Smith v Police
[2017] NZHC 519
•21 March 2017
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
CRI-2017-409-000008 [2017] NZHC 519
BETWEEN ANN-MARIE KATHERINE SMITH
Appellant
AND
NEW ZEALAND POLICE Respondent
Hearing: 21 March 2017 Appearances:
G Henderson for Appellant
C Bernhardt and B Hawes for RespondentOral Judgment:
21 March 2017
ORAL JUDGMENT OF NICHOLAS DAVIDSON J
[1] This is an appeal against the refusal to grant Ms Smith name suppression. His Honour Judge Macaskill on 24 January 2017 referred to the fact that Ms Smith had been remanded for sentencing on two charges of deception. His Honour mentioned media interest in this prosecution and sentencing. He noted that Ms Smith had been appearing before the court since 3 May 2016 and there had been no application for an interim order for suppression of name, or for an order for suppression of name at all, and no order had been made. He said that the application was belatedly made pending sentencing and expressed the view that was because Ms Smith was aware a news media reporter was present in court. He then said that no evidence could be offered by her then counsel in support of an application for an interim order and he said there was reference to Ms Smith being under the influence of others and a reference to health. But again, there was no evidence before the court to justify making any order whatsoever. If an order had been made at an earlier time,
that did not dictate the outcome on the day the matter came before His Honour.
SMITH v NEW ZEALAND POLICE [2017] NZHC 519 [21 March 2017]
[2] An order was made for the suppression of the defendant’s name pending hearing of the appeal against refusal of the interim order for suppression of name under s 286 Criminal Procedure Act 2011.
[3] On 7 March 2017 this matter came before Her Honour Justice Dunningham. A Minute of that day recorded that on the face of it, the Court had absolutely no information that would support an application for name suppression.
[4] Counsel who had been acting was excused as he had received no instructions and Her Honour expressed gratitude that Mr Henderson, who had been Ms Smith’s former lawyer, had in her words “stepped up to the plate and taken instructions” from her. He advised the Court that there was more to the application than met the eye and he sought an adjournment to take more detailed instructions from Ms Smith in advance of the appeal. For that reason, Justice Dunningham allowed a short adjournment of two weeks and re-scheduled the appeal until today, 21 March 2017.
[5] Sentencing is scheduled for early April. Her Honour expressed the view that Ms Smith could not expect any more accommodation, but in the meantime Ms Smith’s name and the details of the grounds of the application explained by Mr Henderson were suppressed because they would form the basis of Ms Smith’s appeal.
[6] Mr Henderson then lodged a second memorandum with the Court recording that at that time, 7 March 2017, no instructions had been received from Ms Smith but she had arrived at the Court and had spoken to counsel and that was the basis of the adjournment that was sought. Mr Henderson recorded that despite phone messages left for Ms Smith and correspondence sent to her, nothing had been received, and despite assurances from Ms Smith, counsel had no contact with her. At that stage Mr Henderson indicated he would not be in a position on 21 March 2017 to advance the appeal.
[7] Before the Court today, Mr Henderson has indicated the basis upon which this appeal might be mounted. It appears to relate primarily to the circumstances in which earlier publication of Ms Smith’s name had caused a member of her family
some stress, some hardship associated with his education. Otherwise, there is no detail before the Court or an indication of what detail might be put before the Court, other than this reference.
[8] Ms Smith appeals as of right and the appellant bears the onus to satisfy this
Court that it should reach a different conclusion.1
[9] This Court may give judgment in accordance with its own opinion when that is an assessment of fact and degree, and entails a value judgment. The Court will not interfere simply because it reaches a different view than that of the District Court Judge.
[10] The appellant must demonstrate under s 200 of the Criminal Procedure Act 2011, that the publication of her name will likely cause her, or in this case a member of her family, extreme hardship. A two-step enquiry is required, and the Court must first assess the likelihood of suffering extreme hardship and if so, whether the competing interest of open justice against the appellant’s extreme hardship, or that of a member of her family in this case, justifies the exercise of the discretion to order suppression.
[11] There is no evidence to demonstrate hardship of any kind, beyond the reference made by counsel. The opportunity to do so has been given Ms Smith. The Court is not unsympathetic to the effect of publication on a member of Ms Smith’s family, but something far more concrete and detailed would be required to provide any weight to the argument advanced at all.
[12] There was reference to a photographed medical certificate which related to some recent treatment of Ms Smith, but that does not relate in any way to the application before the Court, although it is on the Court file.
[13] In short, there is no evidence to support the application for suppression and there is no further indication from Mr Henderson, who has done his best to secure
such information if it were available. Even the indication given by Mr Henderson
1 Criminal Procedure Act 2011, s 283; Austin, Nichols & Co Inc v Stichting Lodestar [2007] NASC 103; [2008] 2 NZLR 141.
does not demonstrate to the Court that there is any substance in this appeal whatsoever, and for that reason it is dismissed. The interim orders thus lapse.
………………………………………….
Nicholas Davidson J
Solicitors:
Public Defence Service, Christchurch
Raymond Donnelly & Co., Christchurch
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