NZME Holdings Limited v G
[2024] NZHC 3379
•13 November 2024
ORDER PROHIBITING PUBLICATION OF NAME, ADDRESS,
OCCUPATION OR IDENTIFYING PARTICULARS OF FIRST RESPONDENT AND EMPLOYER PURSUANT TO S 200 CRIMINAL PROCEDURE ACT 2011.
SEE: [2024] NZDC 21817
IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY
I TE KŌTI MATUA O AOTEAROA WHAKATŪ ROHE
CRI-2024-442-24
[2024] NZHC 3379
BETWEEN NZME Holdings Limited Appellant AND
G
First Respondent
AND
NEW ZEALAND POLICE
Second Respondent
Hearing: On the Papers Counsel:
T C Goatley and O M C Zambuto for Appellant J C S Sandston for First Respondent
P A Currie for Second Respondent
Judgment:
13 November 2024
JUDGMENT OF GRICE J
(Appeal against blanket order for permanent name suppression)
[1] NZME Holdings Limited (NZME), an integrated media company, appeals against part of an order permanently suppressing identifying particulars of the first respondent and details of her offending, as well as submissions and concessions made by the Crown in the proceeding, in a ruling of the District Court dated
NZME Holdings Ltd v G [2024] NZHC 3379 [13 November 2024]
5 September 2024.1 The parties have agreed that this matter is dealt with on the papers.
Background
[2] The background to this appeal is that the first respondent was charged with altering a document with intent to deceive (representative),2 and forgery,3 in relation to bank documentation submitted in a Family Court proceeding regarding the division of relationship property between the first respondent and her former partner. The first respondent applied for a discharge without conviction under s 106 of the Sentencing Act 2002, which was granted by Judge Snell on both charges.4
[3] The Judge then considered whether to make a permanent order for name suppression in favour of the first respondent. He found that the threshold for extreme hardship was met.5 Furthermore, he considered that he should exercise his discretion in favour of name suppression, after weighing up the competing interests of the first respondent and those of the public.6 The Judge granted the first respondent’s application for name suppression under s 200 of the Criminal Procedure Act 2011 (the CPA), and made a further order (the blanket suppression order) that:7
… the background of this matter will be permanently suppressed. I indicate that I include in that the concessions made by the Crown today in that suppression order because that effectively identifies matters that potentially would lead to your identification.
[4] NZME filed a notice of appeal on 26 September 2024 (the notice) which set outs the appeal grounds as follows:8
(a)The Judge erred in finding that there was jurisdiction to suppress all details of the defendant’s offending and submissions made by the Crown under s 200 of the CPA (effectively making a blanket suppression order).
(b)The Judge erred in finding that the proceeding had no public interest.
1 Police v [G] [2024] NZDC 21817 [the ruling].
2 Crimes Act 1961, s 258(1)(a) — maximum penalty 10 years’ imprisonment.
3 Crimes Act, s 256(1) — maximum penalty 10 years’ imprisonment.
4 The ruling, above n 1, at [47].
5 At [55].
6 At [59] and [60].
7 At [60].
8 Footnotes omitted.
(c)The Judge erred in finding that publication of any details of the defendant’s offending and/or submissions by the Crown, or any report of the proceeding, would lead to identification of the defendant, even if reported anonymously.
[5] The notice further states that the appeal challenges the District Court’s factual findings that publication of the offending and/or Crown submissions (even if reported anonymously) would lead to the first respondent’s identification, and that there was no public interest in the criminal proceeding. It also challenges the District Court’s jurisdiction to make a “blanket” suppression order. NZME submits that the District Court erred in conducting the weighing exercise at stage two of the suppression inquiry, given the starting premise that there was no public interest in the proceeding, despite open justice being the true starting point under the CPA.
[6] NZME does not take issue with the part of the suppression order which reflects the usual approach under s 200 of the CPA. However, it seeks to appeal on the ground that the blanket suppression order has no foundation. No application was made for such an order in the District Court.
[7] The first respondent has filed a memorandum saying she does not oppose the appeal. The Police have filed a memorandum adopting the submissions of the appellant.
