HADEN v NEW ZEALAND POLICE [2021] NZCA 94

HADEN v NEW ZEALAND POLICE [2021] NZCA 94 [26 March 2021]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA171/2018[2021] NZCA 94BETWEEN GRACE HADENAppellantAND NEW ZEALAND POLICERespondentHearing: 11 March 2021Court: Brown, Clifford and Goddard JJCounsel: Appellant in personP D Marshall for RespondentJudgment: 26 March 2021 at 11.00 amJUDGMENT OF THE COURTA The questions of law set out at [36] are answered at [57] of this judgment.B The appeal is allowed.C Ms Haden's convictions are set aside.____________________________________________________________________REASONS OF THE COURT(Given by Goddard J)Introduction and summaryThe appeal before this Court[1] In December 2017, Ms Haden was convicted in the District Court onfive charges of breaching a suppression order made by the New Zealand Lawyers andConveyancers Disciplinary Tribunal (Tribunal) under the Lawyers and ConveyancersAct 2006 (Act).1 The prosecution was brought on the basis that a suppression orderhad been made under s 240(1)(c) of the Act in a written decision of the Tribunal dated24 November 2016 (the November 2016 decision).2 Ms Haden defended the chargeson the basis that no formal order under that provision had ever been made.Judge Adeane did not accept that argument. He entered convictions on thefive charges.3 Ms Haden's appeal to the High Court was unsuccessful.4 Ms Hadensought leave to appeal to this Court. Leave was declined.5[2] A charge in relation to breach of the same suppression order was subsequentlylaid against Mr Vincent Siemer. In the District Court, Mr Siemer was convicted ofbreaching a suppression order made by the Tribunal.6 Mr Siemer's appeal to theHigh Court was unsuccessful.7 However he was then granted leave to appeal to thisCourt,8 and that appeal succeeded (Siemer (CA)).9 This Court held that the Tribunal'sNovember 2016 decision did not make it sufficiently clear that an order had been madeunder s 240 of the Act.101 Police v Haden [2017] NZDC 28419 [District Court decision].2 Waikato Bay of Plenty Standards Committee No. 2 v Wells [2016] NZLCDT 34 [November 2016decision].3 District Court decision, above n 1, at [11].4 Haden v Police [2018] NZHC 498 [High Court decision].5 Haden v Police [2018] NZCA 255 [First CA leave decision].6 Police v Siemer [2018] NZDC 24353. Mr Siemer was charged under s 263 of the Lawyers andConveyancers Act 2006 with the offence of contravening an order made under s 240.7 Siemer v Police [2019] NZHC 1346.8 Siemer v Police [2019] NZCA 574.9 Siemer v Police [2020] NZCA 178 [Siemer (CA)].10 At [32].[3] When Ms Haden became aware of the outcome in Siemer (CA), she appliedfor recall of this Court's first leave decision (First CA leave decision) and for leave toappeal to this Court. Those applications were granted.11Summary[4] We agree with the conclusion reached by this Court in Siemer (CA) that theTribunal did not make an order under s 240 of the Act in the November 2016 decision.The position appears to be that a s 240 order was made orally at the penalty hearingbefore the Tribunal on 8 November 2016; the November 2016 decision set out theTribunal's reasons for making that order but did not itself contain a s 240 order.[5] There is force in the Crown's submission that although the November 2016decision did not make a s 240 order, it evidenced the prior making of a s 240 order.The November 2016 decision did not expressly say that a s 240 order had been madeorally at the hearing on 8 November 2016. But arguably it is implicit in theNovember 2016 decision, read in context, that such an order was already in existence.Be that as it may, Ms Haden's trial in the District Court proceeded on the basis that therelevant suppression order had been made in the November 2016 decision. There wasno reference at the trial to an order being made orally on 8 November 2016. It wouldbe a miscarriage of justice for Ms Haden's conviction to stand in circumstances whereneither the date on which the order was made, nor the terms of that (oral) order, werein evidence at her trial. Ms Haden's conviction is therefore set aside.BackgroundDisciplinary proceedings before the Tribunal[6] These proceedings have their origin in disciplinary proceedings brought beforethe Tribunal against a lawyer, Mr Wells.12 Mr Wells sought interim suppression of hisname pending the hearing of disciplinary charges against him under s 240(1)(c) of11 Haden v Police [2020] NZCA 498 [Second CA leave decision].12 Mr Wells has since died, and the grounds for suppression no longer apply to him. We do notsuppress his name in connection with this judgment.the Act, which provides that the Tribunal may make an order prohibiting thepublication of the name or other details of the person charged:240 Restrictions on publication(1) If the Disciplinary Tribunal is of the opinion that it is proper to do so,having regard to the interest of any person (including (withoutlimitation) the privacy of the complainant (if any)) and to the publicinterest, it may make any 1 or more of the following orders:(c) an order prohibiting the publication of the name or anyparticulars of the affairs of the person charged or any otherperson.