QUIRKE v NZ POLICE [2018] NZHC 2072

QUIRKE v NZ POLICE [2018] NZHC 2072 [14 August 2018]IN THE HIGH COURT OF NEW ZEALANDCHRISTCHURCH REGISTRYI TE KŌTI MATUA O AOTEAROAŌTAUTAHI ROHECRI-2018-409-000048[2018] NZHC 2072BETWEEN EDWARD JAMES QUIRKEAppellantAND NEW ZEALAND POLICERespondentCRI-2018-409-000049BETWEEN CLAIRE ELIZABETH QUIRKEAppellantAND NEW ZEALAND POLICERespondentHearing: 9 August 2018Appearances: AMS Williams for AppellantsH F McKenzie for RespondentJudgment: 14 August 2018JUDGMENT OF GENDALL JIntroduction[1] The appellants, Claire Quirke (Mrs Quirke) and Edward Quirke (Mr Quirke),are a married couple who face multiple charges of accessing a computer system fordishonest purposes and theft of over $1.4 million from Mrs Quirke's mother, ShirleyMilligan (Mrs Milligan). They have pleaded not guilty and have elected trial by jury.[2] On 17 May 2018, Judge Kellar in the District Court declined to grant interimname suppression under s 200(2)(a) of the Criminal Procedure Act 2011. Mr and MrsQuirke appeal that decision on the ground that the Judge was wrong to find thatpublication of the appellants' names would not cause extreme hardship to theappellants or the appellants' employees.Background facts[3] On 1 August 2016, Mrs Milligan's husband Robin Milligan (Mr Milligan) (MrsQuirke's father) passed away. Mrs Quirke, it seems, had been given access to bankaccounts to assist her mother, Mrs Milligan, and was helping her at the time.Mrs Milligan became the sole executor and beneficiary of her late husband's estate on1 September 2016.[4] According to the summary of facts, between 1 August 2016 and 14 December2017, the appellants accessed bank accounts belonging to Mr Milligan (under thenames of "Robin B Milligan" and "Milligan's Radio (1972) Limited") withoutauthority 92 times. The total amount withdrawn and transferred into the appellants'bank accounts was $1,403,500, with individual withdrawals varying between $900and $40,000. Mrs Milligan discovered these unauthorised withdrawals/transfers inJanuary 2018.[5] The majority of the money from the accounts comprised the sale of one ofMr and Mrs Milligan's houses, and two term deposits.[6] The police say their enquiries have determined that between 1 August 2016and 14 December 2017, Mr Quirke spent approximately $569,174 on gambling,$566,752.81 on money transfers, $122,865 on assets and $121,990 on ATMwithdrawals.District Court decision[7] In his decision, Judge Kellar noted first that Mrs Quirke and, to a much lesserextent, Mr Quirke have health difficulties which have been exacerbated by theseproceedings. Both Mr and Mrs Quirke are involved, too, in businesses they operate.It was noted that they expressed concern about the effect publication of their nameswould have on the reputation of their businesses and the consequent possible effectboth on their income and on their employees. The appellants had suggested thatpublication of their names would result in irreparable damage to their businesses, itwould seriously affect their ability to earn a living, it would affect their health andcause extreme hardship to their employees.[8] In his decision, Judge Kellar accepted that Mrs Quirke has mental health issues.However, he concluded on all the material that had been provided that there was noimminent risk of self-harm. Mrs Quirke was on medication and seeing a medicalpractitioner. It seemed too that she had the support of her husband. As such the Judgefound that the threshold of extreme hardship resulting from publication of her namewas not met.[9] Likewise, the Judge was not satisfied that the impact on Mr and Mrs Quirke'sbusinesses of publication of their names would reach the high threshold required ofextreme hardship.[10] Judge Kellar also went on to say that, even if he had gone on to the secondstage of the inquiry and needed to decide whether to exercise a discretion that theoverriding principle of open justice should yield to suppression, he would not haveexercised that discretion. The Judge held that public interest in publication here wouldoutweigh the appellants' interest in suppression.Law[11] Section 200(2)(a) of the Criminal Procedure Act 2011 (the CP Act) providesthat the Court may make a name suppression order if it is satisfied that publicationwould be likely to cause extreme hardship to the person charged with the offence, orany person connected with that person.[12] The leading cases on the interpretation of s 200 are the Court of Appealdecisions in Robertson v Police1 and D v Police.2 These cases confirm thelongstanding presumption of open justice – that the business of the Courts should be1 Robertson v Police [2015] NZCA 7.2 D v Police [2015] NZCA 541.done publicly unless there is good reason not to do so. The Court of Appeal in D vPolice went on to say:[10] Section 200 mandates a two-step inquiry: whether one of thethresholds in subs (2) has been crossed and, if it has, whether in the exerciseof discretion an order ought to be made. The first step gives the presumptionstatutory form; that is to say, it insists that the court determine on whatprincipled basis suppression might be granted. The legislation does notimpose a burden of proof but the presumption will apply unless the applicantcan point to something to displace it.[13] Section 287 provides that on a first appeal from a decision on a suppressionorder the Court must:(a) Confirm the decision appealed against; or(b) Vary the decision appealed against; or(c) Set aside the decision appealed against; or(d) Make any other order it considers appropriate.