NUKU v THE POLICE COMMISSIONER [2018] NZHC 36

NUKU v THE POLICE COMMISSIONER [2018] NZHC 36 [1 February 2018]IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYI TE KŌTI MATUA O AOTEAROATE WHANGANUI-Ā-TARA ROHECIV 2017-404-2190[2018] NZHC 36BETWEEN KARL NUKUAppellantAND THE POLICE COMMISSIONERRespondentHearing: On PapersCounsel: Appellant in PersonG Taylor for RespondentJudgment: 1 February 2018JUDGMENT OF ELLIS J[1] Mr Nuku appeals an interim non-publication order of the Human RightsReview Tribunal (the Tribunal) dated 28 August 2017, under s 123(1) of the HumanRights Act 1993 (HRA).1Background[2] On 29 July 2011 Mr Nuku and a co-defendant were convicted of murder andsentenced to life imprisonment in the High Court by Woolford J. During the murdertrial that lead to Mr Nuku's conviction, a prosecution witness was granted interimname suppression by the High Court and was referred to as "W29". That suppressionorder was made permanent at the conclusion of the trial on the combined groundsthat:21 Nuku v Commissioner of Police (Interim Non-Publication Order) [2017] NZHRRT 32.2 R v Pandey-Johnson HC New Plymouth CRI-2011-443-000013, 16 June 2011.(a) the extensive media coverage in relation to W29 and the nature of theallegations levelled at her by the defendants and their lawyers duringthe trial (including that she was the actual murderer and that she hadperjured herself);(b) W29's health issues and the nature of those issues; and(c) the impact of publication on her employment, both current and futureshould final name suppression not be granted.[3] On 9 June 2016 Mr Nuku made a request under the Privacy Act 1993 to Policefor access to a number of Crown and defence exhibits from the trial. He made thatrequest with a view to compiling information he requires in order to seek the exerciseof the Royal prerogative of mercy in relation to his conviction.[4] Police provided some of the material requested, but withheld other materialunder s 29 of the Privacy Act. The material withheld included information relating toW29 (which was contained within Crown Exhibit 32).[5] On 26 June 2017 Mr Nuku filed a statement of claim in the Tribunal allegingthat the Police decision to withhold the material was in breach of the Privacy Act. Heattached copies of correspondence he had had with the Office of the PrivacyCommissioner, in which he referred to W29 by her real name.[6] On 18 August 2017, the Crown (on behalf of Police) filed a memorandum inthe Tribunal advising of the High Court's permanent suppression order. The Crownwas, quite properly, anxious to ensure compliance with the High Court's orders in thecourse of the Tribunal's proceedings, and to prevent W29's real name being usedinadvertently by the Tribunal in a publicly available document.[7] On 21 August 2017, Mr Nuku filed a memorandum in the Tribunal in responseto that of the Crown. In it, Mr Nuku opposed any recognition by the Tribunal ofWoolford J's order. Insofar as I am able to distil his argument, it was as follows:(a) the issue of permanent name suppression does not relate to the Tribunalproceedings;(b) Mr Nuku's use of W29's ordinary name in his correspondence with theOffice of the Privacy Commissioner is of no consequence because (savefor the Crown raising the issue) there is nothing to suggest that thewoman with that name is W29;(c) the permanent name suppression order does not apply to the Tribunal,so long as it ensures that no nexus is created between W29 and herordinary name; and(d) the question before the Tribunal (namely whether the Police are inbreach of the Privacy Act) is a civil matter. The Tribunal does not havejurisdiction to grant a subsequent name suppression order for W29.[8] Mr Nuku concluded his memorandum by suggesting that if the Tribunal wasinclined to make an interim non-publication order in relation to W29, that the matterbe deferred until the conclusion of the Tribunal's proceedings.The Tribunal's decision[9] No doubt in response to the Crown memorandum, on 28 August 2017, theTribunal made the following orders:3[8.1] Publication of the name or of any details which could lead to theidentification of W29 is prohibited pending further order of theChairperson or of the Tribunal.[8.2] There is to be no search of the Tribunal file without leave of theChairperson or of the Tribunal. The plaintiff and defendant are to benotified of any request to search the file and given the opportunity tobe heard on that application.[8.3] Leave is reserved to both parties to make further application[s] shouldthe need arise.3 Nuku v Commissioner of Police (Interim Non-Publication Order), above n 1, at [8.1]–[8.3].[10] The orders were said by the Tribunal to be made pursuant to ss 95 and 107 ofthe HRA.4The appeal[11] On 1 September 2017, Mr Nuku filed a notice of appeal in the High Court.Although he accepts that the Tribunal had the authority under s 107 of the HRA tomake an interim non-publication order on the papers, he says that here the order wasmade on an ex parte basis in breach of both s 95(3), and the principles of naturaljustice. He says that the Tribunal did not afford him the opportunity to be heard andtook no account of his interests. He points out that the Tribunal's order of28 August 2017 makes no mention of his memorandum.[12] On 12 December 2017, with consent of the parties, I ordered that this appealwould be determined on the papers. I also sought brief memoranda explaining thesubstance of Mr Nuku's claim in the Tribunal, which both Mr Nuku and the respondentprovided shortly afterwards.Discussion[13] It seems to me that the starting point must be Woolford J's order. That orderwas made prior to the commencement of the Criminal Procedure Act 2011 (the CPA)but was of a kind now given statutory recognition in s 202 of that Act, namely an orderforbidding the publication of the name or identifying particulars of the witness knownas W29 on the grounds that publication would cause her undue hardship.