ASG v HARLENE HAYNE, VICE-CHANCELLOR OF THE UNIVERSITY OF OTAGO [2017] NZSC 59 [3 May 2017]

ASG v HARLENE HAYNE, VICE-CHANCELLOR OF THE UNIVERSITY OF OTAGO [2017] NZSC 59[3 May 2017]NOTE: THE SUPPRESSION ORDERS MADE IN THE EMPLOYMENTCOURT ON 27 MAY 2014 AND 4 JUNE 2014, PROHIBITINGPUBLICATION OF THE NAME AND ANY OTHER IDENTIFYINGPARTICULARS OF APPELLANT, REMAIN IN FORCE.IN THE SUPREME COURT OF NEW ZEALANDSC 61/2016[2017] NZSC 59BETWEEN ASGAppellantAND HARLENE HAYNE,VICE-CHANCELLOR OF THEUNIVERSITY OF OTAGORespondentHearing: 8 February 2017Court: William Young, Glazebrook, Arnold, OʼRegan andEllen France JJCounsel: C R Carruthers QC and P Cranney for the AppellantR E Harrison QC for the RespondentJudgment: 3 May 2017JUDGMENT OF THE COURTA The appeal is dismissed.B The appellant is to pay to the respondent costs of $25,000plus usual disbursements (to be fixed by the Registrar ifnecessary).____________________________________________________________________REASONS(Given by Ellen France J)Table of ContentsPara No.Introduction [1]The statutory scheme [12]Did disclosure to the respondent breach s 200? [24]The legislative history [29]The law reform process [37]The relevant jurisprudence [43]Discussion [66]Application to the present case [82]Result [89]Introduction[1] The primary issue on this appeal is whether the actions of the respondent, theVice-Chancellor of the University of Otago, breached an order made under s 200 ofthe Criminal Procedure Act 2011 preventing "publication" of the appellant's name andother details. The issue arises in this way.[2] The appellant, ASG, is employed by the respondent as a campus security guard.Whilst in this employment he pleaded guilty to one count of wilful damage and anotherof assaulting a female. Both charges related to an incident with ASG's wife, fromwhom he is now separated. ASG appeared before Judge Flatley in the District Courtfor sentencing on these charges in 2013. The Judge discharged ASG withoutconviction on both charges.1 In addition, Judge Flatley made an order under s 200 ofthe Criminal Procedure Act suppressing the respondent's name and all details relatingto ASG and the offending. Section 200(1) allows a Court to make an order "forbiddingpublication" of the name and other details of persons charged with, convicted oracquitted of an offence.[3] As it happened, the Deputy Proctor of the University of Otago was in Courtwhilst ASG was being sentenced. He had been told, not by ASG, that ASG was beingsentenced that day. The Deputy Proctor made notes during the hearing.[4] Once the sentencing was completed, the Deputy Proctor sought some advicefrom a registry officer as to the implications of the suppression order. It was suggestedhe obtain legal advice, which he did. The University's lawyer's advice was that thesuppression order did not encompass the bare communication of information to1 Under ss 106 and 107 of the Sentencing Act 2002: New Zealand Police v [ASG] DC DunedinCRI-2013-012-184, 14 June 2013 [Sentencing remarks].genuinely interested people on a one-to-one basis. The lawyer also said there was alegitimate interest for an employer in the fact an employee had pleaded guilty to acharge involving the type of behaviour the employee is engaged to prevent. Theadvice was that the Deputy Proctor could discuss the charges against ASG and theCourt's response with the appropriate personnel in the University.[5] The Deputy Proctor duly disclosed ASG's name and details about the chargesto the University's relevant Divisional Human Resources Manager, to the Proctor aswell as to ASG's immediate manager. This information was then given to theVice-Chancellor, to the Director of Human Resources and to the Proctor's assistant.[6] The University undertook an investigation. ASG was suspended until theVice-Chancellor reached the provisional view a final written warning was appropriate.At that point, on or about 3 October 2013, ASG returned to work. The final writtenwarning was set out in a letter dated 17 October 2013.[7] ASG brought a personal grievance in relation to his employer, theVice-Chancellor. He said he had been unjustifiably disadvantaged in two ways: first,by his suspension and, secondly, by the final written warning.[8] The Employment Relations Authority found ASG was unjustifiablydisadvantaged in his employment by the decision to give him a final warning but notby his suspension from office.2 The Authority took the view the University hadbreached the name suppression order and its actions were not those of a fair andreasonable employer.[9] Both parties lodged challenges to the Authority's decision with theEmployment Court.[10] The Employment Court concluded the University's actions in conducting aninvestigation, suspension and the issuing of a final warning were all justified.3 In2 B v Hayne, Vice-Chancellor of University of Otago [2014] NZERA Christchurch 73(Member Loftus) [Hayne (ERA)].3 Hayne, Vice-Chancellor of the University of Otago v ASG [2014] NZEmpC 208, [2014] ERNZ562 (Chief Judge Colgan, Judge Inglis and Judge Corkill) [Hayne (EmpC)].reaching that view, the Employment Court considered there was no breach of the namesuppression order. That was because the University as employer had "a genuine (i.e.legitimate and objectively justifiable) interest" in the circumstances relating to thecharges.4 The disclosure of the information about the charges in that situation did notconstitute "publication". The steps undertaken, that is disclosure to a small number ofpersons within the University all of whom had a genuine interest, and the subsequentaction were steps a fair and reasonable employer could have taken.5[11] Leave to appeal to the Court of Appeal was granted by that Court.6 The Courtof Appeal dismissed the appeal.7 The Court took the view "publication" in s 200meant distribution to the public at large, not dissemination "to persons with a genuineinterest in conveying or receiving the information".8The statutory scheme[12] Section 200 is found in pt 5 of the Criminal Procedure Act. Part 5 sets out anumber of general provisions, subpt 3 of which relates to "[p]ublic access andrestrictions on reporting".[13] The features of the scheme set out in subpt 3 can be summarised as follows.First, the Act makes it clear that proceedings are generally open to the public.9 Thereis a power to clear the Court but that does not, in most cases, allow for the exclusionof the media.10 Section 197(2) sets out the prerequisites for making an order clearingthe Court. For example, the Court must be satisfied the order is necessary to avoid"undue disruption to the conduct of the proceedings"11 or "a real risk of prejudice to afair trial".12 In each case, the Court must also be satisfied that a suppression order isnot sufficient to avoid the risk.134 At [49].5 At [59].6 ASG v Hayne, Vice-Chancellor of the University of Otago [2015] NZCA 115.7 ASG v Hayne [2016] NZCA 203, [2016] 3 NZLR 289 (Harrison, Wild and Kós JJ) [Hayne (CA)].8 At [43].9 Criminal Procedure Act 2011, s 196.10 Sections 197 and 198.11 Section 197(2)(a)(i).12 Section 197(2)(a)(iii).13 Section 197(2)(b).[14] The Court also has power to suppress names and other identifying particularsof the defendant, witnesses, victims and connected persons as well as evidence andsubmissions where the statutory thresholds are met.14 Section 200(1) states that aCourt "may make an order forbidding publication of the name, address or occupationof a person who is charged with, or convicted or acquitted of, an offence".15[15] There is no extended definition of "publication", but s 195 provides that:For the purposes of this subpart, publication means publication in the contextof any report or account relating to the proceeding in respect of which thesection applies or the order was made (as the case may be), and publish has acorresponding meaning.