R v A
[2021] NZHC 3050
•11 November 2021
ORDER PROHIBITING PUBLICATION OF NAME(S), ADDRESS(ES), OCCUPATION(S) OR IDENTIFYING PARTICULARS OF APPLICANTS PURSUANT TO S 200 CRIMINAL PROCEDURE ACT 2011. SEE
SUPPRESSION OF CERTAIN FACTS AS PER [58] OF THE JUDGMENT. PUBLICATION OF UNREDACTED VERSION OF JUDGMENT
PROHIBITED, OTHER THAN IN LAW REPORTS OR LEGAL DIGEST
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2018-044-2222
[2021] NZHC 3050
THE QUEEN v
A B C
Defendants
Hearing: On the papers Appearances:
BD Tantrum for the Crown AS Bloem for A
NP Chisnall for B SM Buckley for C
Judgment:
11 November 2021
Reissued:
21 December 2021 (with redactions)
JUDGMENT OF FITZGERALD J
Solicitors: Meredith Connell, Auckland
To:A Bloem, Auckland N Chisnall, Auckland S Buckley, Auckland
R v A, B, C [2021] NZHC 3050 [11 November 2021]
Introduction
[1] In [Redacted], the [Redacted] Marae in [Redacted] (the Marae) was burned down. On 3 August 2018, A, B and C were charged with the arson of the Marae.
[2] A three week High Court jury trial was scheduled to commence on 6 September 2021. However, the trial could not proceed because of COVID-19 restrictions in the Auckland lockdown that begun on 17 August 2021 and is, at the time of this judgment, still ongoing.
[3] On 26 August 2021, the Crown notified the Court that it would seek leave to withdraw the charge of arson against each of A, B and C pursuant to s 146 of the Criminal Procedure Act 2011 (the Act). Withdrawal of a charge is not, however, a bar to any other proceeding in the same matter.1 A, B and C accordingly took the position that the charge should be dismissed pursuant to s 147 of the Act. Counsel for A, B and C engaged with counsel for the Crown, and provided the Crown with a “preview” of the defence evidence. The Crown thereafter advised that it intended to offer no evidence on the charge and would not oppose disposition pursuant to s 147 of the Act.
[4] The matter came before me in callover on 20 October 2021. Having confirmed with counsel for the Crown that the Crown did not intend to offer any evidence on the charge, I dismissed the charge against each of A, B and C pursuant to s 147 of the Act.
[5] Each of A, B and C had been granted interim name suppression (by the District Court) through to the conclusion of trial.2 Following dismissal of the charge, counsel for each of A, B and C confirmed that permanent name suppression was sought by each of their respective clients. Ms Buckley, counsel for C, also sought permanent name suppression of [Redacted] (Northpower).3
[6]The Crown does not oppose any of the applications.
1 Criminal Procedure Act 2011, s 146(2).
2 New Zealand Police v [A, B and C] [2018] NZDC 24249.
3 [Redacted].
[7] As I noted in a minute dated 20 October 2021, despite there being no opposition to the applications, I nevertheless required further material and information in order to determine the applications. Permanent name suppression can of course only be ordered if the court is satisfied that proper grounds for suppression exist.
[8] The further material and information has now been filed. It was agreed that the applications could be determined on the papers.
The basis for each application – summary
[9]The applications are advanced on the following grounds:
(a)A applies for permanent name suppression pursuant to s 200 of the Act, on the basis that publication of A’s name will likely cause A to suffer extreme hardship (relating to his current medical condition),4 and for the same reason, publication would endanger his physical safety.5 A also seeks permanent name suppression of B and C’s names and identifying details, on the basis that publication of their names is likely to result in identification of A.6
(b)B applies for permanent name suppression pursuant to s 200(2)(a) of the Act, also on the basis of B’s medical condition, and also in relation to A and C, again pursuant to s 200(2)(f) of the Act.
(c)C applies for permanent name suppression pursuant to s 200(2)(a) of the Act, on the basis that publication would give rise to significant and ongoing whakamā and loss of mana to C (particularly given the nature of the alleged offending in this case), and because irreparable damage to C’s professional reputation would follow were there to be publication.
4 Criminal Procedure Act 2011, s 200(2)(a).
5 Section 200(2)(e).
6 Section 200(2)(f).
(d)Northpower applies for permanent name suppression pursuant to s 202(2) of the Act, on the basis that there is a real and appreciable risk that its reputation will be undermined if there were to be publication of its name in connection with these proceedings. This is said to be because [Redacted].
(e)All applicants say that the fact the Crown has offered no evidence on the charge and that it has now been dismissed is a factor weighing heavily in favour of suppression.
