Victim X v Television New Zealand Ltd
[2003] NZCA 102
•26 May 2003
IN THE COURT OF APPEAL OF NEW ZEALAND
CA91/03
BETWEENVICTIM X
Appellant
ANDTELEVISION NEW ZEALAND LIMITED
First RespondentANDWELLINGTON NEWSPAPERS LIMITED
Second RespondentANDATTORNEY-GENERAL OF NEW ZEALAND
Third Respondent
Hearing:23 May 2003
Coram:Keith J
Anderson J
Glazebrook JAppearances: J A Farmer QC and B H Fletcher for the Appellant
W Akel for the First Respondent
P A McKnight for the Second Respondent (given leave to withdraw)
G J Burston for the Third Respondent
Judgment:26 May 2003
Reasons:29 May 2003
REASONS FOR THE JUDGMENT OF THE COURT
DELIVERED BY KEITH JTable of contents
Para No.
Introduction........................................................................................................... [1]
Jurisdiction.......................................................................................................... [13]
As High Court Judges?................................................................................... [14]
On appeal under s66 of the Judicature Act?.................................................. [22]
The merits............................................................................................................ [31]The starting point........................................................................................... [34]
Will the administration of justice be compromised?...................................... [38]
What do the principles of open justice and freedom of expression require?. [44]
A failure to distinguish a victim from an offender?........................................ [46]
Was privacy undervalued?............................................................................. [48]
Is the 2002/2003 comparison seriously flawed?............................................ [56]Conclusion........................................................................................................... [57]
Result................................................................................................................... [59]Introduction
[1] Mr X is the alleged intended victim of a conspiracy to kidnap him. On 24 July 2002, soon after the arrest of three men on charges relating to the intended kidnapping, Hammond J in the High Court at Wellington made the following order under s140 of the Criminal Justice Act 1985:
Until the further order of this Court, there be no publication of the name, address, occupation or any particulars likely to lead to the identification of Mr X (and/or his family) in relation to whom charges of conspiracy to kidnap and attempted kidnap were laid against three men in the Upper Hutt District Court on 23 and 24 July 2002.
[2] Parallel orders were later made in the District Court covering the deposition stage.
[3] Section 140, under which the order was made, empowers a court exercising jurisdiction in a criminal case to prohibit the publication in a report of the case of the name of the person accused or convicted of the offence or any other person connected with the proceedings. It is common ground that Mr X is a person connected with the proceedings and that the Judge had power to make the order.
[4] Section 140 is to be seen in context. In brief, s138 empowers the Court to clear the Court and forbid the report of proceedings; s139 prohibits the publication of the names of complainants in specified sexual cases; and s139A prohibits the publication of the names of child witnesses. The provisions elaborate limits on the basic principle of open justice, especially in criminal cases, reflected at the beginning of that set of provisions in s138(1):
138 Power to clear Court and forbid report of proceedings
(1)Subject to the provisions of subsections (2) and (3) of this section and of any other enactment, every sitting of any court dealing with any proceedings in respect of an offence shall be open to the public.
[5] The principle is long and well established, as Joseph Jaconelli valuably demonstrates in his Open Justice : a critique of the public trial (2002). He discusses the important reasons and values supporting the principle. They include the discipline placed by publicity on the participants in the justice process, including the judges, counsel and witnesses and particularly the accuser in criminal trials; the possibility that further witnesses will come forward; the facilitating of the attendance of the public with advantages in terms of observing the law being properly applied and administered, their legitimate interest in seeing charges of alleged offences against the whole community being authoritatively determined, and the deterrent thrust of the criminal law; and more broadly in the words of Lord Atkinson in the leading case of Scott v Scott [1913] AC 417, 463, that, although the hearing of a case in public may be and often is painful and humiliating, “all this is tolerated and endured, because it is felt that in public trial is to be found, on the whole, the best security for the pure, impartial and efficient administration of justice, the best means for winning for it public confidence and respect”. The principle is of course not absolute, as the introductory words to s138(1) indicate. Some of the limits provided for in s138(2) are mentioned later in these reasons.
