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Lawrence v R [2011] NZCA 272 (15 June 2011)

Last Updated: 22 June 2011


IN THE COURT OF APPEAL OF NEW ZEALAND
CA890/2010
[2011] NZCA 272

BETWEEN PETER CLIFFORD LAWRENCE
Appellant

AND THE QUEEN
Respondent

Hearing: 26 May 2011

Court: Randerson, Gendall and Allan JJ

Counsel: H A Evans for Appellant
M T Davies for Respondent

Judgment: 15 June 2011 at 3 p.m.

JUDGMENT OF THE COURT


The appeal against refusal of name suppression is dismissed.


____________________________________________________________________


REASONS OF THE COURT


(Given by Allan J)


Introduction

[1] Having earlier pleaded guilty, Mr Lawrence appeared for sentence before Judge Radford in the Christchurch District Court on 14 December 2010 on two representative counts of forgery and five relating to the dishonest use of a document.[1]
[2] Mr Lawrence was sentenced to six months home detention and ordered to pay reparation of $5000 at the rate of $10 per week. There is no appeal against sentence, but Judge Radford declined the appellant’s application for permanent name suppression. It is that decision with which this appeal is concerned.

Background

[3] Mr Lawrence is significantly disabled. He needs assistance with all aspects of his day to day living by reason of physical disabilities which confine him to a wheelchair. He is without the effective use of three of his limbs. The injuries stem from separate motor vehicle and water-slide accidents that occurred in quick succession in 1985.
[4] Mr Lawrence receives financial assistance from the Ministry of Health. During the time of the offending he was personally responsible for hiring and paying some of his carers. Reimbursement was obtained from the Ministry on the basis of carer support forms which contained details of the hours worked by his carers. Mr Lawrence was required to prepare accompanying time-sheets with detailed hours and days worked. The forms were signed both by Mr Lawrence and the carers. Funds would be credited to Mr Lawrence’s account once the forms were processed. In the course of the Ministry’s audit investigation procedures, it was discovered that Mr Lawrence had been claiming more from the Ministry than he had paid out to carers.
[5] The offending spanned about four years. During that time, Mr Lawrence dishonestly obtained sums totalling about $50,000. Initially Mr Lawrence faced 160 counts. These were later reduced to seven representative charges.

District Court reasoning

[6] Judge Radford dealt succinctly with Mr Lawrence’s suppression application. He said:

[19] In all the circumstances the remaining matter to be determined is probably the most significant, or it raises the most difficulties. You make an application for suppression of name, and the grounds for your application are that you are a man who has significant both mental and health problems, although the emphasis should be on your physical problems, that you have coped well with adversity and that the material put before me by your counsel would suggest that you are a fairly fragile personality because of your very significant and indeed they are significant problems.

[20] The Crown opposes an order for suppression of your name. The Crown argue this was serious offending, that the principle of deterrence and denunciation can best be met by following the standard procedures which apply to criminal Court cases, that is of saying that publication should follow unless the interests of justice require that the normal principle will be overridden. The normal principle has been discussed in a number of authorities. I do not propose to go through them now, they are well known but they clearly state that there must be something that outweighs the public interest in having the free flow of information from the Court and the publication of persons who appear before it must be something which in the public interest outweighs the interest of the public in having access to the information before the Court.

[21] The Crown points out too that in this case, and I have already made mention of this, there has been considerable breach of trust, in other words people in the department relied upon you to supply them with accurate information and you were really the only source of the information that they had available to them. I think it is a significant breach of trust case and it went on for a considerable number of years. In my view there is nothing with outweighs the public interest in publishing your name should the media choose so to do. Accordingly I refuse suppression of name application.

Suppression principles

[7] Section 140 of the Criminal Justice Act 1985 empowers the Court to prohibit the publication of names or particulars which may lead to the identification of an accused person. The governing principles are well established. The judgment of this Court in R v Liddell observed that:[2]

In considering whether the powers given by section 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.

