NZME Publishing Limited v Whanganui District Court
[2018] NZHC 2952
•14 November 2018
IN THE HIGH COURT OF NEW ZEALAND WHANGANUI REGISTRY
I TE KŌTI MATUA O AOTEAROA WHANGANUI ROHE
CIV-2017-483-30
[2018] NZHC 2952
IN THE MATTER of the Judicial Review Procedure Act 2016 BETWEEN
NZME PUBLISHING LIMITED
Applicant
AND
THE WHANGANUI DISTRICT COURT
First Respondent
KEVIN LAURENCE ROBB
Second RespondentTHE CROWN SOLICITOR
Third Respondent
Hearing: 30 October 2018 Counsel:
T C Goatley for Applicant
W L Aldred and M McCarthy, Counsel assisting the Court
Judgment:
14 November 2018
JUDGMENT OF THOMAS J
[1] On 11 April 2017, Kevin Robb pleaded guilty to two charges alleging that in 2007 he had sexual conduct with a young person under 16.1 The presiding Judge made an order permanently suppressing the name of Mr Robb’s business (the Permanent Suppression Order).2 NZME Publishing Ltd is the publisher of numerous publications, including the New Zealand Herald, Herald on Sunday and the Horowhenua Chronicle. It seeks judicial review of the Permanent Suppression Order.
1 Crimes Act 1961, s 134.
2 R v Robb DC Whanganui CRI-2015-083-426, 11 April 2017 (Minute of Judge Crayton).
NZME PUBLISHING LIMITED v WHANGANUI DISTRICT COURT [2018] NZHC 2952 [14 November 2018]
[2] Mr Robb, who is the second respondent, and the Whanganui District Court and the Crown Solicitor, the first and third respondents respectively, abide the Court’s decision. In the circumstances, an order was made for the Solicitor-General to appoint counsel to appear and be heard as counsel assisting the Court.3
Background
[3] On 30 March 2015, Mr Robb first appeared in the Whanganui District Court in respect of the charges which at that stage included charges of indecent assault. No suppression orders were made at that appearance.
[4] On 24 April 2015, the Horowhenua Chronicle published an article reporting on that Court appearance entitled “Ohau man faces child sex assault charges” which contained the following:
A 52-year-old Levin business owner has appeared in court facing sex charges involving a girl under 15 years old. Kevin Laurence Robb, owner of The Paint Pot, appeared in Whanganui District Court recently charged with three counts of indecent assault and four of unlawful sexual connection. Police allege the crimes were committed in 2007 when the girl was aged between 13 and 14 years old. He didn’t enter a plea at his first appearance and was due back before the court on Tuesday. Robb is due back in Whanganui District Court on June 21 for a case review to be held.
[5] By 11 April 2017, Mr Robb was in the middle of his jury trial in the Whanganui District Court. It appears there was a resolution of the charges and Mr Robb requested a fresh arraignment, when he pleaded guilty to the two charges of sexual connection with a young person. The Judge then discharged the jury and addressed arrangements for sentencing and an application for bail pending sentence. He then, and without any request from counsel, proceeded to make the Permanent Suppression Order, saying:4
[8] Up to now the name of your business has been suppressed. There is an application for that suppression of the name [of the] business to continue and to be put in place permanently. That is not opposed by the Crown and in all the circumstances before me I find that it is appropriate. The name of your business, Benjamin Moore, The Paint Pot will be suppressed. The reporting of any of the details should not identify that that business is associated with you or there is any connection vice versa.
3 NZME Publishing Ltd v Whanganui District Court HC Whanganui CIV-2017-483-30, 5 March 2018 (minute of Clark J).
4 R v Robb, above n 2.
[6] In fact, the name of Mr Robb’s business, the Paint Pot, (the Business) had not been suppressed up until then. Furthermore, Mr Robb’s name, the name of the Business and the fact Mr Robb owned it had all been published.
[7] NZME applies for judicial review of the Permanent Suppression Order on the grounds that:
(a)The Court erred in law in making the Permanent Suppression Order by taking into account irrelevant considerations, failing to take into account relevant considerations and failing to give reasons.
