Quirke v Police
[2018] NZHC 2072
•14 August 2018
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CRI-2018-409-000048
[2018] NZHC 2072
BETWEEN EDWARD JAMES QUIRKE
Appellant
AND
NEW ZEALAND POLICE
Respondent
CRI-2018-409-000049 BETWEEN
CLAIRE ELIZABETH QUIRKE
AppellantAND
NEW ZEALAND POLICE
Respondent
Hearing: 9 August 2018 Appearances:
AMS Williams for Appellants H F McKenzie for Respondent
Judgment:
14 August 2018
JUDGMENT OF GENDALL J
Introduction
[1] The appellants, Claire Quirke (Mrs Quirke) and Edward Quirke (Mr Quirke), are a married couple who face multiple charges of accessing a computer system for dishonest purposes and theft of over $1.4 million from Mrs Quirke’s mother, Shirley Milligan (Mrs Milligan). They have pleaded not guilty and have elected trial by jury.
[2] On 17 May 2018, Judge Kellar in the District Court declined to grant interim name suppression under s 200(2)(a) of the Criminal Procedure Act 2011. Mr and Mrs
QUIRKE v NZ POLICE [2018] NZHC 2072 [14 August 2018]
Quirke appeal that decision on the ground that the Judge was wrong to find that publication of the appellants’ names would not cause extreme hardship to the appellants or the appellants’ employees.
Background facts
[3] On 1 August 2016, Mrs Milligan’s husband Robin Milligan (Mr Milligan) (Mrs Quirke’s father) passed away. Mrs Quirke, it seems, had been given access to bank accounts to assist her mother, Mrs Milligan, and was helping her at the time. Mrs Milligan became the sole executor and beneficiary of her late husband’s estate on 1 September 2016.
[4] According to the summary of facts, between 1 August 2016 and 14 December 2017, the appellants accessed bank accounts belonging to Mr Milligan (under the names of “Robin B Milligan” and “Milligan’s Radio (1972) Limited”) without authority 92 times. The total amount withdrawn and transferred into the appellants’ bank accounts was $1,403,500, with individual withdrawals varying between $900 and $40,000. Mrs Milligan discovered these unauthorised withdrawals/transfers in January 2018.
[5] The majority of the money from the accounts comprised the sale of one of Mr and Mrs Milligan’s houses, and two term deposits.
[6] The police say their enquiries have determined that between 1 August 2016 and 14 December 2017, Mr Quirke spent approximately $569,174 on gambling,
$566,752.81 on money transfers, $122,865 on assets and $121,990 on ATM withdrawals.
District Court decision
[7] In his decision, Judge Kellar noted first that Mrs Quirke and, to a much lesser extent, Mr Quirke have health difficulties which have been exacerbated by these proceedings. Both Mr and Mrs Quirke are involved, too, in businesses they operate. It was noted that they expressed concern about the effect publication of their names would have on the reputation of their businesses and the consequent possible effect
both on their income and on their employees. The appellants had suggested that publication of their names would result in irreparable damage to their businesses, it would seriously affect their ability to earn a living, it would affect their health and cause extreme hardship to their employees.
[8] In his decision, Judge Kellar accepted that Mrs Quirke has mental health issues. However, he concluded on all the material that had been provided that there was no imminent risk of self-harm. Mrs Quirke was on medication and seeing a medical practitioner. It seemed too that she had the support of her husband. As such the Judge found that the threshold of extreme hardship resulting from publication of her name was not met.
[9] Likewise, the Judge was not satisfied that the impact on Mr and Mrs Quirke’s businesses of publication of their names would reach the high threshold required of extreme hardship.
[10] Judge Kellar also went on to say that, even if he had gone on to the second stage of the inquiry and needed to decide whether to exercise a discretion that the overriding principle of open justice should yield to suppression, he would not have exercised that discretion. The Judge held that public interest in publication here would outweigh the appellants’ interest in suppression.
Law
[11] Section 200(2)(a) of the Criminal Procedure Act 2011 (the CP Act) provides that the Court may make a name suppression order if it is satisfied that publication would be likely to cause extreme hardship to the person charged with the offence, or any person connected with that person.
[12] The leading cases on the interpretation of s 200 are the Court of Appeal decisions in Robertson v Police1 and D v Police.2 These cases confirm the longstanding presumption of open justice – that the business of the Courts should be
1 Robertson v Police [2015] NZCA 7.
2 D v Police [2015] NZCA 541.
done publicly unless there is good reason not to do so. The Court of Appeal in D v Police went on to say:
[10] Section 200 mandates a two-step inquiry: whether one of the thresholds in subs (2) has been crossed and, if it has, whether in the exercise of discretion an order ought to be made. The first step gives the presumption statutory form; that is to say, it insists that the court determine on what principled basis suppression might be granted. The legislation does not impose a burden of proof but the presumption will apply unless the applicant can point to something to displace it.
