THE QUEEN v CHRISTIE ARIANESAN PHILIPIAH [2001] NZCA 276 (18 October 2001)

IN THE court of appeal of new zealand

ca300/01

THE QUEEN

V

CHRISTIE ARIANESAN PHILIPIAH

Hearing:	18 October 2001
Coram:	Blanchard J Robertson J Salmon J
Appearances:	A H Waalkens for Appellant J M Jelas for Crown
Judgment:	18 October 2001

judgment of the court delivered by salmon j

[1] This is an appeal against refusal to continue an interim suppression of name.The appellant also seeks an order granting leave to appeal out of time. The necessity for such leave arose as a result of confusion as to whether the appeal should be made to the High Court or to this Court.No objection was made by the Crown to that application, and it is granted.Accordingly, we will proceed to consider the appeal against refusal in the District Court to continue the interim suppression of name.

[2] The accused is to be arraigned on two separate indictments.The first contains 29 counts of using a document fraudulently for the purpose of obviating a pecuniary advantage.The second relates to six charges of wilfully attempting to obstruct the course of justice.

[3] The accused is a medical practitioner.It is alleged that he made claims on the public health fund providing agency, claiming to be reimbursed for work that he had done in a professional capacity.The Crown says that in many cases the work claimed to have been done was fictitious and had no justification. The total value of the claims is said to be in the order of $8,000.

[4] The Judge carefully set out the various matters that had been raised both for and against the continuation of name suppression.He was required to exercise a discretion.In doing so he noted that where name suppression is to be granted the balance must come down clearly in favour of such a course.He referred to the decision of this Court in Lewis v Wilson & Horton Ltd [2000] 3 NZLR 546.

The Arguments in this Court

[5] Mr Waalkens, for the appellant, referred to a passage in the judgment in the Court below where the Judge referred to weighty circumstances being required to swing the balance against the presumption of openness.He submitted that this was setting the bar too high.We do not consider that the Judge misdirected himself in this regard.As already noted he set out the matters that had been raised for and against the continuation of name suppression and then said:

Standing back then and looking at matters overall the judgment that is required is one to the effect that if name suppression is to be granted, the balance must come down clearly in favour of suppression.

[6] That is the test identified by this Court in Lewis at page 559 where the Court said:

[43] The Judge must identify and weigh the interests, public and private, which are relevant in the particular case. It will be necessary to confront the principle of open justice and on what basis it should yield. And since the Judge is required by s 3 to apply the New Zealand Bill of Rights Act 1990, it will be necessary for the Judge to consider whether in the circumstances the order prohibiting publication under s 140 is a reasonable limitation upon the s 14 right to receive and impart information such as can be demonstrably justified in a free and democratic society (the test provided by s 5). Given the congruence of these important considerations, the balance must come down clearly in favour of suppression if the prima facie presumption in favour of open reporting is to be overcome.

[7] Mr Waalkens emphasised a number of factors which he said, taken together, counter-balanced the presumption of openness.

[a] Dr Philipiah denies the charges against him.Damage will inevitably result from publication both to his medical practice and his reputation.He submits that the Judge understated the risk of damage when he noted that the charges were in respect of dishonesty in making general medical services claims.

[b] The offending is not at the upper level of seriousness.

[c] The risk of damage to Dr Philipiah's son who is also a general medical practitioner.Again he says the risk is understated by the Court.

[d] There is a remote risk of re-offending and disclosure of other offending.

[e] The trial is scheduled for 4 March 2002.Mr Waalkens submits that the District Court Judge's balancing assessment was in error and the factors in favour of continued name suppression well exceed those against.

[8] In his oral submissions he emphasised particularly the likely effect of publication on Dr Philipiah's son and said that the Judge had clearly given insufficient weight to that aspect.We do not agree.It is always the case that publication will create hardship to the family of an accused person.

[9] In this case the District Court Judge noted that the son had a different first name and practised in a different part of the city.No doubt responsible news media would be anxious to avoid confusion by referring to the full name of the accused, together with his age or the location of his practise.

[10] The effect on family, and in this case, the son, can be a relevant consideration and was taken into account by the Judge.He accepted that there was a possibility of confusion.It is of some significance that the son has not filed an affidavit as to the effect on him.

[11] Mr Waalkens also submitted that the Judge have given clearly inadequate weight to the damage that would be caused to the reputation of the appellant given the fact that the presumption of innocence applies at this stage.

[12] The Judge accepted that publication would do harm to the appellant in his professional capacity, but noted that needed to be kept in perspective and that charges such as those faced by the appellant might not have as damaging an effect on a practise as for example, allegations of serious negligence or some other forms of misconduct.

[13] Whilst Mr Waalkens challenged that finding it seems to us to be appropriate.

[14] The other matters raised by Mr Waalkens were all taken into account by the Judge in a perfectly acceptable way.We repeat what has been said by this Court in R v Liddell [1995] 1 NZLR 538 and in R v Proctor [1997] 1 NZLR 295 and Lewis.The presumption is in favour of open justice. The public has a right to know who is before the Courts.The principles set out in Liddell apply before trial, as well as after.While the presumption of innocence is to be taken into account and given such weight as is appropriate having regard to the facts of the case, that presumption does not itself displace the application of those principles:(R v Russell (CA.133/96, 16 May 1996)).

[15] The decision not to continue the order for suppression was the exercise of a discretion.We are satisfied that the District Court Judge properly took into account all the matters that he was required to take into account and gave appropriate weight to them.The appellant has not satisfied us that the discretion was wrongly exercised in any respect.The appeal is, therefore, dismissed.

Solicitors:

Fisher Lamberg, Auckland

Crown Solicitor