(b)The decision was irrational (in the sense that it was unreasonable) by reason of taking into account irrelevant considerations, failing to take into account relevant considerations and not being a decision that a reasonable decisionmaker could have made.
[8] Ms Aldred was appointed as counsel to assist the Court. In her helpful submissions, she explained her view that the substantive grounds for judicial review should be held to be established and that there was no serious argument for upholding the Permanent Suppression Order.
Relevant law
[9] Suppression orders in respect of persons connected to a defendant are set out in s 202 of the Act as follows:
202 Court may suppress identity of witnesses, victims, and connected persons
(1)A court that is hearing a proceeding in respect of an offence may make an order forbidding publication of the name, address, or occupation of any person who—
…
(c) is connected with the proceedings, or is connected with the person who is accused of, or convicted of, or acquitted of the offence.
(2)The court may make an order under subsection (1) only if the court is satisfied that publication would be likely to—
(a)cause undue hardship to the witness, victim, or connected person; 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 another 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
(f)prejudice the security or defence of New Zealand.
…
[10] The starting point is the principle of open justice. Suppression operates as an exception to the general rule that the community is entitled to know details of matters coming before the courts. Like s 200, which applies to suppressing the identity of defendants, there is a two-stage test. First, the Court must be satisfied of the likelihood of a consequence specified in s 202(2) and, secondly, if so satisfied, the Court must determine whether to exercise its discretion to suppress the defendant’s name.5 In the discretionary stage generally, dislodging the presumption of open justice is a high threshold,6 and the balance must “come down clearly in favour of suppression”.7 Although these comments were made in the context of s 200, the test has been held to be appropriate in respect of applications under s 202.8 That approach is clearly correct.
[11] The first stage of the test is an exercise of the Court’s judgment, based on the evidence before it.9 In considering whether the threshold test is met, the Court must be satisfied that the publication would be likely to cause undue hardship to a connected person – here, the Business.10 The word “likely” has been interpreted to mean “an appreciable risk”;11 a “real risk that cannot be readily discounted”.12
5 Fagan v Serious Fraud Office [2013] NZCA 367; and Robertson v Police [2015] NZCA 7.
6 Robertson v Police, above n 5, at [41]–[44].
7 Lewis v Wilson & Horton Ltd [2000] 3 NZLR 546 (CA) at [43]; recently followed in
D (CA443/2015) v Police [2015] NZCA 541, (2015) 27 CRNZ 614 at [12].
8 R v Robinson [2016] NZHC 860.
9 At [31].
10 A “person” connected to the defendant has been held to include a school or company: R v Burrett
[2016] NZHC 636 at [5].
11 Adams on Criminal Law – Criminal Procedure (online ed, Thomson Reuters) at [CPA202.04] citing R v W [1998] 1 NZLR 35 (CA).
12 At [CPA202.04] citing Beacon Media Group Ltd v Waititi [2014] NZHC 281 at [17].
[12]The test for “undue hardship” is set out in Beacon Media Group Ltd v Waititi:13
“Undue hardship” is therefore something more than the hardship that would normally attend publicity surrounding criminal proceedings but less than “extreme hardship” … [It is] excessive or greater than the circumstances warrant, that is to say it is disproportionate.
[13] Only if the Court is satisfied of such undue hardship can it go on to exercise its discretion in determining whether to make a suppression order. This requires the Judge to weigh the competing interests of the applicant and the public, taking into account matters such as whether the defendant has been convicted, the seriousness of the offending, the views of the victim and the public interest. A further factor at this stage of the inquiry is whether there has been any prior publication of the person whose identity is sought to be suppressed.
Did the Judge make an error of law?
[14] The Permanent Suppression Order was formalised in a Minute dated 11 April 2017.14 That Minute repeated the Judge’s comments to Mr Robb. There was no further discussion of the basis for making the Permanent Suppression Order either in the context of there being any evidence to support it or in the context of the statutory test.
