Schofield v New Zealand Customs Service HC Wellington CRI-2007-485-22
[2007] NZHC 1762
•28 May 2007
ORDER MADE PROHIBITING PUBLICATION OF THE TITLES OF THE OBJECTIONABLE GOODS CONTAINED IN THE INFORMATIONS AND SCHEDULE TO CRN0508500598
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
CRI-2007-485-22
BETWEEN ROBERT JOHN SCHOFIELD Appellant
AND NEW ZEALAND CUSTOMS SERVICE Respondent
Hearing: 22 May 2007
Appearances: G J King for Appellant
C J Boshier for Respondent
Judgment: 28 May 2007
In accordance with r540(4) I direct the Registrar to endorse this judgment with the delivery time of 2pm on the 28th day of May 2007.
RESERVED JUDGMENT OF GENDALL J
[1] This is an appeal against convictions entered in the District Court at Wellington on 22 March 2007, and the refusal to grant suppression of publication of the name of the appellant. The convictions followed upon the appellant’s pleas of guilty to two charges of importing prohibited goods into New Zealand in breach of s209(1)(a) of the Customs and Excise Act 1996, the goods being objectionable publications within the meaning of the Films, Videos, and Publications Classification Act 1993 (“FVPC Act”).
[2] The charges related to the importation of a total of 11 DVD, Video and Text publications which were deemed to be objectionable by s3(2) of the FVPC Act. The
SCHOFIELD V NEW ZEALAND CUSTOMS SERVICE HC WN CRI-2007-485-22 28 May 2007
appellant was fined $150, Court costs $130 on one charge relating to a DVD and on a second (representative) charge, involving the importation of a further 10 objectionable DVDs, Videos, Text and Image publications, the appellant was fined
$750; Court costs $130.
[3] It had been contended on the appellant’s behalf that he should be discharged without conviction under s106 of the Sentencing Act 2002 and that an order for the permanent suppression of his name was sought. In the District Court, Judge S M Harrop declined to discharge without conviction or to order suppression. Accordingly this appeal is brought.
Essential background facts
[4] The appellant is a 49 year old consultant planner who resides in Wellington. His marriage ended in 1981. He has no previous convictions. On 23 September
2004 the New Zealand Customs Service at Auckland International Mail Centre intercepted a package containing DVD publications which the appellant had imported. One of the DVDs was objectionable within the meaning of the FVPC Act. A search warrant was then executed at the appellant’s Wellington address in November 2004. A number of DVDs, text and other publications were uplifted. Eventually, all of the publications in the possession of, or destined for the appellant, were assessed by the Classification Office, and reviewed by the Film and Literature Board of Review after appeal by the appellant. In the end a total of 11 publications were found to be objectionable within the meaning of the Act.
[5] The material had been acquired by the appellant over a 13 month period. It is not necessary for the purpose of this judgment to describe their somewhat colourful titles, or the subject matter, other than to set out the provisions of the FVPC Act which deemed them to be objectionable. Section 3(2)(b) where relevant provides:
“A publication shall be deemed to be objectionable for the purposes of this Act if the publication promotes or supports, or tends to promote or support,—
(a) the exploitation of children, or young persons, or both, for sexual purposes; or
(b) the use of violence or coercion to compel any person to participate in, or submit to, sexual conduct; or
(c) ….; or
(d) the use of urine or excrement in association with degrading or dehumanising conduct or sexual conduct; or
….”
[6] After the appellant’s challenges to the classification of the publications as objectionable had failed, and eventually the 11 items the subject of the two charges were held to be objectionable, he pleaded guilty to the amended charges being those of strict reliability. That is because s209(4) of the Customs and Excise Act 1996 provides that it is not a defence to a prosecution for importation of prohibited goods that a defendant had no knowledge or no reasonable cause to believe that the goods in respect of which the offence was committed were prohibited imports.
[7] The appellant had the benefit of an interim order for suppression of publication of his name up until the time of sentence.
