R v Y
[2023] NZHC 3332
•22 November 2023
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 if the court is satisfied that publication would be likely to—
…
(d) create a real risk of prejudice to a fair trial; or
…
(f) lead to the identification of another person whose name is suppressed by order or by law; or
…
[5]Section 202 relevantly provides:
202 Court may suppress identity of witnesses, victims, and connected persons
(1)A court that is hearing a proceeding in respect of an offence may make an order forbidding publication of the name, address, or occupation of any person who—
(a)is called as a witness; or
…
(c) is connected with the proceedings, or is connected with the person who is accused of, or convicted of, or acquitted of the 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 undue hardship to the witness, victim, or connected person; or
(b)create a real risk of prejudice to a fair trial; or
…
(d)lead to the identification of another person whose name is suppressed by order or by law; or
…
[6] The applicable principles were summarised by the Court of Appeal in its decision on interim name suppression in this case:7
[18] Consideration of name suppression always engages the principles of freedom of speech and of open justice — court proceedings must be open to the public and the media, which acts as a surrogate for the public in reporting such proceedings.8 Determining an application for name suppression under either ss 200 or 202 proceeds on the basis of a recognised two-stage analysis.9 The Court must first be satisfied that publication would be likely to lead to one of the threshold grounds. In D v Police, this Court said, in relation to the thresholds:10
[11] … The adjectives indicate that these are comparative standards. They require that the court compare the consequences of publication in the instant case with those that normally attend prosecution. Distress, embarrassment and adverse personal and financial consequences usually attend criminal proceedings, and something out of the ordinary is needed if the applicant is to get across the threshold. …
[19] In relation to the respective thresholds, “extreme hardship” for the purposes of s 200(2)(a) requires a very high level of hardship — outside the ordinary consequences usually associated with criminal proceedings. This requires a relative comparison between the contended hardship and the consequences normally associated with publication.11 The threshold of “undue hardship” in s 202(2)(a) requires something more than hardship — it requires hardship that is disproportionate, that is, greater than the circumstances warrant.12 The threshold of a real risk of prejudice to a fair trial, which is common to ss 200(2)(d) and 202(2)(b), requires a risk that is a “real and appreciable possibility”.13
7 R (CA654/2022) v R [2023] NZCA 125.
8 R v Liddell [1995] 1 NZLR 538 (CA) at 546.
9 D (CA443/2015) v Police [2015] NZCA 541, (2015) 27 CRNZ 614 at [10]-[12]; Robertson v
Police [2015] NZCA 7 at [39]-[41] citing Fagan v Serious Fraud Office [2013] NZCA 367 at [9]; Hawea-Edwards v R [2021] NZCA 52 at [36]; and Beacon Media Group Ltd v Waititi [2014] NZHC 281 at [5].
10 D (CA443/2015) v Police [2015] NZCA 541, (2015) 27 CRNZ 614. Footnote omitted.
11 Robertson v Police [2015] NZCA 7, at [48]-[49].
12 At [48]; and Beacon Media Group Ltd v Waititi [2014] NZHC 281 at [26].
13 D (CA443/2015) v Police [2015] NZCA 541, (2015) 27 CRNZ 614 at [30(a)].
[20] If the requisite threshold is met, the Court must then undertake a discretionary assessment of the competing interests of the applicant and the public interest in open justice. In determining whether the principle of open justice should yield, the balance must clearly favour suppression.14
[7] The provisions of s 200(2)(d) are broad enough to capture the risk of prejudice to a retrial. The lack of certainty that there will ever be a retrial is clearly a matter to be weighed, but in R (CA340/2015) v R the Court of Appeal said that factor is relevant at the second stage of the s 200 inquiry, if it is reached.15 The Court must consider whether the possibility of a retrial and the possibility of unfairness from publication outweigh the principles of open justice. Different considerations apply where name suppression is sought pending appeal.16 In R (CA340/2015) v R the Court of Appeal referred to its earlier decision in R v Burns:17
It is to be acknowledged at once that cases are rare indeed in which the Courts will decide that publication of information relating to the accused creates a substantial risk of prejudice at a second trial. A balancing exercise becomes inevitable, if only because the retrial is no more than a possibility. Once the jury has delivered its verdict and the prospect of a retrial is contingent on a successful appeal, the weight to be attributed to each of the competing values will differ. The courts then find it difficult to contemplate circumstances in which freedom of expression is outweighed, at least until it is clear that there will be a retrial. It is not until then that the presumption of innocence will again apply.
Court of Appeal’s interim suppression decision
[8] Pre-trial, the Court of Appeal made interim suppression orders in relation to Y and the three connected persons.
