B v NZ POLICE [2023] NZHC 141

B v NZ POLICE [2023] NZHC 141 [8 February 2023]ORDER PROHIBITING PUBLICATION OF NAME, ADDRESS,OCCUPATION OR IDENTIFYING PARTICULARS OF APPELLANTPURSUANT TO S 200(4) CRIMINAL PROCEDURE ACT 2011. SEEhttp://www.legislation.govt.nz/act/public/2011/0081/latest/DLM3360346.htmlIN THE HIGH COURT OF NEW ZEALANDPALMERSTON NORTH REGISTRYI TE KŌTI MATUA O AOTEAROATE PAPAIOEA ROHECRI-2023-454-1[2023] NZHC 141BETWEEN BAppellantAND NEW ZEALAND POLICERespondentHearing: 8 February 2023 (via AVL/VMR)Counsel: Appellant in PersonA M Barham for RespondentJudgment: 8 February 2023JUDGMENT OF ELLIS J[1] B faces a charge of breaching a suppression order, pursuant to s 211(1)(a) ofthe Criminal Procedure Act 2011 (the CPA). The suppression order in question relatesto the defendant in a private prosecution instituted by B.[2] I do not need or intend to set out the background or relevant allegations here.[3] B's first appearance on the charge took place on 1 December 2022, beforeJudge Northwood in the District Court. A bail condition sought by police was themain focus of the appearance. At the conclusion of this hearing, however, B soughtinterim name suppression. The Judge told B that the hearing had concluded and thathe was not "dealing with that today". B immediately filed an appeal against thatdecision in the High Court but, for reasons that remain unclear it was lost or, at least,not actioned for some time.[4] B's second appearance in the District Court was on 10 January 2023, beforeJudge Singh. The Judge advised him it was a "list date" and if there was anysubstantive application to be made then a hearing date would need to be set. B againtried to make an application for interim name suppression. He told the Judge it was"contrary to the law" for Judge Northwood not to have dealt with his application forinterim name suppression at the first appearance and advised he had filed an appeal.But Judge Singh reiterated that B would need to file a formal (written) suppressionapplication that would then need to be the subject of a separate fixture. The Judgereferred to a fixture scheduled for 6 March in relation to B's oral evidence applicationfor oral evidence and suggested that name suppression could be dealt with then.1 Bimmediately filed an appeal against that "decision" too.[5] Both B's appeals came before me today.The relevant statutory provisions[6] Section 200 of the Criminal Procedure Act 2011 (CPA) provides:Court may suppress identity of defendant(1) A court may make an order forbidding publication of the name,address, or occupation of a person who is charged with, or convicted oracquitted of, an offence.(2) The court may make an order under subsection (1) only if the court issatisfied that publication would be likely to—(a) cause extreme hardship to the person charged with, orconvicted of, or acquitted of the offence, or any personconnected with that person; or(b) cast suspicion on another person that may cause unduehardship to that 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; or1 Legal discussion before Judge A Swaran Singh, above n 1.(f) lead to the identification of another person whose name issuppressed by order or by law; or(g) prejudice the maintenance of the law, including theprevention, investigation, and detection of offences; or(h) prejudice the security or defence of New Zealand.(3) The fact that a defendant is well known does not, of itself, mean thatpublication of his or her name will result in extreme hardship for the purposesof subsection (2)(a).(4) Despite subsection (2), when a person who is charged with an offencefirst appears before the court the court may make an interim order undersubsection (1) if that person advances an arguable case that one of the groundsin subsection (2) applies.(5) An interim order made in accordance with subsection (4) expires atthe person's next court appearance, and may only be renewed if the court issatisfied that one of the grounds in subsection (2) applies.(6) When determining whether to make an order or further order undersubsection (1) that is to have effect permanently, a court must take into accountany views of a victim of the offence conveyed in accordance with section 16Bof the Victims' Rights Act 2002.[7] Suppression order appeals are dealt with in subpt 7 of Pt 6 of the CPA. Ofrelevance here are ss 283, 286 and 287, which respectively provide:283 Right of appeal against decision on suppression order(1) A person specified in subsection (2) may appeal under this subpart tothe first appeal court against a decision of a court—(a) to make or refuse to make a suppression order; or(b) to renew, vary, or revoke a suppression order under section208.