R v Netzler
[2020] NZHC 1649
•9 July 2020
IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY
I TE KŌTI MATUA O AOTEAROA TAURANGA MOANA ROHE
CRI 2020-070-000781
[2020] NZHC 1649
THE QUEEN v
ANTHONY CHARLES NETZLER
Hearing: 8 and 9 July 2020 (Heard at Rotorua) Appearances:
A Pollett for the Crown
C G Tuck for the Defendant
Judgment:
9 July 2020
JUDGMENT OF VAN BOHEMEN J
This judgment is delivered by me on 9 July 2020 at 4:00pm.
.....................................................
Registrar / Deputy Registrar
Solicitors/Counsel:
Crown Solicitor, Tauranga
Law Aid International. Tauranga
R v NETZLER [2020] NZHC 1649 [9 July 2020]
Introduction
[1] Anthony Netzler faces two charges, one for importation of methamphetamine and the other for possession of methamphetamine for supply.1
[2] Mr Netzler was arrested on 13 February 2020. He was granted interim name suppression by Judge Sygrove on 17 February 2020.
[3] Mr Netzler remains in custody, having been declined electronically monitored bail by Peters J on 12 May 2020.
[4] On 10 June 2020 Moore J confirmed a two-week trial will commence on 27 September 2021. Moore J also recorded that Mr Netzler, by agreement, has been joined as a co-defendant with Mr Charles Care.2
[5] On 15 June 2020 Mr Netzler applied for continued name suppression on the grounds of extreme hardship and the risk of prejudice to his right to a fair trial in terms of s 200 of the Criminal Procedure Act 2011, and to preserve his right to be presumed innocent, as provided for in s 25(c) of the New Zealand Bill of Rights Act 1990.
[6] Mr Netzler’s application for continued suppression originally sought suppression of Mr Netzler’s name until verdict. However, at the hearing on 8 July 2020, Mr Netzler’s counsel, Mr Tuck, said he was seeking continued suppression only until the next call-over date on 5 August 2020. Mr Tuck explained that this would give him time to work through with Mr Netzler the implications of material that had recently been disclosed by the Crown.
[7] Ms Pollett, counsel for the Crown, said that this amendment to Mr Netzler’s application did not change the Crown’s opposition to Mr Netzler’s application.
[8] I observed to Mr Tuck that, notwithstanding the amended duration of the application, s 200(5) of the Criminal Procedure Act 2011 and the authorities make it clear that any application for continued suppression after an interim order is made at
1 Misuse of Drugs Act 1975, ss 6(1)(a), 6(1)(f) and 6(2).
2 Pursuant to s 138(1)(b) of the Criminal Procedure Act 2011.
a defendant’s first appearance falls to be considered under the high standards that apply for suppression under s 200 of the Act.
Alleged offending
[9] The serious charges Mr Netzler faces arise from an operation undertaken by the Police National Organised Crime Group in 2019 which, it is alleged, uncovered the importation of methamphetamine into New Zealand as part of an international drug smuggling operation. If proven, it would be one of the largest importations of methamphetamine into New Zealand to date.
[10] The Summary of Facts is extensive. It alleges that Mr Netzler played an instrumental role in the importation and distribution of 500 kilograms of methamphetamine. The Crown says that on 14 April 2019, Mr Netzler, together with Mr Care and an associate from the United Kingdom, took Mr Care’s fishing charter vessel around 200km offshore from Whakatane and met with another boat from which they received the methamphetamine shipment. It is alleged that Mr Netzler and his associates had previously undertaken related travel and made various preparatory and logistical arrangements. The Crown says Mr Netzler and his associates returned to shore on 16 April 2019, packaged the methamphetamine in Ohope and transported it to Auckland, via Rotorua and Hamilton, for distribution.
[11] In 31 July 2019 and 18 September 2019, the Police seized more than 410 kilograms of the alleged importation. As Peters J notes in her decision of 12 May 2020 on Mr Netzler’s application for bail, the Crown’s case is that Mr Netzler is a central figure in the alleged offending, and more culpable than Mr Care because he is said to have recruited Mr Care.
The legal framework
[12]Section 200 of the Criminal Procedure Act provides:
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
…
(d) create a real risk of prejudice to a fair trial.
