Wedgewood v The Queen

[2020] NZHC 406

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2019-409-112

CRI-2019-409-113 [2020] NZHC 406

ASTON WEDGEWOOD

v

THE QUEEN

Hearing:	5 March 2020
Counsel:	No appearance for Appellant K South for Crown
Judgment:	5 March 2020

JUDGMENT OF CHURCHMAN J

Introduction

[1]    The appellant appeals against a refusal of the District Court to grant final name suppression. He faced two separate sets of charges relevant to the issue of name suppression. Firstly, charges (which the appellant was found guilty of by a jury in 2017) of meeting a young person after grooming, supplying cannabis and committing an indecent act on a male aged 12-16 years. Secondly, the appellant was charged with providing allegedly forged documents to the Court, while the Court was hearing the appellant’s first charges.

[2]    When this matter was called this morning, the appellant did not appear, neither did any counsel on his behalf. There is nothing unusual in that. The appellant has a

WEDGEWOOD v R [2020] NZHC 406 [5 March 2020]

long history of failing to meet Court deadlines and seeking last minute adjournments.1 There have already been a number of adjournments, at the appellant’s request, of the hearing of this appeal.

[3]    On 7 November 2019, Simon France J granted what he said would be the last adjournment and warned the appellant that if he did not appear on the date set for the hearing, the matter will be resolved in his absence.2

[4]    The appellant did not appear on 4 February 2020 but Dunningham J found that there may have been some confusion about the hearing date and adjourned the appeal “for one last time”.3

[5]    The appellant did not appear today. He was paged throughout the Court building. I am satisfied that he was properly notified of the hearing. The hearing proceeded without him. I have had regard to the material on the Court file that has been provided by the appellant.

Background

Factual background

[6]    The appellant had not originally received name suppression for the charges relating to the 2017 jury trial. However, interim suppression orders were granted to the appellant at the sentencing for these first charges, in order to protect his fair trial rights for the upcoming trial concerning the forgery charges.

[7]    The trial and appeal process for the first charges was lengthy and delayed by a number of issues raised by the appellant. As a result, the Crown ultimately decided not to pursue the forgery charges, and instead withdrew them.

1      W v R [2019] NZCA 367 at [5]-[21].

2      Wedgwood v R CRI-2019-409-112 and CRI-2019-409-113 HC Christchurch 7 November 2019, minute of Simon France J at [3].

3      Wedgwood v R CRI 2019-409-112 and CRI-2019-409-113 HC Christchurch 4 February 2020, minute of Dunningham J at [1].

[8]    The appellant then applied for final orders suppressing his name in relation to both the 2017 trial convictions and the withdrawn forgery charges. The matter was adjourned until 16 August 2019. By this point, the appellant had appealed his convictions from the 2017 jury trial to the Court of Appeal, who were in the process of hearing the  matter  when the suppression issue came before Judge  Neave  on    16 August 2019.

District Court decision

[9]    The District Court Judge indicated that he was not entirely convinced he had jurisdiction in respect of name suppression for the convictions arising from the 2017 jury trial, given that the Court of Appeal were currently hearing an appeal against those same convictions.4 The Judge decided that he would make a decision on the assumption that he did have jurisdiction, and that if he was incorrect, the Court of Appeal could deal with the matter as they saw fit.5

[10]   The District Court Judge held that if he did have jurisdiction, then name suppression should not be granted. Counsel for the appellant had argued that publication of the appellant’s name would be likely to cause him extreme hardship, due to health/neurological difficulties from his head injuries and risk of self-harm.6 The Judge rejected this argument, stating that the appellant had little credible evidence to support the alleged risk of self-harm, and that there was nothing on the evidence to suggest that the appellant would suffer adverse consequences that would cause hardship to him which might be described as extreme.7

[11]   The Court of Appeal then delivered its judgment on 20 August 2019. In relation to suppression, it stated:

NOTE: INTERIM ORDER PROHIBITING PUBLICATION OF NAME, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS OF THE APPELLANT REMAINS IN FORCE UNTIL FINAL DETERMINIATION OF THE NAME SUPPRESSION APPLICATION IN CRI-2016-009-687 [the

criminal proceeding relating to Mr Wedgewood’s sexual offending].

