Poa v Police HC Napier CRI-2011-441-000014 [2011] NZHC 1009 (11 July 2011)

Last Updated: 29 September 2011

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

_{CRI-2011-441-000014}

BETWEEN JANE POA Appellant

AND NEW ZEALAND POLICE Respondent

Hearing: 7 July 2011

Appearances: M J Phelps for Appellant

J D Lucas for Respondent

Judgment: 11 July 2011 at 5:00 PM

_{JUDGMENT OF COURTNEY J}

Solicitors: Elvidge & Partners, P O Box 609, Napier 4140

Fax: [phone] – J D Lucas

Counsel: M J Phelps, C/o Tony Snell Barrister, 305 Market Street South, Hastings 4122

_{Fax: [phone]}

POA V NZ POLICE HC NAP CRI-2011-441-000014 11 July 2011

[1] Following her acquittal on two charges of dishonestly using a document the appellant unsuccessfully sought permanent name suppression. She now appeals the decision of Judge Rea refusing that application.

[2] The charges were brought against the appellant and one other in relation to false applications for Ministry of Education funding in relation to a childrens’ play group. The appellant’s co-accused admitted deliberately making the false applications and was convicted. The appellant successfully defended the charges on the basis that, although negligent in signing the documents without checking them or making any enquiries, she had not been dishonest.

[3] Prior to the hearing Chisholm J had granted interim name suppression on the basis that the stigma that would attach even in the event of an acquittal would be greater in the appellant’s case than it might ordinarily be because of her high standing and extensive volunteer involvement in her community. In addition, the offending was not of the most serious kind; the total amount involved was about

$1,500 and there was no suggestion of personal gain.

[4] Notwithstanding that the appellant’s situation was the same, save that she had been acquitted, Judge Rea took an entirely different view about the issue of permanent name suppression. He emphasised the importance of open justice and the right of the public to know what was happening in the courts and that the appellant’s standing was in itself a reason that justified the public knowing what the charges had been and what the defence had been. Judge Rea said:

[7] ... this is not an issue of punitive response. It is an issue as to whether the community are entitled to know what is happening in the Courts and whether persons’ names should be published. In this situation a lady who has considerable experience in the commercial world, certainly as far as community organisations are concerned, put forward as a defence to a criminal charge a completely negligent approach to documentation involving public funding. In my view it is a matter of public interest that that should be known and, on that basis, I consider that suppression should no longer be continued. As I have already said it is not a case where that is as a punishment, it is simply recording the way that the hearing has proceeded, the basis on which the defence was advanced and the ultimate result. There was no criminal culpability. However, in my view, the community is entitled to know that Ms Poa was charged and that her defence to the

charges was, as I have said, one of negligence in relation to financial matters.

[5] In refusing permanent name suppression Judge Rea was exercising a discretion. As a result, this Court could only interfere if satisfied that the Judge had acted on a wrong principle or failed to take into account some relevant matter or took account of some irrelevant matter or was plainly wrong.[1]

[6] The principles that governed the Judge’s decision are uncontentious. In R v

Liddell this Court observed that:[2]

In considering whether the powers given by s 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.

[7] Those principles were re-affirmed by the Court of Appeal in Lewis v Wilson

& Horton Ltd.[3] Emphasising the presumption in favour of open reporting, the Court also identified factors to consider in determining whether that presumption had been

_displaced:

Whether the applicant for name suppression was convicted or acquitted;

An acquittal might mean that the Court will more readily order permanent suppression;

The seriousness of the offending;

The adverse impact upon the prospects for rehabilitation of a convicted person;

The public interest in knowing the character of the person seeking name

_suppression;

Circumstances personal to the applicant, their family or colleagues and impact on professional or financial interests.

[8] Mr Phelps, for the appellant, submitted that the Judge had made an error of law in determining that it was in the public interest to know the nature of the appellant’s defence and particularly the fact that she had acknowledged negligence in relation to the financial affairs of the play group. He acknowledged that the position would have been entirely different had she been convicted of dishonesty. However, an acknowledgement of negligence against the very considerable contributions that the appellant had made to her community over a great many years gave less of a foundation for concluding that it was in the public interest to know about this defence.

[9] Mr Phelps submitted, further, that refusing permanent name suppression would have an unduly punitive effect. In particular, it was likely that her involvement in community organisations would be less in the future, either because of the chilling effect on her of the publicity or on the organisations with whom she might deal. In this regard, I note that in her submissions made in support of the application for interim name suppression, counsel advised that the appellant had been required to resign from a number of community positions in the face of the allegations against her.

[10] Whilst it might be said that the acquittal will now remove the concerns that led to that situation it is generally accepted that, as Fisher J observed in M v Police, the stigma associated with a serious allegation will rarely be erased by a subsequent appeal.[4] Fisher J’s comments were made in the context of a pre-trial application. However, his comments are as apt in the present context as in the pre-trial context.

[11] In opposition to the application, Mr Lucas submitted that the Judge made no error in his approach. He correctly identified the relevant principles, correctly identified the relevant factual considerations and exercised his discretion properly. Mr Lucas particularly noted the Court of Appeal’s observation in Liddell that

_{permanent name suppression:}

... is available when the accused is acquitted and may be applied in such a

case more readily, although the Ontario decision in R v Dalzell (1991) 63

CCC (3D) 134 is a reminder that the public may have an interest in acquittals.

[12] In this case Mr Lucas pointed out that the public did have a genuine interest in the case, not so much because of the acquittal but because of the reason for the acquittal, namely the appellant’s acknowledgement of negligence in the conduct of her work. He submitted that the public ought to be able to have the relevant information about the appellant, particularly for community organisations that are reliant on being able to trust their volunteers.

[13] I consider that the Judge approached the application in accordance with the established principles. I am not satisfied that he overlooked any relevant matter. In my view the Judge was entirely right to consider that there was a genuine public interest in the manner in which the appellant undertook her work, particularly as regards the financial management of the organisation in which she was involved. I accept Mr Lucas’ submission that, especially for community organisations which rely on volunteers, the issue of honesty is not the only concern; such organisations must be able to rely on volunteers who are able and prepared to discharge their obligations with reasonable care and skill.

[14] One cannot but have sympathy with the appellant having contributed to her community for such a long time and in so many ways. However, her personal circumstances do not, in this particular case, overcome what is a clear public interest

_{in knowing the full facts of the case. The appeal is dismissed.}

P Courtney J

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[1] _{May v May (1982) 1 NZFLR 165; Blackstone v Blackstone [2008] NZCA 312.}
[2] _{R v Liddell [1995] 1 NZLR 538 at 546.}
[3] Lewis v Wilson & Horton Ltd [2000] 3 NZLR 546.

[4] M v Police (1991) 8 CRNZ 14.