W v R [2013] NZHC 489 (12 March 2013)

Last Updated: 21 March 2013

PERMANENT ORDER MADE PROHIBITING PUBLICATION OF NAMES OR IDENTIFYING PARTICULARS OF APPELLANT PROHIBITED BY S

140 OF THE CRIMINAL JUSTICE ACT 1985

PERMANENT ORDER MADE PROHIBITING PUBLICATION OF THE NAME OF THE APPELLANT'S EMPLOYER, OCCUPATION AND THE INDUSTRY IN WHICH HE WORKS

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2013-404-000038 [2013] NZHC 489

BETWEEN W Appellant

AND THE QUEEN Respondent

Hearing: 12 March 2013

Counsel: D P H Jones QC for Appellant

J L S Shaw for Respondent

Judgment: 12 March 2013

Reasons: 14 March 2013

In accordance with r 11.5 I direct the Registrar to endorse this judgment with the delivery time of 12.30pm on the 14th day of March 2013.

_{REASONS FOR JUDGMENT OF COLLINS J}

Introduction

[1] W appeals a decision of Judge Mathers delivered on 30 January 2013 in which she declined W’s application for orders permanently suppressing publication

_{of his name.}

W V R HC AK CRI-2013-404-000038 [12 March 2013]

[2] The Crown does not oppose W’s appeal. APN New Zealand Ltd (APN), the publisher of the New Zealand Herald, opposed W’s name being suppressed in all the name suppression hearings conducted in the District Court. APN no longer opposes W’s appeal and has asked that I record that APN did not wish to be heard in relation to W’s appeal.

[3] W’s appeal was heard by me on 12 March 2013. At the end of the hearing I ordered that W’s name be permanently suppressed and that nothing be published which could identify him. I now explain my reasons for that order.

Background

[4] In August 2011 W was charged with: (1) Four counts of sexual violation;

(2) Two counts of indecent assault; and

(3) Two counts of male assaults female.

[5] When W first appeared in Court he was granted interim name suppression. That order was made by consent.

[6] In a decision dated 20 July 2012, Judge Ryan ruled that the name of W’s employer be suppressed but that the interim order suppressing publication of W’s name would lapse at the commencement of his trial on 16 October 2012.

[7] On 16 October 2012 Judge Mathers, the trial Judge, continued the interim order suppressing publication of W’s name because Mr Jones QC, counsel for W, had only recently received Judge Ryan’s decision and did not have sufficient time to appeal it.

[8] W was acquitted of all charges at his trial in October 2012.

Judge Mathers’ decision

[9] In her judgment Judge Mathers:

(1) explained the background to W’s trial;

(2) explained that W’s employer was supportive of W throughout the trial process but was concerned it would suffer reputational damage if W’s name was published;

(3) recorded that W was very concerned that he would be dismissed from his employment if his name were published;

(4) decided that it was in the interests of justice to continue to suppress

publication of the name of W’s employer; and

(5) concluded that it was not necessary to suppress publication of W’s

name in order to protect the interests of him and his employer.

W and his employer

[10] W is employed by A and B, a subsidiary of A. Both the names of A and B

remain suppressed.

[11] In an affidavit sworn on 5 March 2013 W explains: (1) there has been no publicity about his case;

(2) only three senior personnel in B were informed of his circumstances and have been kept informed as events have unfolded;

(3) publishing his name at this juncture would not only cast suspicion on him, but also bring pressure to bear on his employer. W says that pressure would arise through staff being reluctant to work with him because of the stigma of the charges he faced;

(4) having been acquitted he wishes to move on with his life. Publishing his name at this juncture would only serve as a punishment in circumstances where he has been acquitted.

Circumstances of alleged offending

[12] W met the complainant at a gymnasium. Some days later they went on a date. They subsequently went on a second date during which they consumed significant quantities of alcohol at a restaurant. They went to the complainant’s apartment where, they drank more alcohol and, W says consensual sexual activity occurred. Later the next morning the complainant became concerned about a white residue on the outside of the glass she had been drinking from in her apartment. She conferred with a relative and friend. This progressed to a complaint to the police. Subsequent tests failed to detect any evidence that the complainant had ingested any form of drug. The white residue on the glass was not a drug.

