R v C
[2023] NZHC 275
•23 February 2023
ORDER PROHIBITING PUBLICATION OF NAMES, ADDRESSES,
OCCUPATIONS OR IDENTIFYING PARTICULARS OF DEFENDANTS AND INTERESTED PARTIES PURSUANT TO SS 200 AND 202 CRIMINAL
PROCEDURE ACT 2011. SEE
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2020-004-806
[2023] NZHC 275
THE KING v
C, H and W
Hearing: 2 December 2022 (and further memorandum dated 5 December
2022)
Appearances:
K Hogan and H Moore-Savage for the Crown M Corlett KC for H
H Waalkens KC and K Crossland for X, First Connected Person S Lowery and J Suyker for P, Second Connected Person
Judgment:
23 February 2023
JUDGMENT (REDACTED) OF GAULT J
(Application for permanent name suppression)
This judgment was delivered by me on 23 February 2023 at 2:00 pm.
Registrar/Deputy Registrar
……………………………………
R v C, H and W [2023] NZHC 275 [23 February 2023]
[1] Following the delivery of verdicts in R v Zhang,1 in which C, H and W were acquitted of the charges against them of obtaining by deception in relation to a co- defendant’s payment of an alleged donation to the Labour Party in March 2017,2 applications for permanent name suppression have been filed as follows:
(a)H has filed an application for permanent suppression of his identity on the ground that publication is likely to cause him extreme hardship.3 It is common ground that if H is successful, the identity of W (who does not seek permanent suppression herself4) should be suppressed on the basis that publication of her name or identifying details would risk identifying H.5
(b)X, H’s employer, independently seeks permanent suppression of the firm’s name and identifying particulars in connection with the proceeding on the grounds it is connected with H and publication of its identity is likely to cause it undue hardship.6
(c)P, a business run by C’s wife, seeks permanent suppression of its identity on the grounds it is connected with C and publication of its identity is likely to cause it undue hardship.7 It is said that if P is successful, the identity of C should be suppressed on the basis that publication would identify P.8
[2]The Crown abides the decision of the Court but made submissions to assist.
[3] Mr Stewart, counsel for the media interests, did not appear at this hearing but filed a memorandum in advance indicating that they abide the decision of the Court albeit emphasising the importance of open court reporting and mentioning that the Court has long recognised that:
1 R v Zhang [2022] NZHC 2540 and R v Zhang [2022] NZHC 2541.
2 Crimes Act 1961, s 240(1)(a).
3 Criminal Procedure Act 2011, s 200(2)(a).
4 Memorandum of counsel for W dated 11 October 2022.
5 Section 200(2)(f).
6 Section 202(2)(a).
7 Section 202(2)(a).
8 Section 200(2)(f). C also filed an application but does not pursue it for himself.
(a)there may be occasions where the public has an interest in acquittals; and
(b)where the damage caused by publicity would plainly outweigh any genuine public interest, then depending on the circumstances, an acquittal of a truly trivial charge is [an instance when the jurisdiction could properly be exercised].9
Applicable principles
[4] The applicable principles are not in dispute. Section 200 of the Criminal Procedure Act 2011 (CPA) relevantly provides:
200 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
(b)cast suspicion on another person that may cause undue hardship to that person; or
(c)cause undue hardship to any victim of the offence; or
(d)create a real risk of prejudice to a fair trial; 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
(g)prejudice the maintenance of the law, including the prevention, investigation, and detection of offences; or
(h)prejudice the security or defence of New Zealand.
9 Citing R v Liddell [1995] 1 NZLR 538 (CA) at 547. The memorandum states that the reference to “plainly outweigh” is consistent with the Court of Appeal’s comment in Lewis v Wilson & Horton [2000] 3 NZLR 543 at [43] that the balance must come down clearly in favour of suppression if the prima facie presumption in favour of open reporting is to be overcome.
(3)The fact that a defendant is well known does not, of itself, mean that publication of his or her name will result in extreme hardship for the purposes of subsection (2)(a).
…
[5]Section 202 provides:
202 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—
(a)is called as a witness; or
(b)is a victim of the offence; or
(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
(b)create a real risk of prejudice to a fair trial; or
(c)endanger the safety of any person; or
(d)lead to the identification of another person whose name is suppressed by order or by law; or
(e)prejudice the maintenance of the law, including the prevention, investigation, and detection of offences; or
(f)prejudice the security or defence of New Zealand.
