Robertson v Police
[2014] NZHC 1302
•10 June 2014
IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY
CRI-2014-412-000009 [2014] NZHC 1302
BETWEEN LYNN ROBERTSON
Appellant
AND
NEW ZEALAND POLICE Respondent
AND
OTAGO DAILY TIMES Applicant
Hearing: 4 June 2014 Appearances:
J M Ablett-Kerr QC and G E Diamanti for Appellant
R P Bates for Respondent
W J Wright and J M Guthrie for Applicant, Otago Daily TimesJudgment:
10 June 2014
JUDGMENT OF GENDALL J
Introduction
[1] The appellant pleaded guilty in the District Court to three charges of theft by a person in a special relationship under ss 220 and 223 Crimes Act 1961. On 8 April
2014 she was sentenced to four months home detention and 200 hours community work. An application for final name suppression was declined by the District Court.
[2] The appellant now appeals against the refusal to grant name suppression. In her notice of appeal she relies on three grounds:
(a) That the District Court Judge failed to give adequate or sufficient weight to evidence that extreme hardship would be caused to the
appellant by publication of her name.
ROBERTSON v NEW ZEALAND POLICE [2014] NZHC 1302 [10 June 2014]
(b)That the District Court Judge failed to give adequate or sufficient weight to evidence that extreme hardship would be caused to other persons connected to the appellant.
(c) That the District Court Judge misinterpreted the test in relation to s 200(2)(a) and (c) Criminal Procedure Act 2011 in relation to the appellant’s husband and children.
[3] Before me leave was sought on behalf of the appellant to amend the third ground of appeal to include subs (2)(e) and (f) and to include the words “and employers”. This leave was granted.
[4] The appellant’s essential submission is that while her particular circumstances might not possibly meet the test of extreme hardship, the combination of factors relating to her, her husband, her children and her employer justifies the making of an order for name suppression.
[5] The present appeal is opposed by the respondent. The Crown submits that the District Court had before it and had considered all relevant information on this issue of name suppression together with detailed submissions on the law and quite properly found that the relevant tests were not met.
The offending in question
[6] The nature and extent of the offending in question here in short involved:
(a) The theft by the appellant of $24,654.60 from the St Kilda Surf
Lifesaving Club by way of 31 fraudulent withdrawals;
(b)The theft by the appellant of $3000 from Musselburgh School PTA by presenting three unauthorised cash cheques; and
(c) Forty fraudulent withdrawals by the appellant from her mother’s bank
account amounting to $54,358.93.
[7] This offending involved significant breaches of trust on the part of the appellant and had a major impact on all the victims involved. It seems the appellant, who has accounting qualifications and continues to work in the accounting field had developed a major gambling addiction and dissipated the stolen money in her preoccupation with pokie machine gambling and the like.
[8] As I understand the position, all amounts stolen by the appellant have now been repaid essentially from her share of funds which became available from her late mother’s estate.
The District Court decision
[9] Judge Neave in the District Court dealt reasonably extensively with the issue of name suppression at [22] – [31] of his judgment as follows:
[22] That in some respect is the easy part of the sentencing. The difficult exercise is trying to determine whether or not there should be a final order suppressing your name. I have not found this easy. The general rule is that publicity should follow. The interests of the community are best served by, as has been expressed by the Courts on many occasion, “the winds of publicity blowing through the Court” so that justice is not only done, it is seen to be done.
[23] The Criminal Procedure Act 2011 now governs suppression of name in your situation. There are really three areas I need to consider in terms of that section. The first is whether the case would cause you extreme hardship. I do not know that that really applies in this case. The hardship that would follow from publication of your name is no more than is common with the offending and would be no more or less than the hardship that would arise to anybody else in your situation.
[24] The real problems seem to me, s 200(2)(e), endanger your safety or whether or not it would cause extreme hardship to anybody connected to you. There is no doubt that you have been expressing suicidal thought. There is also a clear threat (I suspect) that can be drawn that if anything places pressure on your husband or family which causes them to feel somewhat hard done by, that in itself could increase the risks to you. There is the fact that your employment might also be jeopardised as would the situation of your employer if your name is published, with the same flow on effects.
[25] These matters are referred to in Dr Wiseley’s reports. In the first of them he notes, on the second page, “However when I discussed the potential impact of name publication on her and the family she appeared to be catastrophising the situation. She believes it will be very difficult for her 13 year old daughter, her husband and her other daughter and for the couple she currently works for.” (I have omitted the names of those involved.) “She
does accountancy for a small firm. She believes their firm would close with adverse publicity.” He went on to say, “I formed the clear impression she feels she could save her family from this shame and humiliation if she committed suicide.”
