R v Robinson [2016] NZHC 860 (3 May 2016)

Last Updated: 9 May 2016

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

CRI-2013-088-001658 [2016] NZHC 860

THE QUEEN

v

_{CHRISTOPHER JOHN ROBINSON}

Hearing:	2 May 2016
Counsel:	R B Annandale for the Crown C S Cull for the Defendant
Judgment:	3 May 2016

_{JUDGMENT OF DUFFY J}

Solicitors:

Crown Solicitor, Whangarei

Counsel:

C S Cull, Barrister, Kerikeri

R v ROBINSON [2016] NZHC 860 [3 May 2016]

[1] The accused is standing trial on one count of blackmail.¹ Since he was first charged, interim name suppression orders made in the District Court have been in force in relation to Crown witnesses and the accused. Those orders were made unopposed. They have remained in force since they were first made, seemingly without anyone addressing the question of whether such widespread name suppression should remain in force.

[2] At the commencement of the trial the Crown signalled its intention to have the Court extend the interim name suppression orders. The accused did not oppose the continued suppression. However Mr Imran Ali, a representative of the Northern Advocate, did challenge their continuation. Further, I considered that their continuation required proper consideration.

[3] The trial could not proceed before the jury for three reasons, one of which was the need to determine whether the interim name suppression orders should be continued for the duration of the trial. The jury was empanelled and then released while the question of name suppression and other legal issues were addressed by counsel in chambers.

[4] For unrelated reasons, after the luncheon adjournment the jury panel was discharged.² The application for interim name suppression continued. Whilst it started in the course of the trial, the discharge of the jury meant that it continued, and was dealt with as a pre-trial issue.³

[5] In its notice of application the Crown sought an order forbidding publication of the details (including name, address, occupation and any other matters leading to the identification) of the following persons on an interim basis pending the outcome

_{of the trial due to commence 2 May 2016:}

¹ _{The charge pre-dates the Criminal Procedure Act 2011.}

² _{A new jury was to be empanelled later in the week.}

3. It was not clear to me if the procedural issues that arose in Victim X v Television New Zealand Ltd [2003] NZCA 102; [2003] 20 CRNZ 194 at [13] might be applicable in terms of when an appeal can be brought. Accordingly, I have described the process that was followed here.

1. Crown witnesses to be called at trial:

1.1 Christopher John Hlavac (Auckland) Barrister and Solicitor of the High Court of New Zealand (partner in the law firm Young Hunter, practising in Christchurch and Auckland);

1.2 Jacqueline (Jackie) Suzanne Johnson, Chief Executive officer of

IAG New Zealand;

1.3 Brendan David McGillicuddy, Christchurch, General Manager of

Direct Insurance Claims IAG New Zealand Ltd; and

2. Persons connected with the proceeding:

2.1 The IAG Group and its employees and agents (international – including IAG New Zealand Ltd and any of its subsidiaries, primarily State Insurance);

2.2 Corporate Risks Ltd, including Russell Joseph (Managing Director, Corporate Risks Ltd) and Martin Jorgensen (computer forensic examiner).

[6] The Crown contended that publication would be likely to cause undue hardship to the aforementioned Crown witnesses and connected persons identified above. The Crown acknowledged that to achieve effective name suppression of the witnesses and other persons, the accused’s name and other details that may identify him may need to be suppressed as well.

[7] The Crown’s application raises questions regarding to what extent should the Court use suppression orders to prevent the publication of material that has allegedly been relied upon by an accused to advance threats that form one of the elements of blackmail.

Relevant facts

[8] The accused and his wife held insurance policies with one of the business divisions of IAG New Zealand Ltd. They had insured their home, known as Killara. It was destroyed in a fire. They made a claim under their insurance policy which was disallowed. Later, the accused was charged with arson. However, he has subsequently been discharged on that count pursuant to s 347 of the Crimes Act

1961.

