Sua v Police
[2022] NZHC 2723
•20 October 2022
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2022-404-323
[2022] NZHC 2723
BETWEEN JEROME SUA
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 18 October 2022 Appearances:
F M J Coppell and A McIntyre for Appellant S E Arnerich for Respondent
Judgment:
20 October 2022
JUDGMENT OF LANG J
[on appeal against refusal to grant interim name suppression]
This judgment was delivered by me on 20 October 2022 at 12.30 pm.
Registrar/Deputy Registrar Date……………
Solicitors:
Kayes Fletcher Walker, Manukau
SUA v NEW ZEALAND POLICE [2022] NZHC 2723 [20 October 2022]
[1] Mr Sua faces a charge of injuring with intent to injure. He has denied the charge and elected trial by jury.
[2] On 22 August 2022, Judge N R Dawson refused an application by Mr Sua for interim name suppression until trial.1 Mr Sua appeals against the Judge’s decision.
The charge
[3] The charge was laid as a result of an incident that occurred on 18 July 2022. On that date the police were speaking to Mr Sua regarding a family harm incident to which they had been called. They detained him for the purpose of serving a police safety order on him. Mr Sua broke free from the police and ran away. He was pursued by a female constable.
[4] As Mr Sua and the constable crossed Great South Road, Mr Sua allegedly stopped suddenly and turned towards the constable. He then allegedly punched the constable directly in the face with a closed fist. The force of the punch was sufficient to knock the constable unconscious. Other police officers arrested Mr Sua a few minutes later. At the time of his arrest the female constable was still lying on the road in an unconscious state.
[5] Not surprisingly, traffic in vicinity of the accident stopped as it occurred. An occupant of a nearby vehicle filmed the incident on her cellphone. The film footage has been played on social media and also in the mainstream news media. The Crown will undoubtedly play the footage to the jury at trial.
Relevant principles
[6] Suppression in this context is governed by s 200 of the Criminal Procedure Act 2011 (the Act), which relevantly provides as follows:
1 Police v Sua [2022] NZDC 19152.
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.
…
[7] It is now well established that an application for suppression must be determined on a two-stage basis.2 First, the Court must determine whether any of the threshold requirements set out in s 200(2) have been made out. If that is the case, the Court must go on to consider how it should exercise its discretion by balancing the identified threshold interests against the need for transparency in criminal proceedings.3
[8] Extreme hardship is a very high threshold. It requires a degree of hardship well beyond that which normally follows the publication of an offender’s name.4
2 Fagan v Serious Fraud Office [2013] NZCA 367 at [9].
3 R v Liddell [1995] 1 NZLR 538 (CA) at 546.
4 DP (CA418/2015) v R [2015] NZCA 476 at [6]; Robertson v Police [2015] NZCA 476 at [6]; and
L v R [2020] NZCA 604 at [13].
The application for suppression
[9] Mr Sua advanced the application for suppression on three separate bases. First, he relied on s 200(2)(a). He contends he will suffer extreme hardship if his name is published because this will result in adverse comments being directed to him on social media. Secondly, he contends the publication of his name at this stage will jeopardise future prospects of employment.
[10] Mr Sua also relied on s 200(2)(d). He argues that publication will jeopardise his fair trial rights.
The Judge’s decision
[11] The reasons for the Judge’s decision are encapsulated in the following paragraphs of his judgment:5
[5] Social media and the misuse of social media is widespread, regrettably, but it is an ordinary consequence of what has been alleged against you. If you do not wish to know what has been said about you, then, clearly, you should not read it. I am not satisfied that establishes extreme hardship and I am not giving you interim name suppression on that basis.
[6] It is submitted also that having your name published could prejudice your ability to obtain future employment. I fail to see that as a sufficient ground to establish hardship. It is no different from anybody else in a similar position to yourself. Ultimately, you will be found guilty or not guilty as the case may be. If you are guilty, then you are required to live with the consequences. If you are not guilty, then you have that result to offset any detriment there might be to you by having your name published.