[26] However there is no evidence of any clear depression and I think there is a very real situation that you have made this matter worse in your own head than it is in reality. You are operating under things such as a belief that you cannot get a WINZ benefit if you have a criminal conviction; that is simply not true. If it were there would be an awful lot more people leaving this Court without convictions. As is so often the case the fear of what is about to happen is worse in the reality.
[27] I have no doubt that publication will be very unpleasant for a short period of time. The virulence with which these things tend to be covered does no one any good but that is life to some extent. On the other hand, it is almost because of it, the intensity of attention paid to such issues is part and parcel of the rapidity of our news cycle and that such coverage is very quickly replaced by the next cause célèbre and you will very quickly find that it is forgotten. Already those who need to know; do know. That is in some way an argument that cuts both ways, but it is not if there are not already a significant number of people who are in receipt of this information. That, in fact, I think in balance, points away from suppression. Of course, given the nature of the victims the likelihood that this is not well-known is somewhat illusory.
[28] I was initially concerned that the discussions about suicide could be those of the sort that undercut remorse and amount to a sort of blackmail attempt on the Court. I am quite satisfied, having heard Mrs Ablett-Kerr, that that is not the case. Nor do I see this as an example of further selfishness which might otherwise be the case, but I think Mrs Ablett-Kerr is right in submitting to me that it just reflects a disordered reasoning process which is entirely consistent with your illness and the situation within which you find yourself.
[29] Numerous cases have been referred to me where it is clear that this sort of issue is not the be all and end all of the question of publication. It seems clear that you have ready access to mental health assistance and that providing your employment is not jeopardised the chances are that this is a risk that is more apparent than real and ultimately the decisions that are made are yours and not the Court in that respect.
[30] It is necessary in every case for a Judge to determine, in the exercise of the appropriate discretion, whether the detrimental effect of publication would be disproportionate to the gravity of the offending and outweigh the public’s general right to know what is going in the Courts. This is serious offending and therefore it requires a much greater weight of evidence, it seems to me, to justify departure from the normal principles.
[31] I am satisfied that, whilst as I have said, the short term will be unpleasant, it is something that will very quickly blow over except for those people who already know. In those circumstances I am not satisfied that in terms of s 200(2) that extreme hardship would be caused to any other person by publication of your name, nor does it, in reality, endanger your safety. However, I am satisfied it is appropriate to suppress any details in relation to
your employer and there must be no publication of any detail that might identify them. Anybody that needs to know in that respect already knows and the matter need go no further. The order for suppression of name, other than in that respect, is refused.
[10] In doing so, there can be little question that Judge Neave fully traversed the evidence and submissions which were before him regarding this name suppression issue.
The law
[11] Section 200 Criminal Procedure Act 2010 (“the CPA”) provides for the suppression of the name, address or occupation of a person who is charged with an offence. Section 200 states:
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—
(a) cause extreme hardship to the person charged with, or convicted of, or acquitted of the offence, or any person connected with that person; or
(b) …
(c) cause undue hardship to any victim of the offence; or
(d) …
(e) endanger the safety of any person; or
(f) lead to the identification of another person whose name is suppressed by order or by law; or
(g) …
(h) ...
(3) The fact that a defendant is well known does not, of itself, mean that publication of his or her name will result in extreme hardship for the purposes of subsection (2)(a).
(4) Despite subsection (2), when a person who is charged with an offence first appears before the court the court may make an interim
order under subsection (1) if that person advances an arguable case that one of the grounds in subsection (2) applies.
(5) ...
(6) When determining whether to make an order or further order under subsection (1) that is to have effect permanently, a court must take into account any views of a victim of the offence conveyed in accordance with section 28 of the Victims' Rights Act 2002.
[12] Under s 200(6) of the CPA, the Court is required to take into account the victim’s views in relation to name suppression. Here it is clear from the victim impact reports which have been provided that all the victims strongly oppose name suppression.
[13] It is useful here to set out the definition of a victim outlined in the Victims’ Rights Act 2002 (the VRA) which includes the following, as incorporated into the CPA by virtue of s 5 of the CPA:
4 Interpretation
In this Act, unless the context otherwise requires,—
…
victim—
(a) means—
(i) a person against whom an offence is committed by another person; and
(ii) a person who, through, or by means of, an offence committed by another person, suffers physical injury, or loss of, or damage to, property; and
(iii) a parent or legal guardian of a child, or of a young person, who falls within subparagraph (i) or subparagraph (ii), unless that parent or guardian is charged with the commission of, or convicted or found guilty of, or pleads guilty to, the offence concerned; and
(iv) a member of the immediate family of a person who, as a result of an offence committed by another person, dies or is incapable, unless that member is charged with the commission of, or convicted or found guilty of, or pleads guilty to, the offence concerned;…
The appeal
[14] According to Mrs Ablett-Kerr QC for the appellant, the essence of the present appeal is that in exercising his discretion, Judge Neave failed to adequately take into account relevant matters concerning the issue of name suppression in relation to:
(a) The appellant herself concerning her physical and mental health, her safety, her dominant role as the breadwinner and caregiver for the family and the desirability of rehabilitation; and
(b) The health and wellbeing of the appellant’s dependent husband;
(c) The wellbeing of the appellant’s younger child and her particular
vulnerabilities;
(d)The position of the appellant’s dependent family members as victims under s 4 of the Victims’ Rights Act 2002 as well as being persons connected to the appellant under s 200 (2)(a) CPA; and
(e) The position of the appellant’s employer (called here “XY”) in relation to s 200(2)(f) of the Act.
