WALLACE v R [2023] NZCA 56

WALLACE v R [2023] NZCA 56 [10 March 2023]ORDER EXTENDING THE EXISTING NAME SUPPRESSION FORSIR JAMES WALLACE FOR 20 DAYS FROM THE DATE OF THISJUDGMENT.IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA294/2021[2023] NZCA 56BETWEEN JAMES HAY WALLACEAppellantAND THE KINGRespondentCA311/2021BETWEEN MUSTAFA ERINC YIKARAppellantAND THE KINGRespondentCourt: Collins, Ellis and Dunningham JJCounsel: D P H Jones KC for Appellant in CA294/2021Y Y Mortimer-Wang for Appellant in CA311/2021M J Lillico for Respondents in CA294/2021 and CA311/2021Judgment:(On the papers)10 March 2023 at 9.30 amJUDGMENT OF THE COURTA The applications for name suppression are declined.B Order extending the existing name suppression for Sir James Wallace for20 days from the date of this judgment.____________________________________________________________________REASONS OF THE COURT(Given by Collins J)Introduction[1] On 9 February 2023 we dismissed appeals against conviction and sentencebrought by Sir James Wallace and an appeal against conviction brought by Mr Yikar.1[2] Sir James was convicted on 23 March 2021 in the High Court at Aucklandfollowing a trial by jury in relation to three charges of indecently assaulting three men(H, B and S) and two charges of attempting to dissuade H from giving evidence.Sir James was sentenced to two years and four months' imprisonment.2 Mr Yikar wasconvicted at the same time of one charge of attempting to dissuade H from givingevidence. He was sentenced to home detention for 12 months.3[3] Sir James has filed an application in the Supreme Court for leave to appeal hisconviction and sentence. We are not aware of any application for leave to appeal byMr Yikar.[4] Sir James and Mr Yikar had the benefit of name suppression during their trialsand their appeals. Sir James, and a charitable trust he chairs, now seek furthersuppression of Sir James' name. We shall briefly summarise the basis of theapplications and the name suppression decisions already made in this proceedingbefore analysing the current applications.The current applications[5] There are two applications before us:(a) An application from Sir James on behalf of himself and entitiesconnected with him, namely the McLean's Mansion Charitable Trust(MMCT), the James Wallace Art Trust (JWAT) and a company calledLigar GP Ltd (Ligar). We explain these entities at [11] to [13].1 Wallace v R [2023] NZCA 6.2 R v Wallace [2021] NZHC 1213.3 R v Y [2021] NZHC 985.It suffices for present purposes to record that this part of the applicationalleges:(i) extreme hardship would be caused to Sir James or his connectedentities if he no longer has name suppression; and/or(ii) publication of Sir James' name in conjunction with hisconvictions would be likely to create a real risk of prejudice toany retrial that might be ordered by the Supreme Court.(b) An application from the MMCT, which submits that undue hardshipwould be caused to the MMCT and persons connected to it if Sir Jamesno longer has the benefit of name suppression.Applications on behalf of Sir James and connected entities[6] The ground of the application we have summarised at [5(a)(i)] relies ons 200(2)(a) of the Criminal Procedure Act 2011. The relevant portions of that sectionconfers discretion on the court to make an order forbidding publication of the name,address or occupation of a person convicted of an offence only if the court is satisfiedthat publication would be likely to cause extreme hardship to the person convicted ofthe offence, or any person connected with that person.[7] The basis of the application we have summarised at [5(a)(ii)] relies ons 200(2)(d) of the Criminal Procedure Act which provides that the court may make anorder for suppression if satisfied that publication would be likely to create a real riskof prejudice to a fair trial.Connected person application[8] The application brought on behalf of the MMCT relies on ss 202(1)(c) and202(2)(a) of the Criminal Procedure Act. Those sections authorise a court to suppresspublication of the name, address, or occupation of any person connected with a personwho is convicted of an offence. The court may make such an order only if it is satisfiedthat publication would be likely to cause undue hardship to the connected person. SirJames submits that if the MMCT receives name suppression under s 202 then, it willbe necessary to suppress his name under s 200(2)(f) in order to protect the namesuppression order made in favour of the MMCT.