R v J
[2024] NZHC 2257
•13 August 2024
PERMANENT ORDER PROHIBITING PUBLICATION OF NAME, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS OF DEFENDANT PURSUANT TO S 200 CRIMINAL PROCEDURE ACT 2011. SEE
PERMANENT ORDER PROHIBITING PUBLICATION OF THE PARTICULARS REFERRED TO IN PARAGRAPH [5][2](d)-(f), [10](b)-(d), [12],
[13] AND [16](b)-(e) OF THIS JUDGMENT
PERMANENT DIRECTION THAT JUDGMENTS, ORDERS, DOCUMENTS OR FILES OF ANY KIND RELATED TO THIS DEFENDANT MAY NOT BE ACCESSED, EXCEPT BY COUNSEL FOR THE PARTIES, WITHOUT PRIOR PERMISSION OF THIS COURT, PURSUANT TO R 5(2) OF THE SENIOR COURTS (ACCESS TO DOCUMENTS) RULES 2017
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CRI-2021-009-8205
[2024] NZHC 2257
THE KING v
J
Hearing: 17 July 2024 Appearances:
A M Harvey for the Crown
A M S Williams and K N Stitely for the Defendant J Kenny for The Press/Stuff
Judgment:
13 August 2024
REDACTED JUDGMENT OF HARLAND J
(As to permanent suppression orders)
R v J [2024] NZHC 2257 [13 August 2024]
Introduction
[1] The defendant applies for permanent suppression orders effectively confirming the interim suppression orders made by Osborne J on 15 February 2024, which have been continued until this application is determined.1 The Crown supports the application, but Mr Kenny for The Press/Stuff opposed the application.
[2] I grant the orders sought. My reasons for granting the orders are outlined in this judgment.
Background
[3] The defendant was charged, along with others, for drug-related offending arising out of the Police operation code named Operation Mist. He was charged with participating in an organised criminal group, importing the class A controlled drug cocaine, attempting to import cocaine and money laundering. The latter three charges were laid as representative charges and the defendant pleaded guilty to them on 19 October 2023.
[4] On 15 February 2024, the defendant was sentenced by Osborne J to 10 years and four months’ imprisonment on the charge of importing the class A controlled drug cocaine, five years’ imprisonment on the charge of attempting to import the class A controlled drug cocaine, five year’s imprisonment on the charge of participating in an organised criminal group, and three years six months’ imprisonment on the charge of money laundering.2 All of these sentences were ordered to be served concurrently with a minimum period of imprisonment of five years and two months imposed on the lead charge of importing the class A controlled drug cocaine.
[5]On the same day, Osborne J made interim orders as follows:3
[2] I suppress from publication:
(a)the name, image and all identifying aspects of the defendant;
(b)the fact that the defendant entered guilty pleas;
1 […]
2 […]
3 […]
(c)the particular charges to which he pleaded guilty;
(d) […]
(e) […]
(f) […]
(g)the content of submissions for and at this hearing; and
(h)the content of the sentencing remarks that will follow today save to the extent that there is no suppression of the fact that one defendant in this proceeding has been sentenced today to the period of imprisonment that is imposed and whether a minimum period of imprisonment was imposed.
[6] These orders were made to ensure the fair trial interests of the co-defendants yet to stand trial and to protect the safety of this defendant.
[7] Mander J confirmed those orders on 6 May 2024 following the last of the defendant’s co-defendants pleading guilty that morning.
[8] Mr Kenny applied some time ago for access to court documents in relation to the defendants involved in Operation Mist, including those in relation to this defendant. He seeks a copy of any statements this defendant made to the Police and other documents, including photographs of items seized, not necessarily all of which are relevant to this defendant. He also seeks photographs taken of the defendants (including this defendant) while they were under surveillance by the Police and other agencies.
[9] Mr Kenny highlighted the important public interest in Operation Mist, which involved the importation of cocaine to New Zealand from Colombia and elsewhere by a wider international syndicate. Mr Kenny submitted it was important to identify the defendant because he is alleged to have had a leading role in the offending. He also submitted that the defendant’s identity is already known to his co-defendants so that concerns about the defendant’s safety already exist because of this. He submitted that the defendant’s involvement and publication of his name can be reported responsibly to avoid any concerns about his safety.
The application for permanent suppression orders
[10] The application is made under ss 200 and 205 of the Criminal Procedure Act 2011. The defendant seeks permanent suppression orders in relation to:
(a) the defendant’s name, image and all identifying aspects;
(b) […]
(c) […]
(d) […]
(e) the contents of submissions for and at the hearing before me; and
(f) the content of the sentencing remarks by Osborne J, except it is agreed by the Crown and the defendant that there should be no suppression of the fact that this defendant has been sentenced to the period of imprisonment and minimum period of imprisonment referred to in [4] above by virtue of the order made by Osborne J outlined in [5] above, but he should be referred to as “an unnamed defendant”.
[11] The application for permanent orders is sought on the basis that publication of the details referred to in [10] would cause extreme hardship to the defendant, endanger the defendant’s safety and prejudice the maintenance of the law.
[12] A document by […] was attached to the joint memorandum explaining why permanent name suppression is sought. I was advised that this document had been provided to Osborne J on 15 February 2024 in support of the defendant’s application to continue interim name suppression.
[13] There is no need to traverse the specific reasons set out in the document, suffice to say that they are compelling and explain the reasons why the defendant’s application is made, […].
[14] I am satisfied that there are grounds to make an order as sought in the application because publication would, in my view, be likely to cause extreme
hardship to the defendant and people connected to him,4 and would be likely to endanger his safety.5 I am not persuaded that the public interest favours the interim suppression orders already made not being made permanent. The public interest issues in this case can properly be reported without these matters being made public. I am satisfied that grounds have been established to justify the orders I have made under ss 200(2)(a), (e) and (g) of the Criminal Procedure Act.
[15] Because of the sensitive nature of the application, I am satisfied that the provisions of s 205 are also applicable. I am satisfied that it is appropriate to make an order forbidding publication of any reports or account of the whole or any part of the evidence adduced or the submissions made in this proceeding for the reason that publication would, first, be likely to cause danger to the safety of the defendant and second, under s 205(2), would be likely to prejudice the maintenance of the law under s 205(2)(e) of the Criminal Procedure Act.
Permanent orders
[16] I make permanent orders, under s 200 of the Criminal Procedure Act, suppressing from publication the following:
(a) the name, image and all identifying aspects of the defendant and the contents of the sentencing remarks by Osborne J. However, the fact that the defendant in this proceeding has been sentenced to the period of imprisonment imposed by Osborne J and the fact that a minimum period of imprisonment was also imposed can be reported. The defendant is to be referred to as an “unnamed defendant” in any reporting.
(b) […];
(c) […];
(d) […]; and
(e) the content of submissions for and at this hearing.
4 Criminal Procedure Act 2011, s 200(2)(a).
5 Section 200(2)(e).
[17] I make permanent orders under s 205(2)(c) of the Criminal Procedure Act prohibiting publication of the matters contained in this judgment at [5][2](d)-(f), [10](b)-(d), [12], [13] from “including …” to the end of that paragraph, and [16](b)- (d). These parts will be redacted in the published version of this judgment.
[18] I make a permanent direction under r 5(2) of the Senior Courts (Access to Court Documents) Rules 2017 that judgments, orders, documents or files of any kind relating to this defendant may not be accessed, except by counsel for the parties, without prior permission of this Court.
Harland J
Solicitors:
Raymond Donnelly & Co., Christchurch AMS Williams, Barrister, Christchurch.
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