Leary v Police HC Auckland CIV 2010-404-76

[2010] NZHC 624

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2010-404-0076

EDWARD POULTER LEARY CLAUDINE LAURA JANE LEARY Appellants

v

NEW ZEALAND POLICE

Respondent

Hearing:         29 March 2010

Appearances: B M Stanaway for the Crown

A G Speed for C Leary
C Cato for E Leary

Judgment:      22 April 2010

RESERVED JUDGMENT OF ELLIS J

This judgment was delivered by me on 22 April 2010

At 10.30 am, pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Solicitors:      Crown Solicitors, PO Box 533, Christchurch 8140

Counsel:       C B Cato, PO Box 941, Auckland 1140

A G Speed, PO Box 941, Auckland 1140

LEARY AND ANOR V POLICE HC AK CRI 2010-404-0076   22 April 2010

The appeal

[1]      This is an appeal against a decision of Judge C J Doherty, delivered on

8 March  2010,  declining  applications  by  the  appellants,  Mr  Edward  Leary  and

Mrs Claudine Leary, for final orders suppressing their names and identifying details.

[2]      Together with Mr Nicholas Voerman, the appellants were jointly charged with money laundering offences under s 243(2) of the Crimes Act 1961.   Their names, addresses and any identifying particulars were suppressed by Judge Sinclair on 3 July 2009.  Judge Sinclair also suppressed the reasons for her decision, pending the determination of certain applications.  Of those reasons, Judge Doherty said at [6] of the judgment under appeal:

Judge Sinclair succinctly set out the relevant principles to suppression orders in her judgment of 3 July, and I do not want to belabour the matter, but I adopt them.  In her judgment, which related to interim orders only, pending disposition   of   admissibility   and   discharge   applications,   she   found collectively the circumstances of each of Mr and Mrs Leary outweighed the presumption in favour of publication.  She placed considerable weight in her decision on the presumption of innocence and the right to a fair trial, particularly bearing in mind Mr Leary’s connection to the notorious drugs operation some years ago, known as “Mr Asia”, or the “Terry Clark” trial.

[3]      My understanding is that at the time when the matter was argued before Judge  Sinclair  the  opposition  to  suppression  had  been  “fronted”  by  APN  New Zealand Ltd and TVNZ.  Mr Stanaway advised me that the Crown did not actively oppose suppression at that stage because of fair trial concerns.

[4]      On 21 January 2010 Judge Doherty discharged the first appellant (Mr Leary) under  s  347  of  the  Crimes  Act  1961,  but  dismissed  a  similar  application  by Mrs Leary.  The discharge of Mr Leary was strenuously opposed by the Crown.  The argument turned on a legal point concerning the admissibility of certain hearsay evidence, namely records of intercepted conversations in which reference was made to Mr Leary but to which he was not a party.  More specifically the Crown sought to rely on the intercepted evidence against Mr Leary on the basis of the co- parties/conspirators exception to the hearsay rule.   However the learned District

Court Judge ultimately ruled against the Crown and Mr Leary was discharged on that basis.  At that point Mr Leary applied for permanent name suppression, as to which Judge Doherty reserved his decision.

[5]      Mr Voerman pleaded guilty to the charges against him on 24 February 2010 and his name suppression was lifted at that time.  He was sentenced to 12 months imprisonment.

[6]      On 8 March  2010 Mrs  Leary also  pleaded  guilty and  was  sentenced  by Judge Doherty to pay a fine of $10,000.  She also then applied for permanent name suppression which, along with the earlier application by Mr Leary, was declined by Judge Doherty on that day.

[7]      Six separate grounds of appeal were advanced by counsel for Mr Leary. These are summarised in the notice of appeal where it is said that overall the learned District Court Judge “erred in law and ignored relevant facts and took into account irrelevant and extraneous matters which in turn meant that [he] exercised his discretion wrongly.”

[8]      Mrs  Leary’s  notice  of  appeal  states  that  her  name  should  have  been permanently   suppressed   because   her   involvement   in   the   offending   was comparatively minor and inadvertent in nature, the Judge failed to take sufficient note of the effect publication would have on Mrs Leary’s aged mother and on her (Mrs Leary’s) employer and of the fact that the lifting of suppression in relation to Mrs Leary would necessarily lead to the identification of her husband, whose own application for suppression Mrs Leary supported, both before the District Court Judge and on appeal.