[9] In his supporting affidavit, Sir James identifies five factors which he sayssatisfy the criterion of extreme hardship in s 200(2)(a) of the Criminal Procedure Act.His age and poor health[10] Sir James states:I am now 85 years old and suffer from a number of serious health conditions.My health is only getting worse. On my last visit to my doctor on Friday 17February 2023, I was advised that my condition will continue to decline withage. The court has previously been advised (in my application for bail in2021) of my falls from unexplained loss of consciousness. These havebecome more frequent and it is distressing that it is likely I will suffer anepisode while incarcerated, in an unfamiliar environment.The MMCT[11] Sir James has been actively involved in the restoration of theMcLean's Mansion, a large historic home in central Christchurch, which was severelydamaged in the Christchurch Earthquakes. The trustees of the MMCT hope torenovate and convert the mansion into an arts facility. Sir James became involvedwith the restoration of the McLean's Mansion in 2016. His role increased significantlyin 2022, when he became chairman of the MMCT and took responsibility for fundingthe restoration of the mansion. Once the restoration project is completed, the MMCTwill need further funding to be able to function as an arts centre. Sir James says thatbecause his name is synonymous with the project there will be "no realistic prospect"of other funding if his name suppression application fails, because potential donorsand investors will find it "unpalatable" to be associated with funding a project that isso closely linked with Sir James.JWAT[12] The JWAT was created in 1992 to manage Sir James' very substantial artcollection and to provide support for the arts in New Zealand. In 2010 the JWATmoved into premises at the Pah Homestead, which is leased from theAuckland Council (the Council). The Council also makes a grant of $400,000 eachyear to the JWAT. Since he was convicted Sir James has resigned from the JWAT. Hesays that since then there has been an "unrelenting approach taken by the remainingtrustees to rid the [JWAT] of [Sir James] and [his] legacy". This was in part driven bythe Council, which threatened to withdraw its annual grant unless "radical" changeswere made to the JWAT. Sir James and the JWAT instituted proceedings which SirJames says have now "been settled, in principle" but that there are still importantdetails to be negotiated. Sir James says that if his name is published in relation to hisconvictions the publicity "will only serve to weaken [his] position in thesenegotiations".Ligar[13] Ligar is a science and technology company. Wallace Corporation, one ofSir James' companies has invested $10 million in Ligar and is the majority shareholderin that company. Sir James says that Ligar requires significant additional investment.He explains that if his name suppression application fails then Ligar "is unlikely toreceive the substantial investment required for the company to succeed".Other concerns[14] Sir James states that he and the Wallace Corporation are in the process ofselling two significant investment properties and he is concerned the negotiations forthe sale of these properties will be compromised if he no longer has name suppression.Sir James is also worried about a short film that he has invested in. He says that liftinghis name suppression "would actively damage the development and release of thisfilm".[15] The application under s 200(2)(d) is predicated upon the Supreme Courtgranting Sir James' application for leave to appeal and then, granting his appeal inwhole or in part. It is contended that absent name suppression his right to a fair"retrial" will be irredeemably prejudiced because of the extensive publicity that willinevitably occur if his name is published in connection with this conviction.[16] The application by the MMCT under s 202 is supported by an affidavit fromMs Young, who is involved with the restoration of the McLean's Mansion and thedevelopment of the proposed arts centre. It is argued that as Sir James "is the veryface and the funding behind the entire venture", declining his application for continuedname suppression would cause undue hardship to the MMCT and persons connectedto it.Name suppression decisions[17] Sir James appeared in the Auckland District Court on 24 February 2017,charged with having indecently assaulted H. He was granted interim namesuppression.4 The trial was set for 25 September 2017 but adjourned whenComplainant B came forward. The trial commenced in the District Court on 4 March2019.[18] On 5 March 2019, Judge Collins, the trial Judge, dismissed applications forname suppression brought by Sir James, Mr Yikar and Mika X, who was anotherdefendant charged with attempting to dissuade H from giving evidence.5 Mika Xsubsequently pleaded guilty.