B v THE NEW ZEALAND POLICE [2021] NZHC 2073

B v THE NEW ZEALAND POLICE [2021] NZHC 2073 [11 August 2021]NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION ORIDENTIFYING PARTICULARS OF ANY COMPLAINANT UNDER THE AGEOF 18 YEARS PROHIBITED BY S 204 OF THE CRIMINAL PROCEDUREACT 2011. SEEhttp://www.legislation.govt.nz/act/public/2011/0081/latest/DLM3360352.htmlIN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYI TE KŌTI MATUA O AOTEAROATE WHANGANUI-A-TARA ROHECRI-2021-485-000057[2021] NZHC 2073BETWEEN BAppellantAND THE NEW ZEALAND POLICERespondentHearing: 10 August 2021Counsel: C Stanley for the AppellantJ Garden for the RespondentJudgment: 11 August 2021JUDGMENT OF GWYN J(Appeal against refusal to continue name suppression)Introduction | Whakatakinga[1] The appellant, Mr B faces one charge of suppling a class B controlled drug(ecstasy).1 He has entered a plea of not guilty and elected trial by jury.[2] Mr B applied for continuation of interim name suppression, previously grantedat his first appearance, on the grounds that publication would cause extreme hardshipto him, his family, and his employees. Judge Johnston in the District Court at Poriruadeclined that application on 27 July 2021.21 Misuse of Drugs Act 1975, s 6(1)(c) and (2)(b); maximum penalty 14 years' imprisonment.2 Police v B [2021] NZDC 15028.[3] Mr B now appeals that decision on the basis the threshold applied by the Judgewas too high, and there are sufficient grounds for the continuation of the namesuppression.[4] The Judge granted continuation of interim name suppression, to allow Mr B tofile this appeal.The alleged offending[5] The presumption of innocence applies to Mr B, and at this stage the details Inow recite remain allegations.[6] Mr B, who is in his 40s, was a swimming coach for a swimming club. InDecember 2020, Mr B was at his home, with two people (including the complainant,who was 17 years old) who were participating in a programme he was running. Mr Band the complainant were in the kitchen together, when Mr B offered the complainanta small clear crystal of ecstasy. Mr B placed a similar crystal in his mouth, and toldthe complainant to place the crystal under her tongue. She did not, and instead left thecrystal on Mr B's table, before leaving the house.[7] The complainant later told the other person what had happened, and theyreturned to Mr B's address and collected the crystal. A few days later, the complainantdelivered the crystal to the Police and reported the matter.The District Court decision[8] The Judge recorded that Mr B applied for name suppression on the groundsthat publication would cause extreme hardship to him due to his mental health, to hischildren due to the reaction of their peers, and to his employees and family due to thepurported financial impact on his business. The Judge noted the Police were neutralon the application.[9] The Judge first set out the two-stage test required under s 200(2) of theCriminal Procedure Act 2011 (the CPA), and noted the importance of open justice inCourt proceedings. He also noted extreme hardship is a "significant threshold tocross."3[10] In terms of the hardship to Mr B, the Judge recorded that medical informationhad confirmed he was suffering from symptoms of anxiety and depression. Althoughaccepting these symptoms may be worsened as a result of facing trial, the Judge didnot consider that such a consequence would be beyond the ordinary consequencesassociated with publication. He noted there was no evidence before him to indicate ahigh risk of suicide.[11] Turning to the risk to Mr B's business, the Judge referred to Byrne v Police,where the Court held that serious consequences on a defendant's business were notsufficient to meet the threshold of extreme hardship.4 The Judge also noted namesuppression is not a tool to protect commercial interests.5 The Judge found thehardship to Mr B's business was not beyond the ordinary consequences of publication.[12] Finally, in relation to Mr B's children, the Judge referred to Tranter v R, wherehardship experienced by the defendant's stepdaughter, who attended the same schoolas the complainant, did not meet the threshold of extreme hardship.6 The Judge alsonoted no evidence was advanced as to how the lifting of name suppression wouldexacerbate any of the existing issues faced by Mr B's children in relation to the chargeagainst him.[13] The Judge therefore concluded the threshold for extreme hardship was not met.The law | Te Ture[14] Mr B applies for a continuation of name suppression primarily on the groundsof extreme hardship and risk of prejudice to a fair trial, as provided for in s 200(2)(a)and (d) of the CPA:3 At [9].4 Byrne v Police [2013] NZHC 3416 at [20]-[23].5 Hughes v R [2015] NZHC 1501 at [41].6 Tranter v R [2019] NZHC 1423.200 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 convictedor acquitted 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(d) create a real risk of prejudice to a fair trial; or[15] The Court of Appeal in Robertson v Police confirmed that s 200 contemplatesa two-stage analysis:7[39] Stage one is a threshold determination. Stage two is a discretionaryassessment.