NOTTINGHAM v ALLIED PRESS LIMITED [2018] NZCA 474

NOTTINGHAM v ALLIED PRESS LIMITED [2018] NZCA 474 [2 November 2018]ORDER PROHIBITING PUBLICATION OF EVIDENCE ANDSUBMISSIONS CONTAINED IN THIS JUDGMENT PURSUANT TO S 205 OFTHE CRIMINAL PROCEDURE ACT 2011 UNTIL FINAL DISPOSITION OFCRI-2015-004-3536.NOTE: HIGH COURT AND DISTRICT COURT ORDERS PROHIBITINGPUBLICATION OF THE EVIDENCE AND SUBMISSIONS FILED IN THISMATTER AND REFERRED TO IN THOSE JUDGMENTS UNTIL FINALDISPOSITION OF CRI-2015-004-3536 PURSUANT TO S 205 REMAIN INFORCE.IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA176/2018[2018] NZCA 474BETWEEN DERMOT GREGORY NOTTINGHAMApplicantAND ALLIED PRESS LIMITEDFirst RespondentPETER GEORGESecond RespondentHearing: 9 October 2018Court: Kós P, Woolford and Dunningham JJCounsel: Applicant in personW J Wright and E G Hannagan for First RespondentSecond Respondent in personJudgment: 2 November 2018 at 11.00 amJUDGMENT OF THE COURTA The application for leave to appeal is declined.B Order prohibiting publication of evidence and submissions contained inthis judgment pursuant to s 205 of the Criminal Procedure Act 2011 untilfinal disposition of CRI-2015-004-3536.____________________________________________________________________REASONS OF THE COURT(Given by Woolford J)[1] In judgments dated 30 March 2017 and 11 October 2017, Judge Crosbie in theDistrict Court at Dunedin awarded costs of $5,392.50 to Allied Press Ltd, the firstrespondent, and $6,869.58 to Peter George, the second respondent, in respect of aprivate prosecution initiated against the respondents and then withdrawn byDermot Nottingham.1 Mr Nottingham appealed to the High Court against the award.Davidson J dismissed Mr Nottingham's appeal on 8 March 2018.2[2] Mr Nottingham now seeks leave to appeal the High Court judgment to thisCourt.Leave principles[3] Section 276 of the Criminal Procedure Act 2011 provides that any party may,with the leave of the second appeal court, appeal to that court against the determinationof a first appeal court. However, the second appeal court must not give leave unlesssatisfied that:(a) the appeal involves a matter of general or public importance; or(b) a miscarriage of justice may have occurred, or may occur unlessthe appeal is heard.[4] In McAllister v R, this Court held that the threshold of "a matter of general orpublic importance" may be met where the proposed appeal gives rise to an issue ofgeneral principle or of general importance in the administration of the criminal law bythe courts.3 The "miscarriage of justice" limb may be satisfied if there is an argument1 Nottingham v Allied Press Ltd [2017] NZDC 6211; and Nottingham v Allied Press Ltd[2017] NZDC 23082.2 Nottingham v Allied Press Ltd [2018] NZHC 354 [High Court judgment].3 McAllister v R [2014] NZCA 175, [2014] 2 NZLR 764 at [36].reasonably available that the court below is in error, although not every error will giverise to a miscarriage.4Discussion[5] The private prosecution initiated by Mr Nottingham charged Allied Press Ltdand Mr George with breaching a suppression order by publishing articles on theirrespective websites in breach of s 211 of the Criminal Procedure Act. He allegedthe articles contained sufficient details to identify him, among others, in breach ofname suppression granted when he appeared in the District Court at Auckland on8 April 2015 where he was charged with two counts of breaching a suppression orderand five of criminal harassment.[6] The private prosecution was commenced in the District Court at Auckland byMr Nottingham on 30 July 2015. On 16 September 2015, it was transferred tothe District Court at Dunedin.[7] Mr Nottingham failed to comply with timetable orders on several occasions.On 22 June 2016, immediately prior to the hearing of an application by the respondentsfor dismissal of the prosecution pursuant to s 147 of the Criminal Procedure Act,Mr Nottingham sought and obtained the Court's leave to withdraw the charges.He said he was unable to continue to prosecute the charges for several reasons,including his poor health and financial constraints.[8] Mr Nottingham's principal argument in support of his application for leave toappeal is that convictions of Allied Press Ltd and Mr George were inevitable if he hadchosen to continue with the prosecution. He submits that Davidson J's finding thatthe prosecution was defendable5 was "inconsistent with the indisputable facts".[9] Mr Nottingham says that the issues of costs against a prosecutor and whatpublished information will breach a suppression order require clarification. As to thesecond, Mr Nottingham asks is it the actual age of the person whose identity has beensuppressed? Is it the area in which the person lives? Is it the occupation of the person?4 At [37]–[38].5 High Court judgment, above n 2, at [60].Is it the nature of the charges against others that have been reported, but subject toname suppression?[10] These questions are all fact specific and relate only to this case. The impugnedarticles did not name Mr Nottingham, but referred to the subject as a 51-year-oldblogger who lived in Auckland and who had been charged with, among other things,breaching a suppression order by naming and posting photographs of two teenagersinvolved in a high-profile attack that left another teenager dead.[11] We are of the view that the questions posed are not issues of general principleor of general importance in the administration of the criminal law by the courts.[12] Nor are we satisfied that a miscarriage of justice may have occurred or mayoccur unless the appeal is heard. Discontinuation of proceedings will ordinarily havecost consequences. This was not a case where the prosecution would have clearlysucceeded but for circumstances unrelated to the merits. We agree with the Judge thatthe prosecution was defendable.6 The issues would have included whetherthe publications contained any suppressed information and whether the requisitemental element was established for charges that are not of strict liability. Further, asthe Judge mentioned, if the issue of "hidden computer search tools" had becomerelevant, then the legal and evidential issues would have been more complex.7 Therewere no clear answers to these issues on the untested evidence.[13] We accordingly decline the application for leave to appeal.Suppression[14] Davidson J continued orders made by Judge Crosbie in the District Courtsuppressing the evidence and submissions in those decisions under s 205 ofthe Criminal Procedure Act until final disposition of the charges faced byMr Nottingham in CRI-2015-004-3536. Those orders are appropriate as the chargesagainst Mr Nottingham are not yet resolved. In order to protect Mr Nottingham's fairtrial rights in the event he succeeds in challenging those convictions, we accordingly6 At [59]–[60].7 At [59].make an order prohibiting publication of the evidence and submissions in thisjudgment pursuant to s 205 of the Criminal Procedure Act until final disposition ofthose charges.Result[15] The application for leave to appeal is declined.[16] We make an order prohibiting publication of evidence and submissionscontained in this judgment pursuant to s 205 of the Criminal Procedure Act 2011 untilfinal disposition of CRI-2015-004-3536.Solicitors:Wilkinson Rodgers Lawyers, Dunedin for First Respondent