N v Police HC Wellington CRI-2010-485-10

[2010] NZHC 394

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI-2010-485-10

N

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         2 March 2010

Appearances: J Gwilliam and S Iorns for the appellant

J Murdoch for the respondent

Judgment:      9 March 2010

JUDGMENT OF CLIFFORD J

Introduction

[1]      On 18 January in the District Court at Porirua, Judge Gaskell discharged an order made earlier by the District Court which had suppressed Mr N  ’s name, on an interim basis, in criminal proceedings he faces on a charge of theft by a person in a special relationship under s 220 of the Crimes Act 1961.

[2]      Mr N   now appeals Judge Gaskell’s decision.

Background

[3]      The charge Mr N   now faces (“the Current Charge”) involves business dealings in July and August of 2007 between him and a previous business associate

N V POLICE HC WN CRI-2010-485-10  9 March 2010

relating  to  the  claiming  of  a  GST  refund.    The  Current  Charge  was  laid  on

7 September 2009 and Mr N   has elected trial by jury.   The Current Charge essentially alleges that, as between himself and his business associate, Mr N   acted dishonestly in obtaining the benefit of that GST refund.

[4]      In February 2008 Mr N   was charged with theft in relation to a bach situated on land he was developing.   In December 2008 he was convicted of that charge.  Mr N   was sentenced on 4 December 2009, by which time the Current Charge had been laid.  On the basis that Mr N   paid reparation of $27,500.00, no further sentence, other than the entry of a conviction, was imposed upon him.  Mr N   was not granted name suppression in respect of any part of the proceeding relating to the earlier theft charge.

[5]      The District Court granted Mr N   interim name suppression as regards the Current Charge on 3 November 2009.  The submissions made on Mr N  ’s behalf at the time refer to the adverse impact of the effect of publication of the details of the Current Charge on Mr N  ’s mental health, leading to a risk of self-harm, the adverse impact of such publication on his mother and the prejudice such publication might have on his right to a fair trial.   I do not have a record of the 3 November decision.

[6]      When the question of the continuation of interim suppression came before Judge Gaskell, however, she observed that the previous interim order had been made on the basis of concerns Mr N   had expressed about his mental health, and to enable him to produce medical evidence to support those concerns.  By 18 January Mr N   had not provided any supporting medical evidence to the District Court. The Judge noted that if the Court had been given such evidence, the Court could have continued suppression.  In the absence of any such evidence, the Judge declined Mr N  ’s application for a further interim order.  The Judge did not refer to fair trial issues, either as having been a reason for the earlier order, or as being relevant to the question of its continuation.   The interim order was continued, however, pending Mr N   filing this appeal.

[7]      Mr N   appeals against the refusal of further interim name suppression on the grounds that:

a)        the District Court was without jurisdiction when it considered the matter on 18 January;

b)the District Court erred in failing to consider the prejudice to his fair trial right;

c)        he has now provided further evidence of his mental and psychological state; and

d)the District Court did not consider the impact of declining to continue name suppression on his elderly mother.

Legal Principles

Approach on appeal

[8]      An appeal against an order lifting interim name suppression in the District Court is provided for by s 28E(2B) of the District Courts Act 1947.  Appeals under that section are to be treated as an appeal under s 115C of the Summary Proceedings Act 1957, with all necessary modifications.

[9]      The  procedure  on  an  appeal  under  s 115C  is  governed  by  s 119  of  the Summary Proceedings Act (see s 115C(3)), which provides that the appeal is to proceed by way of rehearing.

[10]     On  an  appeal  by  way  of  re-hearing,  the  appellant  bears  the  onus  of convincing the Court that the decision in question was wrong.  In general terms, the appeal Court is required to come to its own view on the merits: Austin, Nichols & Co Inc v Stichting Lodestar.1

[11]     The  decision  whether  to  order  suppression  under  s 140  of  the  Criminal

Justice Act 1985 is, however, a discretionary one.