[9] The blackmail trial has come about as a result of certain communications the accused is alleged to have made to IAG New Zealand Ltd (IAG) and/or its employees or persons connected with it. In those communications the accused is alleged to have made threats which, in short, amount to him accusing IAG New Zealand Ltd and the persons associated with it of acting dishonestly and criminally in order to disallow the insurance claim. These include allegations that IAG pressured its investigator to falsify his evidence in order for IAG to decline a substantial insurance claim. The communication went on to note that the writer could provide many pages detailing many more fabrications and omissions. It then asserted IAG had no case against the accused because he had done nothing to cause the fire, nor did he have any connection with the fire. He alleged that offences of “perversion of the course of justice and perjury were committed by IAG, its investigators and IAG’s lawyers”. The full text of the communication is helpfully set out and commented upon in a judgment of Wylie J in this proceeding, which I have

included in this judgment:⁴

[37] It is helpful to set out some of the passages in the settlement offer. [38] The offer is quite long. It runs to 23 pages. It is addressed to the

solicitor, and it refers expressly to the civil proceedings issued by X in April

2013. X sets out the position as he sees it in some detail. He then states as follows:

I outline the actual position in more detail.

Firstly, fabricating evidence, suppressing evidence and disposing of evidence is a CRIMINAL offence, perverting the course of justice. Giving false or misleading evidence under oath is also a CRIMINAL offence, perjury. Both carry significant penalties, up to 7 years in jail.

⁴ R v X [2014] NZHC 1007.

Secondly, the evidence of the fabrication, suppression and disposal of the evidence is almost all based on photographs taken by the co- defendant investigators which contradict or show additional evidence when compared to their statements and the reports supplied to you and the Police which formed the basis for my arrest.

[39] The offer then goes on to outline in detail various matters which X believes are relevant to the matters pleaded by him in the civil proceedings. Inter alia, he asserts that the investigators are in “an impossible position”. He raises various questions about the investigations undertaken. He suggests various explanations for matters commented on by the investigators in their reports. He asserts that their evidence has been falsified, and that the evidence investigator 1 is proposing to give in relation to the location of a printer, which the police allege was used by X to start the fire remotely, is totally false, and that investigator 3 was pressured by the insurer. He asserts that the insurer is “directly in the frame” and that it was active in the fabrications. X asserts that the insurer pressured the investigators to falsify their evidence, so that it could decline the claims. Further assertions are made against the solicitor. It is suggested that he was personally the source of the pressure applied to investigator 3 so that he would supply fabricated evidence and so that the insurer could decline the claims.

[40] The offer then states as follows:

As I said at the start of this document, Perversion of the Course of Justice and Perjury are criminal offences punishable by substantial terms of imprisonment. I think the Courts will view this case very severely, the crimes were premeditated, planned, complex and cross linked between [the insurer], the investigators and you, [the insurer’s] lawyers. [The bank] also took part by disposing of the evidence, to cover up that most of the evidence was fabricated.

The motive being financial gain, the evasion of a perfectly valid, large claim and the result was an apparent attempt to incarcerate an innocent man, suffering from a terminal illness, who has suffered a serious decline in his health due to the result of these actions.

Evidence was fabricated and falsified to create a false scenario of immense complexity, important evidence was omitted or ignored if it did not fit the falsely created scenario.

Statements have been massaged, false evidence known to be false at the time, repeatedly given in sworn statements and directly to the Court. At least one expert has been pressured to fabricate evidence.

...

It was a complex and therefore hard to maintain web of deceit, designed it appears to cause distress and hardship to myself and my wife, my death, which would probably cause the claim to be impossible to continue being one of the apparent objectives of the whole business!

...

On the 17^th May the Court will sit and the Judge will set a date for the resumption of [investigator 1’s] cross examination, as I said and you can see from the transcript, he is in serious trouble attempting to explain the points detailed above.

