R v Police
[2014] NZHC 2178
•9 September 2014
ORDER PROHIBITING PUBLICATION OF NAME, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS OF APPELLANT PURSUANT TO S 200 CRIMINAL PROCEDURE ACT 2011.
IN THE HIGH COURT OF NEW ZEALAND BLENHEIM REGISTRY
CRI-2014-406-000014
CRI-2014-496-000015 [2014] NZHC 2178
R
v
NEW ZEALAND POLICE
Hearing: 9 September 2014 Counsel:
L A Murdoch for Appellant
S K O'Donoghue for RespondentJudgment:
9 September 2014
JUDGMENT OF WILLIAMS J
Introduction
[1] The appellant, R, faces one charge of being found in a public place preparing to commit an imprisonable offence,1 one charge of possession of an offensive weapon,2 and one charge of using a telephone for a fictitious purpose.3 R appeals
against the decision of Judge Mill to refuse bail and name suppression.
1 Summary Offences Act 1981, s 28(1). The maximum penalty for this charge is a $2,000 fine.
2 Crimes Act 1961, s 202A(4)(a). The maximum penalty for this charge is three years’
imprisonment.
3 Telecommunications Act 2001, s 112(2)(b). The maximum penalty for this charge is three
months’ imprisonment or a $2,000 fine.
R v NEW ZEALAND POLICE [2014] NZHC 2178 [9 September 2014]
Relevant facts
[2] The first two charges arise out of an incident on the evening of 17 August
2014. The appellant was observed carrying a hunting crossbow near a paddock containing sheep. The observer told him to leave and he complied. When spoken to by police, the appellant admitted that he went to the paddock with the intention of stealing a sheep. According to the summary of facts the appellant cooperated fully with police and was very remorseful for his actions. The appellant received bail and was released.
[3] The events giving rise to the third charge occurred on the morning of
2 September 2014, 24 hours after a fatal shooting incident at the Ashburton offices of Work and Income New Zealand (WINZ). The appellant rang the Collections Department of the Ministry of Justice to discuss repayments of unpaid fines. He had previously planned to use his Work and Income benefit to pay his outstanding fines. Following a short exchange, the appellant told the telephone operator that he did not meet the requirements for a benefit. The appellant then said:
I think I need to go in there with a shotgun and shoot somebody before I get a benefit from those fellas.
[4] The telephone operator replied that the appellant’s comment was “inappropriate” before terminating the conversation. In response to the appellant’s comment, the Blenheim office of WINZ, the office of Child, Youth and Family, Probation Services and Maata Waaka were closed down for approximately four hours. The appellant was arrested at his house without incident by members of the Armed Offenders Squad.
[5] A recording of the phone call is available to the Court. My impression is that the comment was made in a conversational non-threatening tone. It was followed by a brief laugh that I would describe as nervous. In response to the telephone operator’s stern reply, the appellant murmurs uncertainly “uh … I … did … um …”. In an affidavit provided to the Court, the appellant says the comment was a “misplaced attempt at humour” that he immediately regretted. He wishes to apologise to the telephone operator and can see how his comment was upsetting.
[6] According to the affidavit of Mrs R, the appellant’s wife, the appellant was “not angry or irate” on the phone nor was he angry after the phone call was terminated. That is consistent with my impression of the conversation. According to Mrs R, the appellant made a second call to the Department of Corrections soon after the first call to discuss further the issue of his outstanding fines.
Personal circumstances
[7] The appellant has four young children who attend school and early childhood education locally. His wife is unable to find work and the family is in a difficult financial position, with very little surplus income. The appellant has considerable experience as a skilled labourer, but is currently unemployed. According to the appellant’s affidavit, he has ambitions to start a business and has had several positive business meetings with local companies.
[8] The appellant has a number of previous convictions dating back to 1993, which he attributes to alcohol abuse. The convictions include:
(a) contravening a protection order and injuring with intent to injure
(2009);
(b) contravening a protection order (2004);
(c) common assault, aggravated robbery (stab/cut weapon) (1996); (d) common assault and threatened persons (1995); and
(e) assault with intent to injure (1994).
[9] According to police there have been 17 family violence incidents recorded between the appellant and his wife since 2000. Between 10 August 2014 and
15 August 2014, the police issued a Police Safety Order following a domestic argument between the pair.
[10] In addition, the appellant has convictions for breaching sentences of the
Court between 1996 and 2012 and one conviction for breaching police bail (in
2000).
[11] Significantly however, only two of the appellants’ convictions (driving while disqualified and intentional damage) relate to offending that took place following the appellant’s move to the South Island in 2012. The appellant says that this move was a fresh start and that he has not consumed drugs or alcohol since he became a Christian two years ago. The appellant and his wife have been experiencing relationship difficulties but wish to reconcile. They have been attending counselling together.
[12] The appellants’ account of his efforts to turn his life around is corroborated by evidence from his wife, a member of the church community and his counsellor. The affidavit of Mrs R states:
3. Since we moved down South, [R] has been sober and a different man
… Out church has played a big part in that …
…
4.[R] has allowed God into his dark life to better himself as a husband, a father and a member of society and also for himself. He is walking a good path and continues to try to be a better person.
