Stuff Limited v A
[2019] NZHC 1567
•5 July 2019
ORDER DEFERRING COMING INTO EFFECT OF ORDER SETTING ASIDE INTERIM ORDER FOR NAME SUPPRESSION UNTIL 4:00 PM, FRIDAY 12 JULY 2019. SEE PARA [54] OF THIS JUDGMENT. IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2019-404-211
[2019] NZHC 1567
BETWEEN STUFF LIMITED
Appellant
AND
A
First Respondent
AND
THE NEW ZEALAND POLICE
Second Respondent
Hearing: 25 June 2019 Appearances:
R K P Stewart for Appellant
M J Dyhrberg QC for First Respondent
Judgment:
5 July 2019
JUDGMENT OF PAUL DAVISON J
This judgment was delivered by me on 5 July 2019 at 11:00 am Pursuant to r 11.5 of the High Court Rules
Registrar/Deputy Registrar
STUFF LIMITED v A [2019] NZHC 1567 [5 July 2019]
[1] Stuff Limited (the appellant) appeals from a decision of Judge D J Sharp in the Auckland District Court on 21 May 2019 for continuation of interim orders suppressing the name of the first respondent.
[2] The appellant operates a news media and publishing business and is reporting on the proceedings commenced by the New Zealand Police against the first respondent. The appellant is either subject to a code of ethics and the complaint procedures of the Broadcasting Standards Authority or the Press Council;1 or is reporting on the proceedings with the permission of the Court.2 As such the appellant has standing pursuant to s 283(2)(c) of the Criminal Procedure Act 2011 (the Act) to appeal against the decision of the District Court to make or renew a suppression order.3
Background
[3] The first respondent is charged pursuant to s 249(1)(a) of the Crimes Act 1961 with the offence of accessing a computer system for a dishonest purpose. The charge laid by the Police alleges that between 18 February 2018 and 25 March 2019 he directly accessed a computer system, being the National Intelligence Application (NIA) dishonestly or by deception and obtained a pecuniary advantage or other benefit.
[4] The first respondent made his first appearance in the Auckland District Court on Tuesday 26 March 2019. He was represented by counsel and appeared before a Deputy Registrar of the District Court. He was remanded without plea and on bail to return to Court on 16 April 2019. Conditions of bail were imposed including a condition as to where he would reside and requiring him to surrender his passport to the Auckland District Court and not to apply for travel documents. The Deputy Registrar also made an order granting the first respondent interim name suppression.
[5] Prior to the first respondent’s second appearance in Court on 16 April 2019 he engaged senior counsel, and on 8 April 2019 Ms Dyhrberg QC filed a memorandum
1 Criminal Procedure Act 2011, s 210(1)(a).
2 Criminal Procedure Act 2011, s 210(1)(b).
3 Criminal Procedure Act 2011, s 283(1).
with the District Court seeking remand for plea and continuation of the interim name suppression. In her memorandum counsel wrote:
Counsel also seeks an order continuing the interim name suppression on the basis that it is likely that an application will be made for permanent suppression when this matter is finalised. Also, interim name suppression in the meantime will provide an appropriate situation to allow for this matter advancing in a timely manner. Counsel understands there is no opposition to this application at the hearing on 16th April 2019.
[6] In her memorandum Ms Dyhrberg also advised the Court that she would be overseas on 16 April 2019.
[7] At the first respondent’s second appearance on 16 April 2019 he was represented by counsel appearing in an agency role for Ms Dyhrberg. The matter was initially called before a Registrar. In the course of the hearing, Police advised that earlier that morning Stuff had made an application for access to court documents regarding the matter. As there were other issues before the court that day including: an application for a further remand without plea; interim name suppression; and the Stuff application for access to the court documents, the matter was transferred by the Registrar to be heard before a District Court Judge. Having heard from counsel and the Police prosecutor, Judge Fleming made orders further remanding the first respondent without plea and with bail to continue, and adjourning the matter and the Stuff application to 21 May 2019. The Stuff application was adjourned to enable Ms Dyhrberg to consider the application upon her return from overseas. The Judge also made an order that the existing interim order for suppression of the first respondent’s name be continued until further order of the court. The prosecution did not oppose the adjournment or remand, and did not oppose continuation of the interim name suppression.
