Sula-Wongsee v Inland Revenue Department [2012] NZHC 974 (9 May 2012)

Last Updated: 21 May 2012

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI 2012-409-19 [2012] NZHC 974

BETWEEN LOTTE SULA-WONGSEE Appellant

AND INLAND REVENUE DEPARTMENT Respondent

Hearing: 9 May 2012

Counsel: No appearance for Appellant

A Raj for Respondent

Judgment: 9 May 2012

_{ORAL JUDGMENT OF GENDALL J}

[1] This is an appeal by Lotte Annalisa Sula-Wongsee against a refusal by District Court Judge R E Neave made on 1 March 2012 declining to grant to the appellant an order permanently suppressing publication of her name.

[2] She had pleaded guilty to seven charges of dishonestly using a document to obtain a pecuniary advantage, one of knowingly providing a false tax return to obtain a refund to which she was not entitled and one charge of dishonestly accessing a computer system. She was sentenced to six months’ community detention, 175 hours community work and ordered to pay $19,796.67 in reparation.

[3] She appealed against the refusal to grant her name suppression. Mr McCormick, on her behalf, has not been able to attend at Court today. He has indicated through an email to the Registrar that the appellant intends to abandon her appeal but he has not been able to file a formal notice of abandonment at this stage. I propose, therefore, to deal with the appeal in a short oral judgment which will

_{dismiss it on its merits.}

SULA-WONGSEE v INLAND REVENUE DEPARTMENT HC CHCH CRI 2012-409-19 [9 May 2012]

[4] The appellant was employed by the Inland Revenue Department between October 2008 and June 2010. She devised a scheme through preparing and filing false tax credit claim forms for herself and others thereby fraudulently obtaining

$19,000. She was able to hide her frauds through a number of devices. She said that she had developed a gambling addiction which is highly probable given that she had no previous convictions and an otherwise unblemished history. She pleaded guilty quickly after being charged. No issue is taken with the sentence Judge Neave imposed, given the breach of trust employer and the fraudulently obtaining of public funds.

[5] Counsel for the appellant sought an order for suppression of publication of the appellant’s name. Essentially she advanced two grounds. Firstly, that the publication would lead to harm occurring to the appellant’s mother and secondly, similarly, harm to her sister.

[6] The appellant’s mother was referred to by Judge Neave as being concerned for her position in the Samoan Catholic Church and as a treasurer of a women’s fellowship group to the extent that she was ashamed and mortified and tried to resign. The Judge said that the church refused to accept the resignation being aware of the circumstances and there was no suggestion the sins of the daughter were to be visited upon the mother. He noted that which is well know that there is inevitably a shadow cast on families of those who commit crimes.

[7] The appellant’s sister’s position is outlined in an affidavit before Judge Neave to the effect that she coincidentally was employed by the Inland Revenue Department as an investigator. She was concerned that publication of the appellant’s name would lead to her being victimised as an employee of the department and have her integrity unfairly questioned. Judge Neave observed that the employer knew of the fact of the relationship between the sisters and, obviously, knew that the appellant had offended. Judge Neave said the appellant’s sister was no worse off than she already was. It was, he said, nonsense for it to be advanced that her position would be compromised. He noted, in addition, that the two sisters had

different names so there was nothing for them to be connected other than through people who already knew of the situation.

Discussion

[8] Appeals against refusal to grant suppression of name are appeals against the exercise of a discretion. The appellant approaches that articulated by the Court of Appeal in May v May[1] namely that:

... in ... an appeal of this kind an appellant must show that the Judge acted on a wrong principle; or that he failed to take into account some relevant matter or that he took account of some irrelevant matter or that he was plainly wrong.

