M v Police HC Wellington CRI 2008-485-16

[2008] NZHC 580

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI 2008-485-16

M

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         22 April 2008

Counsel:         I M Antunovic and C A Parkin for Appellant

I R Murray for the Respondent

Judgment:      24 April 2008 at 4.00pm

In accordance with r540(4) I direct the Registrar to endorse this judgment with a delivery time of 4.00pm on the 24th day of April 2008.

RESERVED JUDGMENT OF MACKENZIE J

[1]      This  is  an  appeal  against  refusal  of  interim  suppression  of  name  until sentencing.

[2]      The appellant pleaded guilty in the District Court at Wellington on 17 March

2008 to one count of theft by a person in a special relationship (s 220 Crimes Act

1961), one count of using a document (s 228(b)) and one count of money laundering

(s 243(2)).  The charges represented repeated offending over 11 months in the course

M V NZ POLICE HC WN CRI 2008-485-16  24 April 2008

of the appellant’s employment in a small business.  There is a factual dispute as to the amount of money obtained by the appellant, which is to be the subject of a disputed facts hearing on 22 May 2008.   It appears that the range is somewhere between $100,000 and $300,000.

[3]      The  appellant  had  had  interim  suppression  of  name  until  the  original sentencing date of 29 February 2008.  On that day sentencing was adjourned in the light of the need for a disputed fact hearing.   The question of continuation of the suppression was the subject of a hearing on 17 March 2008 and a reserved judgment declining that application was delivered on 19 March.  Continued name suppression was refused but the interim order was extended to allow for this appeal.

[4]      The principles to be applied on an application for name suppression are well established.  The starting point must always be the importance in the democracy of freedom of speech, open judicial proceedings and the right of the media to report on those proceedings.   The prima facie presumption is always in favour of openness. R v Lidell [1995] 1 NZLR 538.

[5]      In this case, the only factor which is to be weighed in the balance against the presumption of open reporting is the appellant’s psychiatric condition.  Reports have been obtained from Dr Barry-Walsh in relation to that aspect.  In September 2007 he expressed the opinion that the appellant suffers from a major depressive illness, this being a severe mental disorder.   The legal processes were, understandably, aggravating her depression.   The view was expressed her depression is likely to deteriorate with an increased  risk of suicide should she be incarcerated.   In  an updating report dated 13 March 2008, Dr Barry-Walsh expressed the opinion that in comparison with the previous interview she appeared more distressed with intensifying thoughts of suicide.  He said that this is not a pervasive change, but that it was evident that despite treatment she remained troubled by depressed mood, low self esteem and guilt.   He expressed the opinion that she remains vulnerable to deterioration  with  intensification  of  suicidal  ideation  at  points  where  she  faces further crises or negative experiences.  He said that it “seems likely that lifting of name suppression at this point would heighten her risk of suicide and worsen her current psychiatric disorder”.  He goes on to express the opinion that lifting of name

suppression could be anticipated to impair her capacity to participate actively in legal process in particular with giving evidence at a disputed facts hearing, for which she would be best prepared from a psychiatric perspective if potentially aversive experiences were kept to a minimum.

[6]      The psychiatric reports were carefully considered by Judge Walker in his judgment.  He said:

[13]On my reading of the report from Dr Barry-Walsh, the level of distress being suffered by Ms M   arises from her offending, the  effect  of  the  offending  and  court  process  on  her  family, unwanted media attention and the criticism directed at her by former work colleagues.   Dr Barry-Walsh’s description of her remaining “troubled by fluctuating, depressed mood, low self-esteem, guilt and a belief that she is harming those around her” seem to me to be expected consequences of being charged with criminal offending and having pleaded guilty to it.   The only additional effect of publication of the defendant’s name is that this will bring a further burden on the defendant’s family for which she will feel additionally responsible which will heighten her level of distress.

[14]It must be noted that Dr Barry-Walsh identifies a risk of suicide in her current situation with her name currently suppressed.   It is his opinion that the publication will be likely to increase the risk which is the consideration I need to balance against the presumption of openness.

[15]     I   consider   that   the   balance   falls   in   favour   of   publication.

Heightening an  existing  risk  of  suicide  and  worsening  a  current psychiatric disorder by publication does not in my assessment displace the public’s right to know who has been convicted of offences and the right of those who may deal with Ms M   or employ her in the future to know that she has admitted substantial dishonesty.

[16]I am not satisfied that her ability to participate in the disputed facts hearing  will  be  affected  by  publication.    Any  difficulty  in  that respect already exists and the court process can take account of her mental state.

[7]      The issue for consideration on this appeal is whether the Judge erred in principle, or reached a plainly wrong decision, in the assessment which he made.

[8]      A careful balancing of the concerns raised in the psychiatric reports against the principle of open justice was required, and was undertaken.  Specifically, the risk of suicide was noted, and weighed in the balance.  It is not for this court to reassess the weight which the Judge gave to that risk.  This was serious offending, where the

public’s right to know is important.   Dishonesty offending against an employer is relevant to possible future employment.  Mr Antunovic submits that the appellant’s present employer is aware of the situation, but that is not sufficient to address that point.

[9]      Mr Antunovic submits that the issue here is not so much whether the public has a right to know, but when the public has a right to know.   He submits that it would be appropriate to continue the interim suppression through to sentencing.

[10]     I do not consider that that approach is one which ought to be countenanced. If a proper basis for name suppression no longer exists, then suppression should be lifted at the earliest possible opportunity.   That is consistent with the principle of open reporting.  Interim name suppression will usually be more readily granted than permanent suppression.  But it is important that interim suppression should not be continued indefinitely, and there must be consideration at all stages of whether it remains appropriate.   When interim suppression is granted, that should be for the minimum period necessary to enable the issue of suppression to be fully addressed, and  for  the minimum  period  necessary to  preserve the objective of  the  interim suppression.   When it ceases to be appropriate, it should be lifted at the earliest opportunity.  That point has been reached here.  The Judge specifically considered whether continuation to the disputed facts hearing was justified, and concluded that it was not.

[11]     For these reasons, I consider that no error in the approach adopted by the judge, or in his assessment of the relevant considerations, has been demonstrated. This interim order should not be permitted to be extended to a permanent order by a process of accretion.  The appeal is dismissed.

“A D MacKenzie J”

Solicitors:         I M Antunovic Wellington for Appellant

Crown Solicitor Wellington for Respondent