DURRANT v NEW ZEALAND POLICE [2019] NZHC 582

DURRANT v NEW ZEALAND POLICE [2019] NZHC 582 [26 March 2019]SUPPRESSION ORDERS EXIST IN RELATION TO ASPECTS OF THISJUDGMENT PURSUANT TO S 205 CRIMINAL PROCEDURE ACT 2011: SEEPARAGRAPH [3]–[6] and [30].http://www.legislation.govt.nz/act/public/2011/0081/latest/DLM3360354.htmlIN THE HIGH COURT OF NEW ZEALANDNELSON REGISTRYI TE KŌTI MATUA O AOTEAROAWHAKATŪ ROHECRI-2019-442-2[2019] NZHC 582BENJAMIN PHILIP DURRANTvNEW ZEALAND POLICEHearing: 20 March 2019 (via AVL)Appearances: T C Lyall for AppellantA R Goodison for RespondentJudgment: 26 March 2019JUDGMENT OF CLARK JSummary[1] The appellant, Mr Durrant, faces two charges of arson under s 267(1)(a) of theCrimes Act 1961.1 When Mr Durrant had his first court appearance on 7 March 2019,Judge Ruth declined his application for interim name suppression.2[2] Mr Durrant appeals the Judge's decision and seeks leave to adduce furtherevidence on appeal, namely, an affidavit from his mother, Ms Black.1 Maximum penalty 14 years' imprisonment.2 New Zealand Police v Durrant DC Nelson CRI-2019-042-000450, 7 March 2019.Factual background[3] While the summary of facts itself is suppressed the following events from thatsummary have been well publicised.(a) The Nelson-Tasman District experienced extreme weather conditionsover the 2018/2019 summer period with high temperatures and no rainfor a significant period of time, leading to a heightened risk of fire anda ban on the use of machinery in the region.(b) A number of serious fires broke out in the Nelson Bays area in February2019. The fires resulted in mass evacuation of residents, livestock andbusinesses to prevent loss of life and damage to property.(i) On 5 February 2019 a fire started on a rural block of land onPigeon Valley Road, Wakefield, requiring a nationwideresponse of emergency services and fire-fighting equipment. Astate of emergency lasting several weeks was declared.(ii) On 6 February a fire broke out on Rabbit Island. A Fire andEmergency New Zealand (FENZ) investigation identified twoseats of the fire and declared them to be suspicious.(iii) On Friday 8 February a fire broke out in Atawhai, Nelson. Theblaze narrowly missed residential properties in the area but wasquickly brought under control. A FENZ investigationdetermined the origin of the fire to be suspicious.(c) These events led to increased anxiety across the Nelson communityfrom the ongoing risk posed by the dry conditions in the region.[4] The summary of facts alleges that Mr Durrant and an unknown associate lefthis home address at 1:10 pm on Wednesday 27 February 2019. The defendant wasseated in the front passenger seat. As they travelled along Moutere Highway the driverslowed down allowing the defendant to set fire to an area of vegetation on the side ofthe road.3 They drove away. Shortly after, a passing motorist discovered the fire andalerted the security guard posted at the top of the hill. By this stage, the fire had spreadfrom the roadside into forestry nearby and continued to spread onto neighbouringproperties. The Fire Service was alerted and an extensive fire-fighting operationensued. Police cordoned the area. All residents in the Redwood Valley were evacuateduntil the fire was brought under control. A significant area of bush and pine plantationwas destroyed.[5] The summary of facts further alleges that, at around 2:00 pm on 6 March 2019,Mr Durrant was driving with his co-defendant along Pigeon Valley Road. The area isheavily forested and was assessed as an "extreme fire risk". They started a fire invegetation on the side of the road then travelled away via forestry roads towards theMoutere Highway. Soon afterwards, forestry workers came across the fire andextinguished it. By this stage, forestry staff had been alerted to the presence of the carbeing driven by the defendants and blocked the road with their vehicles. Thedefendants initially came to a stop, but then attempted to escape, eventually becomingstuck when they tried to drive through a dry river bed. Forestry staff prevented themfrom leaving until Police arrived moments later.