Jaz v The King

[2023] NZHC 1227

NOTE: PUBLICATION OF NAME(S), ADDRESS(ES), OCCUPATION(S) OR IDENTIFYING PARTICULARS OF COMPLAINANT(S) PROHIBITED BY S 203 OF THE CRIMINAL PROCEDURE ACT 2011. SEE

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2023-409-64 CRI-2023-409-65

[2023] NZHC 1227

BETWEEN

ROBERTO JAZ

Appellant

AND

THE KING

Respondent

CRI-2023-409-66

BETWEEN

DANNY JAZ
Appellant

AND

THE KING

Respondent

Hearing:

Further memoranda: Teleconference:

16 May 2023

23 May 2023
24 May 2023

Appearances:

T Aickin and M Smit for Roberto Jaz D J Matthews for Danny Jaz

A R McRae for Crown
E D Nilsson for Interested Party (Stuff Ltd)
A Harding for Interested Party (NZME) – written submissions

Judgment:

25 May 2023

JUDGMENT OF EATON J

This judgment was delivered by me on 25 May 2023 at 9.30 am

pursuant to Rule 11.5 of the High Court Rules Registrar/Deputy Registrar

Date:

JAZ v R [2023] NZHC 1227 [25 May 2023]

[1]    Mr Roberto Jaz and Mr Danny Jaz were convicted following a Judge alone trial on a raft of charges involving extensive stupefying, sexual, drug, and violence offending. Interim orders suppressing the names of the appellants were revoked by Judge Mabey KC on 26 April 2023. Both appeal that decision.

Background

[2]    Police launched Operation Sinatra after complaints were made in July 2018 by two women alleging that they had been drugged and sexually assaulted. On the night of that offending, the two women had gone to Mama Hooch bar, which Danny Jaz managed, to celebrate a birthday. Subsequently, many further instances of offending connected to Mama Hooch and the restaurant, Venuti, where Roberto Jaz was a chef, were discovered which involved a similar pattern of drugging young women, the majority of whom were aged between 18 and 24 years.

[3]    Operation Sinatra uncovered that, between 2015 and 2018, the two Jaz brothers had offended against a substantial number of victims. Both men were involved in hospitality businesses proximate to each other (Mama Hooch and Venuti). They would use their positions to administer, or facilitate the administration of, stupefying substances mixed with alcoholic drinks. This appears to have been to encourage a “party atmosphere” at the Mama Hooch establishment and to lower the resistance of targeted young women to sexual advances by them. Both Roberto Jaz and Danny Jaz repeatedly committed sexual assaults to varying degrees of severity.

[4]    The men discussed their offending with others in a WhatsApp group chat and would share visual material there.

[5]    At the commencement of the trial, Danny Jaz pleaded guilty to numerous charges of sexual violation, including one charge of sexual violation by rape, and of indecent assault. Following a nine-week trial, Judge Mabey found Danny Jaz guilty in respect of charges of stupefying and of disabling, one charge of attempted stupefying and two charges of offering to supply a Class B controlled drug. Roberto Jaz was found guilty of several charges relating to stupefying, attempted stupefying, sexual violation including one charge of sexual violation by rape, indecent assault, making intimate visual recordings, a charge of male assaults female, possession of an

objectionable image, and two charges of offering to supply Class B controlled drugs. The brothers are to be sentenced on 24 and 25 August 2023.

District Court decision

[6]    On the morning of 26 April 2023, the Judge was to hear pre-trial argument on a further trial faced by both Danny Jaz and Roberto Jaz, and two other defendants. That trial was due to commence on 1 May 2023. At the pre-trial hearing, the prosecutor announced his decision not to proceed against Danny Jaz and Roberto Jaz on a charge of disabling a complainant and to accept a guilty plea from Roberto Jaz to a charge of indecent assault and to offer no evidence against Roberto Jaz on a charge of sexual violation. That resolved the charges to be heard at the trial set to commence on 1 May. The Judge then refused applications to continue the interim orders suppressing the names of the appellants in relation to the trial matters.

[7]    In rejecting the submission made on behalf of Danny Jaz that publication of his name will have an adverse impact on his family, the Judge observed that Danny Jaz had pleaded guilty to an extensive range of sexual offences and must have known that consequent publicity would affect his family.