[15] There is therefore nothing to indicate that the Court turned its mind to s 202 and no reference to any evidence which might have supported the making of the Permanent Suppression Order. The fact an interim order might previously have been made (which was incorrect, as discussed below) is not relevant. When considering whether to make a permanent order, the Court must turn its mind to the statutory test and correctly apply it.15
Mistake of fact
[16] Ms Goatley, for NZME, submitted that the Judge’s mistake of fact should be a further ground of review. I accept Ms Aldred’s submission that it is better considered
13 Beacon Media Group, above n 12, at [22] and [26].
14 Minute of Judge Crayton, above n 2.
15 Interim suppression orders are often made pre-trial to protect the presumption of innocence and fair trial rights. The Permanent Suppression Order was made following convictions on the charges.
as an error of law – more specifically, a misapprehension of the facts leading to an error of law.16
[17] The Judge’s decision relied primarily on two factors: that an interim order suppressing the name of the Business had already been made; and that there was an application to suppress the name of the Business permanently. Neither was the case. It is unclear why the Judge was under these misapprehensions. It appears that counsel did not correct them. This was indeed an unfortunate omission.
Failure to give reasons
[18]The Act requires the Court to give reasons for making a suppression order.17
[19]The justification for the Permanent Suppression Order was:
(a)the name of the Business had been suppressed up until that point;
(b)there was an application for permanent suppression;
(c)the Crown did not oppose the application.
[20] The Judge concluded that, in all the circumstances, it was “appropriate” to make the Permanent Suppression Order.
[21] I agree with Ms Goatley’s submission that reasons must address the substantive issue of why it is appropriate for a suppression order to be made in the context of the relevant legal test. In the absence of additional supporting documentation, the Court’s reasons regarding the Permanent Suppression Order cannot be considered sufficient. A failure to give reasons in circumstances where statute requires them has been described as a “serious failure” and “reviewable duty” in other judicial review contexts.18
16 Graham Taylor Judicial Review A New Zealand perspective (4th ed, LexisNexis, Wellignton, 2018) at [15.09] citing Attorney-General v District Court at Dunedin HC Dunedin CP23/01, 21 September 2001.
17 Criminal Procedure Act 2011, s 207.
18 Option 5 Inc v Marlborough District Council (2009) 16 ELRNZ 1 (HC) at [56]; and Bell v Victoria University of Wellington HC Wellington CIV-2009-485-2634, 8 October 2010. .
[22]These factors clearly support a finding of an error of law.
Did the Judge take into account irrelevant considerations?
[23] Ms Goatley submitted that the Judge erred in taking into account irrelevant considerations, being that an interim order was already in place and that there had been an application for permanent suppression of details of the Business.
[24] While the factors referred to by Ms Goatley were taken into account by the Judge, they were incorrect. As such, this was not a case where the Judge was influenced by irrelevant considerations,19 rather he was influenced by factual errors. The ramification of this has been discussed above, under error of law.
Conclusion on reviewable errors
[25] There was no evidence before the Court on the issue of the likelihood of undue hardship, nor any evidential basis upon which the Court could conclude that publication was likely to cause undue hardship to the Business. As discussed, the test for undue hardship requires an assessment of fact and degree, and must be more than that normally attendant on criminal proceedings. There was therefore no basis for determining that the first stage of the test was met.
[26] Even if the discretionary stage were reached, the issue of futility of suppression should have been considered. The fact the name of the Business was already in the public domain in connection with the charges was a factor which should have been taken into account.
[27] There was therefore no basis for suppressing the name of the Business. For these reasons, I am satisfied the Court erred in law.
Relief
[28] NZME seeks a declaration that the Permanent Suppression Order was unlawful, invalid and of no effect ab initio.
19 Philip Joseph Constitutional and Administrative Law in New Zealand (4th ed, Thomson Reuters, Wellington, 2014) at 948.
[29] The Court has a discretion as to whether to grant relief on judicial review. Once a ground of review is established, however, review is likely to be refused only if there are strong reasons against the granting of a remedy.20
[30]There are two issues to be considered under this head:
(a)Does the availability of alternative remedies by way of appeal impact on whether the Court is prepared to grant relief by way of judicial review?
(b)Should the relief sought, that is a declaration that the Permanent Suppression Order was invalid ab initio, be made?
