Vemoa v Police

[2013] NZHC 903

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2013-404-100 [2013] NZHC 903

BETWEEN  JAMES VEMOA Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         12 April 2013

Appearances: M J English and A F Kemp for the Appellant

Z Johnston for the Respondent

Judgment:      29 April 2013

RESERVED JUDGMENT OF PRIESTLEY J

This judgment was delivered by me on Monday 29 April 2013 at 2.15 pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date:………………………….

Counsel/Solicitors:

M J English, Public Defence Service, Waitakere. Email: [email protected]
A F Kemp, Public Defence Service, Auckland. Email: [email protected]

Z Johnston, Crown Solicitor, Auckland. Email: [email protected]

Copy to:

C Wham, Crown Solicitor, Auckland. Email: [email protected]

VEMOA V NEW ZEALAND POLICE HC AK CRI-2013-404-100 [29 April 2013]

[1]      Judge Everitt, sitting in the Auckland District  Court on 25 March 2013, refused to make an order prohibiting publication of the appellant’s name.   This appeal challenges whether his decision was correct.

[2]      The appellant and a female are charged with abducting their child under s 210 of the Crimes Act 1961.  The prosecution case is the couple carried their ten day old baby away from the neonatal intensive care unit of the hospital.   For care and protection reasons the baby at that time was placed (presumably by an order made under the Children Young Persons and Their Families Act 1989) in the custody of the Ministry of Social Development.

[3]      The  baby’s  abduction  attracted  some  publicity  at  the  time,  particularly because the police appealed through the media for public assistance in locating the child.   The name of the appellant and child’s mother were placed in the public domain at that stage.   The baby’s safety was clearly imperilled as a result of him being taken away from the unit where he was being treated.

[4]      Four days after the abduction the appellant appeared before Judge Everitt. He was remanded in custody for a fortnight.  His counsel sought an interim order preventing publication of his name.

[5]      The Judge, in a short robust decision, declined the application.  He referred to the previous media publicity and observed the appellant’s name had been published, as had the details of the baby and its medical condition, because it had presumably been in the public interest to ensure the parents were found and the child treated as soon as possible.  Because the appellant’s name had already been published it could not “be taken back”.  Furthermore the appellant and the child did not have similar names.

[6]      Dealing with the submission that the publication of the appellant’s name would lead to identification of the child the Judge found it “impossible to accept” that publication would cause undue hardship to the child or to any other person. Most people charged, observed the Judge, had children and family, which did not lead to name suppression.

[7]      Whether  or  not  the  Judge  was  referred  to  the  relatively  new  legislation operative on 25 March is not clear.   The jurisdiction for making or prohibiting publication is found in s 200(1) of the Criminal Procedure Act 2011.  Section 200(2) relevantly provides:

(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

(b)      cast  suspicion  on  another  person  that  may  cause  undue hardship to that person; or

(c)       cause undue hardship to any victim of the offence; or

(d)       create a real risk of prejudice to a fair trial; or

(e)       endanger the safety of any person; or

(f)       lead to the identification of another person whose name is suppressed by order or by law; or

(g)      prejudice   the   maintenance   of   the   law,   including   the prevention, investigation, and detection of offences; or

(h)       prejudice the security or defence of New Zealand.

[8]      It cannot seriously be argued that publication of the appellant’s name would cause  him  extreme  hardship  (s 200(2)(a)).     It  is  highly  improbable  that  the appellant’s counsel made such a submission before Judge Everitt.   Nor was that submission made on the appeal.  Nor can it be argued that the victim of the alleged offending, the baby, would suffer from undue hardship (s 200(2)(c)), because both as victim and as a child he had the benefit of a statutory regime prohibiting publication

of his name.[1]

[1] The source of protection for the child is found in s 204 which provides:

[9]      The focus thus turns to s 200(2)(f).   Is publication of the appellant’s name likely to lead to the identification of either the baby (whose name is suppressed by law) or to the appellant’s alleged accomplice (the mother) who, for some reason, has been granted name suppression?

[10]     Mr English submitted principles of open justice underlay s 200 and were particularly evident in the high thresholds.   However, once those thresholds have been  cleared  there must  be a strong  presumption  in  favour of suppression.    In counsel’s submission the Judge had erred in various areas and had not applied the correct approach under s 200.  He had focused on the issue of undue hardship to the child and to other people.  In the circumstances before him, he should have focused on whether publication of the appellant’s name would have led to identification of the child and/or the child’s mother.

[11]     So far as the mother was concerned, particularly because her name had been suppressed, s 200(2)(f) applied.  Publication of the appellant’s name would probably lead to identification of his alleged accomplice – the child’s mother.

[12]     Counsel then turned to s 204(3).   Although suppression of a child’s name under s 204(1) did not prevent publication of the name of a defendant or the nature of the charge, it did not follow that the provision automatically led to publication of a defendant’s name.

[13]     This latter submission is undoubtedly correct but a judge nonetheless has a discretion and must consider whether publication of a defendant’s name might lead to identification of a child whose name has been suppressed.

[14]     Although the names of the appellant, the child’s mother, and the first name of the child himself, appeared on-line before 25 March, the child nonetheless has statutory suppression.   The appellant’s alleged co-offender has achieved name suppression by court order.  The only issue before Judge Everitt raised in this appeal must be whether the appellant himself is entitled to suppression of his name.  Clearly he is not entitled to it in his own right.   Rather his counsel hopes to ride on the

slipstream created by the current orders in force for the protection of mother and child.

[15]     The fact that there has been pre-court publicity of the names of all three does not mean that the statutory suppression the child has and the ordered suppression his mother currently has, can be ignored.  Subsequent media reports (if any) will need to observe the law strictly and reporters will be obliged to write circumspectly.

[16]    But as matters stood on 25 March and subsequently, publication of the appellant’s name will not, in terms of s 200(2)(f), lead to the identification of the alleged co-offender.  Her surname is different.  And, so far as the child is concerned, publication of the appellant’s name would not in itself lead to identification of the child for whom statutory protection already exists. There are different variants of the child’s name in any event.

[17]     I accept that, had there not been legitimate media interest in, and on-line coverage of the child’s abduction arising out of the police search for the perpetrators, the argument in favour of prohibiting publication of the appellant’s name might have been slightly stronger.  But that was not the position on 25 March.  Thus, although it is probable that Judge Everitt was exercising his statutory discretion in a pragmatic way rather than focusing on the provisions of s 200(2), the exercise of that discretion was not in error.  The result was consistent with the analysis of this judgment, albeit having a different focus.

[18]     The end result must be that the appeal is dismissed.   The interim orders

preventing publication of the appellant’s name fall with this result.

.......................................…

Priestley J

204           Automatic suppression of identity of child complainants and witnesses

(1) Unless the court, by order, permits publication, no person may publish the name, address, or

occupation of a person who is under the age of 18 years who—

(a)        is the complainant; or
(b)        is called as a witness in any proceeding in respect of an offence.

(2) Despite subsection (1), the name, address, or occupation of a child who dies as a result of the offence may be published.

(3) Nothing in subsection (1) prevents publication of the name of the defendant or the nature of the charge.

...