Rowley v R HC Auckland CRI 2010-085-6205

[2011] NZHC 771

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI 2010-085-6205

DAVID INGRAM ROWLEY BARRIE JAMES SKINNER Applicants

v

THE QUEEN

Respondent

Hearing:         On Papers

Counsel:         R C Laurenson for Applicants

No Appearance for Crown

Judgment:      8 July 2011

JUDGMENT OF DOBSON J

[1]      At 5.00 p.m. last evening I was asked to consider in circumstances of utmost urgency, an application under s 140 of the Criminal Justice Act 1985 granting interim name suppression until full argument of the entitlement to name suppression until trial could be argued.   The application incorporates a further one seeking name suppression of the two accused in this matter until substantive trial.

[2]      There was no indication that the application and affidavit of Mr Rowley filed in support of it had been served on the Crown, and given the urgency apparently claimed by counsel for an answer, I considered the papers together with the decision of the Supreme Court issued  yesterday that  I refer to below, before asking the Registry shortly after 5.15 p.m. last evening to convey to counsel that the application

would be dismissed, with reasons to follow today.

ROWLEY v R HC WN CRI 2010-085-6205 8 July 2011

[3]      The  accused  are  charged  with  making  dishonest  use  of  documents  for financial advantage under s 228(b) of the Crimes Act 1961.  They also face a charge of perverting the course of justice.  The charges apparently arise out of the operation of their tax accounting and planning firm.

[4]     Earlier yesterday, the applicants’ previous attempts to continue name suppression, originally granted by the District Court, came to an end.   There had been  a Crown  appeal  to this  Court  from  the  District  Court’s  granting of name suppression and the Crown’s appeal was upheld.   Thereafter, the Court of Appeal came to the same view, by a majority, that name suppression was not justified.

[5]      An application for leave to appeal to the Supreme Court was dismissed in a Judgment  dated  7 July 2011.    Paragraphs  relevant  to  the  most  recent  initiative include:[1]

[1] Rowley and Skinner v Commissioner of Inland Revenue [2011] NZSC 76.

[6]       Indeed, we agree with the assessment of the High Court and the majority in the Court of Appeal that insufficient circumstances to justify name suppression, against the presumption of open justice, were indicated. The only circumstance relied upon by the District Court Judge was the risk that the applicants would be prejudiced in their defence should their business suffer from publication of their names, affecting their ability to fund their defence.   This,  he  thought,  raised issues of “equality of  arms”  between prosecution and defence.

[7]       Potential impact upon income could not properly have been treated as determinative.  At most, it was one circumstance to be weighed against the  public  interest  in  disclosure  and  the  interests  of  others  potentially affected.  Included in the last category were the interests of those continuing to deal with the firm, in ignorance of the charges against its principals. Their interest in knowing of the charges was not taken into account at all by the District  Court Judge.   The  Court of Appeal  was  also  right  to  treat  any potential impact upon the ability to fund the applicants’ defence as being speculative and, in circumstances where legal aid would be available should the applicants prove unable to meet their own costs, as having no bearing on prejudice to their trial.

...

[9]       Counsel for the applicants has filed a further memorandum, “without prejudice to the application for leave to appeal”, in which they foreshadow a fresh application for interim name suppression to be made to the trial court and seek suspension of any judgment declining leave in this Court for five days to enable such further application to be made.  It is suggested that fresh application  would  be  made  on  the  basis  of  “changed  and  different

circumstances” arising out of further deterioration in the financial circumstances of the applicants.  No further details are supplied.  Nor is it explained   how   asserted   deterioration   provides   foundation   for   fresh application to the High Court, should the present application be declined. We are not prepared to accede to this request, made on a basis which is wholly unsubstantiated.

[6]      The further application is brought on the basis of a marked change in their financial circumstances.  It is claimed on their behalf that they will be without their livelihood if interim suppression is not granted and that the prosecution can reasonably be expected to know if any offending outside the present charges has occurred.  This second factor is presumably treated as relevant to negate what could otherwise be a consideration in favour of publication.

[7]      Mr Rowley’s affidavit in support of the application details a substantial drop in gross income from the practice operated by the accused.  The drop in revenue is believed to have been caused by some knowledge of the charges having “filtered out into the community” even whilst suppression orders have been in place.  An aspect of their concerns is that fees outstanding for work already done will become materially more difficult to recover if the existence and nature of the charges is publicised.

[8]      That form of deteriorating circumstance was adverted to in a memorandum filed with the Supreme Court, and did not produce a sympathetic response, as reflected in para [9] of that Judgment quoted above.

[9]      A more detailed description, in verified form, of the adverse effects on their business is not a sufficient change in circumstances to warrant the balancing of considerations  required  under  s 140  to  be  viewed  differently  from  the  previous occasions on which the issue was considered by this Court, and by the Court of Appeal.    If the substantial  drop  in  revenue from their business  to  this point  is correctly attributed to informal knowledge of the charges, then it is difficult to predict the extent of additional diminution that might follow from publication.  With respect, I am entirely comfortable that the previous decisions of this Court and appellate ones have weighed the considerations under s 140 entirely appropriately. The interests of open justice are a strong factor against suppression, and the prospect

that the deterioration in the accused’s business is now occurring at an accelerated

rate cannot result in the balancing exercise being reversed. [10]        For these reasons, the application was dismissed.

Dobson J

Solicitors:

R C Laurenson, Barrister, Wellington, email: [email protected]