Impact of availability of alternative remedies
[31] NZME’s application did not address its entitlement to appeal the Permanent Suppression Order or to seek a review of it, and why those rights were not exercised. The Act specifically recognises the standing of members of the media in respect of name suppression subject to certain criteria, which NZME meets.21 NZME was reporting on a proceeding through the Horowhenua Chronicle and is subject to a code of ethics and the complaints procedures of the Media Council (formerly the Press Council) and the Broadcasting Standards Authority. Members of the media have standing to initiate and be heard in relation to any application to renew, vary or revoke a suppression order.22 A permanent suppression order may be reviewed, varied or revoked by the Court at any time.23 The media also have standing to bring an appeal against the making of a suppression order.24 It was, therefore, open to NZME to apply to revoke the Permanent Suppression Order or appeal the decision to make it.
20 R v Robinson, above n 8, at [27].
21 Criminal Procedure Act 2011, s 210.
22 Section 210(2).
23 Section 208(1)(c) and (3).
24 Section 283.
[32] Counsel both suggested that an application for review would have been unlikely to succeed given the lack of change of circumstances. As the Court of Appeal has said:25
[16] … We also agree with Ellis J that most applications under s 208 will be based, as is this one, on a change of circumstance. A party to the proceeding in which the permanent suppression order was made, and any media representative who had a proper opportunity of being heard, would be precluded from applying to revoke the order absent a change of circumstance. To allow them to do so, absent a change of circumstance, would permit a collateral attack on the correctness of the judgment — an abuse of process. There is a remaining issue, one we do not need to decide, as to whether s 208 is an available procedural pathway for those who were not party to the original decision and who do not have standing to appeal a suppression order, to nevertheless challenge whether the order was properly made.
[33] I am not entirely convinced this course would not have been available in this case however, in light of the two mistakes of fact which underpinned the Judge’s decision (and given the name of the Business had already been published). NZME was not present when the Permanent Suppression Order was made and therefore did not have a proper opportunity of being heard. I also observe that it is disappointing counsel did not alert the Judge to the true position. As officers of the Court, counsel should have drawn the Judge’s misapprehensions to his attention. Had they done so, the Judge may well have recalled his decision and convened a short hearing to address the matter.26
[34]Section 16 of the Judicial Review Procedure Act 2016 provides:
16 Relief that court may grant
(1)The High Court may, by order, grant an applicant any relief that the applicant would be entitled to in proceedings for—
(a)a writ or an order of, or in the nature of,—
(i)mandamus; or
(ii)prohibition; or
(iii)certiorari; or
(b)a declaration or an injunction.
25 NZME Publishing Ltd v R [2018] NZCA 363.
26 I am given to understand that Crown trial counsel had only recently become involved in the file.
(2)If an applicant is entitled to an order declaring that a decision made in the exercise of a statutory power of decision is unauthorised or otherwise invalid, the court may, instead of making that order, set aside the decision.
(3)This section applies even if—
(a)the applicant has a right of appeal in relation to the subject matter of the application:
(b)the person who has exercised, or is proposing to exercise, a statutory power to which the application relates was not under any duty to act judicially.
[35] The Court may therefore grant relief as a result of a judicial review, even though NZME has a right of appeal under the Act.
[36] The fact of an appeal right is nevertheless relevant to a judicial review proceeding. In L v Chief Executive of the Ministry of Social Development, the appellants sought judicial review of Family Court declarations that their children were in need of care and protection.27 Referring to the predecessor to s 16 and to s 27(2) of the New Zealand Bill of Rights Act 1990 which provides for a person’s right to apply for judicial review, the Court of Appeal observed that the fact an appeal on the merits is available does not necessarily exclude an administrative law remedy in appropriate cases. The Court was clear that, if appeal avenues were available, that approach would have been more sensible. The Court also acknowledged a number of occasions on which it had stressed the desirability of the appellate route where available.28 In a later case, the Court of Appeal repeated that the existence of a right of appeal did not preclude the High Court from exercising its powers on judicial review but regarded it as an important factor in deciding whether relief should be granted.29
[37] Ms Goatley relied on the frequently cited case in relation to name suppression and the media, Lewis v Wilson & Horton Ltd.30 There, the Court of Appeal held that judicial review is the appropriate route for the media to follow, as someone affected
27 L v Chief Executive of the Ministry of Social Development [2009] NZCA 596 at [21] per Chambers J.
28 At [21].
29 Jin v North Shore District Court [2013] NZCA 475, [2014] NZAR 205 at [62] per Randerson J.
30 Lewis v Wilson & Horton Ltd, above n 7.
by a name suppression but not party to the original application.31 That case, however, predates the Act, which specifically acknowledges the media’s standing to seek a review of and appeal suppression decisions.
