Van Beynen v Birchfield

[2023] NZHC 3072

IN THE HIGH COURT OF NEW ZEALAND GREYMOUTH REGISTRY

I TE KŌTI MATUA O AOTEAROA MĀWHERA ROHE

CRI-2023-418-8

[2023] NZHC 3072

BETWEEN

MARTIN VAN BEYNEN

Appellant

AND

ALLAN JOHN BIRCHFIELD

First Respondent

AND

NEW ZEALAND POLICE

Second Respondent

Hearing:

26 October 2023

Appearances:

Appellant in person

A McCormick for the Respondent

Judgment:

1 November 2023

JUDGMENT OF HARLAND J

[1]    Mr van Beynen, a journalist, appeals against a decision of Judge T J Gilbert in the District Court at Greymouth on 28 June 2023 when he granted Allan John Birchfield interim suppression of his name pending charges against him being resolved. Mr Birchfield opposes the appeal. The Police are neutral in respect of the appeal but filed submissions addressing the legal principles that apply.

[2]    I have decided to grant the appeal. This judgment sets out my reasons for doing so.

Background

[3]    Mr Birchfield faces two charges in the Greymouth District Court. It is alleged that on 1 May 2023 he assaulted his brother Gary Birchfield using a vehicle as a

VAN BEYNEN v BIRCHFIELD [2023] NZHC 3072 [1 November 2023]

weapon.1 It is further alleged that on 6 May 2023, having been issued with a trespass notice to stay off 434 Main Road, Kaiata, he wilfully trespassed by attending that property within two years after the warning had been given to him.2

[4]    It is alleged that the offending occurred at a site referred to as the Kaiata yard, the ownership of which is vested in various entities owned and operated by the Birchfield family. A civil proceeding in relation to these family interests resulted in Mr Allan Birchfield being removed as a director of Birchfield Coalmines. There continue to be disputes between Mr Allan Birchfield and his brother Gary Birchfield about access to the Kaiata yard and various other matters.

[5]    Mr Birchfield is said to have driven his vehicle into the Kaiata yard on 1 May 2023. At that time, his brother was present and Mr Birchfield was told to leave. When there was a disagreement about this, Mr Birchfield is said to have driven around and passed his brother and, as he did so, it is alleged he clipped him with his vehicle, but his brother did not lose his balance or fall over when this happened.

[6]    The trespass charge is a representative charge. A trespass notice was allegedly served on Mr Birchfield on 6 May 2023 barring him from entering the Kaiata yard. It is alleged that Mr Birchfield ignored this and, on 6, 8, 10, 11 and 12 May 2023, he entered the yard in his vehicle, driving around it before leaving.

[7]    Mr Birchfield first appeared in Court to answer the charges on 17 May 2023. He was remanded without plea and granted interim suppression of his name until the next appearance. On 28 June 2023, Mr Birchfield entered not guilty pleas to the charges and elected a Judge alone trial. The continued suppression of his name was argued and determined in favour of Mr Birchfield by Judge Gilbert. Earlier and by consent, the Judge had authorised Mr Birchfield’s affidavit filed in support of his application for name suppression to be disclosed to Stuff Ltd to consider whether it wished to oppose suppression. The Judge directed that the contents of the affidavit must not be published.

1      Crimes Act 1961, s 202C.

2      Trespass Act 1980, ss 4(4) and 11(2)(a).

[8]    Mr Birchfield is a longstanding elected member of the West Coast Regional Council. He is currently serving his seventh term which means he has had at least 18 years serving as an elected representative. Of recent times, Mr Birchfield was the chairperson of the Council but this is no longer the case.

[9]    There has been some publicity about Mr Birchfield’s relationship with other councillors and council staff over the years. His personal views about matters of public interest, for example climate change, COVID-19 and the protection of significant natural areas under the proposed Te Tai o Poutini Plan, have attracted media interest. In various news articles, Mr Birchfield has been described as being a robust and sometimes controversial local body politician. The court proceeding involving the family dispute between Mr Birchfield and his siblings has also been the subject of media reporting.

[10]   At the hearing before the Judge, submissions were presented on behalf of Mr Birchfield. The New Zealand Police did not oppose the application for the interim suppression of his name, but Ms Naish, a journalist for Stuff Ltd, had earlier filed submissions opposing the application.

[11]   Mr van Beynen filed a notice of appeal against the Judge’s decision to grant Mr Birchfield interim name suppression. The appeal is dated 28 July 2023. While the appeal notes Mr van Beynen’s address as Stuff/The Press, I am told the appeal is advanced by him as a journalist in his own capacity.

