R v MVD
[2016] NZHC 333
•2 March 2016
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
CRI-2016-485-00009 [2016] NZHC 333
BETWEEN THE QUEEN
Appellant
AND
M V D Respondent
Hearing: 12 February 2016 Appearances:
K S Grau for the Appellant
N J Sainsbury for the RespondentJudgment:
2 March 2016
JUDGMENT OF THOMAS J
This judgment was delivered by me on 2 March 2016 at 4.00 pm pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Date:………………………….
Solicitors:
Crown Solicitor, Wellington.
Greig Gallagher & Co., Wellington
R v M V D [2016] NZHC 333 [2 March 2016]
Introduction
[1] The respondent, Ms D, pleaded guilty to a representative charge of delivering false invoices.1 She was convicted and sentenced by a District Court Judge on
16 December 2015 at Wellington.
[2] The Judge also granted her permanent name suppression. The Crown now appeals that decision on the grounds the Judge did not fully consider the public interest in publication of the respondent’s name when exercising his discretion.
Context
[3] The respondent is the director of a company (the Company) which offers management consultation and facilitation services for people who are renovating property. The victims entered into an agreement with the Company in relation to the renovation of their property.
[4] The agreement provided for them to pay to the Company a 9 per cent fee based on the value of the contract and part or all of any “procurement commission”. The agreement did not define procurement commission or specify the amount of procurement commission to be paid.
[5] The charge relates to invoices the respondent provided to the victims on behalf of the Company between May 2008 and April 2009. These invoices overstated the value of the work and the respondent retained the additional funds as procurement commission.
[6] The respondent has franchised the Company business to other individuals and entities who are running businesses under this corporate banner.
The law
[7] Suppression of the identity of a defendant is provided for by s 200 of the
Criminal Procedure Act 2011 (CPA) which relevantly provides:
1 Secret Commissions Act 1910, s 7.
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.
…
(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.
[8] There is a presumption in favour of openness in reporting when deciding whether to make an order forbidding publication of a defendant’s identity. In R v Liddell the Court of Appeal stated:2
… the starting point must always be the importance in a democracy of freedom of speech, open judicial proceedings, and the right of the media to report the latter fairly and accurately as ‘surrogates’ of the public.
[9] This was a pre-CPA decision, but is still considered good authority. The courts continuously emphasise the presumption of open justice.3
[10] The section contemplates a two stage test. First, one of the consequences listed in subsection (2) (a)-(h) must be established as a precondition to a Court
2 R v Liddell [1995] 1 NZLR 538, (1994) 12 CRNZ 458 (CA) at 546, 466.
3 Robertson v Police [2015] NZCA 7 at [43]-[44]; Adams on Criminal Law (online loose leaf ed, Westlaw) at [CPA200.01].
having jurisdiction to suppress the name of a defendant. Once this threshold has been crossed, the Judge then must consider whether to exercise the discretion to forbid publication of a defendant’s name.4
[11] The approach on appeal depends on what part of the decision is being appealed.5 If it is the decision regarding whether the threshold was satisfied, the appeal will be on the ordinary Austin Nichols approach.6 This approach allows the Court to reach a decision based on its own opinion, even when the opinion is an assessment of fact and degree and entails a value judgment.7
[12] If the discretion is challenged, the B v R approach will apply.8 Following this approach the Crown must show:9
… that the Judge acted on a wrong principle; or that he failed to take into account some relevant matter or that he took account of some irrelevant matter or that he was plainly wrong.
[13] The Crown appeals on both aspects of the decision.
District Court Decision
[14] The Judge granted name suppression for two reasons. The first was due to the potential hardship publication could cause the franchise holders running businesses under the corporate banner of the Company. Each franchise has its own separate trading company using the name of the Company; however, a shared trust account is run by a company of which the respondent is the director. The business has been operating since 2004 and has franchises operating in Auckland, Tauranga, Wellington and Christchurch. The second reason was because identification of the respondent
could lead to the identification of the Company, whose name was suppressed.10
4 Fagan v Serious Fraud Office [2013] NZCA 367 at [9].
5 This approach to appeal has been adopted by a number of High Court decisions, including for example X v Police [2014] NZHC 934 at [12] - [17]; JM v R [2015] NZHC 426 at [9] – [11]; M v Police [2015] NZHC 1975 and Police v KK [2014] NZHC 162.