[9]In relation to Y, the Court of Appeal concluded:
[49] In summary, given the extent of prior reporting about the conviction, the similarities between the prior offending and the current alleged offending, and the proximity to trial we consider that there is a real and appreciable risk to [Y’s] fair trial rights that cannot be adequately mitigated. The threshold under s 200(2)(d) is satisfied.
[50] As to whether this is a proper case for the exercise of the discretion to suppress publication of [Y’s] name and identifying details, we accept that
14 Parker v R [2019] NZCA 350 at [8]; and D (CA443/2015) v Police [2015] NZCA 541,
(2015) 27 CRNZ 614, at [12].
15 R (CA340/2015) v R [2015] NZCA 287 at [17].
16 At [32].
17 R v Burns (Travis) [2002] 1 NZLR 387 (CA) at [16].
there is a strong and legitimate public interest in the prosecution as a result of the seriousness and nature of the alleged offending. However, as we have concluded, there is also an appreciable risk to [Y’s] fair trial rights that cannot be adequately mitigated. We are also mindful that the trial is only a few months off. This potentially increases the risks to the fairness of the trial but also means that suppression will only be required for a relatively short time (subject to any orders by the trial Judge). In all the circumstances we are satisfied that the principle of open justice should yield and the discretion to prohibit publication of [Y’s] name and identifying details should be exercised.
[10] In relation to name suppression of the three connected persons to avoid the identification of Y, the Court of Appeal concluded:
[59] We accept that it is very likely that Pushpay can be identified as the company whose shares are the subject of the charge against [Y]. We accept that if that fact were known, the Trust’s involvement would also be known. Given that the name of the Trust mirrors [S’s] name and that the Trustees were the owners of the shares at the relevant time, all three would, inevitably, be identified. At that point, it is a very short step to [Y] being identified. It will be obvious from our discussion regarding the suppression of [Ys] name that we have serious concerns about the risk to his fair trial rights from publication of his name. We are satisfied that publication of the names of [S] and/or the Trustees would be likely to lead to the identification of [Y]. The threshold for s 202(2)(d) is made out. For the same reasons as we gave for exercising the discretion in relation to [Y], we also consider it appropriate to make orders suppressing the names of the other appellants.
[11] In relation to name suppression of S on the ground of undue hardship, the Court of Appeal concluded:
[65] The lack of independent evidence ought not to have solely precluded a finding of undue hardship. We also observe that the conclusion regarding the Chan Zuckerberg Initiative was not based on evidence before the Court. Nevertheless, we agree with the Judge’s conclusion. The consequences of publication that [S] describes would only affect her indirectly and, in our view, cannot be said to be disproportionate to the usual consequences. Any direct consequences would be sustained by the [S] Foundation, which is not a connected person, and, in any event, there appears to be no real evidential basis for the concerns that [S] holds. Despite the difficulties in obtaining supporting evidence without attracting the very consequences that are feared, this is a case in which such evidence was needed.
[12] In relation to name suppression of the trustees on the ground of undue hardship, the Court of Appeal concluded:
[71] We take a different view from the Judge as to the likelihood of undue hardship. We have refrained from detailing the evidence because of the highly personal nature of it. However, the Judge made no mention of the evidence at all. Having considered the evidence we find that the likely effects of publication would meet the threshold of undue hardship both in respect of
their financial affairs and the personal situation of them and their families. It seems to us that the evidence discloses effects on these families that are well beyond discomfort. There can be no doubt that some members of the families are very vulnerable and likely to be seriously affected, beyond what could usually be expected, by the stress and anxiety that publication would cause. Such effects would be exacerbated by the potentially very adverse effect on the livelihoods of the Trustees.
[72] The threshold for suppression under s 202(2)(a) is made out in respect of [R] and [F] and, had it been necessary, we would have granted suppression on this ground.
[13]It is common ground that all these orders were interim in nature.
Y
[14] As indicated, Y seeks to continue interim name suppression pending his conviction appeal on the grounds that publication of his name would be likely to:
(a)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; or
(b)lead to the identification of the trustees, if their names are suppressed.
[15] Y relied on the affidavits already filed together with a further affidavit dated 14 August 2023 annexing a bundle of documents found by internet search.
[16] Mr Dickey, for the Crown, and Mr Stewart, for the media, both opposed continued name suppression for Y on either ground.
Real risk of prejudice to a fair retrial
[17] Mr Dixon KC, for Y, submitted that, in relation to a retrial, the Court of Appeal’s reasons remain applicable and binding subject to the issue of proximity. Mr Dixon acknowledged there is some prospect that the effect of reporting would dissipate, but he submitted it would not dissipate sufficiently given the importance of fair trial rights. He accepted that a retrial is a possibility, not a certainty, but submitted the likelihood is relevant at the second, discretionary stage. He submitted that the prospects of a successful appeal and retrial are reasonably arguable and better than in
R (CA340/2015) v R,18 where suppression was declined, and in R v P,19 where suppression was continued pending appeal.
