NZME Publishing Ltd v Boag [2021] NZDC 17894 (20 September 2021)

Last Updated: 23 August 2023

EDITORIAL NOTE: CHANGES MADE TO THIS JUDGMENT APPEAR IN [SQUARE BRACKETS]

NOT TO BE PUBLISHED BEFORE 5 OCTOBER 2021 AND IF THE RESPONDENT SEEKS NAME SUPPRESSION IN THE HIGH COURT THEN THIS DECISION IS SUBJECT TO ANY ORDER MADE IN THAT COURT

NOTE: PUBLICATION OF NAME(S), ADDRESS(ES), OCCUPATION(S) OR IDENTIFYING PARTICULARS OF COMPLAINANT(S) PROHIBITED BY S 203 OF THE CRIMINAL PROCEDURE ACT 2011. SEE http://www.legislation.govt.nz/act/public/2011/0081/latest/DLM3360350.html

IN THE DISTRICT COURT AT AUCKLAND I TE KŌTI-Ā-ROHE KI TĀMAKI MAKAURAU

CRI-2017-004-001926 [2021] NZDC 17894

Under the CRIMINAL PROCEDURE ACT 2011 NZME PUBLISHING LIMITED AND STUFF LIMITED Applicants

v

MICHELLE BOAG Respondent AND IN THE MATTER OF: THE QUEEN

v

W, MIKA X and Y Defendants

Hearing:

14 May 2021

Appearances:	T Goatly for the Applicants D Salmon for the Respondent H Benson-Pope for the Crown
Date of Decision:	20 September 2021

JUDGMENT OF JUDGE R J COLLINS ON APPLICATION BY NZME PUBLISHING LIMITED AND STUFF LIMITED TO

REVOKE NAME SUPPRESSION RELATING TO THE RESPONDENT

The Application

[1] This is an application by NZME Publishing Limited and Stuff Limited (the applicants) to revoke an order suppressing the name of the respondent Michelle Boag, such order having been made by me in the District Court at Auckland on 15 March 2019.

[2] The order that I made was explained in a reasons ruling dated 21 March 20191. It stated:

“[23] M’s application set out her considerable business and political background and achievements. Her affidavit deposed to her non-involvement in matters before the Court. She is not an immunity witness. She is to be called by the Crown to rebut at least by inference the defendant’s (W) assertion that the retaining of Goulter and Associates was to obtain reputational management by M. The purport of her affidavit is that she was never engaged and received no fee.

[24] Neither the Crown or any counsel opposed her application. Her application for name suppression was granted subject to there being no material change to the factual basis on which it was advanced.”

[3] The applicants assert following trial of these matters ultimately in the High Court that there is a material change and that my order should be revoked.

1 R v W, X and Y [2019] NZDC 5018

A long introduction to get to the issue

[4] In March 2019 the trial of W commenced in the Auckland District Court. He faced charges involving allegations of indecent assault on young men and also charges of attempting to pervert the course of justice. An earlier scheduled trial in the Auckland District Court, September 2017, involving just one assault charge had been adjourned. The balance of the charges were added after the first adjournment.

[5] By March 2019 W faced trial along side Mika X (formally known as Mika Haka) and Y. At the commencement of the trial all three had name suppression but only by virtue of filing appeals against decisions declining name suppression. W has been widely referred to as a prominent businessman. Y is closely associated to W and publication of his name would inevitably identify W.

[6] The trial that commenced in the District Court in March 2019 was before a jury. I was the trial Judge. It was aborted halfway through the Crown case. I will return to the reasons for that. After the trial was aborted in the District Court it was identified as a protocol case and transferred by Moore J to the High Court.

[7] Prior to trial in the High Court Mika X pleaded guilty to charges of attempting to pervert the course of justice. The jury in the High Court returned guilty verdicts with respect to W and Y. The trial Judge was Venning J.

The Crown Case

[8] In the broadest of summaries the Crown case is as follows. W was said to have used to his wealth and position as a benefactor to indecently assault complainants 1 and 2. When they were assaulted they were young men. The complainants were unknown to each other and the assaults occurred many years apart. The assaults occurred in W’s home and there were other aspects of similarity. The assault against complainant 1 was later in time but the first to be subject of a police complaint. The Crown alleged after that complaint and ahead of an impending trial that W enlisted the assistance of Mika X and Y to offer complainant 1 money and other inducements to resile from his allegations and the narrative he had given the police.

