S v Police HC Auckland CRI-2010-404-373

[2010] NZHC 1758

This case has been anonymized

INTERIM ORDER PROHIBITING PUBLICATION OF THE APPELLANT'S NAME OR IDENTIFYING INFORMATION  UNTIL NOON 8 OCTOBER

2010.

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2010-404-373

BETWEEN  S

Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         7 October 2010

Appearances: R Mansfield for the Appellant

RMA McCoubray for the Respondent

T C Goatley for APM Media Works and TVNZ Judgment:    7 October 2010

ORAL JUDGMENT OF PRIESTLEY J

Counsel:

R M Mansfield, P O Box 2674, Shortland Street, Auckland 1140. Fax:[phone]
Email: [email protected]

RMA McCoubrey, Meredith Connell & Co, P O Box 2213, Auckland 1140. Fax: [phone]

DX CP24063. Email: [email protected]
T C Goatley, Bell Gully, P O Box 4199, Shortland Street, Auckland 1140. Fax: [phone]
DX CP20509. Email: [email protected]

Copy to:
R Burns, Meredith Connell & Co, P O Box 2213, Auckland 1140. Fax: [phone]

DX CP24063 Email: [email protected]

S V NEW ZEALAND POLICE HC AK CRI-2010-404-373 [7 October 2010]

The appeal

[1]      This  appeal  has  been  set  down  for  hearing  at  short  notice.    The  appeal challenges a decision made in the Manukau District Court two days ago (5 October

2010) by Judge H M Simpson.   She refused an application for interim name suppression which had been sought by the appellant.

[2]      Counsel at the District Court hearing then indicated that an appeal would be lodged.   In accordance with normal practice the Judge granted an interim order prohibiting publication of the appellant’s name so that his right of appeal was not rendered nugatory.

[3]      It is important to stress that this was not a situation whereby the Judge herself ordered suppression of the appellant’s name.   Rather it was a situation where, in accordance with normal practice, suppression was granted solely to ensure the right of appeal could be exercised.

Background

[4]      The appellant is a man with some involvement in the Papatoetoe community. He is, so I am told, a Justice of the Peace and is employed in the real estate industry. Central, however, to the issue of whether or not his name should be published is the fact that he is a candidate seeking election in the current local body elections.  The position which the appellant seeks is a place on the Papatoetoe Community Board.

[5]      Relevant  to  the  dynamic  of  the  local  body  election  is  the  fact  that  the opportunity for electors to cast a ballot is almost at an end.  I have been informed by counsel that the polls close at 1.00 pm on Saturday 9 October, two days time.

[6]      Because the mechanisms for local body elections involve the posting out of ballot papers to registered electors with an invitation for the specially bar coded ballot paper to be returned in an envelope, postal time lines are of importance.   I have been informed from the bar the Returning Officer’s recommendation is that to ensure arrival by 1.00 pm on Saturday 9 October, ballot papers should have been

posted yesterday.  There is an element of common ground between counsel, to the extent that it is relevant, that the bulk of electors, but not all, will by now have voted.

Alleged offending

[7]      The appellant is charged with an offence laid indictably under s 257(1)(c) of the Crimes Act 1961.  The charge is that together with another person he knowingly deployed an enrolment form which had been forged, thus causing another person (presumably electoral officials) to assume that the document was a genuine one.

[8]      I have been provided with a summary of facts.   There is no need, in the circumstances, for me to set out the basis on which the current police charge is mounted.  I am informed by Mr McCoubrey that police investigations are ongoing.

[9]      It  is  a  matter  of  some  public  knowledge  that  there  have  been  concerns expressed and ventilated in the media about unusual phenomena in the Papatoetoe ward,  including  the  enrolment  of  a  significant  number  of  electors  at  various addresses and also the removal, as a result of official investigation, of a number of names from the roll.

[10]     It is not apparent to me the extent to which, if at all, the appellant may be allegedly connected with those previous activities.  Suffice to say that the issue of the integrity of the electoral system in the local body elections, so far as it relates to this particular ward, has excited some public interest and has been the subject of some publicity.

District Court process

[11]     The appellant was apparently arrested some time mid-morning two days ago on 5 October.  Mr Mansfield informs me that he had previously been retained by the appellant.  At the time of the appellant’s arrest Mr Mansfield was involved in the last (and obviously critical) day of a homicide trial, so was not available to appear in the

Manukau District Court when the appellant made his first appearance.   He was, however, able to arrange for competent representation for the appellant in that forum.