[6] Mr Durrant denied all involvement and denied being in the area where the fireswere started but later admitted to being in the area and suggested his vehicle exhaustmay have caused the fires.District Court decision[7] The appellant's first appearance in the Nelson District Court was on 7 March2019 before Judge Ruth together with his co-defendant, who has name suppression.In support of his application for interim name suppression, Miss Lyall, counsel forMr Durrant, submitted there was a risk to the safety of both defendants and broughtscreenshots from a Facebook page in support of this argument. Judge Ruth declinedMr Durrant's application for interim name suppression and gave brief reasons, but3 It is unclear from the summary of facts whether the vehicle stopped and let out Mr Durrant to startthe fire, or whether he somehow started the fire from the car.granted his co-defendant's application on the basis she would be seeking a report unders 38 of the Criminal Procedure (Mentally Impaired Persons) Act 2003.[8] When the Judge was advised of Mr Durrant's intention to appeal, he issued aminute giving his reasons for declining interim name suppression.4[9] The Judge emphasised the high threshold to be met before name suppressioncan be granted, namely "extreme hardship".5 Judge Ruth noted there was no extremehardship on these facts. While social media posts reflected a backlash from theNelson-Tasman community, this was no more than an expression of "heightenedemotions" given the impact of the fires. Judge Ruth did not regard the posts ascontaining genuine threats.6Relevant lawApproach to appeal[10] Section 283 of the Criminal Procedure Act 2011 provides that an appeal maybe brought as of right against a name suppression order decision.[11] On appeal, different approaches apply to the different stages of the test. Thefirst stage is a factual assessment and subject to the ordinary approach to appeals.7 Ifthe appellate court's opinion is different from the decision appealed, the decision iswrong even if it was a conclusion "on which minds might reasonably differ".8 Thesecond stage is discretionary and subject to the approach reserved for appeals againstdiscretion, that is, the appellant must show the judge acted on a wrong principle, ortook into account irrelevant matters, or failed to take into account relevant matters, orwas plainly wrong.9[12] Under s 287, this Court must determine the appeal by:4 New Zealand Police v Durrant, above n 2.5 At [3].6 At [4].7 Austin, Nichols and Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141.8 At [16].9 B v R [2011] NZCA 331 at [9]; and Lawrence v R [2011] NZCA 272 at [11].(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.Name suppression[13] Courts may suppress the identity of a defendant under s 200 of the CriminalProcedure Act 2011:200 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(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; or(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 thepurposes of 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 orderunder subsection (1) if that person advances an arguable case that oneof the grounds in 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 thecourt is satisfied 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 intoaccount any views of a victim of the offence conveyed in accordancewith section 28 of the Victims' Rights Act 2002.[14] The starting point for a s 200 assessment is the principle of open justicemeaning "not only that judicial proceedings should be held in open court, accessibleby the public, but also that media representatives should be free to provide fair andaccurate reports of what occurs in court."10 Courts consistently emphasise a primafacie presumption in favour of openness in reporting.11 Publication is the norm.Suppression orders are only to be made in restricted circumstances and the thresholdfor suppression is high.12[15] Section 200 contemplates a two-stage analysis, stage one involving a thresholddetermination. The court must be satisfied that publication would be likely to lead toone of the outcomes listed in s 200(2).13 "Likely" is a common-sense test whichshould be readily understood and applied, however successive cases have used otheradjectives such as "real",14 "substantial", and "serious" to demonstrate the risk mustnot be fanciful or remote.15[16] The court may grant an interim order when the defendant first appears if thatperson advances an "arguable case" that one of the threshold grounds in subsection(2) applies.16 This lower evidential threshold recognises that first appearances:10 Erceg v Erceg [2016] NZSC 135, [2017] 1 NZLR 310 at [2].11 R v Liddell [1995] 1 NZLR 538 at 546. See also Proctor v R [1997] 1 NZLR 295 (CA); Robertsonv Police [2015] NZCA 7; and Re Victim X [2003] 3 NZLR 220 (CA).12 Robertson v Police, above n 11, at [44].13 Fagan v Serious Fraud Office [2013] NZCA 367, at [39]–[40].14 Beacon Media Group Ltd v Waititi [2014] NZHC 281 at [17]; Peglar v Police [2014] NZHC 1184at [23]; and JM v R [2015] NZHC 426 at [35]–[36].15 Huang v Serious Fraud Office [2017] NZCA 187 at [10].16 The duration of interim orders is usually from the first appearance until the defendant enters aplea, or until the conclusion of a trial. If the court does not specify a term in the order, the orderhas permanent effect in terms of subsection (2). See Criminal Procedure Act 2011, s 208; andSimon France (ed) Adams on Criminal Law – Procedure (online ed, Thomson Reuters) at[CPA208.01]."