X v R [2018] NZHC 2481 (21 September 2018)

Last Updated: 5 November 2018

NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS OF APPELLANT PROHIBITED BY S 200 OF THE CRIMINAL PROCEDURE ACT 2011. SEE http://www.legislation.govt.nz/act/public/2011/0081/latest/DLM3360347.html

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY I TE KŌTI MATUA O AOTEAROA TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE

CRI-2018-463-000066 [2018] NZHC 2481

BETWEEN	X Appellant
AND	THE QUEEN First Respondent STUFF LIMITED and NZME PUBLICATIONS LIMITED Second Respondents

Hearing:	29 August 2018
Appearances:	W Lawson for Appellant H J Sheridan for First Respondent R K P Stewart for Second Respondents
Judgment:	21 September 2018

JUDGMENT OF COURTNEY J

This judgment was delivered by Justice Courtney on 21 September 2018 at 11.30 am

pursuant to R 11.5 of the High Court Rules Registrar / Deputy Registrar Date...........................

X v R [2018] NZHC 2481 [21 September 2018]

Introduction

[1] Ms X, a police officer, is facing charges of attempting to pervert the course of justice and forgery. She denies the charges and will stand trial in June 2019. In the meantime, she has been stood down from her role in the police force.

[2] Ms X applied unsuccessfully for name suppression pending trial, though the District Court Judge granted name suppression for a very limited period following the birth of her baby. The Judge was not satisfied that any of the statutory grounds relied on (extreme hardship, risk to fair trial rights and risk to the maintenance of law) had been made out. He granted limited name suppression against the possibility that all the relevant information about Ms X’s health was not clearly before the Court. Ms X says that the Judge erred in his assessment that none of the statutory grounds were made out and says that the Judge should have granted name suppression until the conclusion of the trial.

[3] The Crown takes a neutral position. Stuff Ltd and NZME Publications Ltd oppose name suppression and have been joined as respondents for the purposes of the appeal.

[4] I indicate now that I will allow the application and suppress all identifying details relating to Ms X until trial. As a result, this judgment describes aspects of the case and of Ms X’s circumstances in broad terms only.

Further evidence

[5] Ms X seeks leave to file four further affidavits in support of the appeal. The admission of new evidence on appeal against a refusal to grant a suppression order may be allowed by the Court exercising its inherent jurisdiction.¹ Such evidence should be credible, fresh in the sense that it could not have been obtained at the first instance hearing with due diligence, and cogent.²

¹ B v Housing NZ Corporation [2016] NZHC 974.

² Lundy v R [2013] UKPC 28, [2014] 2 NZLR 273 AT [117]–[120].

[6] The first affidavit is an updating affidavit by Ms X herself and no objection is taken to it.

[7] The second is an affidavit from Ms X’s midwife. It is also said to be an updating affidavit. Stuff/NZME oppose the admission of that affidavit on the grounds that it does not contain additional or fresh medical information and, although credible, it is of no real help. The effect of publication on Ms X and her baby was, and still is, a major plank of Ms X’s case and it is to be expected that updating evidence about her health would be adduced. It may be that it is of limited assistance; but its weight is a matter for me. I allow this evidence to be adduced.

[8] The third affidavit is from Ms X’s doctor. Stuff/NZME object to it on the basis that, although credible, it is not fresh and does not provide substantial help to the Court because there is no indication as to when Ms X was last examined, and no indication of ongoing concerns about, for example, high blood pressure. Mr Stewart, for Stuff/NZME, also pointed out that neither the midwife nor the doctor acknowledges the Code of Conduct for Expert Witnesses. I do not place much weight on that ground of objection. Because both are directly involved in Ms X’s care, they are properly regarded as witnesses of fact rather than expert witnesses and I would not necessarily have expected them to have approached the provision of their affidavits by reference to the Code of Conduct for Expert Witnesses. However, I accept that the lack of specificity means that this affidavit is of little assistance and I decline to accept it.

[9] The final affidavit tendered is that of Mr M, a prominent person in Ms X’s community, who provides factual evidence about Ms X’s position in her community and cultural information relevant to the effect of publicity. Stuff/NZME object to it on the basis that it is not fresh and that Mr M does not purport to give evidence as an expert. As to the first aspect, I agree that the evidence is not fresh and is of a nature that could easily have been adduced in the court below. I would note, too, that Ms X’s position in her community is not disputed. As to the latter point, Mr Lawson explained that he was personally unaware of the concept that Mr M talks about and was not made aware of it until after the District Court hearing. In those circumstances, I would not have excluded the affidavit for want of freshness. However, I accept Mr Stewart’s objection on the ground that Mr M gives what, in other circumstances, would be
regarded as expert evidence but without laying an adequate foundation. That is not to say that such a foundation might not be able to have been laid, but the form in which the evidence is presented does not reach the necessary threshold. I therefore decline to accept this affidavit.