The evidence of the experts, [investigator 1, investigator 2 and investigator 3] employed by [the insurer] to investigate the fire is now shown, beyond any doubt to contain significant amounts of fabrication and falsification. It will almost certainly be ruled inadmissible and the clear and indisputable evidence of fabrication may lead to criminal charges for perjury and perverting the course of justice.

[The insurer], through it’s ‘Organisation’ according to [investigator

2] and supported by the change in the evidence in his report and statement along with the changes to [investigator 1’s] statement put pressure on the experts to categorically state the theoretical device was what was actually used. [The insurer] declined the claim and the Police arrested me due to the now retracted statement that it had a ‘high probability’.

...

When these experts are shown to have falsified the evidence in this matter I would expect many, if not all, of the cases on which they have given evidence in the past will have to be re-examined leading to the reversal of many convictions and decisions regarding settlements on insurance contracts with [the insurer].

...

[The insurer] will have enormous difficulty explaining why it was putting pressure, directly or through its lawyers, on an expert who would be asked to give Expert Evidence under Schedule 4 of the High Court Rules. The publicity of this event would be devastating, in my opinion, to the business of [the insurer] and could lead to investigations at high levels and could potentially lead to a loss of [the insurer’s] licence to issue insurance policies in NZ.

A new website, basically this document with all the supporting images, detailing most of the fabrication is already in place although not publicly accessible at this time. It is automatically scheduled to be in the public domain when completed and after discussion with [the lawyer] following the 17^th May hearing. I get loads of comments on my blogs asking for updates from people with current and historic problems with [the insurer].

...

I am seriously and terminally ill, totally incapable of any of the actions required to complete [investigator 1’s] theoretical arson and staged break in as detailed in his attempt to frame me for setting this fire. I am, therefore, more interested in a quick resolution of the position to allow me to resume medical treatment and to live in a more comfortable environment than getting revenge for the way my

family and I have been treated since September 2011. Revenge being hard to enjoy from deep in the graveyard!

I therefore suggest the following settlement. [The insurer] will have to face payment of the claims and significant damages in any case. Without the experts evidence which would be challenged in any Court on the grounds detailed here they have no defence to delay settlement but a public trial would take time and expose them, the investigators and yourself to far more severe penalties and crippling publicity.

In a ‘full and final’ settlement, I would agree to:

1. A full confidentiality agreement in relation to all matters related to this claim, including the cessation of the websites.

2. Cease all current actions against [the insurer] and the other defendant’s.

100. Not to press civil or legal claims against the defendants or the current civil actions.

4. Not to press or cause Criminal actions against the defendants.

In return, [the insurer] would agree to first:-

1. Immediately meet the current claim set out in the Statement of Claim.

A Special damages in the sum of $3,158,000

2. General Damages in the sum of $100 (being $50 each) for every day until judgment is entered. (600

days at 1 May 2013)

C Costs

D Interest

(I calculate the total here to be $3,500,000 in round numbers at this time.)

2. Pay additional damages of $2,000,000 for compensation for the damages to health, reputation, the distress caused and the disruption of our daughters university education.

100. Withdraw the evidence of the investigators to the Criminal case against me and work to have the case immediately and publicly dismissed.

4. Not to press or assist in any civil or criminal action against me or my family in relation to this fire, settlement or any related matter.
5. To remove any entries made on Insurance claim databases/credit ratings or similar for all members of my family.

6. To arrange return of the evidence that should have been collected from the fire scene, in particular the items seen in my wife’s bedside cabinet, the box with the Coniston stone, the prayer book, the alarm clock, the ‘Dairy Box’ full of memorabilia, four photographs and the silver spoons from the cabinet behind the bed. These items are all shown on the photographs taken by [investigator 1] and they are the only sentimental items we now own following the fire.

This settlement needs to be agreed and concluded by the 17^th May when the Judge, who has a reputation for being highly investigative, could rubber stamp the dismissal of the criminal case and stay the continuation of the current hearing and cross examination of [investigator 1].