[14] In a relatively recent decision in this Court, Rougeux v Police, Mander J held:3 before a Court may exercise its discretion to make a suppression order, astatutory threshold is required to be satisfied. It therefore follows that whetherthe statutory prerequisite has been established involves a matter of judicialevaluation and, in accordance with the approach directed by the SupremeCourt in Austin, Nichols & Co Inc v Stichting Lodestar,4 an appeal Court isrequired to undertake its own assessment of whether the threshold test is met.As was observed by Gilbert J in Beacon Media Group Ltd v Waititi,5 theconstraints on an appeal from the exercise of a discretion do not apply.While an appeal Court may therefore assess for itself whether the statutorycriteria has been made out, obviously it is constrained by the words of thesection itself and the stringent statutory test that now applies.[15] It is clear therefore that an appeal Court must make its own assessment ofwhether the statutory threshold at the first stage has been met. Once satisfied that thestatutory criteria at this first stage have been met, at the second stage an appellate3 Rougeux v Police [2014] NZHC 979 at [18]-[19].4 Austin, Nichols & Co Inc v Stichting Lodestar [2008] 2 NZLR 141 at [16].5 Beacon Media Group Ltd v Waititi [2014] NZHC 281 at [9].Court must then make its own determination whether suppression should be grantedor not.SubmissionsAppellant's submissions[16] Both appellants were represented by the same counsel, Mr Williams, at thisappeal hearing.[17] The appellants submit that the Judge's articulation of the two-step test wascorrect, but that his Honour was wrong to find that the threshold of extreme hardshiphad not been met by either or both of the appellants or their employees. Counsel'sfocus was on the effect of publication on Mrs Quirke's health and on the businesses ofthe appellants and their employees.[18] Counsel submits that should this Court accept that the Judge was in error notto find that the threshold of extreme hardship had been met, the Court should exerciseits discretion to grant interim name suppression because:(a) The appellants have entered pleas of not guilty and any trial is not likelyto take place until some time later in 2019;(b) The matter has been the subject of extensive media coverage;(c) While the allegations are serious the appellants do not pose a risk to thepublic; and(d) The hardship caused cannot be undone if the appellants are acquitted ofthe charges.Respondent's submissions[19] In response, the respondent submits that there is no error in the Judge'sreasoning here. Judge Kellar's articulation of the two-step test and of what constitutes"extreme hardship" was correct. He was right, too, when he found first, that neitherappellant satisfied the threshold test at the first stage, and, secondly, that in any eventhe would not have exercised the discretion at the second stage.[20] As there must be exceptional reasons before a departure from free reporting iswarranted, and there is significant and justified public interest in matters such as this,the respondent submits that interim name suppression should not be granted.Analysis[21] As I have noted, the appellants seek interim name suppression on the groundsthat publication would adversely affect Mrs Quirke's mental health, and that both oftheir businesses could be negatively affected. The "extreme hardship" threshold ins 200(2)(a) of the CP Act, however, is a very high one. The appellants' situation, inmy view, does not reach that threshold.[22] Mrs Quirke, it seems, does suffer from mental health issues and chronicmedical conditions that have understandably been exacerbated by the proceeding. Inthe past, for these conditions she has been under the care of a medical practitioner andreceived medication, since August 2017 she has been working with a health coach and,recently, she has been referred to a counselling service. In her affidavit, Mrs Quirkesays she has been her mother's only real support since her father died in 2016, whichshe has found emotionally draining. She says this has caused her stress and anxiety.An issue arose on the morning of the hearing of this appeal. Mr Quirke apparentlyprovided to Mr Williams an email in which he said that Mrs Quirke's overall health,and what he described as her fragile mental health, had worsened over the last week.He claimed that during this time, she had not left the house. No other material orevidence was before the Court, however, regarding these aspects.[23] Indeed, in the evidence which is before the Court, Mrs Quirke in her affidavitat [7] deposes: "I don't class myself as suicidal, but there are times when my brain isconstantly overthinking everything I do and I want it to stop. At those times I wouldbe happy not to ever wake up". These symptoms it seems have worsened since shewas charged. Mrs Quirke, as I have noted, is medicated for anxiety and depression,and has been referred to counselling.