R v N - [2022] NZHC 2115

ORDER PROHIBITING PUBLICATION OF NAMES, ADDRESSES OR IDENTIFYING PARTICULARS OF DEFENDANT AND EMPLOYER UNTIL FURTHER ORDER OF THE COURT

NOTE: ORDER SUPPRESSING DETAILS OF THE REDACTED PORTIONS OF THIS JUDGMENT

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2019-044-72

[2022] NZHC 2115

THE QUEEN

v

N

Hearing: 19 August 2022

Counsel:

S S McMullan and H F Brown for Crown

A F Pilditch QC and B Z C Shen for Defendant M Heard for the employer

Judgment:

24 August 2022

JUDGMENT OF BREWERJ

This judgment was delivered by me on 24 August 2022 at 12 noon

Registrar/Deputy Registrar

Solicitors/Counsel:
Meredith Connell (Auckland) for Crown Fletcher Pilditch QC (Auckland) for Defendant Lee Salmon Long (Auckland) for the employer

R v N [2022] NZHC 2115 [24 August 2022]

Introduction

[1] On 18 August 2022, a jury found N guilty on 45 of the 49 charges of dishonesty set out in the Charge List.

[2] N has had interim name suppression since he was charged. He now seeks name suppression to continue until his sentencing. He argues that if he were to receive a community-based sentence then he would be eligible to apply for permanent name suppression.

[3] Four related land development companies connected to N seek permanent suppression of their names in connection with any record of this proceeding.1 I will refer to the applicants collectively as “[the employer]”

[4] N is employed by [the employer] as its Land Development Manager. He is currently overseeing five land development projects.

[5] [The employer] submits that N is, in effect, the personification of their land development business and if their names were to be published in connection with N’s fraud [the employer] would likely experience serious and adverse consequences. Therefore, [the employer] also seeks permanent name suppression for N on the basis that if his name were published then this would inevitably lead to the identification of [the employer].

[6]This judgment decides the applications by N and by [the employer].

The law

[7]The law is well understood.

[8] Section 200 of the Criminal Procedure Act 2011 (the Act) provides, relevantly, that a court may make an order forbidding publication of the name, address, or occupation of a person convicted of an offence. But the court may do so only if it is

1 [Redacted]

satisfied that publication would be likely to cause extreme hardship to the person convicted; or lead to the identification of another person whose name is suppressed.

[9] Section 202 of the Act provides, relevantly, that a court may make an order forbidding publication of the name, address, or occupation of any person who is connected with a person who has been convicted of an offence. The court may make such an order only if it is satisfied that publication would be likely to cause undue hardship to the connected person.

[10] The decision whether to suppress a name requires a two-stage analysis. The court must, first, be satisfied that the…

Grounds of appeal

[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.

Continue reading R v N

Details

AGLC: R v N [2022] NZHC 2115
Case: [2022] NZHC 2115
Decision Date: 24 August 2022

CaseChat Overview and Summary

In this case, N and the employer sought permanent suppression of their names in connection with the criminal proceedings. N was convicted of multiple charges of dishonesty and was found to have committed fraud while in a position of trust. The employer, a land development company, hired N as its Land Development Manager and was concerned about the potential negative impact on their reputation and business if their connection to N's criminal activities became public. The court was required to decide whether to grant permanent name suppression for N and the employer, considering the potential consequences of publication and the principle of open justice.

The court found that N had not established that he would suffer extreme hardship if his name was not permanently suppressed, even if he received a community-based sentence. The court noted that loss of livelihood or employment is an ordinary consequence of such offending, and more would be required to meet the statutory threshold of extreme hardship. Additionally, the court considered the principle of open justice, which is of constitutional importance and fundamental to the common law system of civil and criminal justice. The court concluded that the community is entitled to know the identity of a person convicted of serious offending and should only be deprived of that entitlement in exceptional cases.

As for the employer's application, the court found that the threshold of undue hardship had been crossed. However, the court did not find that the balance between open justice and suppression favoured suppression, let alone "clearly favoured" suppression. The court made an interim order continuing the interim suppression orders until either the expiry of 20 working days after the date of this decision or if a notice of appeal is filed within this period, the appeal is finally determined.

Final orders: N's application for permanent name suppression is dismissed, and the employer's application for permanent name suppression is dismissed. An interim order is made continuing the interim suppression orders now in force until the expiry of 20 working days after the date of this decision or if a notice of appeal is filed within this period, the appeal is finally determined.

Orders