6 Austin, Nichols and Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141at [16].
7 Austin, Nichols and Co Inc v Stichting Lodestar, above n 5, at [16].
8 B (CA860/10) v R [2011] NZCA 331; Bruce Robertson (ed) Adams on Criminal Law (online looseleaf ed, Westlaw) at [CPA287.03].
9 B (CA860/10), above n 8, at [9] citing May v May (1982) 1 NZFLR 165 (CA) at 170.
10 R v MVD [2015] NZDC 24985 at [12].
Analysis – threshold criteria
Section 200(2)(a)
[15] The Judge considered s 200(2)(a), primarily in connection with the
respondent’s personal hardship.
[16] Under s 200(2)(a), extreme hardship to those connected to a defendant can also be taken into account. This means that the hardship of the franchisees connected to the respondent could be taken into account and the submissions on behalf of the respondent in the District Court appear to have suggested that.
[17] The threshold of extreme hardship is very high. In R v N Collins J stated:11
The term “extreme hardship” is not defined in that Act, but should be interpreted consistently with the high threshold that was necessary to displace the presumption of publication at common law. This threshold was often described as a “compelling reason” or a “very special circumstance”.
[18] The type of situation where this would usually apply is one where there is a risk to the family members of the respondent.12 Name suppression has been granted under this criterion where a defendant’s wife had serious health issues and the stress of publication could have led to additional complications,13 and where a defendant’s wife had attempted suicide following the refusal of the District Court to grant name suppression.14 The circumstances must be more severe than typical or “ordinary” consequences associated with the discovery of criminal offending.15
[19] This factor would not justify name suppression in this case, given the nature of the connection between the respondent and franchisees. The extent of any hardship would not be considered extreme, particularly given the minimal evidence
presented on this issue.
11 R v N [2012] NZHC 2042 at [22].
12 Q v New Zealand Customs [2014] NZHC 2398; K v Inland Revenue Department [2013] NZHC
2426, (2013) 26 NZTC 21-034; B(CA860/10), above n 8.
13 Q v NZ Customs, above n 12.
14 K v IRD, above n 12, noting Inland Revenue Department v Kamal [2013] NZHC 3474.
15 Robertson v Police, above n 3, at [48] and [49].
[20] The Judge attached little weight to the submission as to the respondent’s alleged extreme hardship and appears to have rejected that ground in relation to franchisees. I concur with that result.
Section 200(2)(b)
[21] The Judge noted the conviction could cast suspicion on the other franchise holders, causing them undue hardship (s 200(2)(b)).
[22] Undue hardship is a lesser standard than extreme hardship. However, it requires something more than the hardship which would be expected to occur through publication. It connotes “excessive or greater hardship than the circumstances warrant”.16
[23] The Crown submitted that the Judge was wrong to find publication of the respondent’s name would be likely to cast suspicion on the franchisees, causing them undue hardship, and to take this into account when deciding whether to grant the respondent name suppression.
[24] Ms Grau, appearing for the Crown, submitted that the risk of casting suspicion under s 200(2)(b) was limited to creating suspicion of the franchisees having committed the same offence as the offender, and that the Judge was instead relying on the possibility of suspicion the franchisees have committed offences of that kind. Furthermore, said Ms Grau, publication of the respondent’s name would necessarily identify her alone as the offender, avoiding suspicion being cast on other franchisees.
[25] In terms of s 200(2)(b), Mr Sainsbury, appearing for the respondent, submitted that the Judge made a realistic and sensible assessment of the realities of the situation.
