R v EF and FG [2022] NZHC 1741

R v EF and FG [2022] NZHC 1741 [20 July 2022]ORDER PROHIBITING PUBLICATION OF NAMES, ADDRESSES,OCCUPATIONS OR IDENTIFYING PARTICULARS OF DEFENDANTSPURSUANT TO S 200 CRIMINAL PROCEDURE ACT 2011. SEEhttp://www.legislation.govt.nz/act/public/2011/0081/latest/DLM3360346.htmlIN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2020-044-2968[2022] NZHC 1741THE QUEENvEFandFGHearing: 13 July 2022Appearances: JCL Dixon QC and R J Williams for the CrownG J Thwaite for EFT D Clee for FGRKP Stewart for Newshub, NZME, RNZ, Stuff and TVNZDate of judgment: 20 July 2022JUDGMENT OF JAGOSE J[Name suppression]This judgment was delivered by me on 20 July 2022 at 3.00pm.Registrar/Deputy RegistrarCounsel/Solicitors:JCL Dixon QC, AucklandP F Wicks QC, AucklandJEL Carruthers, Barrister, AucklandT D Clee, Barrister, AucklandRKP Stewart, Barrister, AucklandG J Thwaite, AucklandSerious Fraud Office, Auckland[1] The defendants, EF and FG, face two charges, by deception and without claimof right, they obtained control over nearly $750,000 alleged to be party donations interms of the Electoral Act 1993.1[2] EF initially was declined name suppression by Judge D J Orchard in theDistrict Court.2 On appeal to this Court, Peters J concluded the Judge did not err inconcluding publication in the context of any report or account relating to theproceeding would not be likely to cause extreme hardship to either EF or a fundconnected with him. But Her Honour concluded on fresh evidence, "by a narrowmargin", such publication would be likely to cause extreme hardship to particular ofEF's clients, for whom "current and planned litigation [was] at a very delicatestage" and might be put "at risk".3 On that basis, Peters J allowed the appeal, to"continue interim name suppression until the first day of trial only", "[a]ny furtherapplication to be made to the presiding Judge, with up to date information".4[3] EF now seeks renewal of interim name suppression — initially to have expiredon 7 June 2022 being the first day of trial, but extended by me pending mydetermination of the application5 — until determination of his signalled applicationfor permanent name suppression in wake of my pending decision on the chargesagainst him.The law[4] The Criminal Procedure Act 2011 — in its general provisions, under a subpartto address "[p]ublic access and restrictions on reporting" — establishes:6 proceedings are generally open to the public.7 There is a power to clear theCourt but that does not, in most cases, allow for the exclusion of the media.8The Court also has power to suppress names and other identifying particularsof the defendant, witnesses, victims and connected persons as well as evidence1 Crimes Act 1961, s 240, carrying a maximum penalty of seven years' imprisonment (s 241).2 SFO v EF [2020] NZDC 24904.3 R v EF [2022] NZHC 1273 at [24].4 At [26].5 R v EF & FG HC Auckland CRI-2020-044-2968, 7 June 2022 at [4].6 ASG v Hayne [2017] NZSC 59, [2017] 1 NZLR 777 at [13]–[15].7 Criminal Procedure Act, s 196.8 Sections 197 and 198.and submissions where the statutory thresholds are met.9 Section 200(1) statesthat a Court "may make an order forbidding publication of the name, addressor occupation of a person who is charged with, or convicted or acquitted of,an offence".10[5] Section 200, with "a lengthy provenance",11 continues:Court may suppress identity of defendant(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, or convicted of,or acquitted of the offence, or any person connected with that person;or(b) cast suspicion on another person that may cause undue hardship tothat 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 is suppressedby order or by law; or(g) prejudice the maintenance of the law, including the prevention,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 offence firstappears before the court the court may make an interim order undersubsection (1) if that person advances an arguable case that one of thegrounds in subsection (2) applies.