[13] It is well established that New Zealand courts have a responsibility, under the fundamental principle of open justice, to maintain public confidence through conducting transparent proceedings.3 For that reason, in name suppression cases the courts have traditionally upheld a presumption in favour of open reporting. As Cooke P noted in R v Liddell:4
… 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".
[14] While not unqualified, the principles of open justice are departed from only in exceptional cases. Section 200 of the Act does not displace the presumption of publication: suppression orders should be made only in restricted circumstances and the threshold for suppression remains high.5 The Act does not impose a burden of proof that must be met, but the applicant must point to something to displace the presumption.6
3 Erceg v Erceg [2016] NZSC 135, [2017] 1 NZLR 310 at [2].
4 R v Liddell [1995] 1 NZLR 538 (CA) at 546.
5 Robertson v Police [2015] NZCA 7 at [44].
6 D (CA443/2015) v Police [2015] NZCA 541, (2015) 27 CRNZS
[15] Section 200 provides different standards to be met for interim name suppression applications reflecting different stages of the proceedings.7 While at the first appearance, a court may make an interim name suppression merely on the basis there is an arguable case that one of the grounds under subsection (2) applies, that interim order will expire at the defendant’s next court appearance. In order for the interim order to be renewed, a defendant must meet the significantly higher threshold of establishing that publication is likely to cause extreme hardship to him or her or persons associated with him or her.
[16] Mr Netzler’s application is now at the stage where the significantly higher threshold applies.
[17]An application under s 200 requires a two-stage analysis:8
(1)The first stage is a question of jurisdiction. I must be satisfied that one of the threshold grounds listed in s 200(2) has been established; namely whether the publication “would be likely” to lead to one of the outcomes listed in subsection (2).
“Would be likely” means that there must be an appreciable risk that one of the consequences would occur.9 The Court has jurisdiction to suppress the name of the applicant and move to the second stage of analysis “only if” one of the prerequisites in subsection (2) is engaged.
(2)If jurisdiction is established, the second stage of analysis is an exercise of discretion as to whether the Court should suppress the identity of a defendant. I must weigh the competing interests of the applicant and the public, taking into account matters such as whether the applicant has been convicted, the seriousness of the offending, the views of the victim and the public interest in knowing the character of the offender.10
7 Criminal Procedure Act 2011, s 200(4) and (5).
8 Fagan v Serious Fraud Office [2013] NZCA 367 at [9]; Robertson v Police, above n 5, at [40]- [42].
9 Hughes v R [2015] NZHC 1501 at [17]-[18].
10 Robertson v Police, above n 5. The Court based these factors on Lewis v Wilson & Horton Ltd
[2003] 3 NZLR 546 (CA) and s 200(6) of the Criminal Procedure Act 2011.
It is at this stage in the analysis that the interests of open justice are considered.
[18] It is clear that the phrase “extreme hardship” in s 200(2)(a) creates a very high threshold. In Robertson v Police, the Court observed that the contended hardship must be “something beyond the ordinary associated consequences” of a defendant’s name being published.11
[19] In RM v Police, Priestly J noted that the publication will almost always cause hardship to the offender and his or her family:12
[43] Publication will excite curiosity, criticism, social ostracism and embarrassment. But a suppression order can be made legitimately only if the damaging effects on the offender causes hardship which is extreme. The necessary extremity is contextual and will depend on the unique factual and personal circumstances surrounding each s 200 application.
[20] With regard to s 200(2)(d), Mr Netzler must establish that there is a “real risk” of prejudice to his fair trial rights. In Siemer v Solicitor-General the Supreme Court recognised that fair trial rights can, in certain cases, limit the primacy of open justice, but the scope of such a restriction on freedom of expression should be as minimal as is proportionally necessary to uphold fair trial rights.13
Appellant’s submissions
[21] Mr Tuck, counsel for Mr Netzler, said Mr Netzler’s case for continued suppression is based on three factors:
(1)The size of the alleged importation which lifts this case well above the ordinary;
11 At [49].
12 RM v Police [2012] NZHC 2080.
13 Siemer v Solicitor-General [2013] NZSC 68, [2013] 3 NZLR 441 at [159].
(2)Mr Netzler’s global profile; and
(3)Mr Netzler’s Japanese wife.