(3)Subsection (1) applies whether or not the court has made an order under section 200 suppressing the identity of the defendant.
(4)An order under subsection (1) suppressing the identity of a witness, victim, or connected person may not prevent publication of the name of the defendant (which may be prohibited only by an order made under section 200) or the nature of the charge.
[6] A decision on name suppression involves a two-stage analysis.10 First, I must be satisfied that one of the threshold grounds in s 200(2) or s 202(2) is met; that is, “publication would be likely” to have one of the threshold consequences. In this context, “likely” means a real and appreciable risk.11
[7] Subject to issues of interconnected persons, which I will return to below, the relevant threshold grounds in this case are those of extreme hardship in s 200(2)(a) and undue hardship in s 202(2)(a).
[8] The term “extreme hardship” in s 200 indicates a comparative standard, requiring the Court to compare the consequences of publication in this case with those that normally occur. 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.12 However, all likely hardship arising from publication is to be taken into account and looked at cumulatively.13
[9] The threshold hardship ground in s 202(2)(a) involves the lower test of “undue” rather than extreme hardship. This also requires a comparison between the hardship claimed and those normal consequences that follow publication.14 Undue hardship involves consequences that are disproportionate to those that typically result from publication.15 Where the applicants have no connection with the offending, the Court will not require a great deal of hardship to meet this threshold.16
[10] Hardship may be more readily regarded as extreme or undue where there has been an acquittal.17 In assessing whether publication is likely to cause hardship,
10 Robertson v Police [2015] NZCA 7 at [39]-[41]; citing Fagan v Serious Fraud Office [2013] NZCA 367 at [9].
11 Huang v Serious Fraud Office [2017] NZCA 187 at [9]-[10], citing R v W [1998] 1 NZLR 35 (CA) at 39, interpreting ss 139 and 140 of the Criminal Justice Act 1985; Beacon Media Group Ltd v Waititi [2014] NZHC 281 at [21] and Wallis v Police [2015] NZHC 2904 at [22]. See also R v H [2022] NZHC 1741 at [5].
12 D (CA443/15) v Police [2015] NZCA 541, (2015) 27 CRNZ 614 at [11]; Robertson v Police [2015]
NZCA 7 at [48]-[49].
13 X (CA226/2020) v R [2020] NZCA 387 at [40].
14 Sansom v R [2018] NZCA 49 at [31]; Parker v R [2019] NZCA 350 at [10]; R v Morgan [2019] NZHC 2134 at [12]; Parker v R [2020] NZCA 502 at [15].
15 Parker v R [2019] NZCA 350 at [11]; R v Morgan [2019] NZHC 2134 at [13]; Parker v R [2020] NZCA 502 at [15].
16 Sacred Heart College v Police [2018] NZHC 3089 at [10].
17 W (CA447/2017) v R [2019] NZCA 192 at [22]; Donga v R [2021] NZHC 1927 at [18].
Mr Corlett KC for H accepted, at least in principle, that accurate reporting of the acquittal can be assumed, whereas Mr Waalkens KC for X submitted that I could take into account the risk of inaccurate reporting, citing Ben-Dom v A Professional Conduct Committee Appointed by the Medical Council of New Zealand.18 I address this below.
[11] Secondly, if satisfied that the threshold is met, I must then determine whether I should exercise my discretion to forbid publication. This involves weighing the competing interests of the applicant and the public. One relevant matter is whether the applicant has been convicted or acquitted.19 An acquittal will ordinarily make the grant of suppression more likely.
[12] The principle of open justice must be considered at this stage. The courts have consistently emphasised the importance of openness in the reporting of judicial proceedings and the right of the media to report on what happens in court fairly and accurately as “surrogates of the public”.20 Suppression law is predicated on the importance of open justice.21 Permitting fair reporting of the criminal process – including usually the publication of defendants’ names – is central to that concept.22 The balance must clearly favour suppression for open justice to yield.23
[13] The relevant factors in the second-stage exercise of discretion under s 202 will also differ where the applicant has no connection with the offending.
[14] Returning to interconnected persons, the interrelationship between ss 200 and 202 means that the requirement for extreme hardship to be proven in relation to a connected person under s 200(2)(a) does not apply if a connected person has shown undue hardship and obtained suppression under s 202, and the defendant or connected person can satisfy the Court under s 200(2)(f) that the publication of the defendant’s
18 Ben-Dom v A Professional Conduct Committee Appointed by the Medical Council of New Zealand
[2020] NZHC 3094 at [148].
