NZME PUBLISHING LIMITED v R [2018] NZCA 363

NZME PUBLISHING LIMITED v R [2018] NZCA 363 [11 September 2018]NOTE: COURT OF APPEAL ORDER IN CA77/73 SUPPRESSING THESECOND RESPONDENT'S NAME REMAINS IN FORCE UNTIL FINALDISPOSITION OF CRIMINAL PROCEEDINGS: SEE [38].IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA247/2018[2018] NZCA 363BETWEEN NZME PUBLISHING LIMITED, STUFFLIMITED AND RADIO NEW ZEALANDLIMITEDApplicantsAND THE QUEENFirst RespondentCOLIN MITCHELLSecond RespondentHearing: 20 August 2018Court: Winkelmann, Clifford and Gilbert JJCounsel: T C Goatley for ApplicantsC A Brook for First RespondentM W Ryan and J M Hudson for Second RespondentJudgment: 11 September 2018 at 11.30 amJUDGMENT OF THE COURTA The application for revocation of the 1973 permanent name suppressionorder is granted but the effect of this order is stayed until final disposition ofthe criminal proceedings against the second respondent in CRI-2017-004-2810 and CRI-2017-004-2621.B We make no order as to costs.____________________________________________________________________REASONS OF THE COURT(Given by Winkelmann J)[1] We are asked to exercise a power under s 208 of the Criminal ProcedureAct 2011 to revoke an order this Court made in 1973 permanently suppressingMr Mitchell's name in connection with offending in that year.[2] The applicants are three media organisations (we refer to them collectively asthe media). They say that because of Mr Mitchell's reoffending there is public interestin that earlier offending so that name suppression should be revoked. Mr Mitchellresponds that the existing suppression order should stand because he has ordered hislife on the longstanding understanding that the name suppression is permanent, andbecause there is a general public interest in finality in litigation.Facts[3] In 1973, shortly after his 15th birthday, Mr Mitchell raped a young girl. He wassentenced to five years' imprisonment.1 This Court upheld that sentence on appeal,but permanently suppressed Mr Mitchell's name.2 Although the Court gave no reasonsfor that name suppression it is common ground between the parties we should proceedon the basis that name suppression was granted because of Mr Mitchell's youth.We agree with that proposed course as there is no suggestion that name suppressionwas required to protect the identity of the victim or for any other reason.[4] In 1985 Mr Mitchell was convicted of rape, sodomy and indecent assaultarising from offending in 1984.3 He was again sentenced to five years' imprisonment.Both convictions and sentence were upheld by this Court on appeal.4[5] Earlier this year, following a jury trial, Mr Mitchell was convicted of multiplecharges against two different victims arising from offending in 1992 and 2017.5Evidence of the 1984 offending was admitted as propensity evidence at Mr Mitchell's1 R v Mitchell T52/73, 28 June 1973.2 R v Mitchell CA77/73, 20 August 1973.3 R v Mitchell T117B/84, 12 July 1985.4 R v Mitchell CA168/85, 12 June 1986.5 R v Mitchell [2018] NZHC 1112.trial. Mr Mitchell does not have name suppression in respect of the 1984, 1992 or2017 offending.[6] The fact of the 1973 offending was taken into account, but not referred toexplicitly, by Fitzgerald J when sentencing Mr Mitchell to preventive detention, witha minimum term of 10 years' imprisonment for the 1992 and 2017 offending.6Jurisdiction and nature of power to review[7] This is an application for review under s 208(3) of the Criminal Procedure Act2011 (the Act). The 1973 order was made under the provisions of s 46 ofthe Criminal Justice Act 1954, well before the Act came into force. However, s 21 ofthe Interpretation Act 1999 operates so that name suppression orders under earlierlegislation continue in force as if made under s 200 of the Act, and are thereforeamenable for review under s 208 of that Act.7 By virtue of s 210 of the Act, the mediahave standing to apply for such a review.[8] Prior to the Act the law in relation to the ability to review permanentsuppression orders was unsatisfactory. Section 138 of the Criminal Justice Act 1985gave the courts authority to review permanent suppression orders made in respect ofevidence or submissions but that statutory power of review did not extend to namesuppression orders except where that order was made to protect the identity of awitness.8 While the High Court could use its inherent jurisdiction in that lattercircumstance, the District Court did not have inherent jurisdiction and so could not dothe same.9 It was against this background that the Law Commission recommendedthe inclusion in legislation of a power to review name suppression orders.106 At [48] and [88].7 Taylor v C [2017] NZCA 372 at [22]–[23], citing Genge v Chief Executive of the Department ofCorrections [2015] NZCA 157 at [23]. At the time the suppression order was made, s 46 of theCriminal Justice Act 1954 governed matters of suppression. Section 17 of the Criminal JusticeAmendment Act 1975 subsequently amended s 46 and inserted ss 45B and 45C of the CriminalJustice Act 1954. These provisions were then replaced by ss 138 to 140 of the Criminal JusticeAct 1985. The existing suppression provisions in the Criminal Procedure Act 2011 replace ss 138and 140 of the Criminal Justice Act 1985.8 R v Burns (Travis) [2002] 1 NZLR 387 (HC) at [26]. While Chambers J accepted there wasjurisdiction to review a witness suppression order under s 138, there was doubt in that case as towhether the original order was made under s 138 or 140: see [22].9 At [25]–[26].10 Law Commission Suppressing Names and Evidence (NZLC R109, 2009) at [6.69]–[6.70].Section 208(3) of the Act therefore contains a general power to review suppressionorders. It provides:208 Duration of suppression order and right of review(3) A suppression order may be reviewed and varied by the court at anytime.