R v Philip - [2022] NZHC 3197

ORDER PROHIBITING PUBLICATION OF THE SUMMARY OF FACTS CONTAINED IN THIS JUDGMENT PURSUANT TO S 205 CRIMINAL

PROCEDURE ACT 2011. SEE

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

I TE KŌTI MATUA O AOTEAROA

TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE

CRI 2021-069-001252

[2022] NZHC 3197

THE KING

v

GRAHAM JOHN PHILIP

Hearing: 1 December 2022 (at Hamilton)

Appearances:

A J Gordon for the Crown

W T Nabney for the Defendant

Judgment:

1 December 2022

REASONS FOR RULING OF TAHANA J

[Permanent suppression of summary of facts]

This judgment was delivered by me 1 December 2022

…………………………
Registrar/Deputy Registrar

Solicitors/Counsel:
Gordon Pilditch (Office of the Crown Solicitor), Rotorua W T Nabney, Tauranga

R v PHILIP [Reasons for Ruling - Permanent suppression of summary of facts] [2022] NZHC 3197 [1 December 2022]

Introduction

[1] I gave my ruling today on the Crown’s application for permanent suppression of the facts of the offending of Mr Philip. This judgment sets out the reasons for that ruling.

[2] Mr Philip has pleaded guilty to seven charges of sabotage,1 one charge of entering agricultural land with intent to commit an imprisonable offence,2 and one charge of failing to carry out obligations in relation to a computer search.3

Law

[3] Section 205 of the Criminal Procedure Act 2011 (CPA) authorises the Court to make an order forbidding publication of evidence or submissions made in any proceeding. The Court must be satisfied that the publication would be likely to result in any one of the matters specified in s 205(2) of the CPA.

Submissions

Crown

[4] The Crown relies on s 205(2)(a), (c) and (f) of the CPA which authorises the Court to forbid publication if publication of the details of the offending would be likely to:

(a)cause undue hardship to the victim, being Transpower;4

(b)endanger the safety of any person;5 or

(c)prejudice the security of New Zealand.6

1      Crimes Act 1961, s 79(1)(b).
2      Crimes Act 1961, s 231A(1).
3      Search and Surveillance Act 2012, s 178.
4      Criminal Procedure Act 2011, s 205(2)(a).
5      Criminal Procedure Act 2011, s 205(2)(c).
6      Criminal Procedure Act 2011, s 205(2)(f).

[5] The Crown has filed an affidavit of Mr Daniel Twigg. Mr Twigg is the Governance and Administration Manager of Transpower New Zealand Ltd (Transpower). Transpower is concerned that full publication of the details of the offending could lead to copycat offending, which in turn will endanger the safety of numerous persons and prejudice the security of the [redacted] and by extension security of New Zealand.

Defence

[6] Mr Nabney for Mr Philip submitted that the public interest requires that details of the offending be published given the likely length of the sentence being imposed. Mr Nabney accepted that this should not include the precise details as to how Mr Philip caused the damage to the infrastructure.

[7] Mr Nabney referred to social media posts by Mr Philip and said the information has already been published and persons who are likely to commit similar offending have access to that information.

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 Philip

Details

AGLC: R v Philip [2022] NZHC 3197
Case: [2022] NZHC 3197
Decision Date: 1 December 2022

CaseChat Overview and Summary

The case of R v Philip, heard in the Rotorua Registry of the High Court of New Zealand, concerns a ruling on the Crown's application for permanent suppression of the facts surrounding Mr. Philip's criminal offending. Mr. Philip has pleaded guilty to multiple charges including sabotage, entering agricultural land with intent to commit an imprisonable offence, and failing to comply with computer search obligations. The Crown sought suppression under Section 205 of the Criminal Procedure Act 2011, arguing that publication would likely cause undue hardship to the victim, endanger the safety of the public, and prejudice the security of New Zealand.

The court evaluated the Crown's application through a two-stage process. Firstly, it had to determine if any of the threshold grounds for suppression were met. The court found that there was a real and appreciable possibility that publication could lead to copycat offending, which in turn would result in undue hardship to the victim, endanger public safety, and prejudice national security. The court accepted that the risks of such copycat offending were significant and warranted caution.

In the second stage, the court considered whether to exercise its discretion to make a suppression order. The Crown acknowledged the importance of open justice but argued that the risks of publication outweighed this principle given the potential consequences of copycat offending. The defence argued that the public interest in knowing the details of the offending warranted publication. The court concluded that partial publication, without disclosing the specific details of how the offending occurred, would balance the competing interests and mitigate the risk of copycat offending.

Ultimately, the court granted the Crown's application for permanent suppression in part, allowing publication of certain facts such as the nature of the sabotage, that one act caused a fire, and the estimated cost of repairs. However, specific details of the offending were to remain suppressed to prevent copycat offending. The court's ruling reflects a careful balancing of the need for open justice against the significant risks posed by potential copycat offending.

Orders