[16] Before making a suppression order, the Court must be "satisfied thatpublication would be likely to" give rise to one of the listed effects, namely:16(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(b) cast suspicion on another person that may cause undue hardship tothat person; or(c) cause undue hardship to any victim of the offence; or(d) create a real risk of prejudice to a fair trial; or(e) endanger the safety of any person; or(f) lead to the identification of another person whose name is suppressedby order or by law; or(g) prejudice the maintenance of the law, including the prevention,investigation, and detection of offences; or(h) prejudice the security or defence of New Zealand.[17] Reasons must be given for suppression decisions.1714 Sections 200, 202 and 205. Section 206 deals with the Registrar's power to make and renewinterim suppression orders.15 Unless the context otherwise requires, "name" is defined to mean "the person's name and anyparticulars likely to lead to the person's identification": s 194.16 Section 200(2).17 Section 207. Access to court records where there is a suppression order is dealt with in rr 6.8 and6.9 of the Criminal Procedure Rules 2012.[18] The next feature of the statutory scheme is that there is provision for automaticsuppression in some cases.18 For example, s 201 provides for automatic suppressionof the identity of a person accused or convicted of either incest or sexual conduct witha dependant family member.19 Where s 201 applies, s 201(3) states that:No person may publish the name, address or occupation of [the] personaccused or convicted of [either of the specified offences] unless the court, byorder, permits that publication.[19] Further, s 203 provides for the automatic suppression of the identity of thecomplainant where a person is accused or convicted of various sexual offencesincluding sexual violation. In those cases s 203(3) prohibits persons from publishing: the name, address, or occupation of the complainant, unless―(a) the complainant is aged 18 years or older; and(b) the court, by order, permits such publication.[20] Reference should also be made to the ability to vary or revoke suppressionorders. The effect of s 208(1) is that a suppression order may be made permanentlyor for a specified period. If a suppression order is made permanently it may be revokedby the court at any time.20 It is also clear that a suppression order may be "reviewedand varied by the court at any time".21 In addition, there is provision for the court topermit publication of information otherwise automatically suppressed, for example,where the complainant is 18 years or older and applies for such an order and the courtis satisfied the complainant "understands the nature and effect of his or her decision"to seek permission for publication.22[21] Section 209 sets out some communications which do not comprise publicationin breach of a suppression order. The section provides as follows:(1) Nothing in sections 200 to 205 prevents publication by or at therequest of any Police employee of the name, address, or occupation ofany person who has escaped from lawful custody or has failed toattend any court when lawfully required to do so if that publication ismade for the purpose of facilitating that person's recapture or arrest.18 Sections 201, 203 and 204.19 Under ss 130 and 131 of the Crimes Act 1961.20 Criminal Procedure Act, s 208(1)(c).21 Section 208(3).22 Section 201(4).(2) Nothing in sections 200 to 205 prevents publication of the name,address, or occupation of any person, or any details of the offencescharged to―(a) any person assisting with the administration of the sentenceimposed on the person or with the rehabilitation of the person;or(b) any Police employee, or any officer or employee of theDepartment of Corrections or of the Ministry of Justice, whorequires the information for the purposes of his or her officialduties; or(ba) any specified agency, corresponding Registrar, correspondingoverseas agency, or affected person within the meaning of theChild Protection (Child Sex Offender Government AgencyRegistration) Act 2016 in accordance with sections 43 to 45of that Act; or(c) any person who is conducting or proposing to conduct apublic prosecution against the person for an offence, and whorequires the information for the purposes of―(i) deciding whether or not to commence proceedings; or(ii) conducting that public prosecution.[22] Finally, we note that breaching a suppression order is an offence.23 The Actcreates two categories of offences. First, s 211(1), makes it an offence to "knowinglyor recklessly" publish any "name, address, occupation, or other information in breachof a suppression order or in breach of any of" the sections providing for automaticsuppression.24 Secondly, it is an offence under s 211(2) to publish "any name, address,occupation or other information in breach of a suppression order or in breach of anyof" the sections providing for automatic suppression.25 Section 211(6) provides thatin a prosecution for an offence under s 211(2), it is not necessary for the prosecutionto prove that the defendant intended to commit the offence.[23] A person who commits an offence in the first category, breach with knowledgeor recklessly, is liable to a maximum of six months imprisonment or, in the case of abody corporate, to a maximum fine of $100,000.26 A person who commits an offence23 Section 211.24 A "suppression order" is defined to mean "an order under any of sections 200, 202 and 205":section 194.25 Section 211(2).26 Section 211(4).under s 211(2) is liable to a maximum fine of $25,000 or, if a body corporate, a fine toa maximum of $50,000.27Did disclosure to the respondent breach s 200?[24] Whether or not there was a breach of s 200 in this case depends on whether therespondent's actions comprised "publication" of the suppressed information. Ascounsel for the respondent submits, it is possible to identify at least three possibleinterpretations of the phrase "forbid publication" in the context of a report or accountof the proceedings: namely, suppression of any disclosure beyond the courtroom;suppression of disclosure to the public or to a section of the public; or prohibition ofdisclosure beyond the courtroom except that the "bare communication" to personswith a genuine interest, assessed objectively, is permitted.