M V DEPARTMENT OF INTERNAL AFFAIRS HC HAM CRI 2009-419-42 [2009] NZHC 872 (23 July 2009)

   ORDER PROHIBITING PUBLICATION OF NAME OR IDENTIFYING
             PARTICULARS OF THE APPELLANT.


IN THE HIGH COURT OF NEW ZEALAND
HAMILTON REGISTRY
                                                                       CRI 2009-419-42



                    
                       M
                                         Appellant



                                              v



                     DEPARTMENT OF INTERNAL AFFAIRS
                               Respondent



Hearing:        23 July 20090

Appearances: A J Hamblett for the Appellant
             S N Cameron for the Respondent

Judgment:       23 July 2009


        
            ORAL JUDGMENT OF WOODHOUSE J




Solicitors:
Mr A J Hamblett, Barrister, Hamilton
Ms S N Cameron, Almao Douch, Office
of the Crown Solicitor, Hamilton



M V DEPARTMENT OF INTERNAL AFFAIRS HC HAM CRI 2009-419-42 23 July 2009

[1]    The appellant
has appealed against refusal to continue an order for name
suppression. The decision was made on guilty pleas being entered on 18
June 2009
to 15 representative charges of possession of objectionable publications, namely
child pornography. The case was adjourned
on 18 June to 19 September 2009 for
sentence.


[2]    Judge Tompkins refused to continue interim suppression because of the
guilty
pleas and the absence of any evidence to support the application. No further
consideration to the application is recorded, but in
the circumstances before Judge
Tompkins, with the guilty pleas and the absence of any evidence, that decision is
entirely understandable.
Putting it in a formal way, there was no error of principle
on the basis of what was before the Judge.


[3]    There is now evidence
before the Court. There is, firstly, at least some
evidence of suicidal tendency. There are indications that this may in fact stem
not
solely from concern about publication but from an underlying medical condition.
The appellant has suffered from severe rheumatoid
arthritis for many years. It is
described by his doctor as the worst case he has seen. This aspect of the evidence
can be assessed
in different ways, but it does on one basis point to an important
consideration which may distinguish the appellant's case from others
where there is
some evidence of suicidal tendencies because of the possibility of disclosure.


[4]    There is also some evidence
of a possible adverse impact on the appellant's
wife. This is not only from distress for her and embarrassment in a reasonably small
community ­ the sorts of things that will usually follow for families. There is an
indication in an affidavit from her of concern
that she will lose her employment. The
evidence is flimsy. It is simply an expressed concern on the part of the appellant's
wife,
but it is, of course, difficult to obtain independent evidence because that would
probably require disclosure of the circumstances
to the employer so the process of
seeking name suppression would to an extent become self defeating. This evidence,
as far as it
goes, is also relevant to the family's circumstances because it appears that

the appellant is also not producing income at present,
although again the evidence is
a little uncertain.


[5]       There is also some limited evidence of the possibility of adverse
impact on
the appellant's parents, although nothing at present to suggest that that would be
beyond what would normally be expected.


[6]       Although the application in form may have been one for permanent name
suppression, I would not consider that at this
stage of the proceeding. The question
therefore is whether there should be continued interim suppression, at least until
sentencing
scheduled to take place on 9 September 2009. Giving due weight to the
fundamental principle that usually there should be publication,
and all of the relevant
considerations referred to in Lewis1 and other cases, I do consider that there is
sufficient to warrant continued
interim suppression at least until sentencing.


[7]       In addition to the evidence that I have referred to there is the fact that, at least
to an extent, questions of publication
may be seen as an element of sentencing, and
to that extent questions of publication are certainly better assessed at the time of
sentencing when the Court has all relevant information before it. I note that a pre-
sentence report has, in the usual way, been
called for for the purposes of sentencing.
Also relevant is that if there is continued interim suppression at this point this will
not in any material way interfere with the fundamental principle that in most cases
the public is entitled to know. Continuing the
interim order now does not involve
any final determination affecting the public's right to know.


[8]       I therefore make an
order for continued suppression of the appellant's name
until 9 September 2009, or any adjournment of the sentencing date, with the
question
of any further name suppression to be a matter for the District Court.


[9]       This order is made for the limited reasons
I have outlined. It should not be
regarded as a precedent. More importantly, in respect of the present case it should
not be regarded
as any sort of indication that there will be permanent suppression of


1
    Lewis v Wilson & Horton Ltd  [2000] 3 NZLR 546 (CA)

name. What is more, although it is entirely a matter for the appellant and his
counsel, it may very well be that more substantial
and more focused evidence will be
required if an application for permanent name suppression is made. Those are
matters that were
discussed with Mr Hamblett in the course of submissions.




_____________________________
Peter Woodhouse J