Approach to this Appeal

[9]      It will be evident from the outline of the appellants’ grounds of appeal given above that they have approached this appeal in the traditional way.  In other words it is an appeal against the exercise of the discretion as to which the onus is on the appellants to show that the judge acted on a wrong principle, that he failed to take

into account some relevant matter or that he took account of some irrelevant matter or that he was plainly wrong.

[10]     Mr Stanaway quite properly pointed out that it seems there has not been an entirely consistent approach to name suppression appeals following the Supreme Court’s decision in Austin, Nichols & Co Inc v Stichting Lodestar.[1]   He referred by way of  example  to  the  decisions  in  B  v  Professional  Conduct  Committee[2]  and

Anderson  v  Professional  Conduct  Committee[3]   which  were  not  determined  by

reference to the principles governing appeals from the exercise of discretion.  It is perhaps notable, however, that both cases involved appeals under s 109(2) of the Health Practitioners Competency Assurance Act 2003.

[1] Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141

[2] B v Professional Conduct Committee HC Auckland CIV 2008-404-008248, 6 November 2009.

[3] A v Professional Conduct Committee HC Wellington CIV 2008-485-1646, 14 November 2008.

[11]     Mr Stanaway submitted, and I accept, that the correct approach to the appeal before me is that set out by Potter J in Hamilton v Serious Fraud Office[4] where her Honour said at [10]:

Section 140 confers a discretion, which was exercised in this case by the Judge when he made his decision on 5 February 2009. An appellate court should not interfere with a decision made in the exercise of a discretion unless it can be shown that the Judge misdirected himself in law, applied an improper principle, failed to take into account some relevant factor, took into account an irrelevant matter, was plainly wrong, or there has been a change in circumstances: R v Liddell [1995] 1 NZLR 538, 545; Re Victim X [2003]

3 NZLR 220 (CA) at [32] and [56].

[4] Hamilton v Serious Fraud Office HC Auckland CRI-2009-404-29, 11 June 2009.

[12]     As I have noted, that approach (which has been endorsed by the Court of Appeal in Blackstone v Blackstone[5]) also accords with the basis on which the appellants framed their appeals and pursued their arguments in this Court.

Name Suppression: the Authorities

[5] Blackstone v Blackstone [2008] NZCA 312, [2008] 19 PRNZ 40 at [8].

[13]     It  is  common  ground  that  the  relevant  principles  by  which  a  judge considering suppression must be guided are to be found in the decisions of the Court of Appeal in R v Liddell,[6] Lewis v Wilson & Horton Ltd[7] and Proctor v R.[8]

[6] R v Liddell [1995] 1 NZLR 538 (CA).

[7] Lewis v Wilson & Horton Ltd [2000] 3 NZLR 546 (CA).

[8] Proctor v R [1997] 1 NZLR 295 (CA).

[14]     In Lewis v Wilson & Horton Ltd Elias CJ for the Court said at [41]:

In R v Liddell [1995] 1 NZLR 538 at pp 546-7 this Court declined to lay down any code to govern the exercise of a discretion conferred by Parliament in terms which are unfettered by any legislative prescription. But it recognised that the starting point must always be the importance of freedom of speech recognised by s 14 of the New Zealand Bill of Rights Act

1990, the importance of open judicial proceedings, and the right of the media to report Court proceedings:

What has to be stressed is that the prima facie presumption as to reporting is always in favour of openness.

[15]     The Court then listed a number of factors at [42] that would usually be taken into account, including:

a)       the seriousness of the offending (as Elias CJ noted, if the charge is trivial,  particular  damage  caused  by  publicity  may  outweigh  any public interest);

b)       any adverse impacts on the prospects of rehabilitation;

c)       the public interest in knowing the character of the person seeking name suppression (especially in cases involving sexual offending, dishonesty and drug use);

d)circumstances personal to the person appearing before the Court, family members and those who work with him; and

e)       any impact upon financial and professional interests.

[16]     At [43] the judgment emphasised the important issues at stake:

The Judge must identify and weigh the interests, public and private, which are relevant in the particular case. It will be necessary to confront the principle of open justice and on what basis it should yield. And since the Judge is required by s 3 to apply the New Zealand Bill of Rights Act 1990, it will be necessary for the Judge to consider whether in the circumstances the

order prohibiting publication under s 140 is a reasonable limitation upon the s 14 right to receive and impart information such as can be demonstrably justified in a free and democratic society (the test provided by s 5). Given the congruence of these important considerations, the balance must come down clearly in favour of suppression if the prima facie presumption in favour of open reporting is to be overcome.