[8] Stuff subsequently filed an application in the District Court seeking permission to take in-court photographs at the hearing scheduled for 21 May 2019.
[9] On 14 May 2019 Ms Dyhrberg filed written submissions in opposition to the Stuff applications seeking access to the Court file and permission to take in-court photographs. Counsel’s submissions opposed the application for access to the charge sheet and copies of submissions made on behalf of the first respondent for name
suppression and the ruling relating to name suppression, on the grounds that no name suppression ruling had been made by the Court that could be accessed. The submissions were filed with the Court and served on both the prosecution and Stuff. Counsel’s memorandum of submissions stated:
2.2There is no name suppression “ruling” that could be accessed. The defendant has interim name suppression by consent. The application to access the charging document and submissions is opposed on the basis that open justice is not “the starting point”, nor a stand-alone “reason” to grant an application. Open justice has no primacy at any stage, but particularly prior to the substantive hearing where “the protection of confidentiality and privacy interests and the orderly and fair administration of justice” may favour limitation to access (r 13).
2.3Access to the charging document and submissions will not aid fair and accurate reporting and is liable to compromise the administration of justice, in ways that will not be apparent at this stage of the proceedings. For reasons that will become clear, an application for permanent suppression of the defendant’s identity (under s 200) and an application for suppression of evidence and submissions (under s
205) will be made in due course. Granting access, in the unusual circumstances of this case, will have the unintended effect of subverting the orders that will be sought.
[10] Also on 14 May 2019, a civil proceeding commenced in this Court by the Commissioner of Police against the First Respondent under the Criminal Proceeds (Recovery) Act 2009 was heard in chambers before Whata J. His Honour adjourned the matter to 21 November 2019, and made an interim order for suppression of the first respondent’s name.
[11] The first respondent made his third appearance before the Auckland District Court on 21 May 2019. He was represented by Ms Dyhrberg. Judge D J Sharp made an order further remanding him to 18 June 2019 with his bail to continue. The Judge recorded his order for continuation of the interim name suppression order and addressed the other matters before the Court in a short Minute released that same day. The Judge’s decision is expressed briefly, and it is appropriate that it be reproduced in full:
[1] So, it will go to 18 June. There are a number of media applications in relation to this case. There is no previous decision on interim name suppression because the suppression orders were made by consent, made by consent on the basis of fair trial issues. So, there is no material that can be searched concerning that.
[2] I imagine there will be a continuation of the name suppression order, particularly given the agreement as to fair trial issues.
[3] I imagine there will be a full name suppression argument at which the media will have the opportunity of considering and necessarily being heard on. I cannot allow photographs to be taken because that would undermine the order which has already been made. And given the circumstances and the agreement concerning name suppression, I am not prepared to have disclosure of documents from the Court file. I realise that creates some difficulties, but this is an unusual case and it will be a situation at which these matters are able to be considered in full when the applications are heard.
[4] So, the applications that are made are declined on that basis. The charge has been adjourned, it has been adjourned for a period of one month for plea enquiries and you will be able to speak with your counsel about that. It is a continuation of bail and of the interim orders for suppression of name.
[12] On 29 May 2019 the appellant filed the notice of appeal challenging the 21 May decision of Judge D J Sharp to continue the first respondent’s interim name suppression.
[13] The first respondent made his fourth appearance in the Auckland District Court on 18 June 2019 before Judge Fleming. He entered a guilty plea to the charge and was remanded on bail for sentence on 30 August 2019. The Judge allocated sufficient hearing time for both sentencing to take place and for the Court to hear the first respondent’s application for permanent name suppression. The order for interim name suppression was continued to 30 August 2019.
The appeal
[14] The appellant says that the District Court Judge when ordering continuation of an order for interim name suppression on 21 May 2019 erred by:
(a)failing to give reasons for his decision;
(b)being satisfied the threshold ground on which the suppression order was sought had been established; and
(c)by exercising his discretion to grant the suppression order on the available evidence.