…
6.[R] is a committed husband and father and we love him dearly. The changes that he has made are amazing and have been to show that he is willing to be that better person.
…
8.… Beneath what people may see of [R] and some of his actions he is a loving, humbled man, who is trying to hard each day to change.
[13] In a letter dated 2 September 2014, a member of the church community writes:
I have known [R] since May 2012 when he and his family became active members of our church.
In the last two years [R] has gone through many changes as he has been seeking to break free from the negative patterns and experiences of the past…
[R] has been having some struggles but there is a strong support system around himself and his family to help him as he continues to go through changes…
I do not have enough information to comment on the threat made this morning, but I am strongly of the opinion that it was a burst of frustration with no intention whatsoever to carry it further.
It is my personal opinion and belief that I have known [R] long enough, and observed him closely enough, to acknowledge that whilst every decision has not been wise (specifically the incident this morning), it is clear that [R]’s desire and motivation to change is genuine.
[14] In a letter dated 3 September 2014, the appellant’s counsellor confirms that the appellant has been attending counselling sessions.
[15] Also of relevance is a probation report dated 3 September 2014, which states that the appellant did not breach his last two sentences of community work and is “always helpful and reliable on the work party”.
The standard on appeal
[16] The appeal standard articulated in May v May applies to both the appeal against refusal to grant name suppression and the refusal to grant bail.4 The appellant will only succeed if the District Court Judge made an error of principle, failed to consider all relevant matters, took into account irrelevant matters, or came to a conclusion that was plainly wrong.5
Bail
[17] The appellant is charged with an offence punishable by imprisonment and has previously been convicted of an offence punishable by imprisonment. Accordingly,
he is not bailable as of right.6 He must be released by a Court on reasonable terms
4 May v May (1982) 1 NZFLR 165 (CA).
5 In relation to name suppression, see Rowley and Skinner v Commissioner of Inland Revenue
[2011] NZSC 76 at [4]–[5]. In relation to bail see s 44(1) of the Bail Act 2000.
6 Bail Act 2000, s 7(4).
and conditions unless the Court is satisfied that there is a just cause for continued detention.7
[18] Section 8 of the Bail Act 2000 provides:
8 Consideration of just cause for continued detention
(1) In considering whether there is just cause for continued detention, the court must take into account—
(a) whether there is a risk that—
(i) the defendant may fail to appear in court on the date to which the defendant has been remanded; or
(ii) the defendant may interfere with witnesses or evidence; or
(iii) the defendant may offend while on bail; and
(b) any matter that would make it unjust to detain the defendant. (2) In considering whether there is just cause for continued detention
under subsection (1), the court may take into account the following:
(a) the nature of the offence with which the defendant is charged, and whether it is a grave or less serious one of its kind:
(b) the strength of the evidence and the probability of conviction or otherwise:
(c) the seriousness of the punishment to which the defendant is liable, and the severity of the punishment that is likely to be imposed:
(d) the character and past conduct or behaviour, in particular proven criminal behaviour, of the defendant:
(e) whether the defendant has a history of offending while on bail, or breaching court orders, including orders imposing bail conditions:
(f) the likely length of time before the matter comes to hearing or trial:
(g) the possibility of prejudice to the defence in the preparation of the defence if the defendant is remanded in custody:
(h) any other special matter that is relevant in the particular circumstances.
7 Section 7(5).
[19] The police did not oppose bail and sought only a condition preventing the appellant from visiting the local Work and Income office.
[20] The Judge noted that the appellant had recently been found in public in possession of an offensive weapon and that he must have known the effect of his comments. His Honour concluded that:
… there is a risk to the public from this man, and his comments of yesterday
make that quite clear.
[21] Significantly, the audio recording of the telephone conversation was not available to the Judge at the time of the decision.
[22] Ms Murdoch, on behalf of the appellant, makes four submissions in relation to the bail appeal. First, she submits that the Judge failed to consider whether bail conditions could be imposed to mitigate any risk to the public posed by the appellant. In particular, she submits that a police curfew may have been appropriate. Second, she submits that the Judge placed insufficient weight on favourable character references provided by Mr Morris and Mr Crawford and the written update from Community Probation.
[23] Third, Ms Murdoch submits that the Judge placed insufficient weight on the impact of detention on the appellant’s family and employment situation. Finally, she submits that the Judge placed insufficient weight on the fact that the words were directed at a Ministry of Justice employee, rather than a WINZ employee and failed to take into account the risk assessment made by the police, which resulted in the appellant being charged with the relatively minor offence of misuse of a telephone.
[24] Ms O’Donoghue, for the respondent, submits there is a risk that the appellant will re-offend on bail and that he poses a risk to community. The respondent relies on the defendant’s previous offending and bail history and his uncertain current personal circumstances. The respondent submits that the appellants’ history of breaching sentences and orders of the Court and of offending on bail indicate that even restrictive bail conditions would not adequately deal with the risk posed by the appellant.