[40] At the first stage, the Judge must consider whether he or she issatisfied that any of the threshold grounds listed in s 200(2) has beenestablished. That is to say, whether publication would be likely to lead to oneof the outcomes listed in subs (2). The listed outcomes are prerequisites to acourt 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 goonto the second stage.[41] At the second stage, the judge weighs the competing interests of theapplicant and the public, taking into account such matters as whether theapplicant has been convicted, the seriousness of the offending, the views ofthe victims and the public interest in knowing the character of the offender.[16] This appeal against the first stage of the analysis, in relation to whether thethreshold under s 200(2)(a) is met, is determined in accordance with the approach inAustin, Nichols & Co Inc v Stichting Lodestar:8Those exercising general rights of appeal are entitled to judgment inaccordance with the opinion of the appellate court, even where that opinion isan assessment of fact and degree and entails a value judgment. If the appellatecourt's opinion is different from the conclusion of the tribunal appealed from,then the decision under appeal is wrong in the only sense that matters, even if7 Robertson v Police [2015] NZCA 7 (footnotes omitted).8 Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141, (2007) 18PRNZ 768 at [16] (footnote omitted).it was a conclusion on which minds might reasonably differ. In suchcircumstances it is an error for the High Court to defer to the lower Court'sassessment of the acceptability and weight to be accorded to the evidence,rather than forming its own opinion.SubmissionsMr B[17] Ms Stanley, counsel for Mr B, submitted that the Judge erred in his approachto the test for extreme hardship by looking at each ground in isolation and consideringwhether that particular ground met the test, rather than viewing the grounds ofhardship cumulatively. Ms Stanley emphasised that Mr B has pleaded not guilty, andtherefore has the benefit of the presumption of innocence at this stage. Ms Stanleysought leave under s 334(3) of the CPA to file fresh evidence, in the form of a furtherletter from Mr B's doctor about his mental health, which confirms he has experienced"suicidal thoughts".[18] Ms Stanley also raised the issue of Mr B's right to a fair trial (by jury), in lightof recent media coverage.[19] Ms Stanley submitted there is no need for the public to be protected from Mr Bby knowing his name; the local swimming community appear to know he has beencharged, and he is no longer coaching swimming.The Crown[20] The Police adopted a neutral position when the matter was considered beforeJudge Johnston.[21] Mr Garden, counsel for the Crown, said first that, as Ms Stanley observed, it isnot clear whether the Judge considered the cumulative impact of each factor, as thejudgment assessed each in turn. Equally, however, Mr Garden said there is noindication that the Judge expressly discounted certain factors, as the High Court did inX v R.9 Because this Court must come to its own view as to whether the threshold ismade out, it may be unnecessary to determine whether the Judge erred in this respect.9 X v R [2020] NZCA 387.[22] Mr Garden also addressed the suggestion for Mr B that the District Court failedto apply the principle that the assessment of risk of substantial hardship may havegreater weight in pre-trial proceedings, before a finding of guilt. Mr Garden said thatthe Judge expressly referred to and endorsed this principle.10[23] Overall, Mr Garden acknowledged that Mr B and his family are experiencingsignificant and understandable distress from the prosecution. Notwithstanding that, itwas open for the District Court to conclude that the impact of publication on Mr B, hisfamily and those connected with his business did not rise to the high level of extremehardship. In relation to Mr B's mental health, Mr Garden acknowledged the updatefrom Mr B's GP and that Mr B is clearly suffering significant mental distress arisingfrom the proceedings, but said there is only limited information available that couldlead the Court to conclude that there is an appreciable risk of self-harm or suicide.[24] In relation to harm to Mr B's family, the Crown's submission was that the Courthas evidence of a difficult situation particularly in relation to Mr B's daughter, butthere is little evidence to suggest that lifting name suppression would cause thatsituation to appreciably deteriorate.[25] Finally, in relation to Mr B's business, Mr Garden concluded that it was opento the Judge to conclude that the potential consequences on the business were notsufficient to displace the presumption of open justice.