Criminal Procedure Act 2011, s 200
[15]Section 200 of the Criminal Procedure Act provides as follows:
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.
(3)The fact that a defendant is well known does not, of itself, mean that publication of his or her name will result in extreme hardship for the purposes of subsection (2)(a).
(4)Despite subsection (2), when a person who is charged with an offence first appears before the court the court may make an interim order under subsection (1) if that person advances an arguable case that one of the grounds in subsection (2) applies.
(5)An interim order made in accordance with subsection (4) expires at the person’s next court appearance, and may only be renewed if the court is satisfied that one of the grounds in subsection (2) applies.
(6)When determining whether to make an order or further order under subsection (1) that is to have effect permanently, a court must take into account any views of a victim of the offence conveyed in accordance with section 28 of the Victims’ Rights Act 2002.
Submissions
Submissions for the appellant
[16] Mr Stewart submits that criminal proceedings are generally open to the public,4 and the media are entitled to be present and to report those proceedings. He submits that the only basis upon which the Court can suppress a defendant’s name in a criminal proceeding is if it is satisfied that one or more of the requirements of s 200(2) of the Act have been met by a defendant. Mr Stewart says the Act makes it clear that an interim order suppressing a defendant’s name may be granted at a first appearance where the defendant advances an arguable case that one of the grounds in s 200(2) can be made out.5 However, an interim order made in those circumstances will expire at the defendant’s next Court appearance and may only be renewed if the Court is satisfied that one of the grounds specified in s 200(2) of the Act is actually made out.6
[17] Counsel accordingly submits that the interim suppression order made by the Auckland District Court on 26 March 2019 expired on the date of the first respondent’s second Court appearance on 16 April 2019. He submits that at the hearing on 16 April 2019 the District Court did not address the issue of whether one or more of the grounds specified in s 200(2) had been established and accordingly could not have been satisfied that any of those grounds had been made out. Mr Stewart further submits that it appears that on 16 April the District Court simply “rubber stamped” the first respondent’s request for continuation of the interim suppression order and that that request was unopposed by the Police. He says that the same approach was adopted by Judge D J Sharp on 21 May 2019 with the Judge not addressing or considering whether any of the grounds specified in s 200(2) of the Act had been established. Mr Stewart submits that no reasons were given by Judge D J Sharp for making an order continuing interim name suppression, other than the Judge noting that “there is no previous decision on interim name suppression because the suppression orders were made by consent, made by consent on the basis of fair trial issues.”
4 Criminal Procedure Act 2011, s 196.
5 Criminal Procedure Act 2011, s 200(4).
6 Criminal Procedure Act 2011, s 200(5).
[18] Mr Stewart submits that the contents of the District Court Judge’s Minute of 21 May 2019 do not satisfy the statutory requirements of s 207 of the Act, which requires the Court to give reasons for making, varying or revoking a suppression order. Counsel submits that the memorandum of the first respondent’s counsel, notifying the first respondent’s intention to apply for a permanent suppression order is not a recognised ground for the making of an interim order, and similarly the fact that there was agreement between the Police as prosecutor and the defence for the making of an interim suppression order is not a recognised ground for the making of such an order.
[19] Mr Stewart submits that it appears Judge Sharp made an order for the continuation of interim name suppression because it appeared that the parties had previously agreed that there were fair trial issues, not because the Judge was himself satisfied that the requirements of s 200(2)(d) of the Act were satisfied. Counsel submits that there was therefore no legal basis for the existing interim suppression order to be continued by the District Court on 16 April 2019 and 21 May 2019. He submits that an agreement between the parties is not sufficient to satisfy the Court that one of the statutory grounds provided for in s 200 exists and furthermore the exercise of the Court’s discretion is a matter for the Court to address and consider itself, rather than the parties being left to agree on it.
[20] The appellant therefore seeks an order revoking the existing interim order for suppression of the first respondent’s name.
