WALKER v NEW ZEALAND POLICE [2019] NZHC 1600

WALKER v NEW ZEALAND POLICE [2019] NZHC 1600 [10 July 2019]IN THE HIGH COURT OF NEW ZEALANDBLENHEIM REGISTRYI TE KŌTI MATUA O AOTEAROATE WAIHARAKEKE ROHECRI-2019-406-11[2019] NZHC 1600BETWEEN LOUISE PATRICIA WALKERAppellantAND NEW ZEALAND POLICERespondentHearing: 10 July 2019Appearances: R A Harrison for AppellantS J Revell for RespondentJudgment: 10 July 2019JUDGMENT OF COOKE J[1] On 17 June 2019 the appellant was sentenced on a charge of supplying a ClassA controlled drug, namely methamphetamine after entry of a guilty plea.1 The chargewas a representative charge with the offending occurring between 1 October 2017 and12 July 2018. Judge Russell sentenced the appellant to six months' home detentionand 150 hours community work.[2] Ms Walker had also made an application for name suppression under s 200 ofthe Criminal Procedure Act 2010. The Judge dealt with that application in thefollowing terms:[33] Finally, I need to address the issue of the final order for thesuppression of your name. The provisions of s 200 Criminal Procedure Act2011 apply and this means I can only make an order if I am satisfied thatpublication of your name would cause extreme hardship to you.1 New Zealand Police v Walker [2019] NZDC 11541.[34] I have considered all of the factors which I have mentioned in thesesentencing remarks. While I accept there will be consequences for you if yourname is published which will have an impact on you, I cannot conclude theimpact of name publication reaches the threshold of there being extremehardship being caused to you. So the application to finally suppress your nameis consequently refused.[3] Ms Walker now appeals from the decision to decline name suppression.Interim name suppression has been continued in the meantime.Statutory provisions[4] Section 200 of the Criminal Procedure Act 2010 provides:200 Court may suppress identity of defendant(1) A court may make an order forbidding publication of the name, address,or occupation of a person who is charged with, or convicted or acquittedof, an offence.(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 convictedof, or acquitted of the offence, or any person connected with thatperson; or(b) cast suspicion on another person that may cause undue hardshipto that 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 issuppressed by 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 offencefirst appears 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 courtis satisfied 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 accordancewith section 28 of the Victims' Rights Act 2002.[5] The test for name suppression under s 200 involves a two stages — first theCourt considers whether the consequences in s 200(2) would likely follow. Secondthe Court considers whether an order should be made at the Court's discretion unders 200(1).2 Section 283 of the Act provides an appeal against a name suppressiondecision may be bought as of right. An appellant is "entitled to judgment inaccordance with the opinion of the appellate Court" in relation to the thresholdquestion under s 200(2).3 At the second stage under s 200(1) the appellant needs toshow that the Judge acted on a wrong principle, failed to take into account somerelevant matter, took account of some irrelevant matter, or was plainly wrong.4[6] In the present case the Judge concluded that the threshold requirements ins 200(2) were not satisfied and he did not go on to consider the discretion. Accordinglythe focus of the appeal is whether the circumstances of s 200(2) arise. If they do theCourt is able to apply the discretion under s 200(1).Relevant circumstances here[7] Mr Harrison for the appellant emphasises the difficult circumstancesconfronting Ms Walker that led to the offending. Since being sentenced the positionhas become materially worse for her. Her teenage son has been removed from hercare. She is no longer in employment. Her counselling for drug addiction is notcurrently taking place. Most significantly the appellant says she was subjected to aserious incident on 17 April 2019. She says in a further affidavit she has filed onappeal:2 Fagan v Serious Fraud Office [2013] NZCA 367 at [9]; Robertson v Police [2015] NZCA 7 at[39]–[40].3 In accordance with the approach in Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC103, [2008] 2 NZLR 141 at [16].4 B (CA860/10) v R [2011] NZCA 331 at [9]; Lawrence v R [2011] NZCA 272 at [11].14. I am facing a multitude of issues that I need to deal with. First andforemost, the incident of 17th April has left me feeling extremelyvulnerable and shattered as a person. At the moment I feel thatpublication of my name will compound all that has happened to me.15. I appreciate that I have a lot of work to do in terms of addressing, notonly what happened to me on the 17th April, but also the core issuesrelating to my drug addiction and the domestic abuse I have suffered inthe past. By obtaining final suppression of my name I feel that I wouldbe able to step out the door and start rebuilding my life. I already feelhuge guilt for what has happened to my extended family as a result ofmy offending. I don't know how I would cope if that was made publicso that everyone would know of their shame given my actions.