Stuff Ltd v Hubbard
[2019] NZHC 1596
•9 July 2019
IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY
I TE KŌTI MATUA O AOTEAROA WAIHŌPAI ROHE
CRI-2019-425-000011
[2019] NZHC 1596
BETWEEN STUFF LTD
Appellant
AND
LAUREL HUBBARD
First Respondent
AND
NEW ZEALAND POLICE
Second Respondent
Hearing: 1 July 2019 Appearances:
M van Beynen for the Appellant
F Guy Kidd QC for the First Respondent S N McKenzie for the Second Respondent
Judgment:
9 July 2019
Reissued:
12 July 2019
JUDGMENT OF NATION J
Background
[1] At about 4.20 pm on 24 October 2018, Ms Hubbard was driving a motor vehicle on Littles Road in Queenstown. Upon travelling through a sharp left bend, she crossed the centre line. She tried to correct the manoeuvre, causing her vehicle to fishtail and eventually collide with an oncoming vehicle carrying the victims Gary and Suzette Wells. Mr and Mrs Wells, who were both in their 60’s, were tourists from Australia.
[2] The victims’ vehicle suffered extensive damage. Mr Wells, the driver, suffered a spinal injury. Mrs Wells suffered bruising to her chest. Mr Wells was hospitalised
STUFF LTD v HUBBARD [2019] NZHC 1596 [9 July 2019]
in the orthopaedic ward of the Dunedin Hospital for 12 days. On his return to Australia, on the advice of a neurosurgeon, he had to undergo major surgery to correct a significant injury to his spinal cord. It is apparent from Mr and Mrs Wells’ victim impact reports that the injuries have had a long term effect on them emotionally and have significantly curtailed their ability to enjoy the active lives they had been living in their retirement.
[3] Ms Hubbard pleaded guilty to charges of careless driving causing injury on 28 January 2019. In pleading guilty to the charge, Ms Hubbard offered to pay full reparation for the costs Mr and Mrs Wells had incurred which were not covered by insurance and $1,000 for emotional harm. In total, she paid the New Zealand equivalent of AUD12,774.01.
[4] On 4 February 2019, a Judge in the District Court discharged Ms Hubbard without conviction.
[5] The Judge noted Ms Hubbard was a first offender for this type of offence, had pleaded guilty relatively early, was willing to undertake restorative justice, was genuinely sorry for the injuries Mr Wells had suffered, and had recognised the emotional harm through the reparation payment she made. The Judge noted the Police accepted that, in terms of the degree of carelessness involved, this was low-level offending.
[6] As to the consequences, the Judge noted that, if Ms Hubbard was convicted and disqualified, she would not, as was normally mandatory, be able to apply for a limited licence with a passenger endorsement. She would not be able to be employed in her normal line of work as a driver. This would mean she would have to live off limited savings in a situation where she was already struggling to pay for overseas travel and competition costs associated with her sporting ambitions. The Judge considered there was an appreciable risk that a conviction would have a negative impact on her mental health and wellbeing at a time when she needed to perform at her best to qualify for the Olympic Games. The Judge described her actions as being a result of momentary inattention, albeit with unfortunate consequences, as opposed to more serious offending.
[7] The Judge considered that, with the international success Ms Hubbard had already achieved in her sporting endeavours, she was strongly in line to be selected for the Olympics. The Judge considered that the direct and indirect consequences of conviction would be out of all proportion to the low-level offending to which Ms Hubbard had pleaded guilty.
[8] Taking all those matters into account, in the exercise of her discretion, the Judge discharged Ms Hubbard on the charge of careless driving causing injury and ordered her to pay the New Zealand equivalent of AUD12,774.01 in reparation, including an emotional harm component of $1,000. The Judge rejected the Police submission that the minimum mandatory disqualification of six months should be applied. The Judge noted what she described as the “significant financial penalty” that Ms Hubbard was meeting, a payment that would have been greater than the Judge said would have been imposed by way of a fine in the normal course of events. Ms Hubbard was disqualified for one month.
[9] This appeal relates not to Ms Hubbard’s discharge without conviction but to the orders made as to suppression of her name and other information.
[10] Ms Hubbard is a world-class female weightlifter. She hopes to be able to represent New Zealand at the Olympic Games in Tokyo in 2020. Although it may not be her wish, she has a public profile, in part through the controversy associated with her being cleared to compete at the 2018 Commonwealth Games as a transgender female.