Grounds of appeal – fresh evidence
[15] At sentencing it seems the District Court had before it considerable information relating to the appellant, including an updated psychiatric assessment and numerous references.
[16] The appellant has now adduced some fresh evidence which is before the Court. It takes the form of a report from a Mr Thomas Moore, a “counsellor” in which he expresses a view that the appellant’s family circumstances here are quite unique and justify a suppression order being made. I address this further evidence at [34] below.
Standing of the Otago Daily Times on this appeal
[17] At the outset of this hearing, Mr Wright and Ms Guthrie appeared before me and indicated that they sought the right to be heard on the appeal on behalf of the Otago Daily Times. This was pursuant to s 210(2) CPA which provides:
210 Standing of members of media
…
(2) A person to whom this section applies (a member of the media reporting on these proceedings which does include here the Otago Daily Times) has standing to initiate, and be heard in relation to, any application for a suppression order, and any application to renew, vary, or revoke a suppression order.
[18] In this case Mr Wright indicated that the editor of the Otago Daily Times had chosen to exercise this statutory right to be heard and to have submissions advanced on the questions of principle which from a public perspective are involved here.
[19] Thus, I heard submissions from Mr Wright on behalf of the Otago Daily
Times and I will briefly mention these later in this judgment.
Approach to be taken on this appeal
[20] A right of appeal against a refusal to make a name suppression order is conferred by s 283(1) of the CPA. Section 287 provides that the appeal court must determine the appeal by confirming, varying or setting aside the decision appealed against or by making any other order it considers appropriate.
[21] On a number of occasions it has been suggested that an appeal against a decision to refuse permanent name suppression made under s 200 of the CPA is an appeal against the exercise of a discretion and consequently the Court should only interfere with such a decision if an appellant demonstrates that the Judge had acted on a wrong principle, had failed to take into account some relevant matter, had taken account of some irrelevant matter or was plainly wrong. I do not accept however that this appeal is governed solely by the principles relating to the exercise of a
discretion. In a different context, the Supreme Court recognised in Rajamani v R1 the question whether extreme hardship exists is not a matter of discretion but is a matter of fact requiring judicial assessment.
[22] And, as Gilbert J observed in Beacon Media Group Ltd v Waititi,2 albeit with reference to s 202 of the CPA, relating to suppression of the identity of witnesses, victims and connected persons:
[5] Unlike s 140(1) of the Criminal Justice Act 1985, which conferred an unfettered discretion on the Court to make suppression orders in respect of anyone connected with the proceeding, s 202 of the new Act restricts the Court’s power to make such an order to those cases where at least one of the threshold tests set out in ss (2) is met. Section 202(2) operates as a gateway; it is only if the threshold is met that the Court is able to consider whether to exercise its discretion to make an order. No such restriction applied under s 140 of the old Act and cases decided pursuant to that section will therefore need to be treated with some caution when applying the provisions of the new Act.
[23] It follows therefore that whether the statutory prerequisite has been established involves a matter of judicial evaluation and, in accordance with the approach directed by the Supreme Court in Austin Nichols & Co Inc v Stichting Lodestar3 an appeal Court is required to undertake its own assessment of whether the threshold tests are met. In this however obviously an appeal Court is constrained by the words of the sections themselves and the stringent statutory tests that now apply. And the test in terms of s 200(2)(a) of the CPA as determined by Parliament requires the higher threshold of “extreme hardship” to be reached (as opposed to the lower
test of “undue hardship” caused by publication under s 202(2)(a) for witnesses, victims and connected persons) before Courts can legitimately suppress an offender’s identity. In R M v Police Priestley J observed that the test is a high one:4
[43] …Publication of any offender’s name will cause hardship to the offender and his or her family. Publication will excite curiosity, criticism, social ostracism, and embarrassment. But a suppression order can be made legitimate only if the damaging effects on the offender causes hardship which is extreme. The necessary extremity is contextual and will depend on
1 Rajamani v R [2007] NZSC 68, [2008] 1 NZLR 732 at [4].
2 Beacon Media Group Limited v Waititi [2014] NZHC 281 at [9].
3 Austin Nichols & Co Inc v Stichting Lodestar [2008] 2 NZLR 141 at [16].
4 R M v Police [2012] NZHC 2080 at [43].
the unique factual and personal circumstances surrounding each s 200 application.