[26] Mr Garden submitted that if the Court found that Mr B did meet the test forextreme hardship, when exercising its discretion the Court should acknowledge thegreater weight of a risk of extreme hardship pre-trial, when Mr B retains thepresumption of innocence. Mr Garden noted, however, that both the complainant andher father oppose a continuation of name suppression.1110 Police v B, above n 2, at [11].11 The Court must take into account the views of a victim of the offending when consideringpermanent name suppression: Criminal Procedure Act 2011, s 200(6).Analysis | TātariExtreme hardship[27] As the District Court Judge observed, there is a high threshold for the test forextreme hardship:12[48] As regards the level of hardship required by the phrase "extremehardship", we consider it clear beyond argument that it connotes a very highlevel of hardship. The word "hardship" on its own means "severe suffering orprivation". The addition of the qualifier "undue" in s 200(2)(c) indicates thatsomething more than hardship simple is required, while the word "extreme"in s 200(2)(d) indicates something more again.[28] The stringency of the test is highlighted in the following comments of Palmer Jin R v Police in relation to the relevant grounds under s 200(2):13[32] The substantive points made by the Court of Appeal in Lewis v Wilson& Horton Ltd still apply since enactment of the Act in 2011. But the courtshave determined that the test in s 200(2) involves two steps:(a) First, the court must consider whether publication would belikely to lead to extreme hardship. "Likely" in ss 200(2) has been held to mean "a real and appreciable possibility". TheCourt of Appeal has stated the thresholds of extreme hardshipin s 200(2)(a) and a "real risk" of prejudice in para (d) are"comparative standards":The adjectives indicate that these are comparativestandards. They require that the court compare theconsequences of publication in the instant case withthose that normally attend prosecution. Distress,embarrassment and adverse personal and financialconsequences usually attend criminal proceedings,and something out of the ordinary is needed if theapplicant is to get across the threshold.[29] As Ms Stanley submitted, the Court of Appeal has confirmed hardship is to beassessed cumulatively:14[40] The correct approach is to identify all likely hardship arising frompublication, as the Judge here did. But the ultimate assessment of whether thelikely hardship would be extreme must be based on all such hardship, looked12 Robertson v Police, above n 7 (footnotes omitted).13 R v Police [2019] NZHC 2901 (footnotes omitted).14 X v R, above n 9.at cumulatively. It is not "orthodox" to discount some of the identifiedhardship on the basis it somehow does "not qualify as hardship". It must allbe factored into the "hardship calculus".Mr B's children[30] In his affidavit provided for the District Court proceedings, Mr B explained hehas concerns about two of his children if his name is published: one of his teenagedchildren goes to school with the complainant; and another of his teenaged children hasbeen removed from school, suffering mental health issues, which began as a result ofthe actions of other students when the complaint was first made against Mr B.[31] I agree with the Judge that the situation in relation to Mr B's children is similarto the case of Tranter v R.15 Mr Tranter faced charges of serious sexual offending, andhis stepdaughter attended the same school as the complainants. Her mother advisedthat the stepdaughter was being bullied and teased as a result of the charges. Inrefusing name suppression, Dunningham J held:[31] There is no doubt, therefore, that Mr Tranter's stepdaughter has facedconsiderable distress as a result of the inappropriate bullying which hasfollowed him being charged. [32] I accept that the stepdaughter is currently facing hardship, possiblyeven undue hardship, because many of her peers know about her stepfatherbeing charged. it is clear from the evidence that there is considerableknowledge in the local community of the charges Mr Tranter faces. If namesuppression is now lifted, it is difficult to see how that, of itself, would causethe stepdaughter any additional hardship, let alone extreme hardship.[33] As the cases cited by counsel show, "extreme hardship" is a highthreshold to meet and undoubtedly requires more than "undue hardship" andmore than the ordinary distressing and embarrassing consequences of beingassociated with someone facing criminal charges.[32] Similarly, it is difficult to see how publication of Mr B's name now would addto the hardship his child is suffering, having already been removed from school. Thereis no medical evidence before me to show publication would have an impact on hischildren's mental health that would constitute extreme hardship. The evidence inMr B's affidavit is insufficient to show his children would experience extremehardship if his name were published.15 Tranter v R, above n 6.Mr B's business[33] In relation to his business, Mr B explained he is involved in two businesses:his main business, which "revolves around [him]", is in sales and marketing andemploys four people; he is also part owner of an online business. He was previouslyalso working part time as a swimming coach, but has been stood down as a result ofthe alleged offending. Mr B explained that his business relies on his reputation, andhe is concerned he may lose a "substantial" amount of business if his name ispublished. He also explained that, as he is the primary income earner for his familyand is responsible for paying the large mortgage on their family home, any financialimpact on the business will have a significant impact on his family.