R v Y - [2023] NZHC 3332

INTERIM ORDER SUPPRESSING NAME AND IDENTIFYING PARTICULARS OF THE DEFENDANT UNDER S 286 OF THE CRIMINAL PROCEEDURE ACT 2011

ORDER SUPPRESSING NAME AND IDENTIFYING PARTICULARS OF CONNECTED PERSONS, R, F AND S, AND THE OTHER DETAILS SET OUT IN PARA [38].

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2022-004-645

[2023] NZHC 3332

THE KING

v

Y

Hearing: 31 August 2023

Appearances:

B H Dickey for the Crown

JCL Dixon KC and HMZ Lanham for the Defendant A F Pilditch KC and J J Gosha for interested parties RKP Stewart for NZME and Radio New Zealand

Judgment:

22 November 2023

JUDGMENT OF GAULT J

(Name suppression applications)

This judgment was delivered by me on 22 November 20023 at 4:00 pm.
Registrar/Deputy Registrar
……………………………………

R v Y [2023] NZHC 3332 [22 November 2023]

[1] Y and three connected persons seek continued name suppression following Y’s jury trial in which the jury found him guilty of one charge of insider conduct on 23 August 2023.1 In particular:

(a)Y seeks to continue interim name suppression pending his conviction appeal on the grounds that publication of his name would be likely to:

(i)create a real risk of prejudice to a fair retrial because of the risk of potential jurors either recalling or learning about his 2011 conviction under the Securities Act 1978;2 or

(ii)lead to the identification of R and F (trustees of the F B Y Family Trust (Trust)), if the trustees’ names are suppressed.3

(b)Y’s sister, S, seeks ongoing name suppression on the ground that publication of her name would be likely to lead to the identification of Y and the trustees, if their names are suppressed.4

(c)The trustees seek permanent name suppression on the grounds that publication of their names would be likely to:

(i)cause undue hardship;5 or

(ii)lead to the identification of Y and S, if their names are suppressed.6

Factual background

[2] The Crown case at trial was that, on 3 May 2018, when Y knew he had inside information regarding a then-listed issuer, Pushpay Holdings Limited (Pushpay), Y advised or encouraged the trustees of the Trust and/or S to sell at least [REDACTED]

1      Financial Markets Conduct Act 2013, ss 240, 243-244,
2      Criminal Procedure Act 2011, s 200(2)(d).
3      Section 200(2)(f).
4      Section 202(2)(d).
5      Section 202(2)(a).
6      Section 202(2)(d).

million of the Trust’s Pushpay shares. The Crown said the inside information was that Mr Eliot Crowther, co-founder and director of Pushpay, intended to resign from his roles at Pushpay and would in that event sell Pushpay shares.

Applicable statutory framework and principles

[3]There is no dispute as to the applicable statutory provisions and principles.

[4]Section 200 of the CPA relevantly 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…

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 Y

Details

AGLC: R v Y [2023] NZHC 3332
Case: [2023] NZHC 3332
Decision Date: 22 November 2023

CaseChat Overview and Summary

In this case, the defendant Y, along with three connected individuals, sought continued name suppression following Y's conviction by a jury on charges of insider conduct. Y's application for name suppression was based on the grounds that the publication of his name would likely prejudice a fair retrial due to potential jurors recalling his prior 2011 conviction or lead to the identification of the trustees of the F B Y Family Trust, if their names were suppressed. The connected individuals also sought name suppression, with the trustees arguing for permanent suppression due to the likely undue hardship and risk of identification of Y and S if their names were published. The court was required to determine whether the applicants met the statutory thresholds for suppression and whether, if met, the discretion should be exercised in their favour.

The court began by examining the statutory framework, which required the applicants to demonstrate that publication would likely lead to one of the threshold grounds outlined in the Criminal Procedure Act 2011. The court considered whether the risks to Y's fair trial rights were significant enough to warrant continued suppression pending his appeal, and whether the trustees' suppression would prevent the identification of Y and S. The court acknowledged the importance of the principle of open justice and weighed this against the applicants' interests. In its analysis, the court noted that while there was a risk to Y's fair trial rights, the likelihood of a retrial was uncertain, and the risk could potentially be mitigated by strong jury directions. Furthermore, the court found that the proposed content suppression order provided sufficient protection to the trustees' identities, obviating the need for permanent name suppression. Consequently, the court dismissed Y's application for continued name suppression but granted the applications of the connected persons for a permanent non-publication order. The order specified the details to be suppressed to protect the trustees' identities, including their names, the nature of the trust, and specific trade details.

Orders