SHAYNE DUDLEY REGINALD HAYWARD v POLICE [2019] NZHC 848

SHAYNE DUDLEY REGINALD HAYWARD v POLICE [2019] NZHC 848 [16 April 2019]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2019-404-95[2019] NZHC 848BETWEEN SHAYNE DUDLEY REGINALDHAYWARDAppellantAND NEW ZEALAND POLICERespondentHearing: 16 April 2019Appearances: J Holden for the AppellantJ C Bull for the RespondentJudgment: 16 April 2019ORAL JUDGMENT OF GAULT JSolicitors:Mrs J Holden, Barrister, Auckland (jen@jenniferholden.co.nz)Ms J C Bull, Meredith Connell, Office of the Crown Solicitor, Auckland[1] The appellant, along with his brother, is charged with the theft of a rathervaluable gnome, worth approximately $55,000. The gnome was stolen from anAuckland art gallery. The theft attracted considerable media attention.[2] In addition, the appellant is also charged with possession of a pipe used formethamphetamine and with possession of cannabis.[3] The appellant and his brother applied for interim name suppression in theDistrict Court under s 200(4) of the Criminal Procedure Act 2011. The grounds forsuppression were that publication would cause extreme hardship to the appellant'sniece – because she would be bullied at school as she shares his last name – andbecause publication would affect their fair trial rights. Judge C M Ryan, who heardthe application, declined to grant name suppression, finding there was no arguablecase for either ground.1Alleged facts[4] The Police allege that the appellant and his brother were outside the Gow andLangsford Art Gallery in Auckland Central around 12:30 am on Christmas day lastyear. They are alleged to have waited in the area for approximately an hour, beforeapproaching the gnome and breaking it free from its concrete plinth. They then tookit away in their car.[5] Police later conducted a search of the appellant's address on 24 January 2019.They found a plastic container containing cannabis next to the appellant's bed, andtwo glass pipes with a white crystal residue under the living room TV cabinet. Thepolice allege the pipes are used to smoke methamphetamine. The appellant said to thepolice that he uses them for aromatherapy.District Court decision[6] Judge Ryan found there was no arguable case in respect of either extremehardship or a risk to fair trial rights.1 R v H and H DC Auckland CRI-2019-004-746, 20 February 2019.[7] In relation to the risk of extreme hardship to the appellant's niece, the Judgeconsidered that it was not arguable in this case, for the following reasons:(a) The appellant's name is a common one.(b) Most schools have anti-bullying policies and in situations like this arevery protective.(c) There is no evidence that the school the child attends is one whereteasing and bullying is so rife that there is a real risk she may be bullied.(d) There is no evidence that she is more prone to being upset by school-yard remarks than any other child.[8] In terms of the risk of prejudice to the appellant's trial rights, the Judge heldthere was no arguable case, for the following reasons:(a) There is a presumption of open justice.(b) Publicity of a defendant's name, even in serious cases, is a commonoccurrence. There must be more than an assertation of a risk to fair trialrights.(c) Juries are often empanelled in high profile cases, and any publicity isdealt with by jury directions.Approach on appeal[9] A decision on name suppression involves a two-stage analysis.2[10] First, the Judge must be satisfied there is an arguable case that one of thethreshold grounds in s 200(2) of the Criminal Procedure Act exists. These grounds2 Robertson v Police [2015] NZCA 7 at [39]; and Fagan v Serious Fraud office [2013] NZCA 367at [9].include that publication would cause extreme hardship to the person charged, create areal risk of prejudice to a fair trial, or endanger the safety of any person.3[11] Secondly, if satisfied that one of these grounds exists, the Judge must make adiscretionary assessment as to whether a name suppression order is necessary. At thisstage of the analysis, the Judge weighs the competing interests of the applicant and thepublic, taking into account such matters as whether the applicant has been convicted,the seriousness of the offending, the views of the victim(s) and the public interest inknowing the character of the offender.[12] On appeal, the Court must approach the first stage of the analysis as a generalappeal,4 and the second stage of the analysis as an appeal against the exercise of adiscretion.5 In a general appeal, the appellate court may come to its own view on themerits. On an appeal against discretion, however, the appellant must establish that theJudge has acted on some wrong principle, taken into account an irrelevant factor,ignored a relevant factor or was plainly wrong.6Submissions[13] Mrs Holden, counsel for the appellant, says the Judge erred in finding therewas no arguable case for extreme hardship on the grounds advanced, noting there is alower threshold under s 200(4), i.e. an application for suppression on a firstappearance, than on an ordinary or later application. She submits there was asufficiently arguable case that there would be extreme hardship to the appellant'sniece. She also submits there is a real risk of prejudice to a fair trial but that was nother main focus.