19 Robertson v Police [2015] NZCA 7 at [41]; W (CA447/2017) v R [2019] NZCA 192 at [23]; Donga v R [2021] NZHC 1927 at [18].
20 Sansom v R [2018] NZCA 49 at [11], citing R v Liddell [1995] 1 NZLR 538 (CA) at 540 and Erceg v Erceg [2016] NZSC 135, [2017] 1 NZLR 310 at [2].
21 X (CA226/2020) v R [2020] NZCA 387 at [48].
22 At [48].
23 D (CA443/15) v Police [2015] NZCA 541 at [12], citing Lewis v Wilson & Horton [2000] 3 NZLR 543 at [43].
name will lead to the identification of the person whose name is suppressed under s 202.24
[15] Finally, I note that, on appeal from my interim name suppression judgment,25 the Court of Appeal indicated that s 202 does not require that the applicant’s name would be published in direct connection with the proceeding.26 The Court said that although the statute is silent on the point, there plainly must be some connection between the two requirements (that the applicant is connected to the defendant, and that publication of the applicant’s name would cause it undue hardship), but publication because of the connection is enough. Therefore, if the applicant’s name is likely to be published in connection with the defendant, a sufficient link exists.27
H
[16] H raises two grounds of extreme hardship in the current context following his acquittal:
(a)impact on his legal practice;28 and
(b)his daughters’ well-being.
[17] Mr Corlett acknowledged my finding in the context of interim name suppression that the extreme hardship threshold was not made out,29 but he submitted that I could revisit that conclusion given H’s acquittal and the further evidence.30
[18] I accept that H has an existing reputation to protect. As I stated in relation to interim name suppression:31
24 Sansom v R [2018] NZCA 49 at [15]-[17].
25 R v Zhang [2022] NZHC 1869.
26 C (CA436/2022) v R [2022] NZCA 460 at [26].
27 At [26].
28 H accepts there is no longer a risk to his employment. Mr Corlett also accepted that I could leave to one side H’s concern about publicity of his alleged connection with China.
29 R v Zhang at [21]-[22].
30 No issue was taken with the fact that H’s further affidavit was sworn before Mr Crossland, and the medical evidence was by way of subsequent letter.
31 R v Zhang at [16].
Following a successful career in journalism, [H] has been in legal practice and a Member of Parliament. [REDACTED]. He is a published legal writer and has been an honorary advisor to Asia New Zealand and the New Zealand China Council. He is currently Special Counsel at [X] responsible for management of the Asian practice group, which is a sizeable portion of the firm’s practice. He and his wife are the public face of the firm’s Asian practice.
[19]I also acknowledge the character references subsequently received in evidence.
Impact on legal practice
[20] H’s evidence indicates his concern about the likely adverse impact of publication on his legal practice, particularly in light of the guilty verdicts against some of the Chinese defendants. He agrees with Mr [REDACTED] earlier evidence and endorses that within the Chinese community just the taint of having been charged is likely to cause clients and potential clients to want to avoid dealing with X. He also raises concern about a false equivalence made between him and Mr Ross. H considers it is inevitable that publication of his name would lead to a perceived taint – a lessening of face – within the Chinese community. Given that his legal practice is built on his reputation, he considers the association with offending by others would inevitably have a tangible though immeasurable impact on his practice and consequently on the firm and other employees, including H’s wife who is co-lead of the Asian Legal Practice Group.
[21] I accept that hardship may be more readily regarded as extreme where there has been an acquittal. However, consistent with Mr Corlett’s acknowledgment, in assessing the likely hardship I do not speculate about inaccurate reporting relating to H’s acquittal. Nor do I consider it likely that readers would wrongly infer that H was only acquitted on the basis of a technicality. Mr Corlett also appeared to acknowledge that the tendency within the Chinese community of wishing to avoid any taint would be irrational given H’s acquittal and the nature of that acquittal. While I accept on the evidence there may be a real and appreciable risk that publication of H’s name as a person charged but acquitted would lead some clients or potential clients to avoid X given H’s leading role in the Practice Group, I doubt the consequent impact on H (or his wife) would be so out of the ordinary that it crosses the extreme hardship threshold.
Daughters’ well-being
[22] H’s evidence explains that, although he was reluctant to go into detail earlier, the case (beginning with service of a s 9 notice at their home) has had enduring effects particularly on his daughter [REDACTED]. She has sought help and treatment from their family GP and was referred to a psychiatrist. She has been on prescribed medication. H is concerned that publication would have a significantly adverse impact on her recovery. He said his younger daughter has also been fearful.