Summary of the 11 items, the subject of the two charges
[8] Within the deeming provisions of s3(2) the publications were prohibited because they promoted or supported or tended to promote or support:
• The use of violence to compel any person to participate in or submit to sexual conduct – 1 publication
• The use of urine in association with sexual conduct together with the use of violence to compel any person to participate in or submit to sexual conduct – 1 publication
• The use of urine in association with sexual conduct together with the exploitation of young persons for sexual purposes – 1 publication
• The use of urine and excrement in association with sexual conduct – 1 publication
• The use of urine in association with sexual conduct – 7 publications
Judge’s decision
[9] When sentencing the appellant Judge S M Harrop had thorough written submissions from counsel for the informant and appellant, and heard oral submissions. He said he was prepared to give the appellant credit for the guilty plea having regard to the history of negotiation and consideration of the material by the Classification Board. The appellant had pursued an argument or submission that if particular conduct was not unlawful in New Zealand, then publication of it should not be deemed objectionable. However, given the deeming provisions of the legislation, such a contention is bound to fail.
[10] The Judge said the offending, or some of it, fell into the category of:
“the use of violence or coercion to compel a person to participate in or submit to sexual conduct and [others] relate to…legislation which involves the use of urine or excrement in association with degrading or dehumanising conduct or sexual conduct.”
[11] As mentioned, one of the publications involved in the representative charge however, tended to promote or support the use of violence to compel participation in sexual conduct and another tended to support the exploitation of young persons for sexual purposes.
[12] The Judge accepted counsel’s submission that the offending in relation to the publications involving the use of urine was offending of a lesser type within that category, but referred to the text which tended to promote exploitation of a “young person”. The Judge gave a discount for guilty plea, and accepted the approach to the sentencing exercise was to proceed:
“on the basis that [the appellant] did not know that the material was objectionable at the time it was imported; that it was for personal use not commercial use; that the activity described and depicted is not unlawful except with the possible exception to the text story….It is not unlawful, albeit not to everyone’s taste.”
[13] The Judge in the end said that he accepted the gravity of the offending was lower than otherwise may have been the case, but regarded it as being low-moderate.
[14] Counsel argued that the appellant should be discharged without conviction. The Judge correctly observed that he had to assess the gravity of the offending and weigh it up against the direct and indirect consequences of a conviction being entered. Judge Harrop outlined the submissions of counsel and proceeded to weigh up relevant factors. He referred to the fact that the appellant had no criminal record; would be subject to shame and ridicule through a conviction; had been subjected to anxiety, stress and costs; conviction was itself a penalty; the offending did not involve a victim or direct harm to the community but rather was a matter of personal use; and there was no need for personal deterrence. There had been an affidavit of the appellant, which the Judge considered, and although described as being in support of the application for name suppression, nevertheless it referred to claimed effects by the appellant upon his children, his private and professional status and health.
[15] The Judge concluded:
“This is not a typical case perhaps of an application for a discharge without conviction where there is an affidavit filed with the application explaining the difficulties or prevention of travel overseas or employment consequences that would result from a conviction. Rather the matters put forward are of a more general nature associated with the nature of this charge. When I stand back and weigh the low to moderate seriousness in terms of gravity of this offence against what I see as the relatively few adverse consequences of entering a conviction, I am not satisfied that the onus is discharged in this case, it is a stiff test to overcome to say that the consequences are out of all proportion to the gravity of the offence and in my judgment that test is not met. I therefore propose to enter a conviction on each charge.”
Outcome of appeal against conviction
[16] Section 106 of the Sentencing Act 2002 empowers the Court to discharge without conviction any person who is found guilty or who pleads guilty of an offence, unless the enactment requires the imposition of a minimum sentence. The forerunner to s106 was s19 of the Criminal Justice Act 1985 and, earlier, s42 of the Criminal Justice Act 1954. A three-step process in determining whether discharge without conviction should be granted was described in the Court of Appeal decision of Fisheries Inspector v Turner [1978] 2 NZLR 233 (CA) when considering s42. Those steps were to assess the gravity of the offending; secondly, the direct and indirect consequences of the conviction had to be identified; thirdly, the Court had
to make a determination whether the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offending. That case dealt with the earlier s42 but the three-step approach is still regarded as appropriate.