4      Wedgewood v R [2019] NZDC 16023 at [11].

5      Wedgewood v R, above n 4, at [11].

6      At [13]-[14].

7      At [14] and [18].

[12]   This appears to have created a situation where the District Court has been unconvinced that it has jurisdiction for suppression because the matters relating to suppression were being heard in the Court of Appeal, but the Court of Appeal, in making the above statement, appears to have deferred to the District Court to make the final determination. The appellant has now appealed the decision of the District Court Judge to this Court.

Position of the parties

The Crown

[13]   Counsel for the Crown had two principal submissions. Firstly, counsel discussed the jurisdictional issues in the case and argued that the appellant’s name suppression had lapsed. It was submitted that the District Judge was right to acknowledge issues with jurisdiction and ultimately decline the appellant’s application for final order on name suppression, because the District Court at the time of judgment (16 August 2019) was functus officio.

[14]   The District Court was deemed to be functus officio for two reasons. Firstly, the District Court’s powers of suppression are limited to its statutory remit under the Criminal Procedure Act 2011. The Court clearly has powers to grant suppression under the Act when proceedings are extant. However, once a defendant is convicted and sentenced, counsel submitted that the proceedings had concluded and that the Court was therefore functus officio,8 unless there was an explicit statutory power that enabled the Court to make a suppression order in relation to a concluded criminal proceeding. Counsel submitted that there was no such power, arguing that although the Court was empowered under s 208(3) to review a suppression order that has already been made, at any time, this provision requires the applicant to show a change in circumstances that removes the basis for the original order,9 rather than in the appellant’s case, to claim an entirely new basis for suppression once proceedings have concluded.

8      Counsel cited Robin v R [2013] NZCA 330 at [76]; & R v Scott 20 CRNZ 352 (CA) at [38].

9      NZME Publishing Ltd v R [2018] NZCA 363 at [16].

[15]   The second reason as to why the District Court lacked jurisdiction, according to counsel, was that a trial court is functus officio where its determination is the subject of an appeal.10 Counsel argued that as the appellant had appealed against the 2017 jury trial convictions, jurisdiction over the proceeding and thus the power to order suppression under the Criminal Procedure Act, shifted to the Court of Appeal.

[16]   Consequently, counsel submitted that name suppression had now lapsed, on the basis that the Court of Appeal (which had jurisdiction to make a ruling on name suppression), ordered that the appellant’s name suppression would remain until the District Court made a determination on the issue, and that several days earlier on 16 August 2019, the District Court had dismissed the appellant’s application for name suppression on the basis that it either did not have jurisdiction, or if it did, there was no merit to the application under s 200 of the Criminal Procedure Act.

[17]   The second principal submission was that jurisdictional issues aside, the appeal should fail on its merits as the appellant would not have adequate grounds to meet the test for name suppression under s 200 of the Criminal Procedure Act 2011, or the test on appeal. Counsel argued that the appellant failed on both elements of the two-step test required for s 200.11 Firstly, none of the threshold grounds under s 200(2) had been established. While the appellant had argued that publication would likely cause him extreme hardship, counsel submitted that there was no evidence of this being a likelihood. Secondly, counsel submitted that the public interest favoured the publication of the appellant’s name, given the serious nature and type of his offending and the manner in which he offended.

The appellant

[18]   In the District Court, the appellant disputed the jurisdictional issues put forward by counsel for the Crown. It was submitted that the appellant had been granted interim name suppression for the convictions arising from the 2017 jury trial on the basis of ensuring fair trial rights for the forgery charges trial (which did not go ahead due to the charges being withdrawn). After these charges were withdrawn, the

10     Counsel cited West v Vest [2019] NZCA 225 at [13]; & Commissioner of Inland Revenue v Redcliffe Forestry Venture Ltd [2012] NZSC 94 at [7].

11     Robertson v Police [2015] NZCA 7.

appellant applied for final name suppression on the new ground of extreme hardship arising from medical issues. Counsel argued that the District Court had jurisdiction to hear the name suppression application and upon dismissal of that application, the appellant appeals that decision to this Court.

[19]   In the District Court, counsel’s main submission was that the publication of the appellant’s name, given his medical issues (mainly arising from a historical head injury) would cause him extreme hardship, as because of these medical issues, his distress arising from publication would be greater than an ordinary offender. Furthermore, given that the appellant was currently homeless, publication of the charges would adversely affect the appellant’s attempts to find a home.

Approach to appeal

[20]   Section 283 of the Criminal Procedure Act 2011 provides that an appeal may be brought as of right against a name suppression decision.