[G]enerally occur soon after arrest; that defendants have often had no opportunity toseek legal advice beyond that provided by the duty solicitor at court; and that they arelikely to have had little or no ability to assemble material in support of anapplication".17[17] Stage two is reached only when one of the threshold grounds is established. Atstage two, the court must determine whether to exercise its discretion to suppress thedefendant's name.18 While the principle of open justice underlies the existence of thestatutory threshold requirement for suppression, practically speaking the presumptionbecomes relevant when exercising the second stage discretion.19 Delivering thejudgment of the Court of Appeal in Fagan v Serious Fraud Office, Simon France Jdescribed the structure of s 200 in the following way:20[9] The structure of the section is plain and need not be made complex.Subsection (2) sets out the preconditions to a Court having jurisdiction tosuppress the name of a defendant. One of the consequences listed in paras(a)–(h) must be established to the satisfaction of the Court as being likely tofollow if no suppression order is made, before any discretion to forbidpublication of a defendant's name arises. Obviously if none of (a)–(h) isestablished, necessarily the matter ends there.[18] Essentially, in exercising discretion the judge must weigh up the competinginterests of the applicant and the public. There is a high threshold to be reached beforepublication is justified,21 and the balance must "come down clearly in favour ofsuppression".22 Relevant factors (for present purposes) include: whether the applicanthas been convicted; the seriousness of the offending; any other circumstances personalto the applicant; the stage of the proceedings and the presumption of innocence; andthe interests of other affected persons.23 The significance of the qualifying s 200(2)ground in this exercise is just one factor to weigh in the balance. As noted by the Courtof Appeal in A v R:2417 Adams, above n 16 at [CPA200.06].18 At [9]; and Robertson v Police, above n 11, at [39] and [41].19 At [46].20 Fagan v Serious Fraud Office, above n 13.21 Robertson v Police, above n 11, at [41]–[44].22 Lewis v Wilson & Horton Ltd [2000] 3 NZLR 546 at [43]; recently followed in D (CA443/2015)v Police [2015] NZCA 541, (2015) 27 CRNZ 614 at [12].23 Robertson v Police, above n 11 at [41], citing Lewis v Wilson & Horton Ltd, above n 22, at [42];and Fagan v Serious Fraud Office, above n 13, at [13].24 A v R [2017] NZCA 49 at [19].[The High Court] recognised that the nature of the qualifying ground may betaken into account in the discretionary assessment. The interests of thirdparties will be relevant to the discretionary assessment if the qualifying groundis s 200(2)(f). But those interests are not determinative of the assessment as amatter of course. As Duffy J said, care must be taken as to the weight to beattributed to those interests in any particular case. It is possible that publicinterest in publication will prevail, as Duffy J considered it did in this instance.New evidence on appeal[19] I deal first with the application to adduce new evidence on appeal.[20] The High Court retains an inherent jurisdiction to admit further evidence onappeal. The discretion should be exercised sparingly and "only be admitted where itcan properly be said that the interests of justice require the admission, and the proposedevidence satisfies the principles for admission of fresh evidence".25 The evidenceshould be sufficiently fresh and credible.26[21] Mr Durrant's mother has sworn an affidavit in which she describes her father'shealth issues and her concerns about the impact on his health should the appellant'sname be published.27 She deposes to her fragile relationship with her father and thefurther damage publication is likely to cause not only to that relationship, but also tothe appellant, his brother and herself. Counsel for Mr Durrant, Ms Lyall, submits it isin the interests of justice for the Court to receive this evidence.28[22] Ms Lyall argued the lower threshold standard under s 200(4) for obtaining aninterim name suppression order recognises it is unrealistic for a defendant to providedetailed material at a first appearance. The defendant only had a brief opportunity tomeet with counsel before his appearance and did not have sufficient time to obtain theevidence.