[17] However, the statutory provisions in the 1954 and 1985 legislation did not include what is now s107. It is expressed in the negative and provides:
“107 Guidance for discharge without conviction
The court must not discharge an offender without conviction unless the court is satisfied that the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offence.”
[18] There may be many circumstances which will justify a Judge exercising his or her discretion to discharge without conviction. They may relate to personal circumstances of the offender, their family, work considerations, past behaviour or actions (although these would rarely without more be relevant as consequences arising out of the conviction), future travel or career aspirations, or relate to trivial offences. But those are only examples and there may be many other circumstances. However, whatever the reasons advanced for a discharge a statutory prohibition remains preventing the granting of such unless the appellant can pass through the gateway as provided by s107. A Court must not discharge unless satisfied as to the pre-requisite features.
[19] Mr King said that the Judge failed to give proper weight to the appellant’s personal circumstances; possible impact of a conviction upon his career and reputation; the absence of knowledge that the material could or was objectionable was relevant; there was no need for deterrence because of the appellant’s state of mind and his offending was minor (and not “low to moderate” as the Judge described). He argued there was no suggestion of offending since November 2004 and the passage of time, cost, anxiety and stress since then were factors that had to be taken into account. He submitted that the “core material” depicted in the publications was lawful and consensual and did not involve “victims”.
[20] Those were all matters submitted to the Judge, but counsel specified a number of ways in which he said the Judge erred in the weight he gave to the
circumstances of the offending, its nature and gravity, and failed to give proper weight or recognition to the tortuous path through the Classifications Office and review process by the Board to the ultimate outcome.
[21] Mr King submitted that the appellant was remorseful, although it is not altogether clear how this might be an adverse direct, or indirect consequence of conviction. Given the appellant’s lengthy challenge to the contention that the material was objectionable, it may be that the remorse relates more to his predicament than an acceptance of contrition that the importation was wrong. Because of the deeming provision a guilty plea was inevitable.
[22] It is well known an appeal against a Judge’s decision to decline to discharge without conviction present appellants with the usual difficulty that it is against the exercise of a discretion by a sentencing Judge. Provided that relevant matters are considered and irrelevant considerations disregarded an appellate Court does not lightly interfere with the exercise of the sentencing Judge’s discretion. As the Court of Appeal said in B v Police (No. 2) [2000] 1 NZLR 31 (CA) at [6] – a case relating to bail appeals:
“Someone who appeals a refusal of bail and is unable to point to a material change in the circumstances since the lower Court’s decision faces the difficulty that it is a challenge to the exercise by a Judge of a discretion. The appellant must therefore establish that the refusal of bail was contrary to principle, or that the Judge failed to consider all relevant matters or took into account irrelevant matters, or that the decision was plainly wrong.”
[23] The exercise of the discretion in this area must be based upon relevant circumstances relating to the offender and whether the consequences to that person of a conviction outweighs to a large extent – that is out of all proportion – the gravity of the offence. That has to be a question of judgment based upon particular circumstances of the individual case.
[24] The first step is to assess the gravity of the offending. The offending, fixed by the Judge in the moderate-low range, could not be said to be trivial. It involved
11 publications, 10 of which were the subject of the representative charge. The appellant was entitled to contest the Customs Service claim that the material was objectionable. But in the end his concern really related to the legislation that
Parliament enacted, because in terms of s3(2) it has deemed that this type of publication is objectionable for the purposes of the Act and liability is made strict for the importation of such material. The fact that a person, or the appellant did not realise or believe it to be objectionable, would not, of itself, carry much weight when viewing the gravity of the offending. Otherwise, a subjective belief that the material was not objectionable might always be advanced in order to minimise the gravity or the effect of the offending. The legislature has made it clear that there is strict liability for the importation of objectionable material. Obviously there will be some, of particular interests or persuasions, who import material and do not regard such to be objectionable – that is why they import or seek it for their personal enjoyment or benefit. But it remains clearly objectionable and unable to be imported in terms of the legislation. Subjective belief could never be the test as the law stands. A belief, albeit honest but misguided, that there was nothing wrong with the importation of the items may not aid an offender in avoiding a conviction especially where there was deliberate importation over a significant period of a number of objectionable publications.