[25] The first approach was effectively the approach taken by theEmployment Authority. The Authority took the view the respondent's use of theinformation was contrary to the Judge's suppression order. Because the documentsprepared by the Deputy Proctor provided a "narrative or description" of what hadtranspired in the District Court, they comprised an account.28 That account, theAuthority concluded, was communicated to others in a formal way. So, while "notgenerally promulgated", given publication includes communication to a third party,the documents were published.29[26] Both the Employment Court and the Court of Appeal have adopted the third ofthe approaches. After considering the relevant case law and the legislative history, theEmployment Court concluded that given the "special nature of an employmentrelationship which requires employers to have trust and confidence in theiremployees", the term "publication" should be interpreted to exclude communicationof information to "genuinely interested people".30 The Court considered an employerwill have the requisite interest, that is both legitimate and objectively justifiable"where there is a potential nexus between the circumstances relating to the charge or27 Section 211(5).28 Hayne (ERA), above n 2, at [17].29 At [19].30 Hayne (EmpC), above n 3, at [47]–[48].charges faced by the employee and the obligations of the employee to his/heremployer".31[27] In upholding the decision of the Employment Court, the Court of Appeal drewon the legislative background, the relevant jurisprudence, and the circumstances of thecase. The Court considered the legislative history "demonstrate[d] that the meaningof publication is flexible and depends on the circumstances".32 The jurisprudence wasseen as supporting the view publication encompassed "dissemination to the public atlarge rather than to persons with a genuine interest in conveying or receiving theinformation".33 Finally, the Court took the view ASG had breached his duty of goodfaith under s 4 of the Employment Relations Act 2000 in not informing the respondentof his offending.34 That was a relevant circumstance telling against the conclusion thedisclosure was in breach of s 200.35[28] In deciding on the correct approach, s 200 must be considered in context. Thatrequires some understanding of the legislative history and the approach that has beentaken to similar provisions as well as the terms of the statutory scheme.The legislative history[29] Section 200 has a lengthy provenance. By virtue of the Criminal CodeAmendment Act 1905, the courts had power to exclude persons from hearings and toprohibit publication of a report or an account of the whole or part of the evidence.36In the debates on the 1905 Amendment Act, the Attorney-General Hon Albert Pitt MPmade reference to the similar powers in the Divorce and Matrimonial Causes Act 1904(ss 66 and 67). He noted that those provisions applied only to proceedings in theDivorce Court and that these new provisions would "make it apply to all judicialproceedings in Court".3731 At [49].32 Hayne (CA), above n 7, at [42].33 At [43].34 At [32].35 At [44]–[45].36 Criminal Code Amendment Act 1905, ss 3 and 4.37 (14 July 1905) 132 NZPD 581.[30] Section 9 of the Offenders Probation Act 1920 provided that if a person chargedwith an offence had not previously been convicted of any offence, the Court couldprohibit "the publication of his name in any report or account of his arrest, trial, orconviction, or of his release on probation".[31] The Hon Sir Francis Bell MP, Attorney-General, in debate on the OffendersProbation Bill 1920 (100), explained he wanted to change the law so that a person"brought up for a first offence" should be given probation, "with a fair chance".38 Interms of the provision for name suppression, Sir Francis Bell continued:39It should not be forgotten there was a section of the Press which lived on theblackguard stuff which they got from the back yards of the Police Courts. Itwas that kind of publication that they wanted to prohibit, and that class ofpublisher that they wanted to deal with.[32] The Criminal Justice Act 1954 maintained the discretion of the Court toprohibit "the publication, in any report relating to any proceedings in respect of anyoffence" of the name of the person accused or convicted of the offence, or the nameof any other person connected with the proceedings.40 There was a proviso to thissubsection preventing the making of a non-publication order if the person had aprevious conviction for any imprisonable offence. In the debate on the CriminalJustice Bill 1954 (48), the Hon Thomas Webb MP explained that the press had maderepresentations that the power of suppression should be limited to first offenders.41The proviso reflected an agreement to limit the discretion in this way.42[33] The immediate predecessor to subpt 3 of pt 5 of the Criminal Procedure Actwas ss 138 to 141 of the Criminal Justice Act 1985. Section 138 continued the powerto clear the court and forbid any report of the proceedings. A similar approach to thecurrent Act was adopted in that the starting point was that court proceedings were openwith the court having a power to close the court if the statutory pre-requisites weremet. The nature of the order that could be made to prohibit publication was in very38 (20 October 1920) 188 NZPD 743.39 At 743.40 Criminal Justice Act 1954, s 46(1). The legislative history from 1954 is discussed inSiemer v Solicitor-General [2013] NZSC 68, [2013] 3 NZLR 441 at [126]–[138] per McGrath andWilliam Young JJ delivering the judgment of McGrath, William Young and Glazebrook JJ.41 (23 September 1954) 304 NZPD 1930–1931.42 The proviso was removed in 1967: Criminal Justice Amendment Act 1967, s 9.similar terms to s 200. Section 140(1) provided that subject to other statutoryprovisions: a Court may make an order prohibiting the publication, in any report oraccount relating to any proceedings in respect of an offence, of the name,address, or occupation of the person accused or convicted of the offence, or ofany other person connected with the proceedings, or any particulars likely tolead to any such person's identification.[34] It was an offence to breach non-publication orders.43 The 1985 Act also madesimilar provision to that in the current Act for automatic suppression in cases involvingsexual offending.44[35] Finally, there was an exception permitting publication by or at the request ofthe police and by others involved in the administration of the criminal justice system.45The final version of s 141 prior to its repeal permitted the following: publication byor at the request of the police of details about persons who had escaped from custodyor had failed to attend court for the purpose of facilitating their recapture or arrest;publication to persons assisting with the administration of the sentence imposed orrehabilitation of the defendant; and publication to police employees, officers oremployees of the Department of Corrections or of the Department for Courts necessaryfor the purposes of their official duties.46[36] There are similar provisions in other legislation. In particular, a number ofstatutes, both currently in force and repealed, give the relevant court, tribunal or otherdecision-maker the power to prohibit publication of any "report or account" of theproceedings.47 There are also provisions which define the nature of the publicationwhich is prohibited. For example, s 29(1) of the Inspector-General of Intelligence andSecurity Act 1996 generally restricts the ability to publish reports or accounts of an43 Criminal Justice Act 1985, s 140(5).44 Section 139.45 Section 141.46 This version was in force from 1 October 2008 to 4 March 2012: Policing Act 2008, s 130(1); andCriminal Procedure Act, s 393.47 For example: Evidence Act 1908, s 13B; Hawke's Bay Earthquake Act 1931, s 24; Armed ForcesDiscipline Act 1971, s 139; Education Act 1989, s 405; Criminal Investigations (Bodily Samples)Act 1995, s 14; Bail Act 2000, s 19; Judicial Conduct Commissioner and Judicial Conduct PanelAct 2004, s 30; Criminal Records (Clean Slate) Act 2004, s 13; Prisoners' and Victims' ClaimsAct 2005, ss 20 and 41; Evidence Act 2006, ss 111 and 113; Court Martial Act 2007, s 39;Immigration Act 2009, s 259; and Public Safety (Public Protection Orders) Act 2014, s 110.inquiry by the Inspector-General "in any newspaper or other document or broadcastby radio or television or otherwise distributed or disclosed".48The law reform process[37] Reform of the provisions in the Criminal Justice Act 1985 was the subject ofconsideration by the Law Commission in an issues paper and in a report on the topicof suppression of names and evidence.49 In the Issues Paper, the Commissionexamined specifically the question of the meaning of "publication". Importantly, theCommission's view was that as a matter of policy the prohibition ought to encompassword of mouth communication. The Commission explained:50This is consistent with the meaning of publication in a defamation context,where a statement is "published" if it is communicated to a third party. Whilepublication of suppressed information by way of broadcast, print publicationor placement on the Internet breaches an order on a wide scale, widespreadgossip can also undermine a suppression order. Nor does the word of mouthcommunication need to be widespread to render a suppression order pointlessin some cases.