[34] Again, I agree with the Judge that the situation in relation to Mr B's businessis similar to the case of Byrne v Police.16 Mr Byrne ran a gym and had been convictedof six charges of selling cocaine. He unsuccessfully applied for permanent namesuppression in order to protect his family's source of income and his friends'investments in the gym.[35] Ms Stanley submitted Mr B's case can be distinguished from Byrne in tworespects: Mr Byrne had partly withdrawn from the business (his wife was running it),whereas Mr B is the "central figure" in his business; and the seriousness of Mr Byrne'soffending was "far greater" than the alleged offending in the present case.[36] I am not persuaded by either of these factors. Mr Byrne was still involved inhis business, and his offending also involved drugs. Because Mr B is self-employedhis assessment of the possible consequences of publication is necessarily subjective.Mr B has not provided any information about the income he receives from hisbusinesses, or his wife's salary, as evidence of the likely financial impact on him andhis family. It is also relevant that his business is not connected to coaching swimming,and does not involve any sort of particularly public role. I find the potential impacton Mr B's business alone is not sufficient to establish extreme hardship.16 Byrne v Police, above n 4.Mr B's mental health[37] I deal now with the fresh evidence in relation to Mr B's mental health, whichis an undated letter from Mr B's GP provided to Mr B's counsel since the DistrictCourt hearing.17 Mr B's GP confirms he provided a letter for Mr B on 21 July 2021,for the purpose of the District Court hearing. He confirms he has seen Mr B againsince then. Mr B's GP advises:I have known Mr B since November 2013 and while he has suffered fromdepression in the past, it has not been to the degree that he is presenting withcurrently and I consider this to be a major episode. I remain very concernedfor Mr B's mental health, in particular the reported suicidal thoughts which Iconsider to be genuine.Mr B suffers from Obsessive Compulsive Disorder, which means he willconstantly chew over the present predicament that he finds himself in withoutbeing able to switch it off, and this exacerbates the negative impact on hismental health.[38] Fresh evidence on appeal requires the Court to assess whether the evidencepasses the sequential tests the Privy Council set out in Lundy v R:18The Board considers that the proper basis on which admission of freshevidence should be decided is by the application of a sequential series of tests.If the evidence is not credible, it should not be admitted. If it is credible, thequestion then arises whether it is fresh in the sense that it is evidence whichcould not have been obtained for the trial with reasonable diligence. If theevidence is both credible and fresh, it should generally be admitted unless thecourt is satisfied at that stage that, if admitted, it would have no effect on thesafety of the conviction. If the evidence is credible but not fresh, the courtshould assess its strength and its potential impact on the safety of theconviction. If it considers that there is a risk of miscarriage of justice if theevidence is excluded, it should be admitted, notwithstanding that the evidenceis not fresh.[39] I find the letter from Mr B's GP to be both credible and fresh, and I thereforegrant leave to adduce it.[40] In terms of the risk to Mr B's mental health, I note the comments of the Courtof Appeal in D v Police:1917 Counsel advised that she received the letter on 3 August 2021.18 Lundy v R [2013] UKPC 28; [2014] 2 NZLR 273 at [120].19 D v Police [2015] NZCA 541 (footnotes omitted)[30] It is not uncommon for applicants to seek suppression on the groundthat publication will cause them to self-harm or commit suicide. A review ofthe principal cases is instructive. A number of points may be made:(a) The possibility of self-harm or suicide always gives a courtcause for anxious consideration. Suicide would be adevastating and unacceptable consequence of publication andit cannot always be assumed that an at-risk person will behaverationally. But the court cannot adopt the stance that any riskis unacceptable. Under s 200 it must be satisfied that therelevant subs (2) risk is likely; that is, a real and appreciablepossibility.(b) Judges know that people may experience suicidal ideationwhen confronted with criminal proceedings, which areimmensely stressful, but very seldom, if ever, act upon it. Theproceeding is normally the principal cause of stress, althoughpublication identifies the proceeding with the defendant andmay cause great anxiety at particular points in time.(c) For these reasons a defendant who relies on a risk of self-harmor suicide attributable to publication of his or her name mustnormally point to something more than the usual feelings ofanxiety and despair that may attend proceedings. It is usualto offer evidence that the defendant is psychologicallytroubled for other reasons and is particularly susceptible topublicity.(f) The opinions of medical professionals deserve respect, but acourt need not defer to them. It is unlikely to question anuncontradicted medical diagnosis of the defendant'scondition, but such opinions may assume that any risk is toomuch risk or (as in this case) urge suppression withoutadequately addressing alternative ways in which the riskmight be managed.