[6] Later on 24 July, the day the initial order was made, Wellington Newspapers Limited applied to set aside the order and, after argument on 25 July, by counsel for the prosecution, Mr X, Wellington Newspapers and also Television New Zealand, Hammond J on 26 July dismissed the application (Re X [2002] NZAR 938). The accused took no part in that hearing, nor in the later stages, including the current appeal. We were told that their position is neutral.
[7] On 2 May 2003, a few days into the jury trial of two of the original three defendants, Hammond J issued a minute relating to the suppression order, in which he said this:
[5] The principal question which troubles me is whether it could properly be said that there has been a change of circumstances since my judgment of July 2002. I take it to be the principle (although again this may be a matter for submissions) that where there is a subsisting order for suppression, it should remain in place for no longer than, and to no greater extent than, is appropriate in the particular case.
[8] He recorded that at least two things may have changed since July 2002 – the stress levels at that time for Mr X’s family and particularly with respect to Mrs X; and the fact that Mr X would be giving evidence, contrary to what was understood at the earlier stage. He accordingly directed that the matter of the suppression order should be listed before him again. He also mentioned the Victims’ Rights Act 2002, enacted since the earlier judgment.
[9] Mr Farmer QC, counsel for Mr X, did not seek to make anything of the fact that the Judge and not, for instance, the press had initiated the process. The point was made from the bench that Judges do have a responsibility to protect the principle of open justice in the courts in which they preside.
[10] Following argument on 14 May, the Judge on 19 May
set aside the suppression orders made in this case with respect to the victim and his family (but not his children who are not to be named, nor are their schools or where they live to be mentioned).
[11] The order was to lie in Court until 5pm on the following day, 20 May. If no appeal to this Court had been filed by then the order would take effect. If an appeal was filed, the suppression order would remain in force until further order of this Court. The appeal was filed on 20 May and, following a request for urgency, was heard on Friday 23 May.
[12] On Monday 26 May this Court gave judgment. It held that it did not have jurisdiction to decide the appeal. It would in any event have dismissed the appeal. That judgment was to lie in Court until 2.15pm the following day with the consequence that Hammond J’s order would enure until then. Reasons would be given shortly. These are those reasons.
Jurisdiction
[13] Because the High Court made its order in the course of trial, jurisdiction for this Court to entertain an appeal cannot be found in the Crimes Act 1961, which is concerned with pretrial and post-trial appeals. The general undesirability of immediate appeal against any order made in the course of trial needs no elaboration. The appellant contended that this Court has jurisdiction under s66 of the Judicature Act 1908. Alternatively he invited us to rehear the matter under s140 of the Criminal Justice Act as High Court Judges in terms of s57(4) of the Judicature Act.
As High Court Judges?
[14] That second course was not available to us. We begin with the principle that once a final order has been made by a High Court Judge another (or indeed the same) High Court Judge cannot in general rehear or review the order in the absence of legislative provision to that effect. The order made on 19 May 2003 is a final order. Nor would it theoretically be amenable to recall because it has been sealed.
[15] By contrast, the order originally made on 24 July 2002 and confirmed two days later was not final. It was expressed to be a suppression order “until the further order of this Court” (para [1] above). It also provided that:
(3) Leave is reserved to any person who considers that he or she or it, has an appropriate interest, to move to set aside this suppression order. This is to preserve the right of the media, if it considers this to be an appropriate case, to have the orders I have made set aside. In the event that that step was taken, a formal application would have to be filed and the mater would then be subject to argument in the usual way. Both the Crown and Mr Miller [counsel for Mr X] will have standing in that respect, as would any media interest.
[16] The press applied in terms of that leave on the day of the initial order, and was heard in terms of it in the current phase. Had the suppression order under s140 not been qualified it would have been final because subsection (2) provides that:
Any such order may be made to have effect only for a limited period, whether fixed in the order or to terminate in accordance with the order; or if it is not so made, it shall have effect permanently.
[17] While that finality provision indicates the need for care by Judges exercising the s140 power early in a criminal process, the Crown may with leave appeal against a final suppression order made under that section after a conviction in a jury trial: R v Liddell [1995] 1 NZLR 538, 544 (CA); see also s28E of the District Courts Act 1947 and s115C of the Summary Proceedings Act 1957.