[38] To illustrate the concern about the effect of even limited word of mouthdisclosure, the Commission gave this example:51 one can imagine situations in which breaching a suppression order bytelling just one person may cause substantial damage, for example where anaccused wishes to avoid an employer learning about pending charges.[39] The Commission went on to discuss whether the legislation should attempt togive a clearer definition of publication. This question was seen as raising twocompeting interests, as follows:52Providing a statutory definition has the advantage of legal clarity and certainty.If publication is explicitly defined, for the reasons set out above in our view itwould be inappropriate to exclude one-to-one communication from thedefinition. However, including one-to-one communication potentially48 See also: Adoption Act 1955, s 2 dealing with the meaning of "publish" in relation to theprohibition on publication of certain advertisements; Copyright Act 1994, s 10(1) dealing with themeaning of "publication of works"; and Patents Act 2013, s 5(1) dealing with the meaning of"publish" in the journal setting out details about patents.49 Law Commission Suppressing Names and Evidence (NZLC IP13, 2008) [Issues Paper]; and LawCommission Suppressing Names and Evidence (NZLC R109, 2009) [Report].50 Issues Paper, above n 49, at [8.32].51 At [8.32].52 At [8.33].extends the ambit of the offence much too far. Technically a person would bein breach of an order if they were present in court, heard the name of adefendant, which was suppressed, and told their own spouse, but no one else.Putting aside questions of proof and enforcement, is it the intention of thelegislature that this conduct should breach a suppression order? To avoid thelaw being brought into disrepute, the system would be reliant on policedeciding not to prosecute trivial breaches, or the courts discharging withoutconviction.[40] The Commission described the alternative as omitting any statutory definitionand, rather, leaving it "to the courts to make decisions on a case by case basis".53 Itwas envisaged the courts would take "a robust approach to the meaning of publicationin situations which are clearly not intended to be captured by the Act".54 This optionwas seen as having the advantage of reducing the risk that persons would be chargedand/or convicted even if discharged "with trivial breaches of suppression orders".55The Commission acknowledged that the disadvantage of this approach was that therewould continue to be "a degree of uncertainty about the precise meaning ofpublication".56[41] In its final report, the Commission said it did not favour including a statutorydefinition of publication. That approach was seen to potentially create more problemsthan it would solve. The Commission said this:57It would be preferable to leave it to the courts to make decisions on a case bycase basis, taking a robust approach to the meaning of publication in situationswhich are clearly not intended to be captured by the Act.[42] That appears to have been the approach adopted in the Criminal Procedure(Reform and Modernisation) Bill 2010 (243). In discussion on what became s 19558(which confines publication to publication in the context of a report or account of theproceeding) the explanatory note to the Bill recorded that this was not intended to bea definition of the term publication or publish. That was because "it is considered53 At [8.34].54 At [8.34].55 At [8.34].56 At [8.34].57 Report, above n 49, at [7.18].58 Criminal Procedure (Reform and Modernisation) Bill 2010 (243-1), cl 199.preferable that the meaning of these terms continue to be developed at common lawrather than specified in the legislation".59 The note continued:60Instead the clause is designed to clarify that publication of a person's name isnot prohibited in any context that is unrelated to a report or account of thecriminal proceedings. Phrases along the lines of "may not publish, in anyreport or account relating to any proceedings in respect of an offence," areused in a number of places in those sections of the Criminal Justice Act thatrelate to name suppression. Clause 199 is a device designed to avoid the needto repeatedly use this phrase in the following clauses that prohibit thepublication of particular details.The relevant jurisprudence[43] The two most influential decisions in terms of the current argument are thejudgment of Panckhurst J in Director-General of Social Welfare v Christchurch PressCompany Ltd61 and that of the Full Court of the High Court in Solicitor-General vSmith.62 Both cases, in essence, approach the prohibition on publication in provisionssimilar to s 200 of the Criminal Procedure Act on the basis that the prohibition doesnot prevent "bare communication to genuinely interested people" who have someneed for the information.63 We discuss each of these cases in turn before consideringother authorities on similar provisions.[44] In Director-General v Christchurch Press Panckhurst J was considering anapplication for discharge of an interim injunction issued to prevent publication of anarticle in the Christchurch Press. The injunction had been issued to ensure there wasno breach of s 438 of the Children, Young Persons, and Their Families Act 1989. Theversion of s 438(3) of that Act then in force provided that "[i]n no case shall it belawful to publish, in any report of proceedings under this Act,– (a) the name of anychild ".64 There are various exceptions to that prohibition including, for example,reports in any publication intended for circulation amongst the various namedprofessionals carrying out duties under the Act.6559 Criminal Procedure (Reform and Modernisation) Bill 2010 (243-1) (explanatory note) at 56.60 At 56–57.61 Director-General of Social Welfare v Christchurch Press Company Ltd HC Christchurch CP31/98,29 May 1998.62 Solicitor-General v Smith [2004] 2 NZLR 540 (HC).63 Director-General v Christchurch Press, above n 61, at 10.64 This subsection was subsequently amended by the Children, Young Persons, and Their FamiliesAmendment Act 2008, s 9 by substituting "Part 4" for "this Act".65 Children, Young Persons, and Their Families Act 1989, s 438(2).