I had intended to send the whole file to my ex lawyer, ... since I may wish him to assist with the cross examination of [investigator 1]. [The lawyer] knows him well and is working on several other cases involving [investigator 1] which may be immediately affected by the result of the cross examination. The statements by [investigator 2] open the opportunity to negotiate a more rapid settlement to the benefit of all parties, I will revert to the original plan if we fail to come to an agreement.

I look forward to hearing from you very rapidly and hope you see this as a helpful offer to end a growing nightmare of a situation.

[41] The offer suggests that X was contemplating disclosing to the public generally, via a website that he had set up, material which he believed could have significant consequences for the insurer. Whether the offer was a threat, is a question of fact, and it is for the jury to decide, whether, on the whole of the evidence, X’s conduct amounted to a threat to disclose to the public information which X believed was prejudicial to, and would be embarrassing for, the insurer. While X had commenced proceedings, it seems from a proposed brief of evidence from the solicitor, that X was only alleging in the proceedings that investigators 1 and 3 had fabricated evidence, and omitted material from their reports. In the offer, X repeated these allegations, and went on to make serious allegations against both the insurer, and the solicitor. It seems from the offer, that X was intending to disclose these accusations, and the information he thought supported them, in circumstances that he believed could lead to criminal charges and to serious commercial consequences.

[10] In another communication the accused said that his claim was rock solid, the fabrication of evidence by IAG’s investigators was indisputable and he then asserted the claim would need to be settled either immediately in confidence or openly in the full glare of publicity. He stated the cost to IAG of the latter option would be hard to quantify, but he imagined IAG would find it hard to continue issuing policies, if at

all, once it was shown that IAG had actively worked with investigators to fabricate evidence to avoid paying a valid claim. He suggested that previous policy holders who had suffered from having their claims declined would pursue additional claims against IAG based on the possible fabrication of evidence against their claims. He then said he was offering IAG a quick, confidential, relatively inexpensive way forward giving everyone an advantage.

[11] The receipt of these communications caused IAG to refer the matter to the

New Zealand Police with the result that the accused was charged with blackmail.

[12] Mr Hlavac gave evidence in which he set out the corporate structure of IAG.⁵

Mr Hlavac explained the response of IAG to the receipt of the allegedly threatening email from the accused. He said that the accused had created a blog on the internet in which he expressed adverse comment about IAG. Mr Hlavac could not tell me with precision to what extent those had already been expressed on the internet. His belief was that the allegations of criminal conduct and perjury on the part of IAG staff were new.

[13] In the offer of settlement the accused had said that if a settlement was not achieved by 17 May 2013 he would publish adverse material on the internet. Mr Hlavac said he believed such material was published after 17 May 2013. It seems however that attempts were made by IAG to have the material taken down and these were successful to some extent. Mr Hlavac said his concern and the concerns of other persons affected by the communications was that the essence of the adverse allegations made by the accused against them were not going to be resolved in the blackmail trial. He said the outcome of the blackmail trial would not resolve whether he had coerced a witness or whether evidence was fabricated. He said that left him in the position, along with others, where serious allegations of criminal conduct had been made against him and others associated with this insurance dispute when they had no opportunity to respond to them.

[14] Mr Hlavac acknowledged that his practice involved largely insurance work and that he worked for Accident Compensation Corporation (ACC). He

⁵ IAG New Zealand includes the insurance brands State, NZI and AMI.

acknowledged the bulk of his work was corporate or government based, but he said that he was a partner in a law firm that did a range of work. He agreed that in terms of insurance work and ACC there were times when disgruntled persons would make adverse comments about him and insurers. He agreed that the advent of the internet had provided disgruntled persons with a vehicle to express their discontent.