(h) Suppression does not follow automatically from the courtbeing satisfied that a relevant risk exists. The court mustfurther consider the second issue: whether an order ought tobe made in the exercise of discretion.[41] In R v Wilson, Whata J said:20[37] There can be no bright line threshold for when emotional distress willamount to extreme hardship. But I consider that where emotional distress israised as a basis for suppression, there must be probative evidence thatpublication may result in a severe impact on the mental health of the offender.20 R v Wilson [2014] NZHC 32 (footnotes omitted).[38] In the present case, [a psychologist] observes that it is highly probablethat [the defendant's] mental health would acutely decline and in the form ofa relapse of the anxiety and depressive symptoms she previously experienced.He concludes that her "risk of suicide can certainly not be excluded in theevent of publication of her name". [39] I am satisfied that [the defendant] is likely to suffer significantemotional distress if her name is published. But I am not persuaded thatpublication is likely to result in the type or scale of extreme emotionalhardship contemplated by s 200(2)(a). The vast majority of offenders will begreatly affected by the publication of their offending, especially of the kindcurrently under scrutiny, and this may result in significant emotional distress,including depressive symptoms such that the risk of suicide cannot bediscounted. In my view however, something more than this is necessary inorder to qualify as extreme, as was the case in BL v R where there was evidenceof a high risk of suicide and post traumatic stress syndrome that could not bemitigated by available protective structures. By comparison, [the] conclusionthat the risk of suicide cannot be excluded is not sufficiently compelling tosignal the need for suppression.[42] In BL v R, the defendant had regularly contemplated suicide, had planned howto end his life, and had the means to carry out that plan.21 Although Winkelmann J (asshe then was) ultimately granted suppression, she noted, with reference to s 200(2)(e)(which allows a Court to grant suppression if publication would be likely to "endangerthe safety of any person"):22Where there is a risk of suicide, the Court must consider the medical evidencebefore it. Where a risk of suicide is established, name suppression does notautomatically follow; the existence of a suicide risk is a relevant, but notdeterminative, factor.23[43] I acknowledge Mr B has experienced "suicidal thoughts" and is suffering fromserious symptoms of depression and anxiety. I do not underestimate the seriousnessof these symptoms and it has certainly given me cause for anxious consideration.However, there is not enough evidence before me to show that suicide is a "real andappreciable possibility".24 While Mr B describes the symptoms he is experiencing inhis affidavit, he does not mention any risk of suicide. There is also no medicalevidence before me which establishes that publication of his name (or the prospect ofpublication) is the cause of those symptoms, rather than the stress of the criminalproceeding itself. I do take account of the cumulative effect of the hardship Mr B21 BL v R [2013] NZHC 2878.22 At [23].23 R v Suttie [2007] NZCA 201.24 D v Police, above n 19, at [30].potentially faces, in particular the impact any financial stress would have on his mentalhealth. However, on the evidence before me, the high threshold of "extremehardship", imposed by the authorities I have referred to has not been met.Fair trial[44] Ms Stanley also submitted there is a possibility that publication of Mr B's namemay result in his right to a fair trial being undermined, given the nature of the mediareporting to date. She said this has extended beyond the bounds of the events givingrise to the charge against him, and such publicity may have the effect of "infecting"the jury pool.[45] A "real risk" of prejudice to a fair trial is a comparative standard.25 While Iaccept there is likely to be more media coverage if Mr B's name is published, his trialis likely to be at least one year away – meaning potential jurors will likely haveminimal, if any, recollection of the reporting at this stage.26 Additionally, jurors areroutinely directed to approach their task objectively on the basis of the informationpresented to them at trial, and not to conduct their own research.27 I am satisfied thatany risks can be managed by appropriate directions to the jury. Therefore I am notsatisfied publication is likely to create a real risk of prejudice to a fair trial.Conclusion | He kupu whakakapi[46] Mr B has not established that publication would be likely to cause extremehardship to himself, his family, or his business, or create a real risk of prejudice to afair trial. It is therefore not appropriate for name suppression to continue.25 See above at [28].26 Te Pou v Police [2020] NZHC 2 at [6].27 At [8].Result[47] The appeal is dismissed.Gwyn JSolicitors:Crown Solicitor, WellingtonThomas Dewar Sziranyi Letts, Lower Hutt