W v POLICE
[2019] NZHC 1165
•27 May 2019
IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY
I TE KŌTI MATUA O AOTEAROA TE PAPAIOEA ROHE
CRI 2018-454-20
[2019] NZHC 1165
BETWEEN W
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 29 April 2019 via AVL Counsel:
S W O Campbell for Appellant K T van der Plas for Respondent
Judgment:
27 May 2019
JUDGMENT OF MALLON J
Introduction
[1] W was charged with breaching a protection order. In the District Court W was refused a discharge without conviction. She was instead convicted and discharged.1 W successfully appealed to the High Court against the refusal to grant her a discharge without conviction.2 W now applies for permanent name suppression. This application is opposed by the respondent.
[2] The catalyst for the name suppression application was the realisation that High Court judgments are published on Judicial Decisions Online (JDO) as a matter of course. This is a publicly accessible database. W became aware of this after my judgment granting her a discharge without conviction. Prior to this, no application for
1 Police v W [2018] NZDC 20348.
2 W v Police [2019] NZHC 534.
W v POLICE [2019] NZHC 1165 [27 May 2019]
name suppression or suppression of any personal matters had been sought in the District or High Court proceedings.
[3] The application is made on the basis that publication of the judgment on publicly available databases will cause extreme hardship to W and her daughter, or will endanger the safety of W, or will lead to the identification of persons whose names are suppressed (her former partner and her daughter).3
The statutory test
[4] Applications for name suppression of a defendant are governed by s 200 of the Criminal Procedure Act 2011. It provides:
Suppression of names
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; or
(f)lead to the identification of another person whose name is suppressed by order or by law; or
…
(6) When determining whether to make an order or further order under subsection (1) that is to have effect permanently, a court must take into account any views of a victim of the offence conveyed in accordance with section 28 of the Victims’ Rights Act 2002.
[5] The approach required by this provision was summarised by the Court of Appeal in Robertson v Police as follows:4
3 Criminal Procedure Act 2011, ss 200(2)(a), (e) and (f).
4 Robertson v Police [2015] NZCA 7.
[39]As already noted by this Court in Fagan v Serious Fraud Office, the section contemplates a two stage analysis. Stage one is a threshold determination. Stage two is a discretionary assessment.
[40]At the first stage, the judge must consider whether he or she is satisfied that any of the threshold grounds listed in 200(2) has been established. That is to say, whether publication would be likely to lead to one of the outcomes listed in subs (2). 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 is able to go on to the second stage.
[41]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.
Extreme hardship
[6] On the “extreme hardship” ground, the Court of Appeal in Robertson said that a very high level of hardship needs to exist before the threshold requirement of “extreme hardship” is met. Hardship on its own means “severe suffering or privation”.
Extreme indicates that something more is needed.5
[7] As to whether the context is relevant to whether this threshold is met, the authors of Adams state:6
Decisions on whether the very stringent standard of extreme hardship is met will depend on an objective assessment of the circumstances of the offence (including its seriousness) and of the defendant in each case.
[8] This view is supported by the Law Commission’s views whose proposals ultimately led to the s 200 test. In the Law Commission’s Issues Paper, it discussed whether the test should require hardship, undue hardship or extreme hardship. As to the last of these, it said:7
The extreme hardship threshold requires a very high level of hardship. The courts have indicated that the determination of what amounts to “extreme hardship” must be made in a common-sense way, and in relation to the facts of a particular case. It is an objective test, not based on how the particular offender may perceive the extent of the hardship. To amount to extreme
5 At [48].
6 Simon France (ed) Adams on Criminal Law – Criminal Procedure (online looseleaf ed, Thomson Reuters) at [CPA200.02(1)].
7 Law Commission Suppressing Names and Evidence (NZLC IP13, 2008) at [3.33].
hardship, the hardship must be such that in the particular circumstances it is excessive, even when viewed in relation to the context of the concerns underlying the legislation (such as preventing repeat offenders having access to vehicles, and preventing accidents and injuries on the roads).
[9] Similarly, in its later report it said that “extreme hardship has been described as hardship that is excessive in the particular circumstances of the case …”.8 The Law Commission’s description of extreme hardship as circumstances dependant was relied on in R v Wilson in deciding whether name suppression should be granted for a woman convicted of blackmail which she accepted had been a contributing factor to the victim’s suicide.9 The Judge found that extreme hardship was not made out:10
I am nevertheless obliged to apply the threshold test of “extreme” hardship, and I am unable to say that the consequences for Ms Wilson qualify. While there is likely to be a period of public opprobrium and consequential hardship to Ms Wilson, the scale of effect is not so severe or disproportionate to the insidious nature of the blackmail offending to be said to be extreme. I distinguish this from the case of R v UGT where the offending occurred in the most tragic of circumstances and the manslaughter of a close friend. In that case, the impact on UGT of publication would have been in my assessment extreme and utterly disproportionate to his culpability.
[10]To arguably contrary effect is Allied Press Ltd v Police where it was said:11
[34] Unlike the test for discharge without conviction, the test for suppression does not turn on whether adverse effects outweigh the gravity of the offending. The gravity of the offending does not come into the first stage of the suppression test … .
