Pona v The King

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.

____________________________________________________________________

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 J summarised the appellants’ grounds for seeking suppression orders:
[8]       Mrs P applies for name suppression under s 202(2)(a) on the ground that publication of her name would be likely to cause “undue hardship”[7] to her as a person connected to Mr P.
[9]       Mr P’s application relies on three alternative grounds:
(a)That publication would be likely to cause “extreme hardship” to Mrs P.[8]
(b)That publication would be likely to “cast suspicion on [Mrs P] that may cause undue hardship [to her]”.[9]
(c)That publication would be likely to lead to the identification of Mrs P, being a “person whose name is suppressed by order or by law” by virtue of the order I will have made under s 202.[10]
[7]Criminal Procedure Act 2011, s 202(2)(b).
[8]Section 200(2)(a).
[9]Section 200(2)(b).
[10]Section 200(2)(f).
The Judge then set out the legal principles developed by the courts as to the application of ss 200 and 202 of the CPA. We concur with the Judge’s description, and quote it:[11]
[10]     Applications under ss 200 and 202 involve a two-step process.[12] The Court first considers whether it is satisfied that any of the threshold grounds have been established. At the second stage, the Court then considers whether name suppression should be granted in the Court’s discretion.
[11]     At the threshold stage, the Court must be satisfied that “publication would be likely” to result in one of the listed consequences. The word “likely” in this context means “a real and appreciable risk”[13] or a “real risk that cannot be readily discounted”.[14]
[12]     The likely consequences relied on by the applicants involve “undue hardship” or alternatively “extreme hardship.” In Robertson v Police, the Court of Appeal held:[15]
[48]      As regards the level of hardship required by the phrase “extreme hardship”, we consider it clear beyond argument that it connotes a very high level of hardship. The word “hardship” on its own means “severe suffering or privation”. The addition of the qualifier “undue” in s 200(2)(c) indicates that something more than hardship simple is required, while the word “extreme” in s 200(2)(d) indicates something more again.
[49]      An assessment of whether the contended hardship is “extreme” cannot take place in a vacuum. It is self-evidently contextual and in our view must entail a relative comparison between the contended hardship and the consequences normally associated with a defendant’s name being published. It must be something beyond the ordinary associated consequences. Accordingly, it was in our view no error for Gendall J to take into account, for example, that the hardship to Mrs Robertson’s family was simply a natural consequence of her offending. As the Judge put it, the hardship suffered by the family “simply [did] not fall outside the ordinary experience”.
(footnotes omitted)
[13]     “Undue hardship” has also been held to entail “hardship that is disproportionate to the purpose which justifies publication, namely the public interest in the open reporting of court proceedings and the right to freedom of expression”.[16]
[11]Footnotes in original.
[12]Robertson v Police [2015] NZCA 7 at [39]; and Beacon Media Group Ltd v Waititi [2014] NZHC 281.
[13]Wallis v Police [2015] NZHC 2904 at [22].
[14]Beacon Media Group Ltd v Waititi, above n 12, at [17] and see Huang v Serious Fraud Office [2017] NZCA 187 at [9]–[10]; and LF v R [2022] NZHC 2547 at [44]–[46].
[15]Robertson v Police, above n 12.
[16]Beacon Media Group Ltd v Waititi, above n 12, at [27].
We also adopt the Judge’s description of Mrs Pona’s situation:[17]
[14]     Mr and Mrs P have been together for four years. They were married on 12 May 2023, over a year after interim name suppression had been granted in favour of Mr P. The Court was told that Mr P’s family name is unusual. All others of that name in New Zealand are related to him. Mrs P deposed that since her marriage she has started to change her name in her various roles from her maiden name, Ms S.
[15]     Mrs P is a committed nurse with 10 years’ experience following completion of her Bachelor of Nursing in 2013. Her background includes being nominated for Young Nurse of the Year Award in 2015. Mrs P has now completed her Masters in Nursing. She has been studying for 11 years.
[16]     I referred earlier to Mrs P’s current roles at two medical centres. At Centre A she is the senior registered nurse. Mrs P’s work includes full triage consult, diagnosis and generating prescriptions for a doctor’s sign off. It also includes mentoring and educating other nurses. Mrs P has worked at Centre A for five and a half years. Mr P is known to Mrs P’s colleagues at Centre A through social events and the like.
[17]     At Centre B, Mrs P is a nurse intern under a full scholarship as part of the nurse practitioner programme. Mrs P gained entry to the programme this year. As at 13 June 2023 she had completed 100 of the 500 hours required.
[18]     Mrs P emphasised that on completion of the internship Mrs P will be qualified for registration as a nurse practitioner in family health where she will have her own patients and greater responsibility including prescribing controlled drugs. She further said that in the meantime, as an intern, her responsibilities include prescribing drugs under the supervision of a senior doctor.
[19]     Mr P is not known to Mrs P’s employer and colleagues at Centre B. However, Mrs P’s married name is on university internship forms lodged with Centre B.[18] Mrs P deposed that Centre B is situated near the place where the consignment of drugs was intercepted and that her workmates were discussing the most recent appearances in the High Court on the matter which were reported in the media.
