M v Police

[2015] NZHC 1975

ORDER PROHIBITING PUBLICATION OF NAME, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS OF APPELLANT PURSUANT TO S 200 CRIMINAL PROCEDURE ACT 2011 APPLIES UNTIL

1 SEPTEMBER 2015 UNLESS ANY FURTHER ORDER FOR SUPPRESSION IS MADE.

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI 2015-485-53 [2015] NZHC 1975

BETWEEN

M

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:	18 August 2015
Appearances:	P Mitchell for the Appellant A R Garrick for the Respondent
Judgment:	19 August 2015

JUDGMENT OF MALLON J

Introduction

[1]      The  appellant  has  pleaded  guilty  to  two  counts  of  dishonestly  using  a document to obtain a pecuniary advantage.1    He is to be sentenced in the District Court on 1 September 2015.  He intends to apply for permanent name suppression at that time.  He appeals against a decision declining him interim name suppression.2

Background

[2]      The appellant was employed as a manager with a national organisation from

2004 to November 2013.   His duties included processing authorised invoices for work carried out by relief employees in the area for which he had responsibility.

1      Crimes Act 1961, s 228(b) (maximum penalty of seven years imprisonment).

2      Police v M [2015] NZDC 14971.

M v NEW ZEALAND POLICE [2015] NZHC 1975 [19 August 2015]

Over  the  course  of  several  months  during  2013  the  appellant  created  42  false invoices for a total amount of approximately $50,000 for relief work which had not been carried out.  The appellant received payment on these invoices either directly into his bank account or via a transfer from the bank account of another employee who had been told a false story as to the reason for these payments.

[3]      The appellant was charged and was to first appear in court on 7 July 2015. His  counsel  was  not  available  that  day.     Counsel  accordingly  arranged  an adjournment by consent to 4 August 2015 and the appellant was not required to attend.3   On 4 August 2015 the appellant entered a guilty plea and was remanded for sentencing on 1 September 2015.   At the time of entering his guilty plea an oral application was made for interim name suppression.  The Judge indicated that the application would be declined.  Counsel for the appellant sought the opportunity to file brief submissions and the application was adjourned for that purpose to 5 August

2015 at 9.30am.

[4]      Counsel prepared written submissions with urgency, amongst other matters he had to attend to that day, and filed them on the afternoon of 4 August 2015.  The submissions explained that the application was made on the basis that publication of the appellant’s name would cause him and his family extreme hardship4 and that the victim of his previous offending would suffer undue hardship.5    The submissions said that, in support of the application, an intended affidavit from the appellant

would state the following:

a.I live with my partner and child (aged 6 years).  Both are financially dependent on me.

b.I  am  currently  employed  full  time  as  a  manager  in  a  national organisation in Wellington, and have been for the past 6 months.  I currently earn $70,000 per annum.

c.I  fully  accept  the  allegations  against  me  and  am  ashamed  and remorseful of the actions I took whilst employed at [the national organisation].

d.I was employed by [the national organisation] for 8 years.   I was successful at my job and really enjoyed working there.

3      Criminal Procedure Act 2011, s 167.

4      Section 200(2)(a).

5      Section 200(2)(c).

e.        [The national organisation has] asked for reparation in the amount of

$50,000 in relation to my offending.

f.         I have arranged for a loan for $25,000 from my bank; and hope to be able to borrow the balance $25,000 from friends and family.   The plan is to have a substantial amount held in a solicitor’s trust account at the day of sentencing – able to be paid to [the national organisation].

g.        The  plan  is  for  me  to  repay  my  friends  and  family  as  soon  as possible through working at my current job and maybe taking on secondary employment.

[5]      It was submitted that, if the interim order was made, the appellant would be in a position to pay a substantial sum to his former employer immediately by way of reparation.  It was said that if an interim order was not made, the appellant would likely lose his job.  He had not informed his employer of his offending.  It had taken over a year for him to find this work and he would not be able to find a further position.  If he lost his employment, the bank’s credit advance would be withdrawn. He would not then be able to pay reparation.

[6]      When the matter was called at 9.30am on 5 August 2015 counsel did not have the opportunity to make oral submissions in support of what had been filed.   The Judge gave his decision declining interim name suppression.

Statutory test

[7]      The power to order name suppression is set out in s 200 of the Criminal

Procedure Act 2011. This is a two stage test:6

(a)      First, the Court must be satisfied that publication would be likely to have one or more of the consequences that are set out in s 200(2)(a) to (h).7

(b)Secondly, if that threshold is met, the Court exercises its discretion in light of the competing interests, but with the principle of open justice

as the starting presumption.8

6      Bruce Robertson (ed) Adams on Criminal Law (online looseleaf ed, Westlaw NZ) at [CPA

200.02]; Robertson v Police [2015] NZCA 7 at [39].

7      Criminal Procedure Act 2011, s 200(2)

[8]      When a defendant who is charged with an offence “first appears before the Court” the threshold under the first stage is met if the defendant “advances an arguable case” that one of the grounds in s 200(2) applies.9    If an interim order is made on that basis, it expires at the person’s next court appearance, and may only be renewed if the Court is satisfied that one of the grounds in s 200(2) applies.10

[9]      On  appeal,  on  the  first  stage  the  parties  “are  entitled  to  judgment  in accordance with the opinion of the appellate Court”.11     On the second stage, the appeal court should not interfere with the Judge’s assessment unless the appellant shows that the Judge acted on a wrong principle, failed to take into account some relevant matter or took account of some irrelevant matter, or that the court was plainly wrong.12

The first stage: the threshold question

[10]     The appellant submits that the Judge did not apply the lower (“arguable case”) threshold that applies to an interim order when a defendant first appears.  This lower threshold reflects the reality that at the time of the defendant’s first appearance there is unlikely to be the opportunity for an application to be fully advanced and considered.  Providing an arguable case has been raised, an interim order will often be granted effectively to hold the position until a further opportunity is given for the application to be fully advanced and considered.   By the time of the second appearance it is expected that this will have occurred.