[22] The first argument is asserted under the grounds of s 200(2)(d), that publication would be likely to create a real risk of prejudice to Mr Netzler’s fair trial rights. Mr Tuck submits that if name suppression is not granted, Mr Netzler will “likely be found guilty in the court of public opinion” by virtue of the charges he faces, being allegations of the second biggest methamphetamine haul with a considerable level of involvement and organisation by Mr Netzler alleged. Mr Tuck submits that publication “could lead to a significant punitive response”, “regardless of any findings of guilt.”
[23] The second and third arguments are asserted under the grounds of s 200(2)(a), that publication would be likely to cause extreme hardship. Mr Tuck submits the impacts of publication on Mr Netzler’s work, being in the international security industry, will have the “life-long consequence” of undermining his ability to obtain work.
[24] Mr Tuck also refers to an affidavit from Mr Netzler’s wife, Saori Netzler, and the impact she says publication will have on her, particularly having regard to her Japanese origins and culture.
Affidavit of Mr Netzler
[25] Mr Netzler has provided an (unsworn) affidavit to the Court in support of his application. Mr Netzler says he is an international security consultant and bodyguard and has worked for high profile people in corporate, government and entertainment industries. Mr Netzler says that he is endorsed in his work based on his experience and reputation, which he links directly to his ability to support himself and his family.
[26] He refers to his martial arts training in Japan over 25 years and says that his martial arts career would be destroyed as a result of any negative media attention linking him to drug importation. Mr Netzler gives an example of his involvement in an incident some years ago that had led to a high level of media scrutiny and negative
attention on his family, whom he cannot protect because he is presently in custody. Mr Netzler says that he has no doubt the media would have a field day if he was named in connection with the charges he faces.
[27] In terms of the impact on his family, Mr Netzler says that his wife is “devastated” and “very anxious” about any media attention. He says it will bring her, and their children, extreme stress. This is particularly so because Mr Netzler says his wife, being Japanese, is “culturally predisposed to being concerned about how others perceive her.” Mr Netzler also expresses his concerns about the detrimental impact of publication on his children, particularly his son who considers his father, in Mr Netzler’s words, his “rock”.
Affidavit of Mrs Saori Netzler
[28] Mr Netzler’s wife, Saori Netzler, has also sworn an affidavit in support of Mr Netzler’s application. She is a full-time mother to her and Mr Netzler’s two children, aged 11 and seven. They live in Mt Maunganui where their children go to school locally. Mrs Netzler is a Japanese national. She says that, as English is her second language, it has been difficult for her communicating without Mr Netzler’s help.
[29] Mrs Netzler says that Mr Netzler has a high profile in the security work that he does overseas, with reputation and trust forming a key part of his work and his ability to provide income to support their family. Mrs Netzler says she fears publication will ruin his career and in turn he will not be able to provide for their family.
[30] Mrs Netzler says that her and the children will have no protection if his name is published and fears they will be targeted and harassed. Mrs Netzler says the impact of publication will reach her home country, Japan, where it will have deep social consequences on her life.
Respondent’s submissions
[31] Ms Pollett for the Crown submits that there is no evidence to support Mr Netzler’s assertions that publication of his name would result in the loss of international income and that the likely ramifications for Mr Netzler should name suppression lapse fall well below the threshold of extreme hardship. Ms Pollett submits there is a lacuna of evidence to support the premise of Mr Netzler’s submissions on extreme hardship resulting from loss of work. She says, at worst, publication may cause hardship to Mr Netzler’s wife and children but this is insufficient to meet the threshold of extreme hardship, particularly in the absence of evidence.
[32] Ms Pollett submits that, in the event the Court finds the first threshold under s 200(2) is met, the Court should not go on to exercise its discretion and grant Mr Netzler name suppression. She submits the alleged offending is serious and there is a legitimate public interest in open justice and publication of the defendant’s name in connection with the charges, and that any consequences Mr Netzler or his family will face as a result of publication do not overcome this interest.
Analysis
Whether publication would be likely to lead to one of the grounds in s 200(2)?
AFair trial rights
[33] I am unpersuaded by Mr Netzler’s claim that publication of his name would be likely to lead to a real risk of prejudice to a fair trial and that he would be denied the presumption of innocence. Sadly, allegations of serious wrong doing are not uncommon in our society and judges are well used to ensuring, and to instructing juries appropriately to ensure, that fair trial rights are preserved. It is only in terms of quantum that Mr Netzler’s alleged importation of methamphetamine lifts him above the level of public attention that attaches to others who engage in large scale alleged drug dealing and who are routinely denied name suppression. I do not consider that this factor adds significantly to the risk to Mr Netzler’s fair trial rights, including the presumption of innocence.
