Jeffries v Police
[2014] NZHC 2379
•30 September 2014
ORDER PROHIBITING PUBLICATION OF THE STREET ADDRESS OF THE APPELLANT'S HOME PURSUANT TO S 200 CRIMINAL PROCEDURE ACT 2011.
INTERIM ORDER CONTINUING TO SUPPRESS APPELLANT'S NAME UNTIL 4.00 PM ON 2 OCTOBER 2014 OR UNTIL FURTHER ORDER OF THE HIGH COURT OR THE COURT OF APPEAL.
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
CRI- 2014-485-000076 [2014] NZHC 2379
BETWEEN KEITH IAN JEFFERIES
Appellant
AND
NEW ZEALAND POLICE First Respondent
FAIRFAX NEW ZEALAND LIMITED Second Respondent
Hearing: 30 September 2014 Counsel:
C J Tennet for Appellant
J M O'Sullivan for First Respondent
A M Stevens for Second RespondentJudgment:
30 September 2014
JUDGMENT OF COLLINS J [Name Suppression]
Introduction
[1] I am dismissing Mr Jefferies’ appeal from a decision of the District Court in
which Judge Cameron refused to grant orders suppressing Mr Jefferies name.1
[2] I am confirming Judge Cameron’s decision because in my assessment
Judge Cameron was correct in all material respects. Specifically, Judge Cameron
1 R v Jefferies DC Wellington CRI-2014-085-8995, 22 September 2014.
JEFFERIES v NEW ZEALAND POLICE [2014] NZHC 2379 [30 September 2014]
applied the correct principles, only took into account relevant matters, did not overlook any relevant matters and was plainly correct.2
[3] I am, however, making an order suppressing publication of the street address of Mr Jefferies’ home.
Background
[4] Mr Jefferies is a Wellington lawyer, who practises primarily as a criminal trial lawyer in partnership with Mr Raizis under the name “Jefferies & Raizis”. Their partnership was established in 1990.
[5] On 30 July 2014 Mr Jefferies was charged with four offences under the
Misuse of Drugs Act 1975:
(1) possession of a Class A controlled drug (LSD);3
(2) possession of a Class A controlled drug (methamphetamine);4
(3) possession of a Class B controlled drug (ecstasy);5 and
(4) possession of tools used for smoking methamphetamine.6
[6] Mr Jefferies was arrested following the termination of a police operation in which Mr Jefferies’ home, car and business premises were searched. During the search of those premises the police say they located, amongst other matters, the
following items:
2 B (CA860/10) v R [2011] NZCA 331 at [9]; Lawrence v R [2011] NZCA 272 at [11]; and Rowley v Commissioner of Inland Revenue [2011] NZCA 160, [2011] NZSC 6 at [5].
3 Misuse of Drugs Act 1975, s 7(1)(a) and (2)(a). Maximum penalty is six months’ imprisonment,
$1,000 fine.
4 Misuse of Drugs Act 1975, s 7(1)(a) and (2)(a). Maximum penalty is six months’ imprisonment,
$1,000 fine.
5 Misuse of Drugs Act 1975, s 7(1)(a) and (2)(b). Maximum penalty is three months’
imprisonment, $500 fine.
6 Misuse of Drugs Act 1975, s 13(1)(a) and (3). Maximum penalty is one year imprisonment,
$500 fine.
(1) In Mr Jefferies’ home in a bedroom:
a plastic snaplock bag containing rolled pieces of tinfoil with tabs of LSD;
a snaplock bag with 0.25 grams of methamphetamine;
an empty “joint bag”;
five ecstasy tablets; and
a methamphetamine pipe.
(2) In Mr Jefferies’ car:
a methamphetamine pipe.
(3) In Mr Jefferies’ office:
a methamphetamine pipe;
several plastic snaplock bags with visible remnants of methamphetamine; and
a further snaplock bag containing approximately 0.03 grams of
methamphetamine.
[7] Mr Jefferies denies the alleged offending. When he spoke to the police he said that all of the items belonged to other people and had either been left in his home or in his car or had been given to him in order for him to dispose of the items in question.
[8] Judge Cameron described the case against Mr Jefferies as “strong”.