[17]     The Court of Appeal’s decision in Proctor made it plain (at 298), that the principles set forth in Liddell were to be applied to the issue of name suppression both before and after trial, and there is nothing in Lewis v Wilson & Horton Ltd which suggests a different approach.

[18]     The application of these general principles to a case involving a prominent person was specifically considered by the Court of Appeal in Lewis at [68]:

The standing of the appellant as “an extraordinarily successful businessman, community leader and philanthropist” was not grounds for suppressing his name in the absence of evidence of special harm to him through publicity. No harm to the appellant was suggested beyond the submission that his standing would make media interest in him “undue”. That is tantamount to a submission that successful or prominent members of the community should receive  name  suppression  because  there  may  be  media  interest  in  such people. The Court cannot enter into assessment of whether media or public interest  is  appropriate  or  “undue”.  The  right  to  receive  and  impart information is not limited in the present context according to qualitative and subjective standards adopted by the Judge. It is a right to receive information “of any kind in any form”. In cases where some real harm is identified, it may be necessary for the Judge to decide whether the harm which would be caused  is  disproportionate to  the  public  interest  in open justice  and  the freedom to  receive  information  “of any kind”.  In  such  cases  it  may be necessary  for  the  Judge  to  weigh  the  public  interest  in  receiving  the particular information. But in the absence of identified harm from the publicity which clearly extends beyond what is normal in such cases, the presumption of public entitlement to the information prevails. Any other approach risks creating a privilege for those who are prominent which is not available   to   others   in   the   community   and   imposing   censorship   on information according to the Court’s perception of its value.

[19]     On the same issue the Law Commission in its recent report Suppressing

Names and Evidence[9] has said (at 3.51) that:

[9] Law Commission, Suppressing Names and Evidence (NZLC R109, 2009).

We consider that the fact that there will be greater interest in publishing information about a particular accused because he or she is well known may be relevant to the court’s consideration of a suppression application, but only in  so  far  as  it  relates  in  a  particular  case  to  the  question  of  whether publication will cause extreme hardship to the accused. It should not be

listed as a separate factor, as there is a risk that this may create a special class, a situation the courts have rightly tried to avoid.

[20]     It seems there are few cases in which the question of suppression after an acquittal has directly arisen for determination by the Courts in New Zealand. However the Court of Appeal in Liddell said (at 547):

... The case is concerned with s 140, which relates primarily to identification of the accused. The section is available when the accused is acquitted and may be applied in such a case somewhat more readily, although the Ontario decision in R v D(G) (1991) 63 CCC (3d) 134 is a reminder that the public may have an interest in acquittals.

...

A case of acquittal, or even conviction, of a truly trivial charge, where the damage caused to the accused by publicity would plainly outweigh any genuine public interest, is an instance when, depending on all the circumstances, the jurisdiction could properly be exercised.

[21]     I record in passing that the Canadian case referred to in this passage involved the question whether a Court had an inherent jurisdiction derived from section 7 of the  Canadian  Charter  to  make  non-publication  orders  over  and  above  those authorised by the Criminal Code.  The case involved the suppression of the name of a minister of religion who had been acquitted of sexual assault on a teenage boy. The Ontario Court of Appeal held that there was no such jurisdiction.

[22]     The only New Zealand case to which I was referred in which the question of an  acquittal  was  directly  in  issue  was  R  v  D.  The  case  involved  a  failed prosecution by the Serious Fraud Office.   D had been granted interim name suppression before trial and the issue was whether suppression should continue. Priestley J said at [18]:

I consider the interim order should be made permanent. This is for two reasons. First, the accused has had the benefit of an interim order since depositions. It makes no sense, in the context of this failed prosecution, to remove the protection of an interim order in a situation where the accused has   successfully   resisted   a   criminal   prosecution.   Secondly,   despite Mr Mullineux’s submissions, I consider it would be inequitable and unfair for the fact that the accused was prosecuted (albeit unsuccessfully) to be

published in a situation where the identity of the prime architect of the scheme is permanently suppressed. The fact that the co-defendant was discharged at an earlier stage in the process is not, in my judgment, a powerful distinguishing factor.