[9] Y and Mika X in various ways liaised with one Jevan Goulter, a person described as a PR consultant. Mr Goulter, a work associate of his Allison Edmonds, and Mika X flew to the Gold Coast in order to meet complainant 1. They stayed at the Palazzo Versace on the Gold Coast. Using Mika X’s prior association with complainant 1 they persuaded him to come from [location deleted] to the Gold Coast to meet with Mr Goulter and Ms Edmonds who posed as talent agents. They offered complainant 1 career opportunities but those opportunities were dependent upon him returning to New Zealand and resiling from the allegations he had made against W. Complainant 1 negotiated and possibly agreed (but with no intention of carrying through) to the inducement of the career opportunities and money offered. However, he kept the officer in charge of the investigation informed about what happened. He did not return to New Zealand to retract his allegations. In fact he never retracted his allegations.

[10] The events on the Gold Coast can be described, and have been described, as the Gold Coast conspiracy. Confronted by the police with the allegation of the conspiracy W, Mika X (at least until the 11th hour) and Y denied the allegations. Mr Goulter and Ms Edmonds sought and were granted immunity from prosecution on the basis they made signed statements to the police, and gave evidence for the Crown in terms of their statements at any trial.

[11] The Gold Coast conspiracy presented W with significant trial difficulties. Not the least of which is the question “why would a respected businessman go to such extraordinary, bizarre and unlawful lengths to defeat the course of justice if he had never offended in the first place by indecently assaulting complainant 1.”

[12] Equal in terms of problems for W before the jury was how to explain the approximate $56,000.00 that could be easily identified as coming from W’s controlled bank accounts to Jevan Goulter. Y organised those payments. W’s response to the payments that ended up being deposited into Mr Goulter’s account was to assert in pre-trial statements that these payments had been made to Goulter and Associates for “reputational management”. W asserted that he knew that Goulter worked with Ms Boag and that she had widely accepted expertise in dealing with reputation management. W claimed that it was his belief that complainant 1 would defeat the

suppression orders of W’s name in New Zealand by selling his story to Australian media, such publications being outside the reach of New Zealand Courts and any suppression orders. Even if that assertion wasn’t fanciful it is inconsistent with and quite an inadequate response to the bizarre and illegal enterprise that Mr Goulter, Ms Edmonds and Mika X embarked upon on the Gold Coast.

[13] In any event Ms Boag, when spoken to by the police, advised that while she knew W she had not been engaged by him, received no money for any advice to W about publicity which might attach to the allegations, and that she had nothing to do with the Gold Coast conspiracy.

[14] The Crown included Ms Boag on the witness list for the trial that commenced in the District Court. A formal statement for her was filed with the Court.

[15] Prior to the commencement of the trial Mr Goulter, Ms Edmonds and Ms Boag all sought name suppression. I declined suppression for Mr Goulter and Ms Edmonds. They appealed and so name suppression endured throughout proceedings in the District Court.

[16] There was no opposition to Ms Boag’s application. I granted Ms Boag name suppression, in all probability without adequate consideration.

The Family Bar recording

[17] Unknown to the Crown, defence counsel and obviously the Court at the commencement of the trial in the District Court was that shortly after returning from the Gold Coast Mr Goulter and Ms Edmonds met Y. That was at the Family Bar on Karangahape Road.

[18] Ms Edmonds recorded approximately one hour of conversation between Mr Goulter, Y and herself. Mr Goulter had the most to say. Y made many statements that were damning of his position and that of W. There was discussion on the overall strategy to get complainant 1 to resile from his allegation. Mr Goulter in effect demanded a higher fee than had been agreed to at that point. The following were

statements made during the conversation and came from Mr Benson-Pope’s analysis of the recording that was produced in the High Court.

“17. The central evidence relating to Ms Boag is comments made by Mr Goulter in the Family Bar Recording. The references below are drawn from the edited transcript of the recording produced at trial:

(a) “So you know here is how I figure it, my business partner, Michelle, you are aware of and James is aware of her, thinks that I should be upping the fee on you big time”.

