M (SC 123/2022) v The King - [2023] NZSC 19

NOTE: COURT OF APPEAL ORDER PROHIBITING PUBLICATION OF NAMES AND IDENTIFYING PARTICULARS OF CONNECTED PERSONS PURSUANT TO S 202 OF THE CRIMINAL PROCEDURE ACT 2011 REMAINS IN FORCE. SEE

IN THE SUPREME COURT OF NEW ZEALAND

I TE KŌTI MANA NUI O AOTEAROA

SC 123/2022
[2023] NZSC 19

BETWEEN	M (SC 123/2022) Applicants
AND	THE KING First Respondent DUNCAN JOHN NAPIER Second Respondent

Court:	O’Regan, Ellen France and Williams JJ
Counsel:	R J Hollyman KC, M Heard and E D Nilsson for Applicants I S Auld for First Respondent
Judgment:	14 March 2023

JUDGMENT OF THE COURT

The application for leave to appeal is dismissed.

____________________________________________________________________

REASONS

The applicants apply for leave to appeal against a decision of the Court of Appeal dealing with name suppression.[1]
[1]M (CA486/2022) v R [2022] NZCA 502 (Goddard, Ellis and Dunningham JJ) [CA judgment].
The applicants are interrelated companies carrying on a land development business. They employed the second respondent, Mr Napier, in 2017.
Mr Napier has now been convicted of 45 dishonesty charges and sentenced to imprisonment for four years and 10 months. The offending is completely unrelated to the applicants, having occurred some years before they employed Mr Napier. At the time he was employed, Mr Napier informed the applicants that he had been the subject of civil proceedings by the victim of the frauds and also alerted them to the possibility that he may be charged with criminal offending in relation to the frauds. Mr Napier became an important staff member for the applicants and dealt with third parties on their behalf.
The applicants applied for, and were granted, interim name suppression on the day before Mr Napier’s trial. Subsequently, both the applicants and Mr Napier applied for permanent suppression of their names. The application was dismissed.[2]
[2]R v N [2022] NZHC 2115 (Brewer J) [HC judgment].
The applicants appealed to the Court of Appeal against the decision declining to suppress their names and Mr Napier’s name. The Court of Appeal allowed the appeal in relation to the applicants, and their names remain suppressed. However, the Court declined to suppress Mr Napier’s name.
The applicants say that if Mr Napier’s name is published, his association with them will become obvious. They say this will be damaging to their business.
Section 200(2)(a) of the Criminal Procedure Act 2011 (the Act) provides that a court may make a suppression order in relation to a convicted person if publication would be likely to cause extreme hardship to the convicted person or any person connected with the convicted person. In addition, s 202(2)(a) provides that a court may make a suppression order in relation to a person connected with the convicted person if satisfied that the publication would likely cause undue hardship to the connected person. And s 200(2)(f) permits a court to suppress a convicted person’s name if satisfied that publication of the name would be likely to identify a person whose name is suppressed.
The High Court Judge refused to suppress…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read M (SC 123/2022) v The King and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2023] NZSC 19
Decision Date: 14 March 2023

CaseChat Overview and Summary

The Supreme Court of New Zealand considered an application for leave to appeal from the applicants, interrelated companies, against a decision of the Court of Appeal concerning the suppression of names. The applicants sought leave to appeal against the Court of Appeal's refusal to suppress the name of Mr Napier, their former employee, who had been convicted of multiple charges of dishonesty unrelated to the applicants. The applicants argued that the publication of Mr Napier's name would cause undue hardship to their business, necessitating the suppression of his name alongside their own, which had already been suppressed. The Court of Appeal had declined to suppress Mr Napier's name, finding that the criteria for suppression were not met.

The legal issues before the Court included the appropriate standard of appeal for decisions concerning the refusal to make a suppression order and the merits of the Court of Appeal's decision. The applicants contended that the appeal standard set in the decision of the Court in Austin Nichols & Co Inc v Stichting Lodestar should apply, rather than the discretion-based standard applied by the Court of Appeal. They argued that the appeal standard was a matter of public importance and would clarify the approach to similar statutory provisions. The applicants also argued that the Court of Appeal had erred in its assessment of the merits of the case. The Crown opposed the application, highlighting that the appeal standard was not disputed in the Court of Appeal and had been previously declined by the Court in a similar matter.

The Court dismissed the application for leave to appeal. It noted that the appropriate appeal standard was a point of public importance but found that it was not appropriate to grant leave in this instance. The Court observed that the Court of Appeal had not considered the appeal standard issue in detail and that the outcome of the case would not have changed regardless of the standard applied. The Court also found that the Court of Appeal had adequately addressed the merits of the case, and there was no indication of a miscarriage of justice. Consequently, the application for leave to appeal was dismissed, and the Court of Appeal's decision remained.

Orders