[7] On 25 July 2016, the Tribunal issued a written decision on interim namesuppression (July 2016 interim decision) in which it concluded that the threshold forsuppression had been reached.13 Public interest considerations were outweighed bythe factors identified by the applicant, including the fact that he had retired frompractice, was in bad health, and had for some 10 years been "harassed through thecourts, by a vexatious litigant".14 The July 2016 interim decision did not contain anylanguage expressly making an interim order under s 240 of the Act, but it was clearfrom that decision that the Tribunal considered that interim suppression should beordered.[8] On 6 September 2016, the Tribunal proceeded to hear the charges againstMr Wells. He was found guilty of one charge of negligence such as tended to bringthe profession into disrepute.15[9] The Tribunal then held a further hearing on 8 November 2016 to determine thepenalties to be imposed in respect of that breach. At that hearing Mr Wells soughtpermanent suppression of his name under s 240 of the Act. At the end of the hearingthe Tribunal conferred, then the Chair said:Alright [Mr Wells] we have been able to reach a consensus about the penaltyorders that ought to be imposed. We have determined that we can stop shortof suspension. And instead we will be imposing a Censure which you will13 Waikato Bay of Plenty Standard Committee No. 2 v W [2016] NZLCDT 19 at [9].14 At [3]–[5].15 Waikato Bay of Plenty Standards Committee No. 2 v M [2016] NZLCDT 24 at [1].receive in written form. Fine of $5,000. An order that you refund the fee of$3,648.94. We decline to reimburse by way of compensation Mr P's fees andwe'll give reasons for that. We are ordering a contribution to theStandards Committee's costs in the sum of $15,000. There will be an orderagainst the New Zealand Law Society for the s 257 Tribunal costs which willbe certified in due course but probably are in the region of about $7,000. Andthere will be an order that [Mr Wells] fully reimburse the s 257 costs also, tothe Law Society. And name suppression will be granted.[10] On 24 November 2016 the Tribunal issued the November 2016 decision, whichwas headed "Reasons of the Tribunal for Decision on Penalty". We set out in full theTribunal's discussion of name suppression:16[22] The reasons for interim name suppression are set out in our interimdecision of 25 July 2016.[23] The Standards Committee submit that the public interest in opennessof the disciplinary process demands that the practitioner's name be published.[24] We accept that an adverse finding means that the threshold forsuppression is higher than at an interim stage.[25] Mr Davey accepted the decisions of H and ABC. Both allowedpermanent suppression in cases where the practitioners had serious healthconcerns. In the latter case the likely detriment to the practitioner's mentalhealth had been certified by a psychiatrist. Mr Davey submits that, in theabsence of a certificate from a psychiatrist, the Tribunal ought not to besatisfied in this regard. In the H matter both psychological and physical healthproblems were involved and the serious adverse consequences which mightbe suffered by the practitioner were his name published, tipped the balanceagainst publication in that matter.[26] In the present case there is ample information before the Tribunal toaccept that there are both psychological and physical health conditions ata serious level. In addition to that, as referred to in our interim decision, thepractitioner has in the past been pursued by a litigious and irrational personwho might be expected to re-engage in a campaign against the practitionershould the present matters come to that person's attention.[27] The litigation pursued by this person has been the subject of adversejudicial comment at all levels.[28] Given that there is no risk to the public posed by this practitioner inthe future, we consider that the combination of factors referred to above do,in this unusual set of circumstances, justify the permanent name suppressionof the practitioner, his former client and any identifying details.[11] Ms Haden was the person whom the Tribunal identified at [26] of its decisionas litigious, and potentially re-engaging in a campaign against Mr Wells.16 November 2016 decision, above n 2 (footnotes omitted and emphasis added).[12] It appears that the Tribunal's November 2016 decision was published, with thename of the practitioner anonymised as "Mr M", on the Ministry of Justice website.