R v Philip
[2022] NZHC 3197
•1 December 2022
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.
Media
[8] Mr Bathgate for Stuff submitted that the media should be provided with a copy of the summary of facts and be able to publish that it was Transpower infrastructure that was targeted, and the value of the damage caused. Mr Bathgate submitted that there was significant interest in the offending, and it was important not to create an opportunity for misinformation as to what had happened. That risk is increased if no details are published. Stuff will abide the Court’s decision.
Analysis
[9] When considering making an order under s 205 of the CPA, courts follow a two-stage test:7
(a)First, a court must determine whether any of the threshold grounds listed in s 205(2) have been established. “Likely” means a real and
7 Robertson v Police [2015] NZCA 7 at [39]–[41].
appreciable possibility.8 Only if one of the threshold grounds has been established can the court progress to stage two.
(b)Second, if the threshold is established, then the court must consider whether to exercise its discretion to make a suppression order. That involves weighing the competing interests of the applicant and the public.
[10]I consider the first stage for each of the grounds on which the Crown rely.
Stage one – threshold
[11] Undue hardship has been interpreted to mean something more than ordinary and more than the hardship normally the consequence of publicity surrounding a criminal proceeding and publication of facts or evidence.9 However, it is a different and lower standard than extreme hardship.10
[12] Mr Twigg has set out the potential consequences [redacted] if there is copycat offending. [Redacted].
[13][Redacted].
[14] The Crown submits that the offending has exposed [redacted]. If similar offending were to occur, potentially many others would experience significant hardship.
[15] I accept the risks to the safety of the public and the [redacted] if copycat offending occurred. I must determine whether publication will likely cause copycat offending which in turn would result in potential safety and [redacted] security issues.
[16]The summary of facts record that [redacted].
8 D v New Zealand Police [2015] NZCA 541 at [30(a)]; and Stuff Ltd v R [2021] NZCA 86 at [17].
9 R v Tully [2016] NZHC 621 at [10], citing R v Joshi [2015] NZHC 2523 at [7].
10 R v Tully [2016] NZHC 621 at [10], citing Robertson v Police [2015] NZCA 7 at [48] referring to R v N [2012] NZHC 2042 at [21]; Rougeux v Police [2014] NZHC 979 at [20]; and Jung v Police [2014] NZHC 949 at [17].
[17] The Crown acknowledges that while some people may have seen Mr Philip’s posts, that is significantly different to widespread media coverage in the mainstream media of the details of how Mr Philip caused the damage. The Crown also submitted that the information Mr Philip posted was broad and included infrastructure of different types and locations so that it did not contain the details of his actual offending.
[18] I accept that publication will significantly increase the number of people who will become aware of the details of how the damage was caused and where. It will also disclose the [redacted].
[19] The Crown acknowledges that it is difficult to quantify the risk of copycat offending but that because of the potential consequences, the Court must proceed cautiously before dismissing the risk.
[20] I accept the need for caution. I also accept that there is a real risk and appreciable possibility of copycat offending that cannot readily be discounted. That would then lead to undue hardship to Transpower and potentially endanger the safety of numerous persons and prejudice the security of the [redacted] and therefore the security of New Zealand.
[21] The Crown submits that overall there is sufficient factual foundation for the Court to conclude that the stage one threshold has been met. I agree. Accordingly I move to the stage two analysis.
Stage two – discretion
[22] At stage two the Court must balance competing interests. Principles of open justice and open reporting are clearly important in the context of suppression applications. However, on occasion other interests outweigh these and justify suppression.
[23] The Crown acknowledges the presumption of open justice and the consequent high threshold for, and limited nature of, ordering suppression. The Crown acknowledge the significant media attention but say this is only one factor to be
weighed in the mix. The Crown submit that although open justice is important, the risks of publication are too grave to tip the balance in favour of publication.
[24] There are real and appreciable risks posed to both Transpower and the wider public should there be copycat offending. The Court takes threats to safety seriously. However, the Court is also conscious of the important principle of open justice.
[25] Balanced against the desire to prevent future harm is the desire for accurate reporting which promotes public trust in the justice system. In the PAC report provided for sentencing Mr Philip stated, “police fabricated evidence against me.” The PAC report also refers to Mr Philip as what would colloquially be known as a conspiracy theorist and says that he demonstrates “significant cognitive distortion.” He is known for his strong views; he was firmly against the COVID vaccine mandate and strongly against the government at the time. He has a strained relationship with one of his children because of his views. Although he states he will not reoffend, he makes no claim of toning down his beliefs.
[26] Mr Philip has received support from others who see his arrest as unjustified. There is a need in this case to communicate to the public accurately what occurred (without creating any risk of copycat offending). There is a risk that if no publication was permitted that this would allow for speculation as to what occurred, add credence to Mr Philip’s belief that the police had fabricated evidence against him, and otherwise contribute to theories that what had occurred involved no wrong done by Mr Philip. It is important that room for unjustified speculation as to the reason for Mr Philip’s sentence is restricted.
[27] In R v Dubé,11 the exact details of Mr Dubé’s offending were suppressed during his trial but it is public knowledge that the offending involved Mr Dubé flying over Hydro-Québec power transmission lines in a small plane. He was motivated by revenge and intended to cause some sort of disruption.
11 R v Dubé 2018 QCCQ 9059.
[28] I consider that partial publication without disclosing the details of precisely how the offending occurred would meet the competing interests and mitigate the risk of copycat offending.
Result
[29] For the reasons set out above, I granted the Crown’s application for permanent suppression in part on the following terms:
(a)Publication of the facts of Mr Philip’s offending is limited to the following facts:
(i)That Mr Philip sabotaged infrastructure belonging to Transpower;
(ii)One act of sabotage caused a fire; and
(iii)The total cost to repair the damage and ensure the safety of the infrastructure is likely to exceed $1.25 million.
(b)Subject to authorised publication as specified at [29(a)] above, publication of the facts of Mr Philip’s offending is otherwise forbidden.
Tahana J