We grant leave extending the time for the bringing of the appeal but, notwithstanding the existence of an interim name suppression order in the District Court, we dismiss the appeal. We make no award of costs.

REASONS

(Given by O’Regan J)

Introduction

[1] This is an appeal against one aspect of a decision of Ellen France J (HC NA CIV 2004-441-93 16 December 2004), namely her decision not to order suppression of the appellant’s name and identifying particulars. The appeal was filed a few days out of time, but the Crown did not oppose granting of leave extending the time for bringing the appeal and made submissions solely with a view to assisting the Court. In view of the small delay and the absence of prejudice, we grant leave. The First Respondent abides the decision of the Court.

Background

[2] The background to the case can be summarised briefly. The appellant is charged with under s 112 of the Telecommunications Act 2001 of using a telephone device to use profane, indecent or obscene language, or to make a suggestion of that nature with the intention of offending the recipient. The charge relates to two email messages which were sent from the appellant’s email address to the Minister of Health. The Police obtained a search warrant and seized a computer belonging to the appellant, retaining it however in accordance with a protocol for securing the confidentiality of any medical records. The appellant applied to the High Court under the Judicature Amendment Act 1972 for orders setting aside and declaring the order for the issue of the search warrant invalid, requiring the return to him of the information which was seized by the Police pursuant to the search warrant, and directing that his name and identifying particulars not be published.
[3] Ellen France J accepted that the warrant was expressed too broadly, but declined to make a declaration that the warrant was invalid and to make an order for the return of information seized pursuant to the warrant. Similarly, the appellant’s claim based on the fact that he received a defective copy of the warrant at the time it was executed also failed. Most importantly, for present purposes, Ellen France J declined to extend a name suppression order which had been made earlier in the proceedings and directed that the earlier order would cease to be of effect.

Submissions for the Appellant

[4] On behalf of the appellant, Mr Calver said that the appellant had name suppression in the District Court in relation to the criminal charge under the Telecommunications Act. He said that case was to be heard on 1 June 2005, and that there would then be an argument made for a final order for suppression of name. He acknowledged that the appellant could simply rely on the District Court order, because it would be difficult to publish a report of the High Court proceedings using the appellant’s name without breaching the District Court order, but said it was inherently undesirable to have the inconsistency continue, especially having regard to the superior jurisdiction of the High Court. For that reason, this appeal was pursued.
[5] Mr Calver accepted that recent decisions of this Court had emphasised the desirability of open justice, particularly R v Liddell [1995] 1 NZLR 538 and Proctor v R [1997] 1 NZLR 295. However, he said that the decision of Ellen France J in this case adds to the jurisprudence on the issue of the inter-relationship of the criminal law and medical privilege/confidentiality, which would mean that it will be of some interest in the legal and medical communities. He said that the identity of the appellant was of no particular importance in that context: what was important was the general principles spelt out by Ellen France J in the decision.
[6] Mr Calver submitted two medical reports which were to the effect that publication of the name of the appellant would be damaging to the physical and mental health of the appellant. Mr Calver said that it was proposed to brief a psychiatrist or psychologist to prepare a more detailed report when the application for permanent name suppression is made to the District Court. He said that the report presented to this Court disclosed a proper medical reason for the granting of an order suppressing the appellant’s name in this case because the avoidance of harm to the appellant’s health outweighed the wider interest of open justice.
[7] Mr Calver also argued that the decision of Ellen France J would influence the District Court Judge considering the application for permanent name suppression. He said if the District Court Judge were persuaded to make a final order, that would leave two inconsistent decisions, which was undesirable. He said that the media wishing to report the High Court decision might not realise that another name suppression order in another Court prevented publication of the appellant’s name. Mr Calver therefore sought an order from this Court at least on an interim basis, preventing publication of the appellant’s name in relation to the proceedings under the Judicature Amendment Act. He said this would leave the District Court Judge who dealt with the application for permanent suppression an unfettered position.

Submissions for the Attorney-General

[8] Counsel for the Attorney-General, Ms McKenzie referred to the decision of this Court in Muir & Ors v The Commissioner of Inland Revenue CA185/04 14 October 2004, in which this Court noted that name suppression was discretionary and that the scope for successful challenge to a refusal of name suppression was narrow. She noted the different basis for the granting of name suppression in civil proceedings (the High Court’s inherent jurisdiction) from that in the criminal jurisdiction (s 140 of the Criminal Justice Act 1985). But she said that in either case, the starting point was the principle of open justice. She said that in civil cases the presumption against name suppression was greater than in criminal cases, because it was reasonable to assume that a person initiating civil proceedings accepted the normal incidents of the public nature of court proceedings: Clark v Attorney-General (2004) 17 PRNZ 161 and, on appeal CA213/04, 2 December 2004.

Discussion

[9] As this Court noted in Clark at [42], the principles of open justice and the related freedom of expression create a presumption in favour of disclosure of all aspects of Court proceedings, which can be overcome only in exceptional circumstances. In our view the grounds for suppression in this case, namely the potential impact on the health of the appellant, does not meet that “exceptional” standard. We can find no basis to criticise the finding of Ellen France J that the case for continued name suppression was not made out in the present case. She noted that the appellant had chosen to deal with the matter in the context of civil proceedings and that there is no associated risk of prejudice in his criminal trial, which, we note, will be summary. We agree with that assessment. Accordingly, there is no basis on which we could properly interfere with the judgment of Ellen France J on this topic, and we decline to do so.

Result

[10] The appeal is dismissed. There will be no order for costs.

Solicitors:
Gresson Grayson, Hastings for Appellant
Crown Law Office, Wellington for Second Respondent

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