(b) “I am hugely opposed to him receiving physical dollars. But for something to go away. And I’ll let you know, my business partner Michelle, she completely disagrees with me. She thinks fuck it, give him the cash and he can fuck off.”

(c) “Michelle can just shut the fuck up and sit back and watch, but I need to know if the opportunity is a real one and if it is, I’ll send Ally off to organise it and then we’re done with it ...”

(d) “My business partner tonight, stood in the room and said, you tell him right now the fee’s gone up. Did you get that from me, have I said that. I haven’t said that or done that ...”

(e) Following discussion of the possibility of being charged with perverting the course of justice, Mr Goulter says “that’s why my business partner is saying to switch this up ... Right now she told me to walk away because I said to her, the expenses haven’t been paid and she’s saying she’s sixty fuckin” four years old ... she saying fuck him, walk away, ... walk away, or tell him the fees going up. The second she walked away she said to me, I’m going to ring James, I’m going to go see him tomorrow and I’m going to fuckin (inaudible). I said don’t do that, don’t do that ...”

(f) Ally’s implicated, and so from that perspective, you need to understand when Michelle my business partner’s talking to me ... I ain’t going down for this shit ... Michelle’s saying do I need to ring this asshole and go up and see him? He doesn’t want that ... she might not have two hundred million dollars but she has a lot of people in her phone book and she’ll make it worse. I said to her, I’m dealing with you, I said I’m dealing with an intermediary and she said, why are you doing that and I said, it was my choice, I said I don’t want to deal with him. She said well I’ll go deal with him, I said no you won’t, no you won’t (inaudible) with Michelle, see if anyone thinks I’m being paid too much, I’ve given Michelle half my fee ...

(g) “the thing between Michelle and I, is I’m at the start of my career, she’s at the end of hers ... Where she wants to go in there and blow shit up, I’m thinking ... I’m not going to be retired in five years ... I’m still going to be working.”

(h) “And I’ll tell you, and if I don’t have those expenses by tomorrow night, and I tell Michelle that, she’s going to engage a QC for me, to say here’s what Jevan and Ally went to do, looks like it hasn’t worked, you know? ... and she already, she already knows who’ll she engage to do that, I don’t want to do that because then it becomes stupid, and really fucking counter-productive to what this whole things about. But it just leaves, it leaves, I mean, I’m not going into it, I refuse to believe that I’ve asked and hopefully you’d think the same for yourself, to go to jail for this shit.”

(i) “If the expenses aren’t sort of covered, sort of by the end of tomorrow, he has another problem ... and it’s not me, it’s Michelle ... and he doesn’t want her as a problem”. Mr Yikar responds to this by saying “yeah, yeah I would not mess with Michelle ... she’s infamous.”

(j) “If by tomorrow night, that’s not done, she’s going to get, well we’re both going to get a feeling of, this isn’t going to happen. We’ve gone. We’ve gone and thrown ourselves out there for no reason. She’s going to engage a very well known QC. She’s going to get a QC behind me. It’s uh, does, she just wants me, she, she’s you need to understand ... She’s not acting from a business point of view, she’s acting from a I’m going to protect my person point of view ... So I just want to resolve this thing, you ... Michelle’s apartment and you can work together ... And I guess, I guess she doesn’t buy, you know ... that something with so much wealth can’t (inaudible)”.

(k) “I haven’t just brought myself into this. I’ve brought Ally into this. I brought Michelle into this ...”

(l) “But at this point if there is an issue, Michelle and I are more than ready to sit down and meet him.”

The Issue

[19] Had the Family Bar recording been proposed evidence in the District Court would I have granted Ms Boag name suppression? The answer is no.

[20] Before setting out the principles that apply, the correct approach on this application is, I believe, to put myself back to the position that existed when the application was made. It is the decision I made in March 2019 that is sought to be revoked. The wording I used was:

“her application for name suppression was granted subject to their being no material change to the factual basis on which it was advanced.”

[21] The reasons for the name suppression dealt with at that time were contained in the reasons ruling given on 21 March 2019. Paragraph [4] of that ruling I stated:

“[4] My decision to refuse the application of the two applicants (Mr Goulter and Ms Edmonds) and allow the application of the third came prior to the knowledge of the new evidence which brought about the trial being aborted. As my reasons for the name suppression decisions was in the absence of that information that forms no part of this judgment.”

