R v Y HC Auckland Cri-2008-004-17744
[2010] NZHC 1122
•21 June 2010
This case has been anonymized
SUPPRESSION ORDERS EXIST IN RELATION TO ASPECTS OF THIS JUDGMENT: SEE PARAGRAPH [15]
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2008-004-017744
THE QUEEN
v
Y
Hearing: 8 June 2010
Appearances: M R Heron for the Crown
P E Dacre for the Accused
Judgment: 21 June 2010
JUDGMENT OF DUFFY J
[Re Application for Permanent Name Suppression]
This judgment was delivered by Justice Duffy on 21 June 2010 at 11.00 am, pursuant to
r 11.5 of the High Court Rules
Registrar/Deputy Registrar
Date:
Counsel: P E Dacre P O Box 47963 Ponsonby Auckland 1144 for the Applicant
Solicitors: Russell McVeagh P O Box 8 Auckland 1140 for the Crown
Copy To: Serious Fraud Office (H C Walker) P O Box 7124 Wellesley Street
Auckland 1141
R V Y HC AK CRI-2008-004-017744 21 June 2010
[1] Y was charged with one representative count under s 105(2) of the Crimes Act 1961 of corruption and bribery of a public official. On 26 February 2010 she was discharged on this count pursuant to s 347 of the Crimes Act. Throughout the time she was facing trial she had the benefit of temporary name suppression. Having been discharged, she now applies for permanent name suppression. The Crown opposes Ms Y ’s application. The sole issue for consideration is whether or not a permanent name suppression order should be made.
[2] The Court of Appeal in Leary v R [2010] NZCA 195 recently reaffirmed the statement of principle in Lewis v Wilson & Horton [2000] 3 NZLR 546 (CA) at 55 that the making of a suppression order engages the court in the exercise of a discretion that is “unfettered by any legislative prescription”. The starting point in this exercise is the weight given to the principle of open justice. The paramount nature of this principle is founded in the well established principles of freedom of speech, now found in s 14 of the New Zealand Bill of Rights Act 1990, and open judicial proceedings, which includes the right of the media to report court proceedings. From this point the court identifies and weighs the relevant considerations that pertain to the case before it. In doing so the court must consider whether those circumstances favouring name suppression are a justifiable limitation on the right protected by s 14 of the New Zealand Bill of Rights Act. As was noted in Wilson & Horton at [43]: “… the balance must come down clearly in favour of suppression if the prima facie presumption in favour of open reporting is to be overcome”.
[3] The relevant considerations Ms Y relies on as favouring permanent name suppression are:
a) She has had the benefit of temporary name suppression, so her identity and the fact she has faced criminal charges is not publicly known. Therefore, a permanent suppression order would still be of practical effect;
b)She is the sole director and shareholder of an immigration consultancy business called Sea Consultants and Investments Ltd
(Sea Consultants). In this role she engages with the New Zealand Immigration Service, and with foreign persons who are seeking immigration approvals to visit, work and reside in this country. Ms Y is concerned that if it becomes publicly known that she was facing charges of corruption and bribery of a public official, it will be damaging to Sea Consultants and, therefore, to her. There was no evidence that she obtained income from any source other than her employment with Sea Consultants;
c) She intends to transfer her interests in Sea Consultants to her son, and for this reason she wants to avoid any adverse publicity for the company;
d)She has not informed her son, who is currently attending university as a law student, of the charge she faced, and now that she has been discharged she would rather he did not find out about the charge;
e) She was discharged without conviction;
f) The prosecution case against her was weak. The only evidence to implicate her was that of a prosecution witness whose evidence was found to be so inconsistent and contradictory that any verdict on the strength of such evidence would have been unsafe; and
g) Why should her reputation be blighted as a result of the unreliable allegations of a prosecution witness (who is herself now serving a sentence of imprisonment)?
[4] The Crown relies on the following considerations to support the refusal of permanent name suppression:
a) The principle of open justice should prevail;
b)There is nothing unique about Ms Y ’s case that would distinguish it from other cases where name suppression has been refused;
c) The seriousness and nature of the charge Ms Y faced;
d)The Court of Appeal in Leary has recently made it clear that those who have been discharged without conviction do not constitute a special category for which name suppression is more supportable;
e) The public are entitled to know with whom they are dealing, including whether someone has faced a criminal charge;
f) The general public interest in knowing about acquittals and discharges, and the risk of undermining public confidence in the court system if secrecy surrounds those who are acquitted or discharged; and
g) Personal embarrassment, privacy considerations, or the fact the person has been acquitted or discharged are not sufficient grounds to support name suppression: see R v Dare CA 195/98, 25 June 1998.
