Shepherd v Police
[2018] NZHC 1167
•23 May 2018
IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY
I TE KŌTI MATUA O AOTEAROA WHANGĀREI TERENGA PARĀOA ROHE
CRI-2018-488-12
[2018] NZHC 1167
BETWEEN TODDY SHEPHERD
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 14 May 2018 Appearances:
R Parangi for the Appellant M Smith for the Respondent
Mr Dinsdale, Chief Reporter, Northern Advocate
Judgment:
23 May 2018
JUDGMENT OF GORDON J
This judgment was delivered by me on 23 May 2018 at 11.00 am, pursuant to
r 11.5 of the High Court Rules
Registrar/Deputy Registrar Date:
Solicitors: Crown Solicitor, Whangarei
R Parangi, Kaitaia
Copy to: Mr Dinsdale, Northern Advocate
SHEPHERD v POLICE [2018] NZHC 1167 [23 May 2018]
Introduction
[1] The appellant, Toddy Shepherd, faces six representative charges of theft by a person in a special relationship1 and a single charge of obtaining by deception.2
[2] In the District Court at Kaitaia on 29 March 2018, Judge McDonald refused Ms Shepherd’s application for name suppression.3
[3] The grounds of appeal in the notice of appeal are that publication of her name would cause extreme hardship to her current employer, the He Korowai Trust (the Trust); that publication would cast suspicion on people associated with the Trust which would result in undue hardship for them; and that publication would cause extreme hardship to her two teenage daughters.4
[4]The Crown opposes the appeal and submits it should be dismissed.
Alleged factual background
[5] I take the allegations from the police summary of facts which was before Judge McDonald. In May 2012, Ms Shepherd was employed by CCS Disability Action as a regional manager of the Hononga Rawhiti region.
[6] As her position covered a large area of the North Island, there were provisions in her contract for travel, accommodation and other associated costs. These provisions excluded costs for accommodation and other expenses within Ms Shepherd’s home area, listed as Hawkes Bay.
[7] In the first year of her employment, a provision of $1,500 total costs was allocated to travel for Ms Shepherd where receipts were provided. In the second year, this was changed to $250 per month. In the third year, this was changed again to
$5,000 total costs for the year.
1 Crimes Act 1961, s 220(2).
2 Section 240(1)(a).
3 New Zealand Police v Shepherd [2018] NZDC 6400.
4 Refer further at [38] and [61] below for correct test.
[8] In her position as regional manager, Ms Shepherd was required to have full knowledge of financial policies which covered the use of company credit cards. The statements from any credit cards were required to be signed off by either the Chief Executive or board members.
[9] In 2013, CCS Disability Action changed its auditing system from having each branch audited through separate firms to a single firm which audited the whole company. It had been noted to the Chief Executive that there was a high level of expenditure for travel and accommodation. He asked that the audit process pay particular attention to this.
[10] The audit identified a high level of expenditure and a large sum which had been charged to a credit card, including cash withdrawals which were against company policy. The credit card was found to be in the name of Ms Shepherd.
[11] I will not detail the specific allegations any more than that. But they generally involve unauthorised expenditure relating to accommodation, cash withdrawals, credit card purchases, flights, rental cars and petrol.
[12] In November 2015, Ms Shepherd resigned from her position with CCS Disability Action.
[13]The total amount sought to be recovered from Ms Shepherd is $103,614.99.
Fresh evidence
[14] Judge McDonald treated the application before him as an application under s 200(2)(a) of the Criminal Procedure Act 2011 (CPA) on the basis that publication of Ms Shepherd’s name would be likely to cause extreme hardship to the Trust. There was no evidence that publication would be likely to cause extreme hardship to Ms Shepherd’s daughters. That ground was not argued before Judge McDonald.
[15] Ms Shepherd has sworn an affidavit dated 13 April 2018 regarding the alleged effects on her two teenage daughters if publication were to occur.
