M v Police

[2019] NZHC 83

ORDER PROHIBITING PUBLICATION OF NAME, ADDRESS,

OCCUPATION OR IDENTIFYING PARTICULARS OF APPELLANT PURSUANT TO S 200 CRIMINAL PROCEDURE ACT 2011.

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

I TE KŌTI MATUA O AOTEAROA TE PAPAIOEA ROHE

CRI-2018-454-23

[2019] NZHC 83

BETWEEN

M

Appellant

AND

New Zealand Police Respondent

Hearing:

4 February 2018

Appearances:

O S Winter for the Appellant

D R Davies and S Poulton for the Respondent

Judgment:

5 February 2018

JUDGMENT OF COOKE J

[1]                  On 13 December 2018 the appellant was discharged without conviction by the District Court on one charge of common assault, but her application for permanent name suppression was dismissed.1 She appeals the Judge’s decision not to order name suppression. She says that the Court erred in finding further evidence was required in support of her application for suppression, and that it failed to adequately address the reasons for suppression.2

1      New Zealand Police v M [2018] NZDC 26408; and Crimes Act 1961, s 19, maximum penalty one year imprisonment.

2      Criminal Procedure Act 2011, s 200.

M v New Zealand Police [2019] NZHC 83 [5 February 2018]

Background

[2]                  The appellant is a police officer. At the time of the incident, she was nine months pregnant. On 16 December 2017 she was at the Lido Swimming Pool complex in Palmerston North for a family gathering. The appellant was with her mother supervising children playing in the toddler swimming pool when the victim, the sister of her former partner, approached them. The victim verbally abused the appellant’s mother. A heated altercation took place, and the victim used derogatory language directed at the appellant. The victim continued the verbal abuse and waved her arms around. The appellant then snapped and attacked the victim, punching her three times to the face in quick succession.

[3]                  The appellant was charged with common assault to which she pleaded guilty. She was not offered diversion. The Judge granted her application for a discharge without conviction but declined her application for permanent name suppression.

[4]                  In assessing the discharge without conviction, the Judge assessed the offending at the lower end of the scale. He considered there were aspects of the offence that would place it at a more serious level — the presence of children, the number of punches and where they were aimed. However, he considered there were strong mitigating factors concerning her personal circumstances. The appellant had no previous convictions and had been an otherwise exemplary member of the community. Further, she was heavily pregnant and had suffered from severe morning sickness, requiring hospitalisation. She had also recently separated from her partner. The Judge concluded she had been under significant stress both emotionally and physically which explained her uncharacteristic behaviour. In assessing proportionality, the Judge also considered the fact she was refused diversion was relevant. This consequence balanced against the relatively low gravity offending was held to be all out of proportion.

[5]                  The appellant applied for name suppression under s 200 of the Criminal Procedure Act 2011. Three grounds were argued:

(a)Extreme hardship to the appellant or persons connected with her;3

(b)Danger to the appellant’s safety and potentially other police officers;4

(c)Prejudice to the maintenance of the law including the prevention, investigation and detection of offences.5

[6]                  The appellant argued that publication would make execution of her duties as a police officer substantially more difficult and dangerous. Her position would require her to regularly be brought into contact with family violence situations similar to the current matter. Members of the public would likely be aware of the prosecution and situations could become “rapidly inflamed” as a result.

[7]                  The Judge considered the question of whether publication would cause hardship in her role as a police officer or increase danger to safety or prejudice maintenance of the law should not simply be a matter of submission. Evidence demonstrating these were tangible risks was necessary to meet the threshold prescribed under s 200(2). He held that if there were such issues they could be dealt with as a matter of police management. He concluded that the hardship, risks or prejudice were speculative on the information before the Court. The threshold requirement in s 200(2) was accordingly not established.

[8]                  The Judge then went on to consider the discretionary stage of the test. He found open justice weighed heavily in favour of publication. He held that the appellant’s occupation was relevant to the decision to discharge without conviction. His Honour thought it particularly important in this case for the public understand the decision to discharge a police officer without conviction was made openly and transparently. Given the balance weighed so heavily in favour of publication, he concluded that even if the alleged risks were made out, the interests of open justice would outweigh them.

3      Section 200(2)(a).

4      Section 200(2)(e).

5      Section 200(2)(g).

Grounds of appeal

[9]The appellant appeals on the grounds that:

(a)The learned Judge erred in interpreting s 200(2) by finding further evidence was required in support of the relevant submission; and

(b)The learned Judge erred in finding that, had grounds been established pursuant to s 200(2), they would have been more than counterbalanced by the public interest in publication.