[13] W gave evidence at his trial. Other witnesses were called for the defence who gave evidence about the alcohol consumed by the couple at a restaurant and their mutually “extremely amorous” behaviour prior to them going to the complainant’s apartment.

Principles governing this appeal

[14] Judge Mathers’ decision to decline W permanent name suppression involved an exercise of her judicial discretion.1 Accordingly, W needs to establish that Judge Mathers applied a wrong principle, failed to take account of relevant factors, took into account irrelevant factors or was “plainly wrong”.2

Issue raised by this appeal

[15] The central issue raised by W’s appeal is whether Judge Mathers erred in one

or more of the ways described in paragraph [14] when she decided not to order

permanent suppression of W’s name in circumstances where W’s employer and

identifying features are suppressed.

Relevant legal principles

[16] W’s prosecution was commenced before s 202 of the Criminal Procedure Act

2011 took effect. Accordingly, his application for name suppression is governed by s 140 of the Criminal Justice Act 1985 and the case law which has evolved in relation to that section.

[17] The starting point for considering name suppression applications under the

Criminal Justice Act 1985 is:

... 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”.3

[18] In Lewis v Wilson & Horton,4 the Court of Appeal identified the following as factors which might be considered in determining whether or not an applicant for name suppression has displaced the presumption in favour of “open judicial proceedings”:

(1) Whether the applicant was acquitted or convicted. If acquitted, the

Court may more readily grant an application for name suppression. (2) The seriousness of the offending.

(3) The extent of any adverse impact on the applicant’s rehabilitation if

their name is published.

(4) The public interest and knowing the identity of persons allegedly involved in public interest offences such as sexual offending, dishonesty and drug crime.

(5) The circumstances of the applicant, their family or associates. [19] These principles have been further refined. Thus:

_{(1) In Leary v R,}5 _{the Court of Appeal said in relation to an applicant who}

had been discharged under s 347 of the Crimes Act 1961 that an acquittal was not decisive in balancing the public interest with the interests of the applicant.

(2) In Poa v Police,6 it was held the public may have a legitimate interest in knowing the identity of a person who is acquitted when, notwithstanding their acquittal, their prosecution raises issues about their occupational competence.

Reasons for allowing this appeal

[20] In my respectful view there are three reasons why it was necessary to allow

W’s appeal.

(1) Unfairness to others with W’s name

[21] W has a very common name. His first name regularly features in the top ten most popular male names. There are 421 listings for W’s surname in the Auckland residential telephone directory. Most of those listings apply to two or more persons. I do not know exactly how many people in Auckland have the same first and last names as W but there will be many men in Auckland with the same name as W.

[22] By allowing W’s name to be published in a way that does not permit identification of his occupation or employment risks casting a cloud of suspicion over those men who share his name but who have had nothing to do with this case.

(2) Inconsistency with suppressing employer’s details

[23] Allowing publication of W’s name undermines the orders which have been made suppressing the identification of W’s employer.

[24] If W’s name is published then those who work with him will likely suspect him of being the person referred to in any media reports. Once W’s name is published those who know him and where he works will automatically know the identity of his employer. This defeats the purpose of suppressing publication of the name of W’s employer.

(3) No legitimate public interest knowing W’s identity

[25] W was acquitted of serious offences that carry significant stigma. His alleged offending occurred in relation to his private life and had nothing to do with his employment.

[26] In my assessment, Judge Mathers underestimated the impact that publication of W’s name in conjunction with the charges would have upon him. This is a situation where W’s acquittal heavily weighs in favour of permanent suppression of his name. In this case W’s personal interests outweigh any public interest in knowing his identity.

Conclusion

[27] For the reasons explained in [21]-[26] I allowed W’s appeal and have ordered permanent suppression of his name.

[28] There was no appeal from the order that the name and identity of W’s employer, his occupation and the industry he works in be suppressed. Those orders therefore remain in force.

_{D B Collins J}

Solicitors:

Crown Solicitor, Auckland for Respondent