[19] Judge Collins reasoned there was no evidence of extreme hardship to Sir Jamesin his application for name suppression and that there was insufficient evidence ofundue hardship to the charities and entities he was associated with if his name wereable to be published in connection with the charges. The Judge explained that even ifhe were wrong in these assessments, he would have exercised his discretion againstgranting name suppression.[20] Judge Collins was forced to declare a mistrial on 18 March 2019 when furtherevidence came to light concerning the attempt to dissuade H from giving evidence.6The proceedings were then transferred to the High Court. At about this time, Sir Jameswas charged with sexual violation by unlawful sexual connection and attempted sexual4 Police v Wallace DC Auckland, CRI-2017-004-1926, 27 April 2017 at [9]; and R v J W W DCAuckland, CRI-2017-004-1926, 29 June 2017 at [5].5 R v Wallace [2019] NZDC 5414.6 R v Wallace [2019] NZDC 6240.violation by unlawful sexual connection in relation to complaints made by N.Sir James was also charged with indecently assaulting S.[21] Venning J dealt with appeals by Sir James, Mr Yikar and Mika X from thejudgment of Judge Collins declining them name suppression and appeals from twowitnesses who were granted immunity by the Crown and who had been declined namesuppression in the District Court.7 In addition to appealing the District Court namesuppression judgment, Sir James and his connected entities and Mr Yikar, made freshapplications for name suppression in the High Court.[22] Venning J decided the appropriate course was to deal with suppression on thebasis of the appeals that had been lodged. The Judge concluded in relation toSir James:8(a) That neither he nor his associated entities had established thatpublishing his name would cause them extreme hardship unders 200(2)(a) of the Criminal Procedure Act 2011.(b) The connected entities had failed to establish that publication wouldcause them undue hardship under s 202 of the Criminal Procedure Act.[23] Venning J also concluded however, that if the charges based on the complaintsby N and S were severed from the other charges there was a real risk Sir James' rightsto a fair trial would be prejudiced in relation to his second trial if his name was allowedto be published in relation to the first trial. The Judge therefore made an interim ordergranting Sir James name suppression until the severance application was determined,on the basis that if the severance application failed, then the interim suppression orderwould lapse.97 W v R [2019] NZHC 1350.8 At [49] and [57].9 At [76].[24] Mr Yikar's name suppression appeal was wholly dependent on the outcome ofSir James' appeal. As interim name suppression was granted to Sir James, an identicalorder was made in relation to Mr Yikar.10[25] For completeness, we record that Venning J dismissed the appeals by Mika Xand the immunity witnesses, but on the basis that they would have interim namesuppression which would lapse should the interim orders in relation to Sir James andMr Yikar also expire.11[26] The application for severance was granted on 26 November 2019 in relation tothe charges based on the complaints made by N.12 The charges based upon thecomplaint by S remain part of the first trial. Sir James and Mr Yikar had the benefitof interim name suppression for the first trial solely to preserve Sir James' fair trialrights in relation to the second trial.[27] On 29 August 2022, Sir James was found not guilty in relation to the chargesbased on the complaints by N. On the same day, Peters J, the trial Judge in relation tothose charges issued a minute granting Sir James name suppression in relation to thesecond trial.13 The Judge said:[1] This minute records my order suppressing publication ofMr Wallace's name and any identifying details in connection with the chargesof which he has today been acquitted, this order [is] to continue pendingfurther order of this Court or the Court of Appeal.[2] Ms Owen from Stuff asked me whether this order extends to prohibitany "linking back" of this trial to the 2021 trial, which would have the effectof identifying the defendant as the same in each. I confirmed to Ms Owen,and record, that it does so extend.[28] We are not aware of any other applications or orders concerning namesuppression for Sir James or Mr Yikar.10 At [79].11 At [98] and [107].12 R v W [2019] NZHC 3084.13 R v W HC Auckland CRI-2019-404-511, 29 August 2022.Analysis[29] It appears that the minute of Peters J has been interpreted as an order imposinga blanket suppression of Sir James' name in relation to his convictions following thefirst trial. We doubt that was the intention of the Judge's minute, particularly asVenning J had made very clear the limited basis upon which name suppression wasgranted in relation to the first trial.