W v POLICE - [2019] NZHC 1165

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.…

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 W v POLICE

Details

AGLC: W v POLICE [2019] NZHC 1165
Case: [2019] NZHC 1165
Decision Date: 27 May 2019

CaseChat Overview and Summary

W was convicted in the District Court of breaching a protection order and was discharged. W appealed against the District Court's refusal to grant her a discharge without conviction. The appeal was successful, and W now seeks permanent name suppression. The application is opposed by the Police. The statutory test for name suppression requires that the court consider whether any of the threshold grounds listed in s 200(2) of the Criminal Procedure Act 2011 has been established before it can go on to the second stage of weighing the competing interests of the applicant and the public. W submitted that publication would be likely to cause her extreme hardship or lead to the identification of her daughter whose name is suppressed. The court found that W's fragile mental health met the threshold requirement of extreme hardship. The court also found that the application under s 200(2)(f) was not made out as protection order proceedings in the Family Court do not have the protection of s 11B of the Family Court Act if they are criminal proceedings. However, the Family Court context was a relevant consideration when assessing the competing considerations at the second stage. The court considered the public interest in open justice was outweighed by the extreme hardship to W if her name was published. The appeal was allowed and W was granted permanent name suppression.

The court found that the public interest in open justice was outweighed by the extreme hardship to W if her name was published. The judgment on W's discharge and conviction will accordingly be re-issued in an anonymised form.

Orders