Nuku v Police Commissioner
[2018] NZHC 36
•1 February 2018
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA
TE WHANGANUI-Ā-TARA ROHE
CIV 2017-404-2190 [2018] NZHC 36
BETWEEN KARL NUKU
Appellant
AND
THE POLICE COMMISSIONER Respondent
Hearing: On Papers Counsel:
Appellant in Person
G Taylor for RespondentJudgment:
1 February 2018
JUDGMENT OF ELLIS J
[1] Mr Nuku appeals an interim non-publication order of the Human Rights Review Tribunal (the Tribunal) dated 28 August 2017, under s 123(1) of the Human Rights Act 1993 (HRA).1
Background
[2] On 29 July 2011 Mr Nuku and a co-defendant were convicted of murder and sentenced to life imprisonment in the High Court by Woolford J. During the murder trial that lead to Mr Nuku’s conviction, a prosecution witness was granted interim name suppression by the High Court and was referred to as “W29”. That suppression order was made permanent at the conclusion of the trial on the combined grounds
that:2
1 Nuku v Commissioner of Police (Interim Non-Publication Order) [2017] NZHRRT 32.
2 R v Pandey-Johnson HC New Plymouth CRI-2011-443-000013, 16 June 2011.
NUKU v THE POLICE COMMISSIONER [2018] NZHC 36 [1 February 2018]
(a) the extensive media coverage in relation to W29 and the nature of the allegations levelled at her by the defendants and their lawyers during the trial (including that she was the actual murderer and that she had perjured herself);
(b) W29’s health issues and the nature of those issues; and
(c) the impact of publication on her employment, both current and future should final name suppression not be granted.
[3] On 9 June 2016 Mr Nuku made a request under the Privacy Act 1993 to Police for access to a number of Crown and defence exhibits from the trial. He made that request with a view to compiling information he requires in order to seek the exercise of the Royal prerogative of mercy in relation to his conviction.
[4] Police provided some of the material requested, but withheld other material under s 29 of the Privacy Act. The material withheld included information relating to W29 (which was contained within Crown Exhibit 32).
[5] On 26 June 2017 Mr Nuku filed a statement of claim in the Tribunal alleging that the Police decision to withhold the material was in breach of the Privacy Act. He attached copies of correspondence he had had with the Office of the Privacy Commissioner, in which he referred to W29 by her real name.
[6] On 18 August 2017, the Crown (on behalf of Police) filed a memorandum in the Tribunal advising of the High Court’s permanent suppression order. The Crown was, quite properly, anxious to ensure compliance with the High Court’s orders in the course of the Tribunal’s proceedings, and to prevent W29’s real name being used inadvertently by the Tribunal in a publicly available document.
[7] On 21 August 2017, Mr Nuku filed a memorandum in the Tribunal in response to that of the Crown. In it, Mr Nuku opposed any recognition by the Tribunal of Woolford J’s order. Insofar as I am able to distil his argument, it was as follows:
(a) the issue of permanent name suppression does not relate to the Tribunal proceedings;
(b)Mr Nuku’s use of W29’s ordinary name in his correspondence with the Office of the Privacy Commissioner is of no consequence because (save for the Crown raising the issue) there is nothing to suggest that the woman with that name is W29;
(c) the permanent name suppression order does not apply to the Tribunal, so long as it ensures that no nexus is created between W29 and her ordinary name; and
(d)the question before the Tribunal (namely whether the Police are in breach of the Privacy Act) is a civil matter. The Tribunal does not have jurisdiction to grant a subsequent name suppression order for W29.
[8] Mr Nuku concluded his memorandum by suggesting that if the Tribunal was inclined to make an interim non-publication order in relation to W29, that the matter be deferred until the conclusion of the Tribunal’s proceedings.
The Tribunal’s decision
[9] No doubt in response to the Crown memorandum, on 28 August 2017, the
Tribunal made the following orders:3
[8.1] Publication of the name or of any details which could lead to the identification of W29 is prohibited pending further order of the Chairperson or of the Tribunal.
[8.2] There is to be no search of the Tribunal file without leave of the Chairperson or of the Tribunal. The plaintiff and defendant are to be notified of any request to search the file and given the opportunity to be heard on that application.
[8.3] Leave is reserved to both parties to make further application[s] should the need arise.
[10] The orders were said by the Tribunal to be made pursuant to ss 95 and 107 of the HRA.4
The appeal
[11] On 1 September 2017, Mr Nuku filed a notice of appeal in the High Court. Although he accepts that the Tribunal had the authority under s 107 of the HRA to make an interim non-publication order on the papers, he says that here the order was made on an ex parte basis in breach of both s 95(3), and the principles of natural justice. He says that the Tribunal did not afford him the opportunity to be heard and took no account of his interests. He points out that the Tribunal’s order of
28 August 2017 makes no mention of his memorandum.
[12] On 12 December 2017, with consent of the parties, I ordered that this appeal would be determined on the papers. I also sought brief memoranda explaining the substance of Mr Nuku’s claim in the Tribunal, which both Mr Nuku and the respondent provided shortly afterwards.