[16] There is also an affidavit from Ricky Houghton, the Chief Executive of the Trust, sworn 13 April 2018. Mr Houghton details the alleged effects of publication on the Trust, and those employed by the Trust. He also comments on what he considers would be the effects of publication on Ms Shepherd’s daughters.
[17] Mr Parangi, who appeared for Ms Shepherd, advised the Court orally that Ms Shepherd no longer advances the ground of appeal in relation to her daughters. He accordingly withdrew the application to adduce Ms Shepherd’s affidavit and the part of Mr Houghton’s affidavit that relates to Ms Shepherd’s two daughters.
[18] As to the second ground of appeal, namely that publication would cast suspicion on people associated with the Trust resulting in undue hardship for them, Mr Parangi submits that there was sufficient evidence before Judge McDonald such that the Judge should also have considered Ms Shepherd’s application under s 200(2)(b) of the CPA. Mr Parangi says the evidence in Mr Houghton’s affidavit filed in this Court simply supplements his evidence before Judge McDonald, both in relation to s 200(2)(a) and 200(2)(b).
[19] The Crown Solicitor, Mr Smith, for the respondent, does not oppose admission of the part of Mr Houghton’s affidavit that supplements the evidence in the District Court in relation to s 200(2)(a), but does oppose the evidence which is said to supplement Mr Houghton’s evidence in the District Court in relation to s 200(2)(b). Mr Smith submits that no issue under s 200(2)(b) was truly raised in the District Court. Accordingly, this is effectively a new argument and the Court should not admit the evidence. In any event, the evidence lacks detail. It contains assertions without any foundation.
[20] Section 335 of the CPA allows the Court to receive new evidence in an appeal if it thinks it necessary or expedient in the interests of justice.
[21] Generally, new evidence will need to be credible and fresh.5 But the overriding criterion is the interests of justice.6
5 Lundy v R [2013] UKPC 28, [2014] 2 NZLR 273 at [120]; R v Bain [2004] 1 NZLR 638 (CA) at
[22].
6 Lundy v R, above n 5, at [120]; R v Bain, above n 5, at [22].
[22] The procedural history so far as it is relevant to this issue is apparent from the decision of Judge McDonald as follows:7
[5] The seven charging documents were filed by the New Zealand Police in the Kaitaia District Court on 10 January 2018. The first calling was for the same day. Prior to the charges being filed, on 8 January 2018 an application for transfer to the Auckland District Court was made by Mr Bioletti, then counsel for Ms Shepherd. The ground advanced for the transfer was that Ms Shepherd wished to plead guilty. The case was transferred on that basis.
[6] When the case was called before the District Court on 26 January 2018 in Auckland with the defendant present and Mr Bioletti, she pleaded not guilty and elected trial by Judge alone. The District Court Judge who heard the case in Auckland has noted on the charging document, “ISON” (which is interim suppression of name) granted to next appearance, arguable case re extreme hardship to employer trust.” The Judge then made an order transferring the case back to Kaitaia for hearing on 29 March 2018, that is today. It is for a case review hearing.
[23] In refusing an application on behalf of Ms Shepherd to treat her second appearance as a continuation of the first,8 Judge McDonald stated that Ms Shepherd had had from 26 January 2018 until 29 March 2018 to gather the necessary evidence and information to support her application. She did not do that. Judge McDonald therefore heard oral evidence from Mr Houghton, noting that was not ideal.
[24] Mr Parangi submits that Ms Shepherd was effectively without full representation when she appeared in the District Court at Kaitaia. It is recorded in Judge McDonald’s decision that when the case was first called before him, Mr Parangi appeared for former counsel Mr Bioletti.9 Mr Parangi sought leave, on behalf of Mr Bioletti, for him to withdraw. The Judge granted that application. Mr Parangi then appeared as Duty Solicitor for Ms Shepherd10 in the course of a busy list of other matters set down before the Judge.11
7 New Zealand Police v Shepherd, above n 3.
8 A procedure sometimes adopted at a second appearance which allows for the lesser standard of ‘arguable case’ under s 200(4) of the Criminal Procedure Act 2011 to be adopted on the second appearance.