Principles on appeal
[8] When considering an appeal relating to name suppression, an appellate court is required to undertake its own assessment of whether the threshold test is met.9 This involves an assessment of fact and degree. If satisfied the statutory criteria has been met, the court’s review of the second step, involving the exercise of a discretion, will be more limited. It must be focused on whether the judge in the lower court, in exercising his discretion erred in principle, failed to take into account a relevant matter, took into account an irrelevant matter, or was plainly wrong.10
9 Kerr v New Zealand Police [2022] NZHC 190 at [12], citing Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141 at [16].
10 Kerr, above n 9, at [12], citing Wilson v R [2018] NZHC 1778 at [14].
Analysis
[9] In the District Court, the first respondent only applied for suppression of her name under s 200 of the CPA. A person’s name includes any particulars likely to lead to that person’s identification.11 It is accepted that the identity of the first respondent’s employer would constitute a potentially identifying particular, but as the appellant submits, the blanket suppression order goes beyond this, effectively suppressing all details of the proceeding (including the outcome).
[10] The appellant says that there was no jurisdiction to make the blanket suppression order under s 200 of the CPA, and the Court did not refer to s 205(1), which provides for an order forbidding publication of any report or account of the whole or any part of the evidence adduced or submissions made in a proceeding in respect of an offence. The appellant submits that there was jurisdiction to suppress evidence and submissions under s 205 of the CPA, but not the background to the proceedings or the proceedings as a whole, nor the Court’s decision or judgment.12 However, it says that the test for making such suppression orders under s 205 was not met in the District Court and remains unmet in this Court, such that the blanket suppression order should be set aside.
[11] I agree. The appellant notes that, as with orders for name suppression under ss 200 and 202, s 205 calls for a two-stage analysis.13 Undertaking the two-stage analysis, a Court must first determine whether a threshold ground set out in s 205(2) of the CPA is met, being that publication would be likely to:
(a)cause undue hardship to any victim of the offence; or
(b)create a real risk of prejudice to a fair trial; or
(c)endanger the safety of any person; or
(d)lead to the identification of a person whose name is suppressed by order or by law; or
(e)prejudice the maintenance of the law, including the prevention, investigation, and detection of offences; or
11 Criminal Procedure Act 2011 [CPA], s 194.
12 Siemer v Solicitor-General [2013] NZSC 68, [2013] 3 NZLR 441 at [137].
13 Simon France (ed) Adams on Criminal Law – Procedure (online looseleaf ed, Thomson Reuters) at [CPA205.02].
(f)prejudice the security or defence of New Zealand.
[12] Unless the court is satisfied that the threshold is met, it may not suppress the relevant evidence or submissions. If the court is satisfied that one of the threshold grounds has been met, it must then determine whether to exercise its discretion and forbid publication of the relevant information. This involves considering the presumption in favour of open justice.14 To displace that presumption, the balance must clearly favour suppression.15
[13] The presumption in favour of open justice is premised on the idea that the business of the courts should be conducted publicly, and that departure from this general rule ought only be “to the extent necessary to serve the ends of justice”.16 It is central to the open justice principle that there should be no restriction on the publication of information about criminal cases except in special circumstances, or for compelling reasons.17 The only potentially applicable threshold in the present case is whether publication of the relevant evidence or submissions would be likely to “lead to the identification of a person whose name is suppressed by order or by law”.18 The term “likely” has been interpreted to mean “an appreciable risk” or a “real risk that cannot be readily discounted”.19
[14] As NZME points out, the District Court appears to have made the blanket suppression order out of concern that publication of a report of the proceeding (implicitly including the details of the offending) would effectively identify matters that could potentially lead to the first respondent’s identification, and on the basis that there was “virtually no public interest in the details of this offending”, and “virtually no public interest in this matter at all”. 20
[15] I accept the appellant’s submission that there was no basis for the District Court Judge to conclude there was an “appreciable risk” that the anonymised publication of
14 Robertson v Police [2015] NZCA 7 at [43] – [47].
15 Kerr, above n 9, at [11], citing D (CA443/2015) v Police [2015] NZCA 541, (2015) 27 CRNZ 614
at [10] and [17]; and Fagan v Serious Fraud Office [2013] NZCA 367 at [9].