[23]     Mr Speed also urged upon me the submission that circumstances where an accused person has been discharged under s 347 are different again.  In doing so he referred me to the decision in R v H [1996] 2 NZLR 487 which he said show that the balance in favour of suppression will tip even more strongly in favour of the accused when the Court has found that there is no case to answer. In that case Baragwanath J granted name suppression following a discharge under s 347 on a charge of perpetrating gross indecencies on a young girl, on the basis that it was undesirable (at least on the facts of that case) that a member of the public who faces the ordeal of a trial, and against whom no case is found to exist, should have added to that burden the “gossip and chatter” which, given the s 347 discharge, would be unjustified. I note in passing that in R v H the s 347 discharge was not opposed by the Crown.

[24]     Ultimately, and because the balancing exercise that must be undertaken must occur on the basis of the particular facts of each case, it is not necessarily productive to seek to compare, or draw conclusions from, different cases involving different facts.   Nonetheless I address these two decisions further in the context of my consideration of the substantive merits of Mr Leary’s appeal below.

[25]     Finally, I note that the question of name suppression in relation to those who have been acquitted or discharged is not addressed discretely in the Law Commission’s recent report.  That is no doubt reflective both of the fact that such cases  arise  with  less  frequency  but  also  of  the  fact  that  such  cases  are  to  be determined in precisely the same way as other suppression cases: by weighing the competing interests at stake.

Mr Leary

Principal Grounds of Appeal

[26]     Although Mr Speed’s notice of appeal contained six separate grounds there was a degree overlap between them.   Mr Speed principally focused on two issues before me, namely:

a)       The improper weight placed by Judge Doherty on the public interest in not only open justice but more specifically (and with reference to Mr Leary’s past) in the continued fitness and propriety of Mr Leary to practise as a barrister and solicitor; and

b)The absence of proper weight placed by Judge Doherty on the fact that Mr Leary has been discharged under s 347.

[27]     Judge Doherty addressed these matters at [24] - [29] of his judgment in the following way:

[24]     The question for me to determine is whether or not these factors individually or collectively satisfy the Lewis test.  That is, does the balance come down clearly in favour of suppression?

[25]    The public interest in this case is heightened because of Mr Leary’s previous connections with the Mr Asia syndicate and the Terry Clark trials. He was struck from the roll of barristers and solicitors for being involved in the  possession  of  drugs,  giving  false  evidence,  and  for  deception  and wrongly receiving monies.   He was reinstated to the roll 20 years later in August 2007 by the [full] Court of the High Court, on appeal from a decision of the New Zealand Law Practitioners Disciplinary Committee, which had denied him his application to be reinstated.  The Court found that at that time Mr Leary, after a period of 20 years, was a fit and proper person to be on the roll, and admitted him.  His character was squarely at issue.  He swore an affidavit, he gave evidence and he was cross-examined by the tribunal.

[26]   Some of those matters were traversed on appeal by the High Court in the case of Leary v New Zealand Law Practitioners Disciplinary Tribunal [2008] NZAR 57, an unreported decision, a judgment of the Court on 21

August 2007.   It referred to his affidavit evidence and said in the Court’s traversing of that evidence that Mr Leary concluded his affidavit with this

paragraph:

The years have brought home to me the absolute necessity of exemplary conduct when challenged or tested on any issue.   The events that led to my downfall lead me to believe that at that time I lacked the ability to conduct myself in an exemplary way, and accordingly paid a huge price.  Reinforcement of exemplary conduct over the years has occurred through my expectation that all staff conduct themselves in the same way.   As I have learned to my detriment, reputation earned can be quickly lost, and the process of re-establishing that reputation is both difficult and complex.

[27]   Later there was reference to evidence by way of cross-examination of Mr Leary before the tribunal, where he described himself as having deviated in the worst possible way that one can describe, but he said that he believed that he had, quote, “redeemed myself to the point where I can hold my head up in the criminal courts and practice to that standard that is expected from the judiciary, from this tribunal and from the legal profession in general”. He might have added, “and the public.”

[28]   The Courts have said, and I agree, that those dealing with professional people are entitled to make up their own minds as to the character and the propensities  of  those  they  deal  with,  and  in  Mr  Leary’s  case  that  is particularly so, in his circumstances where he squarely put the issue of his reformed and rehabilitated character in the public arena.