Legal principles
[10] The applications by A, B and C are governed by s 200 of the Act, which relevantly provides as follows:
Court may suppress identity of defendant
(1)A court may make an order forbidding publication of the name, address, or occupation of a person who is charged with, or convicted or acquitted of, an offence.
(2)The court may make an order under subsection (1) only if the court is satisfied that publication would be likely to —
(a)cause extreme hardship to the person charged with, or convicted of, or acquitted of the offence, or any person connected with that person; or
…
(e)endanger the safety of any person; or
(f)lead to the identification of another person whose name is suppressed by order or by law; or
…
[11]Section 200 requires a two-step inquiry:7
(a)The first step is whether one or more of the threshold grounds in s 200(2) has been met.
7 D (CA443/2015) v Police [2015] NZCA 541, (2015) 27 CRNZ 614.
(b)The second step, if a threshold ground is made out, is whether, in the court’s discretion, suppression ought nevertheless to be declined.
[12] Section 202 of the Act (relied on by Northpower) relevantly provides as follows:
Court may suppress identity of witnesses, victims, and connected persons
(1)A court that is hearing a proceeding in respect of an offence may make an order forbidding publication of the name, address, or occupation of any person who —
…
(c) is connected with the proceedings, or is connected with the person who is accused of, or convicted of, or acquitted of the offence.
(2)The court may make an order under subsection (1) only if the court is satisfied that publication would be likely to —
(a)cause undue hardship to the witness, victim, or connected person; or
…
(d) lead to the identification of another person whose name is suppressed by order or by law; or
…
[13] The same two-step inquiry described at [11] above in relation to s 200 is required under s 202 of the Act.8
[14] The Court of Appeal in D (CA443/2015) v Police said that the words “extreme hardship”:9
…require that the court compare the consequences of publication in the instant case with those that normally attend prosecution. Distress, embarrassment and adverse personal and financial consequences usually attend criminal proceedings, and something out of the ordinary is needed if the applicant is to get across the threshold.
8 Parker v R [2019] NZCA 350 at [6].
9 At [11].
[15]In Robertson v Police, the Court of Appeal described “extreme hardship” as:10
[connoting] a very high level of hardship. The word “hardship” on its own means “severe suffering or privation”. That 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)(a) indicates something more again.
[16]As to “undue hardship”, relied on by Northpower, the Court of Appeal in
Parker v R stated:11
“Undue hardship” is a lower threshold than that of “extreme hardship” applying to criminal defendants under s 200. In Sansom v R this Court described it as “hardship that is greater than that which will inevitably follow publication”. This requires a comparison between hardship the applicant claims will result from publication in the particular case and the normal consequences that follow publication.
(citations omitted)
[17] As can be seen from ss 200(2) and 202(2) set out above, in order for suppression to be granted, it must be “likely” that the consequences relied upon will follow from publication. The Court of Appeal in D (CA443/2015) v Police described that requirement as being that there is a “real and appreciable possibility” of the relevant consequences coming about.12
[18] Turning to the exercise of discretion, the Court of Appeal in D (CA443/2015) v Police said the following:13
At the second stage the court must balance relevant considerations in the exercise of discretion. The open justice principle must be considered at this stage, notwithstanding that the threshold has been crossed. That is so because the ultimate question remains whether open justice should yield. The balance must “clearly favour” suppression.
[19] Factors relevant to the exercise of the discretion will include the principle of open justice, the seriousness of the offending, the presumption of innocence, the public interest in knowing the applicant’s identity and character, the right to freedom of expression and the interests of any victim or other affected persons.14
10 Robertson v Police [2015] NZCA 7 at [48].
11 Parker v R, above n 8, at [10].
12 D (CA443/2015) v Police, above n 7, at [30(a)].
13 At [12].
14 Ibid.
[20] It was suggested in R v MVD that once the threshold test in s 200(2)(f) is made out (that is, identifying a defendant will likely lead to identification of another person with name suppression, being one of the grounds relied on by each of A, B and C), it will be a rare case in which the court does not exercise its residual discretion to make a suppression order.15 However, more recent authority suggests that the exercise of the discretion under s 200(1) against continuing suppression of a defendant’s name on the basis of s 200(2)(f) is not confined to rare cases.16
[21] I also take into account Campbell J’s recent observations in Donga v R, with which I respectfully agree, that the fact that an applicant for suppression has been acquitted of the charge they faced will be relevant, including at both stages of the ss 200 and 202 inquiries (that is, not only in the exercise of the residual discretion).17 Campbell J stated:18
At the first step, hardship may be more readily regarded as “extreme” where there has been an acquittal. At the second step, an acquittal will be relevant to determining whether the principle of open justice has been outweighed. In that respect, the circumstances of the acquittal will be relevant. Suppression will be more readily granted where the prosecution has offered no evidence or withdrawn the charge than where there has been a trial or significant judicial involvement in the determination of the outcome.
