Stephens v R
[2021] NZHC 1902
•27 July 2021
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2021-404-000319
[2021] NZHC 1902
BETWEEN KATHY STEPHENS
Appellant
AND
THE QUEEN
Respondent
Hearing: 20 July 2021 Appearances:
C M Hallaway for the Appellant
M Moon and P Patanasiri for the Respondent
Judgment:
27 July 2021
JUDGMENT OF MUIR J
This judgment was delivered by me on Tuesday 27 July 2021 at 12.00 pm.
Registrar/Deputy Registrar Date:………………………….
Solicitors:
Public Defender, Auckland Meredith Connell, Auckland
Copies to:
S Hurley, The New Zealand Herald, Auckland C Owen, Stuff Limited, Auckland
STEPHENS v R [2021] NZHC 1902 [27 July 2021]
Introduction
[1] Ms Stephens appeals the decision of Judge E P Paul in the Auckland District Court declining continued interim name suppression.1 She faces charges of receiving property (over $1,000),2 possession of utensils for methamphetamine,3 and possession of methamphetamine.4 She has entered pleas of not guilty. The matters are scheduled to proceed to a jury trial on 14 February 2022.
[2]For the reasons that follow, I dismiss the appeal.
Jurisdiction
[3] Ms Stephens appeals as of right.5 As a general appeal, the appellant bears the onus to satisfy the appeal court that it should reach a different decision.6 The appeal court is entitled to give judgment in accordance with its own opinion even where that opinion is an assessment of fact and degree that entails a value judgment.
Background
[4]The facts of the alleged offending may be stated briefly.
[5] At around 6.00 pm on Saturday 17 October 2020, the head office of Trelise Cooper in Epsom was left locked and secured by staff. Between 6.00 pm on Saturday 17 October 2020 and 8.30 am on Monday 19 October 2020, a burglary occurred and approximately 2,000 items of clothing were stolen from the premises. The total value of those items is $887,612.
[6] At around 8.45 am on Tuesday 17 November 2020, Police conducted a search warrant at a house owned and occupied by the appellant. Numerous items of Trelise Cooper branded clothing were located throughout the address including two jackets hanging on the appellant’s bedroom door, a dress in the appellant’s walk-in wardrobe,
1 R v Bush [2021] NZDC 13299. Interim orders subsist pending the outcome of this appeal.
2 Crimes Act 1961, ss 246 and 247: carrying a maximum penalty of seven years’ imprisonment.
3 Misuse of Drugs Act 1975, s 13(1)(a): carrying a maximum penalty of one year imprisonment and/or a $500 fine.
4 Section 7(1)(a): carrying a maximum penalty of six months’ imprisonment and/or a $1,000 fine.
5 Criminal Procedure Act 2011, s 283.
6 See Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141.
and a dress inside a washing basket in the hallway. In the appellant’s son’s room a suitcase full of such clothing was located. In the appellant’s vehicle parked in the garage, Police located a package addressed to an overseas address. Inside the package were numerous items of Trelise Cooper branded clothing. The clothing located at the address was among that stolen on 19 October 2021.
[7] Whilst searching the address, Police located 19 glass pipes and a glass bong all scattered throughout the appellant’s bedroom. These are all typically used for smoking methamphetamine. Police also located 2.5 grams of methamphetamine in the appellant’s bedroom.
[8] The appellant was charged with two other individuals. One of her co- defendants has since accepted a sentence indication and was convicted for the burglary of the Trelise Cooper premises. He is due to be sentenced later this year.
District Court decision
[9] The appellant applied for continued name suppression until trial on two grounds. First, under s 200(2)(a) of the Criminal Procedure Act 2011 (“CPA”) that publication would be likely to cause extreme hardship to the person charged with the offence or anyone connected with that person, and second, under s 200(2)(d) that publication would be likely to create a real risk of prejudice to a fair trial. The Judge considered each ground in turn.
[10] As to the first ground, the Judge considered that any impact on the appellant’s income would not meet the threshold of “extreme hardship”. The appellant had submitted that as the operator of a cake decorating business, publication of her name as a person closely linked to the business would likely have adverse consequences on her ability to support herself and her three sons. The Judge found that the concerns expressed about her income were unsupported by any information or evidence and, even if it were, the fact that there may be some impact on her commercial interests or income did not meet the threshold requirement.
[11] With respect to the second ground, that there may be some prejudice caused to the appellant’s fair trial rights, the Judge determined that any impact could be mitigated at trial by appropriate directions by the trial judge.