9 New Zealand Police v Shepherd, above n 3, at [5].
10 At [8].
11 At [7].
[25] Mr Parangi tells me from the bar that Ms Shepherd was under the misapprehension that name suppression had been dealt with. She was not aware of a need for name suppression to be reargued on her second appearance.
[26] In my view, none of the proposed evidence from Mr Houghton is fresh. It could, with reasonable diligence, have been advanced in the District Court. However, given the circumstances of the application coming before Judge McDonald, I consider it is in the interests of justice to admit the evidence of Mr Houghton that is said to go to both s 200(2)(a) and s 200(2)(b). In relation to s 200(2)(a), the affidavit evidence covers the ground of part of the oral evidence that was given before Judge McDonald. Although the oral evidence of Mr Houghton has now been typed up for the purposes of this appeal.
[27] In relation to the evidence said to support an order under s 200(2)(b), the evidence in the affidavit goes beyond what was given in evidence before Judge McDonald. Nevertheless, for the reasons already given, it is in the interests of justice that it be admitted.
District Court decision
[28] As noted above, Judge McDonald’s decision was based solely on s 200(2)(a). The judgment records that Ms Shepherd relied on that provision to argue that publication of her name would be likely to cause extreme hardship to her current employer, the Trust. The Trust is reliant on grants and funding. Ms Shepherd submitted that there was a concern that a person in charge of funding might cease to support the Trust if Ms Shepherd’s name was published.
[29] Judge McDonald identified the high standard that must be met before there can be a finding of extreme hardship.12 The Judge then examined the specific claims made by reference to the oral evidence of Mr Houghton.13 He ultimately concluded:
[24] What has been advanced does not reach the high threshold of extreme hardship to the trust. In my view the types of potential consequences spoken about by Mr Houghton are typical for any organisation where a senior member
12 New Zealand Police v Shepherd, above n 3, at [16].
13 At [19]-[23].
of that organisation has been charged with dishonesty offences, even ones which rely on public donations for their survival. It is not out of the ordinary for such consequences. I make no criticism of Mr Houghton for continuing to employ Ms Shepherd or to stand beside her, he is to be commended for that but in my view he then cannot seek to suppress her name to protect the commercial interests of his organisation.
[25] Having reviewed the evidence that Mr Houghton gave to me orally, I do not consider that Ms Shepherd or Mr Houghton and his trust have reached the high threshold required under s 200(2)(a). The application for continued name suppression of Ms Shephard’s (sic) name is refused.
[30] The Judge granted interim name suppression to give Ms Shepherd the opportunity to appeal his decision.
Approach to application for name suppression and this appeal
[31] Pursuant to s 283(1)(a) of the CPA, an applicant for a name suppression order may appeal against the decision of a court to refuse to make an order. This is a first appeal. Section 287 provides:
A first appeal court must determine a first appeal by—
(a)confirming the decision appealed against; or
(b)varying the decision appealed against; or
(c)setting aside the decision appealed against; or
(d)making any other order it considers appropriate.
[32]The application was brought under s 200 of the Act, which relevantly provides:
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)cast suspicion on another person that may cause undue hardship to that person; or
(c)cause undue hardship to any victim of the offence; or
(d)create a real risk of prejudice to a fair trial; or
(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)prejudice the maintenance of the law, including the prevention, investigation, and detection of offences; or
(h)prejudice the security or defence of New Zealand.
[33] The Court can only make a name suppression order if it is satisfied that one of the factors set out in s 200(2) applies. If this is established, then the Court “may” exercise its discretion to make such an order. In Robertson v Police,14 the Court of Appeal confirmed the position it took in Fagan v Serious Fraud Office15 that the section contemplates a two-stage approach:
[40] At the first stage, the judge must consider whether he or she is satisfied that any of the threshold grounds listed in 200(2) has been established. That is to say, whether publication would be likely to lead to one of the outcomes listed in subs (2). The listed outcomes are prerequisites to a court having jurisdiction to suppress the name of a defendant. It is “only if” one of the threshold grounds has been established that the judge is able to go on to the second stage.