Background

[10] Ms X has been in the New Zealand Police for several years. She has a high profile within both the policing and local community, including as a role model for young women, and has been formally recognised for her contributions.

[11] In the District Court, Ms X advanced her application for name suppression on three alternative bases. The first was that publication would be likely to cause extreme hardship to her.³ She asserted that publication would cause irreparable damage to her reputation such that the stigma of the allegations would make it very difficult for her to return to work even if acquitted, and would undermine her role in giving evidence on behalf of the Police and in managing informants and dealing with victims. Moreover, her reputation in her local community means that publicity of the charges would attract greater interest than ordinary. Finally, she cited the risk to the health of her and her unborn child from the inevitable stress that would accompany publication.

[12] The second ground was that publication would create a risk of prejudice to a fair trial.⁴ Ms X’s profile within the Police and the wider community would generate an inordinate amount of media interest to the extent that she would not be able to receive a fair trial.

[13] The third ground was that the maintenance of the law would be affected because the prosecution of cases in which Ms X was involved would be compromised as a result of juries hesitating to accept her evidence, even if she is acquitted.⁵

[14] The Judge did not accept that any of these grounds were made out. However, out of an abundance of caution, he granted limited suppression saying that:

³ Criminal Procedure Act 2011, s 200(2)(a).

⁴ Criminal Procedure Act 2011, s 200(2)(d).

⁵ Criminal Procedure Act 2011, s 200(2)(g).

Given that none of the threshold grounds are made out, I do not need to consider the exercise of my discretion. However, I return to the issue of Ms [X’s] pregnancy. This criminal proceeding is going to have a significant course. It will result in a jury trial and there is no prospect of a trial until 2019. I see no significant prejudice to the public interest if publication is delayed until 21 days following the birth of Ms [X’s] child. There is the possibility that her current health information was not clearly put before the Court. For my part, I am not prepared to run any risk to an expectant mother or unborn child, especially when the course of this proceeding is going to be lengthy.

Appeal

[15] Mr Lawson, for Ms X, submitted that the Judge erred in finding that none of the grounds advanced had been made out. He argued that the evidence was sufficient to establish a real and appreciable risk of the consequences Ms X claimed would occur if publication were permitted. Moreover, he relied on the additional evidence as creating a stronger case than existed before the District Court (though, as I have indicated, not all of the additional evidence has been allowed in).

[16] Section 200 of the Criminal Procedure Act 2011 (CPA) relevantly provides that:

(1) A court may make an order forbidding publication of the name, address or occupation of a person who is charged with, or convicted or acquitted of, an 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 extreme hardship to the person charged with, or convicted of, or acquitted of the offence, or any person connected with that person; or

...

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

...

(g) prejudice the maintenance of the law, including the prevention, investigation and detection of offences ...

(3) The fact that a defendant is well known does not, of itself, mean publication of his or her name will result in extreme hardship for the purposes of subsection (2)(a).
[17] An application for suppression under s 200 of the CPA requires a two-step inquiry: first, as to whether any of the grounds specified in s 200(2) have been made out and, if so, whether the discretion to grant name suppression should be exercised.⁶

[18] The threshold for proving extreme hardship under s 200(2)(a) is recognised as very high. Considering whether this ground is made out requires a comparison between the consequences of publication in the particular case with the usual consequences of publication. It is inevitable that a person facing criminal charges will experience stress, embarrassment and often other serious financial consequences. But something out of the ordinary is required to make out this ground.⁷ In previous cases the ground has been made out where there is a real risk of suicide⁸ or potentially fatal consequences for a family member with a heart condition.⁹ In a recent case, the Court of Appeal treated non-health related consequences (the accepted risk to the defendant’s wife’s livelihood) as extreme hardship.¹⁰

Threshold grounds under s 200(2)(a), (d) and (g)

[19] Mr Lawson pointed out that the hardship ground rested on a number of different factors and that the Judge had failed to consider the cumulative effect of those factors. Mr Stewart argued that it was not possible to accumulate grounds. That is correct in relation to the various separate grounds provided for under s 200(2), but the cumulative effect of factors being advanced under a particular ground such as extreme hardship can be viewed in totality.

[20] As I have outlined, Ms X enjoys a high profile in a number of areas. She acknowledges that being well-known does not, in itself, mean that publication will result in extreme hardship.¹¹ Rather, she says that as a result of her standing there will be a higher level of media interest, and consequently greater damage to her reputation and standing. Her view is that her reputation is everything and publication will irreparably harm her standing even if she is later acquitted.