Discussion
[13] It seems to me that the starting point must be Woolford J’s order. That order was made prior to the commencement of the Criminal Procedure Act 2011 (the CPA) but was of a kind now given statutory recognition in s 202 of that Act, namely an order forbidding the publication of the name or identifying particulars of the witness known as W29 on the grounds that publication would cause her undue hardship.
[14] Because the suppression order here predates the CPA, the provisions in that Act creating specific offences of breaching suppression orders do not apply. But there can be no doubt that knowingly (or recklessly) breaching an order made before the commencement of the Act would always have been regarded as constituting a serious contempt of Court, with the attendant legal consequences.
[15] Similarly, there is no reason to think that the CPA changed the law in terms of the meaning of “publication” in a suppression context.5 Thus the recent decision in ASG v Hayne on that issue is equally relevant here.6 In that case the Supreme Court held that a restriction on publication covers any disclosure by print media, word of mouth or social media. Passing along suppressed information to one other person or to a small number of persons (including by word of mouth) in a situation that will undermine the purpose of the suppression order will breach s 202 of the CPA.7 The Court acknowledged, however, that there would be no breach when the dissemination of information is to persons with a genuine need to know, where that interest is objectively established.8
[16] Notably, a report or account relating to proceedings where there is no reference to the proceedings where the suppression order was made may also constitute a contemptuous “publication”. Thus, in Karam v Solicitor-General (a pre-CPA case) where a suppression order was granted in relation to a witness at trial, it was held that a reference in a book to the name of the witness and statements she had made to the police in the course of the investigation was a breach of the suppression order.9
[17] On the basis of these authorities, it seems to me to be tolerably clear that naming witness W29 either in correspondence with the Privacy Commissioner or in communications with the Tribunal constitutes “publication” and these and any other references to her name by Mr Nuku in any context directly or indirectly connected with his trial runs a real risk of breaching Woolford J’s order. That risk exists regardless of whether there is some obvious way of joining the dots between her name and witness W29. There is nothing in the material before the Court to suggest that Mr Nuku could objectively establish that the Privacy Commissioner and the Tribunal
have a genuine interest in knowing W29’s true name or identity.
5 Section 195 of the CPA provides that “publication means publication in the context of any report or account relating to the proceeding in respect of which the section applies or the order was made (as the case may be)”. Section 194 of the Act defines “name” as including the person’s name and any particulars likely to lead to the person’s identification.
6 ASG v Hayne [2017] NZSC 59, [2017] 1 NZLR 777.
7 At [79].
8 ASG v Hayne, above n 11,at [79] – [80].
9 Karam v Solicitor-General HC Auckland AP50/98, 20 August 1999 at 8 – 9.
[18] For these reasons the Crown acted entirely properly in bringing the suppression order to the Tribunal’s attention and the Tribunal was right to take steps to record and recognise it.
[19] For myself, however, I doubt that ss 95 and 107 of the HRA (the provisions said to have been applied by the Tribunal) have much bearing on the matter.
[20] Section 95 empowers the Chairperson of the Tribunal to make an interim order “if he or she is satisfied that it is necessary in the interests of justice to make the order to preserve the position of the parties” pending a final determination of the proceedings. In the present case, it is not the parties’ position that is sought to be preserved but the position of a non-party (W29) and, in a sense, an order of this Court. The natural justice obligation contained in s 95(3) does not, in my view, arise.
[21] And s 107(3) simply provides that the Tribunal may make an order:
(a) that any hearing or any part of a hearing held by it be heard in private;
(b)prohibiting the publication of any report or account of some or all of the evidence in any proceedings before it; and
(c) prohibiting the publication of the whole or part of any books or documents produced at any hearing of the Tribunal.
[22] None of those orders appear to be particularly apt in the present case.
[23] For the reasons I have already given, however, it matters little whether s 95 or s 107 can be said to apply here. The signal point is that Woolford J’s order continues in force and operates to prevent any “publication” of W29’s real name by Mr Nuku or the Tribunal. The Tribunal had no choice but to recognise this and, as I have also said, was wise to formally record its operation in the proceedings before it. Because compliance with Woolford J’s order is mandatory, no natural justice issue can possibly arise. I would suggest that Mr Nuku needs to be very careful to comply with that order in future.
[24] Given my view that:
(a) neither ss 95 nor 107 directly apply here; but
(b) in substance (by which I mean in its recognition of the force of
Woolford J’s order) the Tribunal’s order is entirely correct;
it is difficult to know what formal orders should be made in this appeal. I am not inclined, however, to overturn the interim order at this stage. I prefer to exercise this Court’s power under s 123(7) of the HRA. Instead of determining the appeal, I refer the matter back to the Tribunal for further consideration in light of this judgment. I leave it to the Tribunal to determine whether the interim order should be revoked or
amended. I make no order as to costs.
Rebecca Ellis J
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