[25] The argument of counsel that the activity depicted in some of the publications was “lawful and consensual and involved no victims”, can only go so far when considering the gravity of the offending. That is because the criminal offence is the importation of the publications which is prohibited because of their very nature – whether they depict criminal behaviour or not. There may be all manner of activity between consenting adults in private which are not unlawful, but when depicted in publications are objectionable and importation prohibited provided the content meets the statutory criteria of promoting or supporting or tending to promote or support factors set out in the subsection. It was submitted before the District Court Judge that the “objectionable” classification was controversial, but given the deeming provisions in the statute I do not accept that submission.
[26] Turning to the direct and indirect consequences of the conviction. The appellant emphasised he had no record of offending against the Customs and Excise Act 1996. There is no suggestion that the appellant would lose his employment through a conviction, although he does assert that if his name is published (and that is something different from a conviction being entered) he and his business may not
attract the same following of customers that otherwise would be the case. It is said there would be scorn, ridicule, or disapprobation of others. The appellant had advanced questions of his health, and distress to his children should he be convicted. The health issue, at least according to the material before the District Court Judge, was not especially unusual with regard to persons suffering trauma through marriage breakdown as well as anxiety over criminal charges that they face. Matters relating to the concerns for the appellant’s children as presented to the Court were largely to the issue of continued name suppression. Distress to an offender and his/her family is not especially unusual following upon conviction and it will be a matter of degree whether, in all the circumstances, such is a consequence that is out of all proportion to the gravity of the offence.
[27] I do not accept the submission that the Judge failed to give proper weight to the appellant’s personal circumstances, the impact of conviction on his career and reputation and other matters. Matters of weight were for the Judge. It is apparent that he carefully assessed the arguments and material presented to him. The direct and indirect consequences of conviction were of course those involving entering of a conviction, issues of shame and ridicule and embarrassment on the appellant and his family, but as the Judge said, this was not a typical case where much else had been advanced in support of a discharge without conviction. He said that most of the argument advanced by counsel had related to the issue of the gravity of the offence and the general nature of the charge. The Judge was entitled to reach the view that the lengthy prosecution process was not really a direct or indirect consequence of the entry of a conviction. It was a procedure that the appellant adopted as he was entitled to, but was not something that was significant when determining whether to grant a discharge under s106.
[28] I am satisfied that Judge Harrop gave careful and proper weight to the personal circumstances of the appellant, his family and, the possible impact of a conviction on his career and reputation and his assessment of the gravity of the offending as being not trivial. He agreed that there was no need for personal deterrence but rightly, in my view, noted that general deterrence of others is a factor as observed in C v Customs HC AK CRI-2005-404-393 5 May 2006 Lang J (a suppression order case) where His Honour observed at [30]:
“The issue of general deterrence rather than individual deterrence, is of primary importance in this area….The fact that publication is likely to occur if the offender is caught is one of the principle means by which general deterrence can be achieved.”
Those remarks were made in the context of an application to prevent publication but they nevertheless equally apply to the comments of Judge Harrop at [29] of his sentencing remarks. Public awareness that conviction is likely if caught importing prohibited material is a relevant general deterrent consideration.
[29] The Judge found that direct and indirect consequences were not out of all proportion to the gravity of the offence so that the statutory test was not met. He clearly adopted the three-step approach which I have outlined. He did not ignore relevant considerations or take into account matters that he should not have. It was clearly open to him to enter convictions and impose fines which were, in the circumstances modest and he gave considerable concessions to the appellant in fixing the level of fines. It was entirely open to him to enter convictions and it is not appropriate for this Court to interfere with the exercise of his discretion.
[30] The appeal against conviction is dismissed.
Name suppression
[31] There was no contest to the level of fines and costs imposed. The appeal against sentence proceeds only as to the Judge’s refusal to order suppression of publication of the appellant’s name.