[18] Subsection (4) also contemplates the possibility of further orders in respect of orders which are not final:
The making under this section of an order having effect only for a limited period shall not prevent any court from making under this section any further order having effect either for a limited period or permanently
The decision under challenge here was, however, final: under it, Mr X’s name may now be published.
[19] In support of the argument that we could deal with this matter as High Court Judges under s57(4), Mr Farmer referred us to Broadcasting Corporation of New Zealand v Attorney-General [1982] 1 NZLR 120. In that case Judges of this Court did review and rescind a decision of the High Court, in sentencing an offender, to sit in camera and prohibit publication of all information except for the fact that a man had been sentenced. An application made by the Broadcasting Corporation and New Zealand Newspapers Limited to the Supreme Court for an order varying or rescinding the order was removed into the Court of Appeal under s64 of the Judicature Act. The Court proceeded on the basis, however, that when the High Court had made an order under statutory or inherent powers to forbid the publication of evidence, that Court had the power to discharge or vary the order. Members of the Court of Appeal could sit as, or exercise powers of, Judges of the High Court under s57(4) ([1982] 1 NZLR at 127; see also Re Wellington Newspapers Ltd’s Application [1982] 1 NZLR 118). The order in the High Court must be presumed to have had an interim quality, or else the decision taken by the members of this Court must be explicable as a providential response to an extraordinary decision.
[20] That matter is now the subject of a specific provision in s138(4)(c) (see also R v Burns (Travis) [2002] 1 NZLR 387, 409 para [27] (CA)). It empowers a court which has made an order under that section forbidding the publication of a report of evidence, submissions and the names of witnesses to review those prohibitions. (Section 138(5) also superseded any inherent powers a court may have had to clear the court and forbid the reporting of proceedings, a matter on which the Court had divided in the Broadcasting Corporation case and Taylor v Attorney-General [1975] 2 NZLR 675.)
[21] By contrast, s140 confers no power on the High Court to “rehear” or review a final decision to set aside a suppression order. Once that order is set aside, there is no power in that Court to revive it by a rehearing or other process. There is in s140 no equivalent to the power conferred by s138(4)(c) in respect of an ongoing prohibitory order made under that section (a power denied in s140(2)). That setting aside decision of the High Court, in accordance with the principle stated at the outset of this part of these reasons, is final. As High Court Judges, we have no power to review the decision or rehear the matter. The decision stands unless it may be set aside on appeal. Can it be? We now turn to that question on the established basis that appeal is a creature of statute.
On appeal under s66 of the Judicature Act?
[22] The appellant accepts that the appeal does not fall within the appeal provisions in the Crimes Act ss379A and 383: the former confers a right to a pretrial appeal (by leave) by the prosecutor and defence on specified matters and the latter a right to appeal after conviction by the person convicted. Rather, the appellant said the appeal comes within the capacious terms of s66 of the Judicature Act 1908:
66 Court may hear appeals from judgments and orders of the High Court
The Court of Appeal shall have jurisdiction and power to hear and determine appeals from any judgment, decree, or order save as hereinafter mentioned, of the High Court, subject to the provisions of this Act and to such rules and orders for regulating the terms and conditions on which such appeals shall be allowed as may be made pursuant to this Act.
[23] The proposed appeal, the argument runs, is from an “order … of the High Court”. The saving “as hereinafter mentioned” presents no difficulty since its immediate reference is to the requirement in s67 that High Court determinations on appeal from an inferior court may be appealed to the Court of Appeal only with leave. Is it not clear beyond doubt that the present “order … of the High Court” can be appealed under s66?
