The King v Joseph James Brider
[2022] NZHC 3579
•21 December 2022
ORDER PROHIBITING PUBLICATION OF NAMES OF CONNECTED PERSON AND RELATED ENTITIES. IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CRI-2022-009-580
[2022] NZHC 3579
THE KING v
JOSEPH JAMES BRIDER
Hearing: 2 December 2022 Appearances:
L C Preston KC for Applicant – […] C J Boshier for Crown
M van Beynen – In Person for Stuff Ltd
Judgment:
21 December 2022
JUDGMENT OF EATON J
[As to Final Name Suppression Order of Connected Person] [REDACTED FOR PUBLICATION]
This judgment was delivered by me on 21 December 2022 at 1.30 pm pursuant to Rule 11.5 of the High Court Rules
Registrar/Deputy Registrar Date:
[1] Mr Brider has pleaded guilty to charge of murder, abduction for sexual connection and breaching release conditions. He was to be sentenced on 2 December 2022. Due to the unavailability of his counsel, that sentencing has now been deferred to 1 February 2023.
R v BRIDER [2022] NZHC 3579 [21 December 2022]
[2] Mr Brider murdered his neighbour, Juliana Bonilla-Herrera. At the time of this offence, Mr Brider was living in a property owned by the applicant, the […]. He was also employed by a labour hire social enterprise entity related to […].
[3] […] is a […] entity. It delivers multiple wraparound support services […]. Its services extend to the provision of […] and to a […] operated in a joint venture with the […].
[4] In a judgment dated 1 March 2022, Doogue J made an interim order prohibiting publication of details that might lead to identification of the […] and five associated entities.1
[5] Ms Preston KC, on behalf of […], seeks final suppression orders. Senior Stuff journalist, Mr van Beynen, on behalf of Stuff Ltd, opposes final suppression of name.
[6] Mr Rapley KC acts for Mr Brider. He did not seek to be heard on the final suppression application but has indicated a neutral position. Ms Boshier, on behalf of the Crown, appeared on the application. The Crown takes a neutral position as to final suppression.
The law
[7] Pursuant to s 202 of the Criminal Procedure Act 2011 (the Act), the Court may suppress the identity of witnesses, victims and connected persons. Section 202 provides:
202 Court may suppress identity of witnesses, victims, and connected persons
(1)A court that is hearing a proceeding in respect of an offence may make an order forbidding publication of the name, address, or occupation of any person who—
(a)is called as a witness; or
(b)is a victim of the offence; or
1 R v Brider [2022] NZHC 322.
(c)is connected with the proceedings, or is connected with the person who is accused of, or convicted of, or acquitted of the 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 the witness, victim, or connected person; 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 another 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.
(3)Subsection (1) applies whether or not the court has made an order under section 200 suppressing the identity of the defendant.
(4)An order under subsection (1) suppressing the identity of a witness, victim, or connected person may not prevent publication of the name of the defendant (which may be prohibited only by an order made under section 200) or the nature of the charge.
[8] The approach to be taken to suppression involves a two-step inquiry.2 That approach applies to an application under s 202 of the Act.3 First, the Court must determine whether any of the threshold grounds set out in s 202(2) are met. In the absence of the statutory criteria being fulfilled, the Court does not have jurisdiction to exercise its discretion. Second, if the Court is satisfied that one of the threshold criteria has been met, it must decide whether to exercise its discretion and forbid publication of the applicant’s details.4 It is at this stage that the presumption of open justice must be considered. In order to displace that presumption, the balance must clearly favour suppression.5
[9]In Parker v R the Court of Appeal described “undue hardship” as:6
2 D (CA443/2015) v Police [2015] NZCA 541, (2015) 27 CRNZ 614 at [10].
3 Parker v R [2019] NZCA 350 at [4]–[11].
4 Fagan v Serious Fraud Office [2013] NZCA 367 at [9]; Robertson v Police [2015] NZCA 7 at [40]–[41]; and D v Police, above n 2.
5 D v Police, above n 2, at [12].
6 Parker v R, above n 3, at [10] (footnote omitted).
… a lower threshold than that of “extreme hardship” applying to criminal defendants under s 200. In Sansom v R this Court described it as “hardship that is greater than that which will inevitably follow publication”. This requires a comparison between hardship the applicant claims will result from publication in the particular case and the normal consequences that follow publication.
[10] In S v Police, Lang J was considering an application by a school for suppression of name after three of its students had been charged with multiple counts of burglary.7 Lang J observed that “the fact that the alleged offending has no connection at all with the school means it would not require a great deal of hardship to meet the threshold of being disproportionate or undue”.8
Supporting evidence
[11] Ms Preston relies on the affidavit of the Chief Executive of the […],9 […], dated 28 February 2022, and […] updated affidavit of 25 November 2022. […] evidence addresses the history and work of […] and its associated entities, […] involvement with […], and the hardship […] and its related entities would likely suffer in the event of publication.