[13] Section 287 provides that on a first appeal from a decision on a suppression order the Court must:
(a)Confirm the decision appealed against; or
(b)Vary the decision appealed against; or
(c)Set aside the decision appealed against; or
(d)Make any other order it considers appropriate.
[14]In a relatively recent decision in this Court, Rougeux v Police, Mander J held:3
… before a Court may exercise its discretion to make a suppression order, a statutory threshold is required to be satisfied. It therefore follows that whether the statutory prerequisite has been established involves a matter of judicial evaluation and, in accordance with the approach directed by the Supreme Court in Austin, Nichols & Co Inc v Stichting Lodestar,4 an appeal Court is required to undertake its own assessment of whether the threshold test is met. As was observed by Gilbert J in Beacon Media Group Ltd v Waititi,5 the constraints on an appeal from the exercise of a discretion do not apply.
While an appeal Court may therefore assess for itself whether the statutory criteria has been made out, obviously it is constrained by the words of the section itself and the stringent statutory test that now applies.
[15] It is clear therefore that an appeal Court must make its own assessment of whether the statutory threshold at the first stage has been met. Once satisfied that the statutory criteria at this first stage have been met, at the second stage an appellate
3 Rougeux v Police [2014] NZHC 979 at [18]-[19].
4 Austin, Nichols & Co Inc v Stichting Lodestar [2008] 2 NZLR 141 at [16].
5 Beacon Media Group Ltd v Waititi [2014] NZHC 281 at [9].
Court must then make its own determination whether suppression should be granted or not.
Submissions
Appellant’s submissions
[16] Both appellants were represented by the same counsel, Mr Williams, at this appeal hearing.
[17] The appellants submit that the Judge’s articulation of the two-step test was correct, but that his Honour was wrong to find that the threshold of extreme hardship had not been met by either or both of the appellants or their employees. Counsel’s focus was on the effect of publication on Mrs Quirke’s health and on the businesses of the appellants and their employees.
[18] Counsel submits that should this Court accept that the Judge was in error not to find that the threshold of extreme hardship had been met, the Court should exercise its discretion to grant interim name suppression because:
(a)The appellants have entered pleas of not guilty and any trial is not likely to take place until some time later in 2019;
(b)The matter has been the subject of extensive media coverage;
(c)While the allegations are serious the appellants do not pose a risk to the public; and
(d)The hardship caused cannot be undone if the appellants are acquitted of the charges.
Respondent’s submissions
[19] In response, the respondent submits that there is no error in the Judge’s reasoning here. Judge Kellar’s articulation of the two-step test and of what constitutes “extreme hardship” was correct. He was right, too, when he found first, that neither
appellant satisfied the threshold test at the first stage, and, secondly, that in any event he would not have exercised the discretion at the second stage.
[20] As there must be exceptional reasons before a departure from free reporting is warranted, and there is significant and justified public interest in matters such as this, the respondent submits that interim name suppression should not be granted.
Analysis
[21] As I have noted, the appellants seek interim name suppression on the grounds that publication would adversely affect Mrs Quirke’s mental health, and that both of their businesses could be negatively affected. The “extreme hardship” threshold in s 200(2)(a) of the CP Act, however, is a very high one. The appellants’ situation, in my view, does not reach that threshold.
[22] Mrs Quirke, it seems, does suffer from mental health issues and chronic medical conditions that have understandably been exacerbated by the proceeding. In the past, for these conditions she has been under the care of a medical practitioner and received medication, since August 2017 she has been working with a health coach and, recently, she has been referred to a counselling service. In her affidavit, Mrs Quirke says she has been her mother’s only real support since her father died in 2016, which she has found emotionally draining. She says this has caused her stress and anxiety. An issue arose on the morning of the hearing of this appeal. Mr Quirke apparently provided to Mr Williams an email in which he said that Mrs Quirke’s overall health, and what he described as her fragile mental health, had worsened over the last week. He claimed that during this time, she had not left the house. No other material or evidence was before the Court, however, regarding these aspects.
[23] Indeed, in the evidence which is before the Court, Mrs Quirke in her affidavit at [7] deposes: “I don’t class myself as suicidal, but there are times when my brain is constantly overthinking everything I do and I want it to stop. At those times I would be happy not to ever wake up”. These symptoms it seems have worsened since she was charged. Mrs Quirke, as I have noted, is medicated for anxiety and depression, and has been referred to counselling.
