Solter v Police
[2018] NZHC 1124
•18 May 2018
ORDER PROHIBITING PUBLICATION OF NAME, ADDRESS OR IDENTIFYING PARTICULARS OF APPELLANT PENDING APPEAL. SEE PARA [42] OF THIS JUDGMENT. IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY
I TE KŌTI MATUA O AOTEAROA WAIHŌPAI ROHE
CRI-2017-425-000041 [2018] NZHC 1124
BETWEEN WULF STEFFEN SOLTER
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 10 May 2018 Appearances:
J U Mooney for the Appellant
R W Donnelly for the Respondent
Judgment:
18 May 2018
JUDGMENT OF NATION J
Background
[1] This is a judgment on an appeal against a refusal to grant name suppression in the District Court.
[2] Mr Solter is 37 years old. In July 2017, he had been in a relationship with the complainant for approximately 18 months. On the night of 5 July 2017, they had a disagreement. Mr Solter went to bed in their bedroom. The complainant slept on a couch in the lounge. In the morning, Mr Solter went into the lounge and there was another disagreement over what had happened the previous night. The complainant went into the bedroom and got under the blankets. Mr Solter went in and pulled the
SOLTER v POLICE [2018] NZHC 1124 [18 May 2018]
covers off. The complainant screamed back at Mr Solter. He ran at her across the bed and pressed his finger against her mouth forcefully. He yelled her. The victim grabbed his phone and threw it across the room. The victim then went to grab her phone. Mr Solter ripped it off her, put it near the fire hearth and stomped on it, breaking it. He then left the address in his vehicle.
[3] The victim, distressed, went to a neighbour’s address. Mr Solter returned to the home a short time later. He threw some items of hers out into the garden, damaging a few household effects and some of her make up.
[4] Mr Solter then went to the Police Station to get some advice. He was charged with common assault and wilful damage. Mr Solter pleaded guilty and was sentenced on 21 August 2017. Before then, he had replaced the complainant’s cell phone.
[5] The sentencing Judge said the victim, in her victim impact report, had made it clear their relationship was now over. She just wanted to get on with her life. The Judge acknowledged that she had been able to say she did not consider herself a victim and she was not scared for her safety. The Judge described the assault charge as being “at the lower end of gravity for that offending”. He referred to a psychologist’s report that Mr Solter had voluntarily and privately funded. He gave him credit for that and for the fact he was dealing with certain difficulties and making a serious effort to deal with his issues.
[6] The Judge convicted and sentenced Mr Solter to 12 months’ supervision with conditions to ensure he continued to receive counselling and addressed the issues he had. On the charge of intentional damage, he was convicted and sentenced to pay reparation of $100.
[7] Mr Solter applied for name suppression. That was refused although the Judge did suppress information contained in that affidavit which had been provided to the Court in support of the application. There has been interim suppression since then because of the appeal against that refusal.
[8] The appeal was filed by Mr Solter, his business associate and the company through which they do business.
[9] The application for suppression in the District Court was discussed by the Judge as if it was an application made by Mr Solter but on the basis that it would cause extreme hardship to a person connected with him, his company. Mr Donnelly, for the Police, accepted that the application in the District Court had been for suppression of the names of both Mr Solter and his company. Although an application had not been made for suppression of the associate’s name, he noted that this appeal proceeds by way of rehearing. He accepted the Court has a jurisdiction to make any order that could have been made in the District Court. He thus accepts it is open to me, in this Court, to make orders for suppression of the names of any or all of the three parties who have effectively joined in bringing the appeal or to decline the appeal.
[10] Mr Mooney, counsel for the appellant, sought leave to put before the Court as new evidence an affidavit from Mr Solter’s business associate and a letter from his psychologist who has been assisting him with counselling. The affidavit is largely a repetition of evidence that was put before the District Court Judge. The psychologist provided further information as to the counselling which Mr Solter has participated in since the offending and sentencing.
[11] This Court has an inherent jurisdiction to accept new evidence such as this.1 There was no strong objection from the Crown. I have carefully considered the material that was put before me.
Principals on appeal
[12] The appellant may appeal the refusal to make a suppression order as of right.2 The first stage of the test for suppression under s 200 of the Criminal Procedure Act 2011 is whether extreme hardship or, if applicable, undue hardship would be likely to result. This is a matter of fact requiring judicial assessment.3 An appeal of this stage
1 R v Ratu [2013] NZHC 3085 at [24].
2 Criminal Procedure Act 2011, s 283(1).
3 R v Rajamani [2007] NZSC 68, [2008] 1 NZLR 723 at [4]–[5], applied to the s 200 context by
Police v KK [2014] NZHC 1629 at [26].
is based on the approach taken by the Supreme Court in Austin, Nichols & Co Inc v Stichting Lodestar.4 This Court is able to make its own assessment on whether or not extreme or undue hardship has been established. If it decides that the test is met, the District Court decision is wrong, even if it is a conclusion on which minds might reasonably differ.5
[13] At the second stage of the test, the court has a discretion on whether suppression should be granted. This Court must approach an appeal of that stage on the higher basis of an appeal against a discretion
Submissions
[14] Mr Mooney, for the appellant, filed detailed and careful written submissions. So did Mr Donnelly for the Crown. I discussed those submissions with counsel during the appeal hearing and have considered them carefully. The issue on this appeal is whether there should be suppression of the appellant’s name, and those of his company and business associate, in relation to his offending. Mr Solter’s business associate is most concerned and anxious as to the negative consequences publicity about the offending could have on the fortunes of his company.