[12]   Section 210 of the Criminal Procedure Act 2011 (CPA) outlines the standing members of the media have to report on, to initiate and be heard in relation to any application for a suppression order or the application to renew, vary or revoke a suppression order. Section 210(1) requires a person who has such standing to be someone who is either subject to or employed by an organisation that is subject to a code of ethics and the complainants procedures of the Broadcasting Standards Authority or The Press Council.3 The Court can however permit any other person to report on the proceedings.4

3      Criminal Procedure Act 2011, s 210(1)(a).

4      Section 210(1)(b).

[13]   No issue was taken about Mr van Beynen’s standing to bring the appeal, even though it appears to have been brought in his personal capacity as a journalist, rather than on behalf of Stuff Ltd, who opposed the application in the District Court.

[14]   I am satisfied that, through Mr van Beynen’s involvement with Stuff, either as a contractor and/or employee, he is a person in respect of which s 210(1)(a) applies.

The District Court decision

[15]I now outline the key aspects of the decision under appeal.

[16]   After outlining the charges, Mr Birchfield’s plea and the various interests in his application for interim suppression, the Judge described the alleged offending as relating to a family dispute. He referred to the principle of open justice and the fact that the presumption of it can be overridden in certain circumstances.

[17]   The Judge then referred to Mr Birchfield’s affidavit explaining the grounds for his application and the two main reasons for it; his concern about his business interests and his position as a Regional Councillor. Although not stating it as such, it is clear from the Judge’s decision that the application relied on s 200(2)(a) of the CPA.

[18]   The Judge then referred to Mr Birchfield’s business interests, noting that he, along with his wife and son, run a goldmine employing a number of staff and that the business model involves mining for gold to supply agents in different parts of the country who then contract to purchasers both within New Zealand and internationally. The Judge recorded Mr Birchfield’s concern that his reputation would be compromised if his name was published and that this would likely have a flow on effect to the business.

[19]   The Judge next referred to the second part of Mr Birchfield’s application concerning his longstanding involvement as a councillor on the West Coast Regional Council. After referring to Mr Birchfield’s acknowledgement that his involvement within the council was well known and observing that generally local politics was reported thoroughly on the West Coast, the Judge noted Mr Birchfield’s concern that,

if his name was published in connection with the charges stemming from his family dispute, it would become untenable for him to remain as a councillor.

[20]   The Judge summarised Mr Birchfield’s case for interim suppression at para [9] of his judgment. He said:

In summary, he asserts that his and his family’s business interests may be affected, and, secondly, that his role on the Council will likely be untenable upon publication, even in the absence of a finding of guilt, because any trial will be some time off.

[21]   The Judge then identified, correctly in my view, that fair trial rights were not engaged because Mr Birchfield had elected to have the charges determined by a Judge and not a jury. He next dealt with the submission by Stuff Ltd that publication would not likely cause extreme hardship to Mr Birchfield and that there is a high degree of public interest in publication given that the charges relate to alleged offending by an elected representative.

[22]   The Judge then acknowledged that the threshold of extreme hardship is a high one which needs to be properly demonstrated in order to displace the presumption in favour of open reporting. He then observed that the dispute, the subject of the charges, was intrafamilial and did not involve the wider public.

[23]The Judge then said:

[13]      I accept that publicity around this matter may well make the discharge of Mr Birchfield’s role as a councillor untenable even in the absence of the matter being properly determined.

[14]      It is primarily on that ground, supplemented to a modest extent by the potential impact on business interests which go wider than simply Mr Birchfield personally, that the threshold is met and thus I am going to suppress Mr Birchfield’s name and identifying particulars in relation to this matter. That suppression will continue through until either a guilty plea is entered, or verdict.

[24]   Following this, the Judge noted that it would be difficult to see any potential grounds for ongoing suppression should a guilty plea be entered to the charges or a guilty verdict delivered. But he recognised that, even if a not guilty verdict was returned, it might also result in ongoing suppression being inappropriate. The Judge noted that, at least at that point, the media would be bound to report a not guilty finding

which could substantially ameliorate any concerns about the ongoing discharge of Mr Birchfield’s role as a councillor.

