K v Police HC Timaru Cri-2007-476-20

[2007] NZHC 854

This case has been anonymized

PUBLICATION OF DETAILS RELATING TO THE APPELLANT’S MOTHER’S MEDICAL CERTIFICATE IS PROHIBITED.

IN THE HIGH COURT OF NEW ZEALAND TIMARU REGISTRY

CRI-2007-476-000020

K

Appellant

v

POLICE

Respondent

Hearing:         4 September 2007

Appearances: S A Saunderson-Warner for Appellant

A R MacGougan for Crown

Judgment:      4 September 2007

ORAL JUDGMENT OF HON. JUSTICE JOHN HANSEN

A.       The appeal is dismissed.

B.       All details of the appellant’s mother’s medical certificate are suppressed.

K V POLICE HC TIM CRI-2007-476-000020  4 September 2007

REASONS

[1]      K   was convicted of cultivating a prohibited plant, namely cannabis, and having possession of a class C controlled drug, namely cannabis.  He pleaded guilty at an early stage before Judge Callaghan, and was sentenced on 7

August.

[2]      Mr K   maintained, as many cannabis users coming before the Court do, that he used cannabis for pain relief, notwithstanding that Parliament has deemed cannabis to be an illegal class C drug.   On this occasion,  the  police  found  11 cannabis plants approximately 30 centimetres in height, with a light, a moisture meter and polythene, along with garden sprays and bottles, so it was a modestly sophisticated operation.

[3]      Notwithstanding an extensive previous list of convictions, the Judge no doubt took into account that gap of ten years since his previous offending and imposed a fine of $500 plus costs.  At that time Mr K  , who was self-represented, applied for name suppression on the basis of a letter from his mother’s doctor that stated his mother had significant stress-related health issues which would be adversely affected by the publication of her son Grant’s name in the Court news.

[4]      Mr K  , now represented, appeals against the refusal of the learned District Court Judge to grant name suppression.  There has been placed before the Court a more extensive medical report that states that Mr K  ’s mother has significant stress-related health issues that could be adversely affected.  There seems to be a severe intractable dermatitis which has been exacerbated in the past by the sad loss of her husband, and the tragic loss of a grandchild.  She also has age-related health problems.

[5]      As the Crown has stated, it seems a little surprising to claim that the mother knows nothing of the appellant’s offending.  It appears, from the instructions to the appellant’s counsel, that the doctor released this information to the Court without the permission of the patient.  That is, of course, not something this Court can properly comment on.

[6]      The starting point of course is that the Courts are open courts.  The leading authority, which is referred to by Ms MacGougan in her submissions are R v Liddell [1995] 1 NZLR 538, Lewis v Wilson and Horton Limited [2003] 3 NZLR 546 and R v Proctor [1997] 1 NZLR 295. The starting point under s140 must always be the importance in a democracy of freedom of speech, open judicial proceedings and the right of the media to report the matter fairly and accurately as surrogates of the public.

[7]      Lewis did note:

…

Circumstances personal to the person appearing before the Court, his family, or those who work with him and impact upon financial and professional interests. As it is usual for distress, embarrassment, and adverse personal and financial consequences to attend criminal proceedings, some damage out of the ordinary and disproportionate to the public interest in open justice in the particular case is required to displace the presumption in favour of reporting.

[8]      It is submitted that the contents of the letter from the doctor show that the consequences of the name being reported would be disproportionate to the public interest in open justice.  It must be said that the public interest in open justice is a very powerful one in this country.   Not only from the cited authorities, but also protected by the Bill of Rights.

[9]      It also must be said that this is an appeal against the exercise of a discretion by the learned District Court Judge.  In those circumstances it is necessary for the appellant to show that the Judge took into account irrelevant evidence, failed to take into account relevant evidence, or was plainly wrong.   In my view none of those matters has been established.  Nor do I think publication of name is disproportionate. It will be unfortunate for the appellant’s mother, but it is not disproportionate to the very strong presumption in favour of open justice.

[10]     While I accept that Mr K   has made substantial progress and stayed out of trouble for in fact 11 years, he does have a considerable criminal record, so it cannot be a total surprise to his mother.

[11]     This is an appeal without merit.  It is dismissed.

[12]     For the benefit of the mother, the contents of the certificate dealing with her specific health problems remain suppressed as Judge Callaghan ordered.

Solicitors:
Crown Solicitor, Timaru

S A Saunderson-Warner, Timaru