[8] These principles were reaffirmed by this Court in Lewis v Wilson & Horton Ltd[3] where Elias CJ, writing the judgment of the Court, laid emphasis on the prima facie presumption in favour of open reporting.[4]
[9] In Lewis, the Court suggested that the principal factors usually taken into account in deciding whether the prima facie presumption should be displaced will include:[5]
[10] In weighing the various interests, public and private, which may arise in a particular case, judges must bear in mind the right to freedom of expression including the freedom of the public to seek, receive and impart information.[6] It was said in Lewis that 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] In Re Victim X,[8] this Court said that the open justice principle was to be departed from only for “compelling reasons” or in “very special circumstances”.[9]

Review of a discretion

[11] An appeal against a name suppression order or a refusal to make such an order is an appeal against the exercise of a discretion.[10] That being so, the proper appellate approach is that explained by this Court in May v May:[11]

... in ... an appeal of this kind an appellant must show that the judge acted on a wrong principle; or that he failed to take into account some relevant matter or that he took account of some irrelevant matter or that he was plainly wrong.

The principles articulated in May v May continue to apply on appeals against the exercise of a discretion, notwithstanding the decision of the Supreme Court in Austin, Nichols & Co Inc v Stichting Lodestar.[12] This Court has recently confirmed the continuing applicability of May v May.[13]

Discussion

[12] Mr Evans submits that Judge Radford’s decision at first instance was clearly wrong. He supports that argument by contending that the Judge did not sufficiently take into account Mr Lawrence’s history of mental illness nor the claimed effects upon him which publication of his name would have.
[13] We pause to observe that an argument which simply dwells upon the apparent weight given by the first instance judge to a particular factor will rarely be successful. Matters of weight are for the judge and simply form part of the exercise of the overall discretion. The appellant must show that the decision was wrong in the sense that on the available material it was not a decision to which the judge could properly come.
[14] The appellant relied principally in the District Court on the affidavit of his general practitioner, who filed a second affidavit in this Court for updating purposes. The affidavits confirm Mr Lawrence’s very significant physical disabilities, and discuss his ongoing battle with depression and anxiety. These stem to some extent from problems in childhood. The doctor says they may render him particularly vulnerable to concerns regarding self-worth and self-esteem. The medical evidence is that the publication of Mr Lawrence’s name is likely to exacerbate these problems. The doctor points out also that:

A large degree of mental fortitude and will power is also required on the part of Mr Lawrence in order for him to get through each day.