[21] Mr Stewart also notes that the first respondent’s name has been suppressed in the context of the civil proceedings by the Commissioner of Police against the first respondent seeking recovery of assets said to be the proceeds of crime. Mr Stewart submits that an order for non-publication of the first respondent’s name in relation to those civil proceedings does not operate as an order for suppression of his name in relation to the criminal proceedings in the District Court. He submits that the suppression order in the civil proceeding simply prohibits publication of the first respondent’s name in relation to that proceeding.
Submissions for the first respondent
[22] In her written submissions Ms Dyhrberg argues that the appellant’s appeal is an abuse of process, however at the hearing of the appeal, while not withdrawing the submission she did not pursue it further. In her written submissions, Ms Dyhrberg accepts that the appellant has what she describes as “bona fide appeal rights”, but says that allowing the appeal to proceed would permit an abuse of the Court’s processes.
[23] Ms Dyhrberg submits that either through inattention or otherwise the appellant has “engineered” the circumstances that produced the District Court decision under appeal, as although the appellant was present at the District Court hearing on 16 April 2019, it failed to raise any objection to the order for continuation of the interim suppression order. Ms Dyhrberg says that the appellant had been put on notice of the first respondent’s intention to seek an order for continuation of interim name suppression. She says that at the time of that hearing it was clear that if elaboration of the s 200(2) grounds was required, counsel for the first respondent would have provided details of the matters being relied on. She submits that by not objecting to or opposing the making of an order for the continuation of the interim suppression order, the appellant as a party with standing regarding the matter, appears to have given the Court and the first respondent the impression that it did not oppose the making of an interim order.
[24] Ms Dyhrberg says that had the appellant exercised its right to be heard on the matter as confirmed by s 210 of the Act , it would have “triggered a discussion” that would have removed the appellant’s concerns about the legality of the interim order and the sufficiency of the grounds justifying the making of the order. She submits that essentially the appellant is using this appeal as a means of bringing the matter before this Court for what is effectively a first-instance determination of the merits of the interim suppression application, because it elected not to participate in the hearing of the matter when it was before the District Court for decision.
[25] She submits that although the order made by the Judge was summarily explained, the order has a clear basis in law, which could have been fully discovered had the appellant actively participated during the hearing in the District Court, rather
than having “sat on its hands”. Ms Dyhrberg says that as a result of the appellant not raising its objections in the District Court, the respondents have been forced to respond to an appeal that could have been avoided altogether had the appellant participated during the hearing when the interim order was made. She submits that it could not have been Parliament’s intention when it enacted s 210 of the Act, providing a right of appeal to the media, to permit the situation that has arisen here.
[26] Ms Dyhrberg further submits that rather than filing an appeal, the appellant had the alternate remedy of making submissions at and attending the next hearing following 21 May 2019, in order to oppose further continuation of the interim suppression order. Such an approach would have triggered an examination of the grounds for the making and continuation of the interim order. Counsel notes that the first respondent’s application for permanent suppression of his name is now set down for hearing on 30 August 2019, and that hearing will provide another opportunity for the appellant to make submissions regarding the issue of name suppression.
[27] Ms Dyhrberg says that by virtue of the alternative remedies and opportunities available to the appellant to challenge the continuation of the interim order and to oppose the making of an order for permanent suppression of the first respondent’s name, the appellant will not suffer any prejudice as a consequence of the appeal being struck out. She says that the appellant chose to pursue an appeal rather that participating at the District Court hearing on 18 June 2019, when its active opposition to continuation of the interim order would have almost certainly triggered an elaboration of the grounds being relied on by the first respondent. By electing to appeal rather than participating in the District Court, Ms Dyhrberg says that the appellant has demonstrated that this appeal has absolutely nothing to do with the substantive interests of the press in a free and democratic society.
[28] Finally, Ms Dyhrberg submits that following Whata J making an interim order for suppression of the first respondent’s name in the civil proceedings filed in this Court, the question of whether the District Court interim suppression order was validly made is now moot. She submits that given the unusual circumstances of the case, identification and publication of details in relation to District Court criminal proceedings would be likely to have the effect of identifying the first respondent as
the respondent named in the High Court civil proceedings. In these circumstances she submits that a lifting of the District Court interim suppression order would be “journalistically moot.”