[13] Shortly after the November 2016 decision was delivered, the New ZealandLaw Society (NZLS) published on its website the following statement(the NZLS statement):Name suppression granted to censured lawyer28 November 2016The New Zealand Lawyers and Conveyancers Disciplinary Tribunal has founda lawyer guilty of negligence or incompetence of such a degree as to reflecton his fitness to practise or as to bring the profession into disrepute.The lawyer has been granted permanent name suppression.The lawyer, Mr M, had been friends with the complainant for over 40 yearsand she appointed him as her attorney under an Enduring Power of Attorney(EPA) after consulting her own lawyer. Mr M did not understand that in actingas attorney, as well as being Chair of the local branch of a charity to which thecomplainant would make donations, he was placing himself into a position ofdivided loyalties.Ms Haden's blog posts[14] On 18 April 2017 Ms Haden posted a blog on her website "TransparencyNew Zealand". The blog reproduced the NZLS statement. Alongside the"Name suppression" banner Ms Haden identified the practitioner:While researching a lawyer I had cause to look at the list of lawyers who havebeen censured by the Law Society. I came across one item'Name suppression granted to censured lawyer' everything about it screamsNeil Wells to me.[15] Ms Haden posted further blogs on 9 May 2017 and 17 May 2017 identifyingMr Wells and providing links to the NZLS statement and to her original blog post on18 April 2017.[16] On 22 May 2017 Ms Haden was cautioned by police: any further blog postswould constitute further breaches of the suppression order. Shortly afterwards,Ms Haden again posted a blog post providing links to her previous blog posts andnaming Mr Wells.[17] On 24 May 2017, Ms Haden appeared in the Napier District Court and wasremanded on bail. That day she blogged again, identifying Mr Wells and providinga link to a letter dated 4 May 2017 from the Tribunals Unit to the Office of LegalCounsel, Ministry of Justice. The purpose of the letter was to refer to the Ministrya complaint made by Mr Wells that Ms Haden had breached the Tribunal's suppressionorder.The charges against Ms Haden[18] Charges were brought against Ms Haden under s 263 of the Act:263 Publication(1) Every person commits an offence who, without lawful excuse, acts incontravention of any order made by the Disciplinary Tribunal underany of paragraphs (a) to (c) of section 240(1).(2) Every person who commits an offence against this section is liable onconviction to a fine not exceeding $25,000.[19] The five charging documents all contained the same description of the offencecharged:WHILE A SUPPRESSION ORDER WAS IN PLACE PUBLISHED THE NAME OFTHE PERSON WHO HAD BEEN GRANTED NAME SUPPRESSION.Lawyers and Conveyancers Act 2006 section 240(1)(c) and 263(1) and (2).[20] The summary of facts described the relevant s 240 order as follows:On the 24th of November 2016 Judge D F CLARKSON panel chair, made anorder that the names of the practitioner and the practitioner's former client, bepermanently suppressed.[21] The summary of facts went on to identify the five blog posts that were allegedto have breached the name suppression order granted by the Tribunal.District Court trial[22] The District Court trial took place before Judge Adeane on 11 December 2017.The July 2016 interim decision and the November 2016 decision were produced asexhibits. The evidence before the District Court did not include a transcript of thepenalty hearing on 8 November 2016. It was not suggested by the prosecution thata suppression order had been made orally at that hearing. Rather, the trial proceededon the basis that the prosecution alleged that a suppression order had been made in theNovember 2016 decision.[23] The District Court Judge quoted from [58] of the Tribunal's November 2016decision, and noted that there had been an earlier order on 25 July 2016.17[24] The Judge did not accept Ms Haden's argument that no formal order unders 240 had ever actually been made. He considered that the appropriate interpretationof both the July 2016 interim decision and the November 2016 decision was that thepower under s 240(1)(c) had been exercised to prohibit the publication of the name ofa particular person charged before the Tribunal.18[25] The Judge also rejected Ms Haden's argument that she was not specifically toldof the provision under which the order had been made, saying:[8] I am quite satisfied that that order is to be deduced from the text of theTribunal's decision. What else could it possibly mean? Ms Haden chose toignore it on the semantic basis that an order was something which waspresumably reduced into a formal certificate and had to be served to beeffective (against whom is less clear).[11] The long and short of it is that, with clear knowledge that the Lawyers& Conveyancers Tribunal had restricted the public dissemination of materialwhich had come before it, Ms Haden defied that restriction by making matterspublic as she did. Those matters being established, the charges are proved tothe required standard.[26] The Judge imposed fines on each charge of $1,000 and awarded court costs of$130 and witness expenses of $500.1917 District Court decision, above n 1, at [3].18 At [4].19 At [14].High Court appeal[27] On appeal to the High Court Ms Haden advanced a number of arguments,including:(a) The decision of the Tribunal on interim name suppression lackeda specific order and appeared to grant suppression to the anonymousperson Mr W by some undefined means.