[22] In this context, Campbell J referred to observations of the Court of Appeal in W (CA447/2017) v R, in which the Court took into account both the fact the appellant had been discharged and the consequences deposed to of publication, when considering whether hardship caused by name publication would be “extreme”.19
The parties’ submissions and evidence – summary
Submissions and evidence of A
[23] The application in relation to A is advanced on the basis of A’s current health condition (both for the purposes of extreme hardship and endangering A’s safety). Counsel notes that the Court of Appeal in O v Police approached the application for
15 R v MVD [2016] NZHC 333 at [56].
16 A (CA605/2016) v R [2017] NZCA 49 at [19].
17 Donga v R [2021] NZHC 1927.
18 At [18].
19 W (CA447/2017) v R [2019] NZCA 192 at [22].
suppression in that case on the basis that the endangerment of safety for the purposes of s 200(2)(e) of the Act can include a defendant’s own health.20
[24] A has sworn an affidavit in support of his application for permanent name suppression. He deposes that he has a serious heart condition and that he has been advised by his cardiologist that he needs to avoid stress, as this will exacerbate his condition. He deposes that “the prospect of my name being published and on television is unbearable”. He goes on to state:
I have worked hard my whole life and the stress of it all being thrown away due to an untrue accusation is stressful and heart breaking. I am concerned about my health deteriorating due to stress.
[25] A is [Redacted] years old and there is objective evidence before the Court that he has serious cardiac medical issues. He has had heart attacks in 2008, 2015 and 2017. Stress caused by a court appearance in 2019 led to A developing unstable angina and requiring a coronary stent. Correspondence from his treating physician records that he considers A to be “at significant risk of a further cardiac event if he is put in a position of high stress” (emphasis added).
[26] Counsel submits that publication of A’s particulars would accordingly cause serious, unnecessary and avoidable hardship to A. Counsel submits A is in a vulnerable condition due to his heart condition and this would be exacerbated by publication of his name in connection with the now discontinued proceedings against him. Counsel submits that A is readily identifiable due to his name, which exacerbates the consequences of publication.21 Counsel says that taking into account all of these factors, the threshold for name suppression is readily met.
[27] In terms of the discretionary exercise, counsel submits that the fact the charge has been withdrawn by the Crown, and the circumstances that have led to that withdrawal, weigh heavily in favour of suppression.22 Counsel also refers to the Court of Appeal’s observations in M (CA726/12) v R to the effect that permanent name
20 O v Police [2014] NZCA 579.
21 Referring to B v R [2011] NZCA 331.
22 Referring to Donga v R, above n 17, at [18].
suppression may be more readily granted when the prosecution has withdrawn the charge:23
… where a case has not reached a point where there has been significant judicial involvement in the determination of the outcome, the principles of open judicial proceedings, and the right of the media to report the outcome, are not so obviously engaged.
[28] Counsel also refers to observations of this Court in R v H that it is undesirable for a person, against whom no case is found, to face the consequences of publication:24
Part of the penalty a guilty person faces is his or her identification in public. It is undesirable that a member of the public who faces the ordeal of trial and against whom no case is found to exist should have added to that burden the gossip and chatter which on the premise of the judgment under s 347 [the predecessor of s 147 of the Act] would be unjustified.
[29] Counsel also refers to A’s unblemished record, his role as [Redacted]. In this context, A deposes to the fact that he is [Redacted]. He says:
The fact of being charged with a serious criminal offence will irreparably damage my reputation and standing in the community. In turn, this is likely to jeopardise my future role as [Redacted] and my ability to impact the community that I have served for so many years.
[30] Counsel accordingly submits that the collective effect of the matters discussed at [27] to [29] above leads to the conclusion that permanent name suppression ought to be granted.
Submissions and evidence of B
[31] As noted, B applies for permanent name suppression on the basis of B’s medical condition. Evidence provided by B’s treating cardiologist confirms that he has severe coronary artery disease, having sustained a large heart attack in 2001. More recent examinations, including in May of this year, confirm ongoing issues in this regard. The cardiologist confirms that B is at risk of further heart attacks despite his well medicated state at present. The cardiologist notes that while B’s medication goes some way to reducing this risk:
23 M (CA726/12) v R [2013] NZCA 113, at [23].
24 R v H [1996] 2 NZLR 486 (HC) at 3.
… in an ideal world he should not be subjected to severe stress and compared to someone who does not have his extent of coronary disease the risk of an acute heart attack during a stressful trial is significantly higher in [B’s] case but not absolute.