[15] The District Court Judge, who considered the suppression issue in the District Court, was careful to suppress information that was put before relating to the company’s business. For similar reasons, I will not refer expressly to all the matters which were discussed with me through counsels’ submissions. I have however carefully considered them.
Discussion
[16] Section 200 of the Criminal Procedure Act allows the Court to supress Mr Solter’s identity if it is satisfied that, among other things, publication would be likely to:
(i) cause extreme hardship to Mr Solter or any person connected with him; or
4 Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103.
5 Police v KK, above n 3, at [27].
(ii) cast suspicion on another person that may cause undue hardship to that person.
[17] Section 202 allows the Court to make an order supressing the identity of any person connected with Mr Solter if satisfied that publication would be likely to cause them undue hardship.
[18] The Court of Appeal recently discussed the interplay between ss 200 and 202 as they require different levels of hardship to a connected person. The Court held that if a connected person could establish undue hardship that required the defendant’s name to be suppressed in addition to the connected person’s, the higher threshold of extreme hardship did not have to be met.6
[19] Mr Solter is actively involved in the company’s business and effectively a partner of his business associate. The company and his associate are thus connected to him. They are entitled to seek suppression on the basis that publication of their names and Mr Solter’s name would be likely to cause them undue hardship.
[20] The first issue for me is whether or not the business associate and/or the company will suffer undue hardship if there is publication of either the defendant’s name, the name of the company or the associate’s name. In applications for suppression such as this:7
… 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’.
[21] Publication of criminal proceedings, consistent with the public interest, open justice and rights to freedom of expression can result in embarrassment and criticism for a defendant and those who are closely associated with him. There is the potential for people or other businesses to view with disfavour those connected to someone who has committed a criminal offence, even where to do so would be quite unfair given they were no way connected with the offending or responsible for it. That is however a consequence that can commonly arise with any criminal proceeding. “Undue
6 Sansom v R, [2018] NZCA 49 at [17].
7 R v Liddell [1995] 1 NZLR 538 (CA) at 546.
hardship” has therefore to be something more than the hardship that would normally attend publicity surrounding criminal proceedings.8
[22] The Oxford English Dictionary defines “hardship” as “the quality of being hard to bear; hardness; rigor; severity; painful difficulty”. That is what the appellant must establish in this case but they must also establish that it is “undue”. That means the hardship has to be disproportionate to the purpose which justifies publication, namely the public interest in the open reporting of Court proceedings and the right to freedom of expression assured by the New Zealand Bill of Rights Act 1990.9
[23] For undue hardship to be likely, there must be “a real risk” that it will result from publicity. It is not necessary for the appellant to show that undue hardship is “more likely than not” to result from publicity.
[24] Mr Mooney argued here that the public interest in open justice and freedom of expression was less because of the low level of the offending. He nevertheless acknowledged how distressing the offending would have been for the victim, that what Mr Solter did constituted a criminal offence and had to be recognised as such. There was however no disagreement from the Crown with the District Court Judge’s categorisation of the offending as being at the lower end of gravity for that sort of offending.
[25] Mr Mooney also suggested the public interest in publication was less because of the way Mr Solter had taken responsibility for the offending. An unusual feature of this case was that, almost immediately after the incident occurred, Mr Solter voluntarily went to the Police station. The District Court Judge gave Mr Solter credit for the psychological assistance he had sought and paid for.
[26] The letter to the Court from Mr Solter’s psychologist confirmed that he had attended 37 sessions with the psychologist at his own expense. It set out the progress he had made in identifying his underlying psychological issues that resulted in poor anger management. The psychologist described how those issues had been addressed
8 Beacon Media Group Ltd v Waititi [2014] NZHC 281 at [22].
9 Beacon Media Group Ltd v Waititi, above n 8, at [27].
in counselling. The psychologist also referred to Mr Solter having completed a 12 week course with the Waihopai Runaka Family Violence Programme and their having referred to his “outstanding involvement and outcomes” in their report to the Department of Corrections. Those are matters for which Mr Solter deserves credit and which should be recognised in any objective consideration of his offending and whether there is a risk of similar offending in the future.