[38] Although not articulated in the pleadings or any affidavit evidence in support, Ms Goatley explained that NZME was not present in Court when the Permanent Suppression Order was made. She says NZME became aware of it only on 5 July 2017, some 56 working days after the making of the Permanent Suppression Order and when the appeal period (20 working days) had long since expired. Ms Goatley informed me that NZME first became aware of the Permanent Suppression Order when the police either laid, or informed NZME of the intention to lay, charges against NZME for breaching suppression orders.32 Apparently, NZME has been charged with breaching the (fictitious) interim suppression order in relation to the publication of 24 April 2015 and breaching the Permanent Suppression Order when it published details of Mr Robb’s sentence and identified the Business.
[39] Ms Goatley explained that was a reason for NZME seeking a declaration that the Permanent Suppression Order was void ab initio. She submitted, however, that judicial review was the correct course in circumstances where the making of the Permanent Suppression Order was so blatantly contrary to law.
[40] This case has some similarities with DFS New Zealand Ltd v New Zealand Customs Service.33 That case involved the New Zealand Customs Service and its proposed change to licence conditions of duty free retailers. Both the applicant for judicial review and the New Zealand Customs Service had misunderstood the effect of the governing legislation and the economic impact of the change, and this influenced their approach to the proposed change. Kόs J, then sitting in the High Court, considered the submission that non-exercise of the statutory appeal process disentitled the applicant to judicial relief. He confirmed the existence of an alternative remedy via a statutory appeal is a consideration affecting the exercise of the Court’s discretion to grant relief where a reviewable error is found and where
31 At [50]–[52].
32 Criminal Procedure Act 2011, s 211.
33 DFS New Zealand Ltd v New Zealand Customs Service [2012] NZHC 3279, [2013] NZAR 175 at [54]–[61].
appeals rights are available, adequate and more appropriate.34 He cautioned, however, against taking that discretionary consideration too far.
[41] In this case, the time for appeal had expired well before NZME became aware of the Permanent Suppression Order. That said, in the circumstances it would have been almost inevitable that leave to appeal out of time would have been granted, given the broad discretion to do so.35
[42] However, I am satisfied that the statutory appeal process would not be undermined or misused if judicial review were granted in this case. My assessment of this case turns on the very peculiar circumstances. I accept Ms Goatley’s submission that judicial review and the order applied for in this case will be sought only in the most extreme circumstances. I emphasise that an appeal is usually the appropriate avenue for the media to challenge a suppression order.
Should the Permanent Suppression Order be declared invalid ab initio?
[43] The historic approach that an ultra vires decision should be considered void ab initio has become more nuanced in recent times. This was discussed extensively by Fisher J in Martin v Ryan.36 He explained that the demise of the absolute theory of invalidity was due to the difficulty of reconciling it with the judicial discretion associated with administrative law remedies. He highlighted the fact that the exercise of the Court’s discretion depended on factors occurring after the decision itself, for example conduct of the applicant. It is only when all the circumstances have been considered that the Court decides whether or not to exercise its discretion to grant relief. Fisher J identified the difficulty of reconciling the notion that a vitiated decision was void ab initio with the possibility that, due to subsequent circumstances, it may be treated as if it had always been valid. In short, he said, “in most cases ‘retrospective invalidation’ more accurately reflects the court’s role than a ‘declaration of nullity ab initio’”.37
34 At [56].
35 Criminal Procedure Act 2011, s 285(3).
36 Martin v Ryan [1990] 2 NZLR 209 (HC) at 236.
37 At 237.
[44] Arguably, a decision on name suppression does not fit neatly within that analysis, given it would be very unusual for subsequent circumstances to make a difference to the judicial discretion on granting a remedy in respect of a vitiated name suppression decision.