[45] The background to this case is that custody and guardianship orders had beenmade in 1993 in relation to a child, NM, in the Family Court in favour of the Director-General. Some years later, NM's parents alleged that while he was in Social Welfarecare he had been abused in a foster home and assaulted by authorities at a residentialcentre. The parents complained about these events. NM was returned to their care.The parents made applications in the Family Court and then, in early 1998, approachedthe Christchurch Press with their story. A draft article for publication was preparedbut publication was halted by the granting of the injunction. Panckhurst J said that, inits initial form, the article contained sufficient particulars to enable some readers toidentify the child.[46] By the time Panckhurst J dealt with the application to discharge the injunction,the draft article had been amended. The amendments sought to remove any referenceto past or pending Family Court proceedings. Panckhurst J said that "[a]t most [theamended article] contains reference to an allegation of abuse which is under policeinvestigation, and which may require separate consideration by the Family Court indue course".66[47] In discharging the injunction, Panckhurst J accepted the approach taken byGault J in Director-General of Social Welfare v Television New Zealand Ltd as to whatconstitutes a "report of proceedings".67 Gault J took the view that proceedings underthe 1989 Act must include "all matters in which the jurisdiction of a Court is invokedfor adjudication or determination and extend[s] to the execution of enforcement ofjudgments or orders".68 However, Gault J did not accept that proceedings wouldencompass the "continuing status of the person" consequent on the determination ofthe proceedings.69 In that case, the complaint was about the publication of the fact thechild was a foster child. That fact did not come within the prohibition on publicationof a report of proceedings.[48] In endorsing the approach taken in Director-General of SocialWelfare v Television New Zealand Ltd, Panckhurst J rejected that of Holland J in66 Director-General v Christchurch Press, above n 61, at 11.67 Director-General of Social Welfare v Television New Zealand Ltd (1989) 5 FRNZ 594 (HC).68 At 596.69 At 596.Television New Zealand Ltd v Department of Social Welfare.70 In the latter case,Holland J concluded that a report of a proceeding encompassed reports of what tookplace in the courtroom and did not include the fact proceedings had been commencedor the result.71 Holland J also considered that it did not mean that witnesses and otherscould not be told of matters such as the date of a hearing or that others with a similarinterest could not be told that the child had been placed under supervision or in thecustody of the Director-General, for example.72[49] Panckhurst J accordingly concluded that the prohibition on publication wassuch "as to prohibit reporting of all stages of a proceeding under the Act".73 But theissues of workability identified by Holland J were met by a focus on the publicationof reports. Those words, the Judge said were not:74 apt to capture the bare communication of information to genuinelyinterested people, like social workers, foster parents and teachers, who ofnecessity must be given some information on account of their involvementwith a child involved in the proceeding.[50] The High Court in Solicitor-General v Smith adopted the approach taken byPanckhurst J. In that case, the Solicitor-General sought orders that Dr Smith, aMember of Parliament, TV3 and Radio New Zealand be fined for contempt of court.The allegations were of improper pressure on a litigant to forgo her legal rights or toalter her approach to a proceeding, improperly seeking to influence the Court andprejudicing the ability of the Court to perform its function. As part of his defence,Dr Smith said that he had not published "any report of proceedings" as prohibited bys 27A of the Guardianship Act 1968 (now repealed).75[51] The background to this matter was that Dr Smith became an advocate for theparents of a child who had been placed in the care of another person for a considerableperiod of time. The custody of the child had been the subject of ongoing litigation in70 Television New Zealand Ltd v Department of Social Welfare [1990] NZFLR 150 (HC).71 At 157. That case arose under the Children and Young Persons Act 1974. Section 24(1) was insimilar terms to s 438 of the Children, Young Persons, and Their Families Act.72 At 157.73 Director-General v Christchurch Press, above n 61, at 9.74 At 10.75 Section 27A(1) of the Guardianship Act 1968 provided that "[n]o person shall publish any reportof proceedings under this Act (other than criminal proceedings) except with leave of the Court".the Family Court and, at the time Dr Smith became involved, the Court had made aninterim custody order in favour of the caregiver. Dr Smith provided a media releaseaccompanied by a "summary of facts" to Radio New Zealand regarding the case, andlater gave interviews to the media about the family's situation. The summary, theCourt found, could "only be viewed as a report of the case" and it was released to allmedia.76 The Court concluded therefore that this was sufficient to constitute apublication of "any report of proceedings" in terms of s 27A. The Court said it agreedwith Panckhurst J's approach noting:77As he pointed out, s 27A focuses on the publication of reports, and its wordingis not "apt to capture the bare communication of information to genuinelyinterested people".[52] The High Court said it was not necessary to reach a concluded view on whetherRadio New Zealand's broadcasts comprised a breach of s 27A but took the view thebroadcasts were a report of proceedings in the Family Court.78 The broadcastsinvolved interviews with the child's mother, Dr Smith and Judge Mahony, thePrincipal Family Court Judge. Aspects of the particular case were discussed. TheCourt did not endorse Radio New Zealand's argument s 27A was inapplicable becausethe broadcasts disseminated information which existed "independently" of the FamilyCourt proceeding "simply because that information also forms part of the evidence inthe proceeding".79[53] The way in which the prohibition was construed in the Christchurch Press caseand in Solicitor-General v Smith is consistent with the notion that the question ofwhether what has occurred constitutes "publication" is a matter of fact and degree.80That was the approach adopted in Ali v The Deportation Review Tribunal.8176 Smith, above n 62, at [63].77 At [62].78 At [131].79 At [129].80 In summarising the approach to the meaning of publishing a recording by playing it in the hearingof the public or "any section of the public" in s 9 of the Contempt of Court Act 1981 (UK), theauthors of Arlidge, Eady and Smith on Contempt note, amongst other matters, that what is a sectionof the public is a matter of fact and degree: David Eady and ATH Smith (eds) Arlidge, Eady andSmith on Contempt (4th ed, Sweet and Maxwell, London, 2011) at [4–54].81 Ali v The Deportation Review Tribunal HC Auckland HC98/96, 28 November 1996.[54] That case also concerned an alleged breach of s 27A of the Guardianship Act.Parts of a judgment of the Family Court which was subject to a suppression orderunder s 27A(1) were made available to the Minister of Immigration, as part of a reporton deportation of Mr Ali, and to the Deportation Review Tribunal. The Tribunalreferred to passages of the Family Court judgment in their decision which wasavailable for unrestricted publication.