[24] Mrs Quirke refers in her affidavit to the fact she runs under her company, QEC Holdings Ltd, an online marketing and brand design business. She deposes she has ongoing contracts with clients and design agencies and has four contractors on a monthly retainer to assist her in meeting those commitments. The stress of the proceedings, she says, has caused her to neglect her work and to lose clients. Her income, she says, has consequently dropped from around $4000 per month to zero. She is about to apply to access her Kiwisaver account to enable the appellants to meet their financial commitments.
[25] If her name is published, Mrs Quirke believes that she would lose any remaining clients she has. This would mean she would have to let her contractors go, as well as losing most of her income. She feels that publication of her name would ruin her reputation, and the work she has put into her career over the last 20 years would be wasted.
[26] In Mr Quirke’s affidavit, which is before the Court, he says that he considers too that publication of his name would cause irreparable damage to his business (which is a pest control and management service), it would seriously affect his ability to earn a living and it would affect his health to such an extent as to amount to extreme hardship. He also expresses concern about the likelihood of having to lay off employees. He explains that the majority of his customers use his business because of his reputation and the relationships he has built with them. Publication of his name would mean, he says, that his clients would stop using his business. Mr Quirke attached news articles about the case to his affidavit to demonstrate the media interest and the likelihood of prominent publication of his name. He went on to list his financial obligations that he will be unable to meet if his business stops creating income. Mr Quirke, however, made no further comment about the possible effect of publication on his health.
[27] As I note, the threshold of “extreme hardship” is a high one. In my judgment, Judge Kellar was correct to find that neither Mr Quirke nor Mrs Quirke’s situations reach that threshold.
[28] Mrs Quirke, it appears, is not suicidal, is on medication, and has the support of multiple health professionals and her husband. Judge Kellar found, “there are sufficient support mechanisms in place to mitigate any risk posed by publication” of her name, and thus extreme hardship could not be made out. I agree.
[29] Both Mr and Mrs Quirke described the positive relationships they have formed with the clients of their businesses. It is conceivable that those relationships can remain intact despite publication, as can the wider reputation of their businesses. As the Judge noted, while the appellants have pleaded not guilty and are entitled to the presumption of innocence, if their names are published some people may view them in a negative light and feel disinclined to do business with them. That is their choice. But it is not at all clear that the impact of publication on either appellant’s business would reach the threshold of extreme hardship. As Adams on Criminal Law notes:6
Significant or even devastating, economic consequences of publication for business interests associated with the defendant appear less likely to reach the threshold. Financial loss is often a direct consequence of public knowledge of offending…
[30] Even if the extreme hardship threshold had been reached, the Court still has a discretion whether to suppress the appellants’ names. The starting point of the balancing test is the value of open judicial proceedings, and whether the privacy interest of the appellants outweighs that. The victim of this alleged offending, Mrs Milligan, was present in Court (with two support people) throughout the hearing of this appeal. Section 200(6) of the CP Act sets out a requirement in certain circumstances for the Court to take into account any views of a victim of an offence. At the hearing of this appeal I raised this issue with counsel for the respondent and Mrs Milligan who had advised earlier that she wanted publication to occur. Over the morning adjournment I invited Mrs Milligan to reflect and take advice on this issue. She did so and on her return to Court confirmed that she had not changed her earlier view that publication should occur here. She said this was her clear view, even though publication would be likely to identify her too and the family in this entire matter. Mrs Milligan also emphasised that she had a real concern for the mental health of her daughter, Mrs Quirke, and wanted to ensure that she should have proper care, but
6 Bruce Robertson (ed) Adams on Criminal Law (online looseleaf ed, Thomson Reuters) at [CPA200.02(1)].
notwithstanding this, her overall view was that publication should occur. By way of an aside, it seems clear too, from material and comments before the Court, that details of these events may be already known to many in the local community. In all the circumstances of this case therefore, in any event, I am satisfied that the public interest in open justice should prevail here.
Conclusion
[31] For all these reasons, I conclude that Judge Kellar made no error in his judgment not to grant interim name suppression to Mr and Mrs Quirke. The extreme hardship threshold is not made out and, in any event, I am satisfied that Judge Kellar was right to conclude that the discretion to suppress would not have been exercised here.
[32] This appeal is dismissed. Interim name suppression is refused, and any interim name suppression order that may have been made is now lifted.
...................................................
Gendall J
Solicitors:
Raymond Donnelly & Co, Christchurch
Copy to:
Anselm Williams, Barrister, Christchurch
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