Hearing: 14 October 2020

Appearances:

R K B Stewart for Appellants

R M Lithgow QC and L S B Acland for AK J M Webber for the Police

S J Zindel for the School

Judgment:

13 November 2020

JUDGMENT OF COOKE J

Table of Contents

Jurisdiction for appeal [4] Factual background [6] Arguments on appeal [22] Access to underlying evidence [25] Proceedings in open court [27] Publication and the law of contempt [31] The inherent power to suppress [33] Obtaining information on the court file [37] General approach [38] Application in the present case [41] The “blanket” suppression orders [41]

The summary of facts [44]

STUFF LTD v AK [2020] NZHC 3010 [13 November 2020]

The sentencing decision [50] What should happen now? [57] Outcome [67]

[1] Stuff and NZME appeal against the decision of the District Court dated 28 July

2020 made in criminal proceedings in the District Court in which certain suppression orders were made.1 Those criminal proceedings involved the defendant, who I will refer to as AK, pleading guilty to a series of charges, including the unlawful possession of explosives, firearms and restricted weapons, with a sentence of intensive supervision imposed.2

[2] At the time of the offending AK was only 17 years of age, and it is accepted that the circumstances of the case, including AK’s youth and vulnerability means that AK’s identity should be permanently suppressed. It is also accepted that the identity of the school is properly so suppressed. For the reasons I outline below, I accept that it can be published that AK was a student at the school. What is in dispute is the order of the District Court “suppressing any evidential material arising from the investigation leading to charges faced by the defendant in this prosecution except to the extent it is contained within the agreed summary of facts”.3

[3] The appeal is opposed by AK and the school. The Crown take a neutral view on the appeal, although the Crown participated in determining the scope of the agreed summary of facts which set out the facts that could be published, and it raises one additional passage that it contends should be included in the published facts. Otherwise I understood the Crown to support the suppression orders made in the District Court.

Jurisdiction for appeal

[4] A potential issue arises in relation to the jurisdiction of Stuff and NZME to appeal from the suppression decision. Under s 283 of the Criminal Procedure Act
2011 (the Act) a member of the media who has standing under s 210 has jurisdiction

to appeal the decision of the Court to make or refuse to make a suppression order. In

1 Stuff Ltd v AK [2020] NZDC 15150 [Suppression…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Stuff Ltd v AK

Details

AGLC: Stuff Ltd v AK [2020] NZHC 3010
Case: [2020] NZHC 3010
Decision Date: 13 November 2020

CaseChat Overview and Summary

Stuff and NZME appeal against the decision of the District Court to make suppression orders in relation to a case involving the defendant, referred to as AK. The District Court made orders for permanent suppression of AK's name, address and occupation, as well as the identity of the school. The appeal concerns the order suppressing any evidential material arising from the investigation leading to charges faced by AK except to the extent it is contained within the agreed summary of facts. Stuff and NZME argue that such suppression orders are contrary to the principles of open justice and freedom of expression, and that the public has a right to know the details of the charges, evidence and sentencing. However, the court finds that the suppression orders were necessary to protect the defendant's fair trial rights and the administration of justice. The court also finds that the media is not entitled to report on underlying events and evidence associated with a criminal proceeding unless it has taken place in open court. The appeal is dismissed, with minor changes to the summary of facts to be released with the Court's sentencing decision. The suppression orders made by the District Court are confirmed, with some modifications. The court emphasises the importance of balancing the competing interests between freedom of expression and open justice, on the one hand, and the interests of justice, on the other.

Orders