The Queen v Shapiro [2008] NZCA 151 (6 June 2008)

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The Queen v Shapiro [2008] NZCA 151 (6 June 2008)

Last Updated: 11 June 2008

IN THE COURT OF APPEAL OF NEW ZEALAND

CA625/07

[2008] NZCA 151

THE QUEEN

v

BERNARD DAVID SHAPIRO

Hearing: 28 May 2008

Court: William Young P, Randerson and Harrison JJ

Counsel: J H M Eaton for Appellant
S B Edwards for Crown

Judgment: 6 June 2008 at 2.30 pm

JUDGMENT OF THE COURT

The appeal is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Harrison J)

Introduction

[1] Mr Bernard Shapiro has been charged with three offences under the Arms Act 1983. He pleaded not guilty and the charges were tried summarily in the District Court at Christchurch on 27 May 2008. The trial Judge reserved his decision.
[2] Mr Shapiro applied for an order suppressing publication of his name and the name of his employer some five months after he first appeared in the District Court. In the interim a local newspaper had published two articles which identified Mr Shapiro as the defendant on Arms Act charges and the Christchurch Symphony Orchestra as his employer.
[3] The District Court declined Mr Shapiro’s application and his appeal to the High Court was dismissed. However, Fogarty J granted leave to appeal on two questions of law (only one remained for argument in this Court) and continued the interim suppression order made in the District Court. Mr Jonathan Eaton, Mr Shapiro’s counsel, advised that Mr Shapiro abandons the appeal for himself but still seeks suppression of his employer’s identity. Accordingly we discharged the interim suppression order relating to Mr Shapiro’s particulars at the end of argument on 28 May.

Background

[4] Mr Shapiro is a professional musician. He is employed by the Christchurch Symphony Orchestra as a French horn player. He has an interest in military items.
[5] In March 2007 the police charged Mr Shapiro with unlawful possession of explosives and ammunition. He appeared in the District Court on this charge on four occasions between 30 March and 5 July 2007. On the first appearance Mr Shapiro was represented by the duty solicitor and on the next three by Mr Eaton. He did not seek name suppression on any of those appearances.
[6] In late June 2007 the police added charges of unlawful possession of two military style semi-automatic firearms and a grenade launcher. Mr Shapiro elected trial by jury on all three charges. He first applied for a suppression order on 17 August on the ground that it was necessary to preserve his employment “and to protect innocent third parties from harm”. By then the Christchurch Press had published two articles identifying Mr Shapiro and his employer – the second under the headline “Explosive Overture”.
[7] The first article referred to Mr Shapiro’s high public profile because of his employment with the orchestra and his less conventional pursuits as an amateur historian and member of a fringe group, Alf’s Imperial Army. Mr Eaton was reported as saying that nobody was “suggesting there was a high level of culpability associated with this”; and that Mr Shapiro was a temporary custodian of the explosives and ammunition for a trusted third party. The orchestra’s concert master was reported as saying that she did not believe the prosecution reflected on the orchestra. The second article reported the existence of the second charges and a relaxation of the terms of Mr Shapiro’s bail.
[8] Mr Shapiro swore an affidavit on 17 August 2007. He noted that he was a tenured musician with the orchestra and that this was his only source of income. He said that the newspaper articles had had:

... very negative consequences for [the orchestra]. In particular I am aware that critical sponsors have complained to the chief executive officer, Mr Murray Shaw. I am very conscious of the fact that the orchestra relies heavily upon sponsorship deals for its survival and that the publicity in relation to my case, linking me to the orchestra, is placing real strains on both the relationship between the sponsors and [the orchestra] and of course my own personal relationship with my employer.

[9] The orchestra’s chief executive officer, Mr Murray Shaw, wrote a letter in support of Mr Shapiro’s application. He later affirmed its contents in an affidavit. He advised that the orchestra “remains supportive of Mr Shapiro and continues to value the artistic contribution he makes to our endeavours”. He noted:

The publicity related to Mr Shapiro’s association with this orchestra is damaging our association with sponsors and, I believe, has further potential to damage the relationship with our principal sponsor, AMI Insurance. On every occasion to date that Mr Shapiro has appeared in Court and publicity has occurred I have received comment or complaint from key supporters concerned about the association with this orchestra.

[10] Judge John McDonald dismissed Mr Shapiro’s application for an order for name suppression in a comprehensive decision delivered on 22 August 2007. Fogarty J dismissed an appeal to the High Court on 12 September but granted leave to appeal on two questions of law on 24 October 2007.