6. Robertson v Police [2015] NZCA 7 at [39]–[41]; Fagan v Serious Fraud Office [2013] NZCA 367 at [9].

⁷ Robertson v Police, above n 7, at [49]; Bond v R [2015] NZCA 488 at [33].

⁸ BL v R [2013] NZHC 2878.

⁹ Q v New Zealand Customs [2014] NZHC 2398.

¹⁰ P v R (CA170/2018) [2018] NZCA 302.

¹¹ Criminal Procedure Act 2011, s 200(3).

[21] One would expect that Ms X’s standing in her community would mean that she would continue to enjoy a level of personal support; there is no basis on which to think that those who have held her in such high regard will withdraw their support merely on the basis of allegations that are denied. However, I also accept that there will be many for whom allegations of this nature will undermine the degree of positive influence that Ms X has and can continue to have in her community. I also accept that these kinds of allegations are frequently regarded as indicative of character even before they have been proven and, regrettably, even after an acquittal.

[22] The second aspect of hardship is the risk of consequences for Ms X’s health and that of her baby. She suffered from hypertension during her pregnancy. There is general evidence about the risks associated with stress during the post-natal period, though nothing specific to indicate that these aspects would create extreme hardship beyond that normally expected. Mr Stewart argued that there is no evidence that the risks Ms X fears are likely to be caused by publication of her name as opposed to the normal stresses of first-time motherhood.

[23] I consider that the position of a relatively young woman with the expectations of many resting on her and facing the challenges of the first-time motherhood, will experience extreme hardship in the face of high levels of publicity in the first months of her baby’s life.

[24] As to the risk of prejudice to a fair trial, I do not consider that there was any error by the Judge. The argument is that in the centre in which Ms X lives, the pool of potential jurors is small and it is foreseeable that media reports will colour any impartial assessment of the charges at trial. I do not accept that this is the case. At trial, the jury will be directed strongly to put any pre-trial publicity out of their minds and focus only on the evidence. There is nothing in this case to suggest that it will be any different from other cases involving pre-trial publicity about defendants.

[25] Finally, I turn to the submission that there is an appreciable risk that the maintenance of the law could be prejudiced if publication is permitted. Mr Lawson argued that Ms X does not feel she could return to her role if there was publication (even if acquitted) because her credibility and reputation will have been permanently
tainted, making it impossible for her to deal with victims and defendants and undermining her ability to give evidence at trial.

[26] I accept there is a risk that an allegation of dishonesty against a police officer, even if unproven, may reduce that officer’s effectiveness in his or her community. In an indirect way, that may be said to prejudice the maintenance of the law and investigation of crime.

[27] I find that Ms X can make out the threshold ground of extreme hardship and risk to the maintenance of law.

Exercise of the discretion

[28] Mr Lawson urged that the discretion should be exercised in Ms X’s favour because she was entitled to the presumption of innocence; the trial was not likely to take place until mid to late 2019; extensive media coverage is inevitable; there is no risk to the public; whether or not Ms X is acquitted, the consequences of publication will be irreversible; there is a public interest in preserving Ms X’s ability to return to the Police and wider community on acquittal.

[29] There are factors that weigh against suppression. I start by noting the importance of the open justice principle; the balance must “clearly favour” suppression if the discretion is to be exercised.¹² It is important for the public to see that police are treated in the same way as other members of the community. The courts cannot be seen to be creating a special position for police officers facing criminal charges.¹³ Moreover, the charges go to the heart of what policing stands for; those dealing with the police are entitled to assume that the police themselves are respectful of the law.

[30] There are, however, factors that weigh more heavily in favour of name suppression in this case. The presumption of innocence is more important in this case than in many others because of the high risk of irreversible reputational damage to a person with no previous convictions who enjoys high personal and professional

¹² Lewis v Wilson & Horton Ltd [2000] NZCA 175; [2000] 3 NZLR 546, (2000) 18 CRNZ 55 (CA).

¹³ Proctor v R [1997] 1 NZLR 295 (CA); Allied Press Ltd v Police [2017] NZHC 1641 at [21].

standing in her community. Moreover, it is clear that Ms X makes a significant contribution to her community and it is in the public interest that she continues to do so. Ms X’s personal circumstances are important too; a new mother faces physical and emotional challenges that exacerbate stresses which would otherwise be manageable. Finally, because Ms X will not be working pending trial, there is no concern about her undertaking her duties, having contact with the public with these or giving evidence. This last factor is important because of the need for integrity in the criminal justice system.

[31] I find that the balance does clearly favour suppression in this case. In particular, any concerns about Ms X serving in the community with the protection of name suppression do not outweigh her personal situation.

Result

[32] The appeal is allowed. Ms X’s name and identifying details are suppressed until further order of the Court.








P Courtney J