[11] An interim order was made for suppression of Ms Hubbard’s name when she first appeared on the careless driving causing injury charge on 26 November 2018. Applications for continuing name suppression were filed on 18 December 2018 and 25 January 2019. The interim orders were extended on successive occasions and after she pleaded guilty on 28 January 2019. Whether or not her name should continue to be suppressed was a significant issue when the Judge had to sentence Ms Hubbard on 4 February 2019.
[12] The media’s interest in the case was evidenced by Stuff Ltd’s application on 16 January 2019 for permission to take photos at the sentencing. That application was declined. A further application to film, take photos or record sound at the sentencing hearing was lodged on 30 January 2019. Those applications were opposed by Ms Hubbard and were declined.
[13] Before the sentencing hearing, Ms Hubbard’s counsel, Ms Guy Kidd QC, filed submissions in support of the application for a discharge without conviction, including an affidavit from Simon Kent, the high performance director for Olympic Weightlifting New Zealand, an affidavit from a transport manager for a business that had employed Ms Hubbard in the past and an affidavit from Ms Hubbard which was described as being in support of application for name suppression.
[14] The Police filed a submission adopting a neutral stance in relation to the application for a discharge without conviction. They opposed the application for permanent name suppression.
[15] At the hearing on 4 February 2019, the Judge heard submissions from Ms Guy Kidd for Ms Hubbard and Sergeant Gerken for the prosecutor. The hearing was attended by a reporter from the Southland Times who, in that capacity, was also a reporter for Stuff.
The District Court decision as to continuing suppression
[16] The Judge carried out the two-step enquiry confirmed as necessary by the Court of Appeal in D v Police.1 She acknowledged Ms Hubbard had to establish that publication would be likely to cause “extreme hardship” to her and that, for extreme hardship to be likely, there had to be a real and appreciable risk that such harm could occur. She acknowledged that, if that threshold had been established, the Court would have to balance other relevant considerations in the exercise of its discretion.
[17] In assessing the first step, the Judge noted Ms Hubbard was aged 40. She referred to Ms Hubbard’s background, the fact that she was a world-class female
1 D v Police [2015] NZCA 541.
athlete and someone who had transitioned to become a woman some time ago. She said Ms Hubbard had been under intense scrutiny in particular because, in her chosen sport, strength is an important asset, and she was seen by some to have an unfair advantage. As a result, she had been the subject of harsh comments on Facebook.
[18] The Judge noted she had been well supported by the sports Olympics Committee. She considered Ms Hubbard had a real chance of qualifying for the Olympics, she had suffered both emotionally and physically as a result of the accident she suffered at the Commonwealth Games and mental distress as a result of the car crash. The Judge said it was clear Ms Hubbard was resilient, having overcome a lot to get to the position she was now in, but the accident on 24 October 2018 had complicated her previous recovery. She said the material before her suggested Ms Hubbard would continue to be under stress and publication of her name would add to that stress but noted she had no medical evidence confirming her mental health challenges. The Judge noted that Ms Hubbard was about to attend some Olympic qualifying competitions. She acknowledged the victims did not want Ms Hubbard’s name suppressed but said she had to remind herself that Ms Hubbard was facing a careless driving charge causing injury with culpability at the lowest level, and was making good, to a large extent, the damage caused. The Judge also noted that name suppression for such a charge would be most unusual. The Judge referred to Ms Hubbard’s forthcoming competition schedule.
[19] Against that background, the Judge concluded that publication of Ms Hubbard’s name at that point would be likely to cause extreme hardship and, on that basis, there should be suppression through until later in 2019.
[20] The Judge went on to say she could not conclude that publication of Ms Hubbard’s name later in the year in respect of this charge would cause extreme hardship but accepted counsel’s submission that publication of Ms Hubbard’s personal details, including counsel’s submissions, the details of the Judge’s decision and the Police submissions, would be likely to cause extreme hardship.
[21] The end result was that the Judge made an interim order for suppression of Ms Hubbard’s name until 30 September 2019. After that time, the Judge permitted
publication limited to Ms Hubbard’s name, occupation, sporting prowess and the summary of facts. She said there would then be nothing to stop any reference to the fact that Ms Hubbard is a world-reflected [sic] weightlifter but said there were limits to that.
[22]The Judge further ordered:
There will be no publication of this full ruling. There will be no publication of Ms Guy Kidd’s oral submissions, Sergeant Gerken’s submissions, and no publication referring to any of the written submissions filed by both the police and counsel in respect of any matters associated with this hearing today, including the s 106 application, the application for suppression of name, and the application in support (and opposition to) the media application; and no publication of the evidence that is filed, as well as the submissions.
