EW AND PW V THE ATTORNEY-GENERAL CA CA220/07

EW AND PW V THE ATTORNEY-GENERAL CA CA220/07 14 June 2007ORDER PROHIBITING PUBLICATION OF THE NAMES OR IDENTIFYING PARTICULARS OF APPELLANTS AND NAMED WITNESSES PENDING FURTHER ORDER OF THE HIGH COURT IN THE COURT OF APPEAL OF NEW ZEALAND CA220/07 [2007] NZCA 242BETWEEN EW AND PW Appellants AND THE ATTORNEY-GENERAL Respondent Hearing: 12 June 2007 Court: Robertson, Williams and Heath JJ Counsel: S M Cooper and K M Basher for Appellants K P McDonald QC and C J Mathieson for Respondent Judgment: 14 June 2007 at 4pmJUDGMENT OF THE COURT A The appeals are dismissed B Publication of the names or identifying particulars of appellants and named witnesses is prohibited pending further order of the High Court.____________________________________________________________________REASONS OF THE COURT(Given by Heath J)The appeal[1] The appellants, EW and PW, appeal against the terms of interim suppression orders made by Miller J in the High Court at Wellington on 24 April 2007. Although, on their face, the orders appear favourable to the appellants, an issue is raised about the time at which they ought to be reviewed. [2] An appeal is also brought against Miller J's decision to permit a search of the Court file relating to the proceedings, with leave of a Judge of the High Court.The nature of the proceeding[3] The appellants sue the Attorney-General on behalf of the Department of Child, Youth and Family Services. They claim general, special and exemplary damages as a result of alleged sexual, physical and psychological abuse perpetrated by various people responsible for their care in the periods 1960-1978 (PW) and 1961-1976 (EW) respectively. During those periods they were in the care of the Superintendent of the Child Welfare Division of the Department of Social Welfare. Each was also under the guardianship of the Director-General for a period of about four years in the 1970s. [4] The Department of Child, Youth and Family Services assumed responsibility for the functions exercised by the Superintendent on enactment of the Department of Child, Youth and Family Services Act 1999. [5] Fully particularised claims of sexual, physical and psychological abuse of the appellants have been made. Evidence will be led, from a number of witnesses, of allegations of similar conduct by the alleged perpetrators against the witnesses. The trial is scheduled to begin on 25 June 2007. Nine weeks have been allocated for the hearing. We have afforded urgency to the present appeals due to the proximity of the impending hearing.The judgment under appeal[6] The judgment of 24 April 2007 was issued in substitution for one delivered on 19 March 2007. The 19 March judgment followed a hearing on 1 March 2007. The argument at that hearing extended to admissibility issues. That judgment was re-issued after a further hearing on 24 April 2007, during which the Judge considered additional submissions on behalf of the alleged wrongdoers, on their own name suppression applications. [7] Both appellants, together with 14 named witnesses, were granted interim name suppression, pending further order of the Court, by the 19 March 2007 judgment. In the substituted judgment, Miller J repeated that order as follows:[64] I am not prepared to make permanent orders at this stage. It may be necessary to review them in light of my substantive judgment, which may vindicate the staff accused by the witnesses and the plaintiffs. The orders are made pending further order, and there will be leave to apply.[8] In his 24 April 2007 judgment, Miller J made interim suppression orders for three alleged wrongdoers. After making those orders, Miller J said:[68] All of these suppression orders will subsist until the commencement of the trial, and must then be revisited if continued suppression is sought. The news media may wish to make submissions at that time, and the case for interim suppression rests in part on the proposition that it is unfair to have untested allegations in the public arena long before they are challenged and evaluated at trial.[9] No reasons were given by the Judge for his order that the Court files in respect of the two proceedings "may be searched only by leave of a Judge". The Judge made the order after discussion with counsel, but without any formal application. No contemporaneous objection to the proposed order was offered by any party.Leave to present new evidence on appeal[10] Ms Cooper sought leave to present evidence, on appeal, of a psychiatric and psychological nature, to suggest that many witnesses may be dissuaded from givingevidence, should their names not be suppressed, due to the increased trauma that may result from the knowledge that permanent suppression may not be granted. [11] We are not prepared to grant leave for the additional evidence to be read. It was not before Miller J, whose discretionary decision is challenged. The evidence was available at the time of the 24 April hearing. We disregard the additional evidence filed, though it will plainly be relevant to any future decision on name suppression that Miller J may need to give. The evidence, if admitted, would not have affected the outcome of the appeal.Jurisdiction[12] Ms McDonald QC submitted that there was no jurisdiction for this Court to entertain the name suppression appeal because it was premature and did not operate adversely to the appellants. She submitted that it provided the interim protection they had sought. [13] Ms Cooper submitted that s 66 of the Judicature Act 1908 permitted an appeal as Miller J had made an "order" of the type contemplated by that provision. We do not need to determine whether there is jurisdiction to deal with an appeal of this nature. If the jurisdiction exists, for the reasons that follow we would not grant relief.The interim suppression orders - Analysis[14] Ms Cooper submitted that the Judge erred by altering, in respect of the appellants and the 14 named witnesses, the basis of the interim order made on 19 March 2007. [15] Ms McDonald QC submitted that the appeal was premature. Alternatively, she submitted there was no basis to interfere with the exercise of the Judge's discretionary decision.