Tilley v The Queen
[2017] NZHC 882
•4 May 2017
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
CRI-2017-409-000041 [2017] NZHC 882
BETWEEN VICTORIA ANNE TILLEY
Appellant
AND
THE QUEEN Respondent
Hearing: 3 May 2017 Appearances:
J Lucas for Appellant
K South for RespondentJudgment:
4 May 2017
JUDGMENT OF GENDALL J
Introduction
[1] On 29 March 2017 the appellant, Victoria Anne Tilley, was sentenced in the Christchurch District Court to six months’ community detention, 250 hours of community work and ordered to pay reparation of $20,000 after pleading guilty on two representative charges of using a document to obtain a pecuniary advantage.1
[2] Earlier, the appellant had been granted interim name suppression until sentencing. She applied for permanent name suppression at sentencing. This application was declined by Judge O’Driscoll in the District Court.
[3] The appellant now appeals against that refusal to grant permanent name suppression.
1 R v Tilley [2017] NZDC 6767.
TILLEY v THE QUEEN [2017] NZHC 882 [4 May 2017]
Background
[4] The appellant was employed by the victim, a building company, as an Office Manager. Whilst in that role, she defrauded the victim of over $20,000 over a period of over two years from December 2012 to February 2015. She was arrested and charged with a range of dishonesty offences. She subsequently entered a plea of guilty to two representative charges of using a document to obtain a pecuniary advantage.
[5] The appellant was granted interim name suppression when she first appeared in the District Court on the basis of what was said to be issues with her mental health and risks to her safety if her name was published. This order continued until sentencing.
[6] At final sentencing the appellant filed an affidavit outlining her issues of self harm with supporting medical information. It outlined the view that the appellant was at risk of self harm and that publication of her name would increase that risk.
District Court Decision
[7] On the issue of name suppression, Judge O’Driscoll began by traversing the relevant case law and acknowledging the medical material produced in support of the appellant’s request to grant permanent name suppression. His Honour noted:
[31] In support of suppression of name I have an affidavit which has been filed by you. In addition to the affidavit there is also a medical report from Dr Elizabeth Akin who as I understand it is your GP. She says that if the current name suppression was lifted she would anticipate a potential deterioration in your psychological health. She would definitely not recommend the lifting of name suppression due to her concern for your mental well-being and medical care.
[32] I also have a letter from Avril Hewett-Jones indicating that you have commenced counselling at the Petersgate Counselling Centre on 9 February
2017 and you have attended four sessions. The report indicates that you
continue to demonstrate and make reference to high levels of stress and that you would benefit from weekly counselling sessions already in place.
[33] I also have placed before me a letter from Dr Alan Faulkner, a psychiatrist from Hillmorton Hospital. He saw you two days ago on
27 March. He understood that you were appearing in Court today and he has
written that he would support your application for name suppression on the
grounds that the lifting of this would be to impact adversely on your mental health.
[34] I also have a further letter from a registered nurse from the West Adult Community Psychiatric Service. That report is dated 26 April 2017. That refers to your mood as being fragile, that you have reported having really bad anxiety, that you have been experiencing panic attacks, the report notes that you have been referred to the Crisis Resolution Team for a safety assessment by your counsellor due to voicing suicidal thoughts. The report says that you first had suicidal thoughts three years ago and that you have had constant suicidal thoughts which have intensified over the past couple of weeks.
[8] However, after considering competing interests directed to requirements to refuse permanent name suppression, Judge O’Driscoll declined the application. His Honour placed particular weight on the seriousness of the offending and the public interest in knowing about the offending. His Honour held:
[46] I regard this offending by you as being serious. It was serious and significant offending. It occurred on numerous occasions. It involved offending in a variety of ways. It involved offending for a period of over two years. It involved a significant number of transactions. This offending is not in my view minor or insignificant. It is serious offending involving a gross breach of trust where you had significant trust with your employer and as a result had access to the company’s whole financial regime.
[47] I take the view that in the particular circumstances of this case the public and in particular potential employers have a right to know who you are and they have a right to know who they are employing. They have a right to know what you have done in your previous employment. I think in the particular circumstances of this case, taking into account the nature and extent of the offending, it would be wrong to suppress your name and to enable you to go into possible and future employment in a situation where you were entrusted with a business of company’s financial records without that company knowing the background of this offending.
[48] In those circumstances, my view is that the public interest in knowing who you are and knowing what you have done outweighs your personal interest in this case and those are circumstances I exercise my discretion which I have and while I accept and acknowledge and appreciate that there is a risk of self-harm, in the particular circumstances of this case I think that that can be managed by you and the other professionals in the community and I think that the public interest outweighs your personal interests in this case.
[49] I exercise my discretion and decline to grant final suppression of your name.