[17]Footnote in original.
[18]This was not expressly stated in Mrs P’s affidavit but was confirmed by Mrs P at the hearing (following confirmation from the Crown that it did not object to that course).
The Judge summarised Mrs Pona’s primary concerns as to the consequences of her name being published:[19]
(a)Her employers will revoke their commitment to support her internship and the commitment of employment at the end of her training.
(b)If either of her employers learn of the connection to Mr P and of his alleged offending, they would be quick to report this to the Nursing Council. She would be investigated with the possibility of having her practising certificate taken away.
(c)Mrs P’s connection to Mr P and the serious allegations against him would bring into question Mrs P’s integrity in her role with vulnerable people and administration of controlled substances. This would lead to a loss of trust by her work colleagues and Mrs P would in turn lose confidence dealing with controlled substances around her work colleagues.
[19]Judgment under appeal, above n 1, at [20].
Anderson J decided that neither undue hardship nor extreme hardship had been established.
As to undue hardship, the Judge said:
[29]     The first two consequences relied upon (outlined at [20]) are specific effects on Mrs P’s internship, registration and employment. While negative financial consequences are ordinary consequences for the partner of someone accused of serious offending, Mrs P says it is likely she will lose her progression to becoming a registered nurse practitioner and her current job. She says she may even lose her registration as a nurse. I accept that were these consequences to occur, they would constitute undue hardship to her.
[30]     Although I acknowledge that Mrs P is genuine in her concern about these potential consequences, I must consider the likelihood that they will occur.
[31]     Mrs P’s affidavit confirms that she has a commitment from the senior doctor at Centre A for employment upon registration. She has been an employee there for over five years. She has clearly been independently assessed by her employer as worthy of employment at the end of her internship. Her affidavit confirms that she is a talented and committed nurse. Mrs P has also been awarded a fully funded internship which she is some way through. She has developed the confidence of her colleagues to date. I am not satisfied that there is any real or appreciable risk that the allegations against Mr P could realistically found a basis for interference with either the internship or commitment of employment. I was not provided with any independent evidential support for that proposition.
[32]     Nor was I provided with any objective basis for Mrs P being reported to the Nursing Council or of her registration being taken away. That seems inherently unlikely to me on the grounds of charges being laid against Mr P. I was not provided with any specifics of how that would be possible absent an assertion of wrongdoing by Mrs P herself.
The Judge considered, and rejected, submissions from Mr McColgan that in the “real world” all the consequences are likely and that the potential consequences are so sensitive that it is not practicable to obtain any independent affidavit support.[20]
[20]At [33]–[34].
The Judge then discussed the third consequence Mrs Pona relies upon, namely that her name and current role would be put into disrepute, leading to a loss of trust by her work colleagues and a loss of confidence by them in her dealing with controlled substances. The Judge said:
[37] Mrs P’s role as an intern nurse practitioner has a relation to the allegations Mr P is facing given that she is involved in prescribing controlled drugs. However, I do not agree that there is a real and appreciable risk that this “link” will result in a loss of trust and confidence by Mrs P’s colleagues. Mrs P has already developed their trust, confidence and goodwill based on her own attributes and talents. I do not accept that the charges against Mr P would so significantly undermine that trust and confidence as to constitute undue hardship.
[38] I accept that Mr P’s alleged involvement in the drug operation will cause significant embarrassment to Mrs P, especially given her current profession. However, embarrassment is a usual consequence. I do not consider the heightened embarrassment here creates undue hardship. It is not sufficiently greater in degree than the usual consequences for a partner of a defendant facing serious charges.
The Judge also considered Mr Pona’s grounds for extension of name suppression in case she was wrong on the likelihood of the consequences occurring. If that were the case, the Judge said she was not satisfied that the consequences were so severe as to constitute extreme hardship.[21] The Judge pointed out that Mrs Pona would remain as a registered nurse and be employable as such. Further, the Judge accepted the Crown’s submission that there is no appreciable risk that suspicion of involvement in Mr Pona’s alleged offending may fall upon Mrs Pona if Mr Pona’s name is publicised.[22]
[21]At [39].
[22]At [40].
Finally, the Judge concluded that even if she was satisfied that the threshold test had been met, she would not have exercised her discretion to suppress Mrs Pona’s name.[23]
[23]At [55].
We note that Anderson J, having declined to make the orders sought, continued Mr Pona’s name suppression to enable the appellants to file the current appeal.[24]

The appeal

[24]At [56].

