P v Police HC Nelson Cri-2007-442-8
[2007] NZHC 1005
•4 October 2007
This case has been anonymized
IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY
CRI-2007-442-000008
BETWEEN P
Appellant
AND NEW ZEALAND POLICE Respondent
Hearing: 4 October 2007
Counsel: H W Riddoch for Appellant
H Boyd-Wilson for Respondent
Judgment: 4 October 2007
ORAL JUDGMENT OF WILD J
[1] This is an appeal against refusal of name suppression pending trial. The refusal was by Judge Zohrab in the District Court at Nelson on 24 July.
[2] The appellant faces seven charges of indecent assault involving four separate female complainants over the 34 years between December 1951 and December 1985.
[3] The appellant has pleaded not guilty to all the charges. There presently is no date for a depositions hearing. In fact Mr Riddoch advises me that there are no briefs of evidence yet. It is for that reason that an application by the appellant to have the complainants present for cross-examination at the depositions hearing has been adjourned, at present to 17 October.
[4] In advancing the appeal this morning Mr Riddoch placed it on a slightly narrower basis, seeking interim suppression at this stage only until the depositions hearing.
P V NEW ZEALAND POLICE HC NEL CRI-2007-442-000008 4 October 2007
[5] The Judge’s power to suppress publication of the appellant’s name is in s140(1) Criminal Justice Act 1985. The leading guidance on the exercise of that power is to be found in the Court of Appeal’s decisions in R v Liddell [1995] 1
NZLR 538 at 546 and in Lewis v Wilson & Horton & Ors [2000] 3 NZLR 546 at [43]. In relation to suppression pre-trial there are also the Court of Appeal’s decision in Proctor v R [1997] 1 NZLR 295 at 298, and the judgment of Fisher J in this Court in M v Police (1991) 8 CRNZ 14 at 15-16.
[6] Mr Riddoch also referred me to the judgment of Priestley J in GAP v Police HC ROT CRI-2006-463-68 23 August 2006, as a recent and thorough exposition of the considerations where the issue is suppression pre-trial.
[7] The s140(1) power to prohibit publication of the name of a person accused or convicted of a criminal offence is a discretionary one. The section provides that a Court “may” make an order prohibiting publication. The familiar principles relating to an appeal from the exercise of a discretionary power therefore apply. They are set out in May v May (1982) 1 NZFLR 165 (CA). Although Priestley J in GAP v Police did not explicitly approach the appeal he was dealing with on those principles, he found an error of principle in the District Court Judge’s approach. He considered the Judge had erroneously treated the principle of open justice as so irrebuttable as to be “fundamental”, rather than as a presumption which could be displaced, albeit with difficulty. It was on that basis that he embarked on what was essentially a re- exercise of the discretion, allowing the appeal and granting the appellant interim name suppression.
[8] Here, I invited Mr Riddoch to point to any error of principle in Judge Zohrab’s approach, or to identify any relevant factor he overlooked, or any irrelevant factor he took into account.
[9] In response Mr Riddoch accepted the Judge had not erred in principle. He also accepted that the Judge had not taken into account any irrelevant factor or overlooked anything relevant which had been put to the Judge.
[10] The factors Mr Riddoch points to as favouring interim suppression pending depositions are:
• The presumption of innocence.
• The fact that the alleged offending is historic.
• The fact that an application for stay of the criminal proceeding and/or discharge of the appellant pursuant to s347 Crimes Act 1961 will be made.
• The fragile state of the health of the appellant’s wife.
• The appellant’s age, 72, and the state of his health. In an affidavit he affirmed on 3 October the appellant deposes:
I suffered a heart attack at age 49 and have been undergoing treatment for high blood pressure and there are a number of pills that I have to take to treat my condition. As a result of these charges I have been under considerable stress and believe that publication of my name would add to that stress.
• The fact that the complaints were orchestrated by a particular individual, who Mr Riddoch claims has initiated something of a crusade against the Exclusive Brethren Church, of which the appellant is a member. Mr Riddoch contends that this individual facilitated - procured may be too strong a word - the complaints, by telling the complainants that the accused was still abusing young children. Mr Riddoch says that this individual has also leaked information to the press. In short, Mr Riddoch asserts, or at least implies, a lack of good faith on that individual’s part.
[11] Mr Riddoch was obliged to concede that the Judge addressed each of these factors except the last two in his decision. When I say addressed, I mean that the Judge at least referred to them. His decision is a short one: I would not expect otherwise from a busy District Court Judge.
[12] As to the appellant’s state of health, I do not regard it as a factor of any significance, and therefore as one requiring a departure from the Judge’s decision. The appellant’s health, as he himself outlines it, is not unusual for a 72 year old man.
[13] As to the final factor, Mr Boyd-Wilson confirms that the Police are aware of the individual Mr Riddoch referred to. He informed me that the officer-in-charge of the case has spoken to him. Mr Boyd-Wilson said that his advice from the officer- in-charge was that that individual maintains he had done nothing more than encourage the complainants to come forward if the appellant had offended against them. As the Police are aware of that and, after investigation have laid charges, I do not consider that it is a factor of any significance, certainly not one warranting me embarking on a re-exercise of the s140(1) power.
[14] The main factors favouring publication of the appellant’s name, are:
• The presumption that Court proceedings such as the criminal proceeding against the appellant should be an open process. Part of that openness is publication of the names of those alleged to have committed, or convicted of, criminal offending.
• The fact that, in relation to this appellant, the Police believe that publication of his name may well assist Police inquiries, and may lead to further complainants coming forward.
[15] Again, both these factors were referred to by Judge Zohrab. In relation to the second of them, I note that it was not present in GAP v Police. Priestley J specifically made that point at [55] of his judgment, pointing up that, where it is present, it can be an important consideration.
[16] In the result, although I have some concerns, I am unable to fault the Judge’s exercise of his s140(1) discretion. The concerns I have are shared by most Judges and were powerfully put by Harrison J in R v M HC NP T1/03, a decision he gave in New Plymouth on 10 September 2003. It is worth recording what Harrison J said:
[15] Mrs Wilkinson-Smith suggested that publication of the fact of his acquittal would clear M’s name, effectively expunging or offsetting any damage suffered by Mrs M consequent upon publication. I disagree for two reasons. First, in my view the stigma of a prosecution will always remain while our legal system provides that the premise for an acquittal is the Crown’s failure to prove a charge beyond reasonable doubt. It is, with respect, naïve to equate a discharge with absolution or clearance. Among other things, it assumes contrary to my experience that each event, i.e. the trial and any acquittal, attracts equal publicity. Second and more decisively, publication of an acquittal could never undo any harm actually caused to Mrs M in the interim, however brief.
I commend those observations to the reporters present this morning on the press bench.
[17] For those reasons this appeal is dismissed. The result is that the appellant’s name may now be published.
Solicitors:
Crown Solicitor, Nelson for the Respondent
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