[32] Counsel submits that while this information was prepared in the context of the forthcoming trial, there remains an appreciable risk of extreme hardship to B, or endangerment of his safety, were his name were to be published, which is likely to be at least as stressful to B as engaging in the trial itself.
[33] Counsel further submits that suppression is warranted on the basis of s 200(2)(f) of the Act in any event, in the event either A or C is granted permanent name suppression. Counsel submits, and the Crown does not dispute, that A, B and C, [Redacted], are well known in their community and that given the public scrutiny of the alleged arson within the community to which [Redacted] belong, naming one is likely to identify the others. Counsel submits that in these circumstances, the Court can be satisfied that any one or more of the threshold grounds relied on for permanent name suppression has been met.
[34] In terms of the exercise of the residual discretion, counsel for B makes similar submissions to those summarised above in relation to A’s application. Counsel also refers to the Court of Appeal’s decision in M (CA762/12) v R, including that a key feature of that case was that the appellant had had her name suppressed on an interim basis, thus preserving her position pending trial, but then the Crown elected to call no evidence on the charges (and thus a very similar scenario to this case).25 Counsel refers in this context to the Court of Appeal’s observations that:
[26] In our view the acquittal of the appellant following her discharge under s 347 because the Crown elected to call no evidence against her on the two assault charges was an important factor supporting permanent name suppression. She already had the benefit of an order for interim name suppression until the commencement of her trial. The fact that it was the Crown’s decision not to offer any evidence against her meant the trial did not proceed. In the appellant’s case the principle of open justice had already been outweighed by her right to a fair trial which had led to the order for interim name suppression. Once the Crown’s decision led to the discharge and the deemed acquittal and there was no trial, the principle of open justice did not require her name to be published, especially if there were other counteracting factors supporting suppression.
25 M (CA762/2012) [2013] NZCA 113.
[35] Finally, counsel also refers to all defendants’ loss of mana, submitting this also weighs in favour of suppression. Counsel refers to Brewer J’s observations in Northover v Police as to the relevance of the loss of mana (acknowledging that Brewer J’s decision concerned an appeal against the refusal to grant a discharge without conviction).26 In Northover v Police, Brewer J said:27
Mana is of great significance to Mr Northover. His sense of self is inextricably linked to it. His mana reflects his life of work and achievement, his qualities and the respect he has earned in the community, particularly his Māori community. His offending has diminished his mana. His whakamā is deep. He does not feel able to resume his voluntary work. He grieves the loss of contact with his mokopuna. I disagree with Judge Glubb that these consequences for Mr Northover arise only from his offending. The convictions are a public declaration that his offending is so serious that, despite all he has achieved in life, Mr Northover must forever bear the stigma of being a criminal. I accept that discharges without conviction would have a desirable and appropriate rehabilitative effect on Mr Northover.
[36] Counsel submits that these principles are equally applicable in this case, particularly given the nature of the alleged offending and the applicants’ standing in their community.
Submissions and evidence of C [Redacted]
[37] C applies for permanent name suppression pursuant to s 200 of the Act, on the basis that extreme hardship would follow from publication. Counsel for C submits that ongoing whakamā and loss of mana to C and his whānau (on an inter-generational basis) are significant cultural factors that ought to be taken into account in this case, particularly given the nature of the alleged offending. Counsel also suggests that irreparable damage would be caused to [Redacted]. Counsel submits that C’s name is readily identifiable and as such, the negative effect of publication is exacerbated.
[38] On the basis that the threshold for permanent suppression is made out, counsel makes similar submissions on the residual discretion to those made on behalf of A and B and summarised above. Counsel further submits that knowledge of who has been charged, but in circumstances where the charge has now been dismissed, adds nothing substantive to the information already publicly available. Counsel submits that the
26 Northover v Police [2020] NZHC 167.
27 At [45].
effects of publication for C would be enduring and irreversible, particularly in a case of this nature, and a presumptively innocent person in relation to whom the charge has been dismissed should not have to suffer the potentially severe consequences of publication.
[39] In relation to Northpower’s application, counsel refers to affidavit evidence sworn on behalf of Northpower to the effect that:
(a)[Redacted].
(b)[Redacted].
(c)[Redacted].
(d)[Redacted].