[7] Finally, it is submitted there is a real risk of prejudice to a fair trial if your name is published in that there has been substantial publicity previously and you, or a person who is alleged to be you, has been on television shown as punching a constable. It is submitted that linking your name with that person would be detrimental to your rights to have a fair trial.
[8] The simple fact of the matter is when you go to trial, you are going to be known to the jury and that video no doubt will be played. Juries are directed of course to put aside all prejudice and sympathy for any person connected with the trial and that no doubt would be the case for you when this matter goes to trial also.
[9] I fail to see how you are in any way prejudiced in any way more than anybody else as far as having a fair trial is concerned. It is often said today’s newspaper is tomorrow’ fish and chip wrapping. By the time this matter gets
5 Police v Sua, above n 1.
to trial, the publicity you have already received will be relatively old. In any event, the overriding interest is for the public to know what is happening in their courts and that is not able to put aside on the basis of the submissions that I have received.
Extreme hardship
Social media issues
[12] Mr Sua’s application for suppression is unusual in the sense that he provided no evidence in support of it. An applicant for suppression will generally file an affidavit setting out the factual basis on which he or she seeks suppression. The lack of evidence in the present case means the Court does not have direct evidence of the manner in which Mr Sua contends suppression will affect him.
[13] On Mr Sua’s behalf Ms Coppell points out that he is now subject to a lengthy remand on EM bail. Many of his relatives live overseas and his ability to interact socially with others is severely restricted. It can therefore reasonably be anticipated that he will spend a great deal of time online. This will involve accessing social media both for information and entertainment purposes.
[14] Ms Coppell points out that there has already been significant negative comment on social media about the incident giving rise to the charge. She submits that, if suppression is lifted at this point, this will increase and intensify as the charge proceeds towards trial. She says it is unrealistic to suggest that Mr Sua should refrain from accessing social media because of the extent to which he relies on it for wellbeing purposes.
[15] I acknowledge that publication of Mr Sua’s name at this point may result in an initial flurry of activity on social media. However, the trial will not be held until late 2023 or early 2024. It can reasonably be expected that the social media attention will fall off during the lengthy period that will elapse before the trial commences. Mr Sua would obviously be well advised not to access social media for a few days after this judgment is delivered. Thereafter, however, I do not consider there is any reason to believe he will be subject to significant adverse comment online. I therefore do not consider Mr Sua has made out a case for suppression under this head.
Employment
[16] Ms Coppell advises me that Mr Sua has previously been employed as a construction worker. She says he is concerned that prospective employers will make online enquiries about him when he seeks to gain employment in the future. This would result in those persons gaining access not only to information about the present charge but also to the film footage to be adduced at trial. She submits this is likely to jeopardise Mr Sua’s future employment prospects.
[17] This submission overlooks the fact that Mr Sua will not be undertaking employment whilst he is awaiting trial. As the Judge noted, once the trial has concluded he will need to deal with future employers in light of the jury’s verdict. The issue of suppression pending trial is therefore of no real relevance to Mr Sua’s employment prospects.
[18] Furthermore, prospective employers are already able to find material about Mr Sua online. These relate to issues he encountered with the authorities in Australia prior to his deportation to New Zealand.
[19]I do not accept that Mr Sua has established extreme hardship under this ground.
Fair trial rights
[20] Mr Sua is concerned that if his name is published prospective jurors may go online and view the film footage. He says this may compromise his fair trial rights.
[21] Given the length of time until trial I consider it highly unlikely that prospective jurors will go online to make enquiries about Mr Sua. Should they do so, they will obviously not know that they will be part of the jury panel to be summonsed for his trial next year.
[22] When the jury panel is eventually summonsed, they will not know which cases they are being called to hear. Once jurors are selected, they will be subject to explicit directions by the trial Judge not to make their own enquiries online or in any other way. They will then view the film footage as part of the Crown case.
[23] Taking these factors into account I do not consider there is any risk that publication of Mr Sua’s name at this point will jeopardise his fair trial rights.
Result
[24]The appeal against refusal to grant interim name suppression is dismissed.
Lang J
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