[45] There are serious flaws in the decision at issue in the present case. The Permanent Suppression Order proceeded on two fundamental misconceptions: first, that an interim suppression order was in place; and, secondly, and more importantly, that there was in fact an application for permanent name suppression. Although conceivably a judge could impose name suppression on his or her own motion, the mandatory statutory requirements for making an order make that very unlikely. That is, there would have to be evidence before a judge which would enable him or her to be satisfied of the likelihood of the statutory matters set out (in this case) in s 202.
[46] At this point I need to say something about the Court file. There is apparently nothing on the Court file to indicate the existence of the Permanent Suppression Order. I am given to understand there was no handwritten notation of the Permanent Suppression Order, as one would normally expect in the District Court where orders are typically not transcribed until well after the event. I infer that the Judge’s Minute referred to above, although dated 11 April 2017, was typed up only after preparation of the transcript of the Judge’s comments, which the documents before me suggest occurred for the purpose of this application.38 I say that because it repeats virtually verbatim extracts from the transcript.
[47] There would, therefore, have been nothing to alert any representative of the media or any other person to the fact the Permanent Suppression Order had been made. On the one hand, I can find nothing in the Act which requires either a minute or notation of a suppression order to be made in order to “perfect” it. On the other hand, given the purpose of an order, it needs to be immediately apparent to anybody who searches the Court file. This rather begs the question as to how the police knew of the Permanent Suppression Order and how the police can consider there is sufficient evidence to charge NZME with its breach. That said, every person commits an offence
38 Again, some evidence in respect of the position would have been helpful.
who publishes any name in breach of a suppression order and it is not necessary for the prosecution to prove that the defendant intended to commit such an offence.39 This means that, once there is proof of publication in breach of an order, a defendant must prove on the balance of probabilities that the defendant took the care that a reasonable person would have taken in the circumstances.40
[48] I have some disquiet at being asked to declare the Permanent Suppression Order void ab initio on the basis that it will assist NZME in defending the charge against it. It would, however, be entirely proper for this decision to be brought to the attention of the police.
[49] The Supreme Court has observed that a court order is binding and conclusive unless and until it is set aside on appeal or for other reason lawfully quashed.41 This comment was made in the context of considering the rule against collateral challenge where Mr Siemer, found to be in contempt by breaching a suppression order, defended himself on the grounds it was void from the outset. The majority held:42
[191] Provided the court had power to make an order of its kind, a court order is binding and conclusive unless and until it is set aside on appeal or for other reason lawfully quashed. Collateral attacks on such orders are not permitted. Neither the parties, nor other persons subject to an order, are permitted to arrange their affairs in accordance with their perceptions of its flaws, including any individual views they may have concerning the validity of the order. The position is the same whether the order has been made in the High Court or in the District Court.
[50] There are many unsatisfactory aspects of the present case. On the face of it, the circumstances are most peculiar and highly irregular. That said, the Judge had jurisdiction to make the order and, importantly in my assessment, the context of his decision needs to be considered. I do not have the full picture of events on the day the Permanent Suppression Order was made. No-one present at the time has participated in this hearing. While the Judge said he considered it “appropriate” “in all the circumstances” to make the Permanent Suppression Order, he did not articulate what those circumstances were. I am mindful, however, that the Permanent Suppression
39 Criminal Procedure Act 2011, s 211(2) and (6).
40 Karam v Solicitor-General HC Auckland AP50/98, 20 August 1999; and Adams on Criminal Law, above n 11, at [CPA211.03].
41 Siemer v Solicitor-General [2013] NZSC 68, [2013] 3 NZLR 441.
42 Citations omitted.
Order was made partway through a jury trial following a resolution of the charges. It may well be that there were matters raised in evidence at the trial which influenced the Judge’s decision. I accept that comment is speculation but it does emphasise the importance of context.
[51] Weighing up all the factors, including that the appropriate path would have been an appeal and the more limited relief that would have followed on that approach, I decline to declare the Permanent Suppression Order void ab initio.
[52] I accept counsel’s submission that it would not be appropriate to remit the matter back to the District Court.
[53]I am satisfied the appropriate course is to set the decision aside.
Result
[54] For the reasons given, NZME’s application for judicial review succeeds. The Permanent Suppression Order is set aside.
Thomas J
Solicitors:
Bell Gully, Auckland for Applicant
Crown Law, Wellington for Respondents
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