[23] On 5 March 2019, Mr Martin van Beynen, a senior journalist with Stuff, filed a notice of appeal. In the notice of appeal and submissions filed in support of the appeal, Stuff contended that the Judge had erred in law in finding extreme hardship existed when that threshold had not been reached and when no medical evidence had been produced to support that threshold had been reached. Stuff also contended the Judge failed to weigh the hardship against other factors such as the importance of open justice and the Judge was not legally justified in suppressing her ruling.
[24] Out of caution, Ms Hubbard filed a cross-appeal. The purpose of that cross- appeal was to allow the Court to consider all the suppression orders made in the District Court.
Approach on appeal
[25] Before a Court may exercise its discretion to make a suppression order, a statutory threshold has to be satisfied. It follows that, whether the statutory threshold has been established involves a matter of judicial evaluation.2 In accordance with the approach directed by the Supreme Court in Austin, Nichols & Co Inc v Stichting Lodestar, an appeal court must make its own assessment of whether the threshold test is met.3 The constraints on an appeal from the exercise of a discretion do not apply to the first issue of whether the threshold test was met.
2 Rougeux v Police [2014] NZHC 979.
3 Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] NZLR 141.
[26] As to the second stage, both at first instance and on appeal, the Court must apply a “balancing” test to determine whether or not to order suppression.
[27] At both stages of the enquiry, the Court is constrained by the words of the applicable legislative provisions and the stringent statutory test for suppression that now applies. A Judge is not permitted to direct suppression out of sympathy for the predicament a defendant faces or because of their assessment that, in all the circumstances, suppression would be fair.
Submissions for the respondent
[28] For Ms Hubbard, Ms Guy Kidd submitted this was not a situation where the respondent was arguing that, simply because she had a public profile, any publication of her name would cause extreme hardship. She emphasised that any assessment of hardship must be considered in the relevant context. She said the Judge had carefully assessed the level of hardship by looking at the factors at play over the relevant period, particularly where Ms Hubbard would be seeking to qualify for the Olympic weightlifting team and her need to compete successfully at competitions in Thailand on 7-10 February 2019, the Arafura Games in Darwin on 26-29 April 2019, 2019 Oceania Championships in Samoa on 8-13 July 2019 and IWF World Championships in Thailand on 18-27 September 2019.
[29] Ms Guy Kidd stressed that the Court had to be concerned not just with the fair and accurate reporting of Court proceedings but the fact that, with publication of the Court proceedings, there would inevitably be comments published on social media platforms of a derogatory and offensive nature. This had been illustrated with comments posted on social media platforms after there had been publicity about Ms Hubbard’s involvement in the April 2018 Commonwealth Games in Australia.
[30] Counsel noted that the comments made then had remained on the Stuff Facebook platform, despite Stuff’s comment policy which reserved their right to reject comments, images or links that:
· include personal attacks of any kind;
· are homophobic, transphobic, sexist, offensive or obscene;
· are clearly off topic;
· are trolling or threatening;
· just generally are not very nice.
[31] Counsel noted the comments from Ms Hubbard as to how she found such material deeply upsetting, despite trying not to look at it. Counsel also emphasised how any reporting as to Ms Hubbard and the comments that followed would have an international reach following her wherever she competed, as had been illustrated with reports from overseas associated with her involvement with the Commonwealth Games in April 2018. She referred to the evidence from Mr Kent of Olympic Weightlifting New Zealand as to the way such publicity had a detrimental effect on Ms Hubbard’s ability to perform at major competitions and the way it could thus affect her ability to qualify for Olympic competition. Counsel also suggested that the Court should not assess the likelihood of extreme hardship on the basis there would be fair and accurate reporting. In this case, there had been misleading reporting with the New Zealand Herald on 28 November 2018 headlining an article as to Ms Hubbard’s careless use charge as “high profile sportswoman faces dangerous driving charge in Queenstown”. The Herald had left that headline unaltered without recognising that she was in fact facing a lesser charge.
[32] Ms Guy Kidd emphasised that what distinguishes this case from others, where the Court is concerned with the potential for publicity for other high profile sports people, is that any publication as to the Court proceedings would result in online “trolling and bullying comments unrelated to the offence and/or going beyond criticism of her continued involvement in weightlifting”. In her submission, such comments would occur at a time when they would have a detrimental effect on her performance and when she had a real possibility of achieving Olympic representation. It was because of this, Ms Guy Kidd submitted, publicity would have a detrimental effect on Ms Hubbard’s performance that went beyond the “ordinary associated consequences” of name publication.
