Moors v Police

[2017] NZHC 1067

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2017-404-000127 [2017] NZHC 1067

BETWEEN

URSHULA JACINTA MOORS

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:	22 May 2017
Counsel:	JJ Corby for Appellant KR Muirhead for Respondent
Judgment:	22 May 2017

JUDGMENT OF DOWNS J

This judgment was delivered by me on Monday, 22 May 2017 at 4 pm.

Registrar/Deputy Registrar

Solicitors/Counsel: JJ Corby, Auckland.

Meredith Connell, Auckland.

MOORS v POLICE [2017] NZHC 1067 [22 May 2017]

The issue

[1]      The appellant seeks permanent name suppression. Although this is an appeal, no real challenge is made to Judge Jelas’ reasoning in the Court below.1   Rather, the appellant submits a material circumstance has since changed so publication of her name would now cause “extreme hardship” to her children.2

Background

[2]      The  appellant  is  serving  a  sentence  of  two  years  and  eight  months’ imprisonment in relation to a total of seven representative charges: six of theft by a person in a special relationship and one charge of false accounting.   In short, the appellant stole $164,272.40 from her employer through false invoicing.   The offending occurred over one year and nine months, and involved at least 76 discrete incidents of dishonesty.

[3]      The appellant has earlier convictions for similar offending (committed in

2004 and 2005), which attracted the attention of the New Zealand Herald in 2005. Her name was not suppressed in relation to that offending.

[4]      The appellant has four children, aged between 4 and 19 years.  She uses two names. Two of the children have one; two the other.

[5]      In 2011, a Herald article about the earlier offending was re-circulated in social media.  Related online commentary was derogatory.  The appellant says this caused a breakdown in her relationship with her eldest child.  He remains estranged.

[6]      Before the District Court, the appellant contended publication of her name may have a similar impact on her next eldest child, X, who is doing well at a local high school and playing sport at a representative level.   He wrote a letter to the

District Court, which was placed before the Judge.

1      Criminal Procedure Act 2011, s 200(2)(a).

2      Police v Moors [2017] NZDC 6058.

District Court judgment

[7]      Judge Jelas reserved her decision.  Her Honour concluded while publication of the appellant’s name would affect her children, hardship would not be extreme. The Judge considered:

(a)      Estrangement (following re-circulation of the article) was because the eldest child had been ignorant of his mother’s offending.  The present situation was distinguishable as the children knew of the offending.

(b)      X’s letter was silent on the issue of publication.

(c)      It was expected the children would soon move to Australia to be with their aunt.

(d)      The offending was serious.  The public was entitled to know about it,

including the offender’s identity.

[8]      The Judge concluded the children may, however, suffer undue hardship.3   So,

Her Honour suppressed their names but not the appellant’s.

A précis of the arguments

[9]      As foreshadowed, Mr Corby’s submissions in support of the appeal do not identify alleged errors in Judge Jelas’ decision.  Instead, weight is placed on a change of circumstance: the children have not moved to Australia as was expected.   An affidavit from their aunt confirms as much.  X has also written a fresh letter in which identifies concern about the impact of publication of his mother’s name. Understandably, X believes he and his siblings will be subjected to “bullying and harassment”, particularly online.   X notes his sister is “very sensitive”.   X is particularly worried his success at school and sport will attract attention in light of

his mother’s offending.  The appellant has also filed an affidavit.

3      Criminal Procedure Act 2011, s 202(2)(a).

[10]     Mr Corby also submitted unless the appellant’s name was suppressed, the

suppression order in relation to the children risked becoming moot.

[11]     The Crown opposes the appeal.  It invites attention to the very high threshold for suppression. And submits, overall, little has changed.

Analysis

[12]     I have no doubt X is genuinely concerned, both for himself and his siblings. However,  suppression  in  these  circumstances  is  not  possible  unless  a  court  is satisfied it is likely the defendant or others connected to the defendant—here, X and the other children—will suffer “extreme hardship”.

[13]     Extreme in this context bears its natural and ordinary meaning.  A very high level of hardship is required; something quite out of the ordinary is necessary.4

[14]     Nothing  identified  by  Mr  Corby  on  behalf  of  the  appellant  meets  this threshold; including the fact the children will no longer move overseas.  While there has been a change in circumstance, that change is not material in terms of the statutory test:

(a)      Online or other unwanted attention in relation to X and the other children is, sadly, a natural consequence of the offending.  Experience suggests opprobrium in connection with the commission of criminal offences sometimes extends beyond the offender to—wrongly—his or her family.

(b)      As the appellant herself observes in her affidavit, the “people who do

the trolling and harassing are people who know me and my family”.5

The statute, however, is concerned with the effect of publication.

(c)       The children’s names are suppressed, a point that dovetails with (b).

4      Robertson v Police [2015] NZCA 7 at [48] and Bond v R [2015] NZCA 488 at [33].

5      Emphasis added.

(d)Many  of  the  identified  concerns  are  inextricably  linked  to  the offending and penal consequence. Again, the (likely) effect must flow from publication, not something else.

[15]     In  summary,  the  identified  circumstances  are  unfortunate  but  do  not  go beyond the ordinary outcomes of publication.  And, much of the problem lies not with publication, but with those close to the appellant who, in all probability, are already aware of the offending.

[16]     The contention suppression of the appellant’s name is necessary to ensure efficacy of the order vis-à-vis the children is without merit.  A similar argument is frequently advanced  in  relation  to  intra-familial  sexual  offending.   And  equally frequently rejected.   The short  point  is  no  one  may publish  anything  that  may identify the children.  No additional order is required to protect them.  Moreover, as Ms Muirhead for the Police submitted, suppression on this basis would be perverse, for, the appellant seeks suppression only for her children’s sake.

[17]     Before disposing of the appeal, I note much of the evidence advanced in support of the appeal was not fresh.  I received it, however, out of an abundance of caution save for personal criticism of the Judge below, who the appellant described as “very naïve”.   Observations of this nature are inappropriate and inadmissible. They have no place in curial proceedings.

[18]     The appeal is dismissed.

……………………………..

Downs J