Hutt v Serious Fraud Office HC Wellington CRI 2010-485-136 [2011] NZHC 123 (18 February 2011)

Last Updated: 25 May 2011

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

_{CRI 2010-485-136}

GREGORY ALEXANDER HUTT

Appellant

v

SERIOUS FRAUD OFFICE

Respondent

Hearing: 22 February 2011

Counsel: Dr D Stevens QC for Appellant

A McCubbin-Howell for Respondent

Judgment: 18 February 2011

_{JUDGMENT OF RONALD YOUNG J}

Introduction

[1] Mr Hutt faces three charges alleging corrupt secret commissions arising from a payment allegedly made by him to a co-defendant. The co-defendant, who has now pleaded guilty, was employed by the Accident Compensation Corporation. The allegations relating to Mr Hutt arise from property rentals by the Corporation.

[2] Mr Hutt first appeared in the District Court on 23 November 2010 and was given interim name suppression. After full argument on 16 December 2010 a

_{District Court Judge declined an order for suppression of name.}

GREGORY ALEXANDER HUTT V SERIOUS FRAUD OFFICE HC WN CRI 2010-485-136 18 February 2011

[3] Mr Hutt now appeals from that refusal.

[4] Two initial matters. Section 140 of the Criminal Justice Act 1985 gives a broad statutory right to prohibit the publication of identifying particulars of an accused. The principles relating to s 140 are well known. The presumption in favour of publication applies. This can be overcome by appropriate evidence together with the presumption of innocence. I do not propose to repeat them here.

[5] There is some disagreement within the High Court as to how to approach such appeals. In the circumstances I do not propose to add to the jurisprudence in this area. What I propose to do is approach the appeal on the basis of a reconsideration of the application. Of necessity this involves a consideration of the District Court Judge’s decision.

[6] The appellant summarises the ground of his application in this way:

What he is concerned about is the substantial harm that would flow to his business interest and the welfare of employees of, and contractors to, his business if his name were to be published in relation to an allegation, without the remedy for many months, if not a year, of an acquittal.

[7] The appellant’s submissions focussed on what were alleged to be five errors by the District Court Judge. They were:

(a) failing to give sufficient weight to the adverse consequences to the appellant and the adverse consequences to the employees of the appellant’s companies and the contractors to those companies;

(b) limiting the scope of s 140;

(c) failing to take into consideration the impact of publication of the

appellant’s name on the business of Hi-Tech companies;

(d) an error in the exercise of her discretion when the Judge said that harm to the appellant and those engaged with him in business from publication of his name is part of criminal proceedings and may be an intended part of the process; and

(e) expressly negating the presumption of innocence as a factor to be taken into account.

[8] Mr Hutt in his affidavit said until recently he had been the manager and sole director of Hi-Tech Commercial Interiors Wellington and Hi-Tech Commercial Interiors Auckland. He recently resigned from both positions in view of the charges he faces. He has developed these companies over 20 years. They specialise in the design and commercial fit out of new and existing buildings as well as the construction of new buildings. Hi-Tech Wellington employs eight office staff and four labour only carpenters. The Auckland Hi-Tech office employs two administrative staff and two carpenters. Trade sub-contractors are engaged by Hi-Tech on individual projects.

[9] Mr Hutt says that his “name and face are an integral part of, and are at the forefront of, the Hi-Tech brand”. He says that no doubt many in the construction industry and commercial market would know of his association with Hi-Tech.

[10] 70 percent of Hi-Tech’s work is obtained from tenders and of that 60 percent is work for government organisations. Mr Hutt says that he is “certain publication of my name prior to trial would destroy the Hi-Tech businesses”. He considers the commercial organisations to whom he tenders for work are sensitive to public perception. For example he mentions that his company has contracts with a large international telecommunications company and others such that the company’s expert earnings are currently $2 million and expected to significantly expand. Mr Hutt expects that this company would distance themselves from Hi-Tech should his name be published. They would not wish to be involved with Hi-Tech if it became publicly known that he was facing these criminal charges.