[26] Tipping J recognised that it could be a factor weighing against making a suppression order if the suppression order would lead to others being suspected of
the offending.17 However, this does not apply in this situation as, if neither the respondent nor the Company’s name is published, then there would be nothing implicating the franchisees.
[27] Nothing in s 200(2)(b) limits the relevant “suspicion” to suspicion of the other person being involved in the exact same offending as the defendant. It was certainly open to the Judge to conclude, as he did, that publication of the respondent’s name was likely led to the franchisees being “tarred by the same brush”.18 This would lead to undue hardship due to the financial losses likely to be suffered.
[28] In any event, the suppression was, as the Judge said, primarily focused on s
200(2)(f).
Section 200(2)(f)
[29] The Judge relied primarily on the ground that publication would be likely to lead to the identification of another person whose name was suppressed by order of law. This was based on the possible identification of the Company if the respondent’s name were published.
[30] The Company was granted interim name suppression at an early stage of the proceedings so as to protect franchisees throughout New Zealand, and this order remained in place after the Crown took over responsibility for the prosecution. It was agreed that there was an appreciable risk the franchisees would suffer undue hardship if the Company name were not suppressed. On that basis, at the sentence indication hearing in relation to the respondent, the Crown agreed it was appropriate for the Judge to make a final order suppressing the name the Company.
[31] The Crown accepted there was a link between the respondent’s name and the Company. The issue raised by the Crown was whether it was “likely to” lead to identification of the Company. Ms Grau submitted that, while the respondent had an
online presence linking her to the Company, there was no media attention to this case
17 H v Police (1989) 4 CRNZ 215 (HC) at 217.
18 MVD, above n 10, at [9].
and she was not well known. Any link would require some degree of research by interested members of the public.
[32] Mr Sainsbury submitted that the Judge made a considered and appropriate decision that the test in s 200(f) had been made out. Mr Sainsbury noted that the Crown accepted the link between the respondent and the Company but its argument was based on a small number of people knowing about this link (being existing and prospective clients). In Mr Sainsbury’s submission, a name suppression order should not be subverted based on the size of the potential pool of persons who might recognise the name. The reason for the name suppression being granted was to prevent undue hardship. The basis for the hardship was that clients and potential clients would equate the offending committed by the respondent to the Company with which she had a close relationship.
[33] The meaning of likely was considered in Beacon Media Group v Waititi in relation to s 202.19 Justice Gilbert stated:
… “likely” in s 202 means more that “may” so the mere possibility would not suffice. However, it is not necessary … to show that the risk of harm is such that it is more likely than not to occur. In my view, the word “likely” in s 202 means a real risk that cannot be readily discounted.
[34] The respondent is the director of the Company. This information is publically available and can be searched by anyone via the Companies Office website. If there were no media attention relating to the respondent, and no connected association between the respondent and the Company, a person hearing her name would not be “more likely than not” to search the register and find the name of the Company.
[35] However, the respondent said in her affidavit that it is common for prospective clients to check up on the internet about the business. If her name is published and available online, this could lead to prospective clients drawing the link between her offending and the Company.
[36] Further, the respondent is involved in the marketing of the Company at home shows. In this regard she is a very public and integral part of the business and having her name published could lead to those who have attended home shows or are aware of the marketing of the Company identifying it as connected to her.
[37] Overall, the respondent appears to be the face of the Company at marketing events and plays an integral part in the business. When her name is searched online, references to the Company are found, and vice versa, and anyone searching the Companies Register would find her listed as the director of the Company. This indicates that publication of her name creates a real risk of leading to the identification of an entity which has name suppression, being the Company.
[38] These factors make it more likely than not that if her name were published this would lead to identification of the Company which has been granted name suppression. Therefore, the Judge was correct and the s 200(2)(f) criterion has been satisfied.