(5) An interim order made in accordance with subsection (4) expires at theperson'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 intoaccount any views of a victim of the offence conveyed in accordance withsection 28 of the Victims' Rights Act 2002.9 Sections 200, 202 and 205. Section 206 deals with the Registrar's power to make and renewinterim suppression orders.10 Unless the context otherwise requires, "name" is defined to mean "the person's name and anyparticulars likely to lead to the person's identification": s 194.11 ASG v Hayne, above n 6, at [29].'Likely', for the purposes of s 200(2), does not mean publication's more probableconsequence, but only "the existence of an 'appreciable risk'".12 Also, 'name' means"the person's name and any particulars likely to lead to the person's identification";13and 'publication' means "publication in the context of any report or account relatingto the proceeding".14[6] Despite media's persistent characterisation as such, name suppression does notmake the name-suppressed person's identity secret, but only prohibits publication 'inthe context of any report or account relating to the proceeding' of anything likely tolead to their identification. By default, criminal proceedings remain held in courts opento the public, in which name-suppressed defendants nonetheless are identifiable andidentified. A corollary of open justice is people involved in court proceedingsnecessarily will be identified:15 a public trial is the best security for the pure, impartial and efficientadministration of justice and the best means for winning public confidence inand respect for the system.But suppression derogates from open justice in the right to freedom of expression topublish accounts and reports of court proceedings.16[7] Reasons must be given for suppression decisions.17 A two-stage analysis isrequired:18At the first stage the court considers whether the consequences in s 200(2)would likely follow publication of the person's name. This is a thresholddetermination.At the second stage, if the threshold is crossed, the court considers whether anorder should be made as a matter of discretion.12 Huang v Serious Fraud Office [2017] NZCA 187 at [9], citing R v W [1998] 1 NZLR 35 (CA) at39, interpreting ss 139 and 140 of the Criminal Justice Act 1985, Beacon Media Group Ltd vWaititi [2014] NZHC 281 at [21] and Wallis v Police [2015] NZHC 2904 at [22].13 Criminal Procedure Act, s 194.14 Section 195.15 Clark v Attorney-General (No 1) [2005] NZAR 481 (CA) at [11], citing Scott v Scott [1913] AC417 (HL) at 463.16 McIntosh v Fisk [2015] NZCA 247, [2015] NZAR 1189 at [1], citing JXMX (A Child) v Dartford& Gravesham NHS Trust [2015] EWCA Civ 96, [2015] 1 WLR 3647 at [5]–[12].17 Criminal Procedure Act, s 207.18 Ratnam v R [2020] NZCA 92 at [5]–[6], citing DP v R [2015] NZCA 465, [2016] 2 NZLR 306 at[6].[8] The first stage:19 insists that the court determine on what principled basis suppression mightbe granted.20 The legislation does not impose a burden of proof but thepresumption will apply unless the applicant can point to something to displaceit.21The applicant "must establish one of the prerequisites. This is a threshold test, nota balancing exercise".22[9] The second stage must decide if "suppression [is] in the public interest".23Consistent emphasis is placed on "the importance of openness in the reporting ofjudicial proceedings and the right of the media to report on what happens in courtfairly and accurately as 'surrogates of the public'".24 At the second stage:25 the Court must balance relevant considerations in the exercise of discretion.The open justice principle must be considered at this stage, notwithstandingthat the threshold has been crossed. That is so because the ultimate questionremains whether open justice should yield. The balance must "clearly favour"suppression.[10] Where the threshold quality is of 'extreme hardship', that means "severesuffering or privation". The adjective 'extreme' adds to the meaning of hardship orundue hardship by requiring something significantly more again.26 Assessing ifhardship has the necessary quality:27 cannot take place in a vacuum. It is self-evidently contextual and in ourview must entail a relative comparison between the contended hardship andthe consequences normally associated with a defendant's name beingpublished. It must be something beyond the ordinary associated consequences.19 D (CA443/2015) v Police [2015] NZCA 541, (2015) 27 CRNZ 614 at [10].20 Robertson v Police [2015] NZCA 7 at [43]–[46].21 R v Liddell [1995] 1 NZLR 538 (CA) at 546; and Lewis v Wilson & Horton Ltd [2000] 3 NZLR546 (CA) at [41]–[43].22 Sansom v R [2018] NZCA 49 at [10(a)], citing Fagan v Serious Fraud Office [2013] NZCA 367at [9]–[10] and Robertson v Police, above n 20, at [44]–[46].23 At [10(b)].24 At [11], citing R v Liddell, above n 21, at 540, and Erceg v Erceg [2016] NZSC 