The Queen v Shapiro - [2008] NZCA 151

IN THE COURT OF APPEAL OF NEW ZEALAND
CA625/07
[2008] NZCA 151
THE QUEEN
v
BERNARD DAVID SHAPIRO
Hearing:28 May 2008

Court:William Young P, Randerson and Harrison JJ
Counsel:J H M Eaton for Appellant

S B Edwards for Crown

Judgment:6 June 2008 at 2.30 pm

JUDGMENT OF THE COURT

THE APPEAL IS DISMISSED.
____________________________________________________________________
REASONS OF THE COURT
(Given by Harrison J)
Introduction
[1]       Mr Bernard Shapiro has been charged with three offences under the Arms Act 1983. He pleaded not guilty and the charges were tried summarily in the District Court at Christchurch on 27 May 2008. The trial Judge reserved his decision.
[2]       Mr Shapiro applied for an order suppressing publication of his name and the name of his employer some five months after he first appeared in the District Court. In the interim a local newspaper had published two articles which identified Mr Shapiro as the defendant on Arms Act charges and the Christchurch Symphony Orchestra as his employer.
[3]       The District Court declined Mr Shapiro’s application and his appeal to the High Court was dismissed. However, Fogarty J granted leave to appeal on two questions of law (only one remained for argument in this Court) and continued the interim suppression order made in the District Court. Mr Jonathan Eaton, Mr Shapiro’s counsel, advised that Mr Shapiro abandons the appeal for himself but still seeks suppression of his employer’s identity. Accordingly we discharged the interim suppression order relating to Mr Shapiro’s particulars at the end of argument on 28 May.
Background
[4]       Mr Shapiro is a professional musician. He is employed by the Christchurch Symphony Orchestra as a French horn player. He has an interest in military items.
[5]       In March 2007 the police charged Mr Shapiro with unlawful possession of explosives and ammunition. He appeared in the District Court on this charge on four occasions between 30 March and 5 July 2007. On the first appearance Mr Shapiro was represented by the duty solicitor and on the next three by Mr Eaton. He did not seek name suppression on any of those appearances.
[6]       In late June 2007 the police added charges of unlawful possession of two military style semi-automatic firearms and a grenade launcher. Mr Shapiro elected trial by jury on all three charges. He first applied for a suppression order on 17 August on the ground that it was necessary to preserve his employment “and to protect innocent third parties from harm”. By then the Christchurch Press had published two articles identifying Mr Shapiro and his employer – the second under the headline “Explosive Overture”.
[7]       The first article referred to Mr Shapiro’s high public profile because of his employment with the orchestra and his less conventional pursuits as an amateur historian and member of a fringe group, Alf’s Imperial Army. Mr Eaton was reported as saying that nobody was “suggesting there was a high level of culpability associated with this”; and that Mr Shapiro was a temporary custodian of the explosives and ammunition…

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 The Queen v Shapiro

Details

AGLC: The Queen v Shapiro [2008] NZCA 151
Case: [2008] NZCA 151
Decision Date: 6 June 2008

CaseChat Overview and Summary

The Court of Appeal of New Zealand heard an appeal brought by Bernard David Shapiro against a decision of the District Court declining his application for an order suppressing the publication of his name and the name of his employer. Shapiro, a professional musician employed by the Christchurch Symphony Orchestra, faced charges under the Arms Act 1983 for unlawful possession of explosives, ammunition, and military-style firearms. Despite his initial not guilty plea, the appeal centered around Shapiro's request for name suppression, particularly concerning his employer, after two articles published by a local newspaper identified him and his employer.

The central legal issue in this case was whether the High Court erred in applying the presumption of open reporting in a case where Shapiro sought suppression of his employer's identity, rather than his own name or occupation. Shapiro's counsel argued that the general public does not have a legitimate interest in knowing the name of an entity employing a person facing criminal charges. The Court examined the jurisdictional basis for such an order under s 140(1) of the Criminal Justice Act 1985 and whether the Christchurch Symphony Orchestra qualified as a "person connected with" the proceedings. The Court found that the employer was not sufficiently connected to the proceedings to warrant suppression under the statutory provision, which is restricted to "reports or accounts relating to any proceedings in respect of an offence."

The Court also considered whether the appeal should be dismissed due to the futility of a suppression order given the extensive prior publicity and the completion of the trial. It concluded that the District Court's decision to decline the suppression order was correct, and the appeal was dismissed. Shapiro's request for suppression of his employer's identity was denied, and the interim suppression order relating to Shapiro's particulars was discharged.

Orders