[33] Ms Guy Kidd submitted it was for these reasons that extreme hardship had been established, assessing matters on the contextual basis which the Court of Appeal had said, in Robertson v Police, was required.4
[34] As to the second stage of the enquiry, Ms Guy Kidd suggested the Judge was aware of such an assessment being necessary, even if she did not expressly deal with it. She had expressly referred to one of the matters that would have been appropriate at that stage of the enquiry, namely the victims’ opposition to continuing suppression. Counsel submitted however that, if a fresh consideration as to the second stage of the enquiry was required, then, on a consideration of relevant factors, suppression would still have been appropriate. She submitted those relevant factors included that this was an instance of low-level careless driving, that the particular damage to Ms Hubbard caused by publicity would outweigh any real public interest in the offending, and the likely online response to any publicity would not be commensurate to the seriousness of the charge or culpability involved but was more likely to result in unrelated cruel bullying.
[35] Ms Guy Kidd submitted this appeal gives the Court an opportunity, which it should take, to put “a line in the sand” to confirm that, in appropriate cases, the harm that could well be caused to an individual defendant can override the need for judicial processes to be in the open and exposed to public scrutiny.
[36] Ms Guy Kidd recognised that, in the Judge’s further rulings as to the suppression of the detail in her decision, submissions and any reference to evidence that had been presented to the Court by way of affidavit, the Judge had endeavoured to limit publication of particular information, unrelated to the particular offending, but which would be likely to attract attention and comments in the way the Judge had found would be distressing, thus cause extreme hardship to Ms Hubbard.
[37] Counsel suggested that, in s 207 Criminal Procedure Act 2011 (CPA), Parliament had recognised how the particular way in which reference to specific information that might have been advanced in support of a suppression application
4 Robertson v Police [2015] NZCA 7 at [49].
could be harmful and thus recognised it may be appropriate for the normal requirement for a Judge to give full reasons for a decision that might be made over suppression.
[38] Ms Guy Kidd nevertheless accepted that the widespread suppression orders made by the Judge to have effect post 30 September 2019 were beyond what was permitted by s 205(2) CPA which the Judge had referred to.
[39] Ms Guy Kidd suggested that, nevertheless, suppression as to those documents could have been justified as if there had been an application for access to documents on the Court file governed by the Senior Courts (Access to Courts Documents) Rules 2017 and the District Court (Access to Court Documents) Rules 2017.
Submissions for the Police
[40] The Crown belatedly filed a submission for the New Zealand Police as respondent. In both the Crown’s written submissions and the submissions Ms McKenzie made to me in Court, there was some ambivalence as to the Crown’s position. For the Crown, Ms McKenzie accepted there had been previous online criticism of the appellant, and publication of her name could lead to further online criticism and influence her ability to qualify for the Olympics. On that basis, the Crown supported the decision made in the District Court regarding suppression until after 30 September 2019.
[41] The Crown however observed that, if Ms Hubbard did qualify for the Olympics, further online criticism for being a transgender athlete competing in the women’s category at the Olympics would unfortunately be likely. The Crown says that publication of Ms Hubbard’s name would be unlikely to result in comments any different from those that would occur in any event. Ms McKenzie submitted that, if the Court was considering afresh whether extreme hardship would be suffered through publication of suppressed material, the Court would still have to consider whether the principle of open justice should be limited. Ms McKenzie submitted that the evidence must clearly favour suppression for an order to be made. Here, the victims oppose suppression. Ms McKenzie submitted that, on such a consideration, the principles of open justice would outweigh the need for suppression.
Submissions for Stuff
[42] Mr van Beynen made detailed submissions for Stuff. He also submitted there was a need for the Court to draw a line in the sand, particularly because of the extent to which the media find themselves unable to report on proceedings in the lower courts through what he suggested was the way Judges in those courts, in terms of the relevant legislation, were more ready than they should be to grant suppression. He submitted this was a case where the High Court’s ruling could demonstrate the importance of open justice and the risks that defendants and their counsel take when they essentially excite media interest in a particular case through the steps they take to obtain suppression orders or discharges without conviction.
[43] Mr van Beynen highlighted the way in which the Court of Appeal has emphasised the high threshold that must be met to establish extreme hardship.