[29]   To counteract any suggestion of unfairness, fair reporting of his name in the circumstances of this case must disclose that he was acquitted because there was no evidence against him.  I do not think this is a case on all fours, or anywhere near it, of R v H.  This is not a factor here, a fact, the allegation which would be in the public mind a fact going to the character of Mr Leary, which he very publicly put in the public arena by his application to be put back on the roll, and the factor he also put his good character, upon which he now relies [sic].

[28]     Mr Speed said that he was taken by surprise by Judge Doherty’s reference to and reliance on the earlier Leary decision and said that he had not been given an opportunity to address its relevance in submissions.  Mr Speed said that had he been given that opportunity he would have said (as he did before me) that the decision was irrelevant to the weighing exercise because there was no connection between Mr Leary’s past and the public interests at stake.

[29]     Although Mr Stanaway accepted that Judge Doherty had not intimated to counsel that he intended to refer to the decision, he nonetheless pointed out that the Leary decision had been put before Judge Doherty and that the Crown’s submissions before him expressly addressed the reasons why there was a particular public interest in Mr Leary’s conduct in this regard.

[30]     I consider that Judge Doherty was entitled to refer to the Leary decision and to take it into account.  It seems to me that it was relevant to the central exercise in which the Judge was engaged, namely weighing the harm that Mr Leary contended he would suffer if his name were to be made public against the public interest in receiving the information as to his identity. This is precisely the exercise contemplated by the Court of Appeal in the passage from Lewis that I have quoted in [17] above.  And as the passage from Liddell relating to acquittals makes clear, the public interest in open reporting is not necessarily static or uniform.   Rather, the degree of public interest can vary according to the circumstances of the particular case.

[31]     Here, it seems to me that Judge Doherty considered that the circumstances surrounding Mr Leary’s readmission to the bar in 2007 and the basis upon which this Court ordered that he should be readmitted meant that there is a greater than usual public interest in knowing both that Mr Leary was charged with an offence and that he was later discharged under s 347, together with the reasons why that occurred.  It might also be noted that there is a particular section of the public who may have a further and particular interest in knowing of these matters: the 81 people who were prepared to put their own reputations on the line by providing testimonials in support of Mr Leary when he sought readmission to the bar.   As Mr Leary’s counsel at the time put it:

The eminence and responsible nature of those who gave testimonials was such that they would be cautious before putting pen to paper, careful in their assessment  of  the  appellant  and  at  pains  to  ensure  what  they  said  was accurate and not inflated.

[32]     Be  that  as  it  may,  I  can  in  any  event  see  no  error  of  analysis  on

Judge Doherty’s part in this respect.

[33]     It follows that I do not accept Mr Speed’s submission that there is “no logical link” between Mr Leary’s readmission to the bar and the matters now at issue and that there is no “legitimate” public interest in knowing about his discharge.

[34]     As far as the weight given to Mr Leary’s s 347 discharge is concerned, it appears  to  me  that  Judge  Doherty  did  take  account  of  that  fact  but  ultimately

considered it was outweighed by other matters.  Although he does not refer to R v D (I am not certain if this case was referred to him) he does refer to R v H and records his view that its facts were very different from those in the present case.  Although the paragraph in which he discusses the case is a little opaque it seems to me that the Judge is essentially considering the case (and the fact of the s 347 discharge) but distinguishing it on the basis of the very different public interest considerations in the case before him.

[35]     As far as R v D is concerned I consider that there was an issue of fairness in that case that weighed heavily with Priestley J (supra) and which is not present in this case.   Whereas D’s co-offender (who was the mastermind of the impugned scheme) had obtained permanent name suppression, in the present case the suppression of Mr Voerman’s name has already been lifted.

[36]     I consider it unlikely that Priestley J would have held as he did in the absence of that additional fairness consideration.  The fact that a person who is acquitted or discharged has had the benefit of interim name suppression cannot, without more, be decisive of whether that interim position should be made permanent.   I say that because one of the most compelling matters favouring suppression at the interim stage will often be (as it was here) the strong public interest in ensuring that an accused has a fair trial.  While fair trial considerations may well tip the balance in favour of suppression at the pre-trial stage, once there has been a conviction, an acquittal or a discharge they can no longer hold sway; there is no longer a trial the fairness of which can be put in jeopardy.