[30] Instead of appealing the extant suppression orders made by Venning J on thebasis of changed circumstances, Sir James has filed a new application for namesuppression in this Court. He advances changes in his circumstances as the reason formaking fresh applications. Changes of circumstance can, however, be legitimatelypursued as part of an appeal. The approach taken by Sir James circumvents the limitedappeal pathway that governs the bringing of a second appeal in name suppressioncases. The tactic employed in this case is quite contrary to Parliament's intentionswhen it limited the pathways for second appeals in name suppression cases.The application under s 200(2) by Sir James and on behalf of entities with whichhe is connected[31] In D (CA443/2015) v Police, this Court explained the two-step analysis thatapplies to applications for name suppression based on one or more of the criteria ins 200(2) of the Criminal Procedure Act. This Court said:14[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.[12] At the second stage the Court must balance relevant considerations inthe exercise of discretion. The open justice principle must be considered atthis stage, notwithstanding that the threshold has been crossed. That is sobecause the ultimate question remains whether open justice should yield.The balance must "clearly favour" suppression. In a case turning, as this onedoes, on subs (2)(a), (d) and (e), relevant considerations accordingly includethe open justice principle, the seriousness of the offending, the presumption14 D (CA443/2015) v Police [2015] NZCA 541, (2015) 27 CRNZ 614 (footnotes omitted).of innocence, the public interest in knowing the applicant's character andidentity, the public's right to freedom of expression, the applicant's youth andthe likely impact publication will have on the applicant's prospects ofrehabilitation, any other circumstances personal to the applicant, the interestof victims and the interests of other affected persons.Extreme hardship[32] In Robertson v Police, this Court discussed extreme hardship in the followingway:15[48] As regards the level of hardship required by the phrase "extremehardship", we consider it clear beyond argument that it connotes a very highlevel of hardship. The word "hardship" on its own means "severe suffering orprivation". The addition of the qualifier "undue" in s 200(2)(c) indicates thatsomething more than hardship simple is required, while the word "extreme"in s 200(2)(d) indicates something more again.[49] An assessment of whether the contended hardship is "extreme" cannottake place in a vacuum. It is self-evidently contextual and in our view mustentail a relative comparison between the contended hardship and theconsequences normally associated with a defendant's name being published.It must be something beyond the ordinary associated consequences.[33] There is nothing extreme about the hardship described by Sir James.The effects on Sir James of publication and the effects on his businesses and charitableinterests are an ordinary and normal consequence of conviction and publication of thename of a high-profile offender with commercial and charitable interests. In thisrespect, the language of s 200(3) of the Criminal Procedure Act is pertinent: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 the purposesof subsection (2)(a).[34] This Court explained in Lewis v Wilson & Horton Ltd, that "it is usual fordistress, embarrassment, and adverse personal and financial consequences" to followfrom criminal convictions.16 Financial loss is often the direct consequence of publicknowledge of a defendant's offending. Sometimes the impact of conviction andpublication of the offender's name will extend beyond the economic interests of thedefendant and may cause loss to their family and persons associated with them.15 Robertson v Police [2015] NZCA 7 (footnotes omitted).16 Lewis v Wilson & Horton Ltd [2000] 3 NZLR 546 (CA) at [42].However, as the Court stressed, these are the normal consequences of the offender'sidentity becoming public knowledge.[35] It is significant that Sir James' current involvement with the MMCT started in2022, long after his conviction and at a time when he knew that there was a very realprospect that his name would be published in connection with his offending.Suppressing Sir James' name on the basis of his involvement with the MMCT wouldfundamentally distort the principle of open justice that s 200 is designed to protect.The potential funders of the MMCT should be able to make decisions about donationsand investments with the full knowledge of Sir James' criminal history.