[8]    The Judge recognised the high threshold imposed by the “extreme hardship” test and the ordinary associated consequences of conviction for criminal offending, including adverse impacts on family. He considered that while Danny Jaz was still to face a jury trial in respect of an allegation of assault with intent to injure, the facts of that alleged offending were so distinct from the offending for which he had been convicted that potential prejudice to fair trial rights could be dealt with by judicial direction. The Judge was reinforced in this conclusion by the intense public interest in the case.

[9]    Name suppression for Roberto Jaz on the grounds that his mother suffers ill health was refused. The Judge, relying in part on the same reasons as refusing the application made by Danny Jaz, considered the mother’s ill-health did not permit permanent suppression.

[10]Interim suppression was continued pending determination of this appeal.

Principles on appeal

[11]   The starting point for consideration of a suppression order is the presumption of open justice.1 The business of the courts should be conducted publicly, and any departure from this general rule ought only to be “to the extent necessary to serve the ends of justice”.2 A suppression order may be made under s 200 of the Criminal Procedure Act 2011 (CPA).

[12]   In determining whether to exercise its discretion, a court is required to undertake a two-step inquiry.3 Firstly, whether any of the threshold grounds in s 200(2) CPA are met. In considering whether a ground is “likely to” occur, a real and appreciable risk is required.4 Secondly, if the court is satisfied that a threshold has been met, it must determine whether to exercise its discretion and forbid publication of the defendant’s details.5 The presumption of open justice is considered at this stage.

To displace the presumption, the balance must clearly favour suppression.6

[13]   An appeal court is required to undertake its own assessment of whether the threshold test is met.7 The second stage involves a discretionary exercise, and the appellate function is more circumscribed with the concern being with whether the appealed decision involved an error in law or principle, a failure to account for a relevant consideration, or took into account an irrelevant consideration.8 The first appeal court must confirm, vary or set aside the decision appealed against or make any other order it considers appropriate.9

1      Robertson v Police [2015] NZCA 7; D (CA443/2015) v Police [2015] NZCA 541, (2015)

27 CRNZ 614.

2      Erceg v Erceg [2016] NZSC 135, [2017] 1 NZLR 310 at [3].

3      D (CA443/2015) v Police, above n 1, at [10].

4      JM v R [2015] NZHC 426 at [33]-[36].

5      Fagan v Serious Fraud Office [2013] NZCA 367 at [9]; Robertson v Police, above 1;

D (CA443/2015) v Police, above n 1.

6      D (CA443/2015) v Police, above n 1, at [17].

7      Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141 at [16].

8      Parker v R [2020] NZCA 502, (2020) 29 CRNZ 536 at [29].

9      Criminal Procedure Act 2011, s 287.

Submissions

Submissions for Roberto Jaz

[14]   Ms Aickin, for Roberto Jaz, submits interim name suppression should be continued until sentencing in late August.

[15]   She submits the Judge did not permit counsel to make oral or written submissions in respect of continuing name suppression. Ms Aickin argues that publication of Roberto Jaz’s identity would cause extreme hardship to his mother, Ms Jaz. In support, Ms Aickin relies on an affidavit from Ms Jaz annexing a note from her General Practitioner. That material is advanced as fresh evidence.

[16]   The affidavit describes Ms Jaz suffering extreme stress and anxiety since the beginning of her son’s trial in February 2023. Since the guilty verdict, Ms Jaz says she has felt unable to leave the house alone. She reports she is terrified of being persecuted by members of the community and says other members of the family have received abusive communications. Her anxiety has only worsened since her sons’ convictions, largely, she considers, due to the intense media coverage. She has also struggled in managing her diabetes. She says she has lost weight and has suicidal thoughts. The family restaurant has had to shut, leading to a loss of income while financial obligations remain.

[17]   The medical note is her GP’s record of Ms Jaz having expressed the same symptoms and concerns during a medical consultation on 27 April 2023.

[18]   Continuation of interim name suppression is sought until sentencing on 24 and 25 August 2023 to allow Ms Jaz time to make arrangements for her personal and financial wellbeing. Counsel submits that, as Roberto Jaz now faces a lengthy custodial sentence, there is little public interest in publishing his name prior to sentencing.

Submissions for Danny Jaz

[19]   Mr Matthews, for Danny Jaz, advanced the appeal on a single ground, namely that publication was likely to create a real risk of prejudice to a fair trial. Danny Jaz

faces a charge of assault with intent to injure. That charge was laid in 2019. He has pleaded not guilty and elected a jury trial. No trial date has been allocated.