[24] It is clear that, in order for “extreme hardship” to be established, a very high level of hardship needs to be demonstrated. The consequences of publication must be beyond those which are normally associated with an offender’s name not being suppressed and in the circumstances of an individual case the hardship must be excessive and out of the ordinary. It is not enough if there is simply “undue
hardship” involved or if it is simply disproportionate.5
Submissions
Appellant’s submissions
[25] With respect to the first ground noted at [2](a) above, that publication would cause the appellant extreme hardship, her position seems to be as follows:
(a) Judge Neave, in relying on the speed with which matters are forgotten by the public’s collective consciousness, failed to have any or sufficient regard to the fact that the appellant is a “very well-known local identity”.
(b)While not alone sufficient to ensure that name suppression is afforded to the appellant, the fact that a defendant is well-known is a relevant factor in determining whether the extreme hardship threshold is met. The fact the appellant here is well-known exacerbates her significant health issues, both mental and physical.
(c) Inadequate consideration was given to the potential that publication would be likely to “endanger the safety of any person”, including the appellant, in whom the potential for endangerment arises through her suicide risk.
[26] In terms of the second ground noted at [2](b) above, relating to the extreme hardship caused to people connected to the appellant, counsel submitted as follows:
5 R v Wilson [2014] NZHC 32; R v N [2012] NZHC 2042 at [21].
(a) The appellant’s profile in the community is such that notwithstanding the suppression of the name of her employer, XY, it is said it is almost inevitable that the business will be identified through its association with the appellant. The business could not therefore continue to employ the appellant in the event of publication, which would have deleterious effects on her rehabilitation, contrary to the “rehabilitative purposes of the Sentencing Act”. Finally, it is claimed publication would have severe financial effects for the XY business itself, amounting to extreme hardship.
(b)Turning next to the appellant’s husband, it is contended that the sentencing Judge gave no or insufficient weight to the impact that publication would have on his health.
(c) And finally, as to the appellant’s children and her younger child in particular, there was evidence before the Court as to that younger child’s particular vulnerability. It is contended that no or insufficient weight was given to that daughter’s well being. And as such Ms Ablett Kerr QC counsel for the appellant, contends that the daughter is a victim by suffering loss through her mother’s offending, as I note below.
[27] With respect to the third ground noted at 2(c) above, Ms Ablett-Kerr QC contended that Judge Neave had misinterpreted certain aspects of s 200 of the CPA and submitted as follows:
(a) The definition of victim in the CPA should extend to the appellant’s immediate family because, through her actions, there was consequential loss of $60,000 from the inheritance (from the estate of the appellant’s mother) of which the family would otherwise have had the benefit. If this is accepted, the lesser standard of “undue hardship” should be applied to the immediate family in determining issues of name suppression.
(b)The threshold under s 200(2)(e) of the CPA is met simply if the Court is satisfied that it is likely that publication would “endanger the safety of any person”. That is unqualified. If that threshold is met the Court may exercise its discretion to grant name suppression.
(c) The threshold under s 2(f) is similarly unqualified. The discretion may be exercised where a Court is satisfied that publication would be likely to “lead to the identification of another person whose name is suppressed by order or by law”. Here that ‘person’ is the appellant’s employer, XY.
Respondent’s submissions
[28] In response, the Crown’s submissions ultimately boil down to the simple proposition that this case does not deviate sufficiently from the norm to warrant the grant of permanent name suppression. It submits that all relevant information was before Judge Neave at sentencing, and this was all properly considered before reaching a decision.
[29] With regard to the fresh evidence noted at para [16] above, Mr Bates for the Crown suggests that this does not greatly advance matters. He goes on to suggest that looking at all matters which are before the Court in the round, it cannot be satisfied that the relevant tests in either s 200 of the CPA or s 202 of the CPA were met here.
Expert evidence
[30] There was an abundance of expert evidence before the District Court of the appellant’s fragile mental state together with anecdotal evidence from various people attesting to why they believed she should be afforded the protection of name suppression.
[31] It is useful here to traverse only some of that voluminous evidence. The first report was from the appellant’s GP Dr Jan Cottle from Mussleburgh Medical Centre on 13 September 2013. In that report Dr Cottle stated:
I entirely share the concerns of Dr Wisely. Lynn is at great risk of suicide. There is no question. She is extremely tearful and has talked about “Plans” if her name is not suppressed. I am extremely concerned for her and her family.