[12] The Judge noted also that the views of the victim were relevant under s 200(6) of the CPA and that the victim was strongly opposed to the granting of interim name suppression. The general manager of Trelise Cooper deposed that “untrue and harmful suspicion” had fallen on the company, and in particular its staff, that the burglary had been an “inside job”.
[13]In these circumstances, the application was declined.
Submissions
The appellant
[14] Ms Hallaway, for the appellant, submits that the Judge erred in finding that publication of the appellant’s name would not cause her extreme hardship. She submits that the appellant is a single mother to three children. The appellant previously supported her family by working as a private investigator and by operating a cake decorating business. As she is facing active criminal charges, the appellant’s licence as a private investigator has been suspended. Until the charges are resolved she cannot work in the industry. This was her primary source of income.
[15] The appellant has indicated that she will seek to re-enter the industry once her charges are resolved. Obtaining work as a private investigator is largely based on reputation and referrals. Ms Hallaway submits that publication of the appellant’s name prior to trial, while she maintains her innocence, may adversely impact her ability to re-commence her career as a private investigator and therefore her future career opportunities and income potential. Ms Hallaway notes that the appellant has now ceased operating her cake decorating business. She is now therefore on a benefit and looking for employment. She submits that publication of the appellant’s name will effectively preclude this and that the threshold in s 200(2)(a) is accordingly met.
[16] As to the risk of prejudice to a fair trial, Ms Hallaway submits that the burglary of Trelise Cooper’s head office has attracted significant media attention from a number of news outlets including on social media. She submits that individuals commenting publicly on news articles or social media about a matter before the courts generally do so without knowledge of the case, the accused or the complainant’s background, with little forethought of the consequences for those involved in the proceedings. She submits that publication of the appellant’s name is likely to result in negative comments on news media websites and social media platforms, imperilling the appellant’s right to a fair trial. She notes that Ms Stephens does not and will not seek permanent name suppression and accepts publication from the commencement of trial will occur. She emphasises that all that is sought is a delay in publication.
[17] At the second stage of the analysis, Ms Hallaway submits that there is little legitimate public interest in publication of the appellant’s name that could warrant running risks to her fair trial rights or her livelihood. She suggests that the public is generally aware of the allegations and of the criminal proceedings. Moreover, the media will continue to be able to report on her trial without identifying her and it is not a case where further complainants may come forward if she is named. Ms Hallaway submits that it can be confirmed in the media that the alleged offending was not an ‘inside job’, a concern raised by the complainant, without the need to publish the appellant’s name. In these circumstances, the appropriate balance between open justice and the public interest is struck by delaying publication and suppressing the appellant’s name until trial.
The Crown
[18] Mr Patanasiri, for the Crown, submits that the suggested consequences which would flow from publication of the appellant’s name, namely loss of income, do not reach the high threshold of extreme hardship. To the contrary, it is an ordinary consequence of publication, especially in the case of a defendant charged with dishonesty related offending.
[19] As to a risk of prejudice to the appellant’s fair trial, Mr Patanasiri submits that there is no evidence to suggest that publication of the appellant’s name will trigger
concentrated media attention or prejudicial public comment to the extent that it is likely to bias the jury pool or which cannot be mitigated by appropriate judicial direction. Negative comment on news media websites and social media platforms is not sufficient in itself to create a real risk of prejudicing a fair trial.
[20] In Mr Patanasiri’s submission, the second stage of the analysis is similarly straightforward. The public interest in the identification of the appellant in this matter weighs heavily against the granting of name suppression. A co-defendant has pleaded guilty to stealing clothing items of a very significant financial value from a leading New Zealand fashion designer, and the appellant is accused of being found in possession of some of these stolen items. That public interest is all the more compelling because the appellant was working as a private investigator at the time. Mr Patanasiri also notes that the victim company, Trelise Cooper, strongly opposes the granting of interim name suppression. There are persistent allegations that the burglary was an inside job given the circumstances of the offending, and identifying the appellant would go some way towards reducing the additional harm to the complainant and its employees.
[21] In these circumstances, Mr Patanasiri submits that there is no basis for continued name suppression and the appeal should be dismissed.
Discussion
[22] In Robertson v New Zealand Police, the Court of Appeal set out a two-stage analysis in respect of applications under s 200(2) of the CPA:7
[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.