[25]   Since the Judge’s decision was issued, matters in relation to the charges have advanced. I was advised at the hearing that, on 30 October 2023, when the charges are due to be called in the Greymouth District Court, the Police are intending to withdraw the charge of assault with a weapon, and there is to be a hearing as to whether the trespass charge ought to be dismissed under s 147 of the CPA. The basis for the 147 application is that Mr Birchfield remains an owner of the yard (either himself or through another entity) and therefore cannot be trespassed from a property in which he has an interest.

[26]   In his written submissions filed in opposition to the appeal, Mr McCormick for Mr Birchfield suggested that an adjournment of the appeal might be an option for the Court. Prior to the appeal hearing, Mr van Beynen indicated his opposition to any proposed adjournment and Mr McCormick did not advance an application for adjournment at the hearing before me.

[27]I therefore proceeded to hear argument about the merits of the appeal.

Discussion

[28]   The starting point when considering an application for a suppression order (interim or permanent) is the presumption of open justice.5 Open justice is a principle of constitutional importance vital to the operation of New Zealand’s criminal justice system.6 The business of the courts should be conducted publicly, and any departure from this general rule ought only to be to the extent necessary to serve the ends of justice.7

[29]   A suppression order may be made under s 200 of the Criminal Procedure Act 2011 (CPA). It provides:

5      Robertson v Police [2015] NZCA 7; D (CA443/2015) v Police [2015] NZCA 541, (2015) 27

CRNZ 614.

6      Erceg v Erceg [2016] NZSC 135, [2017] 1 NZLR 310 at [2].

7      Erceg v Erceg, at [3].

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

…

(3)   The fact that a defendant is well known does not, of itself, mean that publication of his or her name will result in extreme hardship for the purposes of subsection (2)(a).

…

[30]   In determining whether to exercise its discretion under s 200, a court is required to undertake a two-step inquiry.8 The first enquiry is whether any of the threshold grounds in s 200(2) of the CPA are met. In considering whether a ground is “likely to” occur, a real and appreciable risk is required.9 Secondly, if the court is satisfied that a threshold has been met, it must determine whether to exercise its discretion and forbid publication of the defendant’s details.10 The presumption of open justice is considered at this stage. To displace the presumption, the balance must clearly favour suppression.11

[31]   Mr Birchfield argued that he would experience extreme hardship under s 200(2)(a) of the CPA if the application for interim suppression of his name was not granted. The Court of Appeal has canvassed what is necessary to fulfil the “extreme hardship” element. The standard is very high, requiring significantly more than hardship itself, “severe suffering or privation”,12 or undue hardship is required.13 A contextual analysis which includes a comparison between the contended hardship and

8      D (CA443/2015) v Police, above n 5, at [10].

9      JM v R [2015] NZHC 426 at [33]-[36].

10     Fagan v Serious Fraud Office [2013] NZCA 367 at [9]; Robertson v Police, above 5; D (CA443/2015) v Police, above n 5.

11     D (CA443/2015) v Police, above n 5, at [17].

12     Robertson v Police, above n 5, at [48].

13 At [48].

the ordinary associated consequences of the defendant’s name being published must be undertaken by the Court.14

[32]   In regard to an appeal against the refusal to grant name suppression, Mander J in Rougeux v Police held:15

… whether the statutory prerequisite has been established involves a matter of judicial evaluation and, in accordance with the approach directed by the Supreme Court in Austin, Nichols & Co Inc v Stichting Lodestar, an appeal Court is required to undertake its own assessment of whether the threshold test is met. As was observed by Gilbert J in Beacon Media Group Ltd v Waititi, the constraints on an appeal from the exercise of a discretion do not apply.

[33]I agree that this succinctly summarises the applicable test on appeal.

Submissions

[34]   Mr van Beynen submitted that the Judge made two errors of law, first, finding that Mr Birchfield had met the legal threshold of extreme hardship and, second, even if he was correct to reach this conclusion, the Judge did not on to consider the second stage of the test and, in particular, he did not consider whether the extreme hardship effectively trumped the principle of open justice. In respect of both limbs of the test, Mr van Beynen submitted the Judge was in error and the appeal ought to be allowed.

[35]   Mr van Beynen referred to and attached to his submissions 10 articles from various publications between 30 January 2019 and 29 May 2023 which have referred to Mr Birchfield, one of which is an article dated 4 September 2021 dealing with Mr Birchfield’s family dispute about the business in which he and his siblings have an interest, and following which his removal as a director was upheld.