[36] Sir James has resigned as a trustee of the JWAT. The JWAT's significant artcollection can be enjoyed by the public and others irrespective of Sir James' currentstatus. It is difficult to place weight on the suggestion that a settlement "in principle"might be compromised if name suppression lapses in the current situation because ofthe limited information that has been placed before us about the ongoing negotiations.[37] Similarly, the principle of open justice means that potential investors withinLigar should make their decisions on a fully informed basis, including knowing thecriminal record of Sir James.Section 200(2)(d)[38] There can be no certainty that the Supreme Court will grant leave or allow hisappeal. We therefore cannot agree with the submission of Mr Jones KC that there is areal likelihood Sir James' "retrial" rights will be unfairly prejudiced if Sir James nolonger has name suppression.First step conclusions[39] Sir James has failed by a considerable margin to demonstrate extreme hardshipto himself or connected entities if he no longer has name suppression. We are alsosatisfied that Sir James has failed to demonstrate that there is any real likelihood of hisfair "retrial" rights being compromised.Second step conclusions[40] Even if the criteria in s 200(a) and (d) were satisfied, we would have exercisedour discretion against granting name suppression. Our reasons for declining toexercise our discretion in favour of Sir James can be succinctly summarised:(a) All of the offences that Sir James has been convicted of are serious.His convictions for trying to dissuade H from giving evidence areparticularly serious.(b) It is important the public have the opportunity to assess the truecharacter of a high-profile successful businessman and philanthropistwho has traded on his hitherto excellent reputation for most of his adultlife.(c) Sir James' age and ill health are not in themselves factors that weighsignificantly in favour of name suppression.(d) This is not a case in which rehabilitation prospects are engaged.(e) Ultimately, the prevailing factor is the principle of open justice and theright of the public to know, through the media, the details of cases heardin our criminal courts.Application by MMCT[41] The application by the MMCT under s 202 of the Criminal Procedure Act canonly result in an order suppressing the name and identifying features of the MMCT.This is because s 202 was enacted to enable entities connected with a defendant tohave the benefit of name suppression, particularly where the offending has nothing todo with the connected person.1717 See for example, St Peter's College v R [2016] NZHC 925, [2016] NZAR 788; and Sansom v R[2018] NZCA 49.[42] There is no merit in the application by the MMCT which has been brought inan effort to provide Sir James with an alternative pathway for name suppression unders 200(2)(f) . It is significant that the hardship pleaded by the MMCT stems from theenhanced role that Sir James has played in the affairs of the MMCT since hisconvictions in 2021. The MMCT was aware of Sir James' convictions when hebecame Chairman of the MMCT. It is difficult to accept the MMCT will suffer unduehardship in circumstances where it allowed Sir James to become Chairman of theMMCT knowing he had been convicted of serious offences.[43] Even if MMCT suffers undue hardship if Sir James' name is published inconnection with his convictions, we would exercise our discretion against grantingname suppression to the MMCT. Any potential investors in the MMCT are entitled toassess the merits of their proposed investment with full knowledge of the character ofthe man at the helm of the MMCT.Result[44] The applications for name suppression are declined.[45] In a memorandum dated 7 March 2023, Mr Jones has said that Sir James willseek leave to appeal to the Supreme Court if his current applications are dismissed.He invokes s 286(2) of the Criminal Procedure Act on the basis that any appeal to theSupreme Court would be a first appeal under s 285 of the Criminal Procedure Act.While we do not accept that the correct procedure has been followed by commencinga fresh application for name suppression in this Court, we reluctantly extend theexisting name suppression orders for 20 days from the date of this judgment.When that period lapses, we shall make public our reasons for dismissing Sir James'appeal against conviction and sentence and for dismissing Mr Yikar's appeal againstconviction, subject, of course, to any orders to the contrary from the Supreme Court.Solicitors:Doug Cowan Barristers & Solicitors, Auckland for Appellant in CA294/2021Cook Morris Quinn, Auckland for Appellant in 311/2021Crown Law Office, Wellington for Respondents in CA294/2021 and CA311/2021