[40] Counsel submits that in the particular circumstances of this case, given the nature of the alleged offending and [Redacted], the consequences of publication for Northpower rise to the threshold of undue hardship. Counsel submits that given [Redacted].
[41] As to the residual discretion, counsel for Northpower makes similar submissions to those summarised above [Redacted].
Discussion
[42] I turn first to A’s application. I am satisfied that it is appropriate to grant A permanent name suppression. I have reached this conclusion for the following reasons.
[43] First, I take into account the broader context to this matter, which involves alleged offending which [Redacted].
[44] Second, and as outlined above, A has over time developed a serious health condition. The evidence before the Court satisfies me that there is a real and
appreciable risk that if A is placed in a position of high stress, this will lead to further and potentially very serious consequences for A from a medical perspective.
[45] Third, in many cases it is difficult to differentiate between the stress caused by being involved in criminal proceedings generally and the stress that is suggested will flow from the particular act of publication of a defendant’s name. In this case, however, there are no ongoing legal proceedings. Accordingly, the only remaining matter which could cause A significant stress in relation to this matter is publication of his name. It is inevitable, in my view, that publication of A’s name in connection with this matter will cause A significant stress, and in turn, will give rise to a real risk of serious adverse health consequences for him. I note that, although in the context of interim suppression, this was also the clear view of Judge Down when granting A interim name suppression.
[46] Fourth, I am also satisfied that the particular nature of the alleged offending in this case, and A’s standing in his community [Redacted], are likely to significantly add to the stress and adverse consequences of publication.
[47] Being satisfied that the threshold for permanent suppression of A’s name is met, I am clear in my view that the residual discretion ought to be exercised in favour of granting permanent name suppression. The nature of the extreme hardship that is likely to arise from publication (serious health consequences for A) supports suppression being granted. That the Crown chose to offer no evidence on the charge, such that it was dismissed pursuant to s 147 of the Act, also weighs strongly in favour of permanent name suppression being granted.28 I also take into account [Redacted]. It is not suggested there has been any particular public interest in or significant media reporting on this proceeding. I note in this context that members of the media were present at the callover at which the applications for permanent name suppression were made, and no media sought to be heard on them.
[48] I also take into account the particular nature of the alleged offending in this case, and A’s role [Redacted]. I acknowledge that the whakamā and loss of mana from
28 As was identified by the Court of Appeal in M (CA762/12) v R; see [27] and [34] above.
the inevitable “gossip and chatter”29 which would follow publication are particularly acute in a case of this kind.
[49] Standing back, these factors collectively confirm that the principle of open justice ought to yield in favour of suppression. There is accordingly an order permanently supressing A’s name and identifying particulars.
[50] Having reached this conclusion in relation to A, I can be relatively brief in relation to B and C. I accept the applicants’ submissions (and note that the Crown agrees) that if any one of A, B or C was to be identified, it would likely lead to the identification of the others. As noted earlier, [Redacted]. The threshold for permanent name suppression of B and C is accordingly made out, pursuant to s 200(2)(f) of the Act.
[51] While it is not strictly necessary to decide whether each of B and C would have met the threshold for suppression in their own right, I observe that that is likely to have been the case. Key factors in my view are [Redacted], the fact the Crown offered no evidence on the charge with the consequence it has been dismissed, and the inevitable and heightened whakamā and los of mana in a case of this kind. For completeness, I record that I have some doubt whether B’s medical condition, in and of itself, would have warranted suppression.
[52] Given the threshold for permanent name suppression is met in relation to B and C (primarily on the basis of s 200(2)(f) of the Act), the above observations as to the exercise of the residual discretion readily apply to them also.
[53] There is accordingly an order permanently suppressing each of B and C’s names and identifying details.
[54] I turn finally to the application made on behalf of Northpower. I am not persuaded that undue hardship is made out. [Redacted]. I acknowledge that the charge against C has now been dismissed and that the nature of the charge [Redacted].30
29 R v H, above n 24, at 3.
30 [Redacted].
[55] I am satisfied, however, that identification of [Redacted]. The appropriate course in these circumstances is not to grant Northpower name suppression itself, but to make an order suppressing publication [Redacted]. I am fortified in my view that this is an appropriate approach given there is no particular or legitimate public interest in [Redacted].
[56] There will accordingly be an order supressing publication of the fact [Redacted].
Result
[57] A, B and C’s applications for permanent name suppression are granted. There are orders prohibiting publication of each of A, B and C’s names and identifying details.
[58] Northpower’s application for separate name suppression is declined. There is, however, an order prohibiting publication of the fact [Redacted].
Fitzgerald J
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