The application
[9] Mr Jefferies sought name suppression under s 200(2)(a), (b), (d) and (g) of the Criminal Procedure Act 2011 (the Act).
[10] Those provisions enable a Court to make an order forbidding publication of the name, address or occupation of a person who is charged with an offence, only if the Court is satisfied that publication would be likely to:
(a) cause extreme hardship to the person charged … or any person connected with that person; or
(b) cast suspicion on another person that may cause undue hardship to that person; or
…
(d) create a real risk of prejudice to a fair trial; or
…
(g) prejudice the maintenance of the law …
[11] The application under s 200(2)(a) of the Act was advanced on the grounds that publishing Mr Jefferies’ name in connection with the charges would cause extreme hardship to Mr Jefferies and Mr Raizis. Specifically, Mr Jefferies said that publishing his name would significantly undermine his professional reputation, thereby undercutting his ability to practice. This in turn would cause extreme financial hardship to himself and Mr Raizis.
[12] The application under s 200(2)(b) of the Act was based on the concern that publishing Mr Jefferies’ name would unfairly implicate Mr Raizis, thereby causing Mr Raizis undue hardship.
[13] The application under s 200(2)(d) of the Act was advanced on the ground that publishing Mr Jefferies’ name in association with the charges would negate the presumption of innocence to which he is entitled and create a real risk of prejudice to a fair trial.
[14] The final ground advanced was based on s 200(2)(g) of the Act. It was submitted that publishing Mr Jefferies’ name would have a negative impact on his clients in the eyes of potential jurors, thereby undermining not only their fair trial rights but also cause prejudice to the maintenance of the law.
[15] Judge Cameron dismissed all of the arguments advanced on behalf of Mr Jefferies. I will not reiterate his reasons. Instead I shall briefly set out why, in my assessment, the conclusion reached by Judge Cameron is unimpeachable.
Presumption of innocence
[16] Mr Tennet, counsel for Mr Jefferies, submitted that Judge Cameron failed to recognise that Mr Jefferies is entitled to the presumption of innocence in observing that the case against Mr Jefferies was “strong”. I do not think Judge Cameron made that error. It is to be noted for example, that Judge Cameron recognised the police summary of facts contains only allegations which are “strongly denied” by Mr Jefferies.7
[17] Decisions about name suppression do not involve issues of guilt or innocence. Judge Cameron’s observation in his judgment that the case against Mr Jefferies is “strong” reflected Judge Cameron’s assessment of the contents of the police summary of facts. It was not a comment about Mr Jefferies’ guilt or innocence.
[18] In considering Mr Jefferies’ appeal I have kept uppermost in my mind Mr Jefferies must be treated as being innocent until he either pleads guilty or the Crown proves him guilty beyond reasonable doubt.
Extreme hardship
[19] Prior to the passing of the Act, a person who wished to have his or her name suppressed in criminal proceedings faced difficult challenges because of the
presumption of openness in criminal court proceedings. This point was made in R v
Liddell, where Cooke P explained:8
… the starting point must always be the importance in a democracy of freedom of speech, open judicial proceedings, and the right of the media to report the latter fairly and accurately as “surrogates of the public”.
[20] This approach has been endorsed on many occasions by the Court of Appeal.9
[21] It was against that background that Parliament passed s 200 of the Act, under which, an applicant for name suppression must establish extreme hardship either to himself or herself or a person connected with himself or herself before he or she could have his or her name suppressed. When passing s 200 of the Act, Parliament raised the bar to obtaining name suppression from that which previously existed so that now, an application for name suppression requires proof of a very high level of
hardship.10
[22] Mr Tennet submitted that Judge Cameron failed to take into account the seriousness of the charges when assessing whether or not extreme hardship had been established. It was submitted:11
The test for “extreme hardship” cannot exist in a vacuum. It must be a sliding scale according to the nature of the charges. Obviously the more serious the charges the more one needs to prove extreme hardship.
[23] This part of the argument advanced on behalf of Mr Jefferies was underpinned by the proposition that the charges he faces are “minor” and are “matters that could be – and are from time to time – the subject of diversion”.12
[24] I agree that the assessment of whether or not an appellant has established extreme hardship cannot be assessed in a vacuum. Name suppression decisions are
fact based and must be assessed in the context of all relevant information.