[9] Under the Act an application for review is one of the three principal ways asuppression order may be challenged, the other two being:(a) by way of appeal under s 283;(b) by way of judicial review, where the original decision was made inthe District Court.[10] Appeal will usually be the appropriate procedural pathway where the merits ofthe original order are challenged. Under the Act an appeal under s 283 may be broughtby the original applicant for the order, the prosecutor or a member of the media.11Although appeal is the usual pathway to challenge the making of an order,judicial review may be appropriate for interested parties who have no standing topursue an appeal, such as the victim of the offence. That pathway of course is notavailable where the suppression orders are made in the High Court as there is no abilityto judicially review High Court decisions.Principles to be applied[11] Although the Act is silent on criteria to be applied under s 208, assistance as tothe proper approach to an application to revoke permanent name suppression can begained from case law, and from the statutory scheme.[12] Prior to the enactment of s 208, permanent name suppression could be revokedalthough that seems to have occurred on only one occasion, in R v Burns (Travis).1211 A member of the media to whom s 210(1) applies.12 R v Burns (Travis) [2002] 1 NZLR 387 (CA).In Burns media interests sought to revoke a secret witness' permanent namesuppression. As to the proper approach to such an application, this Court said:13The Courts will be most difficult to persuade that the name of a secret witnessshould be divulged in the absence of truly exceptional circumstances.[13] More recently in Taylor v C, this Court dealt with an application under s 208,again to revoke the permanent name suppression of a secret witness.14 The applicantMr Taylor was pursuing a private prosecution against "Witness C" for attempting topervert the course of justice, and perjury.15 He sought to have Witness C's namesuppression revoked because he said it would assist with his investigation and on thegrounds that the principles of freedom of expression and open justice weighed stronglyin favour of publication.16 When discussing the approach to such an application,this Court said:17[W]e are not persuaded that we should differ from the earlier decision of thisCourt in Burns that only in exceptional circumstances will a final suppressionorder be varied.[14] An application under s 208 was also addressed in the still more recent case ofB v NZME Publishing Limited.18 In that case NZME sought revocation of anoffender's name suppression in circumstances where he had, some years later, goneon to have a career in local government. Ellis J rejected an argument that the test unders 208 was whether the applicant had shown exceptional circumstances. She said:19That phrase is merely descriptive of the (obvious) point that it will only be insuch truly exceptional circumstances that the suppression of the name of asecret witness or Police informant will be lifted or revoked. That is becausethe policy reasons for granting such suppressions are unlikely to change overtime. This was made clear by the Court of Appeal in R v Burns (whence the"truly exceptional circumstances" term originated).13 At [24].14 Taylor v C, above n 7.15 Witness C was convicted and name suppression subsequently lapsed: see Taylor v Witness C[2018] NZHC 810.16 Taylor v C, above n 7, at [38]–[39].17 At [36] (footnotes omitted).18 B v NZME Publishing Ltd [2018] NZHC 1042.19 At [22] (footnotes omitted).[15] Ellis J also rejected an argument that a revocation decision should be viewedsimply as the re-exercise of the original suppression power.20 In a careful analysis shesaid that the proper approach was rather to inquire whether there has been a"triggering" change of circumstances that might warrant revisiting the namesuppression order.21 If satisfied there is such a change of circumstance, the questionmust be whether the change in circumstances are such that they might justify takingaway the right to name suppression. This entails a balancing exercise whereby thechange of circumstance is balanced against the existing right or expectation to whichthe original name suppression order gave rise.22[16] We agree with Ellis J that when asked to revoke an order for permanent namesuppression under s 208, the court's task will not usually be to address whether theoriginal order should have been made. Challenges to the initial making of an orderwill typically be made by way of appeal or judicial review, as discussed at [9]. We alsoagree with Ellis J that most applications under s 208 will be based, as is this one, on achange of circumstance. A party to the proceeding in which the permanent suppressionorder was made, and any media representative who had a proper opportunity of beingheard, would be precluded from applying to revoke the order absent a change ofcircumstance. To allow them to do so, absent a change of circumstance, would permita collateral attack on the correctness of the judgment — an abuse of process. There isa remaining issue, one we do not need to decide, as to whether s 208 is an availableprocedural pathway for those who were not party to the original decision and who donot have standing to appeal a suppression order, to nevertheless challenge whether theorder was properly made.