[12]     Normally speaking, at a first call pleas are not taken.   Issues of bail are addressed.  Where there may be relevant issues relating to name suppression it will frequently be the case, particularly in a busy District Court, that a short window of opportunity of a day or two is afforded to counsel to investigate the issue of name suppression, if there is some possible merit lying behind such an application.  In the normal course of events one might have expected the appellant’s status, as both being employed in the real estate industry and a Justice of the Peace to have resulted in some consideration being given to the issue of name suppression and a brief opportunity for that matter to be responsibly investigated afforded.

[13]     Some  time  in  the  late  afternoon  Mr  Lawry,  who  was  appearing  for  the appellant,  made  an  application  under  s 140  for  an  interim  order  preventing publication.   The issue of bail was also addressed.   The whole matter was stood down (other than the name suppression issue) for a period of just over three weeks at which stage the plea and other matters would be addressed.   The appellant was bailed, it would appear, on his own recognisance.  The Judge, however, and properly so in my view, considered that because of the background to which I have briefly referred and the high degree of public interest, it was appropriate for her to deal with the issue of name suppression forthwith.   This she did.   At the outset of her oral judgment she referred to a number of representatives of the press being present and also a “larger than usual number of members of the public” appearing in the public gallery who appeared to be interested.

[14]     The Judge declined to make a suppression order.  That is the aspect of her judgment which is appealed.

The Judge’s reasons

[15]     The  Judge  succinctly  but  clearly  canvassed  all  the  relevant  reasons. Although  I  have  had  the  benefit  of  full  and  considered  submissions  from  Mr

Mansfield today, the core principles on which all parties rely were clearly placed before the Judge.

[16]     I have already referred to the fact that she was alert to current public interest in the matter. She referred to this twice in her judgment.

[17]     The Judge referred to the charge being a serious one.  It was laid indictably. It involved, as she said “activities that amount to fraudulent behaviour in connection with local body elections [currently underway].  “Thirdly, the Judge, as she had to do, referred to the presumption of innocence.   That presumption of innocence is enjoyed by all New Zealanders facing criminal charges.  The presumption remains and cloaks all defendants in criminal proceedings as innocent unless and until a guilty verdict is returned.

[18]     Fourthly the Judge referred to Mr Lawry’s submissions.   She encapsulated his submission, being that if the appellant’s name was published in the community, it could affect the election results.

[19]     Fifthly and counterbalancing that submission understandably advanced by the appellant, the Judge referred to the integrity of the electoral system and the fundamental requirement that all people engaged in the electoral system act honestly.

[20]     Finally, and importantly in my view, the Judge stated that were publication to be granted, suspicion would fall on other people involved in the election process as either candidates or as campaign workers.  Given the preceding publicity, this seems to me to be a real and live issue.

[21]     Those were the factors which led to the Judge reaching the conclusion that she  did.    It  is  very clear  that  she  balanced  all  competing  considerations.    The recitation, although brief, makes it clear that she had turned her mind to competing interests and had weighed them.

The appellant’s submissions

[22]     The  Court  is  indebted  to  Mr  Mansfield  for  the  care  with  which  he  has advanced responsible submissions.  First he referred to the issue of the short notice with which the appellant had been required to grapple with name suppression in the District  Court.    To  some  extent  (and  these  matters  have  been  set  out  in  the appellant’s  amended  grounds  of  appeal),  the  appellant’s  rights  under  the  New Zealand Bill of Rights Act 1990 might have been truncated.  Particular emphasis was laid on s 23(1)(b) - the right to consult and instruct a lawyer without delay; ss 24(a), (c), (d), and (e), being the right to be informed of the detail of the charge, again the right to  consult and  instruct a lawyer, the right to be given  adequate time and facilities to prepare a defence; and the right to a jury trial, although it is hard to see how  that  right  is  directly  engaged  here.    Finally Mr  Mansfield  referred  to  the omnibus right to justice contained in s 27 which must overarch our constitutional arrangements and criminal proceedings generally.

[23]     Although Mr Mansfield, in his submissions today, did not stress these matters I am alert to them.  They are fundamental rights which are engaged peripherally or otherwise in all s 140 matters.   But I do not consider those rights are centrally engaged in the facts of this case.