[32] On 16 August 2013 Dr Christopher Wisely, a consultant psychiatrist, provided a report to Mrs Ablett-Kerr QC, counsel for the appellant. That was supplemented by a subsequent report dated on or around 18 March 2014. Relevant passages from the former report read as follows:
… I saw [the appellant] at her home on 29/07/2013 and interviewed her with particular regard to her mental state after you had expressed concern. This was due to medical issues and comments made by her GP Dr Jan Cottle.
…
Lynne considers she had lead a good life previously and been a good citizen which made her fall from grace even more pronounced. She particularly regrets the shame she feels she has brought to the rest of the family and that her sister Kay is now estranged from her when they were formerly close…
However when I discussed the potential impact of name publication on her and the family she appears to be catastrophising the situation.
I formed the clear impression that she feels she could save her family from this shame and humiliation if she commits suicide although she did not state this overtly. I do not think she has a clear depression despite her stress sleep loss, weight loss etc.
… If the matter of name suppression could be considered until the matter goes before the court it might avert a crisis.
… From the point of view of her family etc I think she is correct that it would be psychologically very damaging to her daughter if her name was published and more so if she were to kill herself. She believes the family would be all right with her husband but he himself is not well.
[33] The above comments of Dr Wisely must be viewed in light of the fact that the first report was before the appellant’s trial. In the later 18 March 2014 report Dr Wisely stated:
… [Mrs Robertson] made it clear that she thinks [her daughters] will be better off if she commits suicide. She felt if she was publicly named they will suffer. She did not express any ideas of harming her children or husband. She said that her remaining friends will abandon her…
…
I had the sense that she is less at risk of suicide than I judged her to be last year. However given her catastrophic (but possibly partly realistic) view of
the consequences of public naming, and her view that her family would cope with her suicide, she should be considered at risk.
… I am inclined to think there are strong reasons to maintain name suppression with regard to the consequences for the two girls, husband and the other persons named above. [The appellant] herself is at risk of suicide, which would be extremely damaging to the family…
[34] The final report is from Mr Thomas Moore, a specialist addictions counsellor of some 23 years experience. That evidence however does seem to lack a degree of impartiality, and at the very least, Mr Moore to some extent appears to step outside his realm of expertise to express views on sentencing and the purposes of punishment. Nonetheless, the relevant passages read as follows:
The Court will be well aware of the length of time this entire matter has taken to reach resolution. There is good clinical evidence that such extended process inevitably amplifies the distress of loss of control experienced by the subject thus becoming a distinct consequence in itself, a virtual, added punishment … Name publication will … expose them to extended consequences beyond the loss of family income from their mother’s potential loss of employment. After three years of turmoil they feel the lack of nurture from beyond their nuclear family and now fear the impact of community reaction to their mother’s circumstances. At age fifteen, the social norms of youthful, peer influence daunt the youngest particularly.
Without presumption I submit that a balance of punitive consequences have been well met without the usual course of name publication.
Victim impact statements
[35] The above reports are tempered by the three victim impact statements put before the sentencing Judge. The first statement is of Kay Alexander, Mrs Robertson’s sister, dated 3 April 2014. Her statement relevantly provides:
… I was numb with shame and disgust to think that our ailing and vulnerable mother was a victim of elder abuse. It was totally abhorrent that a daughter could ever prey on her own mother in the twilight of her life. To digest that Lynn was taking advantage of mum’s failing health to satisfy her own greed was mortifying but to also discover it had extended to the surf club was devastating…
… Going to the police was the most difficult decision I have ever made.
2 years ago I asked Lynn to be honest and truthful and am still waiting. Lynn has still not taken full responsibility for her actions. Until Lynn is convicted and this becomes public I fear and believe that Lynn will continue to deceive people in our community and the silence will continue to enable her addiction. It has been unbelievably painful to acknowledge and confront a family member who I once trusted implicitly and now know I can’t.
[36] The statement on behalf of the Musselburgh School PTA by Ms Sandy Gorman first expresses disgust and disdain at Ms Robertson for her deception and breach of trust. As to name suppression she notes:
I believe that sometimes people need to hit rock bottom before they can start taking control of their lives and I don’t believe Lynn is there yet. She called me last year and told me flat out that she never did anything to the school and never took money. Well, we know that that was an outright lie, she doesn’t feel that what she did was wrong. It is my sincere hope that by lifting name suppression and the community being aware of her previous actions, Lynn might begin the long road to building her life up again. Accepting her actions and owning the punishment is the first step.
[37] The final statement was made on behalf of the St Kilda Surf Life Saving
Club. The statement opened by stating:
The club felt significant impact when the defendants (sic) offending was uncovered and the financial situation was found to be misrepresented and in a state of disarray.
