R v EF
[2022] NZHC 1741
•20 July 2022
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 TVNZDate 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).
2 SFO v EF [2020] NZDC 24904.
3 R v EF [2022] NZHC 1273 at [24].
4 At [26].
5 R v EF & FG HC Auckland CRI-2020-044-2968, 7 June 2022 at [4].
6 ASG v Hayne [2017] NZSC 59, [2017] 1 NZLR 777 at [13]–[15].
7 Criminal Procedure Act, s 196.
8 Sections 197 and 198.
and submissions where the statutory thresholds are met.9 Section 200(1) states that 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”.10
[5]Section 200, with “a lengthy provenance”,11 continues:
Court may suppress identity of defendant
…
(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.
(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).
(4) Despite subsection (2), when a person who is charged with an offence first appears before the court the court may make an interim order under subsection (1) if that person advances an arguable case that one of the grounds in subsection (2) applies.
(5) An interim order made in accordance with subsection (4) expires at the person’s next court appearance, and may only be renewed if the court is satisfied that one of the grounds in subsection (2) applies.
(6) When determining whether to make an order or further order under subsection (1) that is to have effect permanently, a court must take into account any views of a victim of the offence conveyed in accordance with section 28 of the Victims’ Rights Act 2002.
9 Sections 200, 202 and 205. Section 206 deals with the Registrar’s power to make and renew interim suppression orders.
10 Unless the context otherwise requires, “name” is defined to mean “the person’s name and any particulars likely to lead to the person’s identification”: s 194.
11 ASG v Hayne, above n 6, at [29].
‘Likely’, for the purposes of s 200(2), does not mean publication’s more probable consequence, but only “the existence of an ‘appreciable risk’”.12 Also, ‘name’ means “the person’s name and any particulars likely to lead to the person’s identification”;13 and ‘publication’ means “publication in the context of any report or account relating to the proceeding”.14
[6] Despite media’s persistent characterisation as such, name suppression does not make the name-suppressed person’s identity secret, but only prohibits publication ‘in the context of any report or account relating to the proceeding’ of anything likely to lead to their identification. By default, criminal proceedings remain held in courts open to the public, in which name-suppressed defendants nonetheless are identifiable and identified. A corollary of open justice is people involved in court proceedings necessarily will be identified:15
… a public trial is the best security for the pure, impartial and efficient administration of justice and the best means for winning public confidence in and respect for the system.
But suppression derogates from open justice in the right to freedom of expression to publish accounts and reports of court proceedings.16
[7] Reasons must be given for suppression decisions.17 A two-stage analysis is required:18
At the first stage the court considers whether the consequences in s 200(2) would likely follow publication of the person’s name. This is a threshold determination.
At the second stage, if the threshold is crossed, the court considers whether an order should be made as a matter of discretion.
12 Huang v Serious Fraud Office [2017] NZCA 187 at [9], 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].
13 Criminal Procedure Act, s 194.
14 Section 195.
15 Clark v Attorney-General (No 1) [2005] NZAR 481 (CA) at [11], citing Scott v Scott [1913] AC 417 (HL) at 463.
16 McIntosh v Fisk [2015] NZCA 247, [2015] NZAR 1189 at [1], citing JXMX (A Child) v Dartford & Gravesham NHS Trust [2015] EWCA Civ 96, [2015] 1 WLR 3647 at [5]–[12].
17 Criminal Procedure Act, s 207.
18 Ratnam v R [2020] NZCA 92 at [5]–[6], citing DP v R [2015] NZCA 465, [2016] 2 NZLR 306 at
[6].
[8]The first stage:19
… insists that the court determine on what principled basis suppression might be granted.20 The legislation does not impose a burden of proof but the presumption will apply unless the applicant can point to something to displace it.21
The applicant “must establish one of the prerequisites. This is a threshold test, not a balancing exercise”.22
[9] The second stage must decide if “suppression [is] in the public interest”.23 Consistent emphasis is placed on “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’”.24 At the second stage:25
… 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.
[10] Where the threshold quality is of ‘extreme hardship’, that means “severe suffering or privation”. The adjective ‘extreme’ adds to the meaning of hardship or undue hardship by requiring something significantly more again.26 Assessing if hardship has the necessary quality:27
… 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.