16 Kerr, above n 9, at [10], citing Erceg v Erceg [2016] NZSC 135, [2017] 1 NZLR 310 at [3].
17 France, above n 13, at [CPA198.01].
18 CPA, s 205(2)(d).
19 NZME Publishing Ltd v Wanganui District Court [2019] NZHC 2952, [2019] NZAR 135 at [11].
20 The ruling, above n 1, at [58] and [59].
the details of the offending would lead to identification of the first respondent. The matter was not argued in the District Court, and indeed the Judge stated that there was merely “potential” for identification,21 which is below the required standard to grant suppression orders under s 205.
[16] NZME submits that the offending can be published without this leading to the first respondent’s identification. The background was not so unique and well-known that publication of the fact that the offending involved forging documents in the context of a relationship property dispute would give rise to an appreciable risk of identifying the first respondent. The appellant further points out that media organisations are familiar with reporting cases where a person’s name is suppressed, in a way that does not identify that person. For example, if the reporting omitted the timing of the relationship and the offending and the details of the first respondent’s employer (which it accepts are suppressed in any event), the reporting would not identify the first respondent. It says the media should be trusted to report on those proceedings responsibly as they do as a matter of course where name suppression is involved.
[17] I conclude that the District Court erred in finding the first respondent would be identified by the publication of the background to the proceeding, given the steps that may be taken to ensure that reporting of such matters maintains the first respondent’s anonymity. Relevantly, none of the parties in the District Court applied for blanket suppression and this appeal is not opposed — in fact, the Police have adopted the submissions of the appellant, thereby lending their support to the appeal.
[18] At the second stage of the s 205 analysis, the Judge would have needed to balance the relevant public and private considerations, requiring consideration of open justice.22 Despite stating that he was “very cognisant” of the presumption of open justice,23 the Judge did not expressly incorporate this presumption into his considerations. The Judge erred in that he started from the point that there was
21 At [60].
22 D (CA443/2015) v Police, above n 15, at [35]–[38].
23 The ruling, above n 1, at [51].
“no public interest” in the details of the first respondent’s offending, and there was “virtually no public interest in this matter at all”.24
[19] While the appellant accepts that the level of public interest in the matter may be a relevant factor at the second stage of the s 205 test, it submits that in this case, there is a legitimate public interest in offending relating to a person attempting to mislead a court or another party in the course of litigation by submitting forged documents and false affidavits, as well as in the circumstances in which this offending took place and how it was detected. It is also in the public interest to maintain a transparent sentencing process, and in understanding the processes around discharges without conviction under the s 106 of the Sentencing Act.
[20] In addition, the Judge based his decision on his conclusion that the defendant would suffer extreme hardship as a result of publication.25 However, hardship of any sort to the first respondent is not a relevant consideration under s 205.26 Therefore the Judge erred in taking into account an irrelevant consideration.
Conclusion
[21] The Judge erred in relying on s 200 of the CPA for jurisdiction to make the blanket suppression order and in failing to undertake the analysis required by s 205. On the material before the Judge, I am not satisfied that a threshold ground under s 205(2) is established. In addition the Judge failed to take into account the relevant consideration of the presumption of open justice, and took into account the irrelevant consideration of hardship to the defendant. Therefore, the appeal is allowed to the extent that:
(a)The suppression of the name of the first respondent, including the identity and details of the first respondent’s employer, under s 200 of the CPA continues.
24 At [58] and [59].
25 The ruling, above n 1, at [52]–[55].
26 France, above n 13, at [CPA205.01].
(b)The blanket suppression order insofar as it prohibits publication of evidence and submissions is set aside.
Grice J
Solicitors:
Bell Gully, Auckland for Appellant
Raymond Donnelly & Co, Crown Solicitor, Christchurch for Second Respondent
0
5
0