[14] In addition, the appellant seeks leave to adduce new evidence, and effectivelya new ground for suppression, being his own mental health. He seeks to produce anaffidavit from a "good friend", who testifies to his fragile mental health. The appellant3 Criminal Procedure Act 2011, ss 200(2)(a), (d), and (e).4 Meaning it is determined in accordance with the principles in Austin, Nichols & Co Ltd v StichtingLodestar [2007] NZSC 103, [2008] 2 NZLR 141.5 NN v Police [2015] NZHC 589 at [13]-[14].6 Saggers v R [2012] NZCA 560 at [25].submits the new evidence should be admitted because it is both fresh and credible, andit is in the interests of justice that it be admitted.[15] Ms Bull, counsel for the respondent, submits there is no arguable case thatthere is extreme hardship to either the appellant or his niece. The respondent submitsthat extreme hardship is a very high bar to meet, and there is no evidence that suggeststhere is even an arguable case here.[16] On the appellant's new evidence, the respondent did not oppose it beingadmitted. However, Ms Bull submits it discloses no grounds for a finding of anarguable case for extreme hardship. She submitted that there needs to be a connectionbetween a mental health issue and publication, and that connection is lacking on theevidence. The respondent also submits it is problematic that the appellant himself hasnot filed any affidavit.[17] In respect of hardship to the appellant's niece, the respondent simply saysJudge Ryan was correct in her finding for the reasons she gave. In addition, therespondent points to two cases, Moors v Police and R v H, where there was a realprospect a child would be bullied, and the relevant offending was much more serious,and suppression was still declined.7The further evidence[18] The affidavit is filed by a self-described "good friend" of the appellant.She states that the appellant has struggled with his mental health, and that publicationwould adversely affect his reputation in Ohope, where he used to live, his reputationas an artist, affect his three sons, and consequently negatively impact his fragile mentalhealth.[19] The respondent does not object to the admission of this evidence. I will allowthe evidence in, but, for the reasons that follow, I do not consider it helpful.7 Moors v Police [2017] NZHC 1067; and R v H HC Auckland CRI-2016-92-5315, 31 August 2016.Decision[20] What is at issue here is whether there is an arguable case that publication ofthe appellant's name would cause extreme hardship to either the appellant or his widerfamily.[21] In Robertson v Police, the Court of Appeal stated that the threshold of"extreme hardship" requires a very high level of hardship:8As regards the level of hardship required by the phrase "extreme hardship",we consider it clear beyond argument that it connotes a very high level ofhardship. 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 againAn assessment of whether the contended hardship is "extreme" cannot takeplace in a vacuum. It is self-evidently contextual and in our view must entaila relative comparison between the contended hardship and the consequencesnormally associated with a defendant's name being published. It must besomething beyond the ordinary associated consequences.[22] In terms of extreme hardship to the appellant's niece, I agree with Judge Ryanand the respondent that there is no arguable case. I echo Judge Ryan's reasons in thisrespect; I do not consider more needs to be said. As to hardship to any other familymember, such as the appellant's sons, I do not have any evidence to support there beingan arguable case beyond the new affidavit which is not sufficient.[23] In terms of hardship to the appellant, I also consider there is no arguable case.The affidavit filed does not disclose any evidence that the appellant will sufferconsequences different from any other person who faces a serious charge. WhileI accept he may struggle with his mental health, as many people do, I would requirestronger evidence to reach the threshold of an arguable case. I accept such evidencethat is normally adduced on strong applications, such as psychiatrists' reports, may notbe available for an early application such as this was in the District Court. But at thevery least the appellant would have needed to file a compelling affidavit or an affidavitfrom a medical professional. The Courts often decline name suppression in far morecompelling cases than this.8 Robertson v Police [2015] NZCA 7 at [48]-[49].[24] Even if there were an arguable case, weighing the competing interests of theapplicant and the public, including open justice, I do not consider that an interim namesuppression order is necessary.Result[25] The appeal is dismissed.________________________________Gault J