S v Police HC Auckland CRI 2009-404-300

[2009] NZHC 1379

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2009-404-300

BETWEEN  S

Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         6 October 2009

Appearances: John Mackey for Appellant

Claire Ryan for Respondent

Judgment:      6 October 2009

JUDGMENT OF HARRISON J

SOLICITORS

John Mackey (Auckland) for Appellant

Meredith Connell (Auckland) for Respondent

S V POLICE HC AK CRI 2009-404-300  6 October 2009

[1]      Ms  S    appeals  against  a  decision  of  Judge  Lisa  Tremewan delivered  in  the  District  Court  at  Waitakere  on  11 September  2009  refusing  an application  for  interim  suppression  of  name.    Ms S    faces  23  indictably  laid charges.  She allegedly seriously assaulted children in her care.  She has pleaded not guilty and is awaiting a committal hearing.

[2]      Ms S  ’s counsel, Mr John Mackey, submits that the Judge erred in law in refusing Ms S  ’s originating application. He is aware that to succeed on appeal he must establish that the Judge incorrectly applied the settled legal principles; either failed to give appropriate consideration to relevant factors or gave undue consideration to irrelevant factors; or was plainly wrong.   Mr Mackey has filed a memorandum of written submissions to the effect that the Judge erred in giving insufficient weight to the presumption of innocence, the risk of prejudice to a fair trial, and the effect on Ms S  ’s future employment.

[3] It is appropriate to record that Judge Tremewan recognised the starting point of open justice and the public’s right to know what is happening in its courts; that is, the presumption of open reporting: at [6]. She acknowledged that the presumption can, of course, be displaced by other justice-based considerations: at [7]. The primary argument advanced by Mr Mackey in the District Court was the risk of an unfair connection with the fact that Ms S ’s sister-in-law had been convicted on a charge of child abuse relating to one of the same complainants in the charges against Ms S , or at least there was an involvement with the same family in terms of the complaints: at [7].

[4]      The Judge determined those arguments as follows:

[9]       I   do   accept   that   there   is   with   publication   (and   particularly publication of the details of the two relative cases) a likelihood of a connection being drawn, but some care needs to be taken with that issue because it does appear to me to be the case that a jury later dealing with these allegations at trial is very likely to need to know something of the factual background which forms part of the overall matrix in terms of the allegations. In fact it seems to me that it may even be ultimately in the defence interests for those other issues to be known by any jury later dealing with these allegations.

[10]     Furthermore, in such cases Judges are duty bound to give proper directions and warnings to juries as to what they should make of the different

issues which arise. I have no doubt that a Judge in due course dealing with these  allegations  at  a  trial  would  give  the  appropriate  warnings  and directions to a jury in terms of any connection between the two cases.

[5]      Mr Mackey submits that the factors identified by Judge Tremewan would not overcome or ameliorate the risk of prejudice to a fair trial.   However, I am in no doubt that the Judge not only took into consideration that risk but that her evaluation of the factors relevant to its mitigation is correct.  Appropriate judicial directions are the orthodox and well recognised means of displacing any exposure to prejudice arising from pre-trial publicity.

[6]      I need add only that I see little risk of any unfair connection and consequent risk in this case.  Publication of Ms S  ’s name is unlikely to have a material bearing on a jury’s deliberation of the charges, whenever that will be.  I reject this ground of appeal.

[7]      Mr Mackey also submits that the Judge failed to give any or proper weight to the effect of publication on Ms S  ’s employment prospects.  She filed an affidavit in support of her suppression application in the District Court.  Ms S   confirmed that she had worked as a duty manager in a large hotel and had done some acting work on a television programme.   However, she expressly acknowledged that she decided  to  forego  these  avenues  of  employment  after  the  charges  were  laid separately against her sister-in-law.

[8]      All Ms S   says is that if there is publication ‘my life would be destroyed [and] I will not be able to get TV work or work in commercials’.    This  brief assertion, unsupported by evidence, is an inadequate basis for a Judge to make a finding of substantial or irreparable damage to future employment prospects.

[9]      Notwithstanding  the  careful  arguments  advanced  by  Mr Mackey,  I  am satisfied that Ms S  ’s appeal is without merit and it is dismissed accordingly.

Postscript

[10]     Mr Mackey has applied for an order extending suppression of publication for a period of 10 days in order that he may take Ms S  ’s instructions on whether or not

an appeal is to be pursued to a higher Court.  He does not advance any arguments in

support.  The application is dismissed.

Rhys Harrison J