[41] At the second stage, the judge weighs the competing interests of the applicant and the public, taking into account such matters as whether the applicant has been convicted, the seriousness of the offending, the views of the victims and the public interest in knowing the character of the offender.
[42]We do not consider the process requires any further clarification.
[34] The meaning of the word “likely” in s 200 (2) was helpfully reviewed by Duffy J in H v R,16 where the Court stated:
[17] The meaning of the word “likely” was considered by the Court of Appeal in R v W, where the case concerned automatic name suppressions under the Criminal Justice Act 1985. The Court held that the phrase “likely to lead to the identification” of the victim meant there had to be an “appreciable risk” that this would occur. This approach was adopted by Asher J in NN v Police. The same, but slightly differently worded approach was also taken by Gilbert J in Beacon Media Group Ltd v Waititi, where his Honour considered the meaning of “likely” within the context of s 202 of the Act, which deals with name suppression of witnesses, complainants and connected persons:
14 Robertson v Police [2015] NZCA 7.
15 Fagan v Serious Fraud Office [2013] NZCA 367 at [9].
16 H v R [2015] NZHC 1501.
[17] I conclude that the word “likely” in s 202 means more than “may” so that a mere possibility would not suffice. However, it is not necessary for an applicant for an order under s 202 to show that the risk of harm is such that it is more likely than not to occur. In my view, the word “likely” in s 202 means a real risk that cannot be readily discounted.
[18] I am satisfied that there is no material difference between the meaning adopted by Asher J and that adopted by Gilbert J. I intend to interpret the words “would be likely” in s 200(2) to mean that there must be an appreciable risk that one of the consequences set out in the provision will occur.
(Citations omitted)
[35] I will use that same test of ‘appreciable risk’ in relation to the words ‘would be likely to cause’.
[36] Finally, the two-stage analysis required by Fagan in determining an application for name suppression necessarily has implications for how appeals from such decisions should be approached. In this case, Judge McDonald concluded that the threshold ground relied on had not been met. Only if I conclude His Honour was wrong on that issue is it necessary to consider the second, discretionary stage of the analysis.17
[37] In the first stage, I follow the approach in Austin, Nichols & Co Inc v Stichting Lodestar.18 In other words, the appellate Court must come to its own view of the merits when deciding whether one of the threshold grounds in s 200(2) is satisfied.19
Effect on the Trust (s 200(2)(a))
[38] I first note the difference between the wording of s 200(2)(a) and the wording in the notice of appeal, namely that publication of Ms Shepherd’s name would cause extreme hardship to the Trust. The appellant poses a higher test. I will follow the correct test of would be likely to cause extreme hardship.
[39] Ms Parangi submits that Judge McDonald erred in finding that the evidence of Mr Houghton did not reach the high threshold required under s 200(2)(a) as to the
17 Beacon Media Group Ltd v Waititi [2014] NZHC 281 at [9].
18 Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141 at [16].
19 X v Police [2017] NZHC 3298 at [104].
likelihood of extreme hardship to the Trust if her name was published. He submits that Judge McDonald did not properly consider the impact of public scrutiny and the consequences that would follow from that, namely political pressure and the withdrawal of funding.
[40] Ms Shepherd repeats her submission that the publication of her name would likely result in the loss or disruption of public funding available to the Trust for current and future projects. Mr Parangi submits that the Trust’s financial security through public funding is subject to political pressures, including public confidence and group specific sensitivities. He says that public funding bodies which periodically review their ongoing commitments to the Trust are subject to the same political pressures, public confidence, and group specific sensitivities. The Trust may, as a consequence, lose its funding to other groups or trusts which compete with them for funding.
[41] Any disruption to the flow of funding would have a detrimental impact on the ability of the Trust to administer its services to up to 190 families in 2018, to enter into long-term arrangements and to engage contractors. As a result, the impact would result in extreme hardship to the Trust and community stakeholders.