[24] Notwithstanding that apparent clarity, for at least a century the Courts have held that s66 does not apply to criminal matters. That conclusion is drawn from the structure of relevant sections of the Judicature Act, particularly those relating to criminal matters, from their history, from the context those sections provide and from the context provided by the provisions of criminal appeal sections in other Acts (including Part IV (particularly s115C) of the Summary Proceedings Act and s28E(2B) of the District Courts Act which may allow appeals during a jury trial; if so that is anomalous); see Ex Parte Bouvy (No 3) (1900) 18 NZLR 608 (CA) (habeas corpus), R v Clarke [1985] 2 NZLR 212 (CA) (and the cases referred to there at 213) (bail) and R v B [1995] 2 NZLR 172, 179 and 181 (pretrial issue).
[25] Since the enactment of the New Zealand Bill of Rights Act 1990 with its guarantee of the availability of habeas corpus, the question has arisen whether appeal rights in habeas corpus cases might now be seen differently (Flickinger v Crown Colony of Hong Kong [1991] 1 NZLR 439, 440-441). That question is now hypothetical since the legislature had answered it by conferring rights of appeal, as also in respect of bail, as indeed suggested by this court. No provision of the Bill of Rights was referred to as being relevant to the existence of a right of appeal in this case.
[26] That long established line of authority, supported by the distinct, detailed and incremental conferral of appeal rights in respect of criminal proceedings makes it impossible for criminal appeals to fall in any general sense within s66. But does the present appeal, with its particular features, nonetheless come within its scope? Those particular features are that the parties to the underlying criminal proceeding, are not primary parties or even parties at all to the current matter; the primary parties are the media and Mr X, a “person connected with the proceedings”; Hammond J said that it was common ground that Mr X, as a “person connected with the proceedings had standing to make a suppression application”; the order challenged is final; it cannot be challenged under any of the appeal provisions in the criminal legislation; had the order been made in a District Court judicial review and associated rights of appeal would have been available to Mr X and indeed to the media in appropriate cases (eg Lewis v Wilson & Horton Ltd [2000] 3 NZLR 546, 559); and in terms of the leave reserved in the initial suppression orders the media had a continuing opportunity, not exhausted by failure on any earlier occasion to seek the cancellation or variation of the order, meaning that there is a lack of symmetry in the positions of the parties before us.
[27] Do those particular features, particularly the first, second and third, mean that this appeal may fall within s66 as an order relating to criminal proceedings rather than an order in criminal proceedings, a possible distinction mentioned but not considered in R v B [1995] 2 NZLR at 182?
[28] We do not think so, for several related reasons. So long as this Court has existed, its jurisdiction in civil and criminal matters has been the subject of distinct regulation, as consistently recognised for over 100 years by decisions of this Court; see in particular the account of the legislation given by Cooke J in R v Clarke [1985] 2 NZLR at 214. To move to a second point, the appeal provisions in the criminal area have been detailed, particularly in the interlocutory context. They have increasingly conferred more extensive rights of appeal in respect of specified matters but often only with leave. Third, specific legislation has increasingly recognised the rights and interests of victims, complainants and others involved in criminal proceedings. They may have certain rights to participate (eg in sentencing and reparation processes as well as in the other ways indicated in the Victims’ Rights Act 2002 and other legislation). Those rights are however again conferred and recognised in specific terms which may indeed allow them to require that their name not be suppressed (Criminal Justice Act s139(1A) and (2A) enacted in 2002 by the Victims’ Rights Act). Some of those rights and interests are stated in absolute terms (“must”) while others, including the provision about respect for the dignity and privacy of victims (s7), are stated as principles with the propositions put in terms of “should”. The Act makes it explicit that the privacy provision does not confer any legal right that is enforceable (s10). That detailed and incremental regulation, like that considered under the previous point, appears to remove the possibility of this appeal falling within the general language of s66. So, too, does the final reason – the impracticability of a distinction in this context between an order relating to, and in, criminal proceedings. To return to the wording of s140 (and also of the associated ss138 and 139) the order was made by the court exercising jurisdiction in a criminal case and relating to a “report of any proceedings in respect of an offence”. The order could not have been made but for the bringing of the criminal proceeding. Does it not follow that it was made in those proceedings? We cannot in any event see that there is a meaningful difference in this context between an order relating to, or in, criminal proceedings.