[18] R (CA340/2015) v R concerned an appellant who had been granted name suppression until the end of trial to protect jurors from learning of his previous convictions but was then refused continued name suppression pending an appeal against his conviction. The Court of Appeal agreed with the Judge’s conclusion that he was not satisfied that publication was likely to cause a real risk of prejudice to a fair retrial. Although the Court did not accept that the detail reported would fade with time, it considered the risk could be adequately managed by strong jury directions.20 The Court also considered it unlikely that the earlier convictions could be kept from a future jury.21 In any event, the appellant failed at the second stage given the public interest in knowing his identity and his previous engagement with the criminal justice system, the likelihood of rumour and speculation, and the fact that his appeal may or may not be successful and there may or may not be a retrial.22
[19] In R v P, Edwards J continued suppression pending a signalled appeal against a decision admitting propensity evidence of previous convictions to protect potential jurors from learning of those convictions. Judicial directions were not considered sufficient to cure the risk of tainting.23 At the second stage, the Judge considered the prospect of a successful appeal on the admission of the propensity evidence to be low but acknowledged it was too early to make a clear assessment.24 She considered the balance favoured continued suppression pending appeal.25
[20] Here, I accept that two of the factors in the Court of Appeal’s pre-trial decision have ongoing application, namely the extent of prior reporting about the conviction and the similarities between the prior offending and the current alleged offending
18 R (CA340/2015) v R [2015] NZCA 287.
19 R v P [2022] NZHC 2655.
20 R (CA340/2015) v R [2015] NZCA 287 at [19]-[22].
21 At [25]-[30].
22 At [36].
23 R v P [2022] NZHC 2655 at [10].
24 At [15].
25 At [16]–-18].
(at least from a potential juror’s perspective – I accepted submissions on behalf of Y at sentencing that his prior conviction was for a less serious offence).26
[21] However, the third factor relevant in the Court of Appeal’s pre-trial decision, proximity to trial, no longer applies given the considerable delay before any retrial (leaving consideration of the likelihood of a retrial until the second stage, as indicated in R (CA340/2015) v R). The Court of Appeal expanded on proximity to trial (in the context of the discretion), saying the trial was only a few months off and that suppression would only be required for a relatively short time (subject to any orders by the trial Judge). The timing now is materially different. An appeal against conviction has now been filed immediately following sentencing on 3 November 2023 but an appeal will not be heard until next year. Any retrial will be in 2025 at least. That increases the prospect that the risk could be adequately managed by strong jury directions. It may also raise the possibility, as Mr Dickey submitted, of screening potential jurors.
[22] In these different circumstances, I am not satisfied there is a real and appreciable risk to Y’s fair trial rights that cannot be adequately mitigated.
[23] Even if this threshold were reached, at the discretionary stage I consider the relevant factors do not weigh in favour of suppression. Following Y’s conviction there is a strong public interest in knowing his identity / open justice, and the presumption of innocence does not apply (unless and until his appeal is successful). While accepting Y’s insider conduct was not as serious as the Crown alleged, the importance of deterrence was addressed at sentencing.27 So too was Y’s previous conviction for a less serious offence as indicated. His conviction appeal may or may not succeed and there may or may not be a retrial. Any retrial would be in 2025 at least. I acknowledge the competing factors: that continued suppression would only be pending appeal, and if a retrial were ordered the risk to Y’s fair trial rights might not be adequately mitigated by judicial directions. However, I consider these factors are outweighed by those weighing against continued suppression.
26 R v Y [2023] NZHC 3101 at [44]-[47].
27 At [29]-[32] and [41].
Real risk of identifying the trustees
[24] Turning to the second ground, Mr Dixon submitted that, if the trustees’ names are suppressed, naming Y and S would lead to the identification of the trustees, thus warranting suppression of the identity of Y and S. Mr Dixon submitted that content suppression would be inadequate because of publication outside the mainstream media (on social media and blogs).
