O v Police HC Wellington CRI 2007-454-54

[2008] NZHC 568

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI 2007-454-54

O

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         22 April 2008

Counsel:         I M Antunovic and C L Parkin for Appellant

I R Murray for Respondent

Judgment:      23 April 2008 at 3.45pm

In accordance with r540(4) I direct the Registrar to endorse this judgment with a delivery time of 3.45pm on the 23rd day of April 2008.

RESERVED JUDGMENT OF MACKENZIE J

[1]      This is an appeal against the refusal of interim name suppression until trial. The appellant faces a charge of conspiring to supply methamphetamine.   That is currently at the stage where a pre-depositions hearing is scheduled for 1 May 2008. The  appellant  first  appeared  in  the  District  Court  at  Palmerston  North  on  15

November 2007.  At a subsequent call on 11 December 2007, application was made for  interim  suppression  of  name.    The  application  was  refused,  in  a  brief  oral

judgment delivered on that day.

O V NZ POLICE HC WN CRI 2007-454-54  23 April 2008

[2]      The appellant and his partner are the proprietors of the Sanson Hotel.  They have leased this business for about the past four years.  The lease runs until 2014 and the business is presently up for sale.   The submissions to the District Court in support of the application noted that the appellant’s name had appeared in local newspapers on two or three occasions in connection with this charge, and that a significant down turn in the business had occurred, there being a drop in the number of patrons coming into the hotel with a detrimental impact on the appellant’s income. The judge noted that the appellant’s name had appeared in local newspapers on at least three occasions, referred to the strong presumption in favour of open judicial proceedings and open reporting of them and said that the appellant’s name is already in the public domain, the public are entitled to know what is happening in the courts and the presumption in favour of openness should be maintained.  He refused interim suppression of name.

[3]      In support of this appeal, Mr Antunovic submits that the judge erred in the exercise of his discretion and in law, and did not provide a reasoned decision in refusing to grant interim suppression.  Counsel relies upon the submissions made in the District Court, with the additional information that the hotel remains on the market and has not sold and that the very significant reduction in the number of local patrons has continued.   He submits that the appellant is entitled to rely on the presumption of innocence and there is some special particular damage or prejudice sufficient  to  displace  the  presumption  in  favour  of  open  proceedings  in  the meantime.  Mr Murray for the Crown submits that there are no grounds to interfere with the exercise of the discretion in refusing name suppression; that the principal grounds for seeking continued name suppression, (the presumption of innocence and that the appellant’s business is suffering loss) do not out weigh the presumption of open reporting, and that the loss the appellant claims to be suffering is the kind of loss usually suffered by those charged with serious criminal offending and that it does not come close to the threshold for justifying the imposition of name suppression.

[4]      The principles to be applied on an application for name suppression are well known and have been frequently stated.  In R v Lidell [1995] NZLR 538, the Court of Appeal said that 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 on those proceedings.  The prima facie presumption is always in favour of openness.

[5]      A number of factors which are typically relevant on such applications were discussed in Lewis v Wilson and Horton Limited (2000) 18 CRNZ 55.   Amongst those were:   circumstances personal to the person appearing before the Court, his family, or those who work with him, and impact upon financial and professional interests.   As it is usual for distress, embarrassment, and adverse personal and financial consequences to attend  criminal  proceedings,  some  damage out  of  the ordinary and disproportionate to the public interest in open justice in the particular case is required to displace the presumption in favour of reporting.

[6]      The presumption of innocence is entitled to some weight, on an application for interim suppression before trial.   As the Court of Appeal held in Proctor v R [1997] 1 NZLR 295, the presumption of innocence is to be taken into account and given such weight as is appropriate having regard to the facts of the case. But the presumption of innocence does not of itself displace the application of the principles in R v Liddell.

[7]      The issue on this appeal is whether the judge has properly exercised the discretion having regard to those principles.  I consider that no error in the exercise of the discretion has been demonstrated.  The only factor which could have weighed in favour of suppression was the effect on the business.  But that was not shown to be out of the ordinary.  The fact that the name had already been published meant that damage had already been suffered and any additional damage which might result from continued publication could not be quantified.   That consideration could not have outweighed the public interest in publication.   The fact that publication had already occurred was also a significant factor in its own right.  Suppression will not ordinarily be appropriate where publication has already occurred.   The appellant resides in a small community and his identity is apparently already well known.

[8]      For these reasons I do not consider that any error in the exercise of discretion has been demonstrated and the appeal is accordingly dismissed.

“A D MacKenzie J”

Solicitors:           I M Antunovic Wellington for Appellant

Crown Solicitor Wellington for Respondent