(2) The persons who may appeal are—(a) the applicant for the suppression order; or(b) the prosecutor; or(c) a member of the media to whom section 210(1) applies.286 Interim suppression order pending determination of first appeal(1) This section applies if a court refuses to make the suppression ordersought by the applicant and the applicant for the order satisfies that court thatan appeal against that decision is to be filed under section 285.(2) The court must make an interim order to the effect sought by theapplicant.(3) An interim order made under subsection (2) continues in force until—(a) the expiry of the period specified in section 285(2) for filinga notice of appeal or notice of application for leave to appeal;or(b) the appeal is finally determined, if the notice is filed withinthat specified period.287 First appeal court to determine appealA first appeal court must determine a first appeal by—(a) confirming the decision appealed against; or(b) varying the decision appealed against; or(c) setting aside the decision appealed against; or(d) making any other order it considers appropriate.Discussion[8] As Ms Barham for the Crown responsibly acknowledged, things have gone alittle awry here. As she said, there is no requirement that an application for interimname suppression must be made in writing.2 Moreover, as she also acknowledged,s 200(4) provides that a Court may make an order for interim name suppression at thefirst appearance if a defendant advances an arguable case that one or more of thegrounds in s 200(2) apply. B wished, but was denied the opportunity, to advance anarguable case on either appearance. Similarly, it is at least arguable that (as Bsubmitted) an interim order should have been made pending these appeals by dint ofs 286.[9] I accept that, on one analysis, there has been no actual decision in the DistrictCourt declining B' application for interim name suppression and so (arguably) the right2 Criminal Procedure Rules 2012, r 2.12.of appeal conferred by s 283 of the CPA does not apply. But in my view, the refusalto hear B's oral application does constitute a decision refusing to make an order. Wereit not so, appeal rights could be avoided simply by declining a hearing.3[10] As I have said, the Crown accepts that the relevant decisions were wrong, andI agree. The question then becomes how I should determine B's appeals in terms ofs 287. Again, the fit is not an entirely easy one, but the fifth dispositional option (theappeal court may make "any other order it considers appropriate") is useful and I relyon it below.[11] At the hearing today I asked B to outline for me the grounds on which he wouldhave advanced his case for interim suppression had he been permitted to do so in theDistrict Court. He referred to the grounds set out in s 200(2)(a), (e) and (f). Put brieflythere are concerns around his own mental health and also a concern that submissionthat suppression of his name is necessary because otherwise the suppression ordersmade in relation to the defendant in his private prosecution (and the complainant inthe prosecution of him) might be undermined.[12] It suffices for present purposes to focus on s 200(2)(a).I am satisfied that B hasan arguable case for suppression under that provision, based on the likely impact ofpublication on his own mental health. The report of Dr Barry-Walsh referred to in my2020 decision relating to another matter involving B suggests a degree of fragility andlends at least some support for that conclusion. This is a conclusion with which Iunderstood Ms Barham to agree.[13] So in the unusual circumstances of this case I consider that the appropriatecourse is to allow the appeals and make an interim order suppressing B's name. Thatis the nearest I can come to restoring the position as (in my view) it would now be inthe District Court, had the matter not derailed. By virtue of s 200(5) that order willthen expire at B's next appearance in the District Court unless he can meet the higher3 I am not attracted by Ms Barham's alternative suggestion that this should be treated as an appealon a question of law under s 296 of the CPA. Not only does such an appeal require leave of theappeal court but it is predicated on some "ruling" have been made. That presents the same—ifnot greater—difficulty than does the wording of s 283.(s 200(2)) threshold by satisfying the Court that one of the grounds for suppression inthat subsection does exist.[14] For the avoidance of any doubt, I record my expectation that B's applicationfor continued suppression will be heard and determined at that next appearance._____________________________Rebecca Ellis JSolicitors:Crown Solicitors, Palmerston North