[5] For reasons which I set out below, I find that the considerations against permanent name suppression outweigh those favouring name suppression. Since the balance must clearly come down in favour against name suppression, it follows that the application is refused.
[6] The earlier grant of temporary name suppression carries no weight. It seems that the temporary name suppression order was made without full argument being heard. I was advised that it was made at an early stage of the criminal process, and the Crown decided that it would not oppose the order continuing until the outcome of the trial process was known. It is often the case that temporary name suppression is granted to ensure that an accused’s right to a fair trial is not impeded. This circumstance can arise at an early stage in the criminal process, and at a time when careful scrutiny of the relevant considerations has not occurred. Because fair trial considerations will often trump the principle of open justice, temporary name suppression may be granted in circumstances where had permanent name suppression been sought, it would have been refused. The only relevant aspect of
Ms Y having had temporary name suppression is that the suppression of her identity is still practicable.
[7] The Court of Appeal has made it clear in Leary that persons who have been discharged under s 347 do not form a separate category for consideration when it comes to considering permanent name suppression. This is not, therefore, a discrete factor to take into account. I propose to treat Ms Y the same as if she was someone who had been acquitted.
[8] I consider that the potential harm to Ms Y personally and to Sea Consultants is much the same as the harm most persons who have been criminally charged and acquitted face. Ms Y has not identified some substantial and specific harm that will result if the temporary order is lifted. The law is well established that absent substantial and specific harm, personal, privacy and general business concerns associated with public disclosure of the criminal charges an accused has faced are not enough to warrant permanent name suppression. This is so even when the accused has been acquitted or discharged.
[9] The charge Ms Y faced was a serious criminal charge. There is a public interest in knowing about the details of such charges, including the identity of the person charged.
[10] The most persuasive aspect of Ms Y ’s application was the combined effect of her reliance on the weakness of the prosecution case against her, coupled with her plaint that her reputation should not be blighted through disclosure of the charge she faced. There is much to be said for the argument advanced by Ms Y that it is unfair for anyone who is going about her lawful business to find herself facing criminal prosecution as a result of nothing more than the allegation of an unreliable witness. Further, from the perspective of a wrongly accused person, this unfairness is compounded by the public disclosure of those events. But the strength of this argument rests on the assumption that public disclosure will lead those who learn of the events to conclude that Ms Y is someone who in all probability has committed the offence, but by happenstance she has managed to avoid a conviction.
This assumption is usually expressed in the old addage “where there is smoke there is fire”.
[11] This assumption can only take hold when the public is not kept informed of the occasions when criminal charges are laid on the strength of weak and unreliable evidence. This is but one aspect of the benefit of the public knowing about acquittals and s 347 discharges. It is contrary to the public interest for members of the public to gain the impression that the laying of a criminal charge against someone is indicative of guilt, and that a subsequent acquittal or discharge is only as a result of a technical defence being successfully raised. It is important that the public realise that there are occasions when charges are wrongly laid. Full disclosure of such occasions, including the identity of the accused, serves to give a human face to what has occurred, as well as being a reminder to everyone that the presumption of innocence provides substantial benefits and is not just a legal concept that excites the passions of lawyers. Whilst I accept, therefore, that from Ms Y ’s perspective there is a real unfairness that on the strength of the word of one unreliable witness she has faced criminal prosecution and now must deal with public disclosure of that event, at the same time this is the very sort of event that requires public disclosure.
[12] Ms Y has submitted that the Chinese community within which she works will take an adverse view of her once they know what has occurred. Whilst this may be the case, the members of that community will never learn about the important role the criminal process has, and the value of its principles in New Zealand society unless they see the application of those principles at work.
[13] Public confidence in the operation of the criminal justice system, and the courts is more likely to be maintained when the public is kept fully informed about the practical application of as much of the criminal process as can be disclosed. This is why, except for those cases where the reasons for non-disclosure are compelling, the presumption of open justice will prevail. Here the considerations identified by Ms Y are not compelling reasons for permanent name suppression.
[14] In order to preserve Ms Y ’s right to seek leave to appeal from the Court of Appeal against my decision, I propose to leave in place the temporary name
suppression for a period of 10 days from the date of delivery of this judgment. At the end of that period the temporary order will expire.
Result
[15] The application for name permament suppression is denied. The present temporary name suppression order will remain in place for 10 days from the date of delivery of this judgment.
Duffy J
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