135, [2017] 1NZLR 310 at [2].25 D (CA443/2015) v Police, above n 19, at [12], citing Lewis v Wilson & Horton Ltd, above n 21, at[43].26 Sansom v R, above n 22, at [32], citing Robertson v Police, above n 20, at [48].27 Robertson v Police, above n 20, at [49], citing Jeffries v Police [2014] NZHC 2379 at [24].It is "a comparative standard":28 [requiring] that the Court compare the consequences of publication in theinstant case with those that normally attend prosecution. Distress,embarrassment and adverse personal and financial consequences usuallyattend criminal proceedings, and something out of the ordinary is needed ifthe applicant is to get across the threshold.Discussion[11] 'Interim' and 'permanent' name suppression, if meaning the former untildetermination of the latter, may be misnomers. Section 200(4)–(5) allows an "interimorder" forbidding publication to be made if a defendant on first appearance "advancesan arguable case" for publication's qualifying likelihood, to expire on secondappearance unless renewed. 'Renewal' requires the court be "satisfied" as to thatqualification.[12] It is unclear from s 200 alone if 'renewal' means of an interim order, but nowto the Court's satisfaction, or of an order or further order "that is to have effectpermanently". Section 208 of the 2011 Act provides the answer:Duration of suppression order and right of review(1) A suppression order—(a) may be made permanently, or for a limited period ending on a datespecified in the order; and(b) if it is made for a limited period, may be renewed for a further periodor periods by the court; and(c) if it is made permanently, may be revoked by the court at any time.(2) If the term of a suppression order is not specified, it has permanent effect.(3) A suppression order may be reviewed and varied by the court at any time.[13] Reading ss 200 and 208 together, 'interim orders' only are those open to beingmade under s 200(4). Otherwise — unless made "for a limited period ending on a datespecified in the order" (or "renewed for a further period or periods", inferentially tospecified dates) — suppression orders (including if made for an unspecified term) are"made permanently", but nonetheless open to review and variation "at any time".28 D (CA443/2015) v Police, above n 19, at [11], citing Lewis v Wilson & Horton Ltd, above n 21, at[42]; and Robertson v Police, above n 20, at [49].[14] EF's application for "interim" name suppression pending his furtherapplication after my decision on the charges against him thus is his application fora suppression order to an unspecified date, necessarily with permanent effect.29[15] In reliance on s 200 and my inherent jurisdiction, for EF, Gregory Thwaiteargues publication of EF's name would be to associate him with prosecution for"electoral fraud", 'devastating' each his personal reputation; a superannuation schemedesigned in accordance with Islamic law; particular of his [Redacted]; and theprimacy of elections over freedom of speech. Each 'devastation' is argued to constituteextreme hardship to EF or people connected with him. Except for the fund,Mr Thwaite alternatively argues publication would prejudice maintenance of the law,by EF's [Redacted]. And on the last, Mr Thwaite argues publication would prejudicethe security or defence of New Zealand, again by EF's [Redacted].[16] Like the judges before me, I see no comparative hardship accruing to EF or thefund by reason of publication of his name. I see nothing to indicate any consequencedistinct from that which ordinarily accompanies criminal prosecution. EF'sinvolvement in political funding is the foundation for the charges. If consequences aremore severe by reason of the seriousness of the allegations is no basis on which todistinguish the risks of publication. More significantly, EF is bound to disclose thecharges to clients and potential clients under at least chapter 7 of the Lawyers andConveyancers Act (Lawyers: Conduct and Client Care) Rules 2008, meaningpublication alone carries no comparative hardship for him or them.