[44] Mr van Beynen stressed the recognised importance of open justice and the way in which, with full reporting, the media can give the public the opportunity to reach an informed view about what is going on in the courts. He said there was particular public interest in this case because of the way a person had been able to obtain a discharge without conviction and a significant departure from the normal mandatory sentence of disqualification, in circumstances where the person involved had been able to engage Queen’s Counsel, could afford to make a significant reparation payment and had a public profile.
[45] He acknowledged the hurtful comments that had been made on the Stuff Facebook platform in connection with Ms Hubbard’s involvement in the Commonwealth Games. He acknowledged that a number of those comments had been placed on the platform and remained there, despite Stuffs code of ethics which would have permitted Stuff to remove them. He said the particular posts complained of had recently been removed but, in speaking about this, Mr van Beynen said, although Stuff is now being more proactive in reviewing the comments on their platform, the reality is that they do not have the resources to be constantly monitoring what is posted there and, of necessity, tends to be reactive. He suggested that it was significant Ms
Hubbard had never complained of what was there and had never previously asked that particular postings be removed.
[46] Mr van Beynen referred to various matters in submitting that Ms Hubbard had not established she would suffer extreme hardship by reason of publication of matters associated with the Court proceedings. He submitted that any distress she might suffer as a result of comments that could result from publicity about the Court proceedings would be no different from the distress she would suffer from the comments that would be likely made whenever she competes in weightlifting as a transgender athlete.
[47] Mr van Beynen submitted that, even if the threshold of extreme hardship had been established, the Judge still had to carefully consider whether the discretion to allow suppression should be exercised. He submitted the Court of Appeal had established that, for the media’s right to report on proceedings to be limited in this way, there had to be factors that clearly favoured suppression.
[48] Mr van Beynen submitted that relevant factors here did not favour suppression. He said there was a particular public interest in the case because of the way a discharge without conviction had been achieved and the way suppression had been sought. He acknowledged Ms Hubbard’s involvement but said there was legitimate public interest. He said her involvement made the case more newsworthy but said there was a public interest in the media being able to report what happened in this case and to expose it to public scrutiny, even if she had not been involved. He submitted the principle of open justice means there is an inherent public interest in the media being able to report what goes on in Court without the media needing to justify why there might be public interest in the particular circumstances of any case.
[49] Mr van Beynen noted that there was little private or detailed information in the Judge’s decision. He said Stuff were not seeking access to Court documents. What they were interested in was reporting on what had happened and been said in Court at a hearing when a Stuff/Southland Times reporter had been present.
Analysis
[50] Section 200 CPA gives the Court the power to suppress the identity of a defendant. The circumstances in which a Court might direct suppression are limited by the terms of that legislation. Relevantly here, s 200 states:
200 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.
[51] The lead cases on the interpretation of s 200 CPA are Robertson v Police5 and D v Police.6 In these cases, the Court of Appeal confirms the longstanding presumption of open justice - that the business of the Court should be done publicly unless there is good reason not to do so. The Court of Appeal in D v Police said:
[10] Section 200 mandates a two-step inquiry: whether one of the thresholds in subs (2) has been crossed and, if it has, whether in the exercise of discretion an order ought to be made. The first step gives the presumption statutory form; that is to say, it insists that the court determine on what principled basis suppression might be granted.7 The legislation does not impose a burden of proof but the presumption will apply unless the applicant can point to something to displace it.8
[52] The level of hardship required to make out “extreme hardship” must necessarily be very high. As noted in Rougeux v Police, it must be significantly greater than the “undue” hardship required under paras (b) and (c).9 In Robertson v Police, it was noted that “hardship” on its own means “severe suffering or privation”.10 The qualifier “undue” in subs (2)(c) indicates something more, while the word “extreme” indicates something more again. The assessment requires a comparison between the contended hardship and the consequences normally associated with the publication of the defendant’s name. The hardship must be something well beyond the ordinary associated consequences.
[53]In D v Police, the Court of Appeal said:
[11] Under the thresholds in paragraphs 200(2)(a), (c) and (d) the court must decide whether publication will cause “extreme” or “undue” hardship, or a “real risk” of prejudice. The adjectives indicate that these are comparative standards. They require that the court compare the consequences of publication in the instant case with those that normally attend prosecution. Distress, embarrassment and adverse personal and financial consequences usually attend criminal proceedings, and something out of the ordinary is needed if the applicant is to get across the threshold.11 This is an important
