T v Police

[2020] NZHC 2716

ORDER PROHIBITING PUBLICATION OF NAME, ADDRESS,

OCCUPATION OR IDENTIFYING PARTICULARS OF APPELLANT PURSUANT TO S 200 CRIMINAL PROCEDURE ACT 2011.

IN THE HIGH COURT OF NEW ZEALAND BLENHEIM REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WAIHARAKEKE ROHE

CRI-2020-406-10

[2020] NZHC 2716

T

v

NEW ZEALAND POLICE

Hearing:

14 September 2020

Appearances:

M Zintl for the Appellant

J R Crawford for the Respondent

Judgment:

15 October 2020

JUDGMENT OF COOKE J

[1]        The appellant appeals against the decision of the District Court at Blenheim declining interim name suppression pending a further hearing on 4 November 2020.1

[2]        On 21 September 2020 the appellant pleaded guilty to one representative charge of supply of methamphetamine.2 He is currently on bail awaiting sentence. He has also been charged with wounding with intent to cause grievous bodily harm.3 The

1      New Zealand Police v T [2020] NZDC 19201.

2      Misuse of Drugs Act 1975, s 6(1)(c) and (2).

3      Crimes Act 1961, s 188(1), maximum penalty 14 years’ imprisonment.

T v NEW ZEALAND POLICE [2020] NZHC 2716 [15 October 2020]

appellant is currently awaiting a sentence indication on a reduced charge of injuring with intent to injure.4

[3]        The appellant appeals the decision declining interim name suppression on the grounds the Judge failed to take into account the right to a fair trial. The Crown acknowledges the appellant’s fair trial rights and takes a neutral position on the appeal.

Factual background

[4]        The methamphetamine charges arose out of a police investigation into the wounding with intent offending. It is alleged that the appellant shot the complainant in the lower abdomen with a crossbow at close range outside his family’s home. In explanation the appellant admitted to shooting the complainant but said he was sick of the complainant coming over to his family’s home, intimidating him and scaring his partner and children and just wanted it to stop.

[5]        As part of the police investigating into the shooting, police recovered text communications from the appellant’s phone. An analysis of the text messages indicated he had offered to supply methamphetamine on 13 separate occasions between 30 May 2020 to 13 June 2020. This led to the methamphetamine charges.

[6]        It is also relevant that it is possible that the wounding with intent to cause grievous bodily harm may be resolved without a trial if a sentencing indication is given and accepted. A hearing on that matter is scheduled on 4 November 2020. The application for suppression is only until that hearing.

District Court suppression decision

[7]        The Judge noted the defence submission that principal reasons for granting name suppression were to protect the appellant’s fair trial rights.5 Weighing against that consideration was that the appellant’s name had already been published in association with the charges on 3 September and the interests in dealing with drug

4      Section 189(2), maximum penalty five years’ imprisonment.

5      New Zealand Police v T, above n 1, at [6].

offences “in an open and transparent way”.6 To that, the Judge noted the possibility of further complainants who may wish to come forward following publication of the fact of the appellant’s guilty plea. Finally, the Judge recognised that the wounding with intent charge was quite different and was unrelated to the drug dealing charges. For those reasons, the Judge declined to grant interim name suppression.

Relevant law

[8]        Courts may suppress the identity of a defendant under s 200 of the Criminal Procedure Act 2011. The starting point for a s 200 analysis is the principle of open justice.7 Courts have consistently emphasised a prima facie presumption in favour of openness in reporting.8 The Court may only order name suppression if satisfied that publication would be likely to result in one of the situations listed in s 200(2). The appellant’s application for name suppression was on the grounds that publication would create a real risk of prejudice to a fair trial.9

[9]        The court must be satisfied that one of the consequences listed in s 200(2) would be likely to follow if no order were made.10 If one of the threshold grounds under s 200(2) is met, the Court must determine whether to exercise discretion to suppress the defendants name.11 There is a high threshold to be reached before publication is justified,12 and the balance must “come down clearly in favour of suppression”.13

[10]      Section 283 of the Criminal Procedure Act 2011 provides that an appeal may be brought as of right against a name suppression order decision. On appeal, different approaches apply to the different stages of the test. The first stage is a factual

6 At [7].

7      Erceg v Erceg [2016] NZSC 135, [2017] 1 NZLR 310 at [2].

8      R v Liddell [1995] 1 NZLR 538, (1994) 12 CRNZ 458 (CA) at 466 and 546. See also Proctor v R [1997] 1 NZLR 295 (CA); Robertson v Police [2015] NZCA 7; and Re Victim X [2003] 3 NZLR 220 (CA).

9      Section 200(2)(e).

10     Fagan v Serious Fraud Office [2013] NZCA 367.

11     At [9]; and Robertson v Police, above n 8, at [39] and [41].

12     Robertson v Police, above n 8, at [41]–[44].

13     Lewis v Wilson & Horton Ltd [2000] 3 NZLR 546 at [43]; recently followed in D (CA443/2015) v Police

[2015] NZCA 541, (2015) 27 CRNZ 614 at [12].

assessment and subject to the ordinary approach to appeals.14 If the appellate court’s opinion is different from the decision appealed, the decision is wrong even if it was a conclusion “on which minds might reasonably differ”.15 The second stage is discretionary and subject to the approach reserved for appeals against discretion.16

Analysis

[11]      Although the matter is finely balanced, and I have decided that the appeal should be allowed and that interim name suppression should be continued until the sentencing indication hearing scheduled for 4 November 2020. I do so to preserve fair trial rights.

[12]      In particular I accept Mr Zintl’s submission that there is significant local concern about drug dealing, and the possibility of media attention given to the appellant’s conviction and sentence as a consequence. It is conceivable that members of the jury pool will have seen that publicity if there is a trial on the wounding with intent to do grievous bodily harm early next year.

[13]      I asked Ms Crawford to outline her views on that question given Mr Zintl’s submission. She agreed that there was a prospect of prejudice to the trial arising from such factors. She explained that the Crown would have consented to suppression orders were it not for the fact that the Crown will seek to contend that the drug offending is relevant to the alleged wounding with intent to cause grievous bodily harm charge. She indicated that the Crown’s ability to refer to the drug offending would likely be a matter that will need to be determined pre-trial, however. Given that acceptance, however, it seems to me that the fair trial concerns are legitimately raised such that the statutory threshold for suppression is met.

[14]      The period of suppression sought is short, only through to 4 November, and there is a prospect that the remaining charge can be resolved following a sentencing indication. If that were to occur the principles of open justice will be satisfied by the reporting on the outcome of both sets of offending in a fair and transparent way. To

14     Austin, Nichols and Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141.

15 At [16].

16     B v R [2011] NZCA 331 at [9]; and Lawrence v R [2011] NZCA 272 at [11].

continue suppression for a short period of time until that point seems to me to be appropriate.

[15]      Accordingly the appeal is allowed and the appellant is granted suppression through to 4 November 2020.

Cooke J

Solicitors:
O’Donoghue Webber, Nelson for Respondent