ORDER PROHIBITING PUBLICATION OF NAMES, ADDRESSES, OCCUPATIONS OR IDENTIFYING PARTICULARS OF DEFENDANTS
PURSUANT TO S 200 CRIMINAL PROCEDURE ACT 2011. SEE
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2020-044-2968
[2022] NZHC 1741
THE QUEEN
v
EF
and FG
Hearing:
13 July 2022
Appearances:
JCL Dixon QC and R J Williams for the Crown G J Thwaite for EF
T D Clee for FG RKP Stewart for Newshub, NZME, RNZ, Stuff and TVNZ
Date of judgment:
20 July 2022
JUDGMENT OF JAGOSE J
[Name suppression]
Counsel/Solicitors:
JCL Dixon QC, Auckland P F Wicks QC, Auckland
This judgment was delivered by me on 20 July 2022 at 3.00pm.
…………………………
Registrar/Deputy Registrar
JEL Carruthers, Barrister, Auckland T D Clee, Barrister, Auckland
RKP Stewart, Barrister, Auckland G J Thwaite, Auckland
Serious Fraud Office, Auckland
R v EF and FG [2022] NZHC 1741 [20 July 2022]
[1] The defendants, EF and FG, face two charges, by deception and without claim of right, they obtained control over nearly $750,000 alleged to be party donations in terms of the Electoral Act 1993.1
[2] EF initially was declined name suppression by Judge D J Orchard in the District Court.2 On appeal to this Court, Peters J concluded the Judge did not err in concluding publication in the context of any report or account relating to the proceeding would not be likely to cause extreme hardship to either EF or a fund connected with him. But Her Honour concluded on fresh evidence, “by a narrow margin”, such publication would be likely to cause extreme hardship to particular of EF’s clients, for whom “current and planned litigation … [was] at a very delicate stage” and might be put “at risk”.3 On that basis, Peters J allowed the appeal, to “continue interim name suppression until the first day of trial only”, “[a]ny further application to … be made to the presiding Judge, with up to date information”.4
[3] EF now seeks renewal of interim name suppression — initially to have expired on 7 June 2022 being the first day of trial, but extended by me pending my determination of the application5 — until determination of his signalled application for permanent name suppression in wake of my pending decision on the charges against him.
The law
[4] The Criminal Procedure Act 2011 — in its general provisions, under a subpart to address “[p]ublic access and restrictions on reporting” — establishes:6
… proceedings are generally open to the public.7 There is a power to clear the Court but that does not, in most cases, allow for the exclusion of the media.8
…
The Court also has power to suppress names and other identifying particulars of the defendant, witnesses, victims and connected persons as well as evidence
1 Crimes Act 1961, s 240, carrying a maximum penalty of seven years’ imprisonment (s 241).
[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.
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AGLC
R v EF [2022] NZHC 1741
Case
[2022] NZHC 1741
Decision Date
CaseChat Overview and Summary
The defendants, EF and FG, in this case, are facing charges of obtaining control over nearly $750,000 through deception, allegedly in the form of party donations, in violation of the Electoral Act 1993. EF previously sought name suppression from Judge D J Orchard in the District Court but was denied. On appeal to the High Court, Peters J allowed the appeal but only to continue the interim name suppression until the first day of the trial. EF is now seeking the renewal of the interim name suppression until the determination of his application for permanent name suppression. The legal issue before the court was whether publication of the defendants' names would likely cause extreme hardship or prejudice the administration of justice. The court held that while the consequences of publication were not significantly more severe than those that usually attend criminal proceedings, the publication of EF's name would likely cause undue hardship to his clients, as they might be dissuaded from continuing with his instruction. The court found that the publication of EF's name would likely cause extreme hardship, as it would risk discouraging the attainment of justice. Therefore, the court decided to forbid the publication of EF's name, address, or occupation under section 200(1) of the Criminal Procedure Act.