[23] I accept the difficulty inherent in placing detailed evidence before the Court atthe first appearance on 7 March. I am satisfied it is in the interests of justice to admit25 R v Ratu, above n 28, at [24].26 R v Bain [2004] 1 NZLR 638 (CA), approved by Bain v R [2007] UKPC 33, (2007) 23 CRNZ 71at [34]; and Lundy v R [2013] UKPC 28, [2014] 2 NZLR 273.27 A discharge summary from Nelson hospital dated 21 February 2018 is exhibited to the affidavit.28 Citing R v Ratu [2013] NZHC 3085 at [24].the further evidence. The evidence is sufficiently fresh and there is nothing before meto suggest it lacks credibility.Did District Court Judge correctly apply the s 200(4) test?[24] Mr Durrant seeks to have the decision of the District Court set aside and to begranted interim name suppression until final resolution of his case. Mr Durrant mustsatisfy the Court that one of the outcomes listed in s 200(2) would be likely to followif no order were made.[25] Mr Durrant's case is that Judge Ruth erred in considering Mr Durrant wasrequired to show extreme hardship, because the Judge "applied the substantiveassessment rather than the lower standard required at a first appearance". Mr Durrantwas only required to demonstrate an "arguable case" that one of the s 200(2) factorswas met and there was evidence before the District Court demonstrating an arguablecase for at least two of the factors under s 200(2): that Mr Durrant's safety wasendangered given the threats online;29 and there was a risk that his co-defendant wouldbe identified.30[26] The respondent argues the Judge did not err. Either expressly, or by clearimplication, the Judge was not satisfied there was an arguable case that publicationwould be likely to endanger Mr Durrant's safety, or would be likely to identify his co-defendant.[27] On my reading of Judge Ruth's minute, he considered there was no arguablecase. Judge Ruth acknowledged the social media entries "express some antipathy"towards the perpetrator of the fires, but held the nature of the entries were:31no more than the sort of venting of spleen one might expect from thoseliving in this area when it comes to notice that somebody who has in factallegedly deliberately lit fires in this area is brought to justice.[28] Noting the high threshold to be met before a court can be satisfied one of thes 200(2) preconditions is met, the Judge said:29 Criminal Procedure Act 2011, s 200(2)(e).30 Section 200(2)(f).31 New Zealand Police v Durrant, above n 2, at [2].[3] There has to be shown a degree of extreme hardship. The Courtshave held that hardship by itself means something out of the ordinary, unduehardship more again, and extreme hardship more than that again.[4] I do not see extreme hardship here I do not regard these as genuinethreats, insofar as they are threats. [29] I see no error in the Judge's approach. I am not convinced there is a "real riskof vigilantism or retributive offending against the defendants or even their families".I am inclined to agree with Judge Ruth. The Facebook comments, the more extremeof which included comments such as "get dads shotgun out" and "they need a fuckencurb stomping", are more akin to venting frustration rather than posing a genuinethreat to personal safety.[30] Nor am I convinced there is an arguable case that publication of Mr Durrant'sname is likely to lead to the identification of his co-defendant. Ms Lyall argued therewas a possibility publication of Mr Durrant's name could identify his co-defendant asthe genders and ages of both have been published, and the two have been in arelationship for some years. Gender and age is insufficient to identify her asMr Durrant's co-defendant with any degree of certainty.Risk to safety of grandfather[31] Ms Lyall then submitted there is a risk to the safety of Mr Durrant's grandfatherwho is 86 years old and suffered a stroke two years ago. He has secondary cancer andheart disease and is in palliative care. Mr Durrant's mother deposes to being"terrified" also of the impact of publication of her son's name on her relationship withher father, stating that he disinherited her recently because of her son.