[36]   Mr McCormick, for Mr Birchfield, submitted that the onus is on the appellant to identify errors in the lower Court’s decision and, he submitted, this is unable to be made out. He submitted that the Judge correctly addressed the tests that apply. Mr McCormick submitted that the media has an almost obsessive interest in Mr Birchfield and that the matters raised on appeal were exactly the same as those which had been

14 At [49].

15     Rougeux v Police [2014] NZHC 979 1t [18] (footnotes omitted).

advanced before the District Court Judge and which he had taken into account. Mr McCormick submitted that the family nature of the alleged charges was at the heart of the Judge’s decision and Mr van Beynen had not advanced any proper evidence to challenge Mr Birchfield’s submission, which was accepted by the Judge, namely that his role as a councillor would be untenable and his business interests affected should his name be published.

[37]   Mr McCormick argued that the real argument about suppression ought to occur at the end of the case which was not that far away. He accepted that his current instructions are to apply for permanent name suppression regardless of the outcome of the s 147 application, but he did highlight that the Police position is that the more serious charge is to be withdrawn.

[38]   Mr McCormick also submitted that Mr van Beynen had failed to provide any proper evidence to support the contention that there was public interest at this stage in what was essentially a familial dispute. Mr van Beynen countered this with the argument that there is legitimate public interest in knowing when elected officials face charges.

Did the Judge correctly assess the extreme hardship test?

[39]   Although the Judge accepted that Mr Birchfield’s position, as a regional councillor, could become untenable if the charges were published, the affidavit provided by Mr Birchfield did not advance why that would be the case. Mr Birchfield simply stated it to be the case. Although he identified that the charges arise from a family dispute which he distinguished from his public role and the Judge accepted this was a distinction of some importance, this conclusion is hard to justify when, as Mr van Beynen identified, the family dispute in relation to the business was the subject of media reporting in 2021.

[40]   Mr Birchfield did not depose that the publication of these matters then caused his position on the Regional Council to become untenable and there is nothing to suggest why that would be the case now. I note that the media reporting in 2021 about the family dispute in relation to the business does not appear to have been before the District Court Judge when he made his decision.

[41]   As to the impact on Mr Birchfield’s business interests, again, his affidavit does not outline in any detail why that would be the case apart from starting that it would. Again, the point is made that, had there been any impact on Mr Birchfield’s business interests following the Court of Appeal decision, it is reasonable to have expected that would have been included in Mr Birchfield’s affidavit.

[42]   Even though the Judge considered these matters in combination amounted to extreme hardship, looking at it afresh as I must on appeal, I conclude that the threshold has not been met. Although some hardship might result, it could not be described as extreme. The evidential material included in Mr Birchfield’s affidavit did not provide a sufficient basis for the Judge to reach the conclusion he did.

[43]   Although this conclusion means that the appeal succeeds, I nonetheless turn to consider the second stage of the test for the benefit of the parties.

Has the second stage of the test been met?

[44]   Mr van Beynen submitted that, in the balancing exercise, the Judge ought to have specifically referred to whether the extreme hardship he found trumped the principle of open justice. Mr van Beynen submitted that the balance must clearly favour suppression before the discretion can be exercised in favour of an applicant.16

[45]   Undoubtedly, Mr van Beynen is correct that open justice does not only apply to verdicts or pleas of guilty. As well, he is correct that the presumption of innocence is only one of the many considerations that need to be taken into account and is not, of itself, determinative. Care must be taken when considering those who are well known, given the observations by the Court of Appeal in Lewis v Wilson & Houghton.17

[46]   I agree with Mr van Beynen that the Judge did not specifically address the second part of the test and appears to have merged it somewhat with the first limb of it. It would have been preferable for both limbs of the test to have been separately

16     Erceg v Erceg, above n 6.

17     Lewis v Wilson & Houghton [2000] 3 NZLR 546, at 21.

identified although, in a busy list court, it is understandable that this is sometimes overlooked and often it can be inferred from the decision.

[47]   Had the first stage of the test been met but for the matters I refer to in [48] below, I would have found that the second stage of the test favoured the continuation of interim suppression. I would have reached this decision because the potential for the trespass charge to be dismissed and the fact a charge was likely to be withdrawn would have, in my view, weighed in favour of continued interim suppression.

[48]   However, I have been advised that the Police did withdraw the more serious charge on 30 October 2023, but Mr Birchfield did not succeed in his s 147 application. This result will provide the basis for Mr Birchfield to more positively address any publication of his name in the media in relation to the remaining less serious charge.

Result

[49]The appeal is allowed.

Harland J

Solicitors:

A McCormick, Barrister, Christchurch.

Copy to:

M van Beynen, Appellant.