The grounds of appeal are as follows:
(a)First, Anderson J erred in her assessment of whether publication of Mr Pona’s name is likely to cause undue or extreme hardship to Mrs Pona as a person connected to Mr Pona. The consequences of publication personal to Mrs Pona are likely to occur and the sensitivity surrounding the consequences rendered obtaining evidence of the same impracticable.
(b)Second, Anderson J failed to properly consider the discretionary stage in that the reasons were not set out.
Essentially, Mr McColgan repeated on the first ground to us the arguments he had advanced before Anderson J. We will not repeat them.
Mr McColgan, in advancing his second ground of appeal, submitted there are relevant considerations that should have been discussed by the Judge:
6.12Specifically, the evidential picture against Mr Pona is significantly less than most other defendants in this proceeding. The picture emerging is that Mr Pona did not play a central or controlling role in the allegations. The paucity of evidence, and the evidence disclosed, suggests Mr Pona occupies a fringe role that may fall short of liability.
6.13This complexion is unlikely to be set out in publication. The corollary being that Mr Pona is put in the same stratum as those with a greater evidential case against them and essentially tarred with that brush.
6.14In circumstances where the case against Mr Pona may fall away, and dismissal of the charge or acquittal does not necessarily cure the taint of an allegation, it is submitted the interests of publication do not outweigh the hardship that publication is likely to cause.

Discussion

We note that Mr Pona and his co-defendants are scheduled to stand trial commencing 28 April 2025. That is the date to which the appellants seek continuation of Mr Pona’s name suppression and suppression of Mrs Pona’s name. Mr McColgan accepts that if Mr Pona is convicted then the policy factors in favour of publication of Mr Pona’s name become much greater.
We have quoted extensively from Anderson J’s decision because we agree with the Judge’s reasoning and her conclusions. We have read Mrs Pona’s affidavit and we have ourselves considered the arguments put forward before the Judge and repeated and amplified before us. We acknowledge Mrs Pona’s concerns, but there is no independent evidence that the consequences she fears are likely to occur. No reasonable employer would impose such consequences on her and we find it highly unlikely that the Nursing Council would consider stripping Mrs Pona of her nursing registration when she is clearly a dedicated practitioner with an excellent track record.
Mr McColgan’s submission that we should consider Mr Pona as a fringe player, at best, in the offending was a point made before Anderson J. It was hotly denied by the Crown. It is a submission which could not influence Anderson J, and it cannot influence us.
We accept that publication of Mr Pona’s name, if Mrs Pona were identified as being connected to him, would result in significant embarrassment to her. But that does not reach the statutory threshold of undue hardship.
We accept that Anderson J did not give reasons as to why she would not have exercised her discretion to suppress Mrs Pona’s name had the threshold been met. However, the Judge had already ruled that the threshold had not been crossed and was simply recording her view that she would not have otherwise exercised her discretion.
Like the Judge, we have found that the threshold has not been crossed. The second ground of appeal is moot. We think it likely that the Judge’s statement that she would not, if wrong, exercise her discretion came from the Judge’s assessment that because Mrs Pona chose to take Mr Pona’s surname during the course of the proceedings her application was a platform for the application to suppress Mr Pona’s name. For our part, if we had found Mrs Pona’s feared consequences likely to occur then the threshold would have been crossed and in the circumstances we would have held that the discretion should be exercised in Mrs Pona’s favour.
Mr McColgan applied orally for us to suppress the details of the submissions before us, and (by implication) the contents of Mrs Pona’s affidavit, pursuant to s 205 of the CPA. But that would require us to be satisfied that publication would be likely to result in any of the consequences set out in s 205(2). They do not apply to Mrs Pona and so the application is denied.

Result

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

Solicitors:
Crown Solicitor, Manukau for Respondent

[2023] NZCA 669

20 December 2023 at 1.00 pm