…
19 D (CA443/2015) v Police [2015] NZCA 541, (2015) 27 CRNZ 614 at [10].
20 Robertson v Police [2015] NZCA 7 at [43]–[46].
21 R v Liddell [1995] 1 NZLR 538 (CA) at 546; and Lewis v Wilson & Horton Ltd [2000] 3 NZLR 546 (CA) at [41]–[43].
22 Sansom v R [2018] NZCA 49 at [10(a)], citing Fagan v Serious Fraud Office [2013] NZCA 367 at [9]–[10] and Robertson v Police, above n 20, at [44]–[46].
23 At [10(b)].
24 At [11], citing R v Liddell, above n 21, at 540, and Erceg v Erceg [2016] NZSC 135, [2017] 1 NZLR 310 at [2].
25 D (CA443/2015) v Police, above n 19, at [12], citing Lewis v Wilson & Horton Ltd, above n 21, at [43].
26 Sansom v R, above n 22, at [32], citing Robertson v Police, above n 20, at [48].
27 Robertson v Police, above n 20, at [49], citing Jeffries v Police [2014] NZHC 2379 at [24].
It is “a comparative standard”:28
… [requiring] 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.
Discussion
[11] ‘Interim’ and ‘permanent’ name suppression, if meaning the former until determination of the latter, may be misnomers. Section 200(4)–(5) allows an “interim order” forbidding publication to be made if a defendant on first appearance “advances an arguable case” for publication’s qualifying likelihood, to expire on second appearance unless renewed. ‘Renewal’ requires the court be “satisfied” as to that qualification.
[12] It is unclear from s 200 alone if ‘renewal’ means of an interim order, but now to the Court’s satisfaction, or of an order or further order “that is to have effect permanently”. Section 208 of the 2011 Act provides the answer:
Duration of suppression order and right of review
(1) A suppression order—
(a)may be made permanently, or for a limited period ending on a date specified in the order; and
(b)if it is made for a limited period, may be renewed for a further period or periods by the court; and
(c)if it is made permanently, may be revoked by the court at any time.
(2) If the term of a suppression order is not specified, it has permanent effect.
(3) A suppression order may be reviewed and varied by the court at any time.
[13] Reading ss 200 and 208 together, ‘interim orders’ only are those open to being made under s 200(4). Otherwise — unless made “for a limited period ending on a date specified in the order” (or “renewed for a further period or periods”, inferentially to specified dates) — suppression orders (including if made for an unspecified term) are “made permanently”, but nonetheless open to review and variation “at any time”.
28 D (CA443/2015) v Police, above n 19, at [11], citing Lewis v Wilson & Horton Ltd, above n 21, at [42]; and Robertson v Police, above n 20, at [49].
[14] EF’s application for “interim” name suppression pending his further application after my decision on the charges against him thus is his application for a suppression order to an unspecified date, necessarily with permanent effect.29
[15] In reliance on s 200 and my inherent jurisdiction, for EF, Gregory Thwaite argues publication of EF’s name would be to associate him with prosecution for “electoral fraud”, ‘devastating’ each his personal reputation; a superannuation scheme designed in accordance with Islamic law; particular of his [Redacted]; and the primacy of elections over freedom of speech. Each ‘devastation’ is argued to constitute extreme hardship to EF or people connected with him. Except for the fund, Mr Thwaite alternatively argues publication would prejudice maintenance of the law, by EF’s [Redacted]. And on the last, Mr Thwaite argues publication would prejudice the security or defence of New Zealand, again by EF’s [Redacted].
[16] Like the judges before me, I see no comparative hardship accruing to EF or the fund by reason of publication of his name. I see nothing to indicate any consequence distinct from that which ordinarily accompanies criminal prosecution. EF’s involvement in political funding is the foundation for the charges. If consequences are more severe by reason of the seriousness of the allegations is no basis on which to distinguish the risks of publication. More significantly, EF is bound to disclose the charges to clients and potential clients under at least chapter 7 of the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008, meaning publication alone carries no comparative hardship for him or them.
