Pona v The King - [2023] NZCA 669

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA410/2023
[2023] NZCA 669

BETWEEN	ESEN PONA AND HALEY PONA Appellants
AND	THE KING Respondent

Hearing:	31 October 2023
Court:	Miller, Brewer and Osborne JJ
Counsel:	S L McColgan for Appellants E T Fletcher for Respondent
Judgment:	20 December 2023 at 1.00 pm

JUDGMENT OF THE COURT

AThe appeal is dismissed.
BThe application for suppression of submissions pursuant to s 205 of the Criminal Procedure Act 2011 is denied.

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REASONS OF THE COURT

(Given by Brewer J)

Introduction

Mr Pona and Mrs Pona appeal the refusal of Anderson J on 23 June 2023 to grant each of them interim name suppression until the commencement of Mr Pona’s trial on one charge of possession of methamphetamine for supply and one charge of participation in an organised criminal group.[1]
[1]EP v R [2023] NZHC 1573 [judgment under appeal].
Technically, Mr Pona applied to extend interim name suppression granted in the Manukau District Court on 2 March 2022. Mrs Pona applied separately in respect of her own name.
Anderson J recorded:
[3] The applications are based on the submission that publication of Mr P’s name would cause undue hardship or extreme hardship to Mrs P as a person connected to Mr P.[2] Mrs P works at two medical centres in Auckland. At Centre A she is currently the senior registered nurse. At Centre B she is part way through an internship to gain registration as a nurse practitioner under the supervision of her employer there. As a requirement of the internship, Mrs P is receiving mentoring from the senior doctor at Centre A and has obtained his commitment of employment upon registration. The foundation for the applications is the impact of publication on Mrs P’s career and employment.
[2]The applications are supported by an affidavit of Mrs P sworn the day before the hearing.
On the dispositive issue of undue or extreme hardship, this is a general appeal.[3] There is an onus on the appellants to show error on the part of Anderson J, but we must evaluate the issues ourselves and make our own determination.[4]

The decision under appeal

[3]Parker v R [2020] NZCA 502, (2020) 9 CRNZ 536 at [29].

[4]Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141 at [16].

Anderson J referred first to the statutory context. Section 200 of the Criminal Procedure Act 2011 (CPA) empowers a court to make an order forbidding publication of the name of a defendant if the court is satisfied that publication would be likely to cause extreme hardship to the defendant.[5]
[5]Criminal Procedure Act 2011, s 200(2)(a).
By s 202 of the CPA, a court may make an order forbidding publication of the name of any person who is connected with a defendant if the court is satisfied that publication would be likely to cause undue hardship to the connected person.[6]
[6]Sections 202(1)(c) and 202(2)(a).
Anderson…

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.

Continue reading Pona v The King

Details

AGLC: Pona v The King [2023] NZCA 669
Case: [2023] NZCA 669
Decision Date: 20 December 2023 at 1.00 pm

CaseChat Overview and Summary

The Court of Appeal of New Zealand heard an appeal by Esen Pona and Haley Pona against the refusal by Anderson J to grant them interim name suppression. Esen Pona faces charges of possession of methamphetamine for supply and participation in an organised criminal group, while Haley Pona sought suppression on the basis that publication of Esen's name would cause her undue hardship. The appeal raised questions about whether the publication of Esen's name would likely result in undue or extreme hardship to Haley and if the discretionary stage was properly considered. The Court of Appeal found no error in Anderson J's decision, agreeing with her assessment that the likelihood of the feared consequences occurring was not established. The court also found the second ground of appeal moot, as the threshold for suppression had not been met. Consequently, the appeal was dismissed, and the application for suppression of submissions was denied.

In reaching its decision, the Court of Appeal considered the statutory context provided by sections 200 and 202 of the Criminal Procedure Act 2011, which empower the court to suppress names if publication would cause extreme or undue hardship, respectively. The court adopted Anderson J's detailed analysis of the hardship threshold, noting that extreme hardship requires a very high level of suffering or privation beyond the ordinary consequences of publication. The court further examined Haley Pona's affidavit and her concerns about potential career repercussions, such as losing her internship commitment and employment, being reported to the Nursing Council, and facing a loss of trust and confidence from colleagues. However, the court found no independent evidence supporting the likelihood of these consequences materialising. The court also rejected the argument that the lack of evidence against Esen Pona should influence the decision, as it was unrelated to the threshold for suppression. The Court of Appeal concluded that the consequences Haley feared, while significant, did not reach the statutory threshold of undue hardship, and thus the appeal was unsuccessful.

Orders