BExtreme hardship to Mr Netzler’s career
[34] Loss of work and impact on family members are an inevitable consequence of offending, as Priestly J noted in RM v Police.14 Several cases have observed that financial loss to the defendant does not fall outside of the ordinary consequences of being charged with offending and name suppression cannot be used simply to protect one’s commercial interests.15
[35] While Mr Netzler has provided only a general and imprecise description of the work he says he undertakes as “an international security consultant and body guard”, I accept Mr Netzler is likely to face hardship in this respect and that he, like many, has a career based on a reputation of good character. However, as Williams J considered in K v IRD, the case law on extreme hardship shows that “if a consequence is reasonably to be expected, then it is harder to argue extreme hardship since it involves a hardship that affects all or most people in such circumstances.”
[36] I am not satisfied, therefore, that the consequences for Mr Netzler’s career will be in the levels of “extreme” hardship, meaning something beyond the ordinary consequences flowing from the charges he faces for someone with a job based on reputation and good character. Mr Netzler’s evidence provides no adequate basis for reaching a different conclusion.
CExtreme hardship to Mr Netzler’s wife and children
[37] In S S B v R,16 Nation J declined an application for name suppression advanced on a similar basis of extreme hardship to the convicted person’s wife and children in the context of their particular cultural circumstances and values, being part of an immigrant community, and despite medical evidence before the Court of the children’s anxiety conditions.17 Nation J upheld that something more serious was required, consistent with the case law that anxiety resulting from publication for the family of
14 RM v Police [2012] NZHC 2080.
15 See for example Hughes v R [2015] NZHC 1501 at [41]; Byrne v Police [2013] NZHC 3416 at [21]-
[23]; K v IRD [2013] NZHC 2426, (2013) 26 NZTC 21-034 at [39]-[40].
16 S S B v R [2017] NZHC 2590, upheld by the Court of Appeal in declining leave application to bring a second appeal in Beshara v R [2018] NZCA 66.
17 Citing GWS v Police [2013] NZHC 943.
defendants does not usually meet the statutory test of something extreme or exceptional.18 Notably in Wilson, although the Court accepted the wife would suffer humiliation and significant distress if her husband’s name were published, the Court said it did not necessarily follow that others, including employers, would think ill of her because of her husband’s offending.19
[38] Therefore, while I accept Mr and Mrs Netzler’s evidence on the social consequences stemming from publication of Mr Netzler’s name, particularly in Japanese culture for Mrs Netzler and Mr Netzler, having accrued standing as he says in the martial arts community, I do not consider publication would impact upon either of them, or their children, to an extreme level.
[39] For these reasons, I am not satisfied the jurisdictional threshold is met by any of these three bases of argument to move to the second stage of analysis.
Stage two: Balancing the public interest
[40] For completeness I have considered whether the Court should exercise its discretion to order name suppression, balancing the competing interests of Mr Netzler with those of the public, taking into account the seriousness of the offending, the fact he has not yet been convicted and the public interest in knowing the character of the offender.
[41] Mr Netzler is entitled to the presumption of innocence. His family clearly supports him, and his counsel indicates that he will proceed to defend his innocence at trial. On the other hand, the charged offending is very serious. The prosecution of methamphetamine importation and supply is strongly in the public interest, particularly in the high order of seriousness these charges allege and having regard to the serious problem of methamphetamine offending in New Zealand.
[42] Mr Netzler will face trial in this Court and before the public. Like all defendants facing charges, if Mr Netzler is found not guilty, that outcome will also be
18 For example, Colway v Ministry of Social Development [2017] NZHC 2852.
19 Wilson v R [2018] NZHC 1778 at [36]-[38].
reported on and he will be publicly vindicated. This is reflected in the fact that, as I have noted, open justice is the presumptive position, even in name suppression applications.
[43] For these reasons, I do not consider there is any factor in Mr Netzler’s circumstances outweighing the public’s right to be informed of the circumstances of this prosecution. Therefore, I conclude that this is not a case in which the Court should exercise its discretion and nonetheless grant Mr Netzler name suppression.
[44] For all these reasons, I dismiss Mr Netzler’s application for continued name suppression and lift the interim suppression ordered by Judge Sygrove.
G J van Bohemen J
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