The Queen v Regina Lutomski

IN THE COURT OF APPEAL OF NEW ZEALAND

CA211/02
CA212/02

THE QUEEN

REGINA LUTOMSKI
ANIELA MACKIEWICZ

Hearing:	20 August 2002
Coram:	Keith J Blanchard J Anderson J
Appearances:	G J King for the Appellants B J Horsley for the Crown
Judgment:	28 August 2002

JUDGMENT OF THE COURT DELIVERED BY KEITH J

The applicants seek special leave to appeal to this Court under s144 of the Summary Proceedings Act 1957 against the refusal by the High Court, confirming the decision of the District Court, to grant them permanent suppression of name. The High Court has refused leave to appeal.
Each applicant pleaded guilty to and was convicted of two joint charges of using documents with intent to defraud under s229A of the Crimes Act 1961. The documents were 111 home help forms submitted, over two distinct periods of 10 months and of 5½ years, to the ACC for payment in circumstances where there was no entitlement to the payments which totalled $30,294.85. The payments were made in respect of home help provided by one of the women to the other, her elderly aunt. There was no question of the help not being provided. It was just that when the older woman could not cope alone and the applicants began living together, the fact of a joint living situation disentitled them to ACC financial support for the home help. The applicants refunded the money to ACC in February this year, two months before the sentencing in the District Court.
The District Court Judge in his sentencing notes mentioned that the two offenders took steps to ensure that ACC were not aware of the critical facts. That indicated guilty knowledge, accepted by the offenders in their guilty pleas. The sum involved was substantial. It had however been fully repaid. He dealt with the matter by way of monetary penalty, each offender being fined $500 in respect of each information with Court costs and solicitor’s fees.
The District Court Judge dealt with name suppression in this way:
I am aware of the application counsel has made for suppressing publication of your name. I accept the distress that you obviously feel about this matter and the steps you have taken “to put it right” as it were, but it is a fraud against a department which requires trust from those people with whom it deals. I do not think it is any different than a large number of other similar type frauds that appear before this court and one of the greatest deterrents that the court is able to impose in relation to this type of offending is in fact name publication. Deterrence in my view is the most important aspect in relation to these types of charges in order to try and stop people taking advantage of a system which requires them to be scrupulously honest if they wish to receive the benefits that they are entitled to.
In the circumstances, in this case, I do not believe it is appropriate for me to order suppression of name and there will be no order suppressing publication of your name.
The applicants appealed to the High Court against the refusal to grant a suppression order. The appeal, heard by Hammond J, was supported by two affidavits. In the first, a barrister, who was in the District Court at the time of the sentencing there, testified that the elder of the two applicants collapsed as she left the dock and remained motionless on the Courtroom floor for several minutes while the barrister and others went to her assistance. She remained on the floor until the ambulance officers arrived and carried her away on a stretcher.
The second affidavit was from the applicants’ doctor of twelve years. She testified that both suffered from medical conditions and had been hugely traumatised by the Court experience. They appeared to have been overwhelmed by the ordeal. One of them had said to the doctor that they
would not be able to survive the humiliation of name publication and would take their own lives and I [the doctor] have grave fears about this.
She also said that she was attempting to deal with the situation by appropriate medical help and psychiatric referral but remained extremely concerned about them both. The Judge also mentioned that a number of references about the younger of the two were handed to the court without objection.
The Judge then set out the law about name suppression. Mr King, for the applicants, makes no criticism of that statement. The Judge reviewed the arguments made by counsel supporting and opposing name suppression and having referred to a judgment in this Court in which possible suicide was a factor (R v McDonald 24 August 1998, CA84/98) continued:
[21]     I proceed therefore on the footing that the risk of suicide is always a matter for analysis in the instant case. It is relevant, indeed highly relevant, but not necessarily dispositive.
[22]     But for that factor, in my view this would be a straightforward case. On the one side there are the public policy considerations for non-suppression; the character of the offending was here serious; it was dishonesty on a relatively large scale against a body dispersing public monies; and the usual principle of publication would come into play. On the other side, these women lived otherwise blameless lives and it has to be acknowledged that publication will fall more heavily on them than on perhaps most other persons. But all of that said, in those kinds of circumstances, publication would normally follow.