[22] The evidence which the applicants argue they should be entitled to publish was actually evidence that was heard in the High Court trial. It was not evidence in the District Court. While the late disclosure of the Family Bar recording was the cause of the mistrial in the District Court it was not evidence in the trial as such. What the applicants seek to publish and what the respondent seeks to suppress was evidence that was adduced in the High Court. The District Court trial was aborted before Ms Boag was called to give evidence.

What was the factual basis on which I granted Ms Boag name suppression?

[23] In summary the factual basis on which the respondent was granted name suppression is as follows:

• (i) Ms Boag was to be a witness in the District Court trial. The status of being a witness is important.
  
• (ii) The assertion was that publication of her name would cause her undue hardship. No one challenged that proposition. However, the application arose at short notice, was dealt with at short notice and the media had little opportunity to respond and little opportunity to instruct counsel.
  
• (iii) Ms Boag was being called as a witness to deny a claim by W that she had been instructed by him or that he believed payments he made were for the purpose of her providing reputational management.

• (iv) She had received no payment and was happy for her financial records to be investigated.
  
  • (v) There was no suggestion that Ms Boag had ever been involved in the alleged plot to persuade a witness nor had any knowledge of it.
    
  • (vi) Any ability to defend herself publicly would be diminished by the defendants having name suppression if she did not.
    
  • (vii) Mr Goulter and Ms Edmonds had applied for name suppression. Although that was refused appeal rights meant that name suppression continued during the course of the District Court trial.
    
  • (viii) From Ms Boag’s formal statement it can be ascertained that she knew Mr Goulter had a business relationship with W regarding a matter before the Courts and that Mr Goulter had visited Brisbane at some point in relation to that.
    

[24] Other than the matters in paragraph [24](viii) above the only real inference that can be taken from her affidavit and her formal written statement, in support of her name suppression application, is that she had no knowledge of what Mr Goulter planned with others, no knowledge of what he did in terms of attempting to dissuade a witness and she had no involvement in that at all. That was the position before me in March 2021.

What Changed?

[25] To appreciate what changed is best illustrated by the following evidence in the High Court. It is questioning by counsel for W, Mr DHP Jones QC, of the officer in charge [Detective Y]:

“Q. Now in the Family Bar recording, sorry start again. In Mr Wallace’s response to the allegations concerning the attempting to pervert, this is at tab 3 page 42, this is his letter of 11 April 2018.

A. Yes.

Q. He refers to, on page 43, second page of the letter, he talks about engaging Goulter & Associates and talks about looking to engage Michelle Boag and describes why.

A. Yes.

Q. Now you took a statement from Ms Boag in the days following this, is that right?

A. Yes, that’s right.

Q. And she was going to be called as a witness in the trial when it was scheduled for March 2019?

A. She was.

Q. And then we had the Family Bar recording disclosed by Ms Edmonds partway through that trial.

A. That’s right.

Q. And Michelle Boag is mentioned repeatedly in that, isn’t she?

A. She is.

Q. And is it fair to say that she is referred to as a co-conspirator or co-offender?

A. In that – yes in that recording, I think that’s fair.

Q. So after you receive this recording and you listen to it, she is put in a somewhat sinister light, isn’t she?

A. Yes, in that recording. I agree.

Q. So have you interviewed her about what she said in the Family Bar recording?

A. No.

Q. Have you had any contact with her at all since you got the Family Bar recording?

A. Yes there’s been a couple of phone calls.

Q. Was that to tell her she was no longer required as a witness?

A. One of those phone calls was.

Q. Okay. So you have someone who is being said to have been donkey deep in this situation by Mr Goulter, and you don’t try and interview her?

A. No I haven’t.

Q. And you’re the last witness to give evidence for the prosecution?

A. I am.

Q. And was a decision made either towards the end of last year or beginning of this that she would not be called as a witness for the Crown?

A. The decision was made not to call a number of people as witnesses for the Crown, she’s one of them.

Q. She’s one of them.

A. Yes.

Q. Okay. So in terms of a sequence, she’s going to be a witness, then Family Bar recording, not interviewed, not going to be a witness. Is that it?