[55] Tompkins J found that "[w]hether or not a report of proceedings under theGuardianship Act had been published, must in any case be a matter of fact anddegree."82 Because the Tribunal decision was available for unrestricted publication,Tompkins J said that at least part of the Family Court judgment had become availableto the public. As a result, the judgment had been published within the meaning ofs 27A.83[56] Some reference should also be made to Taylor v Attorney-General.84 That casearose out of the trial of William Sutch on charges under the Official Secrets Act 1951.Mr Taylor was present at the trial when orders were made prohibiting the publicationof anything that might lead to the identification of officers of the New Zealand SecurityService. Mr Taylor, when taking part in a discussion broadcast on radio, had disclosedthe name of a security officer who had given evidence at trial but did not otherwise tryto give a "report" of the events at the trial.[57] At the time, both s 46 of the Criminal Justice Act 1954 and s 375(2) of theCrimes Act 1961 allowed the Court to suppress publication of any report or accountof the security officer's evidence. Section 46(1) allowed the Court to prohibit thepublication "in any report relating to any proceedings" of the name of a personconnected with the proceedings. However, counsel for the Attorney-General did notrely on those provisions but, rather, on the inherent powers of the Court. As wasobserved in Siemer v Solicitor-General, this approach appears to have reflected aconcern "that the courts might conclude that Mr Taylor's identification of the officeras a witness was not in the nature of a 'report' or 'account' of the proceedings".8582 At 5.83 At 6.84 Taylor v Attorney-General [1975] 2 NZLR 675 (CA).85 Siemer v Solicitor-General, above n 40, at [128].Again, this suggests the phraseology of publication of a report or account imposessome limits on what is captured by the prohibition.[58] It is helpful also to refer briefly to four cases decided under s 140 of theCriminal Justice Act 1985.[59] In Hero Sportswear Ltd v Underground Fashions Ltd, Fisher J dismissed achallenge to the admissibility in civil proceedings of an affidavit.86 The affidavitannexed a judgment of the District Court convicting the defendant's key witness, X,on charges of making erroneous declarations and smuggling under the Customs Act1966.[60] A name suppression order was made by the District Court Judge in thoseproceedings under s 140 of the Criminal Justice Act 1985. It was submitted for thedefendant that the filing of the affidavit was a breach of the suppression order. Fisher Jrejected this submission, finding that "publication" does not extend to the use of adefendant's name in subsequent court proceedings, rather "[t]he contemplatedrecipient is the public, whether considered en masse or individually".87[61] Karam v The Solicitor-General was an appeal against convictions for offencesunder s 140(5) of the Criminal Justice Act 1985.88 The charges alleged breaches of asuppression order made in relation to the trial of David Bain. Mr Karam wrote a bookabout the Bain case. In the book the name of witness X was used and her identitydisclosed. Witness X's name had been suppressed in the s 140 orders made by thetrial Judge.[62] On appeal the argument was that there was no breach of s 140(5) because thebook did not refer to X as having been a witness at the trial and nor was any evidencegiven by her quoted. Rather, the book quoted information or statements X gave to thepolice which had been extracted from the police file but not given in evidence at trial.86 Hero Sportswear Ltd v Underground Fashions Ltd (1997) 10 PRNZ 655 (HC).87 At 656.88 Karam v The Solicitor-General HC Auckland AP50/98, 20 August 1999.[63] Gendall J dismissed the appeals against conviction. The Judge did not considerthe protection of the suppression order was to restrict publication only for the purposeof trial. He said "proceedings" had a "much wider ambit" and included "preliminaryhearings, depositions and the investigation itself".89 Gendall J stated:90It is the account or report in respect of which the prohibition exists that thesection is directed towards, and if that account or report relates to anyproceedings then the section applies. It is significant that the content of whata witness says at trial or, for that matter, to the Police or to anyone, is not thesubject of the suppression order and could properly be reported. What couldnot be reported was the identity of the person who was a witness at the trialand it was that identity of Miss X as Mr Bain's girlfriend that was ordered byWilliamson J not to be published. If it were otherwise the case then an orderfor suppression of identity could be thwarted simply by a publication or reportwhich omitted any reference to trial.[64] Reference should also be made to the obiter remarks of Hammond J inRe Victim X.91 The Judge was considering whether a suppression order under s 140should be lifted. As part of his evaluation, Hammond J considered the practicalitiesof the situation. One practical aspect was that Victim X's name had inadvertently beenpublicised via the internet. In this context, and with reference to the ongoing trial,Hammond J made the following comments about the meaning of "publication":92There is a respectable public gallery every day with persons coming and goingfrom the gallery. Who those persons are and what they do outside the Courtis no business of the Court. These are private citizens exercising their perfectright to come into Her Majesty's Court, and then go away and talk to any othercitizen about what they saw and heard. That practical reality is as it should beand cannot be ignored.[65] Finally, in Slater v Police White J considered the meaning of "report oraccount" in s 140 of the Criminal Justice Act 1985.93 In that case, Mr Slater arguedthat information which he had posted on his blog site did not constitute the publicationof a "report or account" because those words had a formal meaning linked to theactivities of the news media and did not cover information posted on a website by a89 At 8.90 At 9.91 Re Victim X [2003] 3 NZLR 220 (HC), aff'd Re Victim X [2003] 3 NZLR 220 (CA).92 At [45].93 Slater v Police HC Auckland CRI-2010-404-379, 10 May 2011. Leave to appeal on the questionof whether the information published constituted a report or account was granted by White J inSlater v New Zealand Police HC Auckland CRI-2010-404-379, 8 July 2011, but it appears thatthis appeal has not been heard.private individual. White J rejected this argument. He said the correct interpretationof "report" or "account" was a broad one, not limited to media reports of a formalnature. Instead, "a less formal statement of a fact or an event" was included.94 TheJudge placed some emphasis on the use of both words, that is, report and account, thecontext, and the "fair trial and victim protection purposes" of the provisions.95 Inconclusion, White J found that "the words should cover any statement of fact relatingto the proceedings, which is published to the public and contains the proscribedinformation".96 As such, a post on a blog site constituted a "report or account".Discussion[66] The origins of s 200 suggest the initial concern underlying the prohibition onpublication was directed to wider publication via the media. It is clear from thematerials we have discussed however that the purpose of the prohibition is now notsolely directed to publication in that wider sense but is also intended to capture wordof mouth communications. That development is logical given, as the LawCommission noted, there will be situations where a single disclosure to one person ordisclosure to a small group of persons may undermine the very purpose of suppression.In that respect, it is relevant that the meaning given to publication will need to applyacross all of the situations dealt with in subpt 3 of pt 5.