[20]   That ground of appeal also engaged s 199A of the CPA, the automatic suppression of publication of previous convictions. Section 199A was not addressed by counsel or the Judge in the hearing on 26 April 2023, and the fact Danny Jaz was convicted following the Operation Sinatra trial has been widely published. At the appeal hearing, Mr Nilsson for Stuff Limited made an oral application to lift the automatic suppression.

[21]   Counsel sought the opportunity to file further submissions addressing s 199A and the application by Stuff Limited to lift the automatic suppression of previous convictions. Leave was granted and further submissions timetabled.

[22]   By memorandum dated 23 May 2023, Mr McRae confirmed that a decision had been made, following consultation with the assault complainant, to withdraw the outstanding assault charge. The charge was formally withdrawn in the District Court on the afternoon of 24 May 2023. It is therefore no longer necessary for counsel to address the s 199A issues.

[23]   By memorandum dated 24 May 2023, Mr Matthews responsibly acknowledged that following the withdrawal of the outstanding charge, Danny Jaz cannot advance the prejudice to fair trial argument. A notice of abandonment of the appeal has since been filed. Although he did not advance extreme hardship to his mother as a ground of appeal, Mr Matthews submits that if the Court were to allow the appeal of Roberto Jaz, the Court should also continue name suppression for Danny Jaz.

Respondent’s submissions

[24]   Mr McRae does not oppose the admission of the fresh evidence from Ms Jaz but submits that it falls far short of establishing that publication would cause extreme hardship to Roberto Jaz. Mr McRae submits that humiliation, significant distress, and exacerbation of severe anxiety are insufficient to meet the high threshold of s 200(2) of the CPA.

[25]   As regards loss of income, Mr McRae contends the loss of Venuti’s licence has been an active process for several years which eventually culminated in February 2023. Any loss of income will not, he submits, be a consequence of publication of the name of either appellant.

[26]   Having addressed the threshold test, counsel argues that the public interest and principle of open justice substantially outweigh any factors favouring suppression. Mr McRae reports that the victims favour publication, which also avoids the risk of suspicion falling on others.

Submissions for media NZME

[27]   In written submissions, Ms Harding for NZME supports the submissions advanced by the Crown. She submits that the evidence advanced by Roberto Jaz does not meet the statutory criteria.

Stuff Limited

[28]   Likewise, Mr Nilsson for Stuff Limited submits the evidence of the harm that will likely be caused to Ms Jaz in the event of publication falls well short of establishing extreme hardship. Mr Nilsson highlights the absence of independent expert evidence and the failure to address steps that might be taken in mitigation. He submits there is significant public interest in publication.

Section 199A - observations

[29]   Section 199A was inserted, as from 26 August 2020, by s 29 of the Contempt of Court Act 2019. It provides that once a proceeding has commenced for a category 3 or 4 offence, no person may publish details of any of the defendant’s previous convictions. Section 199A(3) provides that the court, on its own initiative or on application, may lift or vary the automatic suppression.

[30]   Automatic suppression of prior convictions is intended to preserve fair trial rights. Juror knowledge of previous convictions will often give rise to a real risk of

prejudice to a fair trial. But the section does not appear to contemplate the not uncommon scenario where a defendant is facing two (or more) discrete prosecutions. If, as in this case, the media are reporting on a trial that results in a guilty verdict and conviction but the defendant is awaiting a jury trial on other charges, s 199A(1) would prohibit the media reporting the outcome of the trial in the event of a guilty verdict and conviction (which would inherently suggest the outcome of the trial).

[31]   If, and again as in this case, the defendant enjoys name suppression in relation to the outstanding jury  trial, how might the media know that s 199A(1) applies?    Mr Nilsson tells me, and I accept, that Stuff Limited, which has reported that the Operation Sinatra defendants have been convicted, did not know Danny Jaz was facing trial on the assault with intent charge. The publication of the convictions would seem to be in breach of the automatic suppression, albeit that breach is unwitting.

[32]   The issues that I have briefly identified will need to be considered whenever a defendant is facing separate trials and s 199A(1) applies.