[14] Because the suppression order here predates the CPA, the provisions in thatAct creating specific offences of breaching suppression orders do not apply. But therecan be no doubt that knowingly (or recklessly) breaching an order made before thecommencement of the Act would always have been regarded as constituting a seriouscontempt of Court, with the attendant legal consequences.4 At [8]. I discuss these provisions at [19] below.[15] Similarly, there is no reason to think that the CPA changed the law in terms ofthe meaning of "publication" in a suppression context.5 Thus the recent decision inASG v Hayne on that issue is equally relevant here.6 In that case the Supreme Courtheld that a restriction on publication covers any disclosure by print media, word ofmouth or social media. Passing along suppressed information to one other person orto a small number of persons (including by word of mouth) in a situation that willundermine the purpose of the suppression order will breach s 202 of the CPA.7 TheCourt acknowledged, however, that there would be no breach when the disseminationof information is to persons with a genuine need to know, where that interest isobjectively established.8[16] Notably, a report or account relating to proceedings where there is no referenceto the proceedings where the suppression order was made may also constitute acontemptuous "publication". Thus, in Karam v Solicitor-General (a pre-CPA case)where a suppression order was granted in relation to a witness at trial, it was held thata reference in a book to the name of the witness and statements she had made to thepolice in the course of the investigation was a breach of the suppression order.9[17] On the basis of these authorities, it seems to me to be tolerably clear thatnaming witness W29 either in correspondence with the Privacy Commissioner or incommunications with the Tribunal constitutes "publication" and these and any otherreferences to her name by Mr Nuku in any context directly or indirectly connectedwith his trial runs a real risk of breaching Woolford J's order. That risk existsregardless of whether there is some obvious way of joining the dots between her nameand witness W29. There is nothing in the material before the Court to suggest thatMr Nuku could objectively establish that the Privacy Commissioner and the Tribunalhave a genuine interest in knowing W29's true name or identity.5 Section 195 of the CPA provides that "publication means publication in the context of any reportor account relating to the proceeding in respect of which the section applies or the order was made(as the case may be)". Section 194 of the Act defines "name" as including the person's name andany particulars likely to lead to the person's identification.6 ASG v Hayne [2017] NZSC 59, [2017] 1 NZLR 777.7 At [79].8 ASG v Hayne, above n 11,at [79] – [80].9 Karam v Solicitor-General HC Auckland AP50/98, 20 August 1999 at 8 – 9.[18] For these reasons the Crown acted entirely properly in bringing the suppressionorder to the Tribunal's attention and the Tribunal was right to take steps to record andrecognise it.[19] For myself, however, I doubt that ss 95 and 107 of the HRA (the provisionssaid to have been applied by the Tribunal) have much bearing on the matter.[20] Section 95 empowers the Chairperson of the Tribunal to make an interim order"if he or she is satisfied that it is necessary in the interests of justice to make the orderto preserve the position of the parties" pending a final determination of theproceedings. In the present case, it is not the parties' position that is sought to bepreserved but the position of a non-party (W29) and, in a sense, an order of this Court.The natural justice obligation contained in s 95(3) does not, in my view, arise.[21] And s 107(3) simply provides that the Tribunal may make an order:(a) that any hearing or any part of a hearing held by it be heard in private;(b) prohibiting the publication of any report or account of some or all ofthe evidence in any proceedings before it; and(c) prohibiting the publication of the whole or part of any books ordocuments produced at any hearing of the Tribunal.[22] None of those orders appear to be particularly apt in the present case.[23] For the reasons I have already given, however, it matters little whether s 95 ors 107 can be said to apply here. The signal point is that Woolford J's order continuesin force and operates to prevent any "publication" of W29's real name by Mr Nuku orthe Tribunal. The Tribunal had no choice but to recognise this and, as I have also said,was wise to formally record its operation in the proceedings before it. Becausecompliance with Woolford J's order is mandatory, no natural justice issue can possiblyarise. I would suggest that Mr Nuku needs to be very careful to comply with that orderin future.[24] Given my view that:(a) neither ss 95 nor 107 directly apply here; but(b) in substance (by which I mean in its recognition of the force ofWoolford J's order) the Tribunal's order is entirely correct;it is difficult to know what formal orders should be made in this appeal. I am notinclined, however, to overturn the interim order at this stage. I prefer to exercise thisCourt's power under s 123(7) of the HRA. Instead of determining the appeal, I referthe matter back to the Tribunal for further consideration in light of this judgment. Ileave it to the Tribunal to determine whether the interim order should be revoked oramended. I make no order as to costs.__________________________Rebecca Ellis J