R v Freytag [2017] NZDC 11919 (1 June 2017)

Last Updated: 30 August 2017

EDITORIAL NOTE: NAMES AND/OR DETAILS IN THIS JUDGMENT HAVE BEEN ANONYMISED.

PERMANENT ORDERS PROHIBITING PUBLICATION OF NAME, ADDRESS, OCCUPATION, OR IDENTIFYING PARTICULARS OF DEFENDANT AND OF THE COMPANY REFERRED TO IN THIS JUDGMENT PURSUANT TO SS 200 AND 202 CRIMINAL PROCEDURE ACT 2011.

IN THE DISTRICT COURT AT PALMERSTON NORTH

CRI-2016-010-000165 [2017] NZDC 11919

THE QUEEN

v

_{[STEVEN FREYTAG]}

Hearing:	1 June 2017
Appearances:	B D Vanderkolk for the Crown S J Bonnar QC for the Defendant and M R Heron QC for [ABC]
Judgment:	1 June 2017

_{ORAL JUDGMENT OF JUDGE S B EDWARDS}

[1] On 7 May last year [Mr Freytag] was part of a group of people duck shooting in a swamp area at Ora Station, Akitio. Ora Station has a bush dam specifically designed for duck shooting, with a number of mai-mais configured in three rows. At one point [Mr Freytag] shot two ducks with two shots. A shooter in another mai-mai positioned around 45 metres away was hit in the face with shotgun pellets from those shots. His left eye had to be removed as a result and his injuries have had significant ongoing consequences for him.

[2] [Mr Freytag] was charged with careless use of a firearm causing injury. He has consistently denied that his actions were careless.

R v [STEVEN FREYTAG] [2017] NZDC 11919 [1 June 2017]

[3] In April this year, the Crown decided not to continue with the prosecution on the basis the evidence [Mr Freytag] was careless was not sufficient to provide a reasonable prospect of conviction. The charge against [Mr Freytag] was dismissed on 19 May 2017.1

[4] [Mr Freytag] and the company he is the [occupation deleted] of, [Company name deleted] (“[ABC]”), apply for permanent name suppression. Interim suppression orders were made at an early stage of the proceeding because the defendant advanced an arguable case that one or more grounds for suppression applied.2 Full submissions and affidavits in support of the application were then filed but difficulties in scheduling time for the hearing has meant those interim orders were continued by consent and the suppression issue has not been fully argued to date. Procedurally, this means that this is a first instance application for

permanent name suppression rather than an application to have existing interim orders made permanent.

[5] While on the subject of procedure, this application is opposed by NZME Publishing Limited. Prior to the hearing on 19 May when the prosecution offered no evidence and the charge was dismissed, NZME filed an application for discharge of the existing interim suppression orders. They are now content to withdraw that application but oppose and wish to be heard in relation to the applications for permanent suppression.

[6] [Mr Freytag] seeks name suppression on the grounds that publication would be likely to cause extreme hardship to himself, and to [close family member deleted] and [ABC] as persons connected with him.3 [ABC] seeks suppression of the company’s name on the grounds publication would be likely to cause undue hardship to the company as a connected person.4

[7] If I make an order suppressing [ABC]’s identity, that does not in itself prevent publication of [Mr Freytag]’s name. However, here it is argued by both [Mr

_{Freytag] and [ABC] that his identity is inextricably linked with that of the company.}

1 _{Pursuant to s 147 of the Criminal Procedure Act 2011.}

2 _{Under s 200(4) of the Act.}

3 _{Section 200(2)(a).}

4 Section 202(1)(c) and (2)(a)

In the event I decide not to make an order suppressing the defendant’s name on the grounds of extreme hardship but make an order suppressing the company’s name because publication would be likely to cause [ABC] undue hardship, then I must reconsider whether to suppress [Mr Freytag]’s name on the grounds that publication would be likely to lead to the company being identified.5 If I am satisfied this link is likely to be made, it would mean any order suppressing the company’s identity would be of no practical effect.

[8] The Crown does not oppose permanent suppression orders being made in relation to either [Mr Freytag] or [ABC]. While in earlier submissions filed in opposition to the application for interim suppression orders the Crown argued that the threshold tests for extreme and undue hardship were not met, in light of the dismissal of the charge, Mr Vanderkolk no longer takes a position on this issue.

[9] As noted earlier, NZME opposes the applications. It submits that the threshold criteria for permanent suppression has not been met, and even if I am satisfied those grounds have been made out and reach the discretionary assessment stage, the factors in favour of suppression do not outweigh the presumption in favour of open justice.