Analysis

[33]   A defendant’s identity may be suppressed by the Court if one of the threshold tests proscribed in s 200(2) of the Criminal Procedure Act 2011 (the Act) is met. Of relevance to this appeal, s 200(2) provides:

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

…

[34]   The approach to be taken in considering an application for name suppression was summarised by the Court of Appeal in H v R:10

(a)First, decide whether the publication would be likely to meet one of the thresholds in s 200(2) (in this case, whether publication would be likely to “cause extreme hardship” or “endanger the safety of any person”). “Likely” means a real and appreciable possibility.11 “Extreme hardship requires something out of the ordinary compared

10     H v R [2021] NZCA 48 at [14].

11     Huang v Serious Fraud Office [2017] NZCA 187 at [10].

with the distress, embarrassment and adverse personal and financial consequences usually attending criminal proceedings.

(b)Second, the Court must balance relevant considerations in exercising its discretion. The balance must clearly favour suppression. The relevant considerations include the principle of open justice, the public interest in knowing the defendant’s character and identity, the right to freedom of expression, the age of the applicant, the likely impact of publication on prospects of rehabilitation, any other personal circumstances, and the interests of victims and other affected persons.

[35]   It is well established that extreme hardship connotes a very high level of hardship,12 and that to satisfy the test will require an applicant to point to a consequence out of the ordinary and beyond the distress, anxiety, embarrassment and adverse personal financial consequences that so commonly are engaged in criminal proceedings.13

[36]   Further guidance is obtained by reference to the 2009 report of the Law Commission. In recommending the threshold of extreme hardship, the Commission stated:14

[3.41] … we have come to the view that extreme hardship better describes the level of hardship that should be required to result from publication of the name of an accused before the court exercises its discretion to suppress. It makes it clear that suppression of the name of the accused should be exceptional. Where extreme hardship to an accused would result, the judge may decide that the harm which would be caused is disproportionate to the public interest in open justice and the freedom to receive information.

[3.42] However, in some cases, where there is a high public interest in open justice, even extreme hardship may not be sufficient to justify a restriction on publication, and as the courts have indicated in the past, the circumstances that will result in name suppression after a conviction for a serious offence will be rare.

[37]   The Court of Appeal in R v Liddell observed that an element of anguish to the family of offenders is an ordinary associated consequence of offending:15

… anguish to the innocent family of an offender is an inevitable result of many convictions for serious crime. Only in an extraordinary case could it outweigh, in relation to the reporting of the name of a person convicted of a

12     Robertson v Police, above n 1, at [48]–[49].

13     D (CA 443/2015) v Police, above n 1, at [11].

14     Law Commission Suppressing Names and Evidence (NZLC R109, 2009).

15     R v Liddell [1995] 1 NZLR 538 (CA) at 544.

serious crime, the general principle of open justice and the open reporting of justice. …

Roberto Jaz - extreme hardship to mother

[38]   The appellants’ mother self-reports severe anxiety, a worsening of her diabetes condition, isolation and a fear of community persecution. Ms Jaz has attached to her affidavit a report from her GP, which largely reflects her self-report as to her condition and concerns. Whilst the GP notes confirm blood tests indicating very poor diabetic control and many months of neglect to personal health, she does not offer any objective assessment of the potential impact of publication on Ms Jaz’s mental or physical health that might justify a finding of extreme hardship.

[39]   I acknowledge Ms Jaz has experienced suicidal thoughts. The possibility of self-harm or even suicide does, of course, give rise to anxious consideration. However, experience suggests that suicidal thoughts in the circumstances confronted by Ms Jaz are not uncommon. In the absence of expert evidence as to psychological harm, I do not accept that the evidence of suicidal thoughts comes close to the threshold of establishing extreme hardship.

[40]   The hardship identified by Ms Jaz, including the receipt of abusive emails, does appear to primarily arise from the prosecution of her sons and subsequent media reporting of the trial and convictions. Publication of the identity of her sons will, I accept, cause further distress but, as Asher J put it in NN v Police, publication will be “just one event in a sequence of distressing events”.16

[41]   Ms Jaz must have been aware since her son, Danny Jaz, entered guilty pleas to a large number of serious sexual crimes at the outset of the trial, that publication of his name at the conclusion of the trial was inevitable. Relevantly, Ms Aickin only seeks interim suppression through to sentencing. A permanent suppression order is not sought. Ms Jaz has had the benefit of a further four weeks since the interim suppression orders were revoked to put in place arrangements to mitigate the elevated anxiety she will suffer when her sons’ names are published. The ongoing risk to

16     NN v Police [2015] NZHC 589 at [47].

Ms Jaz’s physical and mental health can, and ought to, be appropriately mitigated through consultations with her GP, or the counsellor referenced in the GP’s notes.