[16] Initially, we were disposed to think that Miller J did not intend to change the interim order made in relation to the appellants. At [64] of his judgment of 24 April 2007, the existing orders for the appellants and their 14 named witnesses continued to be expressed as enuring pending further order of the Court. In contrast, [68] suggests that the names of the three alleged wrongdoers would remain suppressed only until commencement of the trial. However, Ms Cooper and Ms McDonald agreed that, at the end of the 24 April hearing, Miller J made it clear that both sets of orders were to be reviewed at the commencement of the trial. We proceed on that basis. [17] In cases involving allegations of sexual abuse there is a greater need to protect witnesses from unnecessary intrusion into intimate, distressing and humiliating details of past conduct for which they were not at fault. The light of publicity, though important to the Court process, could have the effect of dissuading proper complaints from coming before the Courts. That is the philosophy which underlies s 139 of the Criminal Justice Act 1985, which provides for suppression of the name and identifying particulars of complainants in criminal trials involving allegations of sexual misconduct. [18] In A v B (1999) 14 PRNZ 497 (HC), William Young J emphasised (at 501) that some care was needed in adapting the criminal law position to the civil arena, particularly where there may be a risk of an extortionate claim for exemplary damages. [19] In this case there is no suggestion of conduct of that nature. Indeed, exemplary damages do not make up the majority of the damages claimed. The nature of the allegations leads to an inference that there may be real dangers that the claim might not proceed in whole or in part because of the reluctance of alleged victims to give evidence without the protection of anonymity. For those reasons, it was well within the discretion of the Judge to make interim suppression orders. [20] Whatever the status of a suppression order made at this stage of a proceeding, there remains jurisdiction for a news media organisation to apply to discharge it: seeTaylor v Attorney-General [1975] 2 NZLR 675 (CA) at 686 (Richmond J),Re Wellington Newspapers Limited's Application [1982] 1 NZLR 118 (CA) andA v B at 499. From the time Miller J made his order of 19 March 2007, the appellants and their named witnesses have been at risk of such an application being made. [21] We consider that Miller J, in his second judgment was signalling to counsel for the appellants that the time for reconsideration of the "pending further" order was the commencement of the trial. In other words, the Judge substituted a defined trigger point for reconsideration, in contrast to an indefinite period to be determined by reference to the acts of a non party to the proceeding. It is clear from [68] of his April judgment, that the Judge was influenced, in choosing a trigger point, by the need to resolve expected media applications. [22] Had the order remained in the form expressed in the 19 March judgment it would have been open, at any time, for media representatives to apply to discharge it. Given the existence of media interest, it is a reasonable assumption that such an application is likely to be made at the start of the trial. Reconsideration, of itself, does not suggest an order will be varied or discharged. It simply means that the earlier decision can be considered in light of additional evidence (including the evidence we have declined to admit) and submissions from interests not previously represented before Miller J. [23] We are not unmindful of the practical problems identified by Ms Cooper in relation to preparation for a trial of this type, when some witnesses may withdraw assistance as their sense of vulnerability increases. However, whatever order the Judge had chosen to make, it would always have been open for the suppression issue to be revisited at the commencement of the trial, on application of a news media organisation. Ultimately, the inability of the Court to provide an unequivocal assurance of anonymity tells against the acceptance of those arguments as a basis for allowing the appeals. [24] We are conscious that Miller J has been assigned as trial Judge for this proceeding and has had the proceeding under his direct supervision for some time. He was uniquely placed to make assessments as to the time at which suppressionissues should be reconsidered. There is no basis on which an appellate Court could interfere with the exercise of the discretion in the circumstances of this case, and we decline to do so.Search of Court proceedings[25] We see no reason to interfere with the decision of the Judge to permit search of the Court files, with leave of a Judge. The order was made under r 66 of the High Court Rules. [26] The formula adopted by the Judge provides ample protection to the appellants and their witnesses. The appellants are not prejudiced by the orders made. No objection to the order was articulated at the hearing before Miller J. [27] Outsiders are prohibited from searching, copying or inspecting the Court file without the permission of a High Court Judge. It is implicit in the order the Judge made that any such application would need to be made on notice to the parties to the proceeding.Result[28] For the reasons given, the appeals are dismissed.Solicitors: Sonya M Cooper, Wellington, for Appellants Crown Law Office, Wellington, for Respondent