[29] Further, the difference is not, to return to the first point, one that is recognised by the basic, long established distinction in legislation and in decisions of this Court between civil appeals and criminal appeals. Matters “relating to criminal proceedings” are not, in any general sense at least, civil appeals – the subject of s66. And, if this appeal were held to fall within s66, would not an appeal under that section relating to the same order by the Crown or the accused escape the careful temporal limit and leave requirement placed on such an appeal by s379A(1)(ba)? The undesirability of that result reinforces the strictness of the long established civil/criminal divide.
[30] It follows that we can see no basis for bringing this appeal within s66. The appeal must accordingly be dismissed for want of jurisdiction. Given the real importance of the issues to the parties and the extensive argument addressed to them we do however go on to consider the merits of the appeal.
The merits
[31] At the outset of his argument, Mr Farmer emphasised the contrast between the two judgments given by Hammond J. In the first, having taken full account of the relevant matters, the Judge came out firmly in favour of privacy, reaching the conclusion that this was “an unremarkable case for suppression to prevent harm to this particular victim and his family”. That conclusion was subject to the fact that an overseas website had published information about the alleged victim, but that publication did not “deflect the existing order”. In the second, according to Mr Farmer, the Judge adopted a completely different view, because of three alleged changes of circumstance (also para [8] above). Mr Farmer contended that none of those changes justified the different result in the second decision.
[32] Our primary attention must of course be given to the second decision – that is the one under appeal. We recall what this Court said in R v Liddell [1995] 1 NZLR at 545 about an appeal against such a decision:
The reasons which moved the Judge have to be considered collectively. It has to be remembered also that he was exercising a discretionary jurisdiction. Although he took comfort in the knowledge that his decision could be reviewed on appeal, this Court does not disturb such decisions unless they are based on some wrong principle or otherwise shown sufficiently clearly to be wrong.
(The terms of, and addendum to, his judgment indicate that Hammond J thought that Mr X had a right of appeal, and in this part of the judgment we are proceeding on that assumption.)
[33] The appellant in his written and oral submission contended that the Judge had erred in principle and had reached a decision that was clearly wrong. The submissions tended to overlap. We consider in turn the submissions relating to:
• the starting point in name suppression cases
• the compromising of the administration of justice
• the onus of proof arising in this case
• what the public interest in open criminal justice and freedom of expression actually requires in this case
• the different positions of victims and offenders
• the privacy rights and interests of Mr X and his family
• the circumstances of Mr X and his family in 2002 and 2003
The starting point
[34] The starting point in the Judge’s statements of law in the two judgments under appeal helpfully highlight a significant issue. In the first he began this way:
[7] First, I note that the discretion given to this Court by that section is unfettered. The Court of Appeal has declined to lay down firm rules for the exercise of the discretion (see Lewis v Wilson & Horton [2000] 3 NZLR 546) but I accept that a Judge must act judicially in the exercise of that discretion. That is, the Judge must not act arbitrarily or according to his or her own lights, but must act in a principled way, in the context of the legislation and the particular application.
And in the second he began with “the essential principle”
[18] … that the principle of open justice dictates that there should be no restriction on publication of information about a case, “except in very special circumstances”.
[35] In the earlier judgment this “essential principle” appeared as the fourth of seven factors:
Fourthly, it is also common ground that, “the principle of open justice dictates that there should be no restriction on publication expect in very special circumstances”. (R v Durham, CA 38/97; 25 March 1997, CA).
[36] We consider that the later judgment provides the correct starting point : it is the principle of open justice, especially in criminal proceedings, emphasised at the outset of those reasons. That principle is supported in practice by the right to freedom of expression. This Court has consistently adopted that position both before and after the enactment of the Bill of Rights with its provision for public justice; eg Broadcasting Corporation case [1982] 1 NZLR at 122-123, 127-128 and 132, R v Liddell [1995] 1 NZLR at 546-547, Television New Zealand Ltd v R [1996] 3 NZLR 393, 394-395 and Lewis v Wilson & Horton Ltd [2000] 3 NZLR 546 paras [1], [41] and [43].