[15] We have the utmost sympathy for Mr Lawrence at a personal level, noting as we do that he has no alternative but to entrust to his caregivers his physical safety and the responsibility of assisting him as he attends to all aspects of his personal needs. The medical evidence is that he struggles at times to develop a sufficient degree of trust in those upon whom he has no alternative but to rely.
[16] In a nutshell, the appellant’s case is that his level of physical disability, coupled with his somewhere fragile mental state, together constitute “exceptional circumstances” which justify the grant of permanent name suppression. Mr Evans submits that the stress, anxiety and depression which his medical advisers consider would result from the publication of his name could well severely affect Mr Lawrence’s ability to function. For that reason, Mr Evans submits, the Judge’s decision was simply wrong because he failed to take these considerations into account and so failed to identify this as an exceptional case.
[17] The doctor notes that Mr Lawrence is particularly concerned about his standing in the disabled community if suppression is not maintained. That is a matter of some moment to Mr Lawrence, who is evidently active within that group. But it is by no means the limit of his involvement in public life. He has achieved a great deal. For example, he has obtained a university degree, has been involved in Neighbourhood Watch activities, and has played an active part in a political party. Among the testimonials handed up to the judge was a very long and detailed letter from a very senior figure in the political party. Obviously, all of those who are responsible for Mr Lawrence’s day to day care will know about the court proceedings by reason of the restrictions imposed upon him by the sentence of home detention, and because he will be wearing a bracelet. Certain leading figures in the political party are obviously well aware also of what has occurred. Mr Lawrence’s objective is to prevent his convictions from becoming even more widely known.
[18] Several cases were cited to us. We will discuss them briefly but observe that, in the end, each case must turn on its own particular circumstances.
[19] In R v B[14] the appellant had been acquitted of attempted murder by reason of insanity. The High Court declined her application for permanent name suppression on appeal. This Court noted, in allowing the appeal, that she had been released from psychiatric treatment only a short time before the offending, that her rehabilitative needs were high and that there was an established significant risk of deterioration in her mental health should name suppression be lifted. It was common ground that she came within the ambit of the Criminal Procedure (Mentally Impaired Persons) Act 2003 and the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003. Although accepting that the case for suppression there was stronger than in the present case, Mr Evans nevertheless invites this Court to similarly place rehabilitation factors at the forefront of our assessment.
[20] In R v H,[15] Mallon J granted permanent name suppression at the time of sentence on a charge of infanticide. Ms H was in remission from major depression and was ready for discharge from hospital. There was medical evidence that she would nevertheless need to continue regular psychiatric follow-ups in order to ensure that her medication remained suitable and was being taken, and to prevent a recurrence of her depressive episodes. The stigma of publicity would be likely on the evidence to trigger a rapid deterioration in her mental health.
[21] Mr Evans referred also to R v D,[16] which concerned a Solicitor-General’s appeal against sentence. No real assistance can be derived from that case because, although this Court granted permanent name suppression, it did so without discussion or analysis.
[22] We consider the other two cases cited by Mr Evans as being significantly more compelling than this one. Each involved persons with serious mental health issues, requiring ongoing treatment and monitoring, with a significant risk of relapse should name suppression be lifted. The medical evidence here, which we accept, is that Mr Lawrence displays a tendency to depression and anxiety and that post-traumatic stress from childhood abuse makes him particularly vulnerable to concerns regarding self-worth and self-esteem. His doctor says that if Mr Lawrence’s name is not permanently suppressed there may be considerable adverse repercussions on Mr Lawrence’s mental health.
[23] While these are factors of obvious relevance, they do not in our view approach the level of gravity of the mental health factors which arose in R v B and R v H.
[24] We return to the decision of Judge Radford.
[25] The care with which the Judge approached the suppression issue is evident and, we think, not open to criticism. During the course of his sentencing remarks he referred to the appellant’s “significant physical disabilities”,[17] to his reliance upon his wheelchair,[18] and to limitations upon his ability to get out and about.[19]
[26] In the passage from the sentencing remarks reproduced earlier,[20] the Judge referred to Mr Lawrence’s “significant both mental and health problems”, his “fairly fragile personality” and to the “very significant problems” faced by the appellant. The Judge specifically referred to “the material put before me by your counsel”,[21] to which he clearly had regard. There is nothing to suggest that he overlooked anything of significance. Neither can it properly be argued that the Judge misconstrued or misapplied the relevant principles. He was entitled, as he did, to take into account the duration of the offending and the amount involved, and to find that there had been a significant breach of trust.[22] He was entitled to take into account also the public interest in publication of the details of dishonesty offending.[23]
[27] The Judge correctly reminded himself that suppression could only be granted in the circumstances of a case such as this where there is something that outweighs the public interest in having a free flow of information from the Court. Having identified this case as involving a significant breach of trust which continued for some years, he was well entitled in our opinion to hold that Mr Lawrence’s personal circumstances did not outweigh the public interest in publication.
[28] We accept Mr Davies’ submission to the effect that the appellant has failed to demonstrate an error by Judge Radford, who correctly identified the relevant principles and reached a decision in the exercise of his discretion which it would not be proper to disturb.

Result

[29] For the foregoing reasons, the appeal is dismissed.

Solicitors:
Young Hunter, Christchurch, for Appellant
Crown Law Office, Wellington, for Respondent

[1] R v Lawrence DC Christchurch CRI-2009-009-19673, 14 December 2010.
[2] R v Liddell [1995] 1 NZLR 538 at 546.
[3] Lewis v Wilson & Horton Ltd [2000] 3 NZLR 546.
[4] At [41].

[5] At [42].
[6] New Zealand Bill of Rights Act 1990, s 14.
[7] At [43].
[8] Re Victim X [2003] 3 NZLR 220.
[9] At [36]–[37].
[10] R v B (CA459/06) [2008] NZCA 130, [2009] 1 NZLR 293 at [70].
[11] May v May (1982) 1 NZFLR 165 at 170.
[12] Austin, Nichols & Co Inc v Stichting Lodestar [2008] 2 NZLR 141.

[13] Blackstone v Blackstone [2008] NZCA 312, (2008) 19 PRNZ 40 at [8] and R v CIR [2011] NZCA 160 at [13].
[14] R v B (CA4/05), 21 April 2005.
[15] R v H HC Wellington CRI-2007-03202799, 31 July 2009.
[16] R v D [2008] NZCA 254.
[17] At [2].
[18] At [5].
[19] At [15].
[20] At [7].
[21] At [19].
[22] At [6].
[23] Lewis v Wilson & Horton Limited [2000] 3 NZLR 546 at [42].

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