Tabb v The Queen - [2016] NZHC 319

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2016-404-043 [2016] NZHC 319

IN THE MATTER
of an appeal against refusal to grant

interim non publication order

BETWEEN

NATALIE SHARON TABB Appellant

AND

THE QUEEN Respondent

Hearing: 1 March 2016

Appearances:

M Dyhrberg QC and K A Martelli for Appellant
K Eastwood for Respondent

Judgment:

1 March 2016

JUDGMENT OF WHATA J

Solicitors/Counsel:
M Dyhrberg QC, Auckland
Crown Solicitor, Auckland

TABB v THE QUEEN [2016] NZHC 319 [1 March 2016]

[1] This is an appeal against a decision to refuse name suppression. No reasons were given by Judge Dawson for declining the grant suppression, but Ms Tabb was given until 5.00 pm 18 February 2016 to appeal and she has done so.

[2] Given that there were no reasons I will examine the issues afresh.

[3] Ms Tabb faces two counts of assault with a weapon. The salient alleged facts are that Ms Tabb backed her car into the alleged victim who sustained a bruise to his left upper thigh and a fractured left digit. The broader context is a domestic dispute and on 3 June 2015 Ms Tabb arrived at her home to find her husband removing property with the assistance of a furniture removal company. Ms Tabb is then said to have driven her car across the driveway preventing the removal truck from exiting the address. Apparently the victim of the alleged offending stood at the rear of her car while directing the removal truck around it. Ms Tabb is then said to have driven into the victim twice causing the abovementioned injuries.

[4] Ms Tabb has also provided evidence in support of her appeal, which I understand is not challenged, insofar as its admissibility for bail purposes. She describes how she came home to find her ex-husband taking chattels from her home. She says that she tried to get out of the way of the truck as it was leaving the property as she thought it was going to crash into her. She also says that she is a single mother with two children aged ten and five who are in her fulltime care, and that her income from her legal practice supports herself and her children. She receives child support from her ex husband, but he has only paid around $5,000 against $12,000 owing for this year.

[5] She also believes that publicity of the charges will affect her legal business and, therefore, significantly affect the care that she has of her children. She also observes that the children are particularly vulnerable at the moment given the relatively recent separation and publicity of this matter would cause huge anxiety to them. She also anticipates that they will be bullied or teased at school.

Threshold test

[6] Two grounds were advanced initially by Ms Dhyrberg QC in support of suppression namely:

(a) Extreme hardship as per s 200(2)(a) of the Criminal Procedure Act

2011; and

(b) A real risk of prejudice to a fair trial.1

[7] The…

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 Tabb v The Queen

Details

AGLC: Tabb v The Queen [2016] NZHC 319
Case: [2016] NZHC 319
Decision Date: 1 March 2016

CaseChat Overview and Summary

In Tabb v The Queen, the appellant, Natalie Sharon Tabb, appealed against a decision to refuse a non-publication order. Judge Dawson had declined to grant suppression without providing reasons, prompting Ms Tabb to appeal. The court considered the appeal afresh, examining the issues without the previous reasons. Ms Tabb faces charges of assault with a weapon arising from a domestic dispute. She drove her car into the alleged victim, who was standing at the rear of her car, causing injury. Ms Tabb claims that she was trying to prevent the victim's truck from crashing into her.

The appeal hinged on two grounds: extreme hardship under the Criminal Procedure Act 2011 and a real risk of prejudice to a fair trial. The latter ground was withdrawn during the appeal hearing. For suppression, the court must be convinced that publication would likely cause extreme hardship. This requires a two-stage inquiry: whether there is a real and appreciable possibility of such harm, and whether the discretion in favor of suppression should be exercised, considering competing personal and public interests. The court found that while publication might cause significant embarrassment and affect Ms Tabb's children, it would not lead to the severe suffering or privation required for extreme hardship. The alleged offending, involving assault with a weapon, was not of a nature likely to irreversibly damage her reputation or ability to provide for her family. The court concluded that the harm, though potentially significant, was not permanent or of a nature that would irreparably damage her professional reputation. Consequently, the appeal was dismissed.

Orders