[15] The reason why he considered there would be undue hardship here if name suppression was not continued was because this was a particular case which he considered would attract more attention if it were reported on by the news media. He said that as part of giving evidence in Court, false allegations about him being dishonest would be aired in circumstances where he had no opportunity to respond to them, and no control over how they were published. His concern was that the public would have a perception that the blackmail threats were based on truthful information, which is why the victim complained to the Police. He was concerned that the public would read a report of the trial, might conclude that there was some truth in the accused’s allegations, and that this would damage Mr Hlavac’s professional reputation. Mr Hlavac did not know whether the offending website was currently active, and whether it could be publicly accessed, but he believed that it replicated the allegations contained in the email communication.

[16] The next witness was Seamus Donegan. Mr Donegan’s evidence was much the same as that of Mr Hlavac’s. He seemed to know more about the material that the accused had posted on the website, describing it as an e-book of the Killara house fire, which was published sometime after May 2013. This publication was later removed as a condition of the accused’s bail. However, the publication reappeared under the nom-de-plume Robin Claude. In addition to the e-book, there were posts on Facebook and You Tube. IAG has managed to have the material taken down only in New Zealand.

[17] In terms of undue hardship, Mr Donegan said that IAG was concerned that the adverse allegations made by the accused in the emails would damage its business reputation which was built on probity. He informed me that IAG have over 60% of home and contents insurance and receive $850 million worth of premiums. They are the largest participant in the market. He said the market is competitive and despite

their size the type of allegations the accused had published on the internet would damage their reputation. Mr Donegan said in this case IAG had made a complaint about blackmail in view of the threats made by the accused, and that they did not now want those threats vented in the newspaper. He said IAG had been put to expense to have the material the accused had placed on the internet removed.

[18] Mr Imran Ali suggested that that the material published by the accused about IAG and the associated press amounted to no more than allegations. In response, one of the witnesses expressed concern about the more widespread adverse publicity that would follow if the news media published those comments. To date the accused’s comments have been limited to the internet and so only available to those who searched it.

Submissions

[19] The Crown submitted that IAG and the persons named in its application would suffer undue hardship if interim name suppression was not continued. In the Crown’s submission the starting point was the accusation of blackmail, which at its heart was said to be a threat to disclose information or to do something adverse to a victim unless demands were met. The Crown submitted that here the accused is alleged to have threatened to publish damaging information about a number of persons. The Crown submitted that for there to be publication of this information by the media reporting on the trial would be tantamount to giving air to the very information that the accused had threatened to publish. In this way the Crown submitted publication went to the very object of the threat.

[20] The accused abided the decision of the Court.

[21] The media opposed the continuation of name suppression. Mr Imran Ali appeared and made submissions for the Northern Advocate. I permitted him to question the witnesses. He asked Mr Donegan whether IAG had evidence to show it had lost customers. It did not. He asked IAG in what way it would it be hurt and suggested that its concerns were based on speculation. Mr Donegan gave no satisfactory answer to this question.

[22] Mr Imran Ali submitted that if the Court were to allow interim name suppression to continue to the full extent sought by the Crown, it would not be possible for the media to report on anything to do with the trial. The reasoning there being that if the accused’s name and identifying details were also suppressed in order to prevent persons who searched his name on the internet from discovering information that is still available on the internet about the Crown’s witnesses, the media would effectively be precluded from reporting on the trial at all.

[23] He submitted that IAG was a large company and it was difficult to see how the company or the persons connected with the company would suffer undue hardship if there was publication.

[24] Mr Imran Ali also submitted that the adverse material that IAG and the witnesses wished to suppress was no more than allegations. He is correct. Furthermore, whilst I accept that publication in the news media will result in wider dissemination of that material, at the same time I would expect the news media to take care not to misrepresent the adverse material as a statement of fact about IAG and the others. To do otherwise would be for the news media to place themselves at risk of incurring legal liability for making such statements.