[29] Counsel submits that the appeal is therefore an abuse of process which should not be allowed to proceed further and which should be struck out.
[30] Alternatively, the first respondent submits that in any event there were valid and sufficient grounds for the interim order made by Judge Sharp on 21 May, namely the protection of the first respondent’s fair trial rights. Counsel submits that while the Judge did not himself go any further than identifying that the basis for the making of the interim order was the protection of the first respondent’s fair trial rights, he was nonetheless entitled to rely on the consent of the prosecutor and the absence of any objection from the appellant, as being evidence that the s 200(2) grounds applied. Ms Dyhrberg says that Judge Sharp was fortified in that conclusion by the previous orders made by Judge Fleming and by counsel’s written submission in which she said the grounds for suppression would be elaborated on if required.
[31] Ms Dyhrberg submits that judges of the District Court necessarily act on the basis of consent provided by parties. She submits that although a judge is not precluded from rejecting a consent and examining a matter for them-self, a judge is nevertheless entitled to act on a consent. She says that efficient dispatch of the court’s business would become impossible if judges were not able to put stock in conclusions that all parties acknowledge to be correct. Counsel says that the context in which the order was made is also relevant as when on 21 May Judge Sharp made the order for continuation of the interim suppression order, he was merely continuing interim orders for approximately three weeks. Ms Dyhrberg says that to require the Judge to undertake further analysis of the grounds for the making of an interim order in those circumstances would be unduly burdensome and arguably a misuse of the court’s time.
[32] Ms Dyhrberg says that the appellant’s approach would require high-level submissions and extended decisions by the District Court when determining and making orders pursuant to s 200(5) of the Act. She submits that such an approach involving that level of detailed consideration by the Judge would be impracticable.
She says that the Judge was entitled to rely on the consent of the parties and the absence of any objections, as being sufficient support for finding that the s 200(2) and
(5) criteria for the making of an interim order had been satisfied. Ms Dyhrberg concludes by saying that although Judge Sharp’s reasons were briefly expressed, they were appropriate and sufficient having regard to the circumstances, and they were made in the context of the interim order inevitably becoming the subject of greater scrutiny at an appropriate future time in the criminal process.
Discussion
[33] Section 200 of the Act confers the power for a court to make an order suppressing the identity of a defendant in criminal proceedings. The provision gives the court a discretion to make an order prohibiting publication of the name, address or occupation of a person charged with, convicted, or acquitted of an offence if satisfied that publication of that information would be likely to cause or result in any of the consequences of publication described in s 200(2).
[34] Section 200(4) of the Act deals with the situation where a person who is charged with an offence is making their first appearance in court. When a person is charged it is frequently the case that they will have a number of pressing matters to deal with. Having been charged they will in many cases engage a lawyer to advise and represent them, and will often also need to inform close family members, employers or colleagues of their situation. The interval between being charged and making a first appearance in Court can range between hours, in the case of those who are arrested by the Police, to several weeks for those who are summonsed to attend court following being charged. Parliament has recognised that prior to a person’s first court appearance, they may not have had sufficient time to assess their circumstances and assemble the information necessary to satisfy the court that were their name to be published, one or more of the consequences of publication described in s 200(2) would be likely to result. Section 200(4) accordingly gives the court power to make an interim suppression order when a person making their first appearance in court “advances an arguable case” that one of the grounds in s 200(2) applies.
[35] To satisfy the prerequisite of advancing an arguable case, a person making their first appearance will be required to identify which of the consequences of publication described in s 200(2) will be likely to be caused or result if their name is published. To advance an arguable case it will be necessary for a defendant to explain how and why publication will be likely to have one of the consequences set out in s 200(2). At this early stage the prerequisite of advancing an “arguable case” prescribes a comparatively low threshold. In order to obtain a s 200(4) order, a defendant will need to identify that there is some basis upon which they will contend that one or more of the s 200(2) consequences will be likely to occur if their name is published in association with the charges that they are facing. At this stage, although they may do so, a defendant will not be expected to be in a position to provide evidence or present supporting material to establish that the consequences that they have identified will be likely.
