Lynch v Police

[2023] NZHC 1166

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2023-409-43

[2023] NZHC 1166

BETWEEN

FRANCESCA BARBARA ELISE LYNCH

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	27 April 2023
Appearances:	A M S Williams for the Appellant G E R Alloway for the Respondent
Judgment:	16 May 2023

JUDGMENT OF HARLAND J

Introduction

[1]    By application dated 3 March 2023, the appellant, Francesca Lynch, applied for an order suppressing her name and the details of her sentencing, which took place almost a year before, on 31 March 2022. The application was prompted by an approach to her by a reporter from the New Zealand Herald who wishes to print an article about it.

[2]    The application came before a Judge D G Harvey in the District Court, who considered himself to be functus officio, namely, without jurisdiction to make the order sought.

[3]    Ms Lynch has appealed that decision to this Court. For Ms Lynch, it is submitted that the appeal should be allowed and remitted back to the District Court for it to be argued. The respondent submits that the District Court was correct to

LYNCH v POLICE [2023] NZHC 1166 [16 May 2023]

decline the application but that the appellant is not without a remedy because she can apply to this Court for a similar order.

[4]    Responsibly, the New Zealand Herald has agreed not to publish anything about the appellant’s criminal proceedings until the suppression issue she now raises has been dealt with by a court.

Background

[5]    Originally, in the District Court, the appellant faced two charges of causing harm by posting digital communications.1 She pleaded guilty to the charges and was convicted and discharged in respect of them by a District Court Judge on 31 March 2022. The only important aspects of the summary of facts that need to be mentioned in this judgment are that the offending was against people who worked with her in the social work department at the Christchurch Hospital.

[6]    When the appellant appeared for sentencing in the District Court, she did not apply for the suppression of her name. No members of the media were present, therefore her conviction and sentence were not reported.

[7]    However, because of her role as a social worker, a disciplinary process was also instigated against the appellant by the Social Workers’ Registration Board (the Board). After her conviction in the District Court, the Board removed her registration, as a result of which she could no longer work as a social worker.

[8]    The media subsequently printed articles about the appellant. These articles were based on the findings of the Board and were published in both the New Zealand Herald and the Otago Daily Times on 19 November 2022.

[9]    On 3 March 2023, the appellant received a message from a New Zealand Herald reporter enquiring about her conviction and discharge, and indicating that an article about the criminal proceedings was in train. This enquiry precipitated the application for suppression in the District Court.

1      Harmful Digital Communications Act 2015, s 22.

[10]   The appellant provided an affidavit in support of the application for suppression she filed in the District Court. In the affidavit, she sets out matters of background that assist to explain her offending and describes the impact of publication on her and her family.

Discussion

[11]   Section 200 of the Criminal Procedure Act 2011 (the Act) outlines the principles that apply when a Court is faced with an application to suppress the identity of a defendant. The section, in the main, deals with the tests that must be applied when considering an application for suppression and they are not relevant to this discussion. However, s 200(1) provides:

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.

(emphasis added)

[12]   Before considering the wording of the section, which I signal, in my view, is determinative, it is also necessary to set out what is meant by the principle of functus officio.

[13]In Maehl v Lenihan, Walker J referred to the term “functus officio” as follows:2

[36] The term “functus officio” is defined as an “expression applied to a judge who has given a decision so that his or her authority is exhausted.”3 The rationale for the doctrine of functus officio is that:

... for the due and proper administration of justice, there must be finality to a proceeding to ensure procedural fairness and the integrity of the judicial system.

[14]   Although a civil case, the principles remain the same in the criminal jurisdiction. This is especially so for courts that are creatures of statute, which is the position in respect of the District Court. The High Court however has inherent jurisdiction and is therefore able to deal with a matter such as this if there is no jurisdiction for the District Court to do so.

2      Maehl v Lenihan [2019] NZHC 1457.

3      Peter Spiller Butterworths New Zealand Law Dictionary (9th ed, LexisNexis, Wellington, 2005).

[15]   The Supreme Court has acknowledged that, in general, following completion of all available appeals, the decision of a court is final, and the trial court is functus officio.4 In this context, a trial court includes the court which is responsible for sentencing a defendant, whether the case has proceeded to a defended trial or not. As well, it is generally true that, once a court has delivered its judgment and reasoning, it is also deemed to be functus officio.5 These two principles were referred to by Churchman J in Wedgewood v R.6

[16]   Although the judgment of Churchman J in Wedgewood v R was submitted to be on point by the respondent, I consider it to be distinguishable on the facts. In that decision, the appellant had been convicted and sentenced following a jury trial in 2017. He had appealed his convictions to the Court of Appeal who were in the process of hearing the matter when, on 16 August 2019, the appellant applied for final name suppression in the District Court. Although the District Court Judge was not convinced he had jurisdiction to determine the application and considered himself functus officio, he held that, even if he did have jurisdiction, he would have declined it.

[17]   I do not read Churchman J’s judgment as definitively deciding that the District Court lacked jurisdiction and was functus officio at the time it considered the application for suppression after sentencing. Churchman J considered that may have been the case, but he determined that the jurisdiction to grant suppression had shifted to the Court of Appeal because of the appeal. Although Churchman J observed that the High Court retains inherent powers to grant and decide name suppression, he did not need to invoke these powers nor discuss them in detail because of his view that jurisdiction had transferred to the Court of Appeal.

[18]   This case is different because there is no appeal on foot. Rather, the issue is whether this Court is required to determine suppression in this situation or whether the application can be considered by the District Court despite there being no current proceedings before it.

4      Commissioner of Inland Revenue v Redcliffe Forestry Venture Ltd [2012] NZSC 94, [2013] 1 NZLR 804 at [5].

5      Robin v R [2013] NZCA 330 at [76].

6      Wedgewood v R [2020] NZHC 406 at [27].

[19]   In my view, s 200(1) of the Act does permit the District Court to determine the application in these circumstances. The section enables the Court to make an order in respect of a person who is charged with or convicted or acquitted of an offence. It is the reference to acquittal which persuades me that the District Court is not prevented from dealing with this application. If, for arguments sake, the appellant’s case had proceeded to a hearing and she had been acquitted of the charges, on the respondent’s argument, the court’s jurisdiction would have ended at that point. But, it cannot be the case that, following an acquittal, the court cannot then decide whether it is appropriate to grant suppression of the person’s name who has been acquitted. I have therefore formed the view that all that is required is that the court is or was seized of jurisdiction by virtue of a person having been charged with an offence, which invokes the power to consider and determine an application for suppression if no appeal has been filed against the original charge. As well, s 200 does not include a timeframe. As long as no application has been made previously, then the District Court has jurisdiction.

[20]   For these reasons, I am satisfied that the District Court can proceed to hear the application and it is not functus officio in relation to it, even though the sentencing occurred some time ago. The significance of the length of time may be relevant to the assessment as to whether an order should be made but it is not, in my view, relevant to whether the District Court has jurisdiction to determine the application.

Result

[21]   The appeal is allowed. The application is remitted back to the District Court for determination.

Harland J

Solicitors:

AMS Williams, Barrister, Christchurch

Crown Solicitor’s Office / Raymond Donnelly & Co., Christchurch.