Relevant law

[25] The application for permanent name suppression is made pursuant to s 202 of the Criminal Procedure Act 2011. The relevant part of the section provides:

202 Court may suppress identity of defendant

(1) A court that is hearing a proceeding in respect of an offence may make an order forbidding publication of the name, address, or occupation of any person who—

(a) is called as a witness; or

(b) is a victim of the offence; or

(c) is connected with the proceedings, or is connected with the person who is accused of, or convicted of, or acquitted of the offence.

(2) The court may make an order under subsection (1) only if the court is satisfied that publication would be likely to—

(a) cause undue hardship to the witness, victim, or connected person; or

(b) create a real risk of prejudice to a fair trial; or

(c) endanger the safety of any person; or

(d) lead to the identification of another person whose name is suppressed by order or by law; or

(e) prejudice the maintenance of the law, including the prevention, investigation, and detection of offences; or

_{(f) prejudice the security or defence of New Zealand.}

...

[26] The section sets out specific factors which the Court must be satisfied would be likely to occur before name suppression can be granted. This differs from the equivalent section of the former legislation, which gave the Court unfettered discretion to grant suppression.⁶

[27] The Court of Appeal recently confirmed in Robertson v Police that a two stage approach was necessary when considering an application for name suppression under s 200 of the Criminal Procedure Act:⁷

[40] At the first stage, the judge must consider whether he or she is satisfied that any of the threshold grounds listed in 200(2) has been established. That is to say, whether publication would be likely to lead to one of the outcomes listed in subs (2).

The listed outcomes are prerequisites to a court having jurisdiction to suppress the name of a defendant. It is “only if” one of the threshold grounds has been established that the judge is able to go on to the second stage.

[41] At the second stage, the judge weighs the competing interests of the applicant and the public, taking into account such matters as whether the applicant has been convicted, the seriousness of the offending, the views of the victims and the public interest in knowing the character of the offender.

[42] We do not consider the process requires any further clarification.

[28] In light of the similarities between ss 200 and 202 of the Criminal Procedure

Act, it is appropriate to adopt the same two-step approach in respect of the present application.

⁶ _{Criminal Justice Act 1985, s 140.}

⁷ Robertson v Police [2015] NZCA 7.

[29] Determining whether the threshold is met is not a matter of discretion; the discretion only arises once the threshold is met and when the Court is deciding whether to exercise its discretion to make an order.⁸ The starting point for considering publication is a presumption of open justice.⁹ The Court of Appeal in

_{Clark v Attorney-General held:}¹⁰

[42] With regard to Mr Ellis' comment that there is no public interest in the publication of Mr Clark's name, we remark that the principles of open justice and the related freedom of expression create a presumption in favour of disclosure of all aspects of court proceedings which can be overcome only in exceptional circumstances. We refer here to the case of Re Victim X [2003]

3 NZLR 220 in which this Court upheld the setting aside of a suppression order in favour of the intended victim of a failed kidnapping plot. The Court

was mindful of ‘the sense of anguish’ the result would cause the intended

victim and his family but held that the victim's private interest did not outweigh the fundamental principles of open justice and freedom of expression.

[30] In R v Joshi, the victim sought name suppression in order to protect his reputation as a medical practitioner.¹¹ Gilbert J held:

[7] “Undue hardship” means something more than the hardship that would normally attend publicity surrounding criminal proceedings. It means hardship that is disproportionate to the public interest in the open reporting of court proceedings and the right to freedom of expression assured by the New Zealand Bill of Rights Act 1990.

[8] Freedom of speech is fundamentally important in any democratic society. It is also of critical importance that judicial proceedings are conducted in public so that public confidence in the administration of justice can be maintained. The media plays an important role in reporting fairly and accurately on court proceedings as surrogates of the public. However, these fundamentally important rights and interests must be balanced against the need to protect victims from harm through publication of their names in connection with court proceedings. ... In cases such as the present, the balance struck by Parliament between these competing interests is reflected in the “likely to cause undue hardship” formulation.