[32] As indicated, many of the factors already mentioned were advanced by the appellant in support of this aspect of the appeal. Counsel submitted that the Judge erred by considering that the public interest was the dominant purpose of publication and failed to properly assess the private interests of the appellant, and others, which would be affected if there were publication of the appellant’s name. He said that this was not a case where there was any legitimate interest in exposing offenders because the behaviour simply involved a private “fetish”, itself not unlawful. He said the appellant’s right to privacy had to be considered being equally as relevant to the public interest. He argued that there would be employment consequences, because
of adverse impact on statutory reputation within the town planning sphere in which the appellant worked.
[33] Counsel further argued that the public had no general interest in being aware of Mr Schofield’s name; he was subject to stress and depression; and that, as indicated in the letter submitted to the Court, the appellant’s children were having counselling and help to deal with issues relating to the separation of the parents, the disclosure of the appellant’s sexual preferences, and that publication of his name could lead to further distress to the children.
The Judge’s decision on name suppression
[34] In dealing with the suppression application the Judge referred to the “presumption in favour of publication of name on conviction” and to the well known authorities and various pronouncements of High Court Judges dealing with matters in first instance. He observed that he intended to apply a test referred to by Priestley J in Lerner v Department of Internal Affairs HC AK CRI-2003-404-299 20 May
2004 at [14] namely:
“The interests of open justice must be weighed against unfair or unusual detriment to the offender.”
[35] The Judge referred to the appellant’s affidavit in which three main, or fundamental, reasons were advanced why suppression was appropriate. These were the effects upon the appellant’s daughters, his professional standing and general wellbeing. The Judge dealt with each of those matters. He accepted that there may be adverse consequences for the daughters upon publication and that the appellant’s own stresses were likely to have impact upon them in an indirect way, and went on to say:
“…so I think considerable weight must be placed on that evidence; the impact on innocent family members, especially young children at difficult stages of development is always a matter for concern when it is present, by comparison with consequences for the offender himself.”
[36] The Judge then dealt with the appellant’s concerns for his professional reputation and observed:
“…If [the professional reputation] is well-deserved and earned, as I am sure it is in this case, it will survive this sort of knock, people you deal with will not suddenly think of you as a lesser quality planner or Resource Management Consultant because of this matter. They may look at you slightly differently, but ultimately what will matter to them is the quality of your work; this is not work-related offending.”
[37] The Judge then referred to what he said was “a sense of honesty” (and which Mr King has taken issue with in his submissions). What the Judge appeared to be saying was that people were entitled to know with whom they are dealing and make their own judgment and, in many cases, will be simply to put any knowledge to one side. He said that that was:
“…because they know you very well and have a high impression of you, rather than for them to be deprived of the opportunity to make those judgments. So while I unreservedly accept there are risks in this area and that you hold very genuine concerns about it, I certainly do not put these considerations in the same category as the effects on your daughters.”
[38] After referring to the question of the appellant’s health and wellbeing the Judge then turned to look at what he said were “the principles of open justice” regularly referred to by the High Court and Court of Appeal. He referred to the remarks of Lang J in Marshall v Department of Internal Affairs, namely:
“almost inevitably in cases of this kind there are severe effects on families and unfortunately they cannot outweigh the public interest factors.”
[39] The Judge emphasised that he had to decide where the balance lies. After weighing up all matters he came to the conclusion that the combination of factors, while significant, were not sufficient to overcome the strong principle of open justice. He concluded:
“…I consider that while the concerns that are put forward are undoubtedly real, genuinely held, they are not so severe to fall into the category of unfair or unusual detriment, rather they are not especially unusual consequences of this type of offending and publication of it.
[47] They are indeed more or less usual or to be expected and although there are some aspects, especially in relation to your daughters and your medical situation which are significant, I am not persuaded that they amount to unusual detriment, nor do I think that the inevitable detriment can be said to be unfair. There is an appropriate or legitimate level of detriment arising from the offending itself and I do not think the consequences of publication which accompany the entry of a conviction except in exceptional cases can be said to be unfair.”