[42] Mr Parangi distinguishes H v R,20 which Judge McDonald referred to and relied on21 when he said that Mr Houghton cannot “seek to suppress [Ms Shepherd’s] name to protect the commercial interests of his organisation”. Mr Parangi submits the context of the relationship between the Trust and Ms Shepherd was not anticipated in H v R.
[43] In particular, Mr Parangi says that Ms Shepherd was not working for the Trust at the time of the alleged offending. She was charged three months after beginning employment with the Trust, which was two years after the offending allegedly occurred, and the company in H v R was not a publicly funded Māori organisation.
[44] Mr Smith submits that the District Court found correctly that Ms Shepherd had failed to establish that the Trust would likely suffer extreme hardship. The claim was
20 H v R, above n 16.
21 New Zealand Police v Shepherd, above n 3, at [24] (referring back to [17]).
not established on the evidence. Further, Mr Smith submits that the claimed consequences have not, and will not, come into effect given the fact that knowledge of the allegation was already in the public domain.
[45] Mr Dinsdale, Chief Reporter of the Northern Advocate, as a member of the media as defined in s 210(1) of the CPA, made submissions to Judge McDonald. Mr Dinsdale also had the necessary standing to make submissions in this Court. He submitted that in the circumstances where the two primary funders were aware of Ms Shepherd’s alleged offending and where they had continued to fund the Trust, the ground for an order under s 200(2)(a) was not made out.
[46] Mr Dinsdale also submitted that the horse had bolted in that it was known in the community that Ms Shepherd had been charged. He said he received a phone call from a member of the public a day or so before Ms Shepherd’s appearance on 29 March 2018 advising him of that fact. He also received a further call from a different member of the public after her appearance.
[47] Ms Shepherd needs to establish a very high level of hardship before the threshold of “extreme hardship” can be established.22 It must be something plainly out of the ordinary,23 and must be significantly greater than the “undue hardship” test in s 200(2)(b) and (c). In the Court of Appeal in Robertson v Police, the position was stated as follows:24
[48] As regards the level of hardship required by the phrase “extreme hardship”, we consider it clear beyond argument that it connotes a very high level of hardship. The word “hardship” on its own means “severe suffering or privation”. The addition of the qualifier “undue” in s 200(2)(c) indicates that something more than hardship simple is required, while the word “extreme” in s 200(2)(d) indicates something more again.
(Citations omitted)
[48]The Court then explained how extreme hardship is assessed:
[49] An assessment of whether the contended hardship is “extreme” cannot take place in a vacuum. It is self-evidently contextual and in our view must entail a relative comparison between the contended hardship and the
22 R v N [2012] NZHC 2042 at [21]; R v Wilson [2014] NZHC 32 at [27].
23 Stewart v Police [2013] NZHC 1280 at [13].
24 Robertson v Police, above n 14.
consequences normally associated with a defendant's name being published. It must be something beyond the ordinary associated consequences. Accordingly, it was in our view no error for Gendall J to take into account, for example, that the hardship to Mrs Robertson's family was simply a natural consequence of her offending. As the Judge put it, the hardship suffered by the family “simply [did] not fall outside the ordinary experience”.
(Citations omitted)
[49] The issue is therefore whether there is an appreciable risk of extreme hardship to the Trust if Ms Shepherd’s name is published or is this simply a consequence normally associated with the publication of her name.
[50] I have reviewed the transcript of Mr Houghton’s evidence and I consider that Judge McDonald fairly summarised Mr Houghton’s oral evidence in [18] to [21] of his decision. I set out those paragraphs below:
[18] Ms Shepherd is currently employed by the trust which Mr Houghton is the chief executive of, the He Korowai Trust. I accept without reservation that that trust does exceptional work in the Kaitaia area, providing much needed social services for the less fortunate persons in our community; the homeless, those with addiction and mental health issues for example. It relies heavily on volunteers, Mr Houghton has told me and I accept 60 percent, with 40 percent being paid. Ms Shepherd is the direct of Sweet As Trade, an arm of the trust. That arm trains students to guaranteed employment.