[31] Section 202(2) provides that name suppression may be granted “only if the

court is satisfied that publication would be likely to” result in one of the listed

_{consequences. The phrase “is satisfied” means that the Court must come to a}

⁸ _{Beacon Media Group Ltd v Waititi [2014] NZHC 281 at [5].}

⁹ _{Robertson v Police, above n 7, at [43].}

¹⁰ _{Clark v Attorney-General (2004) 17 PRNZ 554 (CA).}

¹¹ R v Joshi [2015] NZHC 2523.

decision on the basis of the evidence before it.¹² It “calls for the exercise of judgment by the [Court].”¹³

[32] The meaning of the word “likely” was considered by the Court of Appeal in R v W, a case which concerned automatic name suppression under the Criminal Justice Act 1985.¹⁴ The Court held that the phrase “likely to lead to the identification” of the victim meant there had to be an “appreciable risk” that this would occur.¹⁵ The same, but slightly differently worded approach was also taken by Gilbert J in Beacon Media Group Ltd v Waititi, where his Honour considered the meaning of “likely” within the context of s 202 of the Criminal Procedure Act:¹⁶

[17] I conclude that the word “likely” in s 202 means more than “may” so that a mere possibility would not suffice. However, it is not necessary for an applicant for an order under s 202 to show that the risk of harm is such that it is more likely than not to occur. In my view, the word “likely” in s 202 means a real risk that cannot be readily discounted.

[33] In Toon v NZME and Hughes v R, the Court held that the “real risk” set out in Beacon Media Group Ltd was substantially the same test as the “appreciable risk” test set out in R v W.¹⁷ Venning J later combined both tests and adopted the test of a

real and appreciable risk.¹⁸

[34] In another case, regarding the definition of “undue hardship”, Venning J

held:¹⁹

[39] What constitutes undue hardship has been considered in a number of cases: serious hardship (in R v Wallace); excessive or greater hardship than the circumstances warrant (in Dalton v Auckland City: Porter v Auckland City); or something more than the ordinary hardship (in Lyall v Solicitor- General). I approach the issue on the basis that to be undue in the present case the hardship must be disproportionate to the hardship that witnesses (and victims in particular) could generally be expected to experience when having their names published as witnesses.

[40] The ordinary hardship a witness or victim might generally experience in giving evidence and having his or her name published as a

¹² _{R v White [1988] NZCA 55; [1988] 1 NZLR 264.}

¹³ _{R v Leitch [1998] 1 NZLR 420.}

¹⁴ _{R v W [1998] 1 NZLR 35 (CA).}

¹⁵ _{At 40, as cited in NN v Police [2015] NZHC 589.}

¹⁶ _{Beacon Media Group Ltd v Waititi, above n 8.}

¹⁷ _{Toon v NZME [2015] NZHC 1490 at [46]; Hughes v R [2015] NZHC 1501.}

¹⁸ _{Wallis v Police [2015] NZHC 2904.}

¹⁹ R v Ratu [2013] NZHC 3085.

witness might be the publicity associated with the case, including publication

of their association with the case, embarrassment, and related issues. ...

Analysis

[35] It is regrettable that something that could have been dealt with well in advance of the trial was left to be dealt with at the trial’s commencement. The principle of open justice is of fundamental importance. The public have a right to view the conduct of judicial proceedings and a right to be informed of the conduct of the administration of justice. When applications for name suppression are left so late in the piece it means that even if name suppression is refused, in order to preserve appeal rights as is required by s 286 of the Criminal Procedure Act, interim name suppression will usually be granted until an appeal is heard and determined. So when an application for name suppression is made at the commencement of a trial, the outcome will be that suppression can be achieved even if the application is unsuccessful. By the time the appeal has been heard, the media will have lost the opportunity to report on the trial and the public will therefore have lost the opportunity to be properly informed about the administration of justice in respect of the particular matter before the Court. It is hard to see how this lost opportunity could be recaptured.

