R v Williams CA176/96 [1996] NZCA 245 (19 June 1996)

Last Updated: 21 January 2019

IN THE COURT OF APPEAL OF NEW ZEALAND CA 176/96

ORDER PROHIBITING PUBLICATION (UNTIL 3 JULY 1996) OF NAME ADDRESS

OR PARTICULARS IDENTIFYING APPELLANT

_{THE QUEEN}

v

_{MAY LYDIA WILLIAMS}

Coram Richardson P Henry J Doogue J

Hearing 19 June 1996

Counsel J A Farrow for Appellant

S P France for Crown

_{Judgment 19 June 1996}

_{JUDGMENT OF THE COURT DELIVERED BY RICHARDSON P}

This is an appeal against the refusal of name suppression.

The appellant was found guilty by a jury in the District Court at Dunedin on a charge of assault. The complainant was the previous partner of the appellant’s de facto husband. It seems there was some animosity between them. The appellant and two much younger women were together at a tavern. With some pre-planning they assaulted the complainant, administering what the trial Judge described as a

hiding. Taking the view that their roles, although slightly different, were comparable, the Judge sentenced each to 4 months periodic detention.

That sentence is not challenged. The appeal is directed to the refusal of name suppression. By s 379 of the Crimes Act 1961 “sentence” includes “any order of the Court made on conviction”. Consequently the appellant has the right under s 383(1)(b) to appeal against the refusal of an application for suppression of name under s 140(1) of the Criminal Justice Act 1985 which provides:

Except as otherwise expressly provided in any enactment, a court may make an order prohibiting the publication, in any report or account relating to any proceedings in respect of an offence, of the name, address, or occupation of the person accused or convicted of the offence, or of any other person connected with the proceedings, or any particulars likely to lead to any such person’s identification.

The appellant is aged 31 and has the care of her three children. She had two previous convictions, neither involving violent offending. The basis for the application for permanent name suppression was the desirability of protecting the children, and particularly her 13 year old son, from the effects of publicity. In a report to the District Court a social worker in the Children and Young Persons Service referred to relationship difficulties and general background concerns, noting that the boy was coping well at school and making positive progress, but expressing the view that publication would be detrimental to the progress he had made and would provide a risk to his emotional security.

An interim order made in the High Court suppressed name publication before trial in the interests of the children. A report from the Children and Young Persons Service had detailed the family background, the Service’s involvement and concern that publication of her name would, the social worker believed, cause further stress to the family, have an adverse effect on the children and risk their emotional security. In his judgment the High Court Judge emphasised the difference between the

approach to the question of suppression of name where an accused is merely charged with an offence and the approach where an accused has been convicted, adding that quite different considerations would arise if she were convicted, that being a matter which she should properly deal with herself through the Service because, in the Judge’s view, it was unlikely she could expect to enjoy a suppression order if in fact she were convicted at trial.

On sentence, following conviction, the District Court Judge dealt with the application for permanent suppression in this way:

The factor relied upon by the High Court in granting the interim order was this concern for your 13 year old son. There is still concern for him. By all accounts he is doing reasonably well at the moment.

I think it is always unfortunate that children suffer from the wrongs of their parents. That is, however, often an inevitable consequence. I have considered the material before me but I am not satisfied that it justifies my now making the interim order final. In my view you should receive publicity along with the other two.

In R v Liddell [1995] 1 NZLR 538, 546 and 547, the most recent extended discussion in this court of name suppression, the court said:

In considering whether the powers given by s 140 should be exercised, the starting point must always be the importance in a democracy of freedom of speech, open judicial proceedings, and the right of the media to report the latter fairly and accurately as “surrogates of the public”.

...

The room that the legislature has left for judicial discretion in this field means that it would be inappropriate for this Court to lay down any fettering code. What has to be stressed is that the prima facie presumption as to reporting is always in favour of openness.

In support of the appeal against the refusal of permanent name suppression

Mr Farrow has submitted that the assault which was specific to the complainant and

occurred against a background of tension specific to relationship dynamics was not a serious case of its kind; that the appellant had no previous convictions for assault or offences involving violence; that it was not a situation where publication of the appellant’s name is required in order to protect the public from potential further offending; that the basis for the appeal is the possible effect on the children, particularly the 13 year old son; and that the District Court Judge failed to take into account the effects of publication likely to be suffered by these children, this not being a situation where normal healthy and well balanced children inevitably must suffer the consequences of their parent’s wrongdoing. In addition to the letters from the Children and Young Persons Service which were before the sentencing Judge, he tendered a further letter from the social worker which added to her letter of 10 May which was before the sentencing Judge, the statement that the boy was at a very vulnerable age where peer degradation can be extremely damaging.

We are not persuaded that the District Court Judge erred in the exercise of the discretion under s 140. The offence was not trivial. It was a pre-planned assault involving three persons attacking one complainant. As Liddell emphasised, the assumption is always in favour of the open reporting of court proceedings. The District Court Judge, who had the social worker’s reports before him, was well aware of the concerns raised in respect of the son. It is not clear how much the boy knows about the matter. Certainly the earlier report indicated that a younger child had been told something at her school. The Judge was well entitled to conclude that it was not a case where departure from the open reporting of court proceedings was justified. But we are satisfied that it is in the boy’s interests, and the interests of justice, that a relatively short period be allowed to enable the parent and the Service to ensure that the boy is advised and appropriately counselled before there is any media publicity.

Accordingly, the appeal against refusal of permanent name suppression is dismissed but the interim name suppression order is continued for two weeks from today.

Solicitors

Webb Farry, Dunedin, for appellant

Crown Law Office, Wellington