[23]     The factor which might make a difference here is precisely the concern over possible suicide. Ms Gould [counsel in the District Court and the High Court on appeal] warned me, and in the particular circumstances I did not attempt to stop her, that what has to be of concern here is some kind of pact between these two women. The general practitioner has deposed that she has “grave fears” about the likley actions of these women. The evidence is not from a psychiatric expert, and it does not appear to go so far as the evidence went in the McDonald case.
[24]     However it is put, in a case like this, the Court is faced with the very real difficulties of the evaluating that the most difficult of all things, the mysteries of given human psyches and how they will react to a given event. Judges have to struggle with this problem all the time, and it is one of the very real burdens of office that sometimes the Judge’s appreciation later turns out to be incorrect.
[25]     All of that said, a Judge has to do the best he or she can with the particular risk. In the end I am not persuaded, on what is in front of me, and despite all that Ms Gould has ably said on behalf of her clients, that name suppression should be continued in this case.
[26]     The evidence goes no further than that there is a risk, but it is based on what is said to have been said by one or more of these women. The GP is concerned, but I have no psychiatric assistance, and nothing solid to evaluate.
Hammond J accordingly dismissed the appeal, but continued the suppression order for a further 48 hours to enable the appellants’ professional advisers to take appropriate steps.
The applicants then sought leave to appeal to this Court under s144 of the Summary Proceedings Act but Hammond J refused leave on the basis that there was no question of law of a character which ought to be advanced to the Court of Appeal. There was, he said, no issue about the applicable principles of law. The question was simply whether they were applied correctly. There was no residual discretion under s144 in exceptional cases, to prevent injustice. This Court had made that clear in R v Slater [1997] 1 NZLR 211, 215.
Under s144 an essential first step is the identification of a question of law arising in any general appeal to the High Court. The question which Mr King formulated both in the High Court and in this Court was whether Hammond J:
was … correct in law to conclude that the public policy considerations for non-suppression outweighed the acknowledged risk of double suicide in this case.
The public policy consideration mentioned is, of course, that the starting point must be, in the Judge’s words, the importance in a democracy of freedom of speech, openness of judicial proceedings and the right of the media to report the proceedings fairly and accurately as surrogates of the public; see eg Lewis v Wilson & Horton Ltd [2000] 3 NZLR 546.
In his argument before us, Mr King submitted that the question as framed above is a question of law rather than one relating simply to the exercise of discretion. He said that the relative weight to be given to the competing factors can and does constitute a matter of law rather than simply a discretion. He cited R v Liddell [1995] 1 NZLR 538, 545, for the proposition that discretionary decisions will be disturbed if they are based on some wrong principle or otherwise shown sufficiently clearly to be wrong. That statement was however made by the Court in deciding a general appeal and not one limited to questions of law. It does not help the present applications.
We agree with Hammond J that the process of the weighing of factors in the exercise of a discretion does not present a question of law; nor in particular does the question whether the starting point of openness is outweighed by personal factors such as the risk of suicide in this case. It would be otherwise if the court had had regard to the factors which were irrelevant or had not had regard to factors which were relevant. Error of law could also arise, as indeed in the present situation of name suppression, were the court not to recognise that as a matter of law openness was the starting point : the court does not begin with an even balance.
The nearest we came in the course of the hearing to identifying such a possible error was in relation to the earlier media coverage of one of the applicants collapsing on the floor of the District Court following the initial sentencing. It was that unfortunate event, it may be suggested, that has given this case a particular prominence in the media. The question, raised from the bench, was whether the Judge’s failure to consider that matter could be an error of law. We have carefully considered this issue, but we do not find in it a possible error of law. First, Hammond J was plainly very alert to the heavy impact of publication. Secondly, the unfortunate event was clearly in his mind. And, thirdly, any such argument could turn on media decisions about what proceedings are covered, what, if any, coverage is given to them in their reporting and judicial assessment of those matters.
We accordingly conclude that no question of law arises from the High Court judgment. The application for special leave is dismissed.

Solicitors:
R M Gould, Wellington for the applicants
Crown Law Office, Wellington

[2002] NZCA 211

28 August 2002