirming the decision, varying the decision, setting the decision aside or making any other order it considers appropriate.1
[14] An appeal against a refusal of name suppression proceeds as an appeal against the exercise of a judicial discretion.2 As a result, the Court must be satisfied that the Judge who initially heard the matter failed to take into account a relevant consideration, took into account an irrelevant consideration, proceeded on an erroneous basis, or made a decision which was plainly wrong.
Analysis
[15] Relevantly s 200 of the Criminal Procedure Act provides as follows:
200 Court may suppress identity of defendant
(1) A court may make an order forbidding publication of the name, address, or occupation of a person who is charged with, or convicted or acquitted 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 extreme hardship to the person charged with, or convicted of, or acquitted of the offence, or any person connected with that person; or
…
(e) endanger the safety of any person; or
…
[16] The threshold for extreme hardship under s 200(2)(a) is very high. I note the observations of the Court of Appeal in Robertson v Police:3
[48] 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.
[17] I now turn to deal with the effect the publication of Ms Jayme’s name may have on her children. As I have noted she has two children, one aged three and the other aged seven. Mr Laybourn properly accepted that it is only the seven year old who is at school whose interests are in issue. First, I note that there was no evidence provided to Judge Otene to demonstrate the effect the publication may have on the child. As a result the impact of publication can only be assessed by reference to the effect that publication or a person’s name may have on the children of anybody who is accused of a crime. I note that in Robertson the High Court observed that name suppression cannot be granted every time a child of an offender might be exposed to some measure of embarrassment or vulnerability. Rather the hardship must be
extreme.4 Here there is nothing to suggest that publication of Ms Jayme’s name
would cause extreme hardship to her eldest child. Secondly, as I understand it the family live in a relatively remote rural area. While publication of the child’s mother’s name may cause some embarrassment or vulnerability for the child, I consider that the risks of that embarrassment or vulnerability can be managed by persons aware of the situation both in the child’s home and at the child’s school. I agree with Judge Otene that the fact that the family lives in a rural area could well assist in limiting the consequences for the children of publicity, thus mitigating the risks of embarrassment, vulnerability and any associated bullying.
[18] I next turn to consider the health issues of family members. Ms Needham did not dispute that the family members suffer from health issues. She did however dispute that those health issues are particularly serious, or that the health of family members is likely to deteriorate if Ms Jayme’s name is published. All family members live overseas. Their health could only be impacted by the release of Ms Jayme’s name if publicity takes place overseas. It is but speculation that that could occur. I accept the point made by Mr Laybourn that publicity can readily occur via the internet. However it is Ms Jayme’s name which will be published in the event that the suppression order is lifted. That is not the name that she was known by in the Philippines – her country of origin. It is her married name. Further there is no evidence to suggest that the impact of any publicity is likely to have any significant effect on the health of Ms Jayme’s family members. I do not consider that the possible impact on family members falls outside ordinary experience or that the extreme threshold put in place by s 200(2)(a) is met.
[19] Finally, I turn to the threats to the appellant’s safety. There is no dispute that those threats have been made. Mr Laybourn has made available to me extracts from the relevant emails which contained the threats. It seems that the threats emanated from victims of the alleged offending. I agree with Ms Needham and Judge Otene that the offenders must have already known Ms Jayme’s name and details otherwise the emails could not have been sent. I note the advice I have received from Ms Needham, which is not disputed by Mr Laybourn, that those aggrieved by the offending have had their immigration status confirmed. In my judgment there is nothing to suggest that publication of Ms Jayme’s name is going to have any effect in either accelerating or extinguishing the risk of further threats being made. There is some force in Ms Needham’s submission that publication may in fact reduce the threat to Ms Jayme’s safety, because it will inform those aggrieved that the matter is before the Courts.
[20] Judge Otene was correct when she found that there is a very high public interest in this matter. In my judgment such minimal hardship (if any) as may be suffered by Ms Jayme and her family in the event that her name is published is outweighed by that very high public interest. Publication will ensure that suspicion is not cast unfairly on others.
[21] I do note that Ms Needham suggested that there may have been further behaviour by Ms Jayme while on bail which should bear on the question of name suppression. I do not accept that submission. If the informant considers that there has been inappropriate behaviour, or indeed further offending by Ms Jayme while on bail, then the appropriate course is to lay further charges or bring the matter before the Court by alleging a breach of the bail bond. It has not done so and I am not prepared to proceed on the basis of a suspicion of further offending which is not substantiated.
[22] In conclusion, in my judgment Judge Otene was correct to find that the threshold in s 202(a) and (e) was not met by Ms Jayme. The Judge was correct to find that she did not have discretion to grant the suppression order sought. Further she was correct when she found that the public interest outweighs such minimal hardship (if any) as Ms Jayme may suffer as a result of publication of her name.
[23] The appeal is declined and the name suppression order initially made by the
District Court is lifted.
Wylie J
0
0