[19] Mr Houghton himself was fully informed of the allegations. He has been an advocate for Ms Shepherd and her defence of them. Mr Houghton told me that the trust is heavily dependent, almost totally dependent on grants to do its work. He is fearful, to use his words, “very, very frightened” that if Ms Shepherd’s name is published then linked to his trust, that the trust will be harmed as a person in charge of funding might not give it to them and so it would dry up. If that was to occur the trust would fail. He spoke about two particular grants. The first a two and a half million dollar grant from which
$400,000 has already been paid to the trust from Foundation North. That organisation is based in Auckland. They learnt in Auckland of the allegations to be levelled against Ms Shepherd and so phoned Mr Houghton to enquire about them. As a result of that there was a meeting between Foundation North, Mr Houghton, Ms Shepherd and one or more of Mr Houghton’s trust board, including the chairman. At the end of that meeting, part of which was held in the absence of both Mr Houghton and Ms Shepherd, Foundation North, now having been fully appraised of what the allegations were and presumably Ms Shepherd’s defence to them, said they would continue to fund the trust. The only rider, it would be appear, is that if Ms Shepherd is convicted, then they will have to review their position.
[20] The other source of funding referred to by Mr Houghton is Te Puni Kokiri. That organisation is well known. It is currently considering providing up to $900.000 in funding to enable nine whare to be refurbished by trainees from the trading academy and then to be occupied by persons of low income
or who have no housing here in Kaitaia. Quite properly Mr Houghton disclosed to them of Ms Shepherd’s difficulties. In a recent letter from Te Puni Kokiri to Mr Houghton, which has been given to me:
I note your confidential disclosure of 7 February 2018 that one of your senior employees has been charged with a dishonesty offence, that she remains an employee with no authority to authorise cash until the Court proceedings are completed and that she has offered to resign if this is requested by any funders of He Korowai Trust. I note our response at this time that the panel would continue the assessment of the trust proposal and the implications of this matter would be considered further if the trust proposal was selected for the next stage, co-design. I now advise that we will continue with the co-design stage of the process and consider the implications if and when we reach the stage of negotiating a funding agreement with the trust.
[21] The disclosure of Ms Shepherd’s charges to Te Puni Kokiri has not prevented that organisation going to the next level.
[51] However, notwithstanding the position of those two funders, Mr Houghton states in his affidavit that publication of Ms Shepherd’s name would cause funders to lose confidence in the Trust. He says that national publicity would likely force funders to abandon or review existing arrangements.
[52] In my view, it cannot be said that Judge McDonald erred in concluding that Ms Shepherd had not established that publication is likely to cause extreme hardship to the Trust. I agree with Mr Smith that the claim by Ms Shepherd is not established on the evidence. Nor is the claim of likelihood of extreme hardship on those who benefit from the work of the Trust established on the evidence.
[53] I accept that publication of Ms Shepherd’s name may have a negative impact on the Trust. But there is no clear evidence of what financial effect publication would have. Indeed, on the evidence before the Court, two funders on being told of the allegations have continued their funding to the Trust. Both Ms Shepherd’s and Mr Houghton’s claims that the Trust will lose public funding arising from political pressure if her name is published are speculative. Speculation of this kind cannot reach the extreme hardship standard.
[54] Even if there is some financial loss to the Trust, that is an ordinary consequence of this type of offending. I accept that Ms Shepherd started working at the Trust after the alleged offending occurred and the Trust is a publicly funded Māori organisation.
To that extent, the situation is different from the facts in H v R. But those factors do not justify granting name suppression on the basis of likelihood of extreme hardship in circumstances where claims of potential loss of funding are speculative.
[55] Finally, the allegations are already in the public domain, although perhaps not widespread. Mr Parangi said from the bar that the fact that charges exist is well- known, but the identity of the person charged is not. However, Foundation North had heard, “out in the community”, that the appellant had been charged. They then contacted Mr Houghton.
[56] For all the above reasons, the appellant has not established that Judge McDonald erred in his decision in relation to s 200(2)(a).