[37]     As well (and as the Court of Appeal noted in Liddell) there can be a genuine public interest in knowing about acquittals.  The public interest in open reporting of judicial proceedings is not limited to cases where there has been a conviction.  If that were the case then name suppression would routinely be granted pre-trial.  There is a very real public interest in knowing about all aspects of the operation of the justice system and Court processes.  There is a risk of undermining public confidence in the Courts if secrecy surrounds those who are acquitted or discharged.

[38]     Accordingly I am not persuaded that the learned District Court Judge did not place proper weight on the fact of Mr Leary’s discharge under s 347.

[39]     I turn now briefly to consider Mr Leary’s other grounds of appeal which I

have attempted to summarise in the headings that follow.

Judge Doherty’s decision was contrary to the intimation in his s 347 judgment that the suppression of Mr Leary’s name would later be made final

[40]     At [44] of his judgment dated 21 January 2010 discharging Mr Leary under s 347 Judge Doherty ordered continuation of the interim suppression orders relating to both Mr and Mrs Leary until the commencement of Mrs Leary’s trial.  He also said:

Given  Mr  Leary’s  circumstances,  I  expect  the  Crown  will  have  scant objection to the orders in respect of him being made final.  It may also be that Mrs Leary’s name should be suppressed during the trial to protect her husband’s reputation, but that should be a matter for further submission and further consideration.

[41]     I do not consider that this statement can found a tenable ground of appeal. As matters transpired, the Crown did have an objection to the suppression order being made final and Judge Doherty, in a reasoned decision, found that this objection had merit.   As well, the statement makes it clear that Judge Doherty was not contemplating an extension of Mrs Leary’s name suppression beyond the trial and had not in fact formed a view as to whether it should be suppressed during the trial.

Judge Doherty ignored the submission that evidence supporting the charge against

Mr Leary was inadmissible and the effect of this on the public interest

[42]     What I understood Mr Speed to be arguing under this ground of appeal was that because the case against Mr Leary was based on evidence that was ruled by Judge Doherty to be inadmissible, any public interest in knowing about the case was necessarily significantly diminished.  In other words it was as if there had been no evidence at all against him and there could be no public interest in knowing that.

[43]     I do not accept that Judge Doherty ignored this submission.  He addressed it, at least indirectly, at [23] and [29] (quoted at [26]b) above).  I consider that it cannot fairly be said that it was a matter he did not take into account.

[44]      Even if that were not the case, I consider the submission is predicated on too narrow a view of the public interest in open reporting.   As I have already said, it seems to me that there is a legitimate public interest in knowing about the circumstances surrounding acquittals and s 347 discharges and even in knowing about charges that should never have been laid.  As well as the more general point that openness in such  matters is likely to instil and maintain confidence in the administration of justice, it is not difficult to think of quite compelling public interest reasons for making known the identity of a person who had been falsely accused.

[45]     Accordingly it in my view follows that Mr Speed cannot be correct when he says that the “only ‘public interest’ in the case alleged against the appellant would involve inadmissible evidence.”  The fact of Mr Leary’s discharge and the reasons for it are matters to be weighed in the balance against the kinds of public interest that I have noted above.

Judge Doherty gave insufficient weight to the harm that reporting would cause to

Mr Leary’s practice and his privacy rights

[46]     Judge Doherty had before him three affidavits in which Mr Leary set out the nature of the harm that he believes would be caused by publication.  In essence he said he was entirely reliant on public confidence as to both clientele and the conduct of jury trials.   He expressed particular concerns about the effect of publication on pending trials in which he was instructed and on his future ability to earn income.

[47]     Although Judge Doherty does not address these specific concerns, it is clear from the judgment that he did consider and take into account the general issue of the harm that would result if the suppression order was not made permanent.  At [15] he records the Crown’s submissions in that respect together with the relevant cases and then at [22] and [23] he refers to the need to weigh (inter alia) the damage that will be caused to Mr Leary by publication.  Importantly at [28] Judge Doherty:

a)       expressly records his agreement with the proposition from the cases that those dealing with professional people have a right to be informed so that they can make up their own minds about the “character and the propensities” of those people; but

b)recognises that in order to alleviate any unfairness, fair reporting of Mr  Leary’s  name  must  include  reference  to  his  acquittal  on  the grounds that there was no admissible evidence against him.