[21]   Appeals against a name suppression order, or refusal to grant a name suppression order, entail a two-part analysis. This analysis is inter-related with the two-step test under s 200 of the Criminal Procedure Act that must be satisfied if name suppression is to be granted at first instance.12 Each part of the analysis requires a different approach to appeal. The first part requires a factual assessment of whether any of the threshold grounds under s 200(2) have been met, based on the principles espoused in Austin, Nichols & Co Inc v Stichting Lodestar, and is thus in the nature of a general appeal.13

[22]   The second part requires a discretionary assessment and is subject to the approach reserved for appeals against discretion. It applies to the second stage of s 200 test for name suppression, whereby the first instance court must balance the competing interests of the applicant and the public.14 An appellate court will therefore not disturb the exercise of the first instance court’s discretion unless that Court had misdirected

12     Robertson v Police [2015] NZCA 7 at [39].

13     NN v Police [2015] NZHC 589 at [13]; Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103 at [16].

14     Robertson v Police, above n 9, at [41].

itself in law, was contrary to principle, took into account irrelevant matters or failed to take into account relevant matters, there had been a material change in circumstances since the time of the decision, or the decision was clearly wrong.15

Relevant law

The merits of name suppression

[23]   Under s 200 of the Criminal Procedure Act, a Court may suppress the identity of a defendant:

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.

15     B v R [2011] NZCA 331 at [9]; and Lawrence v R [2011] NZCA 272 at [11].

(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.

[24]   The starting point for a s 200 analysis is the principle of open justice.16 This gives rise to what is in effect a prima face presumption in favour of publication.17 As the Court of Appeal observed in Robertson v Police:18

The wording of the section itself also reinforces the presumption, using the language “only if” as well as expressions such as “extreme” and “undue”. The intention is clear. Publication is the norm. Suppression orders are only to be made in restricted circumstances and the threshold is high. The onus is on the applicant to satisfy the judge that suppression should be ordered.

[25]   Section 200 requires the Court to apply a two-step test in order to determine whether suppression should be granted. Firstly, the Court must be satisfied that one of the threshold grounds set out in s 200(2) would be likely to occur if publication took place. The main threshold ground for the purposes of this case is s 200(2)(a), which allows the Court to make an order granting suppression if publication would be likely to cause “extreme hardship” to the person convicted of the offence. This is a high threshold, as noted in Robertson v Police:19

As regards the level of hardship required by the phrase “extreme hardship”, we consider it clear beyond argument that it connotes a very high level of hardship. The word “hardship” on its own means “severe suffering or privation”. The addition of the qualifier “undue” in s 200(2)(c) indicates that something more than hardship simple is required, while the word “extreme” in s 200(2)(d) indicates something more again.

[26]   Secondly, if the Court is satisfied that one of the threshold grounds in s 200(2) has been reached, it must determine whether to exercise its discretion by balancing the competing interests of the applicant and the public. The balance must “come down

16 Erceg v Erceg [2016] NZSC 135 at [2].

17 R v Liddell [1995] 1 NZLR 538, (1994) 12 CRNZ 458 (CA) at 466 and 546. See also Proctor v R [1997] 1 NZLR 295 (CA); Robertson v Police, above n 9; and Re Victim X [2003] 3 NZLR 220 (CA).

18 Robertson v Police, above n 9, at [44].

19 Robertson v Police, above n 9, at [48]

clearly in favour of suppression”,20 and may include consideration of matters such as matters as whether the applicant has been convicted, the seriousness of the offending, any other circumstances personal to the applicant, the interest of victims and the interests of other affected persons, circumstances personal to the defendant, the views of the victim and the public interest in open justice and in knowing the character of the offender.21

Jurisdiction

[27]   The New Zealand Supreme Court has acknowledged that, following completion of available appeals, the decision of a court is final, and the trial court is functus officio.22 Furthermore, following Robin v R, it is “generally true” that once a court has delivered its decision and reasoning, it is also deemed functus officio.23

[28]   In Maehl v Lenihan, Walker J made the following observations about when a court may be deemed functus officio:

The term “functus officio” is defined as an “expression applied to a judge who has given a decision so that his or her authority is exhausted.” The rationale for the doctrine of functus officio is that:

... for the due and proper administration of justice, there must be finality to a proceeding to ensure procedural fairness and the integrity of the judicial system.