Law
[9] Section 200 of the Criminal Procedure Act 2011 relevantly provides as follows:
200 Court may suppress identity of defendant
(1) A court may make an order forbidding publication of the name, address, or occupation of a person who is charged with, or convicted or acquitted of, an 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 extreme hardship to the person charged with, or convicted of, or acquitted of the offence, or any person connected with that person; or
…
(e) endanger the safety of any person …
[10] This section establishes a two-stage analysis.2 First, the Judge makes a threshold determination, considering whether any of the grounds listed in s 200(2) have been established. The listed outcomes are prerequisites to a Court having jurisdiction to suppress the name of a defendant. It is “only if” one of the threshold grounds has been established that the Judge may go on to the second, discretionary stage. If none of the outcomes under s 200(2)(a)–(h) are established, necessarily the
matter ends there.3
[11] At the second stage, the Judge weighs the competing interests of the applicant and the public, taking into account such matters as whether the applicant has been convicted, the seriousness of the offending, the views of the victims and the public interest in knowing the character of the offender.4
[12] Regarding any contest between publication and suppression of a defendant’s
name, the well-established starting point is the presumption in favour of open
2 Fagan v Serious Fraud Office [2013] NZCA 367 at [9]; Robertson v Police [2015] NZCA 7 at
[39]–[40].
3 At [9].
4 Robertson v Police, above n 2.
justice.5 The 2011 enactment of s 200 has not altered this presumption, but reinforced it. As the Court of Appeal clarified in Robertson v Police:6
The intention is clear. Publication is the norm. Suppression orders are only to be made in restricted circumstances and the threshold is high. The onus is on the applicant to satisfy the judge that suppression should be ordered.
[13] As recently as September 2016, the Supreme Court held in Erceg v Erceg
that:7
[2] The principle of open justice is fundamental to the common law system of civil and criminal justice. It is a principle of constitutional importance, and has been described as “an almost priceless inheritance”. Open justice imposes a certain self-discipline on all who are engaged in the adjudicatory process – parties, witnesses, counsel, Court officers and Judges. The principle means not only that judicial proceedings should be held in open court, accessible by the public, but also that media representatives should be free to provide fair and accurate reports of what occurs in court. Given the reality that few members of the public will be able to attend particular hearings, the media carry an important responsibility in this respect. The courts have confirmed these propositions on many occasions, often in stirring language.
[14] While Erceg v Erceg was decided in a slightly different context, being an application to prevent publication of a civil matter, the same principles of open justice apply. Accordingly, the discretion to prohibit publication should be exercised sparingly, especially in criminal proceedings. Ultimately, however, satisfaction of the threshold for suppression is context-contingent and “will depend on the unique
factual and personal circumstances surrounding each s 200 application”.8
Submissions
[15] It is clear Judge O’Driscoll in the District Court followed the orthodox two stage test for granting name suppression outlined in Fagan v SFO.9 The appellant submits however that the Judge erred in the second step by refusing to properly exercise his discretion to grant name suppression. It is contended that the Court did
not give proper weight to the fact that, while the Judge discussed the supportive
5 R v Liddell [1995] 1 NZLR 538, (1994) 12 CRNZ 458 (CA) at 546, 466; Re Victim X [2003] 3
NZLR 220 (CA) at [35]–[37];
6 Robertson v Police, above n 2, at [43].
7 Erceg v Erceg [2016] NZSC 135 at [2].
8 RM v Police [2012] NZHC 2080 at [43].
9 Fagan v Serious Fraud Office, above n 2.
network that exists for the appellant to mitigate the risk of suicidal ideation, there is still a heightened risk of self harm even with this support. Furthermore, the appellant suggests that the employers and the public’s “right to know” should be more nuanced in circumstances such as the present and here too, particularly, the Court failed to consider what was said to be a low risk of future reoffending.
[16] On that first aspect, issues relating to an employer’s “right to know” which might lead to a possible job loss or decision not to employ were mentioned in the Supreme Court judgment in ASG v Hayne, Vice Chancellor of the University of Otago10 released yesterday, 3 May 2017. There, the Court said at [86]:
[Relating to] the obvious link between ASG’s employment and the nature of his offending…the decision [of the District Court suppressing name publication] proceeded on what has proven to be a false assumption, that is, disclosure to the employer would result in dismissal. This case demonstrates the need to be careful to avoid making suppression orders which over-reach.
[17] On the second aspect noted in the last sentence of para [15] above, in BL v R,11 Winkelmann J recognised the relevance of the offender’s risk of reoffending as a consideration in granting name suppression, but also I note in the present case that this aspect may be coloured to some extent by the appellant’s lack of candour at times with repeated attempts on her part to deny or minimise this offending.
[18] In her reply submissions for the Crown Ms South submitted that the Court properly took into account all the matters raised by the appellant and did not err in any way in its refusal to grant permanent name suppression.