Decision

[11] The relevant question reserved by Fogarty J was as follows:

Whether the High Court erred in applying the presumption of open reporting in a case where the appellant did not seek suppression of his name or occupation but rather the identity of his employer?

[12] Contrary to Fogarty J’s formulation of this question, Mr Shapiro did seek an order in both the lower courts suppressing publication of his name and occupation. Mr Eaton’s written synopsis of submissions discloses that limitation of the scope of a suppression order to the employer’s identity was an alternative position. The question was argued before us on that basis.
[13] Mr Eaton submits that the Judges in the lower Courts erred in applying the presumption of open justice in favour of publication of the name of an accused’s employer. While an employer will have an interest in knowing that an employee faces criminal charges, he says the general public does not have a legitimate interest in knowing the name of an entity employing a person facing criminal charges. The presumption does not apply, he submits, in that context.
[14] Mr Shapiro’s appeal faces a jurisdictional barrier. A court’s statutory power to prohibit publication of names or identities derives from s 140(1) Criminal Justice Act 1985, which materially provides:

... 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.

[Emphasis added]

[15] The Christchurch Symphony Orchestra is an incorporated body and thus a “person” within s 140(1): s 30 Interpretation Act 1999. But it is not “connected with” the criminal proceedings against Mr Shapiro by virtue solely of its status as his employer. That is not a relationship of connection with the proceedings sufficient to fall within the purview of a discretionary power that has the effect of imposing a limitation on the entrenched right of freedom of speech: s 14 New Zealand Bill of Rights Act 1990.
[16] In R v Liddell [1995] 1 NZLR 538 (CA) a Full Court of this Court allowed an appeal from the High Court suppressing publication of the name of a convicted sex offender. The High Court Judge had ordered suppression on the ground of hardship to the appellant’s family. Nevertheless in allowing the appeal, the Court (at 546) extended the s 140 protection to the name, address or occupation of the accused’s wife and sons on the grounds that they were “connected with the proceedings” without subjecting the statutory provision to analysis or identifying the jurisprudential basis for this conclusion of necessary connection.
[17] It seems that the Court took this step in Liddell in recognition that its order would offer only limited protection (many members of the public would know the relationship or others would infer its existence from sharing the same distinctive surname with a convicted paedophile). The Court plainly viewed the circumstances as exceptional and the decision is not of direct assistance here.
[18] In T v Commissioner of Police HC AK AP282/91 29 November 1991 Tompkins J suppressed the name of the employer of a man charged with aggravated robbery. That was because the interests of those directly involved with the employer could be adversely affected. However, to give effect to this conclusion, and upon counsel’s express concession that suppression could not continue after trial commenced, the Judge suppressed publication of both the accused’s name and that of his employer. The Judge did not discuss s 140 or the jurisdictional basis for his order.
[19] A line of authority in this Court culminating in Lewis v Wilson & Horton Ltd [2000] 3 NZLR 546 (CA) has emphasised that the starting point for a Court when deciding whether or not to exercise the powers under s 140 is the importance in a democracy of freedom of speech, open judicial proceedings, and the media’s right to report. Mr Eaton confirmed that the charges faced by Mr Shapiro do not relate or refer to the orchestra in any way. We do not accept that a Court’s jurisdiction under s 140, which is necessarily restricted to a “report or account relating to any proceedings in respect of an offence”, extends to prohibition of publication of the name of an entity which is not connected with the proceedings but only with the accused. That information is of a collateral nature and is unrelated to the criminal proceedings.
[20] We would have dismissed the appeal in any event for two independent reasons. First, both Judges in the District Court and High Court proceeded on the implicit assumption that they had jurisdiction to make an order suppressing the orchestra’s identity as a person connected with the proceeding and considered its interests. But Fogarty J declined the appeal on the ground that the names of Mr Shapiro and his employer were already in the public domain as a result of widespread publicity. It is well settled that a suppression order should not normally be made in these circumstances because its effect will be futile: Lewis at [94]. This was an orthodox application of the balancing exercise undertaken when determining an application for suppression. Second, the proceedings have now been tried and both sides of the case, together with Mr Shapiro’s name, are now in the public domain.
[21] Mr Eaton did not develop an argument for suppression based upon this Court’s inherent jurisdiction and it is unnecessary for us to consider this point further.

Result

[22] The appeal is dismissed.

Solicitors:
Crown Law Office, Wellington