[11] If the work to Hi-Tech dried up then staff would have to be laid off, management jobs would disappear, carpenters would have to be stood down and subcontractors would be affected. He says these would be severe and harmful consequences for those people.

[12] There is no suggestion that any publicity of Mr Hutt’s name will affect fair trail issues for him.

[13] It is difficult to assess Mr Hutt’s assertion that Hi-Tech’s business will be destroyed if it is publically known he has been charged. Obviously, in the current context it is in Mr Hutt’s interests to make this claim.

[14] I accept that there will be an effect on his businesses but it is difficult to assess how much effect there will be from publication of his name. The appellant provided no detailed financial information regarding his companies. It is not possible to assess their current financial state. How much future work is covered by existing contracts and how much the company relies on new contracts is not known. It may be that many of those who do business with Mr Hutt will take the view that Mr Hutt is entitled to the presumption of innocence and that it would be improper and unfair of them to judge him before his trial. Those who he deals with will generally be sophisticated and well educated and will readily understand these are only allegations. They may therefore delay judgment and continue to assess contact with him on a commercial basis.

[15] The allegation before the Court relates to a claim of corruption of a public official. In those circumstances it could legitimately be said that the public and especially government departments and other commercial enterprises that Mr Hutt deals with are entitled to know about the charges he faces. They may fairly consider this information is relevant to a decision regarding future business. To prevent

access to this information is a factor to be taken into account in this assessment.[1]

[16] My conclusion is that while I accept there will be an effect on Mr Hutt’s companies I am not satisfied the catastrophic effect claimed has been established. It cannot be said, therefore, that the potential effect on Mr Hutt and his company is somehow out of the ordinary or exceptional. Whenever a businessman is charged with some form of dishonesty, publication of his or her name is likely to affect their business. There is no principle that exempts those alleged to have committed white

_{collar crime from the established approach to suppression of name accepting that}

each case must be assessed on its own facts. There is nothing about Mr Hutt’s circumstances that, in my view, can be assessed as exceptional given the context of the crime he faces.

[17] Mr Hutt’s name is already at least in part in the public arena. Websites have published his name as one of those associated with his co-accused. Ordinarily courts are reluctant to make suppression orders where the name of an accused is already in the public arena. However, it is difficult to assess how extensively Mr Hutt is known as a co-accused. I consider this matter is of modest significance in this case.

[18] There is nothing here in my view that justifies suppression of name and overcomes the prescription of open justice in the Courts.

[19] The District Court Judge was right to refuse suppression of name. I do not think she erred. She gave weight to the consequences for the appellant and his business. Sufficiency of weight is not generally an appeal ground.

[20] I do not consider she limited the scope of s 140. The Judge was entitled to take into account the fact that Mr Hutt’s name was publically known albeit in a limited way.

[21] As to whether publicity for those facing criminal charges pre-plea is “not necessarily an unintended part” of criminal proceedings, if the Judge was suggesting that publicity of offending is part of the criminal sanction then that cannot be a factor pre-conviction. However, here the Judge was probably referring to the fact that there are consequences of publicity for an accused and those associated with him in criminal proceedings and this is a price of open justice. Ground of appeal [6](c) is effectively a repeat of [6](a) which relates to the consequences of a conviction.

[22] I do not see the Judge’s comments in [38] of her decision as undermining the presumption of innocence as a factor in considering suppression of name. Overall, I see no reviewable error in the Judge’s decision.

[23] In any event having brought my own independent assessment to the position I

am satisfied Mr Hutt’s name should not be suppressed.

_{[24] The appeal will be dismissed.}

_{Ronald Young J}

Solicitors:

Dr D Stevens QC, PO Box 41088, Eastbourne, Wellington 5047

G J Burston, Luke Cunningham & Clere, PO Box 10 357, Wellington, email: [e-mail]

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[1] Proctor v R [1997] 1 NZLR 295.