Walker v Police

[2019] NZHC 1600

IN THE HIGH COURT OF NEW ZEALAND BLENHEIM REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WAIHARAKEKE ROHE

CRI-2019-406-11

[2019] NZHC 1600

BETWEEN

LOUISE PATRICIA WALKER

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	10 July 2019
Appearances:	R A Harrison for Appellant S J Revell for Respondent
Judgment:	10 July 2019

JUDGMENT OF COOKE J

[1]    On 17 June 2019 the appellant was sentenced on a charge of supplying a Class A controlled drug, namely methamphetamine after entry of a guilty plea.1 The charge was a representative charge with the offending occurring between 1 October 2017 and 12 July 2018. Judge Russell sentenced the appellant to six months’ home detention and 150 hours community work.

[2]    Ms Walker had also made an application for name suppression under s 200 of the Criminal Procedure Act 2010. The Judge dealt with that application in the following terms:

[33]      Finally, I need to address the issue of the final order for the suppression of your name. The provisions of s 200 Criminal Procedure Act 2011 apply and this means I can only make an order if I am satisfied that publication of your name would cause extreme hardship to you.

1      New Zealand Police v Walker [2019] NZDC 11541.

WALKER v NEW ZEALAND POLICE [2019] NZHC 1600 [10 July 2019]

[34]      I have considered all of the factors which I have mentioned in these sentencing remarks. While I accept there will be consequences for you if your name is published which will have an impact on you, I cannot conclude the impact of name publication reaches the threshold of there being extreme hardship being caused to you. So the application to finally suppress your name is consequently refused.

[3]    Ms Walker now appeals from the decision to decline name suppression. Interim name suppression has been continued in the meantime.

Statutory provisions

[4]Section 200 of the Criminal Procedure Act 2010 provides:

200 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

(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.

(3)The fact that a defendant is well known does not, of itself, mean that publication of his or her name will result in extreme hardship for the purposes of subsection (2)(a).

(4)Despite subsection (2), when a person who is charged with an offence first appears before the court the court may make an interim order under subsection (1) if that person advances an arguable case that one of the grounds in subsection (2) applies.

(5)An interim order made in accordance with subsection (4) expires at the person’s next court appearance, and may only be renewed if the court is satisfied that one of the grounds in subsection (2) applies.

(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 test for name suppression under s 200 involves a two stages — first the Court considers whether the consequences in s 200(2) would likely follow. Second the Court considers whether an order should be made at the Court’s discretion under s 200(1).2 Section 283 of the Act provides an appeal against a name suppression decision may be bought as of right. An appellant is “entitled to judgment in accordance with the opinion of the appellate Court” in relation to the threshold question under s 200(2).3 At the second stage under s 200(1) the appellant needs to show that the Judge acted on a wrong principle, failed to take into account some relevant matter, took account of some irrelevant matter, or was plainly wrong.4

[6]    In the present case the Judge concluded that the threshold requirements in     s 200(2) were not satisfied and he did not go on to consider the discretion. Accordingly the focus of the appeal is whether the circumstances of s 200(2) arise. If they do the Court is able to apply the discretion under s 200(1).

Relevant circumstances here

[7]    Mr Harrison for the appellant emphasises the difficult circumstances confronting Ms Walker that led to the offending. Since being sentenced the position has become materially worse for her. Her teenage son has been removed from her care. She is no longer in employment. Her counselling for drug addiction is not currently taking place. Most significantly the appellant says she was subjected to a serious incident on 17 April 2019. She says in a further affidavit she has filed on appeal:

2      Fagan v Serious Fraud Office [2013] NZCA 367 at [9]; Robertson v Police [2015] NZCA 7 at [39]–[40].

3      In accordance with the approach in Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141 at [16].

4      B (CA860/10) v R [2011] NZCA 331 at [9]; Lawrence v R [2011] NZCA 272 at [11].

14.I am facing a multitude of issues that I need to deal with. First and foremost, the incident of 17th April has left me feeling extremely vulnerable and shattered as a person. At the moment I feel that publication of my name will compound all that has happened to me.