5 Robertson v Police, above n 4.
6 D v Police, above n 1.
7 Robertson v Police, above n 4, at [43]–[46].
8 R v Liddell [1995] 1 NZLR 538 (CA) at 546; Lewis v Wilson & Horton Ltd [2000] 3 NZLR 546 (CA) at [41]–[43].
9 Rougeux v Police, above n 2, at [20].
10 Robertson v Police, above n 4.
11 Lewis v Wilson & Horton Ltd, above n 8, at [42]; Robertson v Police, above n 4, at [49].
principle. Its workings are well illustrated by the facts of Liddell, in which the offender’s wife was said to be “only just making it” after learning of his serial offending against children, but the Court reasoned that his family’s anguish was not an exceptional consequence of his crimes.12
[54] The Court also observed that, under s 200(3), the fact that a person is well known does not, of itself, mean that publication of his or her name will result in extreme hardship for the purposes of subs (2)(a). The Court of Appeal said s 200(3) recognises that publication of the defendant’s identity in connection with actual or alleged offending may harm his or her public standing and reputation, and it instructs the courts that such harm is not, of itself, sufficient to establish extreme hardship.
[55] The Court of Appeal demonstrated how stringent the extreme hardship test is in their rejection of the particular personal circumstances that had been relied on in Robertson v Police and D v Police as being sufficient to constitute extreme hardship.
[56] I find the District Court Judge was in error in finding that there was a real risk that Ms Hubbard would suffer extreme hardship if there was publication of her name or what was said in Court in the way that normally would be permitted in the absence of suppression orders.
[57] In her decision, the Judge referred to the financial costs that had resulted from the offending. Ms Guy Kidd said those consequences had not been advanced as a reason for seeking suppression. She was to pay a significant sum in reparation but clearly had the means to do so, even if it was through obtaining a loan. With the discharge and one month’s disqualification, Ms Hubbard would have been unable to obtain employment as a driver for one month. I note she had not in fact been employed as a driver at the time of the offence. There was no evidence that publication would affect any funding that might be available to assist her with the costs of competing in events, as she hoped to, for qualification as an Olympic athlete.
[58] At the time the Court dealt with her case, Ms Hubbard was aged 40 so was not vulnerable in the way courts recognise much younger people can be. She had demonstrated considerable courage and resilience in transitioning and in deciding to
12 R v Liddell, above n 8, at 546.
compete at an international level as a woman. As Mr van Beynen submitted, when she made her decision to continue competing on that basis, she must have known that it could attract considerable controversy and must have felt that she would be able to cope with that controversy. Consistent with that, it is relevant that Ms Hubbard did not actively seek to have objectionable comments about her removed from Stuff’s social media platform.
[59] When competing at the Commonwealth Games, Ms Hubbard had been the subject of hurtful and bullying-type comments on social media but she recognised that she could limit, to a significant extent, the distress such comments would cause her by not viewing what was on those platforms. It was also apparent from the support that was shown for her in these proceedings, through the letter provided by the director of Olympic Weightlifting New Zealand, that she did have the support of other people within her sport. There was also no suggestion in the information before the Court that she was socially isolated. The Court should reasonably have assumed that she would have available to her the respect and support of family, friends and sporting associates who would demonstrate their respect for the person she is and all that she has achieved and still aspires to.
[60] There was information before the Court on which the Judge could properly find that Ms Hubbard was anxious and stressed because of the potential antagonism she thought she could be exposed to when competing at the Commonwealth Games. Given the comments made in the media and on social media at the time of those events, it would be reasonable to anticipate that there could be a recurrence of such comments and thus anxiety and stress for Ms Hubbard at the time she competes in further events, but such stress is likely to result from her involvement in those events as a transgender athlete rather than from any publicity associated with the Court proceedings that are at issue here.
[61] Publication of Ms Hubbard’s name in connection with these proceedings may lead to hurtful and bullying type comments on social media but any hardship she might suffer from that is not likely to be any different from similar hardship she may well suffer in connection with publicity as to her sporting endeavours.
[62] The information before the Court did not adequately explain how the prospect of comments appearing on social media as a result of any publicity associated with reporting of the Court proceedings could adversely impact on her training programme away from competition. There was no independent evidence as to how this could be a consequence of publication.
[63] Consistent with that assessment, I note that Ms Hubbard, in part because of an injury, was unable to compete in a scheduled event in February 2019. With the benefit of the suppression orders made in the District Court, she was unable to register any competition points at the Arafura Games in which she competed at Darwin in April 2019.
[64] There must have been upset and stress for Ms Hubbard through having to deal with these proceedings but those consequences ordinarily have to be faced by all who have the misfortune to be charged with such offending. Any distress Ms Hubbard might face in connection with her training programme would be little different from the consequences which others face in their employment or other life demands when they are involved in Court proceedings.