Parties’ submissions

[10]              Mr Winter for the appellant submits the Judge erred in in two respects. First, the Judge was wrong in finding that further evidence was required to support the submission that refusal to grant name suppression would make the execution of her duties as a police officer substantially more dangerous, or likely prejudiced the performance of those duties. Second, in exercising his discretion the Judge failed to sufficiently consider the factors weighing against the public interest in publication. In particular, the interest of the public in ensuring police officers are able to carry out their duties with a minimal risk of harm was a relevant factor and should have been considered.

[11]              Ms Poulton for the Police submits the Judge was correct in finding there was insufficient evidence to demonstrate the threshold requirements of s 200(2) were met. The factual assessment required the appellant to demonstrate a real and appreciable risk that one of the consequences would eventuate. Mere speculative evidence is insufficient to demonstrate a real and appreciable risk. Ms Poulton further submits the exercise of discretion in balancing open justice with the factors in favour of suppression was adequately and correctly addressed.

Legal regime for name suppression

[12]              Orders suppressing the identity of a defendant are made under s 200 of the Criminal Procedure Act 2011. That section 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.

(2)The court may make an order under subsection (1) only if the court is satisfied that publication would be likely to—

(a)      cause extreme hardship to the person charged with, or convicted of, or acquitted of the offence, or any person connected with that person; or

(b)      cast suspicion on another person that may cause undue hardship to that person; or

(c)      cause undue hardship to any victim of the offence; or

(d)      create a real risk of prejudice to a fair trial; or

(e)      endanger the safety of any person; or

(f)      lead to the identification of another person whose name is suppressed by order or by law; or

(g)      prejudice the maintenance of the law, including the prevention, investigation, and detection of offences; or

(h)      prejudice the security or defence of New Zealand.

(3)The fact that a defendant is well known does not, of itself, mean that publication of his or her name will result in extreme hardship for the purposes of subsection (2)(a).

(4)Despite subsection (2), when a person who is charged with an offence first appears before the court the court may make an interim order under subsection (1) if that person advances an arguable case that one of the grounds in subsection (2) applies.

(5)An interim order made in accordance with subsection (4) expires at the person’s next court appearance, and may only be renewed if the court is satisfied that one of the grounds in subsection (2) applies.

(6)When determining whether to make an order or further order under subsection (1) that is to have effect permanently, a court must take into account any views of a victim of the offence conveyed in accordance with section 28 of the Victims’ Rights Act 2002.

[13]              The general approach that should be adopted was described by the Court of Appeal in Robertson v New Zealand Police:6

[39]      As already noted by this Court in Fagan v Serious Fraud Office, the section contemplates a two stage analysis. Stage one is a threshold determination. Stage two is a discretionary assessment.

6      Robertson v New Zealand Police [2015] NZCA 7 (footnotes omitted).

[40]      At the first stage, the judge must consider whether he or she is satisfied that any of the threshold grounds listed in 200(2) has been established. That is to say, whether publication would be likely to lead to one of the outcomes listed in subs (2). The listed outcomes are prerequisites to a court having jurisdiction to suppress the name of a defendant. It is “only if” one of the threshold grounds has been established that the judge is able to go on to the second stage.

[41]      At the second stage, the judge weighs the competing interests of the applicant and the public, taking into account such matters as whether the applicant has been convicted, the seriousness of the offending, the views of the victims and the public interest in knowing the character of the offender.

[42]We do not consider the process requires any further clarification.

[43]      In our view it is also not seriously arguable that the wording or scheme of the Criminal Procedure Act has displaced the presumption of open reporting identified in case law predating the enactment of s 200. The explanatory note that accompanied the Bill at its first reading unambiguously states in relation to name suppression: “The starting point for considering publication is a presumption of open justice.”

[14]              Section 283 of the Criminal Procedure Act 2011 provides that an appeal may be brought as of right against a name suppression order. Given the two stage approach described by the Court of Appeal, different tests apply on appeal. The first stage of the test is subject to the ordinary approach to appeals, but the second stage involves the approach adopted for an appeal against a discretion.7

Did the District Court misapply the threshold question?

[15]              The appellant’s first contention was that the Judge misapplied s 200 by concluding that further evidence was required in support of an application before the section could apply. The District Court Judge held:

[40]      Whether publication would cause hardship in your role as a police officer, increase danger to safety, or prejudice maintenance of the law, to my mind, should not be matters of submission. There should be evidence that these are tangible risks for me to reach the conclusion that they would be likely to occur. The situations described by your counsel will be inflamed as a matter of course, which is part of the sad and difficult circumstances police regularly face.

[41]      The point made by Ms Davies that it is within the power of the police to assess and mitigate any risk, is to my mind also relevant. If such risks are thought to exist to a level they would cause danger to yourself or others, or prejudice maintenance of the law, seems to me to be a question of management for a sufficient period of time to alleviate those risks.