15.I appreciate that I have a lot of work to do in terms of addressing, not only what happened to me on the 17th April, but also the core issues relating to my drug addiction and the domestic abuse I have suffered in the past. By obtaining final suppression of my name I feel that I would be able to step out the door and start rebuilding my life. I already feel huge guilt for what has happened to my extended family as a result of my offending. I don’t know how I would cope if that was made public so that everyone would know of their shame given my actions.

[8]    In support of the appeal Mr Harrison relies particularly on the case of H v R.5 Here the appellant had pleaded guilty to two counts of kidnapping. She had no previous convictions and had a life history including sexual and physical abuse, an abusive relationship, and she suffered from PSTD. The appellant had care of children in a family relationship. In allowing the appeal and imposing name suppression Ellis J held:

[30] … it is less common for such offenders to have full-time care of three children (at least two of whom are themselves vulnerable). Nor is it common for such offenders to acknowledge and have relatively immediate rehabilitative prospects. The risk of harm to the family unit (which itself is integral to H’s on-going mental health) and the risk of damaging H’s rehabilitative prospects by making H’s name public must, I think, also be relevant to the question of hardship and its degree.

[9]    Mr Revell argues in response that H v R is distinguishable, and that the starting point is the presumption in favour of open justice emphasised by the Court of Appeal in R v Liddell.6 He refers to the observation of Winkelmann J in BL v R who said when allowing an appeal and imposing name suppression:7

[20] … This principle of openness reflects the “public interest in knowing about all aspects of the operation of the justice system.” Further, publication contains an element of punishment and deterrence, and may protect the public from further offending or encourage other victims to come forward. It also avoids suspicion falling on others.

[10]   He also compares this case with Q v New Zealand Customs where Thomas J held that the threshold of extreme hardship was not met because a psychologist had

5      H v R [2019] NZHC 1155.

6      R v Liddell [1995] 1 NZLR 538.

7      BL v R [2013] NZHC 2878, footnotes omitted.

indicated that media publication could lead to serious negative consequences in addition to the defendant’s depression and anxiety thus elevating a risk of suicide.8 But the Court ultimately held that the fact that the appellant’s wife suffered from a rare heart condition that could cause sudden death triggered by stress meant the criteria was satisfied, and the balance weighed in favour of suppression.

[11]   I accept the appellant is facing an extremely difficult period in her life following her conviction and sentencing. The event of 17 April that she refers to would appear to be causing further very significant distress. But these significant adverse implications appear to me to be consequence of the offending, her conviction and its aftermath, and a further incident. They arise independently of any publicity. In her affidavit the appellant refers to the impact of publicity on her sister and her son, and says that “publication of my name will compound all that has happened to me”. But that does not demonstrate that it is publication that is causing extreme hardship, or undue hardship in the manner contemplated by s 200(2). The hardship that is described, including the significant adverse impacts of the event which she describes, have already taken place, and have occurred notwithstanding she has had interim name suppression. They arise from the events themselves rather than any publicity associated with it.

[12]   I accept that publicity will make matters harder. But in my view the presumption in favour of open justice is not rebutted. A person seeking suppression needs to demonstrate that the significant impacts meeting the statutory thresholds arise by the expected publication itself. There must be a causal connection between identifiable hardship and publication. Hardship of a more general sense might be relevant, including to the exercise of the discretion once the threshold has been met, but the threshold must be met first. The kind of additional implications of publication for the appellant, and her sister and son described in the affidavit are general in nature, and are not sufficient to meet the thresholds. They do not themselves amount to extreme hardship. The material put forward here can be compared with the more extensive and significant evidence relied upon by the Court in H v R, BL v R and Q v New Zealand Customs. For example in H v R there was the risk of harm to the family

8      Q v New Zealand Customs [2014] NZHC 2398.

unit.     In the present case Ms Walker’s family has already broken apart as a consequence of the offending, and its implications.

[13]   For those reasons I agree with the conclusions of the District Court Judge and the appeal is dismissed. The interim name suppression is also dismissed as a consequence.

Cooke J

Solicitors:

Inangahua Chambers, Blenheim for Appellant Crown Solicitors, Blenheim for Respondent