(b) The police had failed to produce an order made under s 240 in the nameof Mr Wells. Ms Haden had been charged with contravening a "secretorder" which was not in the public realm and which was silent as to thespecific statutory power pursuant to which suppression was granted.(c) The wording of the charging document was defective because itreferred to suppression orders, when that was not the language of s 240of the Act.[28] Clark J considered that the November 2016 decision contained an order madeunder s 240(1)(c):20[21] The Tribunal's interim name suppression decision specifically recordsthe fact the application for name suppression is grounded in s 240(1)(c) of theAct. The nine-paragraph decision contains the Tribunal's assessment anddetermination of the application for interim name suppression. The decisionexpressly states "the threshold for suppression has been reached".The decision is signed, dated and bears the seal of the New Zealand Lawyersand Conveyancers Disciplinary Tribunal. Manifestly, the decision is inexercise of the Tribunal's power to make an "order prohibiting the publicationof the name or any particulars of the affairs of the person charged".[22] Similarly, in its substantive decision the Tribunal discusses under theheading "Name Suppression" its interim decision and the circumstancesultimately justifying "permanent name suppression of the practitioner, hisformer client and any identifying details".20 High Court decision, above n 4 (footnotes omitted).[29] Clark J considered that Ms Haden was not able to shield herself from theconsequences of her breach by mounting a technical argument that the Tribunal didnot make a formal "order".21[30] The Judge also rejected Ms Haden's argument that the charging document wasambiguous and inadequate. The charges contained sufficient particulars to fully andfairly inform Ms Haden of the substance of the offence she allegedly committed.Each charge referred to the enactment creating the offence. The charging documentstherefore met the statutory requirements.22[31] Ms Haden's other arguments were also rejected, and the appeal was dismissed.Ms Haden's first application for leave to appeal to this Court[32] Ms Haden's application for leave to appeal to this Court in 2018 sought leaveto advance arguments that:23(a) The Tribunal did not make a specific order granting name suppression.The order was "being applied to an anonymous person by undefinedmeans".(b) The form of the charging documents was incorrect.(c) There was no proper basis for the charges laid against her.[33] This Court declined the application for leave to appeal, saying:[6] Ms Haden's arguments were rejected in the Courts below. We agreewith their reasoning. The Tribunal is clearly empowered to make suppressionorders which suppress the identity of those who appear before the Tribunal.Such orders do not require any specific form. Here the Tribunal's decisionidentifies the subject of the suppression order as well as the basis formaking it.[7] We agree with Clark J that the form of the charging documents gaveMs Haden adequate notice of the charges she faced. There is no question ofnon-compliance with the requirements of the Criminal Procedure Act.21 At [27].22 At [31].23 First CA leave decision, above n 5, at [5].[8] We find Ms Haden's argument there was no proper basis for layingthe charges against her to be misconceived. There was sufficient evidence tosupport the findings of guilt reached by Judge Adeane and affirmed by Clark J.The first post referred directly to the suppression order and then suggested(correctly) who the subject practitioner might be. The subsequent postsreferred back to the first post, thus compounding the first breach of thesuppression order.[9] In conclusion, we are satisfied none of the arguments which Ms Hadenadvances raises a matter of general or public importance. All the issuesMs Haden raises are case-specific. Nor do Ms Haden's arguments suggesta miscarriage of justice has occurred or may occur if the proposed appeal isnot heard.(Footnotes omitted.)This Court's decision in Siemer (CA)[34] As noted above, this Court granted leave to bring a second appeal in relationto charges that Mr Siemer had breached a suppression order made in theNovember 2016 decision.24[35] This Court allowed Mr Siemer's appeal, finding that the Tribunal had not madea suppression order with sufficient clarity to found a prosecution against Mr Siemer.25This Court was not persuaded that an order under s 240 of the Act had been made inthe Tribunal's written reasons decision:[25] It is arguable that an order was made at the conclusion of the penaltyhearing on 8 November, when the chairperson stated that "name suppressionwill be granted". An order pronounced orally by the chairperson in thepresence of the Tribunal members sitting would comply with reg 34, and itwould bind those with notice of it, including Mr Siemer had he been present.