N v Police HC Auckland CRI 2007-404-241

[2007] NZHC 2007

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2007-404-241

IN THE MATTER OF     an application for continued interim name suppression pursuant to s.140 Criminal Justice Act 1985

BETWEEN  N

Appellant

AND  NEW ZEALAND POLICE Respondent

Hearing:         17 August 2007

Appearances: Mark Ryan for Appellant

Howard Lawry for Respondent

Judgment:      17 August 2007

JUDGMENT OF HARRISON J

SOLICITORS

Haigh Lyon (Auckland) for Appellant

Meredith Connell (Auckland) for Respondent

N V POLICE HC AK CRI 2007-404-241  17 August 2007

Introduction

[1]      Ms Keita N   appeals against a decision of Judge Philip Recordon in the District Court at Waitakere on 9 August 2007 dismissing her application for an order for interim suppression of publication of her name on charges of possessing methamphetamine for supply, possessing cannabis and possessing a pipe  for the purposes of smoking methamphetamine: s 140 Criminal Justice Act 1985.

[2]      It must be emphasised from the outset, as Mr Ryan acknowledged in his oral submissions this morning, that the Judge was exercising a discretionary power.  This Court can only interfere if satisfied that the Judge erred in law, failed to take into account a relevant consideration or took account of an irrelevant consideration, or was  plainly  wrong.    It  is  not  a  right  of  appeal  on  the  merits.    In  particular, Ms N  ’s appeal is not to be determined on the basis that a Judge of this Court might have reached a different view.

District Court

[3]      Judge Recordon, as his decision notes, considered Ms N  ’s application while sitting in a busy suburban Court and with a busy Court list.   With respect, given those constraints, his decision is commendably clear and comprehensive.  He recited and took account of all factors advanced by Mr Ryan on Ms N  ’s behalf.

[4]      In particular, the Judge acknowledged that Ms N  ’s health was not good (she  is  apparently  suffering  from  an  auto immune  deficiency)  and  that   her grandparents were in poor health.  He discussed the strength of the Crown case.  On the health issues the Judge was satisfied that publicity was not going to adversely affect Ms N   any more than the trauma associated with anybody who  faces charges.  He was also satisfied that her grandparents would be able to be warned of the prospect of what he called ‘something distasteful … about their granddaughter’ appearing in the media.

[5]      Judge Recordon concluded in these terms: at [20]:

Any question of name suppression non-publication is discretionary.   It is a balancing  act  and  is  never  easy.     There  is,  as  I  have  said  and  as acknowledged by Mr Ryan, freedom of expression, open justice and in my view there must be compelling reasons or very special circumstances justifying departure from those principles before suppression orders can be made or can continue.  Here, it is my view that the application falls short, not only short, but well short.  I see no good reason to treat this defendant in any other way than other people who come before the Courts.  There is nothing in the arguments that I have seen or heard which suggests to me that she should be treated any differently from anyone else coming before the Courts. She faces serious charges.  The public is interested and entitled to know who she is.

Appeal

[6]      In argument in support of Ms N  ’s appeal this morning, Mr Ryan has limited his argument to one important and well articulated proposition (he characterises as ‘collateral’ other grounds relating to the grandparents’ health and damage to business reputation).  He has taken this step in recognition that Ms N   is seeking to challenge the exercise of a discretionary power.   He submits that the Judge erred by failing to take into account and give proper consideration to  an unarticulated tension between the right to the presumption of innocence, on the one hand, and the right to freedom of expression, on the other.

[7] Judge Recordon’s decision shows that he was aware of the presumption of innocence; indeed, he recognised it as a factor to be taken into account: at [14]. But it is fair to say that his acknowledgement was in a different context. His inquiry was directed towards the question of whether or not pre-trial publicity might prejudice Ms N ’s rights at a later stage.

[8]      Before Judge Recordon, Mr Ryan relied, as he does today, on the decision of Fisher J in M v Police 8 CRNZ 14.   But he adds to it the weight of authority of Baragwanath J’s  insightful  decision  in  X v Police  HC  AK  CRI  2006-404-259

10 August  2006.    He  cites  both  authorities  to  support  a  proposition  that  the presumption of innocence should be given significant weight at the pre-trial stage. He develops this submission in tandem with an attack on the strength of the prosecution case.

[9]      On the principal charge of possessing methamphetamine for supply, Mr Ryan says all the drugs were found in the physical possession of Ms N  ’s co-accused, Mr Joshua McPherson, and says Ms N   was elsewhere in the house when the police appeared.  Also, he says Ms N   did not live at the residence; instead she resided with her family nearby.   He portrays the two other charges as relatively trivial, thereby seeking to invoke the assistance of the Chief Justice’s comments in Lewis v Wilson & Horton Ltd [2000] 3 NZLR 546 (CA) at [42]. His ultimate submission is that the particular damage caused by publicity at this stage will outweigh any public interest in publication of Ms N ’s name; and that even if she is acquitted she will never be able to erase the stigma of publicity.

[10]     I agree with Mr Ryan that different considerations affecting publication may come into play depending upon the stage of the proceedings, whether before, during or after trial.  In the context of an application for name suppression the presumption of innocence naturally carries most weight at the first stage.   Furthermore, I agree with Baragwanath J in X at [34]: the test to be applied pre-trial is whether a departure from the starting point of the public interest in openness and thus in publication is justified on an overall  balancing  of the relevant  factors under  the rubric of the requirements of the interests of justice.   It was an approach which I attempted to articulate earlier, but with less eloquence, in R v M HC NWP T1/03 10 September

2003.