[36] While grounds which are spurious, contrived and obviously without merit will not be sufficient, at this early stage after a defendant has been charged, it will be sufficient for them to inform the court of the likely consequence or consequences of publication and explain how they are likely to be affected. An order made pursuant to s 200(4) will protect the defendant from any adverse consequences of publication of their name and provide the recently charged defendant with an opportunity before their next court appearance to assemble any material necessary to satisfy the court that an interim order pursuant to s 200(1) is necessary to prevent any of the s 200(2) consequences of publication of their name. This generally short-term period during which publication of the defendant’s name is prohibited, is a temporary deferral of the public’s right to know and be informed of the business of the courts.
[37] Significantly, s 206 of the Act confers power on a court Registrar to make an interim suppression order pursuant to s 200(4) on a defendant’s first appearance in court if the Registrar adjourns the hearing of a charge, and if both parties agree to the making of the order. This provision recognises that at the preliminary stage of a prosecution and a first court appearance by the defendant, the pre-requisite requirements for the making of an interim suppression order can be dealt with on a summary basis. Should both parties agree, the Registrar is authorised to make an order
without assessing and determining the adequacy of the arguable case regarding the existence of grounds for interim suppression as advanced by the defendant.
[38] Section 200(5) provides that an interim order made in accordance with s 200(4) on a defendant’s first court appearance will expire at their next court appearance and may only be renewed if the court is satisfied that one of the grounds in s 200(2) applies. The requirement in s 200(5) that an order to renew a s 200(4) order may only be made if the court is satisfied that one of the grounds in s 200(2) applies, makes it clear that at this second court appearance stage, a defendant is required to identify which of the eight grounds in s 200(2) is being relied on, and present evidence and submissions such as to satisfy the court that the identified s 200(2) ground or grounds exist.
[39] At this second court appearance an order for continuation of an initial s 200(4) suppression order can only be made if the court is satisfied that one or more of the requisite grounds have been shown to apply. For the court to be satisfied that a s 200(2) ground applies, it will require more than being presented with an arguable case as to the existence of s 200(2) grounds. To be satisfied the court will need to conclude that one or more of the s 200(2) grounds are made out.
[40] In my view it is significant that s 200(5) and s 200(2) both stipulate that an order under those provisions can only be made if “the court is satisfied”. This requirement recognises that orders which will prohibit the publication of names and particulars of persons charged with criminal offending, and which operate to effectively exclude the public from knowing the business of the court, will only be made where one or more of the statutory grounds exist, and only where a judge is satisfied that the grounds exist. Thus, the court is required to adjudicate between the private interests of the defendant as regards the likely consequences of publication of their name in association with the charges, and the public interest in knowing who has been charged with criminal offences and who is before the court. This requires the court to determine whether the grounds relied on by a person facing charges have been shown to apply and the likelihood of them occurring. While a court’s consideration of this issue will no doubt be informed by the consent or non-opposition to the making of an order on the part of the prosecution, the decision the court is required to make as to whether or not it is satisfied that the ground relied on applies, nevertheless requires
the court itself to make an assessment and evaluation of the material and information presented to it.
[41] This interpretation of the effect and requirements of s 200(2) and s 200(5), is supported by s 207(1) and the mandatory requirement for the court to give reasons for making, varying, or revoking a suppression order. The requirement to give reasons in this context informs the immediate parties to the application for suppression of the basis for the court’s decision and enables them to assess the correctness and sufficiency of the court’s reasons and make decisions regarding a possible appeal. The giving of reasons also informs the public why their right to know what is going on in the court and who is before the court, has been necessarily deferred in the interests of justice.
[42] Thus, the important function of determining whether a suppression order should be made requires judicial assessment followed by the giving of reasons. The adoption of a position and the making of a suppression order on the basis of the existence of consent of the prosecution and defendant, without judicial engagement in an evaluative process followed by the giving of reasons, will not satisfy the requirements of s 200(2) and s 200(5) of the Act.