Effect on Trust employees and others (s 200(2)(b))
[57] Mr Parangi submits that Judge McDonald erred in confining his consideration to the grounds in s 200(2)(a). He says that there was evidence before Judge McDonald that would have supported a finding in Ms Shepherd’s favour under s 200(2)(b).
[58] When asked to identify the evidence, Mr Parangi said he relied on answers given by Mr Houghton in re-examination. The questions were in fact put to Mr Houghton by the Judge, re-framing Mr Parangi’s question, after Mr Houghton said he could not hear Mr Parangi. The evidence is:
Q.Do you currently, Mr Houghton, does your organisation have a high degree of trust within the community? That’s the first thing?
A. Yes, Sir.
Q.Right, and the second thing is, if Ms Shepherd’s name is published, will that high level of trust be eroded?
A. Yes.
Q.Right, that’s what he was asking you. He talks very quietly all the time.
[59] I first note that it was not made clear to me whether Mr Parangi in fact made a submission to Judge McDonald in reliance on s 200(2)(b). There is no discussion in Judge McDonald’s decision of any submission having been made and rejected.
[60] The way Mr Parangi puts Ms Shepherd’s case in this court is as follows. He says if her name is published, suspicion would be cast on the Trust’s ability to administer public funding by virtue of Ms Shepherd being employed by the Trust. It may be thought that there was negligence on the part of the Trust in hiring Ms Shepherd, despite the fact that she was not charged until after she had commenced her employment with the Trust. Mr Parangi said there might also be a public perception that the Trust is somehow complicit in her offending. That public perception would then lead to pressure being put on those organisations which fund the Trust to withdraw their funding.
[61] In a nutshell, Mr Parangi says there would be reputational damage to the Trust which will lead to a loss of stakeholder confidence in the Trust to administer funds. This would cause undue hardship to the Trust, its employees and others who rely on the work of the Trust. I will adopt the correct statutory test of ‘would be likely to cast suspicion that may cause undue hardship …”.
[62] In making his submission, Mr Parangi relies on Mr Houghton’s affidavit evidence. Mr Houghton says that publication of Ms Shepherd’s name would cast suspicion over the entire operation and team members will be thought complicit, despite the alleged offending occurring within a separate non-Māori organisation. Any suspicion cast on the administration of the Trust would obstruct the team’s ability to engage local stakeholders in need. Further, any suspicion cast on the administration of the Trust would impact negatively on relationships formed with local service providers. If the Trust’s ability to provide social services are compromised, it will lose confidence and cease operation.
[63] Mr Houghton further says if the Trust loses future funding or funding relied upon for its existing initiatives, it will cease operation. The Trust provides essential services to the community that will suffer hardship if its operation were to cease.
[64]As the Court explained in Robertson v Police:25
25 Robertson v Police, above n 14.
[48] … The word “hardship” on its own means “severe suffering or privation”. The addition of the qualifier “undue” in s 200(2)(c) indicates that something more than hardship simple is required …
[65] I do not consider that the evidence establishes that publication is likely to cast suspicion that may cause undue hardship. Mr Houghton makes assertions without any supporting evidential foundation. As already noted, the evidence given in the District Court establishes that two significant funders are continuing with their funding notwithstanding their knowledge of the allegations. If any questions are raised by others, Mr Houghton will be able to explain the position to them, just as he did with Foundation North and Te Puni Kokiri. Ms Shepherd’s alleged offending relates to her time at CCS Disability Action. Ms Shepherd began employment with the Trust after the offending allegedly occurred. The offending has nothing to do with the Trust.
[66] I consider that the alleged effects raised by Ms Shepherd and Mr Houghton are, again, merely speculative. The evidence before Judge McDonald did not reach the standard required under s 200(2)(b). Nor does the additional evidence filed in this Court reach that standard.
Result
[67] The application for leave to adduce fresh evidence in the affidavit of Mr Houghton in relation to the alleged effects on the Trust and those associated with the Trust is granted.
[68]The appeal against the refusal to grant name suppression is dismissed.
Gordon J
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