Analysis
[19] A leading case for suppression of a defendant’s name where there is a risk of
self harm is the recent decision in D v Police. In this case, the Court of Appeal held:12
10 ASG v Hayne, Vice Chancellor of the University of Otago [2017] NZSC 59.
11 BL v R [2013] NZHC 2878.
12 D v Police [2015] NZCA 541.
[30] It is not uncommon for applicants to seek suppression on the ground that publication will cause them to self-harm or commit suicide. A review of the principal cases is instructive. A number of points may be made:
(a) The possibility of self-harm or suicide always gives a court cause for anxious consideration. Suicide would be a devastating and unacceptable consequence of publication and it cannot always be assumed that an at-risk person will behave rationally. But the court cannot adopt the stance that any risk is unacceptable. Under s 200 it must be satisfied that the relevant subs (2) risk is likely; that is, a real and appreciable possibility.
(b) Judges know that people may experience suicidal ideation when confronted with criminal proceedings, which are immensely stressful, but very seldom, if ever, act upon it. The proceeding is normally the principal cause of stress, although publication identifies the proceeding with the defendant and may cause great anxiety at particular points in time.
(c) For these reasons a defendant who relies on a risk of self- harm or suicide attributable to publication of his or her name must normally point to something more than the usual feelings of anxiety and despair that may attend proceedings. It is usual to offer evidence that the defendant is psychologically troubled for other reasons and is particularly susceptible to publicity. This may be coupled with evidence that the case will attract unusually extensive or critical media publicity.
(d) The defendant's condition may be such that it also impinges on his or her ability to participate fully in the trial. If so, there is a fair trial risk to consider as well.
(e) Anything that reinforces or mitigates other risk factors may affect the likelihood that publication will precipitate self- harm or suicide.
(f) The opinions of medical professionals deserve respect, but a court need not defer to them. It is unlikely to question an uncontradicted medical diagnosis of the defendant's condition, but such opinions may assume that any risk is too much risk or (as in this case) urge suppression without adequately addressing alternative ways in which the risk might be managed.
(g) There normally are ways of managing the risk. Where possible, medical reports prepared to assist the courts should recommend and evaluate those options. For example, a brief period of suppression may reconcile the defendant to the inevitability of publicity after the initial shock of arrest and first appearance. Support structures can be identified and deployed. Sensitive information of a personal nature may be suppressed.
(h) Suppression does not follow automatically from the court being satisfied that a relevant risk exists. The court must further consider the second issue: whether an order ought to be made in the exercise of discretion.
[20] In light of the principles set out by the Court of Appeal in D v Police, I find that Judge O’Driscoll did not err in refusing to grant name suppression. In His Honour’s decision, careful consideration was given to the medical opinions adduced in support of the appellant’s application. And, in my view, Judge O’Driscoll was entitled, after considering the evidence before him, to refuse to exercise his discretion to grant name suppression.
[21] As I see it, while, to an extent, a possible risk of self-harm exists here, though as Ms South submits perhaps not to an especially high level, this risk is also properly mitigated by the strong support network and assistance that is available to the appellant. As the pre-sentence report in particular recorded:
As noted in the Emotional Health and Wellbeing section, she is receiving support from her GP to manage her depression and anxiety and is currently undertaking counselling to manage the stress associated with her Court proceedings. Victoria Tilley impresses as intelligent and motivated enough to continue utilising these supports for as long as necessary without assistance from Community Probation and as a consequence no rehabilitative sentence is proposed.
[22] The appellant also appears to have a highly supportive de facto partner and multiple agencies and medical professionals looking after her, such that I am satisfied it was open to the District Court here to conclude that any risks could be managed and minimised.
[23] Furthermore, in my view Judge O’Driscoll did not err in taking into account the seriousness of the offending and the importance of open justice principles. Judge O’Driscoll found that the offending here was serious, involving a number of frauds committed in a variety of different ways through gross breaches of trust, with careful thought being given too as to how to evade detection. I agree that in the circumstances here the appellant’s offending must be considered as serious.
And, as noted above, the Supreme Court in Erceg v Erceg13 reaffirms the
fundamental principle of open justice as an important inheritance to the common law
13 Erceg v Erceg, above n 7.
system. The underlying rationale for this principle is that transparency of court proceedings maintains public confidence in the administration of justice by guarding against arbitrariness or partiality on the part of courts. Taking all these overall interests into account, I conclude that Judge O’Driscoll was entitled to refuse the appellant’s application.
[24] However, in passing I need to make one further observation as an aside. This relates to the general discussion which has occurred here regarding an employer’s right to know about a defendant’s past criminal misconduct. Granting permanent name suppression does not equate to a discharge without conviction. Even if the appellant in this case was to be granted name suppression, she would still have the obligation, if asked by potential employers, to disclose and explain any past criminal convictions. This can also be further verified by potential employers requesting a background check on her criminal history.
Result
[25] For all the reasons I have outlined above, this appeal is dismissed. Permanent name suppression is declined, and the interim suppression order made by Judge O’Driscoll on 29 March 2017 now lapses.
...................................................
Gendall J
Solicitors:
Public Defence Service, Christchurch
Raymond Donnelly & Co, Christchurch
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