[35] … The severity or otherwise of the offending and the public interest in details of this being published may be relevant to the exercise of discretion in the second stage of the suppression test, but they are irrelevant to whether ‘extreme hardship’ or one of the other grounds is made out.
[11] However, these comments were in the context of a case where a Judge had granted name suppression simply because he had granted a discharge without conviction. The High Court’s essential point was name suppression and discharge without conviction are different decisions, each with their own test. The low gravity of offending may well be relevant to name suppression, but one did not follow from the other. It was first necessary to establish one of the threshold requirements in
8 Law Commission Suppressing Names and Evidence (NZLC R109, 2009) at [3.38].
9 R v Wilson [2014] NZHC 32 at [24].
10 At [43].
11 Allied Press Ltd v Police [2017] NZHC 2772, [2017] NZAR 1655 at [35].
s 200(2) for name suppression and then weigh the competing considerations at the second stage.
[12] In this case, as the judgment granting her a discharge without conviction sets out, W has a borderline personality disorder which at times causes her to become very unwell. At times she struggles from anxiety and stress. Her medical records include details of incidents when she has been particularly under distress. The charge brought against her and subsequent conviction exacerbated this and was quite a step back for her mentally. She deposes that receiving the discharge without conviction was a big boost for her but she still struggles to manage her depression and anxiety for which she is currently on medication. Learning that the judgment would be published on a publicly available database was like learning she was convicted. She has provided a letter from her doctor which confirms W’s anxiety and depression and borderline personality disorder. Her doctor feels strongly that publishing W’s name “would adversely affect her mental health”.
[13] In the context of offending that I regarded as “at the very lowest end”, I am satisfied that the adverse consequences for W’s at times very fragile mental health, if her name is published in my publicly available judgment, constitutes extreme hardship.
Identifying a person whose name is suppressed
[14] The name suppression application also relied on s 200(2)(f). This issue arises because W was convicted of breaching a protection order in the context of concerns over contact with her child.
[15] Section 11B of the Family Court Act 1980 provides that, without the leave of the Court, no person may publish a report of Family Court proceedings that includes identifying information of a vulnerable person or a person under the age of 18 where they were a party to the proceedings or the subject of them. Protection orders are obtained under the Domestic Violence Act 1995. That Act also makes it an offence to breach a protection order. Section 125 of that Act provides that ss 11B-11D of the Family Court Act applies “to the publication of a report of any proceedings under this Act (other than criminal proceedings) in the Family Court …”.
[16] Ellis v R concerned an appeal against a refusal to grant name suppression to an appellant who had pleaded guilty to breaching a protection order.12 The appellant contended the Judge had failed to properly consider the interplay between family and criminal law in refusing name suppression. The High Court Judge said:13
In my view the specific exclusion of criminal proceedings from the prohibition of publication in s 125 and the specific nature of the protection afforded by the other Acts referred to by Mr Bailey preclude the existence of any principle that the domestic protection aspect of the proceedings is a factor which requires specific consideration in matters of this nature. Of course, the effect on innocent children and other innocent parties of the publication of an offender’s name will always be relevant to an application for name suppression, and it is clear that the District Court Judge did consider the possible effect on the children in this case. …
[17] Counsel for W submits this statement goes too far in dismissing any consideration of the restrictions on publication that Family Court usually affords. He also submits that Ellis is distinguishable because it pre-dates s 200(2)(f) of the Criminal Procedure Act.
[18] In my view the effect of s 125 of the Domestic Violence Act is that protection order proceedings in the Family Court under the Domestic Violence Act have the protection of s 11B of the Family Court Act. They do not have this protection if the proceedings under the Domestic Violence Act are criminal proceeding. Name suppression for the defendant and others involved in the criminal proceeding is determined by the Criminal Procedure Act provisions. I therefore consider s 200(2)(f) is not made out. That said, I agree with W’s counsel that the Family Court context is a relevant consideration when assessing the competing considerations at the second stage.
Other grounds
[19] W raised other grounds on which it was submitted s 200(2)(a) or (e) were met. They were not her strongest grounds and it is unnecessary that I consider them further given my conclusion that she has made out s 200(2)(a) because of her own fragile mental health.
12 Ellis v R HC Whangarei AP39/37, 24 October 1997.
13 At 4.
Weighing of considerations
[20] It is therefore necessary to weigh the competing interests of W and the public. Open justice is always a powerful consideration. However this is not a case where it is in the public interest for members of the public to be aware of W’s identity. The offending was minor and occurred in the context of a domestic relationship that was at an end.
[21] I acknowledge that name suppression has been sought late, and W’s name has already been published in some forums as a result. However, any such publication appears to have been limited. W’s concern is the effectively permanent nature of the publication of her name and the widespread access that will be available to it, if the judgment is publicly available. An order granting her name suppression will therefore have value despite it having been sought late.
[22] I consider that the public interest in open justice is outweighed by the extreme hardship to W if her name is published. Open justice considerations are sufficiently met by publishing the judgment without identifying her.
Result
[23] The appeal is allowed. W is granted permanent name suppression. The judgment on W’s discharge and conviction will accordingly be re-issued in an anonymised form.
Mallon J
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