[17] Neither do I accept maintenance of the law, as an available process to protect the criminal justice system and the integrity of the courts,30 or the security and defence of New Zealand, is prejudiced if EF lacks instruction. The submission is aggrandising.
29 A consequence of that construction is s 200(6)’s requirement victims’ views be taken into account on a defendant’s application for non-publication orders “having effect permanently”. Section 28 of the Victims’ Rights Act 2002 — making provision for the prosecutor’s ascertainment and conveyance of such views — “applies to a victim if the person accused of the offence or, as the case requires, the offender applies to a court” for non-publication orders (emphasis added). The context thus requires other than the 2002 Act’s definition of ‘victim’ only to mean someone affected by “an offence committed by another person”. But I have no evidence of those views on EF’s application here.
30 See, for example, Law Commission The public’s right to know: review of the official information legislation (NZLC R125, 2012) at 7.16–7.19 and 7.29.
And Mr Thwaite’s similar claims to the primacy of elections, even if sound, lack any factual foundation for their contended downgrade.
[18] That leaves the hardship occasioned to EF’s particular clients by publication of his name. I have convincing evidence third parties may seize on publication of EF’s name to dissuade his clients in dispute with them from continuing with his instruction. I have no difficulty in concluding such opportunity to constitute undue hardship beyond the ‘ordinary associated consequences’ of publication.
[19] But the threshold here is of ‘extreme hardship’ likely caused by publication, something ‘significantly more’ again. The submission is, if EF’s instruction is terminated, no-one else has the experience, insight and lines of communication to substitute for him. EF’s retention is made more critical by [Redacted]. On the other hand, EF has developed his relationship with his clients over several years. For the media entities, Robert Stewart argues, if EF’s clients were to succumb to the third parties’ dissuasion, it would be their “freely made” decision, rather than by publication likely causing extreme hardship.
[20] Rather than an exercise of rational choice, success of the third parties’ dissuasion — which success would rely on factors underlying EF’s clients’ relationships with the third parties, of a professed belief system denying law’s superiority31 — is to overcome [Redacted] 32 The prospect of their attenuated choice is to qualify publication in the present circumstances as likely causing the requisite extreme hardship. It is significantly in excess of the undue hardship afforded by the third parties’ opportunity from publication to dissuade. I therefore have the necessary ‘principled basis’ to make a non-publication order.
[21] I turn to consider, notwithstanding the threshold for a non-publication order is crossed, if open justice nonetheless should yield. Open justice should yield if necessary “to secure the proper administration of justice”:33
31 Courage v The Attorney-General [2022] NZEmpC 77 at [102].
32 Li v Liu [2018] NZCA 528, [2019] NZAR 259 at [23], citing Black v Taylor [1993] 3 NZLR 403 (CA) at 412.
33 Erceg v Erceg, above n 24, at [18], citing John Fairfax & Sons Ltd v Police Tribunal of New South Wales (1986) 5 NSWLR 465 (NSWCA) at 477 and John Fairfax Group v Local Court of New South Wales (1991) 26 NSWLR 131 (NSWCA) at 141.
[It is] a reminder that the open administration of justice serves the interests of society and is not an absolute end in itself. If the very openness of court proceedings would destroy the attainment of justice in the particular case (as by vindicating the activities of the blackmailer) or discourage its attainment in cases generally (as by frightening off blackmail victims or informers) or would derogate from even more urgent considerations of public interest (as by endangering national security) the rule of openness must be modified to meet the exigencies of the particular case.
[22] Except for publication of any particulars tending to identify EF, open justice largely has been met in this proceeding. Media attendance at and reports and accounts of trial did not observably lack for publishable information. EF’s identity is less important than the role he played in the conduct at issue under the charges. He played that role from the backroom, relatively isolated from public view. Although the public has some right to know of his identity even in or perhaps because of those shadows, publication of his name in the context of accounts and reports relating to this proceeding risks discouraging attainment of justice [Redacted]. The balance ‘clearly favours’ suppression.
Result
[23] Under s 200(1) of the Criminal Procedure Act, I forbid publication of EF’s name, address or occupation.
—Jagose J
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