[32] Ms Lyall cites Q v New Zealand Customs where the threshold ground wassatisfied due to the possibility of fatal consequences following publication.32 Theappellant's wife, Mrs Q, had an existing serious heart condition. It was argued thather condition would be worsened by the stress caused by publication. Cardiologistevidence reported that Mrs Q suffered from a heart condition in which episodes of32 Q v New Zealand Customs [2014] NZHC 2398, at [34] and [56].irregular heartbeat can cause fainting or sudden death. These episodes were triggeredby stress or exercise.[33] There is no such evidence before this Court. Mr Durrant's mother describesher fear that publication might lead to the worsening of her father's health conditionbut, without evidence to support them, her fears are speculative.[34] This threshold ground is not established.Likely risk of extreme hardship to any person connected with defendant?[35] Ms Lyall submits there is a risk of extreme hardship to Mr Durrant's brotherand mother. As noted above, Mr Durrant's mother already has a fragile relationshipwith her father and publication would likely lead to irreparable damage to theirrelationship. Counsel also argued Ms Black would suffer in terms of her employment.She works in healthcare in different clinics throughout the Nelson Tasman region,seeing a minimum of 60–70 people a day. She says she has lived in Nelson her wholelife, and "everyone knows that [Mr Durrant] is my son". She worries publication ofher son's name will impede her ability to work, negatively impact her relationshipwith her partner, and her family and friends. Mr Durrant's brother shares his surnameand works in forestry, and the publication of his surname is "likely to have a negativeimpact on him".[36] Hardship means "severe suffering or privation". Mr Durrant's brother andmother are undoubtedly confronted by stress and anxiety but their circumstances donot meet the threshold requirement of extreme hardship. Typically, familiesexperience stress and anxiety when a family member is charged with seriousoffending. I accept Mr Durrant's brother and mother will be negatively impacted, butnot "well beyond" the ordinary associated consequences.33 Even for Mr Durrant'smother and her family, the negative impact is not equated with extreme hardship.33 Robertson v Police, above n 11, at [48]–[49].Exercise of discretion[37] In light of my conclusion that the preconditions for an interim suppressionorder are not met, it is not necessary to engage in the balancing exercise. Nevertheless,I indicate the views I reach as a result of weighing the competing interests of theappellant and the public.[38] The constitutionally important principle of open justice and transparency ofcourt proceedings exists in the public interest. As well, there is a genuine publicinterest in knowing the identity of the person, or persons, charged with responsibilityfor lighting fires in Nelson. It is also possible that the vacuum created by the existenceof the suppression orders will be filled with rumour and speculation. Such speculationis not in the interests of justice.34[39] On the other hand, Mr Durrant is entitled to the presumption of innocence. Noplea was entered when Mr Durrant first appeared his counsel advised at the hearing ofthe appeal that Mr Durrant will enter not guilty pleas. His right to a fair trial is arelevant consideration, as are the interests of Mr Durrant and family members,particularly his mother, who will be negatively impacted by publication.[40] I do not consider, however, the balance comes down clearly in favour ofsuppression. In fact, it is much the opposite given my findings that publication wouldbe unlikely to lead to identification of his co-defendant, that there is insufficientevidence as to its impact on his grandfather's health and that the negative impact onhis mother and brother does not reach the level of extreme hardship.Result[41] The appellant has not demonstrated error on the part of the District CourtJudge. Even having regard to the further evidence adduced on appeal, I am notsatisfied the statutory threshold is reached.[42] The appeal is dismissed.34 See R (CA340/2015) v R [2015] NZCA 287 at [35]; and Television New Zealand v R [1996]3 NZLR 393 (CA) at 397.[43] This judgment is embargoed until 2 pm Wednesday, 27 March 2018, to enableMr Durrant's mother to inform her father of the imminent publication of the chargesagainst Mr Durrant._____________________________Karen Clark JSolicitors:Zindels, Nelson for AppellantCrown Solicitor, Nelson for Respondent