[12]     In Austin, Nichols the Supreme Court suggested, at [17], that caution would be required where the decision appealed from involved the exercise of a discretion:

1 [2008] 2 NZLR 141 (SC) at [3]-[5], [13].

In the present appeal there was no basis for caution in differing from the assessment of the tribunal appealed from.  The case entailed no question of credibility.  It turned on a judgment of fact and degree, not the exercise of discretion entrusted to the tribunal. (emphasis added)

[13]     In R v B the Court of Appeal reflected that caution in an appeal against a refusal to grant name suppression by observing that “the case was not an obvious candidate for a second appeal because it involved the exercise of a discretion”, and went on to identify what it said was palpable error in the District Court decision.2

[14]     More generally, the Court of Appeal, in Surrey v Surrey, discussed appeals against  evaluative  or  discretionary  appeals  in  light  of  Austin,  Nichols  in  the following terms: 3

As noted above, Fogarty J held that he was engaged in hearing an appeal from the exercise of a discretion.  He thus considered that the Austin, Nichols test did not apply.

Ms Kelland submitted that appeals with regard to protection orders are not appeals from the exercise of a discretion but general appeals.   In her submission, this means that, if Fogarty J came to a different view from that of Judge Costigan, then he had to substitute his own view even on an appeal from a specialist court.

There is a two-pronged test in s 14(1) of the DV Act: see Appendix One at [90]. Both limbs must be satisfied before a court can issue a protection order. There must first be a factual finding that the respondent is using or has used domestic violence against the applicant, or a child of the applicant’s family, or both. …

Under the second limb of s 14(1), there must then be a finding that the making of an order is necessary for the protection of the applicant, or a child of the applicant’s family, or both. This is an evaluative decision made by the Judge,  taking  into  account  all  relevant  factors:  see  at  [38]  above.    We consider that Fogarty J was correct to categorise the issue of necessity as a discretionary decision for appellate purposes and thus as one that is not subject to the Austin, Nichols analysis: see Blackstone v Blackstone (2008)

19 PRNZ 40 at [8] (CA).

This means that to succeed in an appeal, an appellant must show that the Judge acted on a wrong principle, that he or she failed to take into account some relevant matter, that he or she took account of some irrelevant matter, or  that  he  or  she  was  plainly  wrong  –  i.e.  that  the  Judge  could  not legitimately have come to the conclusion that he or she did. …

2      R v B [2008] NZCA 130, [2009] 1 NZLR 293, at [70].

3      Surrey v Surrey [2008] NZCA 565, [2009] BCL 694 at [65]-[69].

[15]     As is clear, the final paragraph of the foregoing extract from Surrey v Surrey is a reference to the principles set out in May v May.4    In a number of decisions discussing Austin, Nichols, Judges of the High Court have also observed that the May v May principles apply where there is a general appeal by way of rehearing against a decision, or a part of a decision, that involves the exercise of a discretion.5

[16]   Notwithstanding that authority, and in the context of the appellant’s jurisdictional challenge to the District Court decision, both the appellant and the respondent agreed that – whatever the outcome of that challenge – the High Court was in a position in any event to consider the matter afresh, and should do so.  Given the additional evidence provided to me on the question of the impact of the Current Charge on Mr N  , and because of the reliance placed by him on the possible prejudice to his fair trial right, a matter not discussed by the District Court in the decision under appeal, it is in any event appropriate that I do so.  Therefore, whilst I acknowledge that the District Court decision was a discretionary one, and the implications of that on appeal as set out above, I will approach the matter on the basis that I am considering the question of the continuation of interim name suppression afresh.

Name Suppression

[17]     The jurisdiction to make an interim order of name suppression arises under s 140 of the Criminal Justice Act 1985, which provides:

140      Court may prohibit publication of names

(1)       Except as otherwise expressly provided in any enactment, a court may make an order prohibiting the publication, in any report or account relating to any proceedings in respect of an offence, of the name, address, or occupation of the person accused or convicted of the offence, or of any other person connected with the proceedings, or any particulars likely to lead to any such person’s identification.