[17] We do not however agree that the threshold this Court speaks of in Taylor, ofexceptional circumstances, applies only in cases concerning secret witnesses. It is truethat both Burns and Taylor concerned applications to revoke name suppression ordersto support witness anonymity and that in Burns this Court's remarks were connectedto that particular circumstance. But this Court in Taylor did not limit its comments to20 At [26].21 At [25].22 At [28].the secret witness or police informant situation, as was made clear when explainingthe high threshold:23The reasons for that constraint are obvious: those who give evidence (andthose others involved, such as complainants and defendants) are entitled to adue degree of permanence and finality in relation to suppression orders. Suchorders are not made lightly in the first place, but only for very good reason. Itwould be inimical to the criminal justice system if such orders were then ableto be discharged readily and without a very significant persuasive thresholdfirst being met.[18] That approach is undoubtedly correct. Because of the principles of freedom ofexpression and the requirements of open justice, the courts are slow to grant permanentname suppression. Whether addressed under the Criminal Justice Act or theCriminal Procedure Act, the threshold for permanent suppression has always beenvery high.24 It follows that good reason must be shown for the revocation of apermanent name suppression order. The passage of time in itself will not be goodreason. Nor will the type of changed circumstance which is an ordinary concomitantof the passing of time. A court necessarily has those matters in contemplation whengranting permanent name suppression. It also follows we think, that something out ofthe ordinary, in other words exceptional, will need to be shown to justify revocationof the order.[19] We prefer not to use the expression "triggering change of circumstance" as thenotion of a triggering change might be thought to suggest a single or sudden event. Itcould well be that it is an accumulation or series of events that amounts to a change ofcircumstance that justifies revocation.[20] The change of circumstance relied upon must however bear upon thepublic interest in publication of the name. Relevant here will be the principles ofopen justice and freedom of expression. We do not exclude the possibility that otherpublic interest considerations might also be relevant.23 Taylor v C, above n 7, at [36].24 Section 200 permits the court to make an order of suppression only if it is satisfied publicationwould likely lead to extreme hardship of the defendant or connected person, cast suspicion onanother, undue hardship on the victim, create a risk of prejudice to a fair trial, endanger the safetyof any person, lead to identification of another person whose name is suppressed, or prejudice themaintenance of the law or security of New Zealand.[21] We consider that the exercise for the court is to determine whether in light ofthat change of circumstances, the public interest in publication of the name outweighsthe public interest, and the subject's interest (we refer to the person whose name issuppressed as the subject), in continuing name suppression.[22] A critical consideration will be the original reason for the making of the order,as that will necessarily shape the nature of the court's inquiry under s 208.For example, where, as here, the order was made because of the youth of the offender,the underlying philosophy of such an order is that young offenders should have theopportunity to rehabilitate themselves without the stress that can attend namepublication. It would be undermining of that intended outcome were the young personto have over his or her head that, if they do successfully rehabilitate, the order couldwell be revoked because the benefit of the order is spent. In such a case there istherefore both a public and private (the subject's) interest in the permanence of theorder.25[23] The converse proposition is that if the change of circumstance is such as tomake clear that the hope and expectation of rehabilitation was never realised, thatmight weigh in favour of revocation — in such a case there is no public interest in thecontinuation of the order. It may be that the change of circumstance is such that thesubject also has no private interest that justifies the order continuing.[24] In secret witness cases such as Burns and Taylor, other policy considerationswill come into play. This Court discussed these in Taylor in the context of a prisoninformant case:26[T]here are sound policy reasons why courts grant incarceratedCrown witnesses suppression, in particular the prevention of retribution to thewitness or his or her family.[25] Mr Ryan for Mr Mitchell argued that the time that has passed since the originalorder is relevant under s 208. As addressed above however, there is nothing in the factof delay in and of itself that is relevant to such an application.25 For a full discussion of the considerations affecting name suppression of young offenders, see thisCourt's discussion in DP (CA418/2015) v R [2015] NZCA 476, [2016] 2 NZLR 306.26 Taylor v C, above n 7, at [36] (footnotes omitted).