[65] For all those reasons, and making my own assessment of the information before the Court, I find that Ms Hubbard had not met the threshold necessary at the first stage of the enquiry. Having reached that conclusion, I find that, in accordance with the legislation the Judge had to apply, the Judge could not suppress Ms Hubbard’s name in the way she did, even on a limited and interim basis.
[66] For completeness however, I must also add that the Judge was in error in not expressly proceeding to the second stage of the enquiry. She did not consider whether or not, despite her finding that there would be extreme hardship, at least for a limited time, the principle of open justice ought nevertheless to prevail so that suppression orders would not be made. Had the threshold been met, it would still not have been a case where the factors favouring suppression would have, by a clear margin, justified suppression. As the Judge recognised, the views of the victims had to be considered. They were opposed to suppression.
[67] Ms Hubbard’s driving offence was of the sort that, of itself, was unlikely to provoke ill-will towards her. As can happen, a momentary lapse in concentration unfortunately had severe consequences for those who were injured and also for Ms Hubbard herself. Had the media been able to publish her name at the same time as reporting the result of the proceedings, it would have been apparent to those interested that Ms Hubbard had accepted responsibility for what happened and had paid a significant sum in reparation. Nevertheless, she had benefited from being granted a discharge without conviction. The media representing the public interest, through being in Court, should have been able to report on what happened in a way that the public could be fairly informed as to what had been said in Court and as to the Judge’s reasons for reaching her decisions in this regard.
[68] There was a particular public interest in this case because it involved Ms Hubbard and because of the particular applications pursued on her behalf at the hearings before the Court. I nevertheless accept the submission of Mr van Beynen that, at the second stage of the enquiry, for suppression to be denied, the media should not have to demonstrate why there is public interest in the particular circumstances of this case. The public interest is in open justice and the media being able to report on all that is said in Court. It is that public interest which the Court has to weigh in the balance against whatever ground has been established at the first stage of the enquiry when it decides whether there should be suppression. The Court of Appeal has said it is only when the relevant factors “clearly favour” suppression that the presumption in favour of open justice will be displaced.13
[69] For all these reasons, I find the Judge was in error in holding that Ms Hubbard’s name should be suppressed until 30 September 2019.
Further suppression orders
[70] Stuff also appealed against the further suppression orders that had been made in the District Court.
13 Lewis v Wilson & Horton Ltd, above n 8, at [43]; D v Police, above n 1, at [12].
[71] Some of those suppression orders related to documents that had been put before the Court, the written submissions of Ms Hubbard’s counsel and the Police, and affidavits that referred to personal information about Ms Hubbard.
[72]In D v Police, the Court of Appeal said:14
… The Court [in Robertson v Police] explained that s 200 changed the law principally by specifying the grounds on which suppression might be granted. The predecessor provision, s 140 of the Criminal Justice Act 1985, simply conferred a discretion upon the Court. The change was thought necessary because the presumption of open justice that appellate decisions had established was not being applied consistently at first instance.
[73] The Judge said ss 200, 202 and 205 CPA governed the Court’s power to grant suppression orders. Section 202 was not relevant in this case.
[74]Section 205 states:
205 Court may suppress evidence and submissions
(1)A court may make an order forbidding publication of any report or account of the whole or any part of the evidence adduced or the submissions made in any proceeding in respect 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 undue hardship to any victim of the offence; or
(b)create a real risk of prejudice to a fair trial; or
(c)endanger the safety of any person; or
(d)lead to the identification of a person whose name is suppressed by order or by law; or
(e)prejudice the maintenance of the law, including the prevention, investigation, and detection of offences; or
(f)prejudice the security or defence of New Zealand.
[75] Ms Guy Kidd accepted that the further suppression orders made by the Judge went beyond what was permitted by s 205. Ms Hubbard was not a victim of her driving offence.
14 D v Police, above n 1, at [9].
[76] Ms Guy Kidd submitted that written material put before the Court comprised documents on the Court file to which access could have been requested under the District Court (Access to Court Documents) Rules 2017. However, whether the media would be entitled to access to such documents under those rules is not a matter I need to consider further. Mr van Beynen said Stuff was not seeking access to those documents. What Stuff was interested in being able to report publicly was what had been said in Court as to the issues the Court had to deal with and the full decision the Judge reached, including the reasons for the conclusions reached.
[77] Mr van Beynen argued that the media needed to be able to report on all that was said, consistent with the principle of open justice, and its right to report for the benefit of the public on what had occurred during a Court hearing and what a Judge had decided at the end of that hearing.