Analysis - Discretion
[39] When assessing the exercise of the Judge’s discretion, the B v R approach must be applied: it must be shown the judge was wrong in law, took account of an irrelevant consideration, did not take account of a relevant consideration, or was plainly wrong.20
[40] The Crown appealed on the ground that the Judge failed to take into account the public interest in publication of the respondent’s name and weigh it against the interests of the franchisees. In Ms Grau’s submission, the public interest in publication far outweighs any harm caused to the franchisees. In his decision on the application for final name suppression, the Judge did not specifically mention weighing the interests of the franchisees against the public interest of publication. Mr Sainsbury submitted that, because the Judge had canvassed this public interest issue at the sentence indication and name suppression hearings, he was clearly mindful of
this in reaching his decision. Further, public interest was not a matter of significance at the suppression hearing.
[41] The Crown acknowledged that the Judge recognised the public policy considerations of the offending in terms of the need for open and transparent contractual dealings. However, this comment was made in a different context, in deciding whether the respondent should be granted a discharge without conviction.21
It is evident, however, that the Judge had considered public interest considerations during the course of the proceedings.
[42] I accept that the District Court decision does not in terms address the second stage of the test, that is, whether the discretion to forbid publication of the respondent’s name should have been exercised. For those reasons, and following the approach of B v R, I will undertake that exercise.
[43] The starting point when considering whether to make an order preventing publication of a defendant’s identity is a presumption in favour of openness.22 This requires a consideration of the public interest in publication.
[44] The Crown stressed the public interest in publication, emphasising that the respondent’s conviction was for criminal offending. Although she was fined $500 only, the maximum financial penalty at the time of the offending was $1000. Ms Grau referred to the Judge’s description of the offending as sophisticated, involving, as it did, over 90 invoices throughout the period of a year.
[45] Ms Grau then submitted that the link between the respondent and the Company would be established either by former or prospective clients, who, in her submission, had a real interest in knowing the true facts about the organisation with which they proposed to do business.
[46] Ms Grau referred to a letter in support of the application by one of the franchisees, who discussed the circumstances when a prospective client became
21 R v MVD DC Wellington CRI-2013-085-009235, 19 November 2015 at [22] (Sentencing indication).
22 See [9] above.
aware of the conviction, and the steps that were required in order to make that party sufficiently confident to enter into a business relationship with the franchisee. In Ms Grau’s submission, the details described in the letter showed that publication would not cause undue hardship to the franchisees.
[47] In considering these submissions, the fact that suppression of the Company’s name has already been granted with the support of the Crown is relevant. This involved a decision under s 202 of the CPA, the Company being a connected person to the respondent. Suppression of the Company’s name must have been made pursuant to s 202(2)(a), whereby the Court must have been satisfied that the publication would be likely to cause undue hardship to the Company (presumably primarily focused on the interests of the franchisees). It was at that stage that the question of undue hardship to franchisees was addressed.
[48] That being the case, the Crown’s application to some extent seeks to collaterally challenge the question of undue hardship to the franchisees which has already been decided and with the consent of the Crown. The issue before the Court now is suppression of the respondent’s identity in that context, that is, where the decision has already been made that the Company’s name should be suppressed.
[49] Although the s 202 decision has already been made, s 202(4) provides:
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.
[50] Section 202(4) has not yet been the subject of extended consideration. Evidently, this provision attempts to avoid suppression of a defendant’s name occurring through the back door. However, the inclusion of s 200(2)(f) within s 200, allowing suppression if publication of a defendant’s name would be likely to lead to the identification of another person whose name is suppressed by order or by law, creates an inherent tension between these provisions.
[51] In NN v Police, Asher J considered the relationship between s 200(2)(f) and the statutory suppression for child and sexual complainants under ss 203 and 204.23
Section 204 contains a subsection similar to s 202(4), whereby nothing prohibiting publication of the name of a complainant or witness under the age of 18 prevents publication of the name of a defendant or the nature of the charge.