[26] Mr Ryan also argues that the public interest in finality in litigation should beweighed. We agree that is so. That is why we consider that it is only in exceptionalcircumstances that permanent suppression will be revoked. However there is astatutory power of review, and that must be given effect in appropriate circumstances.Ellis J commented that the existence of an express power of revocation under s 208necessarily diminishes the reasonableness of any expectation that an order will stay inforce for ever.27 We would not wish to overweigh this consideration. It seems to usthat a party does have a legitimate expectation that suppression will remain permanent,since that is the nature of the order made by the Court. That expectation should onlybe disappointed where there is a change of circumstance which means that thepublic interest in publication outweighs the public and the subject's interest incontinuing name suppression. The public interest in continuing name suppression hasas a component part, the public interest in the finality of litigation.[27] Relevant also will be the circumstances as at the date the application falls to bedetermined. The lifting of the name suppression will result in publication of thatperson's name. Accordingly, if the person can point to circumstances which meet thethreshold in s 200 of the Act, it will follow that the application for review of the namesuppression will be dismissed.[28] Finally, as to relevant principles, we also wish to address some matters ofprocedure. Applications for review may be made many years after the original order,but those who had a right to be heard on the original application or on appeal shouldnevertheless be served with the application and again have the opportunity to be heard.It is our expectation that the prosecutor will be served with any application for reviewand have an opportunity to be heard. In all cases the victim's views should be soughtand communicated to the court in accordance with the Victim's Rights Act 2002. Thatwould usually be done by the prosecutor.Application of principles to media application[29] We start with the reason for the name suppression order. That order was madein the following context. Mr Mitchell's name would have been statutorily suppressed27 B v NZME, above n 18, at [36].if he was dealt with in the Children's Court in 1973.28 Although the orders were madebefore the United Nations adopted its Convention on the Rights of the Child, we haveno doubt that this Court had in mind protecting Mr Mitchell's prospects ofrehabilitation and reintegration.29[30] As to the change of circumstance, the media relies on each of the occasions ofoffending, saying that any or all of them are sufficient for a review of the order.Mr Ryan responds that the Court must discount the 1992 and 2017 offending, asMr Mitchell is appealing his conviction.[31] What is the public interest in publication in this case? There is legitimatepublic interest in how a repeat offender is dealt with in our criminal justice system.For the public to properly consider that issue, it needs details of the offender's criminalhistory. It is relevant to this point that when sentencing Mr Mitchell for the 1992 and2017 offending, Fitzgerald J placed weight upon his earlier offending but did not detailthe 1973 offending in her sentencing notes because of the existing suppression order.30It is consistent with the principles of open justice that the full nature of the matters thatthe Judge took into account in deciding upon a sentence of preventive detention beopen for public consideration.[32] On the other side of the balancing exercise, Mr Mitchell can point to nothingin his present circumstances which justifies continuing name suppression.Mr Mitchell is a serving prisoner. He has been convicted of serious sexual offendingsince the time of the 1973 offending. His name has been published in connection withthat offending. It was clear by as early as 1984 that Mr Mitchell was not rehabilitated.He has no interest in continuing name suppression which weighs against publicationof his name.[33] It follows also that there is no public interest in continuing name suppression,the prospect of rehabilitation having been so comprehensively disappointed in thiscase.28 Child Welfare Act 1925, s 30(2).29 Convention on the Rights of the Child 1577 UNTS 3 (opened for signature 20 November 1989,entered into force 2 September 1990), art 40.30 R v Mitchell, above n 5, at [48].[34] We have also considered whether the outcome would be different wereMr Mitchell to succeed on his appeal, obtain a retrial, and secure not guilty verdicts.We are satisfied that it would not. That is because the public interest in how repeatoffenders are dealt with in our criminal justice system would remain.[35] We are therefore satisfied that the name suppression should be revoked. Forcompleteness, we grant this application irrespective of Mr Mitchell's prospectivesuccess on appeal. We are satisfied that the 1984 offending alone supports revocationfor the reasons set out above.Stay in revocation order[36] The Crown, although supporting the revocation of name suppression, asks usto take a precautionary approach and continue name suppression until after completionof the criminal proceedings against Mr Mitchell.31 This is because of the concern thatpublication of Mr Mitchell's name in connection with this offending in 1973 will causeintense media coverage, and should Mr Mitchell be successful in obtaining a retrial,that media coverage might be called in aid of applications for stay.[37] We agree that a precautionary approach is appropriate and therefore stay theeffect of the order revoking name suppression until final disposition of proceedings.Result[38] The media's application for revocation of the 1973 permanent namesuppression order is granted, but the effect of this order is stayed until final depositionof the criminal proceedings against the second respondent in CRI-2017-004-2810 andCRI-2017-004-2621.[39] We make no order as to costs.Solicitors:Bell Gully, Auckland for ApplicantsCrown Law Office, Wellington for First Respondent31 CRI-2017-004-2810 and CRI-2017-004-2621.