[17] Neither do I accept maintenance of the law, as an available process to protectthe criminal justice system and the integrity of the courts,30 or the security and defenceof New Zealand, is prejudiced if EF lacks instruction. The submission is aggrandising.29 A consequence of that construction is s 200(6)'s requirement victims' views be taken into accounton a defendant's application for non-publication orders "having effect permanently". Section 28of the Victims' Rights Act 2002 — making provision for the prosecutor's ascertainment andconveyance of such views — "applies to a victim if the person accused of the offence or, as thecase requires, the offender applies to a court" for non-publication orders (emphasis added). Thecontext thus requires other than the 2002 Act's definition of 'victim' only to mean someoneaffected by "an offence committed by another person". But I have no evidence of those views onEF's application here.30 See, for example, Law Commission The public's right to know: review of the official informationlegislation (NZLC R125, 2012) at 7.16–7.19 and 7.29.And Mr Thwaite's similar claims to the primacy of elections, even if sound, lack anyfactual foundation for their contended downgrade.[18] That leaves the hardship occasioned to EF's particular clients by publication ofhis name. I have convincing evidence third parties may seize on publication of EF'sname to dissuade his clients in dispute with them from continuing with his instruction.I have no difficulty in concluding such opportunity to constitute undue hardshipbeyond the 'ordinary associated consequences' of publication.[19] But the threshold here is of 'extreme hardship' likely caused by publication,something 'significantly more' again. The submission is, if EF's instruction isterminated, no-one else has the experience, insight and lines of communication tosubstitute for him. EF's retention is made more critical by [Redacted]. On the otherhand, EF has developed his relationship with his clients over several years. For themedia entities, Robert Stewart argues, if EF's clients were to succumb to the thirdparties' dissuasion, it would be their "freely made" decision, rather than by publicationlikely causing extreme hardship.[20] Rather than an exercise of rational choice, success of the third parties'dissuasion — which success would rely on factors underlying EF's clients'relationships with the third parties, of a professed belief system denying law'ssuperiority31 — is to overcome [Redacted] 32 The prospect of their attenuated choiceis to qualify publication in the present circumstances as likely causing the requisiteextreme hardship. It is significantly in excess of the undue hardship afforded by thethird parties' opportunity from publication to dissuade. I therefore have the necessary'principled basis' to make a non-publication order.[21] I turn to consider, notwithstanding the threshold for a non-publication order iscrossed, if open justice nonetheless should yield. Open justice should yield ifnecessary "to secure the proper administration of justice":3331 Courage v The Attorney-General [2022] NZEmpC 77 at [102].32 Li v Liu [2018] NZCA 528, [2019] NZAR 259 at [23], citing Black v Taylor [1993] 3 NZLR 403(CA) at 412.33 Erceg v Erceg, above n 24, at [18], citing John Fairfax & Sons Ltd v Police Tribunal of New SouthWales (1986) 5 NSWLR 465 (NSWCA) at 477 and John Fairfax Group v Local Court of NewSouth Wales (1991) 26 NSWLR 131 (NSWCA) at 141.[It is] a reminder that the open administration of justice serves the interests ofsociety and is not an absolute end in itself. If the very openness of courtproceedings would destroy the attainment of justice in the particular case (asby vindicating the activities of the blackmailer) or discourage its attainmentin cases generally (as by frightening off blackmail victims or informers) orwould derogate from even more urgent considerations of public interest (as byendangering national security) the rule of openness must be modified to meetthe exigencies of the particular case.[22] Except for publication of any particulars tending to identify EF, open justicelargely has been met in this proceeding. Media attendance at and reports and accountsof trial did not observably lack for publishable information. EF's identity is lessimportant than the role he played in the conduct at issue under the charges. He playedthat role from the backroom, relatively isolated from public view. Although the publichas some right to know of his identity even in or perhaps because of those shadows,publication of his name in the context of accounts and reports relating to thisproceeding risks discouraging attainment of justice [Redacted]. The balance 'clearlyfavours' suppression.Result[23] Under s 200(1) of the Criminal Procedure Act, I forbid publication of EF'sname, address or occupation.—Jagose J