[23] The letter from GP Dr Hong Kong corroborates H’s account albeit Dr Kong said that in 2021 he had not been told what had happened to initiate the daughters’ symptoms. Having been informed, he considered the daughters were directly affected by the early incidents and the stresses of the ongoing Court battle. He stated that if H’s name is published, it would likely be a further traumatising event that would negatively affect both daughters, reverse what improvements there have been and generally be detrimental to their ongoing treatment and recovery.
[24] The letter from Consultant Psychiatrist Dr Chambers also refers to the early incident and the ongoing case which contributed to [REDACTED] anxiety symptoms. Dr Chambers states that the lifting of name suppression would be likely to result in an aggravation of her anxiety and it may lead to an associated social withdrawal and a negative impact on her university performance. From his diagnostic perspective, her presentation was most consistent with an adjustment disorder with mixed anxiety and depressed mood, with a differential diagnosis of a major depressive disorder. There was an additional diagnosis of ADHD of predominantly inattentive type. He says she has been managed with a combination of psychological therapy, antidepressant medication, and medication for ADHD.
[25] I accept this medical evidence. I am satisfied that publication would be likely to cause extreme hardship, at least to [REDACTED], a person connected with H.
Discretion
[26] It is necessary to balance the interests of the applicant against the interests of the public. All likely hardship arising from publication is to be taken into account and
looked at cumulatively. That is, the impact on the legal practice, to H and his wife, the firm and other employees, and the impact on H’s daughters. H’s acquittal is also an important factor.
[27] On the other hand, the case is of undoubted public interest, involving political donations and including charges against two Members of Parliament. Open justice has particular significance in such a case. The trial was closely followed and reported on by the media, including as to H’s actions.
[28] One aspect relevant to the application of the open justice principle is the extent to which suppression would affect reporting. Mr Corlett responsibly acknowledged that the media remains at liberty to report on H’s actions as revealed in the reasons for verdict. He confirmed that H is concerned to avoid publication of his name and not to extend the current redactions. Mr Corlett helpfully filed a memorandum with leave after the hearing indicating that H was not seeking to prohibit publication of the fact that he was a Member of Parliament or reference in the reasons for verdict to the usual expectations on MPs when dealing with donations. Mr Corlett accepted that references to the redacted defendant being an MP do not tend to identify H. That is consistent with the proper approach to publication of identifying particulars, which does not assume knowledge of other matters that might be ascertained by independent industrious inquiry. Mr Corlett also submitted that insofar as the scope of redactions is a decisive discretionary factor, the appropriate course is to reduce the redactions rather than deny permanent name suppression.32 I consider that this approach to redactions gives appropriate recognition to the public interest in open justice.
[29] As Ms Hogan for the Crown noted, where a person’s reputation is so important to himself and his firm, it is a counterweight that retaining potentially relevant information from clients and the public requires careful consideration. In that regard, I note that name suppression does not affect any specific professional disclosure obligation.
32 Mr Corlett acknowledged that the current (interim) redaction at [149] of the reasons for verdict is unnecessary.
[30] Overall, I consider that the balance clearly favours suppression of H’s name and identifying particulars in the sense described.
W
[31] As indicated, it is common ground that if H is successful, the identity of W (who does not seek permanent suppression herself) should be suppressed on the basis that publication of her name or identifying details would risk identifying H.33 In relation to identifying particulars, given the position reached in relation to publication of the fact that he was a Member of Parliament, I consider it is unnecessary to prohibit publication of W’s employment by Parliamentary Services.
X
[32] X seeks permanent suppression of its name and identifying particulars in connection with the proceeding on the grounds it is connected with H and publication of its identity is likely to cause it undue hardship.
[33] There is no doubt X is connected with H. The firm is his employer and as a Special Counsel he co-leads the firm’s Asian Legal Practice Group.
Undue hardship
[34] As Mr Waalkens accepted, there is no different legal standard for lawyers being granted name suppression. In the application of the standard test, however, the impact on a professional’s reputation may be more likely to affect career and livelihood.