[78] Ms Guy Kidd, for Ms Hubbard, submitted Parliament had recognised, in s 207 CPA, there could be good reason to limit the media’s right to report all that was said in the proceedings.
[79]Section 207 CPA provides:
207 Court must give reasons
(1) The court must give reasons for making, varying, or revoking a suppression order.
(2) If the court is satisfied that exceptional circumstances exist, it may decline to state in public all or any of the facts, reasons, or other considerations that it has taken into account in reaching its decision.
[80] The Court of Appeal, in D v Police, recognised that, in seeking suppression for a defendant, the Court might be given highly personal information about a person who could be affected by publication and that, because of that person’s particular vulnerabilities, it might be appropriate to direct suppression of such information.
[81] In this case, the Judge had directed there should be suppression of Ms Hubbard’s personal details and the details of her decision. Section 207(2) might have entitled the Judge to suppress some of the information in her decision if she was
satisfied that exceptional circumstances existed, but her suppression orders went further than that. She effectively suppressed publication of the reasons for Ms Hubbard’s discharge without conviction. She also went further than s 207 permitted in suppressing any publication as to the oral submissions made in open Court for either the Police or Ms Hubbard.
[82] Her suppression orders in this respect seriously restricted the ability of the media to report what had been said in Court at a hearing which was open to the public, and thus the right to freedom of expression. In the interests of justice, it is important that Judges give reasons for the decisions they reach. It is important to the principle of open justice that the media be able to report on those reasons. Parliament recognised this in s 207(2) in stating that it would only be in exceptional circumstances that a Court might limit the extent to which it states in public “all or any of the facts, reasons, or other considerations that it has taken into account in reaching its decision” over suppression.
[83] Because there were errors as to the basis on which the Judge decided to suppress the rulings she reached and the publication of the submissions that had been made to her during the Court hearing, I must consider whether there was a proper legal basis on which there could have been suppression as to those matters in the District Court and, if there were, whether nevertheless there should have been such suppression. I must also consider whether there should be suppression of matters that I have referred to in this judgment.
[84] Considering matters that way, I have determined there should have been no suppression as to what was said either by the Police or by counsel for Ms Hubbard in the District Court. There should have been no suppression of any part of the District Court Judge’s decision. I do not consider there should be suppression of any of the facts, reasons or other considerations that have led me to the conclusions I have reached in this judgment.
[85] With what was said in the District Court and in what I say in this judgment, there is no information of such a personal or private nature that it should be suppressed. It is well known that Ms Hubbard competes in weightlifting as a transgender athlete.
It is well known that this has been controversial. To the extent there has been comment in the media or on social media platforms, information as to that is already publicly available. It would come as no surprise that comments on social media platforms include comments that are intemperate, hostile and transphobic. It would come as no surprise that Ms Hubbard would be distressed at knowing of such comments.
[86] However, I also weigh in the balance that any reference to such matters, through publication of the judgments, will not necessarily be damaging as far as Ms Hubbard is concerned. There will be some who have increased sympathy for her and who will demonstrate the respect for the way she has been true to herself and willing to pursue her sporting goals, despite the controversy that inevitably attracts.
[87] The issues which the Judge had to grapple with in the District Court and which I have had to consider on this appeal are not straightforward.
[88] It is important that those who are interested in how courts work can be well informed as to how Judges reach their decisions and the reasons for those decisions.
The media attend Court hearings as surrogates for the public.15
[89] For those reasons, the suppression orders made in the District Court as to what was said by the Police and counsel in presenting their submissions to the District Court, and the Judge’s decision in sentencing Ms Hubbard and with regard to suppression, are quashed. There is no suppression order in relation to any part of this judgment.
Conclusion
[90] The appeal by Mr van Beynen/Stuff Ltd is allowed. The decisions made in the District Court as to suppression of the defendant’s name until 30 September 2019 are quashed. The orders made for suppression of the District Court Judge’s decision and for suppression as to the oral submissions made by counsel for Ms Hubbard and by the Police in the District Court are quashed. The media are free to publish information
15 R v Fangupo [2019] NZHC 1211 at [1].
from the summary of facts as to Ms Hubbard’s offending as it was presented to the District Court. There is no suppression as to any aspect of this judgment.
Solicitors:
F Guy Kidd, Barrister, Invercargill
M J Thomas, Crown Solicitor, Invercargill
Copy to:
M van Beynen, Stuff Ltd.
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