[9] Notwithstanding the Supreme Court decision in Austin, Nichols & Co Inc v Stichting Lodestar[2] the Court of Appeal has confirmed that those principles still apply to appeals against the exercise of a discretion Blackstone v Blackstone.[3]

[10] What is necessary if the appeal is to succeed is for it to be shown that Judge

Neave erred by:

(a) making an error of principle; (b) considering irrelevant matters;

(c) failing to consider relevant matters; or

(d) that his decision as plainly wrong.[4]

The test has recently been discussed by the majority judgment in Rowley v Skinner v

_{The Commissioner of Inland Revenue.}[5]

[11] The principles that apply in considering orders suppressing publication are so well known as to not need detailed discussion. There have been may decision since R v Liddell[6] and Lewis v Wilson & Horton Ltd[7] which emphasise that it is the public interests that underpins a presumption of publication and a Judge must identify and weigh the interests, public and private, relevant in the particular case to determine whether the principle of open justice should yield to individual interests the importance of freedom of speech recognised by s 14 of the New Zealand Bill of Rights Act 1990 is an established starting point but of course there is a general

discretion to prohibit publication of a person’s name or identifying particulars but the starting point of open justice does not mean of course that there can never be suppression of name and that is emerging from the decisions and as discussed in Lewis v Wilson & Horton Ltd will include:

(i) Whether a defendant is acquitted or not there remains a public interest in knowing of those who have been acquitted and of those who have been charged and await trial.

(ii) The seriousness of the offending.

(iii) The public interest in knowing the character of the person accused.

(iv) Circumstances personal to the accused and whether some damage out of the ordinary would be disproportionate to the public interest in open justice.

[12] I think the public interest is more directed to the issue of there being open justice rather than the public interest in knowing the identity of any particular accused in order to displace the presumption of favour of reporting some damage to

_{an accused out of the ordinary and disproportionate to the public interest in there}

being open judicial proceedings is normally required. This is obvious from the remarks of Cooke P in R v Liddell.[8] As was said in M v Police:[9]

The public should know what is going on in the public institutions. It is important that justice be seen to be done.

[13] In the present case the offending was relatively serious. It involved multiple serious breaches of trust by an employee involving deceit and fraudulently obtaining public funds. The sentence imposed reflected the otherwise good character of the appellant and the absence of previous convictions. Publication of her name and the convictions unquestionably would lead to embarrassment and considerable discomfort on her part. So too, distress and embarrassment would be likely to occur to her mother and sister. But as Judge Neave observed some damage inevitably would follow from publication and it is usual for a person accused of a crime, and their families to suffer some distress and embarrassment upon publication of the name of the offending relative.

[14] I agree with the conclusion of Judge Neave. Nothing was put before him to provide him with any reasonable foundation to support the proposition that the appellant or family members would suffer disproportionate harm. The concern of the appellant’s mother was as to her involvement in the Catholic Samoan Church is allayed by the Judge’s observation that the church was “perfectly understanding”, did not want her to resign. There was no suggestion that she would suffer any harm through members of the church knowing of the crimes of her daughter. Likewise, the appellant’s sister, although in an awkward situation in working for the Inland Revenue Department, would not suffer in that employment if the appellant’s name was published. The employer would know of the crimes of the appellant. I agree that perceived anxiety on the part of the sister that her position as an investigator might be compromised, is not warranted.

[15] The conclusion that Judge Neave reached was correct. There was no sufficient evidential foundation to justify a final order for suppression. This is not a

_{case where it is shown that the Judge erred in principle in the exercise of his}

discretion. In addition I would have independently reached the same conclusion. Although the Criminal Procedure Act 2011 had not come into force at the time the appellant was sentenced. Even if it had, she could not pass the threshold test that publication would lead to undue hardship to her or members of her family, and no basis exists for the Court to have exercised its discretion and order suppression of the publication of the appellant’s name.

_{[16] The appeal is dismissed.}

_{J W Gendall}

Solicitors:

Brandts-Giesen & McCormick, Rangiora for Appellant

Crown Solicitor, Christchurch for Respondent

---

[1] _{May v May [1982] 1 NZFLR 165 (CA) at 170.}
[2] _{Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141.}
[3] _{Blackstone v Blackstone [2008] NZCA 312, [2008] 19 PRNZ 40 at [8].}
[4] _{See Serious Fraud Office v MDM HC Auckland CRI 2010-404-338, 19 October 2010.}
[5] Rowley & Skinner v Commissioner of Inland Revenue CA 112/2011 [2011] NZCA 160.
[6] _{R v Liddell [1995] 1 NZLR 538 (CA).}
[7] Lewis v Wilson & Horton Ltd [2003] NZLR 546 (CA).
[8] _{At 546-547.}
[9] M v Police [1991] 8 CRNZ 14 (HC) at [15].