[37] Are there then “compelling reasons” or “very special circumstances” justifying departure from the open justice principle? Or, more accurately, has Hammond J proceeded on the basis of a wrong principle or has he been shown to be clearly wrong in the conclusions he reached? We turn to the appellant’s submissions in support of affirmative answers to that question.
Will the administration of justice be compromised?
[38] The appellant submitted that the Judge has not identified the ways in which the “open administration of justice” would be compromised. The Judge does suggest – contrary to the position of the prosecution – that knowledge of Mr X’s name might produce further evidence. While we are not persuaded by that suggestion, we do not see it as of any significance in the result.
[39] Similarly, we do not consider that the rather general evidence submitted by Mr X about the possible impact of the naming of kidnapping victims on their willingness to come forward has significance in this case. It does not arise from the particular facts. Further, if there is a general problem that is not supported by the affidavits and it might in any event be better addressed by the legislature. It is the case for instance that s138(2) expressly refers to victims of extortion, although even that is not a mandatory provision.
[40] The submission about “the administration of justice” confuses two different matters. One is the open justice principle. The second is that the administration of justice should not be compromised in the particular case. This case is about the first matter and whether compelling reasons exist to limit it. The second is generally relevant as a justification not for openness but for the making of suppression orders of one kind or another, for instance to protect alleged victims of extortion (as in R v Socialist Worker Printers and Publishers Ltdex parte Attorney-General [1975] QB 637 (QBD)) or members of the Security Intelligence Service (as in Taylor v Attorney-General [1975] 2 NZLR 675 (CA)). That justification also appears in a more general form in s138(2) of the Criminal Justice Act : if “the interests of justice … so require” the Court may forbid the publication of evidence, submissions or the name of a witness.
[41] These issues do not arise on the facts of this case. We accordingly do not see any error under this head in the Judge’s approach to the basic principle of open justice and the limits on it.
An error in respect of onus?
[42] The formulations in s138(1) and (2) also bear on the appellant’s contention that “the Court erroneously held that the onus is on the party seeking to continue the suppression order”. What the Judge said was this:
[47] I have approached this matter on the footing that the Court must be satisfied that there is a proper case for the suppression order to remain in force, at least where there is a review initiated by the Court itself. I do not have to determine, and do not do so, what the position would be if one or the other party had moved (for instance) to set the suppression order aside. To put this another way, I have approached the present matter on the footing that I should review afresh, in light of all that is now known about this case, whether it is appropriate to continue the suppression order.
[48] I take the view that it is not now appropriate to continue the order. The private and undoubtedly important interests of the victim cannot be said to outweigh the fundamental principles of open justice and freedom of expression, to which I have referred.
[43] As indicated later (para [50]) he then enlarged on his reasons for that conclusion. We see no error in that approach which does not use, expressly at least, the concept of onus. The Judge essentially restates the question which he set at the outset – are there very special circumstances or compelling reasons (notably privacy) justifying departure from the open justice principle - and answers it.
What do the principles of open justice and freedom of expression require?
[44] Two of the submissions about alleged errors of approach by the Judge can be taken together. They are related to matters already considered. They are that
it is necessary to consider closely what the public interest in disclosure actually requires; suppressing the name of the victim does not limit the principles of free expression and an open system of justice
and that
the Judge misdirected himself in holding that the public interest in freedom of expression requires the publication of details identifying Mr X.
[45] Those submissions confuse reasons underlying and justifying the two principles and arguments about the application of the principles in a particular case. The open justice principle is established. It is to be applied in this particular case, as in all criminal cases, unless a compelling reason or special circumstances exist. It is for those opposing the application of the principle to establish that reason or circumstance. There is no error in this respect.
A failure to distinguish a victim from an offender?
[46] The appellant submitted that the Judge failed adequately to distinguish the position of a victim from that of a convicted offender. Undoubtedly their positions are to be distinguished and are in fact distinguished in law and practice. The submission does not identify any particular passage in the judgment as offending in that respect. And the submission must fall in the face of the fact that the judgment gives extensive consideration to the distinct position of victims. In stating the basic principles of law which he was to apply the Judge early included the proposition that
it was also common ground that the interests of a victim must be considered. Indeed that was precisely the point made by this Court in the July 2002 judgment, by reference to certain provisions in our law as they then stood.