A. If that’s the sequence, yes.

[26] When Ms Boag’s application was before me in the District Court she was to be a witness. Had I refused her application any involvement she is said to have in matters, as contained in the Family Bar recording, would have had to have been put to her. One of the defendants might have questioned her to the effect that Mr Goulter’s statements in the Family Bar were just an example of his ability to lie and deceive and sought her agreement to that.

[27] Alternatively it could have been put to her that she had knowledge and that she had discussed matters with Goulter, such a proposition supporting W’s claim he believed she had been instructed or Goulter had been instructed so as to access the “reputation management” skills of Ms Boag.

[28] This is not to suggest a trial within a trial for a respondent who had not been charged. Nor to suggest any part of the task of deciding an application for name suppression is to determine whether a witness is complicit in serious allegations. However, my decision was made on the basis that there was no evidential foundation at all to suggest Ms Boag had any involvement or knowledge in the conspiracy to dissuade a witness. The Family Bar recording is to the opposite effect. In addition the Family Bar recording was of such significant importance that it brought about a mistrial in the District Court. It was important evidence in a case involving serious allegations and the applicants’ wish to report fully on that evidence.

[29] As already stated on more than one occasion above, in any event in the District Court the factual basis before me was that Ms Boag was to be a witness. If the Family Bar recording was to have been evidence in the District Court Ms Boag had as a witness a platform to respond and reject claims that Mr Goulter makes in the Family Bar recording. Suggestion of unfairness arising from not being able to respond significantly evaporates.

[30] I do not know why the Crown ultimately elected not to call Ms Boag. For this application it is largely immaterial. As stated the task on this application is to put myself back in the position I would have been in if I had known about the Family Bar recording.

[31] Central to Mr Salmon’s argument that there has been no material change was that Mr Goulter in a subsequent statement to the police about the Family Bar recording said his statements in that recording about Ms Boag’s involvement were untrue. In other words he is said to have recanted. However, his statement to the police on such matters was not the subject of sworn testimony and weren’t the complete picture in relation to his evidence in the High Court. When asked about text messages he had sent to Ms Edmonds2 Mr Goulter accepted he had sent a text message on the 8th of March 2019 which said as follows:

“Michelle got her name suppression, [name deleted] said part of the strategy, so all good.”

[32] He accepted that he went through his name suppression affidavit with Ms Boag3, that the first meeting of any substance that he had with Mr Y about the events which culminated in the Gold Coast was at the Sebel and that it was possible that Ms Boag had been at his apartment prior to Mr Y arriving and left after he arrived4.

[33] Mr Goulter denied splitting his fee with Ms Boag but agreed that prior to the Family Bar meeting he had spoken to Ms Boag and taken advice from her about his position.

2 High Court Notes of Evidence page 564, line 29

3 Page 579 of High Court notes of evidence

4 Pages 586 and 587

[34] I have stressed in other parts of this judgment that what was before the High Court is not for me, and it is not. However it is too simplistic to say that Mr Goulter had made a statement where he recanted what he had said in the Family Bar and I can therefore treat what he said in the Family Bar as hot air and scurrilous statements of Ms Boag’s knowledge of matters. And that they are indeed so scurrilous that what was said in the Family Bar was or is of such little credibility that in effect there has been no change in the position before me.

[35] In other words what played out in the High Court was not and could never have been before me. What should have been before me was the Family Bar recording. It was not before me.

What are the principles that govern the application?

[36] In the context of suppression of name or evidence, in Adams on Criminal Law the learned authors state5:

“205.01 Presumption in favour of open reporting

There is a strong presumption in favour of the principle of open justice. On that principle, there should be no restriction on the publication of information about a criminal case except in special circumstances: Re Victim X [2003] NZCA 102; [2003] 3 NZLR 220, also reported as Victim X v Television New Zealand Ltd [2003] NZCA 102; (2003) 20 CRNZ 194 (CA). See also [CPA196.01] and [CPA198.01]. This section gives effect to that approach by articulating in restrictive terms the grounds upon which publication of evidence and submissions may be suppressed.”

[37] The submissions before me focused, not exclusively but in significant part on the Court of Appeal decision Parker v R and Stuff Limited6 and the decision in the High Court which led to that appeal of X v R and Stuff Limited7.

