NZME Publishing Limited v McMahon - [2019] NZHC 2727

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2019-404-183

[2019] NZHC 2727

Under The Criminal Procedure Act 2011

In the matter

Of an appeal by a member of the media against District Court judgment [2019]

NZCD 7932 to permanently suppress details of offending

BETWEEN

NZME PUBLISHING LIMITED

Appellant

AND

FERGUS MCMAHON

First Respondent

NEW ZEALAND POLICE

Second Respondent

Hearing: 1 October 2019

Appearances:

R K P Stewart for the Appellant

N Baier and A Prasad for the First Respondent

Judgment:

25 October 2019

Reissued in redacted form:

29 November 2019

JUDGMENT OF POWELL J

[Appeal against permanent suppression order – Redacted version]

This judgment was delivered by me on 29 November 2019 at 3 pm pursuant to R 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

Solicitors/Counsel: R K P Stewart, Auckland
N Baier, Auckland

NZME PUBLISHING LIMITED v MCMAHON [2019] NZHC 2727 [25 October 2019]

[1] The appellant, NZME Publishing Limited (“NZME”), has appealed a decision by Judge E M Aitken in the District Court at Auckland,1 permanently suppressing details of offending by the respondent, Fergus McMahon, following his sentencing on eight representative charges of burglary, two charges of theft and one of careless driving (“the New Zealand offending”).

[2] Although Mr McMahon had been unsuccessful in an earlier application to maintain name suppression, interim orders had been in force since 2017 suppressing details of the alleged offending in order to preserve Mr McMahon’s fair trial rights in relation to the burglary and theft charges.2

[3] In making an order for permanent suppression3 Judge Aitken concluded that if details of Mr McMahon’s offending was published his safety would be endangered.4 Her Honour applied s 205 of the Criminal Procedure Act 2011 (“CPA”) which relevantly provides:

205 Court may suppress evidence and submissions

(1) A court may make an order forbidding publication of any report or account of the whole or any part of the evidence adduced or the submissions made in any proceeding in respect of an offence.

(2) The court may make an order under subsection (1) only if the court is satisfied that publication would be likely to—

…

(c) endanger the safety of any person; or

…

[4] Section 205 calls for a two-stage analysis. The first stage requires a threshold determination as to whether publication is likely to result in one of the outcomes listed in subs (2). The second stage requires a discretionary decision, with the court

1      New Zealand Police v Fergus McMahon [2019] NZDC 7932 (“the District Court decision”).
2      McMahon v New Zealand Police [2017] NZHC 1698.
3 The whole or any part of the evidence adduced, or submissions made in these proceedings – including the Court’s sentencing notes, the summary of facts, prosecution and defence counsel’s written submission, the probation report and victim impact statements.” District Court decision at [39].
4      Criminal Procedure Act 2011, s 205(2)(c).

considering the balance between the public interest in publication and the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2019] NZHC 2727
Decision Date: 25 October 2019

CaseChat Overview and Summary

The appeal heard by Powell J concerned an application by NZME Publishing Limited (NZME) to overturn a permanent suppression order made by Judge E M Aitken in the District Court. The suppression order prevented details of the offending by Fergus McMahon, including his burglary, theft, and careless driving charges, from being published. McMahon had previously been unsuccessful in an application to maintain name suppression, but interim suppression orders had been in force since 2017. The appeal focused on the decision to make an order for permanent suppression, which Judge Aitken made based on the potential endangerment to McMahon's safety if the details of his offending were published.

The court had to determine whether there was an evidential basis for the belief that publication would endanger McMahon's safety, and if so, whether the balance between the public interest in publication and McMahon's interests favoured suppression. Powell J concluded that there was no sufficient foundation for Judge Aitken to conclude that McMahon's safety would be endangered if the suppression order was not made. The evidence relied upon by Judge Aitken, including the NSW District Court appeal decision, the CADS report, and the Odyssey House letter, did not provide a sufficient basis for concluding that McMahon's safety would be endangered for the purposes of s 205(2)(c) of the CPA. The court also noted that even taking into account additional medical evidence available, McMahon had not met the threshold under s 205(2)(c) of the CPA.

As a result of the conclusions reached in the first part of the test, it was not necessary to consider the exercise of the discretion. However, two points should be made. First, the court cannot enter into an assessment of whether media or public interest is appropriate or "undue". The right to receive and impart information is not limited in the present context according to qualitative and subjective standards adopted by the judge. It is a right to receive information "of any kind in any form". In cases where some real harm is identified, it may be necessary for the judge to decide whether the harm which would be caused is disproportionate to the public interest in open justice and the freedom to receive information "of any kind". But in the absence of identified harm from the publicity which clearly extends beyond what is normal in such cases, the presumption of public entitlement to the information prevails.

The appeal was allowed, and the District Court orders with regard to suppression in the District Court proceedings would not lapse until 3 p.m. on 22 November 2019, to give McMahon the chance to discuss the implications of this judgment with his treatment providers.

Orders