[47] The judgment considers the new Victims’ Rights Act in some detail. It will also be recalled that not only was the first judgment based on privacy and related harm interests but that in his Minute of 2 May 2003 initiating the process the Judge identified one privacy matter and mentioned the new Act.
Was privacy undervalued?
[48] The real complaint under this head is about the weight the Judge gives to the privacy considerations and his related factual assessment. As already indicated, such matters are difficult to question by way of appeal. The submission does attempt to meet that difficulty by addressing aspects of the law of privacy, referring to cases of intrusive and sometimes unlawful invasions of privacy and the developing tort of privacy in various jurisdictions. Those cases and developments are not relevant in any direct way to the operation of the principle of public criminal justice. We are not of course concerned here with a clash simply between freedom of expression and privacy as in a number of the cases to which we were referred where “the right to be let alone” may have a much greater role to play. Here we are concerned with the stronger principle of open justice, especially in criminal proceedings.
[49] The appellant also submitted that the Judge misdirected himself in holding that the freedom of expression and, implicitly, open justice require publication; the principles are not however absolute. Again, that misrepresents the judgment. The Judge does consider the strength of the privacy considerations and weighs them against the starting point of open justice. The judgment does recognise that that starting point can be outweighed by privacy interests.
[50] The privacy argument in the end is that the Judge “failed to adequately exercise his discretion under s140 … to give adequate weight to the privacy interests of the victim as recognised by Parliament in s7 of the Victims’ Rights Act 2002, and to the interests of the family … . The Judge did not protect the victim and family to the extent that he was able.” As the emphasised words and phrases indicate, this submission faces the real difficulties arising in appellant challenges to the exercise of discretion. The Judge having summarised considerations in favour of setting aside the suppression order said this about “considerations in favour of the victim(s)”:
[43] I emphasise that there was no challenge to the material contained in the affidavits before the court (save that Mr Akel [counsel for TVNZ] said that, to an extent, the affidavits “speculated” about what would happen if the suppression order was set aside).
[44] Secondly, and more importantly, I accept that all of the potential areas of impact identified in the affidavits – the impact on the victim’s daily life, on Mr X’s business interests, and of most concern of all, on the children – are relevant, and troublesome areas of concern. There has to be great respect for the fact that the victim and his family are not persons who have courted publicity or made themselves public figures, let alone are they persons in the public eye for whom any publicity is better than no publicity. Again, I emphasise that the victim and his family are in no way blameworthy for this happenstance.
[51] The Judge had earlier set out in detail the situation of the victim and his family. At the end of that section of the judgment he said this:
[16] No Court could fail to be concerned and moved by the situation in which Mr X and his family thus find themselves. Nevertheless there devolves upon this court the heavy burden of determining, in an even handed manner, where the balance between public and private interest rests in the circumstances of this particular case.
[52] He then discussed the law and the competing considerations in favour of openness and the victims (just mentioned) and certain practicalities about the earlier website article and the trial process. The conclusion (set out in para [42] above) followed and the Judge then enlarged on his reasoning that Mr X’s undoubted privacy interest was to be subordinated to something which may to Mr X seem more intangibly remote. Although the passage is lengthy, we set it out to indicate the assessment which the Judge made:
[50] I am content for present purposes to definite privacy as the condition of being protected from unwanted access by others – whether it be physical access, personal information, or attention. At the end of the day, claims to privacy are claims to control access to what one takes to be one’s own personal domain. Increasingly, such a right has come to be seen as essential to individuals if they are to be respected as human beings and allowed to lead the kinds of meaningful lives that our social order is supposed to support, indeed cherish. These are essentially Kantian considerations – that is a philosophy which turns on the notion that we must take this right seriously in order to take people seriously as people. Privacy is thus what I would term a “respect based “ right, or interest.
[51] Then there are other kinds of rights which go to the existence of New Zealand society as a system of ordered liberty. Two of those rights are freedom of speech and open trials, and these are general and fundamental rights based on “deep” social policy and political considerations. To put it shortly, they go to the very existence and health of our political and legal institutions.