4      May v May (1982) 1 NZFLR 165 (CA).

5      Narayan v Narayan HC Auckland CIV-2009-404-002398, CIV-2009-404-002402 9 October

2009, at [40]; B v F HC Tauranga CIV-2008-470-590, 3 September 2009 at [5]; WPH v ITP [Length of relationship] [2009] NZFLR 745 at [14]-[16]; Boyd v van Houten [2009] NZFLR

489 at [34]-[35].

[18]     The leading cases on name suppression, R v Liddell,6  Proctor v R,7  Lewis v Wilson & Horton Ltd,8 and Victim X v Television New Zealand Ltd,9 indicate that the following general principles should govern the exercise of this broad discretion:

a)       The starting point must always be the importance in a democracy of freedom of speech, open judicial proceedings, and the right of the media to report the matters fairly and accurately.

b)The discretion to prohibit publication should be exercised sparingly and only in very special circumstances, as an exception to the general rule that the community is entitled to know the identity of people coming before the courts.

[19]     Very recently, in R v B the Court of Appeal allowed an appeal against a decision of the District Court, upheld in the High Court, that declined interim name suppression to an accused facing a number of charges where severance of trials had been granted unanimously.   Delivering the majority judgment William Young P observed: 10

Although there can be no immutable rule in circumstances such as this, fair trial rights would usually mean a postponement of the public’s ability to know  the  identity  of  a  person  until  the  issue  of  severance  has  been determined.   Where severance has been granted, further postponement of publicity is appropriate to the extent necessary to protect the defendant’s fair trial entitlements. ...

Not granting interim name suppression in this case thus risked undermining the fairness of the trial process.  In this context, where all that is at stake is postponing   publication,   fair   trial   rights   must   trump   open   justice considerations (including those associated with the possibility that other complainants might come forward) …

[20]     The Court recognised that the evaluative exercise involved, and the balancing of interests called for, will be different where – as here – what is at stake is suppression pending trial.

6      R v Liddell [1995] 1 NZLR 536.

7      Proctor v R [1997] 1 NZLR 295.

8      Lewis v Wilson & Horton Ltd [2000] 3 NZLR 546.

9      Victim X v Television New Zealand Ltd (2003) 20 CRNZ 194.

10     R v B [2008] NZCA 130, [2009] 1 NZLR 293, at [76], [80].

[21]     At the pre-trial stage, factors to be considered include the presumption of innocence, the risk that publication might pose to the accused in general and, more specifically (as in R v B), to his or her fair trial rights.

[22]     It is accepted that in exceptional situations, the public interest in publication may be outweighed by its significant adverse impact on the accused, for example where publication may have a significant adverse impact on the defendant’s physical or mental health, or increase the risk of self-harm (especially before the trial).  The

Court in R v McDonald, stated: 11

It [name suppression] may also be appropriate where the personal circumstances of the offender are sufficiently serious or exceptional to outweigh  “the  importance  in  a  democracy  of  freedom  of  speech,  open judicial proceedings, and the right of the media to report the latter fairly and accurately as ‘surrogates of the public’”.  See R v Liddell, supra, at 546.

Discussion

Lack of jurisdiction

[23]     The order under appeal was made by the District Court at Porirua.   The appellant submitted that, by the date that the order was made, he had automatically been committed for trial in a court of indictable jurisdiction (the District Court in Wellington): s 184N Summary Proceedings Act 1957, s 28A(1)(a)-(f) District Courts Act 1947.   Therefore the District Court at Wellington was the only Court with jurisdiction to vary the order for interim name suppression.

[24]     As noted at [16], I will consider the question of the continuation of name suppression afresh.  That renders the appellant’s challenge to jurisdiction academic. As argued by the respondent, however, I think the answer to that jurisdictional challenge lies, here, in the fact that Judge Gaskell is a trial Judge appointed as such under s 28B of the District Courts Act 1947.  Pursuant to s 4(4) of that Act, the key prerequisite for jurisdiction under Part 2A is the Judge, rather than the location of the Court.  In my view the order, having been made by a Judge appointed under s 28B, is valid.