[38] After discussing the various issues Ms Robertson caused the club, and the potential impacts, both short and long-term, and financial and otherwise, the statement concluded:
It is the strong view of the current club committee that the defendant should not be afforded name suppression. The defendant appears to the club to show no remorse, and displays no empathy or apparent understanding of the consequences of her actions. The club is aware that the defendant has sought support in the community, and has gone as far as to advise people that she was set up by the surf club.
Discussion
Overview
[39] The starting point here must be the presumption of open-justice which permeates any democratic society. This was well encapsulated in R v Liddell where the Court of Appeal stated:6
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.
[40] The Court of Appeal in Lewis v Wilson & Horton Ltd further elucidated the principles underpinning the exercise of the discretion and stated:7
Factors it is usual to take into account in deciding whether the prima facie presumption should be displaced in the case include:
·whether the person whose name is suppressed is acquitted or convicted. If acquitted, the Court may more readily apply the power to prohibit publication, although in R v Liddell the Court recognised (in adoption of R v D (G) (1991) 63 CCC (3d) 134) that the public has an interest in acquittals also;
·the seriousness of the offending. Where a person is convicted of a serious crime it will only be in rare cases that name suppression will be ordered. Where the charge is “truly trivial”, particular damage caused by publicity may outweigh any real public interest (R v Liddell at p 547);
·adverse impact upon the prospects for rehabilitation of a person convicted: see, for example, B v B (High Court, Auckland, HC 4/92,
6 April 1993, Blanchard J);
·the public interest in knowing the character of the person seeking name suppression, and interest which has been acknowledged in cases involving sexual offending, dishonesty, and drug use (see, for example, R v Liddell; M v Police (1991) 8 CRNZ 14; Roberts v Police (1989) 4 CRNZ 429); and
·circumstances personal to the person appearing before the Court, his family, or those who work with him and the impact upon financial and professional interests. As it is usual for distress, embarrassment, and adverse personal and financial consequences to attend criminal proceedings, some damage out of the ordinary and disproportionate to the public interest in open justice in the particular case is required to displace the presumption in favour of reporting.
[41] The appellant’s offending here was significant. It involved thefts totalling some $82,013.53. All of her offending involved flagrant and egregious breaches of trust, hence the three charges of theft by a person in a special relationship.
Will Ms Robertson suffer extreme hardship as a result of publication?
[42] I propose at this stage to deal first with both the issue of extreme hardship and the suggestion of endangerment to the appellant’s health as a result of the potential suicide risk.
[43] The plain words of s 200 of the CPA need no qualification. They make it readily apparent that the threshold to be crossed before name suppression will be granted to an offender is, to use the statutory language, extremely high. Suppression orders are to be reserved for that most exceptional category of cases where the harm that publication would cause is so great that all of the policy considerations in favour
of publication are outweighed. As was said by this Court in RM v Police:8
… Publication of any offender’s name will cause hardship to the offender and his or her family. Publication will excite curiosity, criticism, social ostracism, and embarrassment. But a suppression order can be made legitimately only if the damaging effects on the offender causes hardship which is extreme. The necessary extremity is contextual and will depend on the unique factual and personal circumstances surrounding each s 200 application.
[44] As I see it, the relevant factors here, from which Ms Ablett Kerr QC invites the Court to find that extreme hardship will result to the appellant, are essentially these:
(a) The appellant is a “very well-known local identity”, which is a
relevant factor in determining the issue, though not determinative.
(b)She is a person with “significant physical and mental health problems which are likely to be exacerbated by publication”. Her physical health issues include long-term diabetes, said to be debilitating and which she struggles to control. In addition, the appellant has late- onset cardiac issues.
(c) The fact that the appellant is well-known will increase the duration and level of publicity resulting from publication of her name and, by association, the potential adverse effects would similarly be increased.
(d)There exists the very real possibility that the appellant will lose her job if her name is made public because of the negative publicity this would attract for her employers. As she is the sole ‘breadwinner’ in
her family at the moment, this would cause her and her family significant financial difficulties.
(e) And, particular emphasis was placed on the appellant’s suicide risk if name suppression was not granted.
[45] The starting point here is that public prominence does not of itself equate to extreme hardship.9 However, this does not preclude it being weighed as a relevant factor in the overall assessment, though its utility will ordinarily lie in exacerbating other factors in favour of suppression. I will therefore consider the appellant’s public prominence not as a standalone matter, but rather as a factor which may have the ability to tip the balance in favour of suppression, if the harm resulting from
publication is already high.
[46] Turning next to the appellant’s physical health, this is not in my view a factor that could amount to extreme hardship in save but the most exceptional cases, either alone or in conjunction with other factors. Many people have physical ailments and it seems to me in this case that the appellant’s are far from extraordinary. This is not a factor capable of amounting to extreme hardship in my view.