7 Robertson v New Zealand Police [2015] NZCA 7 (footnotes omitted).
[23] The starting point in any assessment remains the principle of open justice.8 However, this has greatest force at the second stage of the court’s analysis.9
[24] As to the concepts of “extreme hardship” in s 200(2)(a), the Court of Appeal has noted hardship of itself connotes “severe suffering or privation”, that the qualifier “undue” indicates something more and that “extreme” indicates something more again.10 Clearly the threshold for extreme hardship is high and “well beyond the ordinary associated consequences of offending”.11
First Stage Analysis
[25]I deal with each ground in turn.
[26] To the extent the appeal proceeds under s 200(2)(a) it must in my view fail for the reasons set out in Mr Patanasiri’s submissions. While it is almost inevitable that publication will have some negative effect on the appellant’s cake decorating business and her role as a private investigator (should she be able to resume practice), this cannot justify orders for continued name suppression. Likewise difficulty in obtaining interim employment, particularly in the context of alleged dishonesty offending, is an entirely natural, if unfortunate, consequence of a defendant facing criminal charges. The authorities establish that something more than loss of employment or livelihood is required to meet the high threshold of extreme hardship.12
[27] I note that in this case it appears that the appellant’s cake decorating business has already been placed in abeyance for unrelated reasons. Nor, in the event of acquittal and an application to re-enter the business of a private investigator is there any evidence before the Court that either (a) she would be prevented from doing so or
(b) her future earning ability would be seriously impaired.
8 At [43].
9 At [46].
10 Tony Deverson and Graeme Kennedy (eds) The New Zealand Oxford Dictionary (Oxford University Press, Melbourne, 2005) at 491 as cited in Robertson, above n 7, at [48].
11 SSB v R [2017] NZHC 2590 at [10].
12 See, for example, the comments of Downs J in Blackwood v R [2017] NZHC 1262 at [10]–[12].
[28] Likewise I am not satisfied that there is a real risk of prejudice to the appellant’s fair trial rights under s 200(2)(d). There is nothing in the material before me to suggest that publication of the appellant’s name will invite such prejudicial public comment as to imperil her fair trial rights in any real way.
[29] I accept that, in the circumstances of this case where the identity of the victim and nature of the theft has excited an element of traditional media interest, additional social media commentary may occur. This is all but inevitable in the present day. The appellant does not allege any particular personal vulnerability in this respect. If she did it would need to be assessed under s 200(2)(a) not s 200(2)(c). Insofar as such commentary could come to the attention of jurors and could potentially impact on fair trial rights, the case is in my view no different to any other with an element of public interest. Assuming a jury trial, the judge will direct accordingly. As Mander J observed in R v G:13
The trial judge will undoubtedly have to provide clear directions to the jury regarding past publicity and of the need to put aside previous knowledge obtained from the media in order to objectively assess the evidence. However, as previously observed, that is a common enough situation and experience has shown that despite high levels of pre-trial publicity, often of a negative nature, a jury is well capable of appropriately going about its task in accordance with the judge’s directions.
Second Stage Analysis
[30] Having concluded that the threshold requirement in s 200(2) is not met, it is not strictly necessary for me to undertake the discretionary assessment outlined by the Court of Appeal in Robertson. However, I will set out briefly why I consider that the Court’s discretion should, in any event, be exercised in favour of open justice.
[31] As indicated, it is at this stage of the analysis where the principles of open justice are particularly resonant. The question is whether these should yield to suppression, and in particular, whether suppression is clearly favoured in the circumstances.14 I consider that it is not. There is an element of public interest in the high value burglary of some 2000 clothing items from a leading New Zealand fashion
13 R v G [2020] NZHC 1750 at [63].
14 W (CA639/2016) v R [2017] NZCA 580 at [21].
designer. The victim also strongly opposes the granting of interim name suppression. That is primarily to correct speculation which has already occurred in the media that this offending was an ‘inside job’ and to relieve suspicions on the company’s employees.
[32] I accept that identification in the media that the appellant is not affiliated with the victim company (while simultaneously suppressing other details of her identity) would largely meet the company’s concerns. However, I am not in a position to dictate to the media that it should portray the appellant in any particular way.
[33] In these circumstances, the principles of open justice must in my view be ascendant. I would be minded, therefore, even if one of the threshold grounds in s 200(2) were met, to dismiss the appeal at this second stage.
[34] Accordingly the appellant does not persuade me that I should reach a different decision to that of the District Court Judge.
Result
[35]The appeal is dismissed.
[36] I note that Ms Hallaway’s confirmation that in the event the appeal was dismissed, no further interim order is sought.
Muir J
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