[10] I note at this point that s 200(6) of the Act requires me to take into account any views of a victim of an offence when deciding whether or not to make a permanent suppression order. However, in a recent decision which is binding on me, the High Court ruled that where there has been acquittal and there is no longer any offence in existence, it can no longer be said there is a victim of any offence.6

[11] A decision to suppress identity, whether under s 200 or s 202, involves a two stage analysis - a threshold determination followed by a discretionary assessment. The Court of Appeal in Robertson v New Zealand Police 7 outlined the process in this way:

[40] At the first stage, the judge must consider whether he or she is satisfied that any of the threshold grounds listed in s 200(2) has been established. That is to say, whether publication would be likely to lead to one of the outcomes listed in subs (2). The listed outcomes

5 _{See s 200(2)(f).}

6 _{NN v R [2016] NZHC 669 at [9].}

7 Robertson v Police [2015] NZCA 7, at [40]–[41].

are prerequisites to the Court having jurisdiction to suppress the name of a defendant. It is “only if” one of the threshold grounds has been established that the judge is able to go on to the second stage.

[12] The first stage, then, is an absolute threshold requirement. There is no balancing exercise involved. The Court of Appeal went on to say that:

[41] At the second stage, the judge weighs the competing interests of the applicant and the public, taking into account such matters as whether the applicant has been convicted, the seriousness of the offending, the views of the victims and the public interest in knowing the character of the offender.

[13] [Mr Freytag]’s application is advanced on the grounds publication of his name would be likely to cause him extreme hardship in his role as [occupation deleted] of [ABC] and also cause his [close family member deleted] extreme hardship.

[14] In the decision I have just referred to, the Court of Appeal also considered what is meant by the phrase “extreme hardship.” The Court concluded that it is a very high level of hardship, something more than simple hardship and more than undue hardship. It involves comparing the hardship raised with the consequences normally associated with a defendant’s name being published. Extreme hardship must be something beyond the ordinary consequences associated with publication.

[15] I will deal with [Mr Freytag]’s reliance on extreme hardship to his [close family member’s details deleted] first. In his affidavit filed in support of his application for interim suppression in November last year, [Mr Freytag] deposed that his [close family member’s details deleted] had passed away only a month or so before and that his [close family member’s details deleted had taken his death very badly. His concerns about stressing [close family member’s details deleted] further meant he had not advised her that he had been charged with an offence.

[16] I am not satisfied that this concern about the impact of further stress on [close family member’s name deleted] meets the very high threshold of extreme hardship. In particular, the passage of time since [the bereavement details deleted] [date deleted] last year lessens the likelihood that publicity about this will exacerbate [gender removed] health issues. In addition, [the close family member’s] worry as

[relationship details deleted] would likely have been focused on the charge [Mr Freytag] faced and the possible outcome. [Mr Freytag] has been acquitted so those concerns can no longer be a source of stress for [the close family member].

[17] [Mr Freytag] became the [occupation deleted] of [ABC] in [date deleted] on the [business circumstances removed]. [ABC] exports to over 35 countries worldwide as a [industry deleted] and the company’s largest growth market is in the United States of America. [Mr Freytag] is the public face of [ABC] and has been leading negotiations in [details deleted] the US. He has also been heavily involved in the development of the company’s European business. His concern is that publicity about the charge and the incident itself will undermine his credibility and that of [ABC] as he engages in those business negotiations. He deposes that the consequences for [ABC] of publicity could be extreme given his position in the company, the nature of the business in which it is involved and the sensitivity of parties such as American corporate entities with whom he engages on behalf of [ABC].

[18] Those concerns are expanded upon in the affidavit of the chairman of [ABC], Mr [Earl Rembolt], sworn in support of these suppression applications. Mr [Rembolt] is a professional company director who currently holds a number of Chair or Director roles in significant entities in New Zealand, including [Company names deleted]. Prior to that he had a career of nearly 30 years duration with the [company names deleted], including in senior executive roles in [overseas locations deleted].

[19] In his affidavit he outlines the background to [ABC] and its significant operations in New Zealand and overseas. He deposes that the [industry deleted] industry is heavily regulated and product quality and regulatory compliance is essential [industry details deleted]. The company has a number of significant and sensitive agreements in place with US companies which rely on a very high level of trust in their capabilities and adherence to the exacting standards of [the regulatory body name deleted].

[20] [Mr Rembolt] notes that [Mr Freytag] has been heavily involved in the development of the company’s European and more recently US business and his name and reputation is synonymous with that of the company in their dealings with current and potential business partners. [Mr Rembolt] deposes that he is concerned publication of [Mr Freytag]’s name will inevitably damage both his reputation and the reputation of the company.

[21] He acknowledges it is difficult to predict the impact of publication but is concerned it could be significant with respect to agreements and negotiations in the present and the future. His concern is that there is a level of sensitivity amongst US corporate to allegations against senior executives and this can trigger or raise consequential barriers while court processes take their course. [Mr Rembolt]’s affidavit evidence is that these are real risks for the company and the consequences in terms of future agreements and partnerships could be extreme.