7      B v R [2011] NZCA 331 at [9]; and Lawrence v R [2011] NZCA 272 at [11].

[42]      I consider the submitted hardship, risks or prejudice to be speculative on the information I have.

[16]              I do not read this passage as finding that supplementary evidence is required to be filed for s 200 to apply, and that submissions based on existing evidence would be insufficient. Rather it seems to me the Judge was concluding that the application of these provisions could not simply arise as a matter of assertion, and that some tangible basis for the Court to conclude that the adverse situations were likely had to be apparent from material before the Court. The Judge concluded that the arguments advanced for name suppression here involved speculation. For this reason I do not accept that there has been any error in the general approach of the Judge.

[17]              The real question is whether the District Court was wrong in concluding that the s 200(2) thresholds were not satisfied. On that question I essentially agree with the District Court Judge’s analysis. Before me Mr Winter did not rely on publication causing extreme hardship in the manner caused by s 200(2)(a), at least in isolation from the other considerations. He focused more on subsections (e) and (g). He argued that the subsections applied because the public identification of the appellant will substantially increase the risk of prejudice to the policing of particular situations, including domestic violence situations, and substantially increase the risk to the safety of the appellant and her fellow officers. The proposition is that at such policing events the appellant will be recognised by those involved, and that this will adversely affect the ability of the appellant and her colleagues to deal with the situations, including to the point of compromising their safety.

[18]              It is difficult to accept the submission that there is a real prospect of prejudice or increased harm in this way. I regard the proposed scenario as somewhat artificial. Before me Mr Winter suggested that it was difficult to provide evidence to support the submission that these adverse implications would likely arise in this kind of scenario, and when I asked about the details he submitted that the responses invited a degree of speculation. But that is the difficulty with seeing that the subsections apply at all. It must be established that the adverse ramifications set out in s 200(2) are likely.

[19]              Moreover, and as the District Court Judge held, even if there were some prospect that these adverse implications could arise there are two further

considerations. First, such implications would likely only have a temporary impact associated with any immediate publicity which will likely pass with the passage of time. Secondly, as emphasised by Ms Poulton before me, if it really were a situation where there was a degree of additional risk it would become a matter for the police to manage for the appropriate period of time.

[20]              The police have decided that the appellant can continue as a police officer. They did not seek suppression orders, and oppose this appeal. I take this approach into account in light of the responsibility of the police to manage the safety of their officers and the maintenance of policing capabilities.

[21]              It also seems to me that s 200(2)(g) is primarily directed to a different kind of situation — such as the charging, or conviction of a particular defendant for offending that is associated with other potential offending of a broader nature. The police may wish to keep an offender’s identity suppressed for reasons associated with the integrity of an ongoing investigation. In other words it is most likely to arise on an application made or supported by the police. In the present case it is of significance that the police do not make the application, and effectively oppose it through their opposition to this appeal.

[22]              The appellant’s best argument is that supressing her identity is consistent with, or even effectively supports the reasons why she received a discharge without conviction given the potential adverse impact of publicity. But that is not within the various reasons why a Court may make a suppression order in s 200. To do so because of the adverse impacts of publicity would require her to show extreme hardship under subsection (a) or the endangering to her safety under subsection (e). Such circumstances were not established on the materials put before the Court. So I do not think the District Court erred in making this assessment.

Balancing under the discretion

[23]              The appellant also challenged the approach adopted by the District Court Judge to the exercise of the discretion under s 200(2). Given that the thresholds for making the order were not established, any debate about how factors might then be balanced becomes theoretical. However I agree with the District Court Judge that there is a

strong presumption in favour of openness, and also that it is generally desirable to favour transparency when a police officer has obtained a discharge without conviction after committing an offence such as assault. I accept Mr Winter’s point that the judgment explains why the discharge has been granted, and that the reasons for this can be publicly explained without revealing her identity. But her role as a police officer is nevertheless relevant to the exercise of the discretion given the general desirability of openness and transparency, particularly when a discretion in the nature of an indulgence is being exercised.

Result

[24]For these reasons the appeal is dismissed.

[25]              Under s 289 the appellant has the right to apply for leave to appeal, and in that eventuality the Court is able to make suppression orders under s 292 pending the outcome of any further appeal. Mr Winter asked for an opportunity to consider whether there would be an application for leave to appeal, and for suppression in the meantime. I think it appropriate that a limited period be provided for this purpose. The appellant is to file a memorandum within five working days to indicate whether she intends to apply for leave to appeal, and whether she is applying for name suppression pending the hearing of that appeal under s 292. If she does so, the respondent may file a memorandum in response and the matter should be referred to me to be dealt with on the papers. Should an application for continuing suppression be made in the memorandum, interim suppression will continue until that application is determined.

Cooke J

Solicitors:

Winter Woods Lawyers, Palmerston North Crown Solicitor, Palmerston North