[24]     In addition to the submission of insufficient time to prepare an argument, Mr Mansfield laid considerable emphasis on damage to the appellant’s electoral campaign which would be inflicted if publicity were to occur.  There is a risk that the time and investment in his campaign might be lost.  Although not contesting that a large number of electors will already have voted, in the remaining two days, were there to be publicity, there could well be a significant number of electors who have not yet voted or who were not minded to vote who might, as a result of publicity, be galvanised into action and cast their ballot against the appellant.  That, in counsel’s submission, would be unfair.   Counsel had little confidence that the voting public generally, or the media in particular, would make any real distinction between an offence and an alleged offence.  Mr Mansfield referred to various media interviews there  had  been  hitherto  involving  candidates  in  the  local  body  election  who,

understandably   perhaps,   had   been   endeavouring   to   place   distance   between themselves and anyone who might be involved in electoral fraud.

[25]     In counsel’s submission the merits of the charge against the appellant would not be determined by a court for approximately 12 months.  Mr Mansfield submitted that were publicity to be delayed until say next week, there would be very little damage to the public interest factor and little impact generally on the public.

[26]     Mr Mansfield made strong submissions on the risks of courts operating in a vacuum.   There was no need for urgency in this particular situation.   Indeed any rights which the appellant might have to seek relief in respect of irregularities contained in Part 4 of the Local Electoral Act 2001 could be put in jeopardy.  Were the appellant to win the election, despite the allegation, then of course his opponents could invoke the District Court’s supervisory rights so far as electoral irregularities were concerned.   The appellant himself, however, if he were to lose, could not invoke those rights given the allegations of irregularities might be against him alone.

[27]     Mr Mansfield stressed to me the presumption of innocence.  He referred me to two recent Court of Appeal authorities of R v B1  and J v Serious Fraud Office.2

There were risks, submitted counsel, in underestimating the effect the publicity may have on those who have yet to vote.

Decision

[28]     I approach this on two levels.   The Judge had a discretion, which she was required to exercise in the circumstances, under s 140 of the Criminal Justice Act.  I have read and considered her decision with some care.  I am unable to find any basis on  which  she  has  incorrectly weighed  the  relevant  factors  or has  exercised  her discretion on improper or irrelevant grounds.

[29]     That, however is not the end of the matter.  There is more to this appeal than an appeal from the exercise of a discretion.  What is clearly involved at an appellate level is an assessment of the Judge’s evaluation of all relevant factors.  An appellate court has the clear responsibility of re-evaluating matters and reaching a contrary decision if it considers the decision in the court below was wrong.3

[30]     I have thus re-evaluated that decision.   Were it not for the fact that the appellant was a candidate in a local body election, still ongoing at the time of his arrest, I would have had considerable sympathy with Mr Mansfield’s submission as it relates to time to consider the suppression issue.  I note the authorities put to me by Ms Goatley and in particular the primary Court of Appeal authority of Lewis v Wilson and Horton Ltd.4    Great care must be exercised by courts to ensure that no particular  sector  of  the  public  or  an  occupational  group  are  given  a  privileged position so far as name suppression is concerned.  For a short interim period, whilst

name suppression was looked at and considered, there would have been possible arguments that some brief name suppression should have been afforded to the appellant, given his occupation and his status as a Justice of the Peace.

[31]     What sets this case apart, in my view is what was recognised by the Judge. The alleged offending against the appellant involves use of a forged document, the document in question being an integral part of the electoral system.  The Judge was right, in my view, when she gave considerable weight to the public interest, not just in the election then taking place, but also to the integrity of the electoral system generally.

[32]     Particularly is this the case, although the factor was not advanced strongly by counsel, nor was it placed before the Judge, with the current system which operates in local body elections, as I understand it, ballot papers covering such elections as mayor, ward councillors, community boards, hospital boards, and the like, are posted out to voters.  There is, as I have said, an extended period of time in which voters can return their ballot papers by post.

[33]     This  system  of  voting  is  markedly  different  from  that  used  in  General Elections where most voters have to present themselves at a polling booth.  It is well known that the postal system of voting has encouraged an increased turnout at local body elections.

[34]   But the entire system of enrolment and voting depends on people not endeavouring to manipulate the system for personal or political advantage.  I remind myself the appellant is not charged with any improper conduct relating to ballot papers, or personation, or matters of that type.   The charge against him relates to change of address enrolment forms.  Nonetheless, in any electoral system fraud of any type is difficult to check.  A high degree of trust and honesty must be demanded from  all  those  involved in  the process  including candidates  and  their  campaign supporters.  Thus the personal and political risks of publicity may, to some extent minimise  the  risks  of  improper  manipulation,  -  to  be  weighed  against  the presumption of innocence.