[22] The phrase “would be likely” has been interpreted to mean a real and appreciable risk that cannot be readily discounted. A mere possibility will not suffice; however, it is not necessary to show the risk of harm is such that it is more likely than not to occur.

[23] I am not satisfied publication would be likely to cause extreme hardship to [Mr Freytag] or to [ABC]. While [Mr Rembolt] deposes that the consequences could be extreme, those consequences are not specified to any significant degree. I am skeptical about the sensitivity of US corporate entities to publication of [Mr Freytag]’s name in relation to this incident.

[24] I do not discount that the Court have said that the stigma of a serious allegation will rarely be erased by a subsequent acquittal but, in my view, this situation can be distinguished from, for example, a case where charges of serious sexual offending are dismissed. The stigma in this case, as Mr Bonnar QC puts it, is that [Mr Freytag] fired a weapon and another man lost an eye. That is a fact.

[25] The situation now is that [Mr Freytag] has been cleared of any wrongdoing. In my view, the situation is more akin to an incident of careless driving causing

injury than to an allegation of significant criminal offending. In circumstances where [Mr Freytag] has been cleared of any wrongdoing it is difficult to envisage chief executives of large corporations in the US allowing publicity about this incident to impact on [Mr Freytag]’s credibility and that of [ABC]. In particular, in order to meet the threshold of extreme hardship, the impact would have to be such that these chief executives would allow it to impact on future contracts and negotiations. Extreme hardship must be something beyond the ordinary consequences associated with publication and I am not satisfied this threshold is met here.

[26] As I am not satisfied the threshold is met in relation to [Mr Freytag], [ABC] or [Mr Freytag]’s [close family member deleted], it is not necessary for me to go on to the stage two discretionary assessment.

[27] I will turn then to the application brought by [ABC] under s 202. The threshold test to be met for their application is undue hardship. This has been held to amount to excessive or greater hardship than the circumstances warrant. An alternative description advanced by Mr Heron QC today is “unreasonable hardship.”

[28] Despite my skepticism about the sensitivities of US corporates, I consider that [Mr Rembolt] is better placed to judge the likely potential for consequences to the company of it being linked to this incident. I cannot discount the consequences he is concerned will occur are a mere possibility, and if publication has any impact at all on the company’s present and future contract negotiations in the US or indeed in Europe, in my view it would amount to excessive or unreasonable hardship for the company. They are, as Mr Heron QC has said, only linked to this incident at all because [Mr Freytag] is [occupation deleted] and the face of the company.

[29] As I find the application by [ABC] has met the threshold requirement of undue hardship, I must turn to the discretionary assessment in relation to the company. I am satisfied that the public interest in open justice and reporting the details of this incident is outweighed by the interests of [ABC], given the undue hardship that would be likely to be caused by publication.

[30] I take into account in reaching that decision that reporting of the case to date has been extensive and there is no significant public interest considerations pointing towards the company’s name or that of [Mr Freytag] being published. Suppression of his identity does not affect further reporting of this incident for the public interest reasons outlined by NZME in its written submissions, which include giving publicity to issues around safe practice duck shooting practices. I also take into account that to date there has been some ill-informed and inaccurate reporting of the incident and of the nature of the charge [Mr Freytag] faced. Whatever future publication there is in relation to this incident, it does not erase that past reporting.

[31] The other factor that is of significance at this stage of the exercise is the circumstances of [Mr Freytag]’s acquittal. The case of M v R,8 is authority for the proposition that while acquittals can give rise to legitimate public interest debate and further scrutiny which open reporting will foster, in a case where there has not been significant judicial involvement in the determination of an outcome the principles of open reporting of judicial proceedings are not so obviously engaged. This means that when a charge is withdrawn because of a decision by the prosecution to offer no evidence, displacing the presumption of open justice will be less onerous for

someone in [Mr Freytag]’s position.

[32] I am satisfied on the balancing exercise that suppression of [ABC]’s identity should be made under s 202. This requires me to revisit the question of suppression of [Mr Freytag]’s name.

[33] It is not disputed that [Mr Freytag] is the face of [ABC]. He is its [occupation deleted] and is heavily involved in negotiations with overseas companies. In those circumstances, in order for the suppression order I have made in relation to [ABC] to be of any practical effect I must consider whether publication of [Mr Freytag]’s name would be likely to lead to the company being identified.

[34] I am satisfied that if [Mr Freytag]’s name is not permanently suppressed it is likely to lead to [ABC] being identified and for that reason, and on that ground alone,9 I make an order permanently suppressing [Mr Freytag]’s identity.

S B Edwards

District Court Judge