[25] In my view, this man should have been bailed. The police had full knowledge of this man and his background, and of the alleged offending. They did not oppose the grant of bail. In the last two years he has struggled to turn his life around. He was alcohol and drug-free – key elements in his past criminal history – and he was an active member of a supportive church community. It is true that Ms O’Donoghue, rightly, points to there having been five domestic incidents at the address over that turnaround period: four being domestic rows and one in relation to R’s suspected assault of his son. These were however, very minor matters given the history of this man. No charges were laid. Ms Murdoch is right when she says that if there was anything significant in any of these events, the police would not have hesitated to take the matter further.
[26] The offence for which the appellant is charged is, when viewed objectively, minor. That is especially so of the offence that is subject of this appeal – misuse of a telephone. Despite what was said on the phone to the person at the Ministry of Justice call centre, there is no allegation of threatening to kill or harm. Nor is there any real history of breach of bail or community sentences, at least not recently, and no evidence at all that R is likely to offend while on bail.
[27] The long and short of it is that his comments were very dumb, even breathtakingly dumb, given the tragedy that had unfolded only a day earlier in Ashburton. But no-one, least of all the police, thought he actually meant to go to WINZ with a shotgun. Rather, he was a frustrated man who could not obtain a benefit, could not therefore repay his fines because he had no income and thought he would make a witty comment. The comment was far from witty. It was thoughtless at the very least.
[28] I am satisfied that there is no proper basis to deny him bail. Relevant conditions will be that he:
(a) reside at his residential address;
(b) consume no illegal drugs or alcohol; and
(c) not visit any office of WINZ.
Name suppression
[29] The starting point is the presumption of openness.8 In R v Liddell Cooke P
said:9
... 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.
[30] The commonly expressed reasons for this approach are that:10
(a) publication of the defendant’s name avoids the possibility of suspicion
falling on others;
(b)publicity may in itself lead to the discovery of additional evidence in relation to the offence;
(c) publication may help prevent further offending; (d) publication promotes personal deterrence;
(e) publication enables those who are clients or patients or who may otherwise have contact with the accused to decide for themselves whether they do so; and
(f) where there is a significant risk of other undetected offending, publicity may encourage those victims to come forward thus enabling further charges to be laid and the victims of those offences to receive
help.
8 See Proctor v R [1997] 1 NZLR 295 (CA); Lewis v Wilson & Horton [2000] 3 NZLR 546 (CA);
Re Victim X [2003] 3 NZLR 220 (CA).
9 R v Liddell [1995] 1 NZLR 538 (CA) at 546.
10 Bruce Robertson (ed) Adams on Criminal Law (online looseleaf ed, Brookers) at [CPA200.01].
[31] The presumption of openness can be displaced where the appellant can satisfy the Court that publication would be likely to cause extreme hardship to the defendant or to a person connected to the defendant.11
[32] The commentary on Adams describes extreme hardship in the following terms:12
Publication of a defendant’s identity often occasions hardship. A very high level of hardship to the defendant needs to exist, however, before the threshold of “extreme hardship” can be established. This has been described as something plainly out of the ordinary. It must be significantly greater than the “undue hardship” required under paragraphs (b) and (c).
…
Decisions on whether the very stringent standard of extreme hardship is met will depend on an objective assessment of the circumstances of the offence (including its seriousness) and of the defendant in each case. In determining whether or not the threshold is reached, it may be helpful to consider whether the hardship to the defendant arising from publication would be out of all proportion to the public interest in the application of the open justice principle.
[33] Turning to the District Court decision, the Judge said only:
As far as suppression is concerned, even on the information given to me at this point there are insufficient grounds for suppression of his name and I decline that application.
[34] Ms Murdoch submits that publication of the appellant’s name will negatively affect his attempt to start a new business and his family situation. She submits that the Judge should have granted an interim suppression order to allow the appellant and his wife to produce evidence in support of the application. She argues that the Judge erred in taking into account the public interest relating to the fatal shooting in Ashburton.
[35] Ms O’Donoghue, for the respondent, submits that the hardship referred to by
the appellant is not “plainly out of the ordinary” and would be faced by most
offenders in a similar situation. The respondent submits that the appellant poses a
11 Criminal Procedure Act 2011, s 200(2)(a).
12 Adams on Criminal Law, above no 10, [CPA200.02(1)].
risk to the public because of his history of violent offending and contempt of Court orders and any potential business partners should be aware of his identity.
[36] It is in my view too early to tell whether the statutory threshold of extreme hardship will be met. The claim that R is trying to build a business will need to be properly assessed, as will the potential impact on his efforts of publication of his name. It may be the case that any damage that may accrue should rightly accrue given the stupidity of his comments. Or it may be that the impact will be extreme and disproportionate in the context of a man who has in large part succeeded in turning his life around to a model more positive and constructive than before. Relevant also will be the level of his culpability and association with phone offence. These are matters that will be before the District Court Judge and it is far better that he or she weigh the competing factors in determining whether there will be extreme hardship.
[37] I am prepared then to grant interim name suppression pending the outcome of sentencing and the consideration of a fresh application for suppression at that point.
[38] The appeal is allowed to the extent discussed.
Williams J
Solicitors:
Gascoigne Wicks, Blenheim
Crown Solicitors, Nelson
3
2
0