[35]     In addition to those factors, and importantly so because they were the factors which the Judge assessed, are the competing interests, first of the appellant’s presumption of innocence and secondly the starting point, in any consideration of s 140, that great weight must be given to an open system of criminal justice.

[36]     In my judgment it would be wrong in principle to prohibit publication of the appellant’s name given that he faces an alleged charge which is intricately involved with the voting process for an election in which he is one of many candidates.

[37]     Furthermore, as the Judge rightly pointed out, given the publicity which has been attendant on concerns relating to the Papatoetoe ward before the appellant’s arrest, not to publish the appellant’s name would cast unjustified suspicion on all other candidates at all levels of the pending local body election.   The damage to other possible candidates could be considerable.  The interests of justice, in my view, demand publication of the appellant’s name to remove any taint of suspicion from other candidates.

[38]     In short the conclusion I have reached is identical to that reached by Judge

Simpson.

Result

[39]     For all these reasons therefore the appeal is dismissed.   The interim order suppressing publication of the appellant’s name, made in the Manukau District Court on 5 October 2010, is set aside.

Suppression order

[40]     Immediately after I delivered my oral decision, Mr Mansfield sought a brief adjournment so he could take instructions on whether or not he ought to file an application to the Court of Appeal seeking leave to appeal my judgment.

[41]     Mr Mansfield has received instructions to that effect.

[42]     I am gravely concerned that the statutory right for special leave to appeal (which is a totally different animal from a right of appeal), may result in information which I consider should be in the public domain, not being disclosed.  There is in my judgment a very real risk (and this comment is not intended to be critical of Mr Mansfield) that the right to seek leave to appeal might result in exactly the same outcome, for procedural reasons, as would have been the case if the appeal had been allowed.

[43]     I have taxed Mr Mansfield as to what the issue of public importance or statutory interpretation  may be,  or  indeed  policy related  to  s 140,  which  would justify the Court of Appeal granting leave.  In other words, I have endeavoured to ascertain from counsel what the basis of such a leave application would be.   It is vitally important that leave applications not be used loosely to confer a second right of appeal which the law does not permit.

[44]     Mr Mansfield’s understandable reply was that he needed time to consider this matter and to reflect.

[45]     Both  Mr  McCoubrey  and  Ms  Goatley  opposed  the  application  made  by Mr Mansfield for continuation of the interim name suppression.  In their submission, my judgment was correct; there was no overarching policy matter of importance; and that it was important for Mr S  ’s name to enter the public domain before the conclusion of the local body election.

[46]     No counsel, however, were able to refer me to any authority or statute which would permit me to usurp the function of the Court of Appeal in this area, to grant or decline leave.

[47]     For my part, I would be surprised if the Court of Appeal were to grant leave, but that is their prerogative alone.

[48]     Were  I to  decline  Mr  Mansfield’s  request,  inevitably within  a matter  of minutes the appellant’s name would be in the public arena.   In fact, my concern about this issue led me to ask media representatives in Court whether there had been some  form  of  posting  of  Mr  S  ’s  name whilst  Mr  Mansfield  was  obtaining instructions.   The indications I received was that there has been no current publication.

[49]     Despite my concerns  and  indeed  my instinctive assessment  of  the likely outcome, I think it would be wrong in principle, absent any supporting authority, for me to destroy the appellant’s right to seek leave to appeal.

[50]     Given the lateness of the hour counsel were not able to refer me to the provisions which govern leave to appeal pathways in this situation.  Thus, if there is a need for a prior application to this Court for leave to appeal to the Court of Appeal, I refuse such application on the basis first of my oral judgment reasons and secondly on the basis of failure to identify any special issue which would justify the Court of Appeal’s attention.

[51]     Accordingly, there will be an interim order prohibiting publication of the appellant’s name until noon tomorrow, 8 October 2010.   This interim order, of course, extends to publishing identifying information between now and the Court of

Appeal’s resolution.  Whether or not that order is extended will not be a matter for this Court.  It will be entirely a matter for the Court of Appeal.

[52]     All counsel will need to monitor carefully websites etc because should, in fact, the appellant’s name be published, the right to seek leave to appeal will have been destroyed.   This has happened before, and is a matter which the Court of Appeal weighs.

[53]     This Court will use its best endeavours to get at least a rough draft of my oral decision to counsel by mid-morning tomorrow.

.......................................… Priestley J