[24] Mrs Quirke refers in her affidavit to the fact she runs under her company, QECHoldings Ltd, an online marketing and brand design business. She deposes she hasongoing contracts with clients and design agencies and has four contractors on amonthly retainer to assist her in meeting those commitments. The stress of theproceedings, she says, has caused her to neglect her work and to lose clients. Herincome, she says, has consequently dropped from around $4000 per month to zero.She is about to apply to access her Kiwisaver account to enable the appellants to meettheir financial commitments.[25] If her name is published, Mrs Quirke believes that she would lose anyremaining clients she has. This would mean she would have to let her contractors go,as well as losing most of her income. She feels that publication of her name wouldruin her reputation, and the work she has put into her career over the last 20 yearswould be wasted.[26] In Mr Quirke's affidavit, which is before the Court, he says that he considerstoo that publication of his name would cause irreparable damage to his business (whichis a pest control and management service), it would seriously affect his ability to earna living and it would affect his health to such an extent as to amount to extremehardship. He also expresses concern about the likelihood of having to lay offemployees. He explains that the majority of his customers use his business becauseof his reputation and the relationships he has built with them. Publication of his namewould mean, he says, that his clients would stop using his business. Mr Quirkeattached news articles about the case to his affidavit to demonstrate the media interestand the likelihood of prominent publication of his name. He went on to list hisfinancial obligations that he will be unable to meet if his business stops creatingincome. Mr Quirke, however, made no further comment about the possible effect ofpublication on his health.[27] As I note, the threshold of "extreme hardship" is a high one. In my judgment,Judge Kellar was correct to find that neither Mr Quirke nor Mrs Quirke's situationsreach that threshold.[28] Mrs Quirke, it appears, is not suicidal, is on medication, and has the support ofmultiple health professionals and her husband. Judge Kellar found, "there aresufficient support mechanisms in place to mitigate any risk posed by publication" ofher name, and thus extreme hardship could not be made out. I agree.[29] Both Mr and Mrs Quirke described the positive relationships they have formedwith the clients of their businesses. It is conceivable that those relationships canremain intact despite publication, as can the wider reputation of their businesses. Asthe Judge noted, while the appellants have pleaded not guilty and are entitled to thepresumption of innocence, if their names are published some people may view themin a negative light and feel disinclined to do business with them. That is their choice.But it is not at all clear that the impact of publication on either appellant's businesswould reach the threshold of extreme hardship. As Adams on Criminal Law notes:6Significant or even devastating, economic consequences of publication forbusiness interests associated with the defendant appear less likely to reach thethreshold. Financial loss is often a direct consequence of public knowledgeof offending[30] Even if the extreme hardship threshold had been reached, the Court still has adiscretion whether to suppress the appellants' names. The starting point of thebalancing test is the value of open judicial proceedings, and whether the privacyinterest of the appellants outweighs that. The victim of this alleged offending,Mrs Milligan, was present in Court (with two support people) throughout the hearingof this appeal. Section 200(6) of the CP Act sets out a requirement in certaincircumstances for the Court to take into account any views of a victim of an offence.At the hearing of this appeal I raised this issue with counsel for the respondent andMrs Milligan who had advised earlier that she wanted publication to occur. Over themorning adjournment I invited Mrs Milligan to reflect and take advice on this issue.She did so and on her return to Court confirmed that she had not changed her earlierview that publication should occur here. She said this was her clear view, even thoughpublication would be likely to identify her too and the family in this entire matter.Mrs Milligan also emphasised that she had a real concern for the mental health of herdaughter, Mrs Quirke, and wanted to ensure that she should have proper care, but6 Bruce Robertson (ed) Adams on Criminal Law (online looseleaf ed, Thomson Reuters) at[CPA200.02(1)].notwithstanding this, her overall view was that publication should occur. By way ofan aside, it seems clear too, from material and comments before the Court, that detailsof these events may be already known to many in the local community. In all thecircumstances of this case therefore, in any event, I am satisfied that the public interestin open justice should prevail here.Conclusion[31] For all these reasons, I conclude that Judge Kellar made no error in hisjudgment not to grant interim name suppression to Mr and Mrs Quirke. The extremehardship threshold is not made out and, in any event, I am satisfied that Judge Kellarwas right to conclude that the discretion to suppress would not have been exercisedhere.[32] This appeal is dismissed. Interim name suppression is refused, and any interimname suppression order that may have been made is now lifted....................................................Gendall JSolicitors:Raymond Donnelly & Co, ChristchurchCopy to:Anselm Williams, Barrister, Christchurch