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…

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 Van Beynen v Birchfield

Details

AGLC: Van Beynen v Birchfield [2023] NZHC 3072
Case: [2023] NZHC 3072
Decision Date: 1 November 2023

CaseChat Overview and Summary

Martin van Beynen, a journalist, appeals against a decision of Judge T J Gilbert in the District Court at Greymouth, who granted Allan John Birchfield interim suppression of his name pending the resolution of charges against him. Birchfield opposes the appeal, and the Police are neutral but filed submissions addressing the legal principles that apply. The appeal was heard on 26 October 2023, with the Appellant appearing in person and A McCormick representing the Respondent. The judgment was delivered on 1 November 2023.

The legal issues before the court were whether the District Court Judge correctly assessed the extreme hardship test under s 200(2)(a) of the Criminal Procedure Act 2011 and whether the second stage of the test was met, which requires the balance to clearly favour suppression. Van Beynen argued that the Judge made two errors of law: first, finding that Birchfield had met the legal threshold of extreme hardship and, second, not considering whether the extreme hardship effectively trumped the principle of open justice. McCormick submitted that the Judge correctly addressed the tests that apply.

The court found that the Judge did not correctly assess the extreme hardship test. The affidavit provided by Birchfield did not outline why publication of the charges would lead to extreme hardship, and the evidential material did not provide a sufficient basis for the Judge to reach his conclusion. The court also found that the Judge did not specifically address the second stage of the test and appears to have merged it somewhat with the first limb of it. However, the appeal was allowed because the threshold of extreme hardship was not met.

The appeal is allowed, and the interim suppression order is set aside. The matter is remitted to the District Court for further consideration in light of this judgment.

Orders