[25] Assuming for the purposes of this alternative ground that the trustees’ names are suppressed, I am not satisfied this ground under s 200(2)(f) is made out. The Court of Appeal’s assessment that naming the connected persons would lead to identification of Y does not necessarily apply in reverse. While Pushpay is identified as the relevant share issuer, I consider that naming Y or S would not likely lead to the identification of the trustees provided the trustees’ name suppression were bolstered by workable (content) suppression of the connections. Accepting there is limited control over publication outside the mainstream media, no breach of interim name suppression has been raised in the context of publications relating to the trial or sentencing. As Mr Pilditch KC (for the trustees) accepted, the purpose of suppression orders is non-publication rather than secrecy. The proper approach to publication of identifying particulars does not assume knowledge of other matters that might be ascertained by independent industrious inquiry. I consider that, post-trial and sentencing, Mr Pilditch’s variation of the Crown’s practical solution (proposed to the Court of Appeal) sufficiently protects the trustees. This workable variation comprises a non-publication order relating to:
(a)the names, addresses or occupations (or any other identifying particulars) of the trustees;
(b)the name and nature of the Trust;
(c)the nature of the association(s) between the trustees and the Trust and its beneficiaries;
(d)the names, addresses or occupations of the beneficiaries (including S); and
(e)the specific dates and volumes of the trustees’ Pushpay share trades.
[26] Consistent with this, suppression of Y’s sentencing has been extended to such content.
[27] Even if the threshold under s 200(2)(f) (real risk of identifying the trustees) were satisfied, at the discretionary stage I consider the relevant factors would not weigh in favour of suppression of Y’s name, and especially not in favour of permanent name suppression to reflect that sought by the trustees.
S
[28] The Court of Appeal declined S’s appeal in relation to undue hardship but suppressed her name on the basis that publication of her name would be likely to lead to the identification of Y. That ground falls away given my conclusions in relation to Y’s application.
[29] However, I accept that publication of S’s name would be likely to lead to the identification of the trustees. For the reasons given in relation to Y’s alternative ground, Mr Pilditch’s variation of the Crown’s practical solution, which includes non- publication of S’s name and details of the Trust, sufficiently protects the trustees post-trial.
The trustees
[30] As indicated, the trustees seek permanent name suppression on the grounds that publication of their name would be likely to:
(a)cause undue hardship; or
(b)lead to the identification of Y and S, if their names are suppressed.
Undue hardship
[31] Mr Pilditch relied on the Court of Appeal’s pre-trial findings, noting that the Court of Appeal was deliberately circumspect in summarising the grounds. He provided one further affidavit that was filed in the Court of Appeal.
[32] The Crown and the media did not oppose continued suppression for the trustees but proposed a content suppression order that would not prevent publication of Y’s name.
[33] The findings of the Court of Appeal in relation to the likelihood of undue hardship for R and F remain applicable. Their position has not changed, as Mr Dickey acknowledged. I conclude the threshold is reached for those reasons.
[34] Turning to the second stage, there are two potential, inter-related changes to the balancing exercise since the Court of Appeal’s pre-trial decision. First, Y has been convicted and continued suppression of the trustees’ names needs to be considered in the context of its effect on suppression of Y’s name. This gives rise to the Crown’s proposal for content suppression, supported by the media. Secondly, the trustees seek permanent name suppression. They seek to avoid having to follow the course of Y’s conviction appeal with their name suppression dependent on his.
[35] Insofar as the trustees’ name suppression has no effect on Y’s name suppression, I consider the balance clearly favours suppression. There is no suggestion the trustees were implicated in the offending. A countervailing public interest / open justice consideration would only arise if suppressing the trustees’ names meant that Y’s name had to be suppressed even though his own application had failed. That prospect does not arise given my earlier conclusion that the proposed content suppression sufficiently protects the trustees’ identities.
Real risk of identifying Y or S
[36] This alternative ground does not arise given my earlier conclusions. If it had arisen, it could only have led to continued suppression of the trustees’ names on an interim basis pending Y’s appeal.
Result
[37] Y’s application for continued name suppression pending his conviction appeal is dismissed. However, I make an interim order under s 286 pending appeal against this decision as sought.
[38] The connected persons’ applications for name suppression are granted. I make a permanent non-publication order relating to:
(a)the names, addresses or occupations (or any other identifying particulars) of R and F (trustees);
(b)the name and nature of the F B Y Family Trust (Trust);
(c)the nature of the association(s) between the trustees and the Trust and its beneficiaries;
(d)the names, addresses or occupations of the beneficiaries (including S); and
(e)the specific dates and volumes of the trustees’ Pushpay share trades.
Gault J
Solicitors / Counsel:
Mr B H Dickey, Barrister, Auckland
Mr A D Luck, Meredith Connell, Office of the Crown Solicitor, Auckland Ms C F Brooke, Financial Markets Authority, Auckland
Mr JCL Dixon KC and Ms HMZ Lanham, Barristers, Auckland
Mr S Holden, Mr H Smith and Ms S Patel (defendant’s instructing solicitors), Chapman Tripp, Auckland
Mr A F Pilditch KC, Barrister, Auckland Mr J J Gosha, Wilson Harle, Auckland Mr RKP Stewart, Barrister, Auckland
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