[11]     I accept that in this case the application was made when the defendant first appeared.  The adjournment overnight to enable written submissions to be made was effectively a continuation of the first appearance.   However, as I read the Judge’s decision, he proceeded as though the lower threshold applied and was met.   The

Judge referred specifically to the arguable case test and noted that in “very many

8      Section 200(1).  See Lawrence v R [2011] NZCA 272 at [7] to [10] for a summary of the various public and private interests that are to be weighed and for the requirement that the balance must come down clearly in favour of suppression if the prima facie presumption of open reporting is to be overcome.

9      Section 200(4).

10     Section 200(5).

11     Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141 at [16].

12     May v May (1982) 1 NZFLR 165 (CA); B v R [2011] NZCA 331 at [9], Lawrence v R, above n 8, at [11].

cases” no harm to the underlying principle of openness would arise if an order for interim suppression is made to allow for full argument.  The Judge went on to say that in this case he needed to “consider the effect of an interim order on others.”  He then turned to consider the factors that were relevant to the exercise of the discretion. I will do likewise.

The second stage: competing interests

[12]     At the second stage, the Judge referred to the prospect that the appellant would lose his job if his name were published, and that he would then not be in a position to obtain funds in order to pay reparation.  He described the offending as involving systematic and repeated fraud.  He then said:

[9]       The effect of an interim order suppressing from publication of [the appellant]’s name will be to enable the defendant to borrow $25,000 from a bank without the bank knowing that the purpose of the loan is to repay money stolen from an employer.  The conduct of the defendant represented by these charges would be clearly relevant to a bank considering whether to advance money or not.  Additionally, the effect of an interim order would be that the bank lending the money would be unaware that the ability to repay the loan would be dependent on the Judge at sentencing deciding that a final order should be made, thereby maintaining employment and the ability to make repayments of the loan.

[10]     It would, in my view, be wrong for the Court to hide this important information from the bank.  It is no answer to say that the consequences of publication will be that the victim will not get a lump sum payment at sentencing.  The victim would obtain the advantage of receiving payment at the expense of hiding the true facts from the lender of the money to be paid to the victim.  In those circumstances, I refuse the application for an interim order suppressing name.

[13]     The appellant  submits  that  the Judge  assumed  without  evidence that  the appellant intended to hide the true facts from the bank.  Counsel’s instructions are that a credit facility is in place that would enable $25,000 to be offered in reparation. That  facility  has  been  made  available  to  the  appellant  in  light  of  the  bank’s assessment of the equity the appellant has in his house and his history with the bank. It is intended that this sum will be paid into a solicitor’s trust account so that it is available for reparation.  At sentencing permanent name suppression will be sought. If it is granted, reparation can be paid immediately.  If it is not granted, the bank may call up the advance and the money will need to be returned.

[14]     The Judge was correct to consider the position of the bank.  However, as it has been more fully explained on appeal, it is not intended that the bank will be misled as to the appellant’s ability to repay the advance.  If the appellant is declined name suppression it is envisaged that the advance will be returned to the bank from the trust account.  If the bank has not been informed of the appellant’s offending, the other option would be to inform the bank so it can assess whether it requires the funds to be returned.   Either way it is intended that the bank’s position will be unharmed by interim name suppression granted at this time.   The Judge therefore declined interim suppression on a mistaken assumption.

[15]     The appellant further submits that the Judge treated the application as though he was determining the interim application on a substantive basis, rather than on the more generous approach appropriate to applications made on a first appearance.  The appellant wishes to put forward a properly prepared application with supporting information at sentencing.  The appellant wishes to have that application considered in the context of all the other information that will be considered at sentencing.  This will include mitigating factors such as the circumstances in which this offending occurred, that the appellant is a first offender, that he is involved in the community, that he is remorseful (and entered a guilty plea at the first opportunity), that he wishes to make full reparation, and that he has been with his new employer for a number of months and has been performing well.

[16]     A person seeking permanent name suppression when the offending involves fraud of this kind faces real difficulties.   The Judge’s decision on the interim application undoubtedly reflected this.  That said, the sentencing Judge will be in a better position to assess this.   The application for interim suppression was made under the time constraints that arise at a first appearance and without the full picture available.  When the Judge considered the application it was just four weeks until sentencing.  It is now just under two weeks away.  An interim order would simply hold the position for a short period to enable the matter to be fully considered at the time of the appellant’s second appearance (which will be for sentencing).

[17]     It is relevant that the appellant is presently in a position of responsibility with

his current employer. That employer is unaware of the appellant’s offending. That is

a factor that points against interim name suppression.   However, this  offending occurred back in October 2013.   It seems that the appellant had an unblemished record before then.  The conviction the appellant now has is likely to have been a significant wake up call for the appellant.   The appellant has been employed for several months and there have been no issues.   In these circumstances interim suppression for a further two weeks is unlikely to give rise to any issues for the employer.

[18]     For these reasons I consider that the Judge erred in declining the application for interim name suppression.   The opportunity to have an application for name suppression fully considered, which will occur in a timely fashion at the appellant’s second appearance (for sentencing), outweighs the presumption in favour of open reporting for the short period of time interim suppression will be in place.

Result

[19]     The appeal is allowed.  The appellant is granted interim name suppression. This order applies until the appellant’s appearance on 1 September 2015 unless the District Court on that day makes any further order for suppression.

Mallon J