11     R v McDonald CA84/98, 24 August 1998, at 4.

Well-being of defendant

[25]     For the purpose of the hearing before Judge Gaskell, Mr N   provided an affidavit of 15 January.  As relevant for these purposes, in that affidavit Mr N   outlined the impact the Current Charge had had on him.   He said that when that charge was brought to his attention it nearly tipped him over the edge emotionally. The thought of going through it all again, with the media attention being his main worry, left him suicidal.  He said that he had calmed down a lot since he first became aware of the Current Charge.   He concluded that was mainly because name suppression had been granted and he did not have to endure media scrutiny again. He said that he feared that if name suppression lapsed he would again find himself in a dark place.  He referred also to the adverse effect of these matters on his mother.

[26]     By way of additional evidence, Mr Gwilliam provided to this Court a copy of a letter written by Mr N  ’s general practitioner.  That letter records the following advice:

Through  2006  to  2009  he  was  extremely  stressed  by  the  personal  and financial circumstances he was in.  He was depressed and on some occasions feeling suicidal because of these pressures.   The publicity his court appearances had markedly added to this stress.   He required counselling through this time.  He is finally now feeling better.

[27]     I accept, of course, the adverse impact on Mr N   that publication of the Current  Charge  will  inevitably  have.     Judge  Gaskell,  in  my  view  correctly, concluded that, understandable though those concerns are, they are not sufficient to warrant name suppression.  I do not think that a general reference by an accused to suicidal thoughts can, by itself, justify name suppression, even on an interim basis. Nor do I consider that the additional information provided by Mr N  ’s GP, taken on its own and in combination with Mr N  ’s own comments in his affidavit, provides sufficient reason to justify continuing suppression, even on an interim basis pending trial.   The terms of the doctor’s letter stress personal and financial circumstances.   They include a reference to the appellant being depressed and, on some occasions, feeling suicidal.   The letter does not, however, provide any assessment of the significance of those feelings, other than to note that counselling

may be required.  In my judgement, therefore, these impacts on Mr N   are not sufficiently serious or exceptional to warrant name suppression.

[28]     I note further that Judge Gaskell was aware ([3] of her directions), of the concerns the appellant expressed as regards the impact of publication of this charge on his mother.  I do not think, given that express acknowledgment, that it is safe to assume the Judge paid no regard to that matter.   Furthermore, and in terms of the material before the Court, that consideration is not in my view sufficient by itself or in combination with Mr N  ’s other concerns to warrant continued, albeit interim, name suppression.

Fair trial rights

[29]     Mr N   seeks interim suppression in connection with the Current Charge where the details of the earlier charge of theft, his conviction and the fact of payment of reparation by him have been published.

[30]     At his trial, therefore, and irrespective of any interim suppression order, his jurors may remember the earlier publication of his previous offence and realise that Mr  N    is  charged  before  them  with  a  further  dishonesty offence.    There  is nothing that interim, or indeed permanent, suppression of the details of the Current Charge Mr N   faces can do about that.   The jurors will receive the standard direction to put aside anything they might have heard about Mr N  , and the charges he now faces, and to make their decision based solely on the evidence they hear in Court.  They may also receive what is now becoming a reasonably standard direction to refrain from “Googling” to find out about the matters before them.

[31]     Therefore the fact that a juror may, as Mr Gwilliam put it, become aware of Mr N  ’s earlier conviction and the circumstances leading to that conviction do not here, in and of themselves, justify interim suppression.  Mr Gwilliam also drew my attention  to  the  earlier  publication  of  the  Judge’s  finding  that  some  of  Mr N  ’s evidence was neither reliable nor believable.  I do not think the possibility that  a  potential  juror  may  remember  that  comment  justifies  suppression  either. Those matters are already in the public domain.

[32]     Mr Gwilliam also referred to the fact that Mr N   has now filed an appeal against both his earlier conviction and sentence.   The proposition here was that publicity given to that may adversely affect Mr N  ’s fair trial rights because, if it is also known that he is facing a new charge, jurors may “link” the two to his detriment in some way.