8 R v Liddell [1995] 1 NZLR 538 at 546 (CA).
9 See Proctor v R [1997] 1 NZLR 295 (CA); Lewis v Wilson & Horton Ltd [2000] 3 NZLR 546 (CA) and Re Victim X [2003] 3 NZLR 220 (CA).
10 RM v Police [2012] NZHC 2080; Law Commission Suppressing Names and Evidence (NZLC
109, 2009) at [3.6].
11 Submissions of counsel for appellant, 25 September 2014 at [10].
12 Submissions of counsel for appellant, 25 September 2014 at [11](d).
[25] The nature of a charge may be a legitimate consideration for a Judge to take into account when exercising his or her discretion to grant or decline name suppression. That discretion can only be exercised once the criteria for name suppression have been established.
[26] In any event, I do not believe the nature of the charges assist Mr Jefferies’ application because the charges faced by Mr Jefferies cannot be classified as “minor”. Possession of Class A and Class B controlled drugs is a serious matter and involves more than minor legal and moral culpability.
[27] It was also submitted Judge Cameron erred by taking into account the summary of facts that was incorporated into submissions filed in opposition to the application for name suppression. I accept that a summary of facts is not evidence and that ultimately matters contained in the summary of facts may prove to be wrong. However, an application for name suppression is a pre-trial procedure that can only be resolved on the basis of the information that is provided at the time the application is considered. Judge Cameron did nothing more than set out the police summary of the evidence that he had been given.
[28] In the present case Judge Cameron was correct when he concluded
Mr Jefferies had not established extreme hardship to himself or Mr Raizis.
[29] While it is possible that both Mr Jefferies and Mr Raizis will lose some clients and suffer a reduction in income if Mr Jefferies’ name is published, that possibility falls well short of the high threshold set in s 200(2)(a) of the Act.
[30] Those who are charged with criminal offences and have their names published often suffer financial harm, as do those who work with or who are associated with them.13
[31] Neither Mr Jefferies or Mr Raizis have provided evidence of the kind that would be required to establish either one of them will suffer extreme hardship if Mr Jefferies’ name is published in connection with the charges he is facing.
Suspicion to others and undue hardship
[32] A lower threshold is required for name suppression under s 200(2)(b) of the Act. Under that subsection an application for name suppression may be granted where it is established by the applicant that publishing his or her name will cast suspicion on another person and cause that person undue hardship.
[33] “Undue hardship” requires more than hardship that would normally occur from publication of a defendant’s name. The test suggests a need to establish a real risk of greater hardship than the circumstances justify.
[34] In the present case it is said that absent name suppression for Mr Jefferies, suspicion will be cast on Mr Raizis, thereby causing him undue hardship.
[35] It was suggested by Mr Tennet that Judge Cameron conflated the tests under s 200(2)(a) and (b) of the Act when considering Mr Raizis’ circumstances. I do not believe Judge Cameron made that error. In any event, to avoid any risk of unfairness to Mr Raizis, I have considered his circumstances by applying the test required by s 200(2)(b) of the Act.
[36] In my assessment, the suggestion that suspicion will be cast on Mr Raizis is overstated. Any objective and reasonable person reading any publicity about Mr Jefferies and the charges he is facing should not conclude that Mr Raizis is implicated. If in publishing Mr Jefferies’ name in connection with the charges the media should consider it necessary to refer to the name of Mr Jefferies’ law practice, then the media should make it very clear Mr Raizis is not implicated.
Prejudice to a fair trial
[37] There must be a real risk of prejudice to a fair trial before name suppression could be granted under s 200(2)(d) of the Act.
[38] The threshold of a “real risk” is a moderately high threshold which reflects the view that Courts have traditionally:14
(1)placed reliance on juries adhering to clear warnings about ignoring pre-trial publicity; and
(2) recognising that not all pre-trial publicity can be eliminated.
[39] In this case Mr Jefferies can only be tried by a Judge. This factor further diminishes any concerns about prejudice to a fair trial because the District Court Judge who presides at Mr Jefferies’ trial will not be influenced by any pre-trial publicity.