[27] Often, when there is offending at this level, particularly when a defendant has taken steps to ensure it is not repeated, there will be little public interest in the proceedings and they are not reported in the media. The fact the offending may be of that sort is not however a legitimate ground for denying the media the right to report fully on the proceedings with details of a defendant’s name if they wish to do so.
[28] The appellant did not seek to argue that there should be suppression on that basis alone. What was of the utmost concern was the way they considered publication of Mr Solter’s name, in connection with his offending and the Court proceedings, could adversely affect the fortunes of the company and the business with which they are involved. The extent of the associate’s anxiety and concerns in this regard and the basis for them were apparent in an affidavit which was presented to the District Court Judge and in a very similar affidavit which I considered on the hearing of the appeal.
[29] Mr Solter’s business associate suggested that publication could seriously hinder the company in its attempts to develop its business in the United States, could discourage current local clients from continuing to do business with them. This could then result in a number of employees with the company losing their jobs and the shareholders losing the significant capital investment they had made in the company and its business.
[30] I accept that such consequences could amount to undue hardship but, for that to justify suppression, I would have to be satisfied that there is a real risk that such consequences will occur. I am not satisfied of this.
[31] Mr Solter holds a senior position in a small company and is thus closely associated with it. However, the circumstances of his offending were such that it
would be immediately apparent it was not connected with his work or business. It was clearly conduct for which neither the company nor other individuals working in the company could be held responsible. Therefore, publication of Mr Solter’s name will not unfairly cast suspicion on the company or his business associate and thereby cause them undue hardship.
[32] Mr Mooney suggested the consequences would be more serious because the company and these individuals live and operate in a relatively small community. The information provided to me also indicates that the individuals have, through their personal efforts, built up a business which has achieved some success and recognition. I consider that those dealing with the company locally are more likely to make their own assessments as to whether they want to carry on doing business with the company or with Mr Solter based on the relationships they have had with him personally and the company in the past, rather than a media report over this incident which occurred outside his work.
[33] The concerns as to how the company’s prospects in the United States might be adversely affected seem to be based on the United States’ news media’s focus on the offending of the chief executive of a major United States, indeed international, business. Mr Solter’s business associate said his concern was that, if media can knock back a $69 billion company in the United States, it will destroy their business before it has even properly started up. The situation I was told of involved significantly more serious conduct than could be reported with regard to Mr Solter and it occurred within the business. Mr Solter’s company is based in Queenstown and employs about 20 people. At this stage, it is only looking at opening offices in the United States.
[34] Mr Solter’s offending was such, particularly with the way he took responsibility for it, that I am not persuaded that, if there is any publication, there would be a real risk that this will significant prejudice the company in the plans it has for expansion in the United States.
[35] In the affidavit filed on the appeal, there was evidence that the victim of this offending had, on 20 September 2017, emailed the executive director of the American Chamber of Commerce in New Zealand with a copy of the letter to her confirming Mr
Solter had been convicted of the matter she had reported to the Police. The executive director’s response dealt with the correspondence by advising Mr Calder of it in case he wanted “to take any action”. There was nothing in his response to indicate that he thought Mr Solter’s conviction was a matter which he needed to bring to the attention of members of the association.
[36] Mr Mooney suggested that, with publication, there is a risk that such reporting will not be balanced and could be unfairly prejudicial to the appellant. There is always a risk of that but the Courts recognise that the right to freedom of expression is important. The Court should not make decisions on an issue such as this with the assumption that the reporting of Court proceedings will be inaccurate and unfair.
[37] I have not been satisfied that the threshold for the making of a suppression order has been met. In those circumstances, the legislation does not permit me to make the orders for suppression which have been sought.
[38] Even if the threshold had been met, I would have had to move to the second stage, the weighing of the appellants’ and the public’s interests. In this regard, it would have been significant that the appellant is seeking suppression largely on the basis that, if businesses knew of his conviction, they would not want to do business with a company with which he is associated. I do not accept this is a likely consequence.
[39] Nevertheless, if businesses would be influenced by their knowledge of such a conviction, they should not be denied the opportunity to know of that conviction and to decide for themselves how they want to take it into account. Through the making of a suppression order which would be at odds with the important principle of open justice, and the right to freedom of expression.
Conclusion
[40] I have not been persuaded that the District Court Judge made any material error in refusing suppression. On considering all the information that was before him and the further information and evidence that has been put before me, I am satisfied this was not a case where Mr Solter’s name, or the names of his company or his business associate should have been suppressed.
[41]The appeal is dismissed.
Continuing interim suppression
[42] Counsel advised that, if suppression is refused, the appellant may seek leave to appeal. To allow for that possibility, interim suppression of Mr Solter’s name and any information that might lead to his identification will continue until 13 June 2018. If an application for leave to appeal is filed within that time, interim suppression will continue until the appeal is finally determined. If no application for leave to appeal is filed, interim suppression will cease on 13 June 2018.
Solicitors:
Mooney Lawyers Limited, Queenstown Preston Russell Law, Invercargill.
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