[12]The 28 February affidavit was before Doogue J.
Connected Person
[13] To establish that […] is a “connected person” the Court must be satisfied it is directly connected with the proceeding that is before the Court or with the defendant. Doogue J’s findings, which are not under challenge in this application, were that […] was connected with […] in the following ways:10
(a)Mr Brider was at the time of his arrest […]. He had been in close and continuing contact with […], from the time […] in June 2021, ahead of his release from Christchurch Men’s Prison;
(b)Mr Brider was […], which adjoined the flat of the deceased in a block of four units. This address had been approved by Probation prior to Mr Brider’s release in November 2021; and
7 S v Police [2018] NZHC 3089.
8 At [10].
9 This group includes […] and the related entities.
10 R v Brider, above n 1, at [10].
(c)Mr Brider had also been […] social enterprise businesses, […] as a labourer.
[14] Mr van Beynen did not seek to argue that […] is not a connected person. For the reasons summarised by Doogue J above, I am satisfied […] is a connected person under s 202(1)(c) of the Act (as well as the entities connected to […]).
Undue hardship
[15] In reliance on the evidence of […], Doogue J was satisfied that publication would be likely to cause undue hardship to […]. Doogue J said:11
[11] I am satisfied there is a real and appreciable risk that publication of details leading to the identification of […] or any of its nominated related entities would likely cause undue hardship to […] and/or its related entities because:
(a)the organisation is reliant upon the community’s trust, goodwill and financial contribution to support the work it undertakes. That reputation has been hard won over […] of work in the field;
(b)the wider community’s positive engagement and ongoing financial support is critical to the success of the charitable enterprise. […] relies upon a combination of charitable donations and sponsorship, and also the profits of its social enterprises […]. Those enterprises operate as commercial entities in competitive (and COVID constrained) business conditions;
(c)it is reasonable to infer that […] will abhor the offending Mr Brider is accused of and may well wish to disassociate from […] or its entities, notwithstanding that there is no connection between […] or its entities and the alleged offending here;
(d)the […], a programme independent of Government funding, is being evaluated in real time and is showing some promise in […]. It is potentially more susceptible to reputational damage given that the […]; and
(e)an inevitable stain of association with the defendant, given the circumstances of the alleged murder, would taint […] and […].
11 R v Brider, above n 1.
[16] Over and above this identified undue hardship, Doogue J accepted there was additional consequential harm of a more wide-ranging nature that would likely arise if suppression were not granted. That harm was summarised as follows:12
(a)damage to the reputation of […] may jeopardise the delivery of the […] and undermine the significant and promising […] it is achieving to date;
(b)other […] in any capacity - on the […], or recipients of (Probation approved) […] or employees of one of the social enterprises - will likely suffer if programmes or services are affected as a result of reputational or commercial harm to the […] entities due to publication; and
(c)other […] undertakes in its other charitable work, including the […] initiative, will also likely be tainted by association given the naming similarity.
[17] In support of a final order, Ms Preston relies on […] updated affidavit. In that affidavit […] provides further information about the work being undertaken in the […] and the results of that programme.
[18] […] deposes that the […] has operated in Christchurch for almost four years. He says that while the […] released in New Zealand indicate […], internal […].
[19] […] says these outcomes reflect learnings and experience gained from over 25 years. He explains that […] has been focused on […] and forging strong relationships with the […]. He points out that […] do not […], they work with […]. During the hearing, […] confirmed that […] by the Department of Corrections. […].
[20] The primary concern expressed by […] is that negative publicity associating […] with Mr Brider’s offending will negatively impact on all others in the […] and on […] ability to source funding. The […] is funded privately, not by the government.
[21] […] position is captured in the following paragraph taken from […] updated affidavit:
The reputational and commercial impacts will not only affect our […] work, our hard working and passionate staff and the […]. If the […] is compromised financially then
12 R v Brider, above n 1, at [12].
there will be consequential loss to the people of Aotearoa New Zealand who are currently benefiting greatly from the results […].
[22] Mr van Beynen accepts that publication will inevitably arouse concern as to the role of […] but submits the hardship contended by […] is speculative and focusses on the worst-case scenario. As regards adverse funding consequences, Mr van Beynen suggests […] has an obligation to make disclosures to its funders.
Analysis
[23] As regards undue hardship, nothing has changed since the interim order was made by Doogue J. Mr Brider has since entered guilty pleas but that does not lessen the likely hardship to […] in the event of publication of its name.
[24] Ms Preston advances the application for […] with reliance on the findings made by Doogue J. Those findings reflect the unchallenged evidence of […].