[26] However, the case was not argued in that way, for good reason.The Tribunal evidently intended that the orders would be made in its writtenreasons for decision. As noted above, the written reasons did not state thatthey recorded orders already made. And it is not suggested that Mr Siemerattended the hearing on 8 November. The police relied on the written reasonsto establish that he had notice of the order, so establishing the mental elementof the offence under s 263. We accordingly put any orders pronounced on8 November to one side. We approach the appeal, as counsel did, on the basisthat if an order was made at all, it was made in the written reasons of24 November. This is a point of some moment in this case, as we explainbelow.24 Siemer v Police, above n 8, at [11].25 Siemer (CA), above n 9, at [32].[32] In our view the Tribunal's decision did not make it sufficiently clearthat an order had been made. It did not say so in as many words.The conclusion that an order was made rests on an inference founded only onits decision that grounds for an order had been made out, but a decision islogically antecedent to an order. Mr Hodge pointed to the fact that Mr Wells'sname was anonymised, but that need not evidence a suppression order.Anonymisation can be an alternative to suppression, used for example to limitpublication of information in which there is a legitimate privacy interest.(Footnote omitted.)Ms Haden's second application for leave to appeal to this Court[36] As noted above, Ms Haden then applied for recall of the First CA leave decisionand for leave to appeal to this Court. The First CA leave decision was recalled, andleave was granted on the following questions:26(a) Did the High Court err in Haden v Police [2018] NZHC 498 in findingthe Tribunal's decision was sufficient to constitute an order unders 240 of the Lawyers and Conveyancers Act in the circumstances ofthis case?(b) If the answer to the question in (a) is answered in favour of Ms Haden,should her convictions be quashed?Submissions on appealMs Haden's submissions on appeal[37] Ms Haden submitted that this Court has now found that no order suppressingpublication of Mr Wells' name was made under s 240 of the Act in the November 2016decision. The Courts below had erred in failing to accept her submission that nos 240(1)(c) order existed. So her conviction should be set aside.[38] Ms Haden also argued that in the November 2016 decision, the Tribunalreferred to the reasons for making a "suppression order". But that is not the languageof s 240. The Act does not provide for the making of "suppression orders" as such.The language used by the Tribunal, and in the NZLS publication, was insufficient toconvey to her or to any other reasonable reader that an order had been made unders 240 of the Act. She had done some research and had concluded in good faith thatthe Tribunal had not exercised any power that would prevent her from drawing on26 Second CA leave decision, above n 11, at [16].information available to her from other sources to identify Mr Wells as the practitionerwho was the subject of the Tribunal's decision.Crown submissions on appeal[39] The Crown submitted that the better view was that an order under s 240 wasmade orally by the Tribunal at the penalty hearing on 8 November 2016.The November 2016 decision recorded the Tribunal's reasons for making that order.[40] Mr Marshall, who appeared for the Crown, accepted that the Tribunal'sNovember 2016 decision did not itself make a s 240 order. However, he submittedthat it evidenced the prior making of such an order. The November 2016 decision didnot expressly state that a s 240 order had been made on 8 November 2016. But themaking of such an order at an earlier (unidentified) date could be inferred from thelanguage used in the November 2016 decision.[41] Mr Marshall submitted that the charging documents were expressed in generalterms that were not tied to the Tribunal's November 2016 decision. Although the oraldecision from 8 November 2016 was not in evidence before the District Court, it wassufficiently evidenced by the Tribunal's November 2016 decision that the making ofa suppression order had been established beyond reasonable doubt.[42] Mr Marshall submitted in those circumstances the first question in respect ofwhich leave had been granted should be answered "yes": the Tribunal'sNovember 2016 decision was not sufficient to constitute an order under s 240 of theAct in the circumstances of this case. However, because the Tribunal'sNovember 2016 decision evidenced the making of such an order, Ms Haden'sconvictions should not be quashed: the answer to the second question should be "no".Discussion[43] As this Court emphasised in Siemer (CA), the fact that an order has been madeunder s 240 of the Act must be clear to a reader of the decision (or, we would add, toa person present at a hearing at which such an order is made orally).27 In this case, the27 Siemer (CA), above n 9, at [30].language used by the Tribunal in determining the applications before it for interim andfinal orders under s 240 lacked the clarity that is desirable when exercising a power ofthat kind.