[11]     In this case Judge Recordon, with Mr Ryan’s apparent endorsement, adopted the  same  starting  point  as  endorsed  by  Baragwanath J.    However,  in  apparent reliance on Re Victim X [2003] 3 NZLR 220 (CA), he pitched the rest of the test at a higher level. Judge Recordon required proof of compelling reasons or very special circumstances which would justify a departure from the premise of openness before a suppression order can be made: at [20].

[12]     While that higher test will apply at the second or third stages of trial or sentence, it is not necessarily appropriate at the first stage where an accused person has pleaded not guilty.   Arguably Judge Recordon set the bar with undue rigour. However, to be fair to him, the argument was not presented in the same way as on

appeal.  Indeed, the decisive error in Judge Recordon’s approach only emerged at a late stage during oral argument this morning.

Decision

[13]     Assuming  then that  Judge  Recordon  erred to  the  extent  that  I  have  just articulated, I must then revisit the issue.   However, in undertaking this exercise, I place weight on and give respect to his evaluation of the relevant  factors.   The presumption of open reporting remains.  To that extent it alleviates or diminishes the tension articulated by Mr Ryan between competing freedoms.

[14]     This is not a simple balancing exercise but a weighting which starts in favour of publication.   The issue is whether the presumption of open reporting should be displaced in this case; the presumption of innocence is not sufficient of itself to justify suppression.  Put differently, do the interests of justice require suppression of publication of Ms N  ’s name?

[15]     Primary weight in the personal context was placed in the District Court upon Ms N  ’s medical circumstances and her grandparents’ ill health.  I give them the same weight as Judge Recordon.  Each is relevant but I am not satisfied that either is decisive, even influential.  By comparison, in R v M, I made an order for continued suppression  upon  satisfaction  that  publication  would  place  the  health  of  the accused’s wife at risk of real or substantial harm.  That factor is absent here.

[16]     Thus the issue comes down to a narrow point.  Accepting that publication of Ms N  ’s name will be of greater impact on her than if her family name was not well known, should that factor of itself be decisive?   In my judgment Mr Howard Lawry’s argument for the Crown is persuasive.  He says, and I agree, that if carried to its logical extension the underlying essence of Mr Ryan’s argument would be elevated to a principle that those whose names are of particular interest to the media should have pre-trial suppression but those who are unknown should not enjoy the same benefit.

[17]     The argument is illustrated by taking the example of another young woman who lives in the same area and faces the same charges but whose name is unknown outside of Muriwai or West Auckland generally.  She will be exposed to the real risk of publication of name in, for example, a local suburban newspaper.  Ms N  , on the  other  hand,  may  seek  immunity  from  that  exposure  in  the  existence  of  a prominent family name.  That distinction cannot be right in principle or justice.

[18]     Furthermore, Mr Ryan’s argument on the presumption of innocence and the inability  to  erase  the  stigma  of  publication  loses  traction  given  Ms  N  ’s admission of possession of the methamphetamine pipe.  That is not trivial offending. It relates to the use of methamphetamine, a Class A drug.  It provides evidence that she suffers the ravages of methamphetamine addiction or abuse.  Whether or not her admission would be converted into a plea of guilty to the charge is of little importance.  The evidence, based on her own admission, is overwhelming.

[19]     Similarly, it does not matter for these purposes that she may or may not have been granted diversion if she faced that charge alone.  In my assessment it would be more probable that  she would be convicted and a sentence  imposed which was designed to achieve rehabilitation through formal terms.   On the basis of her admission there would be no ground for arguing for suppression of name at the substantive hearing.  The presumption of innocence no longer applies.

[20]     Also,  I  accept  Mr Lawry’s  submission  that  Mr Ryan’s  portrayal  of  the prosecution  case  is  incomplete.    It  is  true  that  the  police  found  incriminating evidence on Mr McPherson following a search of his person.   Included among the items were 10 snaplock bags containing methamphetamine to a weight of 4.5 grams and two plastic bags containing a further 53 empty snaplock bags.

[21]     But a search of a bedroom located a number of other items also including snaplock bags with methamphetamine, cannabis and a pipe and straws.  The police allege  that  the  bedroom  was  shared  by  both  Mr McPherson  and  Ms  N  . Mr Ryan says that evidence is in dispute.  I cannot, of course, attempt to resolve it. Nevertheless, its existence satisfies me that the Crown’s case on the major charge is not hopeless.

[22]     I   am   not   satisfied   that   the   interests   of   justice   require   suppression. Accordingly, I dismiss Ms N  ’s appeal against Judge Recordon’s decision.   I express my appreciation for the articulate arguments presented by both Mr Ryan for Ms N   and Mr Lawry for the Crown.

[23]     Mr Ryan has requested that I suspend or defer the effect of this order until

4 pm on 21 August 2007 to allow him to analyse my decision with a view to lodging an appeal to the Court of Appeal within that  period.    I decline the  application

(Mr Ryan did not identify the nature of my jurisdiction to grant a stay).

Rhys Harrison J