Discussion
[40] As Judge Harrop stated, the established approach and authorities are well known and the cases emphasise the presumption in favour of publication of name after a conviction has been entered. It is said to be inappropriate for any fettering code to be laid down given that the legislature has left it to judicial discretion, but the prima facie presumption as to reporting is in favour of openness. In R v Liddell [1995] 1 NZLR 538 (CA) the Court of Appeal said at 546:
“In considering whether the powers given [to suppress name] should be exercised, 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’….The basic value of freedom to receive and impart information has been re- emphasised by s 14 of the New Zealand Bill of Rights Act 1990.”
[41] Later, the Court of Appeal in Proctor v R [1997] 1 NZLR 295 (CA) confirmed that basic principle of open justice, saying that the starting point of openness applied to the issue of name suppression before and after trial, with a key difference being that the presumption of innocence was not relevant following a conviction, but although undoubtedly a factor to be taken into account where there is application pre-trial.
[42] Suppression may be justified in the case of acquittal, or even conviction, of a truly trivial charge where damage caused to the accused by publicity plainly outweighs any genuine public interest. But of course suppression of name following acquittal was not automatic. After conviction, naturally, an applicant cannot claim the benefit of the presumption of innocence. Although the discretion is unfettered, some factors usually taken into account in determining whether the prima facie presumption should be displaced include those referred to by the Court of Appeal in Lewis v Wilson & Horton Ltd [2000] 3 NZLR 546 (CA) at [42]:
“• 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, an 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 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.”
[43] The Judge must identify and weigh the interests, public and private, which are relevant in the particular case. It will be necessary to confront the principle of open justice and on what basis it should yield. And since the Judge is required by s 3 to apply the New Zealand Bill of Rights Act 1990, it will be necessary for the Judge to consider whether in the circumstances the order prohibiting publication under s 140 is a reasonable limitation upon the s 14 right to receive and impart information such as can be demonstrably justified in a free and democratic society (the test provided by s 5). Given the congruence of these important considerations, the balance must come down clearly in favour of suppression if the prima facie presumption in favour of open reporting is to be overcome.”
[43] In the present case the appellant pleaded guilty, and has been convicted of offences, which while not “grave”, nevertheless are accurately described by the Judge in the moderate to low category, and were not of a truly trivial nature. The Judge had lengthy submissions before him as to matters personal to the appellant, his profession and his children. Embarrassment, anxiety, harm to the appellant or third parties, or damage arising from publication, should be out of the ordinary and disproportionate to the public interest in open reporting, to justify suppression. Commonplace factors such as the absence of previous convictions and standing in the community have marginal relevance unless publication would result in identifiable harm extending beyond what is normal in such cases.
[44] Whilst it is correct, as counsel submitted, that the offence is one of strict liability, the presumption in favour of publication is not necessarily weakened
because an offender may have acted in ignorance of the law. That factor, without more, would rarely justify suppression to prevent publication as an inevitable consequence of conviction. The mischief which Parliament has legislated against is the importation of material deemed to be objectionable. It is inevitable that many who import such material may do so in the belief that it is not objectionable, simply because it is of a character which interests them.
[45] Of course, the impact of publicity on the appellant’s children is something that has to be taken into account, and the District Court Judge did so. Clearly, it was a matter, as he said, to which he gave “considerable weight”. It was a matter considered by the Judge when coming to the view that together with the other cumulative circumstances, was not sufficiently weighty or persuasive to displace the presumption of open justice.
[46] Sadly, it is frequently the case that children require professional counselling and assistance to handle emotional issues arising out of their parents’ separation and other family matters. It seems that in this case counselling to assist the children come to terms with the family separation and their father’s sexual preferences has been occurring for perhaps five years. Whilst the possibility of publication of the appellant’s name may provide further anxiety or embarrassment to them, given that it is five to six years since their parents separated. I do not think the Judge erred in his conclusion that any effects did not amount to unusual or inevitable detriment that could be said to be unfair.
[47] Mr King argued in this Court that there was no genuine interest held by the public in knowing the name of the appellant and no purpose would be served in refusing suppression. But the public interest arises out of “open justice” and, as was said in M v Police (1991) 8 CRNZ 14 at 15:
“The public should know what is going on in their public institutions. It is important that justice be seen to be done.”