[38] Joseph Parker in those cases was a connected person. He was not a witness. There was in those cases discussion about his inability to defend himself. Parker’s case is different in that he was not a witness but was a connected person. In the evidence in the trial serious assertions were made against him. Therefore Parker does

5 Adams on Criminal Law, Westlaw NZ CPA 205.01

6 Parker v R and Stuff Limited [2020] NZCA 502

7 X v R and Stuff Limited [2020] NZHC 1345

not deal with the situation of someone who was to be a witness but nevertheless many of the principles in that case are still applicable here8. In the Court of Appeal the Court observed there as follows:

[40] Mr Heron also submits that the Judge did not give adequate consideration to the presumption of innocence generally applicable to not only persons accused (under s 25(c) of the New Zealand Bill of Rights Act 1990), but also to other persons whose names are mentioned in evidence. He submits that the Judge had drawn inferences from the evidence to suggest that Mr Parker may have been culpable of serious wrongdoing without affording him the right to be presumed innocent.

[41] We do not accept that submission. We agree with Ms Thomson that that misconstrues the consequence of open reporting of what is said in a courtroom. Necessarily references at trial to alleged misconduct by a person not charged remain unproven against that person. Mr Parker has not been charged, and apparently is not to be charged. The implicit underlying assumption in a finding of undue hardship in this context is a working assumption that the allegations are untrue, because of the very presumption of innocence that applies to any allegation, whether the subject of charge or not. It may also be observed that a lower threshold standard of hardship applies to connected persons (undue hardship) than applies to acquitted defendants (extreme hardship).

[42] Secondly, Mr Heron submits that considering open justice as a separate factor was akin to double counting because that concern was facilitated by the threshold test Parliament had set. It is not therefore a relevant consideration in the second stage under s 202. We do not accept that submission either. Open justice is the starting point at the second stage of a s

202 analysis. It would be entirely wrong to disregard that fundamental consideration in the exercise of discretion. It is the anchor point of that discretionary analysis. As Mr Stewart suggests, it is “the” factor against which all considerations favouring suppression must be weighed.

[39] Therefore had the Family Bar recording been before me at the time of Ms Boag’s application for suppression in March 2019 her application would have been refused for these reasons:

• (i) What was in effect sought to be suppressed was not just Ms Boag’s name. If her name was to be suppressed the media would not have been able to report fully and accurately on a material part of highly relevant evidence. It was evidence of a discussion between three co-conspirators. Two had immunity.
  

8 I note the distinction that the respondent was to be a witness when I made the decision for suppression in March 2019, but was ultimately a connected person and not a witness in the High Court.

The other was a defendant. The statements of the co-conspirators were admissible against W as a co-conspirator. It was not and is not for me to decide if Mr Goulter’s statements in the Family Bar are true. It was material evidence in the proceedings. By giving Mr Goulter immunity and putting him forward as a witness of the truth the Crown position was that on critical aspects he could be believed.

(ii) Ms Boag was to be a witness. She would have had the ability to respond within the proceeding.

(iii) Open justice principles are fundamental and well known. A part of those principles is both open reporting of the evidence and scrutiny of the actions of prosecuting agencies.

(iv) Ms Boag was a friend and business associate of Mr Goulter. This would not have been a situation of saying “a person unknown to me has made scurrilous baseless allegations involving me, they are rejected but the mere making of the allegations which I cannot defend in the same form will cause me undue hardship.” In this case as a witness Ms Boag would have had every opportunity to respond to the Crown evidence that Mr Goulter had created. She would have been responding to statements which had come from a person well known to her, Mr Goulter.

[40] Therefore for those reasons, had I been presented with the full picture I would not have concluded Ms Boag would have suffered undue hardship by reporting of the evidence where her name is mentioned in the District Court. In those circumstances the exercise of the discretion would not have arisen. Even if I had been persuaded that undue hardship did arise for her I would, in these circumstances, have exercised the discretion in favour of open reporting of the Court proceedings.

[41] The Court’s role is not one of censorship and the presumption the media will report in a balanced way must be given effect.

Conclusion

[42] The order for name suppression made on 15 March 2019 in terms of the District Court trial in favour of Ms Boag is revoked. Given what is in issue is evidence that was heard in the High Court the order of revocation is to take effect from 5pm 4 October 2021 or such time as the High Court gives a decision on any application for suppression of Ms Boag’s name in terms of the High Court trial.

R J Collins

District Court Judge