[44] No specific form is required for an order under s 240, as this Court observedin the first CA leave decision.28 But where an order is made under s 240, it is desirablethat this be done explicitly in language that conveys, in as many words, that an orderis being made there and then. As the different reasoning and outcomes in the earlierdecisions involving Ms Haden and this Court's decision in Siemer (CA) illustrate,stating that such an order is justified, or that such an order "will be" made, can(depending on context) leave room for confusion about what exactly the Tribunal isdoing and whether the power is actually being exercised at that time. Hence theuncertainty in this case about whether an order had been made on 8 November 2016,or merely foreshadowed at that time, and the differing conclusions reached by thecourts about the effect of the November 2016 decision.[45] It would have been preferable for the Tribunal to expressly state, both in thebody of the relevant decision and in an order band or a separate results section at theend of the decision, that it was making the relevant order. It would also have beenpreferable for both the interim and final s 240 orders to refer expressly to s 240 ofthe Act, to track more closely the language of s 240 (which refers to prohibitingpublication rather than to "suppression" as such), and to set out the precise terms ofthe relevant prohibition (in particular, what could not be published and the duration ofthe prohibition).[46] The July 2016 interim decision did not expressly state that an order was madeunder s 240 prohibiting publication of Mr Wells' name or other identifying particularspending the hearing of the charges against him. But we accept that despite the absenceof any explicit statement to that effect, a reasonable reader of that decision wouldconclude that an interim order had been made under s 240 prohibiting publication ofMr Wells' name pending the hearing of the charges against him.28 First CA leave decision, above n 5, at [6], set out at [33] above.[47] We also accept the Crown's submission that an order under s 240 was madeorally on 8 November 2016. It appears that some aspects of that oral decision wereintended to be operative orders with immediate effect: for example, the reference tothe fine and to a contribution to the standards committee's costs. Other aspects of theChair's oral decision are more naturally understood as looking ahead to orders to bemade in a subsequent written decision. But it seems to us that taken in context, thestatement that "name suppression will be granted" is best understood as an immediateorder under s 240. The use of the future tense is not decisive. A reasonable personwho was present at the hearing and heard the Chair's comments would understand thatthere was a prohibition in place on publication of Mr Wells' name, with immediateeffect.[48] In Siemer (CA), this Court noted that it was arguable that a suppression orderhad been made orally on 8 November 2016. But the appeal was not argued in thatway: it proceeded on the premise that no order was made on that date. This Courtidentified, in obiter, three reasons for that approach:29(a) The Tribunal "evidently intended that the orders would be made in itswritten reasons for decision".(b) The November 2016 decision did not state that it recorded ordersalready made.(c) It was not suggested that Mr Siemer had attended the hearing on8 November 2016. The November 2016 decision was relied on by thepolice to establish that Mr Siemer had notice of the order.[49] We agree that where orders have been made orally and a subsequent writtendecision simply records the reasons for those orders, it is good practice (and, we think,normal practice) for the written reasons to expressly record the fact that certain ordershave already been made, and to record the terms of those orders. The omission to dothis in the November 2016 decision contributed materially to the difficultiesencountered in this case. The view we have reached about what the Tribunal must29 Siemer (CA), above n 9, at [25] and [26].have intended to do on 8 November 2016 differs from the view expressed, in obiter,in Siemer (CA), which in itself illustrates the room for reasonable disagreement aboutthat issue caused by the lack of clarity in the oral remarks made on that date, and inthe subsequent written decision.[50] If an oral order was made under s 240 on 8 November 2016, it is easier tounderstand the absence of any operative language making an order in the Tribunal'sNovember 2016 decision. We agree with the view expressed by this Court inSiemer (CA) that the November 2016 decision does not clearly make an order unders 240. That is probably because it looks back to an order that has already been madeand does no more than explain the reasons for the (prior) making of that order.