[52] The media, as such, have no “right to know” anything, any such argument must be dismissed on a number of grounds and is simply “nonsense on stilts” to borrow a phrase from Bentham. The media is simply the beneficiary of the more fundamental rights to which I have referred, and which exist precisely because they increase the probability that individual rights of the Kantian sort will be respected.
[53] An informed citizenry is critically important to the just institutions of a democracy such as we have in New Zealand. Generally speaking therefore, any inroad into the “openness” principle will turn on necessary restraints to protect those underlying fundamental rights themselves.
[54] What is therefore advanced for Mr X is legitimate, and of real concern, but it is, in the simplest terms, “not sufficient” to set Mr X outside the usual principles which obtain at trial. And the practical considerations to which I have also adverted are against continued suppression.
[53] In that passage and earlier in the judgment (paras [50] and [51] above), the Judge has given careful and close attention to the factors bearing on the exercise of the power conferred by s140. He did in particular consider the principle stated in s7 of the Victims’ Rights Act 2002 that judicial officers, among others, should respect the victim’s dignity and privacy. That provision carried forward the wording of s3 of the Victims of Offences Act 1987, with the addition (in s10) that s7 does not confer a legal right that is enforceable. He said that he could see nothing in the 2002 statute “which displaces the fundamental formula” – a reference no doubt to the open justice principle. We agree with that conclusion which is supported by the fact that Parliament did address the matter of suppression of certain victims’ names in particular ways, in the direction as it happens of openness if they consent. The 2002 Act made no other changes to the Criminal Justice Act suggesting that the long established principle of criminal justice was displaced in the interests of victims.
[54] Before us, Mr Burston for the Crown, supporting Mr X’s appeal, also emphasised s16 of the 2002 Act which prevents the giving of information which identifies or may identify the victim’s address unless the judicial officer is satisfied that the information is directly relevant to the facts in issue and its evidential value outweighs any prejudice or harm to the victim. (That provision, incidentally, is one that does require a particular judgment that the interests of justice, as defined, justify disclosure.) Read very widely, s16 might mean that the names of victims who are listed in telephone books or electoral or other public registers must always be suppressed (but not if they are not so listed). But that cannot be so. Such a major change to one aspect of a fundamental principle would not be made by a side wind.
[55] We accordingly conclude that the Judge made no error of principle in relation to privacy nor is there anything approaching serious error in the result he reaches on that matter.
Is the 2002/2003 comparison seriously flawed?
[56] Is there however serious error in the Judge’s comparison between the situation of Mr X and his family in July 2002 and in May 2003? The situation had changed in various respects. The Judge sets out the relevant facts, he assesses them and he does give particular attention to the position of the children, notably in the form of the order he made (para [10] above). The position of Mrs X is now significantly different for the better in ways which the immediate parties appreciate, and the fact that Mr X is to give evidence also makes a significant difference: when the original order was made and confirmed it was not even clear that there would be a trial. The principle of open justice becomes the more important when it is clear that there will be. In the end the submission is that a different balance could and should have been struck. No error capable of correction on appeal has been shown in this respect.
Conclusion
[57] We accordingly conclude that we would have dismissed the appeal.
[58] We cannot fail to have some sense of the anguish which this result, like similar decisions, causes for Mr X and his family. Our reading of all the material before the Court makes that worry very clear. The record however would also have led us to the same conclusion as that reached by Hammond J.
Result
[59] It was for the above reasons that the appeal failed.
[60] As we announced on 26 May, the result of this decision, setting aside the suppression order, could be reported as from 2.15pm on 27 May.
[61] The affidavits in this proceeding and the confidential memorandum of 25 July 2002 of Mr X’s counsel are to be sealed and are not to be searched without the leave of the High Court.
Solicitors:
Chapman Tripp, Wellington for the Appellant
Simpson Grierson, Auckland for TVNZ Ltd
Izard Weston, Wellington for Wellington Newspapers Ltd
Luke, Cunningham, Clere, Wellington for the Attorney-General
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