[47] The possibility that the appellant might lose her job is a somewhat more difficult consideration. This is all the more so because she is at present the sole breadwinner of the household due to her husband’s ill health. However, this itself does not displace the presumption that her name should be published. A further significant factor tending against suppression on this ground is the nature of the appellant’s offending and the type of position she holds. In cases of dishonesty offending there is always a stronger presumption that the offender’s name will be published. This is all the more so here where the appellant works as an accountant at a tax and accounting firm and is therefore entrusted with the financial affairs and money of innocent third parties. I do not think there is extreme hardship on this ground.
[48] Ms Ablett Kerr QC also focused considerable attention on the appellant’s suicide risk in the event of publication. In this respect I first emphasise that a decision as to whether name suppression should be granted is a legal test, not a medical one. Any statement by an expert of whether the purpose of punishment has been met is generally irrelevant here and must be viewed with this in mind.
[49] The Court must also be sensitive to the possibility that publication might lead to an offender taking his or her life. But, the fact that psychiatric evidence opines that there is a suicide risk does not mean that name suppression will automatically follow.10 As to this, my assessment of Dr Wisely’s evidence is that the appellant should still be considered at some risk of suicide, but that risk as he has noted has reduced since last year. There is also no evidence that this risk is either significant or extreme. The appellant’s mental health would seem to be improving. Additionally, the plethora of medical opinion put before the Court would appear to indicate that
the appellant has a strong network of psychiatric care and counselling which can assist her through any stress placed upon her by publication of her name. I am therefore of the view in the circumstances prevailing in this case that any endangerment to the appellant’s safety should be able to be sufficiently ameliorated by counselling and/or psychiatric care.
[50] None of the factors emerging from this discussion in my view amount to extreme hardship. I conclude that no order for suppression on that basis is justified here. I turn now to consider whether publication is likely to endanger the “safety of any person”.
[51] In BL v R, Winkelmann J was of the view that “any person” in s 200(2)(e) was broad enough to encompass the defendant themselves.11 Absent any statutory qualification, this must be the correct interpretation. The phrase “any person” cannot otherwise logically be read down to mean “any person other than the offender”.
However, it is clear that a risk of suicide is not determinative of the issue of
10 R v McDonald CA 84/98, 24 August 1998 at 5.
11 BL v R [2013] NZHC 2878 at [23].
suppression, as it is not infrequently raised as a ground on which suppression should be granted.12
[52] For the reasons discussed above, I am not persuaded that publication is likely to endanger the appellant’s safety here. In Beacon Media Group Ltd v Waititi, Gilbert J engaged in a reasonably lengthy discussion of what is meant by “likely” in the context of s 202 of the CPA.13 Reference was made to the Court of Appeal decision in R v W where Richardson P observed that the meaning of the word depends on statutory context and has a wide range of meanings.14 Here I need not engage that issue as I am satisfied that the risk is not likely, but is rather only a possibility. If I may be wrong in that conclusion I express the tentative view that I would have nonetheless exercised my discretion against granting suppression.
[53] Finally, this conclusion is clearly supported by the views of the victims, which I am bound to consider by virtue of s 200(6) of the CPA as recorded in their victim impact statements. They are all of the view that publication is necessary for their rights to be vindicated, to enable them to finally move on from their ordeal, and to ensure that the appellant’s deceit is known, which will in turn facilitate her rehabilitation.
Are the appellant’s family “victims” in terms of s 4 Victim’s Rights Act 2002?
[54] This point, raised by Ms Ablett-Kerr QC, needs to be disposed of at the outset, as it will determine the relevant level of hardship which will inform the Court’s decision with respect to the appellant’s immediate family.
[55] Ms Ablett-Kerr QC contends that the appellant’s husband and children fall within the ambit of the definition of victim in the VRA, s 4 as imported into the CPA by s 5. Section 4 of the VRA is set out at [13] above.
[56] In my view this argument can be disposed of reasonably quickly. As I see the position, it cannot have been Parliament’s intention in drafting s 4 of the VRA or s 5
12 R v Suttie [2007] NZCA 201 at [32].
13 Beacon Media Group Ltd v Waititi [2014] NZHC 281 at [11] – [21].
14 R v W [1998] 1 NZLR 35 at 38.
of the CPA that it would encompass the family of the offender in situations such as the one before me. If this interpretation were to be accepted, the ramifications would be manifest. In almost all cases of financial offending, and in all cases where reparation or forfeiture is ordered, or where some financial penalty is imposed against an offender, the family would automatically be categorised as victims through the associated loss of funds which they would have otherwise enjoyed. This interpretation would serve to greatly widen the potential cases in which name suppression might be granted.