Maintenance of the law
[40] Similarly, the suggestion Mr Jefferies’ clients in forthcoming trials may be judged “guilty by association” is unfounded. If there are any concerns of this nature then they will be addressed by trial judges directing a jury in any trial which Mr Jefferies appears as counsel to put to one side any pre-trial publicity about any person associated with the trial.
Discretion
[41] The jurisdiction to grant name suppression is discretionary. Even if any of the statutory grounds for name suppression had been established Judge Cameron said he would not have granted name suppression. I agree with Judge Cameron’s approach to his residual discretion for the following two reasons:
(1)I am concerned that suspicion has already been unfairly cast over a number of Wellington lawyers. This suspicion arises from publicity that has already been given about the charges faced by Mr Jefferies. In his affidavit Mr Jefferies annexed newspaper clippings from the Dominion Post which were published soon after his arrest which referred to “a prominent Wellington lawyer … fighting to keep his name secret after being charged with drug offences …”. I accept that suspicion has been cast over other lawyers because of the way Mr Jefferies’ case has been reported.
The reality is that as a result of publicity to date, a number of Wellington lawyers have had a pall of suspicion cast over them in circumstances which are unfortunate and unfair to them.
(2)The Court should carefully guard against any suggestion that lawyers or other professionals are to be treated differently from other defendants.
[42] Mr Jefferies is very concerned about aspects of the way his case has been reported to date and how confidential information was passed to the Dominion Post. Those concerns should be fully explored before the appropriate authorities. Judge Cameron was correct when he did not take into account the concerns Mr Jefferies has raised about the media and police conduct to date when assessing the threshold and discretionary stages of Mr Jefferies’ name suppression application.
Mr Jefferies’ home address
[43] In this Court Mr Jefferies has asked that details of his home street address be suppressed so as to avoid unnecessary intrusion into his private life. Mr Jefferies is concerned that publishing his home street address will expose him to unwarranted attention by those who may wish to intrude into his home life. Regrettably, many in the legal profession have to take the precaution of deleting reference to their home addresses in publicly available records. I can see no reason why it would be necessary to publish Mr Jefferies’ home address in relation to matters raised in this proceeding. The Crown does not disagree and, responsibly, Fairfax Media Ltd agrees it is not necessary to publish the street address of Mr Jefferies’ home. I am willing to conclude that publishing Mr Jefferies’ home address is likely to cause him extreme hardship. Therefore, nothing may be published which identifies the street address of Mr Jefferies.
Section 205 of the Act
[44] Mr Tennet submitted that the details of the police summary of facts which
were incorporated into counsel’s submissions in the District Court and which I have
repeated in paragraph [6] of this judgment should be suppressed under s 205(2)(b) of the Act.
[45] That section permits the Court to forbid publication of any evidence or submissions if the Court is satisfied that publication would be likely to create a real risk of prejudice to a fair trial.
[46] In this case it is submitted that publishing the details of the police summary of facts creates a real risk of prejudice to Mr Jefferies’ right to a fair trial because the “facts” produced by the police are genuinely disputed and may prove to be wrong.
[47] I would have been willing to accept, albeit by the slightest margin, that publishing the minute details of the police summary of facts that I have set out in paragraph [6] could create a real danger of prejudice to any trial Mr Jefferies may face if he were to be tried by a jury. However, because Mr Jefferies can only be tried by a Judge different considerations are engaged. I do not believe there is any real risk of prejudice to Mr Jefferies’ right to a fair trial before a Judge if the details of the allegations and Mr Jefferies’ denials are able to be published at this juncture.
Conclusion
[48] The appeal from the decision of Judge Cameron declining Mr Jefferies name suppression is dismissed.
[49] I order suppression of the details of the street address of Mr Jefferies’ home.
Interim orders
[50] Mr Tennet has asked that I continue to suppress Mr Jefferies’ name until
4.00 pm on 2 October 2014 so as to enable him to take instructions on whether or not
Mr Jefferies wishes to appeal my decision.
[51] I will grant that request. Mr Jefferies’ name will continue to be suppressed until 4.00 pm on 2 October 2014 or until further order of this Court or the Court of Appeal.
D B Collins J
Solicitors:
Jefferies & Raizis, Wellington for Appellant
Crown Solicitor, Wellington for First Respondent
Izard Weston, Wellington for Second Respondent
9