[42]   Finally, in her affidavit, Ms Jaz raises financial hardship. She deposes that she is without income as her family restaurant had to close during the trial and advises that she has ongoing financial obligations in relation to the business. That evidence falls well short of establishing extreme financial hardship to Ms Jaz. As Mr McRae highlighted, the directors of Venuti failed to appear at a licensing hearing convened for the renewal of the on-licence at that premise. The Licensing Committee declined to renew the licence, which then expired on 20 February 2023, following which the restaurant closed.

[43]Further, and as observed by this Court in Hughes v R:17

Financial loss is often a direct consequence of public knowledge of one’s offending. Sometimes the impact will reach beyond the economic interests of the offender, and may cause loss to his family and persons associated with him. However, these are ordinary consequences of the offender’s identity becoming public knowledge. …

[44]   The financial hardship raised by Ms Jaz flows from the fact of the offending, trial and conviction, and not publication of the names of her sons.

[45]   Roberto Jaz has failed establish that publication of his name will be likely to cause extreme hardship to his mother.

[46]   Even if Roberto Jaz could have established extreme hardship, in the exercise of the Court’s discretion the balance strongly favours publication. Open justice is a principle of “constitutional importance” vital to the operation of New Zealand’s criminal justice system.18 The present offending was extremely serious and engages very high public interest. Those factors strengthen the presumption in favour of open justice.19

17     Hughes v R [2015] NZHC 1501 at [41].

18     Erceg v Erceg, above n 2, at [2].

19     R v Liddell, above n 15, at 547.

[47]   Section 200(6) of the CPA requires the Court to consider the views of a victim when considering an application for permanent name suppression. Although this is an application for interim name suppression, I do nevertheless have regard to the interests of the multiple victims in this case. The victims strongly oppose continuation of the interim order for suppression. Further public interest considerations include the possibility of other victims coming forward and the avoidance of others being unfairly suspected of this offending.

[48]   The Judge was not prepared to continue name suppression for a short period to allow counsel to file evidence and make better informed submissions as to suppression. Consistent with the principles of natural justice, it would have been preferable for the Judge to have done so.20 Roberto Jaz has now had the opportunity to both file evidence and advance full submissions. I am satisfied there are no grounds to prohibit the publication of the name of Roberto Jaz. His appeal must be dismissed.

Danny Jaz – prejudice to fair trial

[49]   Danny Jaz accepts his sole ground of appeal has been addressed by the withdrawal of his outstanding charge. Mr Matthews has filed a notice of abandonment of appeal. Although s 337 of the CPA provides that an appellant may “at any time” abandon an appeal by the filing of a notice, in Waymouth v Ministry of Transport the Court of Appeal held that notwithstanding the same language of s 129 of the Summary Proceedings Act 1957, an appellant was not able to withdraw an appeal once the substantive hearing of the appeal had commenced.21

[50]   Following the withdrawal of the outstanding charge no prejudice to fair trial issue arises. The only remaining issue raised by Mr Matthews would have arisen if I had allowed the appeal of Roberto Jaz on the grounds of extreme hardship to the brother’s mother. The dismissal of Roberto’s appeal resolves that issue. The appeal brought by Danny Jaz must be dismissed.

20     Bennett v Superintendent of Rimutaka Prison HC Wellington CP86/02, 11 March 2003.

21     Waymouth v Ministry of Transport [1982] 1 NZLR 358 (CA) at 366-367

Result

[51]Both appeals are dismissed.

[52]   At the conclusion of oral argument, Ms Aickin sought time to consider an application for a second appeal in the event I was to dismiss the appeal. At a telephone conference held late on 24 May, Ms Aickin confirmed that Roberto Jaz no longer seeks that indulgence.

Embargo

[53]   To ensure the victims of the offending by the Jaz brothers have the opportunity to learn of the outcome of this appeal from the victim’s advisers or the Police, rather than through the media, publication of this judgment is embargoed until 1.00 pm on Thursday 25 May 2023.

...................................................

Eaton J

Solicitors/Counsel:

T Aickin, Barrister, Christchurch M Smit, Barrister, Christchurch

D Matthews, Barrister, Christchurch Crown Solicitor’s Office, Timaru Lee Salmon Long, Auckland

A Harding, NZME, Auckland