[35] I have already found in the context of interim name suppression that the undue hardship threshold was made out by X.34 The firm’s evidence about the taint or guilt by association was not updated since H’s acquittal. I repeat my observation above concerning speculation as to inaccurate reporting. I consider the reporting risk identified in Ben-Dom v A Professional Conduct Committee Appointed by the Medical Council of New Zealand,35 on which Mr Waalkens relied, is not such an issue in this
33 Criminal Procedure Act 2011, s 200(2)(f).
34 R v Zhang [2022] NZHC 1869 at [27].
35 Ben-Dom v A Professional Conduct Committee Appointed by the Medical Council of New Zealand
case. As indicated above, I also do not consider it likely that readers could wrongly infer that H was only acquitted on the basis of a technicality. I repeat too what I said about the tendency of wishing to avoid any taint appearing irrational given H’s acquittal and the nature of that acquittal.
[36] Even so, on the evidence I accept there is a real and appreciable risk that publication of the firm’s name in connection with identifying H’s role in the proceeding as a person charged but acquitted would lead some clients or potential clients to avoid X given H’s leading role in the Practice Group. Since X has no connection with H’s actions that were in issue in the proceeding, I am satisfied the consequences of publication amount to undue hardship.
Discretion
[37] Balancing the interests of X against the interests of the public, open justice has no real application in relation to publication of the firm’s name since it has no connection with H’s actions that were in issue in the proceeding. As indicated, substantial media reporting of the case has occurred and can continue without the firm’s name. Nor would suppression of the firm’s name affect any specific professional disclosure obligation. I consider the balance clearly favours suppression of X’s name and identifying particulars in connection with the proceeding.
[38] Given my earlier conclusion in relation to H, it is unnecessary to consider the exercise of discretion on the basis that the consequence of suppressing the firm’s name would accord suppression to a defendant who would not otherwise have it.36
P
Undue hardship
[39] The starting point is that in relation to P’s interim name suppression, the Court of Appeal accepted that the undue hardship threshold was met.37 Since then, as
[2020] NZHC 3094 at [148]. In that case, Dobson J nevertheless concluded that open justice prevailed (at [152]).
36 C (CA436/2022) v R [2022] NZCA 460 at [31].
37 C (CA436/2022) v R [2022] NZCA 460 at [28].
Mr Lowery submitted, the evidence indicates that P’s position has become a bit worse. While Mr Lowery acknowledged that ordinarily publication when a defendant has been acquitted would be likely to cause less harm than publication when a defendant has been convicted, he submitted that here the evidence goes further, culturally, in that it is the association at all that is the concern. Given the combination of the precarious financial position and the cultural evidence about association, I am satisfied that publication of P’s name in connection with the proceeding would be likely to cause it undue hardship.
Discretion
[40] Balancing the interests of P against the interests of the public, I consider that open justice has no real application in relation to the publication of P’s name either since it has no connection with C’s actions that were in issue in the proceeding. Substantial media reporting of the case has occurred and can continue without P’s name.
[41] Since C does not pursue permanent name suppression for himself, it is necessary to consider the exercise of discretion on the basis that the consequence of suppressing P’s name is to accord suppression to a defendant who would not otherwise have it.38 Mr Lowery acknowledged that my factual findings in relation to C cut both ways, but submitted that the extensive reporting to date, C’s relatively confined role and his lower profile leave little need for publication of his name to meet the principle of open justice. He referred by analogy to the cases of X (CA226/2020) v R and R v
H.39 I accept Mr Lowery’s submission. Consequent suppression of C’s name would have little limiting effect on reporting the reasons for verdict.
[42] I consider the balance clearly favours suppression of P’s name and identifying particulars in connection with the proceeding.
38 At [31].
39 X (CA226/2020) v R [2020] NZCA 387; and R v H [2022] NZHC 1741.
Result
[43] I make orders permanently suppressing the name and identifying particulars of:
(a)H under s 200(2)(a);
(b)W under s 200(2)(f);
(c)X under s 202(2)(a);
(d)P under s 202(2)(a); and
(e)C under s 200(2)(f).
Gault J
Solicitors / Counsel:
Mr P Wicks KC, Mr J Dixon KC and Ms K Hogan, Barristers, Auckland Ms K Bannister and Ms H Moore-Savage, Serious Fraud Office, Auckland Mr M Corlett KC, Barrister, Auckland
Mr S McArley (H’s instructing solicitor), Solicitor, Auckland Mr S Lowery and Mr J Suyker, Barristers, Auckland
Mr H Waalkens KC, Barrister, Auckland Mr K Crossland, Shieff Angland, Auckland Copy to:
Mr RKP Stewart (for media interests), Barrister, Auckland
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