[43] In the present case it appears that when the first respondent made his first appearance in court on 26 March 2019 he applied for an interim order, the police prosecution consented, an interim suppression order was made by the Registrar pursuant to ss 206(1) and 200(4), and the matter was adjourned to 16 April 2019. The s 200(4) order was then due to expire when the first respondent appeared in court for the second time on 16 April. On that date the matter was initially called before the Registrar and then transferred to be called before a District Court Judge. Judge Fleming made an order for continuation of the interim suppression order without addressing the existence of grounds for the order, and consequently without determining the sufficiency of the basis upon which the court could be satisfied as to whether any of the s 200 (2) grounds applied.
[44] As I have noted, in support of her submission that this appeal is an abuse of process, Ms Dyhrberg places significance on the fact that although one of the appellant’s staff reporters was present during the hearing, no objection was raised to
the making of the order. The first respondent submits that by not objecting at the time the order for continuation of the interim suppression order was made, the appellant is now taking advantage of its right to appeal, without having taken the opportunity it had in the District Court to exercise its right to be heard to oppose the making of an order. However, I do not consider the failure of a media representative to address the court to object or to oppose the making of an order is in any way relevant to the issue of whether the order made was in accordance with the requirements of s 200. Whether they are experienced court reporters or junior staff, members of the media who are present to report proceedings cannot be expected to intervene and seek to be heard to oppose the making of orders sought by parties to proceedings.
[45] The issue of whether the media must have exercised their right to be heard in relation to a defendant’s application for name suppression if they wish to subsequently challenge the lawfulness of a suppression order arose in Lewis v Wilson & Horton Ltd in relation to an application for judicial review of a District Court Judge’s decision to order suppression of a defendant’s name pursuant to s140 of the Criminal Justice Act 1985.7 The appellant argued that where media have had an opportunity to be heard, there is an obligation to raise a request to be heard before a suppression application is determined, and if they do not avail themselves of that opportunity, they will have waived their standing to seek judicial review of the decision. Addressing that submission the Court of Appeal said:8
[50] We are unable to accept that the conduct of Wilson & Horton is such as to disentitle it to seek a remedy, if the s 140 decision is shown to have been made by error for which judicial review is otherwise available. The reporter was not a participant in the process. While in some circumstances it may be appropriate for the media to be heard at the time the Court is considering an order to prohibit publication, the occasions when such opportunity is a realistic one are likely to be rare. They will generally be cases where the media have sufficient warning of the matter to be in a position to arrange representation and to give notice that they wish to be heard. That will not typically be the case when an application is made in the summary jurisdiction.
[51] The orderly conduct of a busy list Court would be unacceptably disrupted if Court reporters felt obliged to intervene and ask to be heard in order to preserve the opportunity to seek judicial review. It is unrealistic to suggest, as the appellant does, that “The media have a responsibility to ensure their reporters are both capable of seeking the right to be heard, and trained in the appropriate way of seeking that right.'' The acknowledgment made by
7 Lewis v Wilson & Horton Ltd [2000] 3 NZLR 546.
8 Lewis v Wilson & Horton Ltd [2000] NZLR (CA) 546.
counsel that, where objection is taken by a reporter, an adjournment would have to be sought to enable a representative or counsel to be heard demonstrates that the suggestion is unworkable. It would mean that adjournments would have to be sought against the chance that it may be thought necessary to apply for judicial review. That need may not arise if, on hearing the application, no s 140 order is made or if an order is made on grounds which the media accept as sufficient. A request to be heard before a s 140 order is determined will usually be premature. In most cases the police or prosecuting counsel will sufficiently represent the public interest in publication. A decision to seek judicial review is a decision which can only be taken responsibly after consideration of the decision and advice. In most cases it will be the appropriate procedure for someone affected who is not a party to the s 140 application. The right to bring a challenge by way of judicial review is not subject to the precondition that the media seeking review must first have participated in the determination.
[52] The High Court was accordingly correct to hold that Wilson & Horton had standing to bring the judicial review proceedings. Its right to do so was not waived.
[46] Adopting the same reasoning as applicable to applications made pursuant to s 200 of the Act, I do not consider that whether or not the appellant sought to be heard at the hearing before Judge Sharp on 21 May 2019, is of any significance to the issue of whether the order made for continuation of the interim suppression order was lawful.