[25] I do not accept […] advances a worst-case scenario. I am satisfied the shocking nature of Mr Brider’s offending is likely to give rise to a real and substantial risk commercial partners will be compelled to disassociate from […] and its entities. I also accept the wider community will […] if the highly successful […] were to suffer reputational harm. I agree that […] is somewhat vulnerable given its relative infancy.
[26] It is for […] to determine what disclosures it makes to its funders. The undue hardship arises from the likelihood that publicity will spark a disproportionate and emotive response that fails to reflect the distinction between a connection with the offender and connection with the offending. […] has no connection with Mr Brider’s offending. In this context, I agree with the observations of Lang J in S v Police, as set out above at paragraph [10].13
[27] I have set out in full the findings of Doogue J at paragraph [15] above as to the likely consequences for […] in the event of publication of its name associated with the offending of Mr Brider. I accept and adopt those findings.
13 S v Police, above n 7.
[28] It follows I am satisfied that undue hardship would likely result if a permanent order for name suppression is not made. I accept the threshold test has been met.
Discretion
[29] The second step in considering an application for suppression is whether the Court should exercise its discretion to prohibit publication.
[30] In Parker the Court of Appeal referred to the exercise of the discretion and said:14
In the exercise of the discretion that undue hardship is weighed against the public interest in open reporting and other relevant factors. The seriousness of the offending, the public interest in the nature of the offending, the presumption of innocence, youth, rehabilitative prospects and any risk of self-harm are typically regarded as potentially relevant. But relevance obviously depends on the circumstances of the particular case.
[31] The starting point is the presumption of open justice.15 The prosecution of Mr Brider is of considerable public interest. That he was released from prison shortly before he committed murder and abduction for sexual connection is a feature of this offending that inevitably engages enhanced public interest.
[32]Ms Preston submits that relevant to the exercise of the discretion:
(a)There is no restriction on the publication of the name and nature of the offender and his offending. This allows the public interest to be served.
(b)[…] connection is not to the offending […].
(c)This is an unusual application and the hardship or harm caused by publication anticipated is more wide-ranging and includes:
(i)Reputational damage that may jeopardise the delivery of the […] and undermine the […].
14 Parker v R, above n 3, at [11] (footnote omitted).
15 Erceg v Erceg [2016] NZSC 135, [2017] 1 NZLR 310 at [3].
(ii)Consequences to […] in the event of reputational and commercial harm to […].
(iii)Consequences to other […] undertakes including an […] initiative.
(d)The high public interest in […] being able to continue its important work with […].
[33]Ms Preston placed significant weight on the last factor.
[34] Mr van Beynen submits, and I accept, that this case has significant public interest. Mr van Beynen, and possibly other members of the media, no doubt intend to report on this case post-sentencing, with an inevitable focus on the circumstances that gave rise to a recently released prisoner committing such a violent crime. Mr van Beynen submits the privacy interests of […] are outweighed by the public interest […]. He submits those entities […] and that it is only appropriate that they are identified and their conduct scrutinised in any reporting on the case.
[35] Central to Mr van Beynen’s opposition was his submission that […] for Mr Brider […].
[36] I am required to balance the principle of open justice against the factors favouring suppression.
[37] As matters stand, there is no material before the Court to suggest that […] or any of its associated entities acted in a manner that might warrant criticism relevant to Mr Brider’s offending. There is no suggestion either by Police or the Department of Corrections that […] was at fault. Further, an order suppressing […] name would not prevent an enquiry into the circumstances that gave rise to Mr Brider’s offending following his release from prison and whilst […].
[38] On the other hand, I accept the likelihood of negative publicity with adverse consequences, both from the financial and public relations perspective, would be very likely. I accept that […] and its associated entities play a critical role in the […] in
New Zealand. Through the […], it is achieving […]. […] work has […] interest. That engages a broader interest of justice consideration.
[39] But […] is vulnerable given […] with on a day-to-day basis and, in my view, there is a real risk that the valuable work of […] would be indelibly stained by publication […].
[40] There is no restriction on the publication of the offender’s details or on the processes engaged that led to Mr Brider’s release from prison. The presumption of open justice is satisfied.
[41] On balance I find it is appropriate, the threshold of undue hardship having been established, that I exercise my discretion to make a final order prohibiting publication of the name and any details likely to lead to the identification of:
(a) […];
(b) […];
(c) […];
(d) […];
(e) […]; and
(f) […].
...................................................
Eaton J
Solicitors:
Crown Solicitor’s Office, Christchurch
Copy to:
James Rapley KC, Barrister, Christchurch
L C Preston, Barrister, Christchurch – for […]
Martin van Beynen – Stuff Ltd Jake Kenny - Stuff Ltd
Katie Stevenson – TVNZ Anna Leask – NZME
Vanessa Mckenzie, ARE Media, Sydney, Australia
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