[51] There is considerable force in the Crown's submission that it is implicit in theTribunal's November 2016 decision that a s 240 order has previously been made.It would make no sense at all for the Tribunal to explain why a s 240 order should bemade, then fail to go on and actually make such an order, unless such an order wasalready in existence. A reasonable reader would not think that the Tribunal wasengaging in an abstract discussion about the desirability of a s 240 order in itsNovember 2016 decision. Nor is there anything in that decision to suggest that theTribunal was contemplating making such an order at some future time. A reader mightwonder if the Tribunal had, by oversight, failed to make the order it had identified asjustified and appropriate. But that would be a surprising conclusion that would givea reasonable reader some pause. The alternative explanation — that a s 240 order hadpreviously been made, and all that was happening in this written decision was that thereasons for that order were being set out — is more appealing.[52] However, this conclusion depends on a high degree of contextual andinferential reasoning about what the Tribunal must have had in mind. There is, asalready noted, no express reference in the Tribunal's November 2016 decision to anearlier oral order. We do not consider that the Tribunal's November 2016 decision,without more, establishes beyond reasonable doubt that a s 240 order had previouslybeen made. Nor, obviously, does it shed any light on when such an order was made,or on the precise terms of that order, which are not recited at any point in the Tribunal'sNovember 2016 decision.[53] We are not attracted by the Crown's argument that Ms Haden's conviction canbe sustained on the basis that the s 240 order made on 8 November 2016 had beenadequately proved before the District Court, in circumstances where:(a) There was no reference at all during the District Court trial to themaking of an oral order on 8 November 2016.(b) The summary of facts, and the entire prosecution case, proceeded onthe basis that such an order had been made in the Tribunal's writtendecision delivered on 24 November 2016.[54] It follows that the prosecution failed to establish an essential element of thecharges against Ms Haden at the District Court trial.[55] We add that we are not attracted by Ms Haden's argument that the reference to"suppression orders" was insufficient to put her on notice that an order had been madeunder s 240. More specifically, we do not accept that use of this language by theTribunal:(a) Meant that an order had not been made under s 240 of the Act. We donot consider that a reference to a suppression order in the context ofthese Tribunal decisions can reasonably be understood as anythingother than a reference to a s 240 order. If the Tribunal had said in itsNovember 2016 decision that it granted a suppression order in relationto Mr Wells' name and identifying particulars, that would have beensufficient to constitute a s 240 order.(b) Could provide a lawful excuse for non-compliance with the order, forthe purposes of s 263. We are not attracted by Ms Haden's argumentthat there was room for uncertainty about whether the s 240 power hadbeen exercised because that provision does not refer to "suppression",and that she could reasonably proceed on the basis that there was noprohibition on publication of Mr Wells' name. If she was in any doubtabout the position, she should have sought legal advice beforeproceeding to publish Mr Wells' name. She could also have applied tothe Tribunal for an order clarifying (or modifying) the scope of theorders it had made.[56] More generally, we note that ignorance of the existence or terms of a s 240order will not of itself amount to a lawful excuse for the purposes of s 263. Offencesof breaching suppression orders under the Criminal Justice Act 1985 have long beenregarded as imposing strict liability: Karam v Solicitor-General.30 The "withoutlawful excuse" element in the s 263 offence means that it is not a true strict liabilityoffence. Thus, for example, a defendant will have a defence if they took all reasonablecare and made all reasonable inquiries and reasonably believed that there was no s 240order in place: that would amount to a lawful excuse. But simple ignorance of a s 240order, without more, would not amount to a lawful excuse. Nor would a claim thata person did not understand a "suppression order" to be an order under s 240 of the Actbe sufficient to found a defence under s 263.Result[57] We answer the questions in respect of which leave was granted as follows:(a) Did the High Court err in Haden v Police [2018] NZHC 498 in findingthe Tribunal's decision was sufficient to constitute an order under s 240of the Lawyers and Conveyancers Act in the circumstances of this case?Yes.(b) If the answer to the question in (a) is answered in favour of Ms Haden,should her convictions be quashed?Yes.30 Karam v Solicitor-General HC Auckland AP 50/98, 20 August 1999 at 8; see also Adams onCriminal Law — Criminal Procedure (loose-leaf ed, Thompson Reuters) at [CPA211.03].[58] The appeal is allowed.[59] Ms Haden's convictions are set aside.Solicitors:Crown Law Office, Wellington for Respondent