[36] I acknowledge that the Court must carefully consider the need to protect complainants in blackmail cases from having the very threats that caused them to complain to the Police being made public by the trial process. However, this consideration does not support a general principle that name suppression should be granted to protect the victims of blackmail in all cases. The Court must give due regard to the fundamental constitutional principle of open justice. Inevitably there will be different types of blackmail and different types of complainants. The question of name suppression will turn on the facts of each individual case.

[37] This is not a case where sensitive, private, adverse information about a vulnerable natural person is at risk of publication. The complainants in this case are an insurer and the persons who work with the insurer. I understand that the insurer and the natural persons associated with the insurer will want to protect their reputation and will be most concerned about accusations that they have acted

dishonestly and sought to fabricate evidence in order to avoid paying out on an insurance policy. I can accept that publication of the matters at issue in this trial may create some hardship for the persons for whom the Crown seeks name suppression. But I do not consider the evidence that I have heard establishes that there is a real and appreciable risk that publication of the identities of Crown witnesses and persons connected with the proceeding will cause those persons to suffer undue hardship.

[38] I am also concerned here about the width of the order that the Crown seeks. The broad scope of the order sought in paras 2.1 and 2.2 of the application leaves open the possibility that the publication of the names of unidentified persons would be prohibited. Contravention of suppression orders can carry serious consequences. It is important, therefore, that persons who are required to obey them have certainty as to the limits of the order.

[39] I am also concerned that in order to effectively suppress the names of the Crown witnesses and persons connected with the proceeding it is likely that the name and identifying details of the accused would also need to be suppressed. The Crown acknowledged this might be so. Given the information that has already been on the internet and the inability of anyone to tell me with any precision what is presently available to be viewed on the internet, my concern would be that in order to ensure that no-one who accessed the internet was able to find out details of the Crown witnesses or persons connected with the proceeding, I would need to suppress practically all information relating to this trial. I accept the submission of Mr Imran Ali that the suppression orders as sought by the Crown would effectively preclude the media from reporting on this trial at all in any meaningful way. I consider that such an outcome offends against the principle of open justice and weighs in favour of publication. This in itself would not be sufficient reason to refuse interim name suppression but it adds to the other reasons that I find are against interim name suppression being granted here.

[40] I also consider that the fact there has already been some publication of material adverse to the persons involved in the application reduces the effectiveness

of any name suppression orders. To some extent the harm they fear may have already occurred.

[41] I am satisfied, therefore, that there is no real and appreciable risk that those persons will suffer undue hardship. Any hardship they may suffer seems to be no more than the ordinary hardship that can accompany a witness or complainant giving evidence in a criminal trial. For those reasons the application for interim name suppression is refused.

[42] Section 286 of the Criminal Procedure Act provides that if a Court refuses to make the suppression order sought by the applicant and if the applicant for the order satisfies the Court that an appeal against that decision is to be filed under s 285 then the Court must make an interim order to the effect sought by the applicant.

[43] I was advised by the Crown that before an appeal against any refusal to make the name suppression orders sought could be brought, the approval of the Solicitor- General would be required. In order to allow the Crown to seek leave to appeal from the Solicitor-General, I made interim name suppression orders suppressing the persons named in paras 1.1 to 1.3; and in relation to paragraphs 2.1 to 2.2 the IAG Group, Corporate Risks Ltd, Russell Joseph and Martin Jorgensen. I did not extend the order to unidentified employees and agents of IAG and any of its subsidiaries as I considered that language to be too imprecise for the Court to make any order in relation to it.

[44] The interim name suppression I made was to allow the Crown to approach the Solicitor-General to see whether leave to appeal would be granted or not. It remained in force until 5.00 pm on 4 May 2016. If by then I was advised that the Solicitor-General had approved an appeal, it would necessarily follow that the provisions in s 286 would take effect and I would make orders accordingly when the need to do so arose.