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 latter was, however, withdrawn at this appeal hearing.

[8]      In order to qualify for suppression the Court must be satisfied that publication would  likely  cause  extreme  hardship.    It  is  agreed  that  a  two-stage  inquiry  is required, namely:2

(a)      Whether there is a real and appreciable possibility of the requisite harm that cannot be dismissed;  and

(b)Whether the discretion in favour of suppression ought to be exercised having regard to competing personal and public interests, including the interests of open justice.

[9]      As to extreme harm, I adopt the definition provided by the Court of Appeal in

DP v R3 namely:

A very high level of hardship connoting severe suffering or privation and requiring a comparison between the hardship contended by [the appellant] and the consequences normally associated with publication.

Assessment

[10]     I  accept  that  publication  of  Ms  Tabb’s  name  may  cause  significant

embarrassment and that her two children, as noted aged five and ten, may be subject

1      Criminal Procedure Act 2011, s 200(2)(d).

2      Fagan v Serious Fraud Office [2013] NZCA 367 at [9]; Robertson v Police [2015] NZCA 7 at

[40]–[42].

3      DP v R [2015] NZCA 476 at [6].

to ridicule and teasing as a consequence.   But in my view the facts of the alleged offending are not likely to lead to the type of derision and damage to professional reputation that is likely, in the sense of a real and appreciable risk, to cause extreme harm to Ms Tabb and her family.

[11]     My  position  might  well  have  been  different  had  the  alleged  offending involved serious acts of dishonesty which could have a destructive effect on reputation.  In combination with the vulnerability of her children a compelling case of extreme hardship might have been able to be mounted in the sense of  very special circumstances warranting a cautious approach.  I acknowledge that in this regard the

common law has long identified a difference between pre-trial and post-trial rights.4

But in my view this case is far from that category of potential harm.

[12]     I have taken into account Ms Dhyrberg’s careful submission that it is likely that the publicity will focus on the nature of the charges, that is assault with a weapon, and that this will impact on Ms Tabb’s reputation and that the subsequent telling of the full facts, including mitigating factors in terms of culpability, will not reverse that immediate impact.

[13]     I have some real sympathy for Ms Tabb, as I think the full facts explain, if not justify, the full context, including exculpatory factors for the alleged offending, even if it is proven.  I am also of the view that publication would have a disproportionate effect and to my mind the pre-act case law would have supported pre-trial suppression.5

[14]     But the threshold test I am confronted with is “extreme harm”.  In this case the harm to Ms Tabb does not cross that threshold.  While there will be temporary harm of a potentially significant kind, it will not be in my view permanent and of such a nature as to irreversibly damage her reputation as a lawyer and therefore her

capacity to provide for her family.

4      R v B [2008] NZCA 130, [2009] 1 NZLR 293 at [25]–[30]; Proctor v R [1997] 1 NZLR 295 (CA) at 298.

5      R v B, above; Proctor v R, above; Gap v Police HC Rotorua CRI-2006-463-68, 23 August 2006;

M v Police (1991) 8 CRNZ 14 (HC); R v BGE HC Hamilton CRI-2005-419-122, 1 June 2006.

[15]     Accordingly, I do not allow the appeal.