Nakhla v McCarthy, a decision of the Court of Appeal, reflects the principle of finality in its statement that:

... there can be no challenge to the right of a Judge to ensure by correction that the transcript of the reasons for the order or determination he has pronounced is not wrong…it is equally clear that in general what a judge cannot and must not attempt to do is modify or change the effect of the determination or order or judgment once it has been formally made and perfected. He is then functus officio.

[29]   The Courts have also acknowledged that the High Court has an inherent power to grant name suppression. In Siemer v Solicitor-General, the Court of Appeal observed that in enacting the Criminal Procedure Act, Parliament did not interfere with

20     D (CA443/2015) v Police [2015] NZCA 541 at [12].

21     Robertson v Police, above n 9, at [41]; DP (CA418/15) v R [2015] NZCA 476 at [7]; R (CA340/15) v R [2015] NZCA 287 at [34]–[35].

22     Commissioner of Inland Revenue v Redcliffe [2012] NZSC 94 at [5].

23     Robin v R [2013] NZCA 330 at [76].

the High Court’s inherent power to make suppression orders, even though it could have done so if it wished.24 This was affirmed in the Supreme Court, with McGrath, William Young and Glazebrook JJ observing that:25

All courts in New Zealand have inherent powers. While these powers have in the past sometimes been described as part of the “inherent jurisdiction” of the courts, we think that the term “inherent powers” more aptly describes them. “Jurisdiction” and “power” are two distinct concepts. The jurisdiction of a court is its substantive authority to hear and determine a matter. Jurisdiction may be inherent in a particular court or it may be conferred by statute. But every court has inherent powers which are incidental to or ancillary to its jurisdiction, whether that jurisdiction is inherent or statutory.

[30]   Finally, in NZME Publishing Ltd v R, the Court of Appeal held in the context of s 208(3) of the Criminal Procedure Act (which states that a suppression order may be reviewed and varied by the court at any time) applications under this provision would mostly need to indicate a change of circumstance in order to be successful,26 and that to allow a party to do absent a change of circumstance would be a collateral attack on the judgment and an abuse of process.27

Analysis

[31]   Counsel for the Crown’s assertion that following the Court of Appeal judgment, the appellant’s name suppression would lapse once the suppression application was determined by the District Court is somewhat unclear. The Court of Appeal did not state that suppression would lapse upon determination by the District Court, but rather that suppression would remain in force until determination by the District Court. The Court of Appeal appears to have anticipated that the issue would be dealt with by the District Court, which it was.

[32]   However, it appears that the District Court may have lacked jurisdiction, in that it may have been functus officio at the time in which the case was decided (16 August 2020). As the Court of Appeal was seized of the issue at the time of the District Court hearing, the jurisdiction to grant name suppression may have shifted to the Court of Appeal. Nevertheless, the High Court retains inherent powers to grant and decide

24     Siemer v Solicitor-General [2012] NZCA 188 at [90]-[91].

25     Siemer v Solicitor-General [2013] NZSC 68 at [113].

26     NZME Publishing Ltd v R, above n 6, at [16].

27 At [16].

name suppression, as observed in Siemer. Consequently, if the District Court lacked jurisdiction to hear the name suppression application, then the High Court may still exercise its inherent powers to make a decision on the merits of the two-step test set out in s 200 of the Criminal Procedure Act. If the District Court did have jurisdiction, then the approach to appeal (which also requires an assessment of the two-step test) discussed above applies.

[33]   Either way, the case fails on the merits. An analysis of the two-step test indicates that the appellant fails on the first step. The appellant’s contention that publication of his name would be likely to cause extreme hardship is not satisfied here.

[34]   The main evidence put forward by the appellant in favour of the “extreme hardship” argument are two s 38 reports and a letter from Dr Newburn. None of these provide sufficient evidence to indicate the likelihood of extreme hardship if publication occurs. The s 38 reports provided no recommendations (on the basis that the appellant appeared to be denying his offending) and while discussing the appellant’s difficulties with his historic head injury, did not suggest that the appellant would be particularly pre-disposed or more likely to suffer hardship than the ordinary offender.

[35]   Furthermore, although assessment of the second step is not necessary given that the appellant has failed on the first, it is likely that the public interest in publication would outweigh the appellant’s interest here, given the nature and type of offending.

Conclusion

[36]For these reasons, the appeal is dismissed.

Churchman J

Solicitors:

Crown Solicitor’s Office, Christchurch cc:     A Wedgewood