[8] In support of the appeal Mr Harrison relies particularly on the case of H v R.5Here the appellant had pleaded guilty to two counts of kidnapping. She had noprevious convictions and had a life history including sexual and physical abuse, anabusive relationship, and she suffered from PSTD. The appellant had care of childrenin a family relationship. In allowing the appeal and imposing name suppression EllisJ held:[30] it is less common for such offenders to have full-time care of threechildren (at least two of whom are themselves vulnerable). Nor is it commonfor such offenders to acknowledge and have relatively immediaterehabilitative prospects. The risk of harm to the family unit (which itself isintegral to H's on-going mental health) and the risk of damaging H'srehabilitative prospects by making H's name public must, I think, also berelevant to the question of hardship and its degree.[9] Mr Revell argues in response that H v R is distinguishable, and that the startingpoint is the presumption in favour of open justice emphasised by the Court of Appealin R v Liddell.6 He refers to the observation of Winkelmann J in BL v R who said whenallowing an appeal and imposing name suppression:7[20] This principle of openness reflects the "public interest in knowingabout all aspects of the operation of the justice system." Further, publicationcontains an element of punishment and deterrence, and may protect the publicfrom further offending or encourage other victims to come forward. It alsoavoids suspicion falling on others.[10] He also compares this case with Q v New Zealand Customs where Thomas Jheld that the threshold of extreme hardship was not met because a psychologist had5 H v R [2019] NZHC 1155.6 R v Liddell [1995] 1 NZLR 538.7 BL v R [2013] NZHC 2878, footnotes omitted.indicated that media publication could lead to serious negative consequences inaddition to the defendant's depression and anxiety thus elevating a risk of suicide.8But the Court ultimately held that the fact that the appellant's wife suffered from a rareheart condition that could cause sudden death triggered by stress meant the criteriawas satisfied, and the balance weighed in favour of suppression.[11] I accept the appellant is facing an extremely difficult period in her lifefollowing her conviction and sentencing. The event of 17 April that she refers towould appear to be causing further very significant distress. But these significantadverse implications appear to me to be consequence of the offending, her convictionand its aftermath, and a further incident. They arise independently of any publicity.In her affidavit the appellant refers to the impact of publicity on her sister and her son,and says that "publication of my name will compound all that has happened to me".But that does not demonstrate that it is publication that is causing extreme hardship,or undue hardship in the manner contemplated by s 200(2). The hardship that isdescribed, including the significant adverse impacts of the event which she describes,have already taken place, and have occurred notwithstanding she has had interim namesuppression. They arise from the events themselves rather than any publicityassociated with it.[12] I accept that publicity will make matters harder. But in my view thepresumption in favour of open justice is not rebutted. A person seeking suppressionneeds to demonstrate that the significant impacts meeting the statutory thresholds ariseby the expected publication itself. There must be a causal connection betweenidentifiable hardship and publication. Hardship of a more general sense might berelevant, including to the exercise of the discretion once the threshold has been met,but the threshold must be met first. The kind of additional implications of publicationfor the appellant, and her sister and son described in the affidavit are general in nature,and are not sufficient to meet the thresholds. They do not themselves amount toextreme hardship. The material put forward here can be compared with the moreextensive and significant evidence relied upon by the Court in H v R, BL v R and Q vNew Zealand Customs. For example in H v R there was the risk of harm to the family8 Q v New Zealand Customs [2014] NZHC 2398.unit. In the present case Ms Walker's family has already broken apart as aconsequence of the offending, and its implications.[13] For those reasons I agree with the conclusions of the District Court Judge andthe appeal is dismissed. The interim name suppression is also dismissed as aconsequence.Cooke JSolicitors:Inangahua Chambers, Blenheim for AppellantCrown Solicitors, Blenheim for Respondent