[57] Additionally, as simply a matter of logic, the loss in the present case was suffered not through the offending but rather as a result of the appellant seeking to put right the damage occasioned by her offending. It seems that there was at least some measure of self-preservation extant in this exercise as it was initially thought as I understand the position that the appellant would not be charged if she put right her offending. It would be a stretch to interpret the words “through, or by means of” in the definition of “victim” in s 4(a)(ii) of the VRA to include anyone who could no longer enjoy the benefit of money which they may have enjoyed if reparation was not made.
[58] Further, in my judgment it is a fallacy for Ms Ablett Kerr QC to suggest that the reparation the appellant paid rendered her immediate family victims by depriving them of the benefit they otherwise might have enjoyed absent her offending. The reality is that by her offending, Ms Robertson gained access to, and benefit from, funds totalling $82,013.53, and the family could potentially have received benefit from this. The fact that the appellant elected to utilise that money to feed a gambling addiction is of no moment. All that the payment of the $60,000 of Ms Robertson’s inheritance served to do was to restore her from illegal indebtedness to somewhere near settling her debts.
[59] The appellant’s family members are therefore not victims in terms of the
definition of “victim” in s 5 of the CPA and s 4 of the VRA.
Has extreme hardship to the family and employer been demonstrated here?
[60] As a result of the above finding, the threshold which must be passed in respect of the appellant’s immediate family in terms of s 200(2)(a) of the CPA is that of extreme hardship. In terms of the family, the simple but harsh reality is that the hardship to the appellant’s immediate family is part and parcel of the fact that she committed these offences.15 The evidence put before the Court relating to the appellant’s husband, her youngest daughter and to her employer in my view simply does not fall outside the ordinary experience. It is therefore insufficient to displace the public interest and the need for open transparency in this proceeding strongly
advanced before me by both the Crown and by Mr Wright for the Otago Daily
Times.
[61] With respect to the appellant’s husband, it was contended his health issues would be exacerbated by publication of his wife’s name. While it may be true that these health issues might be exacerbated to some extent, this would undoubtedly be true of any spouse or partner in a similar situation with health issues. That exacerbation here does not meet the threshold of extreme hardship.
[62] As to the position of the appellant’s younger child and her suggested vulnerability, I reach a similar conclusion. I agree that any suffering caused to this daughter is most unfortunate. However, any such harm flows directly from the appellant’s decision to commit the crimes of which she has been convicted and there is no evidence that the harm to her daughter here would be extraordinary. There are some similarities in the present case with those that prevailed in the recent decision
in this Court in Rougeux v R16 where a District Court decision refusing name
suppression despite suggestions that the appellant’s 12 year old son would suffer extreme hardship (distress and embarrassment, bullying and personal adverse reactions from other) was confirmed on appeal. Name suppression cannot be granted every time the child of an offender might be exposed to some measure of embarrassment or vulnerability. The hardship must be extreme. I am not satisfied
this is the case here.17
15 R v Liddell above n 6 at 544, 464.
16 Rougeux v R [2014] NZHC 979
17 See R v Wilson, above n 5, per Whata J.
[63] The appellant’s employer is the last party that falls to be considered here. By s 29 Interpretation Act 1999 there can be little doubt that reference to a “person” in s 200 of the CPA was intended to include a company. However, there must be some doubt as to whether a suppression order in favour of a third party, imposed in the original District Court decision where suppression for a defendant was being considered, was a relevant suppression order in terms of s 200(2)(f). That section refers to a person’s name that “is suppressed by order or by law”. At the time Judge Neave was considering the appellant’s application for suppression, there was no suppression order in favour of her employer on foot. It is therefore open to question whether Judge Neave was required to consider this at all. However, the fact that the suppression order was granted in favour of the appellant’s employer clearly shows he paid regard to its interests.
[64] Even if it is a relevant consideration, I am not satisfied that publication of the appellant’s name will inevitably lead to the identification of her employer of itself. As I have indicated above at [47], the close connection between the appellant’s offending and her type of work is such that this matter cannot in my view overwhelm the other factors tending towards publication.
Overall analysis
[65] In considering in turn each ground of appeal advanced for the appellant here, I have concluded that none is sufficient alone to warrant deviation from the presumption in favour of open justice in this case. Equally, I am not satisfied that in this case all factors together warrant such a departure. I am further satisfied that the appellant’s prominence in the community does not alter this conclusion in any way.
Conclusion
[66] In my view, Judge Neave was entitled here to conclude that statutory threshold had not been established and that the circumstances of this case were not such as to warrant permanent name suppression.
[67] The District Court decision refusing name suppression is therefore confirmed and the appeal is dismissed.
[68] The interim order made pending appeal suppressing the name and any identifying details of the appellant here is lifted. The order however preventing publication of the name or any identifying details of the defendant’s employer XY shall remain.
...................................................
Gendall J
Solicitors:
Judith Ablett-Kerr QC, Dunedin
RPB Law, Dunedin
Wilkinson Adams, Dunedin
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