[52] Asher J considered that, even if the s 200(2)(f) ground is made out, the Court still has a discretion as the Court "may" make an order:24
Moreover, ss 203 and 204 deal with a different type of situation to s 200. They impose an absolute obligation to automatically suppress, and a breach would have to be established to a high standard. Indeed, if ss 203 or 204 were used in proceedings to show an offence under the CPA, the standard of proof would be beyond reasonable doubt. The threshold in s 200(2) where the Court has a discretion is considerably lower. It only has to be shown that publication "would be likely" to lead to the identification. Given the lower standard of proof, which does not require that a breach be established, it is unsurprising that a Court discretion in s 200 is retained. I therefore will adopt the two-stage approach in considering suppression under s 200(2)(f).
[53] In that case, the purpose of s 203, being to protect complainants, was an important factor in exercising the discretion against publication of the defendant’s name, once it was assessed as being likely to identify the complainants due to their personal relationship with the defendant. Asher J said, “A Court will be cautious before it allows countervailing discretionary considerations to outweigh an appreciable risk of publication leading to identification of complainants.” While there was a strong public interest in knowing the defendant’s name, there was no risk to other members of the public. Asher J therefore allowed name suppression under s 200(2)(f).
[54] While ss 202(4) and 204(3), which preserve the right to name defendants even where suppression is given to child complainants, child witnesses or connected persons, reflect the legislature’s intention that suppression of those names will not automatically require a defendant’s name to be suppressed, they do not preclude the grant of name suppression for a defendant whose position is to be considered pursuant to s 200. Where the threshold under s 200(2)(f), that publication of the defendant’s name would be likely to identify another person with a suppression
order, is reached, there remains the residual discretion as to whether the name should
23 NN v Police [2015] NZHC 589.
24 At [18].
be suppressed or not. The impact of publication will need to be weighed against the principles of open justice and possible public interest in publication.
[55] However, those interests will typically have been considered by a Judge to some extent in making a s202 order. This creates a tension in the law in this area, particularly when a final decision to suppress the name of a connected person is made at an early stage in proceedings and is not able to be revisited in relation to a separate, but related, s 200 decision.
[56] Once publication has been found to create a real risk of identifying someone who has met the criteria for name suppression, it will be rare circumstances in which it is appropriate to exercise the Court’s discretion not to grant name suppression to a defendant thereby triggering the real risk of identifying the person whose name is suppressed. In many cases, such identification will either undermine the decision of another Judge as to whether that person should be identified, or the statutory presumptions of Parliament under ss 203 and 204.
[57] This emphasises what, in hindsight, could be considered the flaw in the way in which the issue of name suppression has been dealt with in this case. That is, the decision in respect of the Company was made final before the full analysis of the respondent’s situation was carried out. The name of the Company having been suppressed, s200(2)(f) was always highly likely to apply in the case of an application to suppress the identity of the respondent. Although there may be situations in which the public interest or other associated factors are sufficiently important to warrant the risk of identifying a person who requires name suppression, this is likely to be a rare occurrence.
[58] Considering the extent of the public interest in this case, I am not persuaded by the submission that publication may lead to the identification of further victims.25
This offending occurred some time ago. The victims first contacted the Serious Fraud Office and the matter was then referred to the Police. There has therefore been ample opportunity for a full investigation. While the maximum financial penalty at the time was a fine of $1000, the offence carried a maximum penalty of a sentence of
imprisonment of two years. In that context, it must be accepted that, given the penalty imposed on the respondent was a fine of $500, the offending must have been viewed as being at the lower end of culpability.
[59] Furthermore, the offending occurred over seven years ago. There was evidence that the respondent had relied on a contract drawn up by lawyers and, since the offending came to light, ensured the contract was redrafted to clarify the position. In all those circumstances, I accept the respondent’s submission that the public interest is at the lower end of the scale.
[60] I say this acknowledging the victims’ strenuous opposition to the
application.26
[61] Given those considerations, I am satisfied that the Judge’s ultimate conclusion was the correct one. In the circumstances of this case, the public interest does not outweigh the risk of identifying the Company, whose name has been suppressed by consent.
Result
[62] For the reasons given, the appeal is dismissed.
Thomas J
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