W v The Queen - [2013] NZHC 489

PERMANENT ORDER MADE PROHIBITING PUBLICATION OF NAMES OR IDENTIFYING PARTICULARS OF APPELLANT PROHIBITED BY S
140 OF THE CRIMINAL JUSTICE ACT 1985

PERMANENT ORDER MADE PROHIBITING PUBLICATION OF THE NAME OF THE APPELLANT'S EMPLOYER, OCCUPATION AND THE INDUSTRY IN WHICH HE WORKS

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2013-404-000038 [2013] NZHC 489

BETWEEN W Appellant

ANDTHE QUEEN Respondent

Hearing: 12 March 2013

Counsel: D P H Jones QC for Appellant
J L S Shaw for Respondent

Judgment: 12 March 2013

Reasons: 14 March 2013

In accordance with r 11.5 I direct the Registrar to endorse this judgment with the delivery time of 12.30pm on the 14th day of March 2013.

REASONS FOR JUDGMENT OF COLLINS J

Introduction

[1] W appeals a decision of Judge Mathers delivered on 30 January 2013 in which she declined W’s application for orders permanently suppressing publication
of his name.

W V R HC AK CRI-2013-404-000038 [12 March 2013]

[2] The Crown does not oppose W’s appeal. APN New Zealand Ltd (APN), the publisher of the New Zealand Herald, opposed W’s name being suppressed in all the name suppression hearings conducted in the District Court. APN no longer opposes W’s appeal and has asked that I record that APN did not wish to be heard in relation to W’s appeal.

[3] W’s appeal was heard by me on 12 March 2013. At the end of the hearing I ordered that W’s name be permanently suppressed and that nothing be published which could identify him. I now explain my reasons for that order.

Background

[4] In August 2011 W was charged with: (1) Four counts of sexual violation;
(2) Two counts of indecent assault; and

(3) Two counts of male assaults female.

[5] When W first appeared in Court he was granted interim name suppression. That order was made by consent.

[6] In a decision dated 20 July 2012, Judge Ryan ruled that the name of W’s employer be suppressed but that the interim order suppressing publication of W’s name would lapse at the commencement of his trial on 16 October 2012.

[7] On 16 October 2012 Judge Mathers, the trial Judge, continued the interim order suppressing publication of W’s name because Mr Jones QC, counsel for W, had only recently received Judge Ryan’s decision and did not have sufficient time to appeal it.

[8] W was acquitted of all charges at his trial in October 2012.

Judge Mathers’ decision

[9] In her judgment Judge Mathers:

(1) explained the background to W’s trial;

(2)explained that W’s employer was supportive of W throughout the trial process but was concerned it would suffer reputational damage if W’s name was published;

(3)recorded that W was very concerned that he would be dismissed from his employment if his name were published;

(4) decided that it was in the interests of justice to continue to suppress

publication of the name of W’s employer; and

(5) concluded that it was not necessary to suppress publication of W’s

name in order…

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 The Queen

Details

AGLC: W v The Queen [2013] NZHC 489
Case: [2013] NZHC 489
Decision Date: 12 March 2013

CaseChat Overview and Summary

In the High Court of New Zealand, W appealed a decision made by Judge Mathers on 30 January 2013, which declined W's application for orders permanently suppressing publication of his name. The Crown did not oppose W's appeal, and APN New Zealand Ltd, which initially opposed the suppression, also did not wish to be heard on the appeal. W sought a permanent order suppressing publication of his name, while the Crown did not oppose this appeal. APN New Zealand Ltd, the publisher of the New Zealand Herald, had previously opposed W’s name being suppressed but withdrew its opposition during the appeal.

The court had to decide whether Judge Mathers erred in declining W's application for permanent name suppression, considering W's acquittal and the suppression of his employer's name and occupation. The legal principles governing name suppression applications under the Criminal Justice Act 1985 emphasize the importance of open judicial proceedings, freedom of speech, and the right of the media to report fairly. Factors considered in such applications include the seriousness of the offence, the impact on the applicant's rehabilitation, and the public interest in knowing the identity of persons involved in public interest offences. The court had to weigh these factors against the presumption in favour of open judicial proceedings.

The court allowed W's appeal and ordered permanent suppression of his name. The reasons for this decision included the unfairness to others sharing W's common name, the inconsistency with the suppression of his employer's details, and the lack of legitimate public interest in knowing W's identity given his acquittal of serious offences. The court concluded that W's personal interests in avoiding stigma and protecting his reputation outweighed any public interest in knowing his identity. The orders suppressing the name and identity of W's employer, occupation, and industry remained in force.

Orders