The Queen v Close

[2009] NZCA 474

IN THE COURT OF APPEAL OF NEW ZEALAND

CA535/2009
[2009] NZCA 474

THE QUEEN

v

ANTHONY HUGH CLOSE

Hearing:13 October 2009

Court:Hammond, Ronald Young and Fogarty J JJ

Counsel:C W J Stevenson for Applicant

G H Allan for Crown

Judgment:13 October 2009 

ORAL JUDGMENT OF THE COURT

The application for special leave to appeal is declined.

REASONS OF THE COURT

(Given by Hammond J)

Introduction

[1]        We have before us an application under s 144 of the Summary Proceedings Act 1957 for special leave to appeal to this Court against a pre-trial ruling of Gendall J.

[2]        The applicant, Mr Close, is a 29 year old American citizen who has permanent residence in New Zealand.  He has been living here for over two years and is in private practice as a chiropractor.

[3]        Along with certain other persons he has been charged with conspiring to unlawfully import the drug Fantasy into this country.

[4]        After the applicant was charged he sought bail and interim name suppression in the District Court at Wellington.  He was granted bail, but Judge Davidson refused to order continuing name suppression.

[5]        Mr Close appealed against that determination.  By a judgment delivered on 20 August 2009, Gendall J dismissed the appeal: HC WN CRI-2009-485-00088 20 August 2009.

[6]        Mr Close then sought leave from Gendall J to apply to this Court.  Gendall J declined leave but directed that the interim suppression order was not to expire until 5 pm on Friday, 28 August 2009.  We understand that order was likely extended.  The present application was then made to this Court.

[7]        Mr Stevenson is an experienced counsel.  He rightly recognised that leave to appeal to this Court is very distinctly constrained: it is granted, for a second appeal, only when there is a question of law of general or public importance which ought to be submitted to this Court for decision.  Not every question of law will be given leave.

[8]        Mr Stevenson framed his question of law in the High Court, and readvances it in this Court, as follows:

Was the District Court plainly wrong to refuse name suppression, when the applicant is a person of good standing and reputation in the community and will suffer the adverse consequences of publication, despite the fact he is presumed to be innocent and may be acquitted of what may be an unjustified charge?  Should there be suppression of name during the pre-trial stage, until the facts of the case are gone into, and the accused [is] afforded an opportunity to present a defence?

[9]        The present law is well settled.  Essentially, the starting point is open justice and freedom of expression (R v Liddell [1995] 1 NZLR 538 (CA)). There are a number of other decisions of this Court and the Supreme Court of New Zealand.

[10]       At heart, Mr Stevenson seeks to see the existing approach under the authorities, entirely reversed.  The propositions which Mr Stevenson would have this Court adopt are:

There will ordinarily be interim suppression at least until the facts of the case are gone into.  That point will ordinarily be trialled.  The onus will be upon the parties seeking publication of name, to demonstrate a high and unusual public interest in the immediate identification of the accused before publication of name will be entertained.  In some cases, where the adverse consequences to an accused will be severe on publication of name, there will be interim suppression until verdict and permanent suppression of name will be likely upon acquittal.

[11]       As to the law, the majority judges in R v B (2008) 24 CRNZ 69 (the President and Robertson J) did not align themselves with the proposition that there should be a “staged” approach to suppression matters in the run up to a trial; they favoured (at least for the present) the maintenance of the status quo.

[12]       Apart from the applicant’s present standing (in that he has no criminal record) and the presumption of innocence, the application was advanced on the footing that his professional practice could well suffer if his name is published now, and that there might also be a possible effect on the practice of the other chiropractors at his Dixon Street premises.  This Court has recognised these factors as factors to be taken into account in Lewis v Wilson and Horton Ltd [2003] 3 NZLR 546 [42] (last bullet point). R v B was addressing fair trial considerations.  This application has nothing to do with fair trial considerations.

[13]       We decline leave to appeal.  The law is presently well settled.  The issue here was always one of the application of the existing law.  There was no error of principle by the Judge.  In the lower courts, the relevant factors were all carefully considered.  Name suppression was refused.  It has not been shown the lower court Judge was wrong.  There is no proper basis for a third reconsideration of those factors in this case. 

Solicitors:

Crown Law Office, Wellington