[67] As the Law Commission's discussion also indicates, the development of theinternet and of social media raise different issues than will have been the case at thetime the first predecessor to s 200 was enacted. That development too is a reason amore flexible approach to interpretation may have been seen as appropriate.[68] It is also plain that the decision not to define publication was a deliberate oneand that it was thereby intended there would be some flexibility in the interpretationof publication. It was envisaged that the courts would develop the law in this respect.That decision reflected, at least in part, a concern to avoid the over-extension of thecriminal law. Moreover, it seems to have been the intention that what would be a94 At [67].95 At [68]–[69].96 At [69].trivial breach should not get to the stage where the individual who had disclosed theinformation would be reliant on a decision not to prosecute.[69] It follows that it is necessary for the courts to work out the scope of theprohibition on a case-by-case basis. As to that scope, a number of points can be made.[70] First, the matters we have discussed do not support the view that any disclosurebeyond the courtroom is prohibited (the first possible meaning of "forbid publication"we referred to above).97 Nor do they support the second possibility, that is, suppressionof disclosure only to the public or a section of the public. That leaves what MrHarrison QC called "the middle ground", that is, the approach broadly speakingadopted by the Employment Court and the Court of Appeal under which the meaningof "publication" does not include bare disclosure to those who have, objectivelyassessed, a genuine interest.[71] The Law Commission made express reference to the test in Smith.98 We accept,as Mr Carruthers QC submits, that the focus in both Christchurch Press and Smith wason a slightly different aspect, reflecting the prohibition in the statutory provisions inissue in those cases on publication of a report or an account of proceedings. But if ithad been intended that publication of name and other identifying particulars would begiven a different meaning in the present context we would have expected some adversecomment by the Law Commission about the approach in Smith and there was none.[72] Secondly, the test adopted by the Court of Appeal is consistent with the text.The ordinary meaning of "publication" is "the action of making publicly known;public notification or announcement; promulgation".99 That suggests some widerdissemination is envisaged.[73] As to the other textual pointers, the reference in s 195 to publication in thecontext of a report or account is of some relevance. There is some force in theLaw Commission's view that s 195 clarifies that the prohibition on publication relates97 Above at [24].98 Smith, above n 62; Issues Paper, above n 49, at [8.28] in the context of discussion about themeaning of publication; and see Report, above n 49, at [7.17].99 The Oxford English Dictionary (2nd ed, Clarendon Press, Oxford, 1989) vol XII at 782.to publication in the context of the proceedings and not, for example, to some future,unrelated, publication of the suppressed detail.100 Nonetheless, the requirement thatthere be publication in a report or account of the proceedings suggests not all forms ofdissemination will be encompassed in the prohibition.[74] The appellant emphasises the comprehensive nature of subpt 3 of pt 5, referringto the power to vary or revoke suppression orders and to the exceptions in s 209. Asto the latter, the Commission took the view that the exception in s 141 of the CriminalJustice Act 1985 allowing disclosure by the police would likely be unnecessary if"publication" or the words "report or account" were to be "interpreted narrowly".101We accept these aspects provide some support for the appellant's approach. However,the ability to vary does not of itself necessarily mean publication must be interpretedexpansively because the power to vary may be necessary for a range of reasons.[75] As to the exceptions in s 209, there is some suggestion in the legislative historythat they have been included out of an abundance of caution. In brief, in 1975 theCriminal Justice Act 1954 was amended to provide for automatic name suppression ofaccused persons.102 At the same time, automatic name suppression for victims ofspecified crimes was introduced.103 The 1975 Amendment Act also introduced s 45D,the predecessor to s 209 of the Criminal Procedure Act, which provided that nothingin ss 45B or 45C (dealing with automatic name suppression) prevented the publicationby or at the request of the police of the name of a person who had escaped from custodyor failed to attend court for the purpose of their recapture or arrest. The followingyear, after a change of government, the Act was amended to revert to the equivalent ofthe current approach, that is, name suppression for an accused could be ordered wherethe statutory criteria were met.104[76] The explanatory note to the 1976 Amendment Bill recorded that one of theamendments was to s 45D of the Act, the rationale for which had been to make it clearthat "neither section 45B nor section 45C prevents the publication" of any person's100 Issues Paper, above n 49, at [8.41]. We accept, however, that Karam v The Solicitor-General,above n 88, was correctly decided.101 At [8.31].102 Criminal Justice Amendment Act 1975, s 17(1) inserting s 45B.103 Section 17(1) inserting s 45C.104 Criminal Justice Amendment Act 1976, s 2.name by the police "for the purpose of facilitating that person's recapture or arrest."105The change to s 45D expanded its scope to make it clear that a suppression order madeby the Court under s 46 of the Criminal Justice Act 1954 (the predecessor to s 200 ofthe Criminal Procedure Act) would not prevent publication of the names of personssought by the police in the circumstances provided for in s 45D.[77] In moving the introduction of the 1976 Amendment Bill, the Minister of JusticeHon David Thomson MP said this:106The minor amendment in subclause (2) is necessary in view of subclause (1),which repeals section 45B of the principal Act relating, to the blanketsuppression provision. Section 45D of the principal Act was inserted last yearat the request of the Police to ensure that the name of an accused person whoabsconded from bail or escaped from a penal institution could be publishednotwithstanding the blanket suppression provision. Because the prohibitionon publishing the name of a person accused or convicted of incest or havingintercourse with a child under his care or protection is being retained, section45D is also being retained. In addition it is extended, for the sake of clarity,to an order made under section 46 of the principal Act.[78] Finally, in terms of the statutory scheme more generally, the fact that the defaultposition is one of open proceedings suggests an approach which ascribes a lessexpansive meaning to publication is appropriate. As does the fact that it will be anoffence, in some cases without any requirement of intention, to breach the prohibition.The protection of the right to freedom of expression in s 14 of the New Zealand Billof Rights Act 1990 supports the same approach.