[33]     I observe first that, as regards publication of the Current Charge which may occur if interim suppression is not continued, the usual restriction on giving publicity to previous convictions in connection with a subsequent charge or trial will apply. As is succinctly observed in Media Law in New Zealand: 12

One of the clearest examples of contempt is the publication of an accused’s previous convictions. There are few things more likely to influence the mind of a juror.

[34]     In that context, the same principle would apply as regards any link being made between the Current Charge and the appeal Mr N   is bringing against his original conviction and sentence.  Any publication relating to the appeal will need to have regard to its possible impact on Mr N  ’s trial on the Current Charge.

[35]     In my judgement, therefore, the fact that there has been earlier publication as regards the conviction for theft does not of itself justify suppression of the Current Charge on the basis that such publication, if remembered, would prejudice Mr N  ’s right to a fair trial as regards the Current Charge.  Were that to be the case, most if not all defendants with previous convictions could mount an argument for name suppression by reason of those previous convictions alone.

[36]     Mr Gwilliam also referred to the significance of material still being available on the Internet, although having been published some time ago.   In  R v B the majority did acknowledge the significance, in that case, of the possibility of “Googling”.  William Young P observed:13

Jury research has established  that jurors  often  make  their  own inquiries despite judicial directions not to do so. Internet inquiries, perhaps just in the form of "Googling" the defendant, must be commonplace. This means that publicity about a defendant can no longer be assumed to be of only transitory

12     Burrows & Cheer Media Law in New Zealand (5th ed, Oxford, 2005) at 396.

13     R v B [2009] 1 NZLR at [78].

significance.  In  the  course  of  preparing  this  judgment,  we  took  the opportunity to "Google" the appellant. This revealed a previous conviction for entirely unrelated offending. No doubt without the current name suppression, references to all the charges laid against him would have also surfaced. This means that in the absence of interim name suppression there would have been a very substantial risk (indeed, likelihood) that some jurors would have learnt that he was facing (or had faced) allegations of other sexual offending. Associated with this is a possibility that such knowledge might illegitimately enter into the decision-making process (compare R v McLean [2001] 3 NZLR 794 (CA)).

[37]     Prior to trial, and before receiving a standard direction not to Google (on the basis  that  juries  are  thought  to  generally follow  directions  given  by  Judges),  a potential juror, on hearing of the new charge Mr N   faces, could not only remember that Mr N   had previously faced a charge of a similar nature, but could then Google and be reminded of the details of that charge.   I have therefore considered the proposition that such actions could refresh earlier adverse publicity and, in that way, so prejudice Mr N  ’s fair trial right as to justify continued interim suppression.   I am not persuaded, in these circumstances, that  that risk justifies suppression.  In R v B, the clear focus of the majority’s comments was the circumstance that a severance order had been granted so as to preclude possible prejudice between trials.   In effect, declining interim suppression would have cut across the very purpose of that severance decision.  That is not the context here.  The press reports appended to Mr N  ’s affidavit, one from the time of his conviction and one from the time of his sentencing, record matters in a factual way.  The earlier report, at the time of his conviction, does refer to the Judge not having been satisfied with certain of his evidence, and the latter, at the time of his sentencing, records the Judge finding Mr N   to have been a good man and one who had acted under stress at the time.

[38]     In these circumstances, and mindful of the balancing exercise required and the importance of open justice, I am not persuaded that grounds exist for a continuation of the interim suppression order by reference to Mr N  ’s fair trial right.

[39]     Mr N  ’s appeal is therefore dismissed.  As I indicated at the hearing, the interim suppression will continue for a period of two working days after the release

of this judgment to enable Mr N   to consider whether he wishes to take this matter further.

“Clifford J”

Solicitors:   John Gwilliam & Co, P O Box 40-457, Upper Hutt for the appellant

Crown Solicitor, P O Box 10-357, Wellington for the respondent