[48] Counsel contended that the appellant’s right to privacy would be infringed or compromised by publication of his name because it would then become known of his interest in a particular activity not unlawful in New Zealand. It was further argued
that the Judge erred because the publication involved activity between consenting adults and any legitimate interest in publication did not outweigh his private interests and those of his daughters. He submitted that the publication was unfair where the offending was “without criminal intent or even knowledge that the material concerned was or might be objectionable”. That is, that because there is strict liability involved in this particular breach of the Customs and Excise Act 1996, and because of the nature of the prohibited and deemed to be objectionable material, publication was “unfair”.
[49] The “right to privacy” argument was something that was discussed, in the context of the privacy rights of a victim, not an offender, in Victim X v Television New Zealand 20 (CRNZ) 194 (CA). There an intended victim of a conspiracy to kidnap had originally obtained an order suppressing publication of any particulars likely to identify him or his family but such order was later set aside by the trial Judge during the course of the jury trial. The Court of Appeal dismissed an appeal against the decision declining to continue suppression of the victim’s name. Privacy interests had been strongly advanced.
[50] The trial Judge’s assessment of those privacy interests, is set out by the Court of Appeal, and part of that passage is recorded at [52] of the Court of Appeal’s decision (being [50] of the Judge’s reasons). In part he said this:
“At the end of the day, claims to privacy are claims to control access to what one takes to be one’s own personal domain. Increasingly, such a right has come to be seen as essential to individuals if they are to be respected as human beings and allowed to lead the kinds of meaningful lives that our social order is supposed to support, indeed cherish….Privacy is thus what I would term a ‘respect based’ right, or interest.
[51] Then there are other kinds of rights which go to the existence of New Zealand society as a system of ordered liberty. Two of those rights are freedom of speech and open trials, and these are general and fundamental rights based on ‘deep’ social policy and political considerations. To put it shortly, they go to the very existence and health of our political and legal institutions.
….
[53] An informed citizenry is critically important to the just institutions of a democracy such as we have in New Zealand. Generally speaking therefore, any inroad into the ‘openness’ principle will turn on necessary restraints to protect those underlying fundamental rights themselves.”
[51] Those remarks emphasise the fact that any right of privacy vested in a person convicted of an offence, which may have some connection with private actions (that is in this case importation of material deemed to be objectionable for private consumption) has to be balanced against the presumption of open justice which is especially important after conviction.
[52] I have considered whether there could be prohibition of the publication of the reasons why the publications were deemed to be objectionable, so as to meet the privacy argument. But the difficulty with such an approach is that the public would, if it was interested or wished, be left to speculate on the nature of the prohibited goods imported, and this could well operate unfairly towards the accused. That which is kept secret can fuel speculation by others about what is hidden. “Tinkering” type suppression orders can carry with them the danger that the “healthy winds of publicity” do not blow through the workings of the Courts, and may work unfairly, do more harm than good. But, there is no necessity however for the titles of the DVDs and other material to be published, as they add nothing to the essential particulars which accompany the informations upon which the appellant was convicted.
Conclusion
[53] It has not been shown that the Judge failed to give proper weight to relevant factors advanced in support of suppression of the appellant’s name. He did not err in his approach to the basic principle of open justice and limits upon it. The collective reasons which the Judge outlined, in exercising his discretionary jurisdiction, cannot be faulted. This Court does not disturb such a decision unless based on the wrong principle or otherwise shown to be sufficiently clearly to be wrong (R v Liddell (supra) at 545). This Court would have reached the same conclusion independently on the merits. The cumulative factors put forward on the appellant’s behalf are not sufficient to displace the starting point of publication following conviction.
[54] Accordingly, the appeal against conviction is dismissed. The appeal against the refusal to grant an order to suppress the publication of the name of the appellant is dismissed. There will be an order prohibiting publication of the titles of the
objectionable goods contained in both informations and the schedule to
CRN0508500598.
[55] The interim order for suppression shall lapse at 5pm on Tuesday the 29th day of May 2007.
………………………………..
J W Gendall J
Solicitors:
G J King, Wellington for Appellant
Crown Solicitor, Wellington for Respondent
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