[79] Drawing these threads together, the focus in s 200 is, generally, on publicationbeyond the courtroom to the public or a section of the public at large. We say"generally" because it is necessary to ensure the passing on to one other person or toa small number of persons (including dissemination by word of mouth), in the situationwhere that will undermine the very purpose of the suppression order, is captured bythe section. The section does not encompass the dissemination of information topersons with a genuine need to know or, as the Court of Appeal put it, "a genuine105 Criminal Justice Amendment Bill 1976 (10-1) (explanatory note) at i.106 (30 June 1976) 403 NZPD 114; and see also (21 July 1976) 404 NZPD 854–855 where theMinister referred to the extension of the exception to orders made under s 46 "for the sake ofclarity".interest in knowing", where the genuineness of the need or interest is objectivelyestablished.107[80] It is important to maintain an objective test. While the trivial should not becaught up, the approach to the interpretation of publication has to apply across therange of situations governed by subpt 3 of pt 5, including that of automaticsuppression. There would be real concerns, for example, for the safety of a witnesswhere one person's disclosure to one other person may be sufficient to lead to harm tothe witness or where there are misguided attempts to bring particular allegations tolight within a particular group of affected persons. Such dissemination will be caughtby the prohibition because, on an objective assessment, there will be no genuine needor interest in the recipient having the information.[81] We turn then to apply this approach to the present case.Application to the present case[82] The Court of Appeal's reasoning was based in large part on its view that therehad been a breach of s 4 of the Employment Relations Act, which imposes the duty toact in good faith, by the appellant in not informing his employer about his offending.We do not have a proper basis for addressing that aspect and do not do so.108 It is, inany event, apparent to us that given the part of the appellant's employment involvedprotecting students on campus, particularly at night, his employer had a genuineinterest in knowing he had pleaded guilty to an offence of violence against hisspouse.109 It is also relevant that rather than working for a one-person company orsimilar small enterprise, the appellant worked for a large entity in which a number ofpeople had a legitimate interest in work-related issues raised by his conduct. Thedisclosure was limited to a small group, all of whom can fairly be said to have a needto know this information. We add that there would be a level of artificiality if thepresent dissemination of information was punishable. At least in theory, theVice-Chancellor could have sat in the courtroom herself and then undertaken her own107 Hayne (CA), above n 7, at [43].108 The job description applicable to the appellant includes under the heading "Person Specification"the following: "Have no criminal convictions and be willing to undergo a Police clearance check".109 The job description records the "Prime Function" as "To positively influence personal safety andbehaviour on and off campus".investigation without disclosing information to persons other than the appellant. Thefact that she necessarily delegated functions relating to the over-sight of employeesand investigation of possible misconduct does not materially change matters.[83] The appellant submits that this disclosure undermined the very purpose of thesuppression order. There is a contrast, it is submitted, between publication to a socialworker or a foster parent who needs some information because of their involvementwith a child involved in a proceeding and what occurred in the present case.[84] To address this submission, it is necessary to say a little about the Judge'ssentencing remarks.110 In deciding to grant a discharge without conviction,Judge Flatley dealt with whether the consequences of conviction would be out of allproportion to the gravity of the offending. The Judge took the view the "most relevant"consequence was the potential ASG would lose his job. Given the type of hisemployment, Judge Flatley said there was "an extremely strong likelihood" ASGwould lose his job.111 The Judge was also concerned about the impact of that on ASG'sability to support his children. Other relevant consequences related to travel andstigma within ASG's community.[85] Having concluded a discharge was appropriate, the Judge said an order for finalname suppression would be given. The reason given for that decision was that theJudge could "see no argument for there being publication of somebody who has beendischarged without conviction".112 It is, accordingly, not entirely clear to what extentconcern about dissemination to the employer was behind the name suppressiondecision. However, there is force in the submission that there was a concern about theemployer learning of the offending. On this the Court of Appeal said:113Although we cannot be certain, we think the Judge discharged ASG withoutconviction and then suppressed publication of his name primarily to protectASG from the University and the possible loss of his job there.110 Sentencing remarks, above n 1.111 At [8].112 At [18].113 Hayne (CA), above n 7, at [46].[86] On the information available to us, we agree with the Court of Appeal that thiswas an incorrect basis for a s 200 order.114 That is because of the obvious link betweenASG's employment and the nature of his offending. Further, the decision proceededon what has proven to be a false assumption, that is, disclosure to the employer wouldresult in dismissal. This case demonstrates the need to be careful to avoid makingsuppression orders which over-reach.115[87] It follows that we consider the Court of Appeal was correct to uphold thedecision of the Employment Court to the effect that disclosure to the respondent ofinformation relating to the appellant's appearance in the District Court did not breachs 200 of the Criminal Procedure Act. It follows also that we do not need to addressthe second of the questions on which leave to appeal was granted, namely, whether itwas nonetheless open to the respondent to rely on and use that information in relationto the appellant.116 We do not address this second question. The answer would, in anyevent, be unlikely to provide much guidance because the proper approach would verymuch depend on the circumstances.[88] We add that, as the present case illustrates, the current approach gives rise tosome uncertainty. It may be that some legislative clarification could be considered.114 At [47].115 In some cases, irrespective of the proceedings, it will be clear that information is likely to bepublished, and there will be no basis for an order to prevent that from occurring. W v AucklandDistrict Health Board [2007] NZCA 227, [2007] ERNZ 441 is another illustration of this point.The applicant in that case was a cardiologist who had breached the Health Board's computerpolicies, as a result of which he was dismissed. In declining leave to appeal against theEmployment Court's refusal to order name suppression, the Court observed publicity in the mediawas "always at least possible": at [16].116 ASG v Hayne [2016] NZSC 108.Result[89] The appeal is dismissed. Costs should follow the event. We make an orderthat the appellant is to pay to the respondent costs of $25,000 plus usual disbursements(to be fixed by the Registrar if necessary).Solicitors:Oakley Moran, Wellington for AppellantAnderson Lloyd, Dunedin for Respondent