[47] When the matter came before Judge D J Sharp on 21 May 2019, the Judge did not himself assess whether any of the s 200(2) grounds applied. The primary focus of the Judge’s disposition of the matter on that occasion was the application by the appellant and other news media for access to documents on the court file regarding the interim suppression order. Addressing the media application, the Judge noted that there was no previous decision on interim suppression because the suppression order had been made by consent on the basis of fair trial issues, and consequently there was no material that could be searched by the media concerning the interim suppression order. Nevertheless, the Judge made an order for the continuation of the interim suppression order, having commented:
I imagine there will be a continuation of the interim name suppression order, particularly given the agreement as to fair trial issues.
I imagine there will be full name suppression argument at which the media will have the opportunity of considering and necessarily being heard on…
[48] It is clear from the Judge’s comments that he understood that the prosecution and defence were in agreement that continuance of the interim order was necessary to protect the first respondent’s fair trial rights. That being the case, it appears that the Judge relied on the existence of the agreement reached between the prosecution and defence, and did not himself make an assessment of the adequacy of grounds for continuing the interim suppression order. Moreover, there was no previous decision of the court setting out the reasons as to why the Judge was satisfied the interim suppression order should be continued on 16 April 2019. Had there been, it would have been open to the Judge to rely on the previous decision as providing the basis for further continuation of the interim order.
[49] However, there being no previous decision determining that s 200(2) grounds had been shown to apply, before making an order for continuation of the interim suppression order on 21 May 2019, the court was required to be satisfied that one or more of the s 200(2) grounds applied. To be so satisfied, the Judge was required to do more than simply noting the existence of an agreement between the prosecution and defence for continuation of the interim order. I consider that in the circumstances that had arisen as at 21 May, the Judge was required to be satisfied as to the existence of grounds justifying the continuance of the interim suppression order by reference to information and material that independently of the agreement of the parties, established the existence of grounds justifying the making of a suppression order. Furthermore, the Judge was required to give reasons for his decision.
[50] Accordingly, I find that the Judge’s decision of 21 May 2019 to order continuation of the interim suppression order was not made in accordance with the requirements of s 200 and must be set aside.
[51] I consider that the manner in which the proceeding progressed, prior to the hearing on 21 May, contributed significantly to the Judge’s oversight on that occasion of the requirement he be satisfied one or more of the grounds in s 200(2) of the Act was made out. It appears that when the first respondent made his second court appearance on 16 April 2019, the Judge on that occasion relied on the contents of the memorandum filed by Ms Dyhrberg which stated that the “defendant has interim name suppression by consent”, and that an application for permanent suppression of the
defendant’s identity, evidence and submissions would be made in due course. The signalling of a proposed application for permanent name suppression without more in terms of supporting material and information cannot satisfy any of the s 200(2) grounds.
[52] This case illustrates the risk that when the court proceeds on the basis of an agreement between the prosecution and defence as regards interim name suppression, the public interest represented by the media may be overlooked. The provisions of s 200 stipulate that it is the court that must be satisfied as to the existence of s 200(2) grounds and should such grounds be found to apply, it is for the court to decide whether or not to make a suppression order. The obligation on the court to give reasons for its decision enables the parties, the public, and the media as the “watch-dog” of the public interest to understand the reasons why a suppression order has been made. The giving of reasons will ensure that confidence in the courts and our system of criminal justice is upheld by an explanation of why the public interest in having open access to the business of the courts, yields to the private interests of the person charged.
Result
[53] For these reasons the appeal is allowed and the interim order for continued suppression of the first respondent’s name made by the District Court on 21 May 2019 is set aside.
[54] The first respondent’s application for an order for permanent name suppression is to be heard in the District Court on 30 August 2019. It is of course open to the first respondent to make an application to the District Court for an order for interim suppression of his name pending the hearing on 30 August, supported by such evidence as to satisfy the Court as to the existence of s 200(2) grounds. To enable that to be done I shall defer the coming into effect of my order setting aside Judge Sharp’s interim order until 4:00 pm, Friday 12 July 2019.
Paul Davison J
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