[48]     I consider Judge Doherty’s approach to the weighing exercise required by him in this respect was consistent with the relevant case law.  The case most squarely on point is Proctor v R (supra) where the appellant argued that publicity would completely destroy his professional practice and that he would be unable to continue work as a surgeon. The Court of Appeal said at 299-300:

... we agree with the learned Judge that the personal and family factors which exist in this case are not sufficient to justify and order for suppression. Mr Haigh made a strong plea, as is his wont, to the effect that, if the impact of  publicity  in  this  case  does  not  go  far  enough,  then  it  is  difficult  to envisage a factual situation that would do so.  We agree that the hardship to Mr P and his wife are extreme.  For the most part, however, the impact on his employment is what might be expected in the case of a professional or self-employed person.  ... As the Judge said in the Court below: “One must be careful to avoid creating a special echelon of privileged persons in the community who will enjoy suppression where their less unfortunate compatriots would not.”

[49]     The  approach  of  the  Court  of  Appeal  here  is  in  my view  supportive  of Judge Doherty’s conclusion, particularly when it is remembered that what will be publicised here is the fact of Mr Leary’s acquittal, rather than the fact of his conviction.    I am not able reasonably to conclude that Judge Doherty did not give due weight to the issue of the harm that would be suffered by Mr Leary.

Judge Doherty gave insufficient weight to the “sensationalised and unfair media reports” that were placed before the Court

[50]     There have been a number of media reports in relation to both the charges laid against Mr Leary, and the suppression issues.  Mr Leary has taken exception to some of these and his counsel referred to there being a media campaign against him.

It is true that Judge Doherty does not refer to media reports in his judgment although he regards it as relevant (at [29]) that it is Mr Leary himself who has put the issue of his good character into the public arena (the implication being that Mr Leary has created or at least added to the media interest in him).  I make no comment on that.

[51]     The signal point, however, is that Judge Doherty was in my view correct to ignore issues relating to the nature and quality of existing or future media reports. As Priestley J said in Lerner v Department of Internal Affairs[11] at [36]:

[11] HC Auckland CRI-2003-404-000299, May 20 2004.

.... Nor should a judge’s personal views on media shortcomings influence the s140  balancing  exercise.  As  the  Chief  Justice  rightly  commented  in paragraph [68] of Lewis v Wilson & Horton & Ors ... it is not the proper function of courts to assess or inhibit editorial judgments about what should be reported, or the extent of such reporting.

Mrs Leary

[52]     As noted above, Mrs Leary relies in this appeal, as she did before Judge

Doherty, on three matters:

a)        The adverse effect publication would have on the health of her 94 year old mother;

b)The     adverse     effect     publication     would     have     on     her employment/employer; and

c)       The adverse effect publication would have on Mr Leary.

[53]     There can be little doubt that Judge Doherty was correct in his assessment that the first two factors, whether taken either separately or together, are an insufficient basis for continuing suppression after her conviction.

[54]     The case law makes it clear that adverse effects of the kind relied on by Mrs Leary would have to be extreme before they could warrant suppression before conviction and in that respect I need refer only to Liddell at 544.  However I accept that it is possible that, at the pre-trial stage, their combination with fair trial and presumption of innocence concerns might have warranted suppression.   However neither of those other concerns remains.   The reality now is that Mrs Leary has pleaded guilty to a serious charge (carrying a maximum sentence of 7 years imprisonment) even if her offending might fairly be said to fall at the lower end of the money laundering spectrum.  There is a strong and indisputable public interest in knowing this.

[55]     Of course the other factor which may have weighed with the District Court Judge when granting name suppression was the effect on Mr Leary of Mrs Leary’s name.  Again, and in light of my decision in relation to Mr Leary, that is a factor which no longer exists.  Any issue of adverse effects on Mr Leary has effectively been rendered nugatory by that decision.

Conclusions

[56]     It follows from what I have said above that I do not consider that it can be said that, in declining to order the permanent suppression of Mr and Mrs Leary’s names, Judge Doherty misdirected himself in law, applied an improper principle, failed to take into account some relevant factor, took into account an irrelevant matter or was plainly wrong.  I can discern no error in approach on his part.

[57]     Both Mr Leary’s and Mrs Leary’s appeals are dismissed accordingly.   The

Crown is entitled to costs on a 2B basis.

[58]     The interim orders for suppression will be lifted at 5.00 pm Friday 23 April

2010.

Rebecca Ellis J

[10] R v D HC Auckland CRI-2003-004-42258, 4 March 2008.