T v NEW ZEALAND POLICE [2020] NZHC 2716

T v NEW ZEALAND POLICE [2020] NZHC 2716 [15 October 2020]ORDER PROHIBITING PUBLICATION OF NAME, ADDRESS,OCCUPATION OR IDENTIFYING PARTICULARS OF APPELLANTPURSUANT TO S 200 CRIMINAL PROCEDURE ACT 2011.IN THE HIGH COURT OF NEW ZEALANDBLENHEIM REGISTRYI TE KŌTI MATUA O AOTEAROATE WAIHARAKEKE ROHECRI-2020-406-10[2020] NZHC 2716TvNEW ZEALAND POLICEHearing: 14 September 2020Appearances: M Zintl for the AppellantJ R Crawford for the RespondentJudgment: 15 October 2020JUDGMENT OF COOKE J[1] The appellant appeals against the decision of the District Court at Blenheimdeclining interim name suppression pending a further hearing on 4 November 2020.1[2] On 21 September 2020 the appellant pleaded guilty to one representativecharge of supply of methamphetamine.2 He is currently on bail awaiting sentence. Hehas also been charged with wounding with intent to cause grievous bodily harm.3 The1 New Zealand Police v T [2020] NZDC 19201.2 Misuse of Drugs Act 1975, s 6(1)(c) and (2).3 Crimes Act 1961, s 188(1), maximum penalty 14 years' imprisonment.appellant is currently awaiting a sentence indication on a reduced charge of injuringwith intent to injure.4[3] The appellant appeals the decision declining interim name suppression on thegrounds the Judge failed to take into account the right to a fair trial. The Crownacknowledges the appellant's fair trial rights and takes a neutral position on the appeal.Factual background[4] The methamphetamine charges arose out of a police investigation into thewounding with intent offending. It is alleged that the appellant shot the complainantin the lower abdomen with a crossbow at close range outside his family's home. Inexplanation the appellant admitted to shooting the complainant but said he was sick ofthe complainant coming over to his family's home, intimidating him and scaring hispartner and children and just wanted it to stop.[5] As part of the police investigating into the shooting, police recovered textcommunications from the appellant's phone. An analysis of the text messagesindicated he had offered to supply methamphetamine on 13 separate occasionsbetween 30 May 2020 to 13 June 2020. This led to the methamphetamine charges.[6] It is also relevant that it is possible that the wounding with intent to causegrievous bodily harm may be resolved without a trial if a sentencing indication is givenand accepted. A hearing on that matter is scheduled on 4 November 2020. Theapplication for suppression is only until that hearing.District Court suppression decision[7] The Judge noted the defence submission that principal reasons for grantingname suppression were to protect the appellant's fair trial rights.5 Weighing againstthat consideration was that the appellant's name had already been published inassociation with the charges on 3 September and the interests in dealing with drug4 Section 189(2), maximum penalty five years' imprisonment.5 New Zealand Police v T, above n 1, at [6].offences "in an open and transparent way".6 To that, the Judge noted the possibilityof further complainants who may wish to come forward following publication of thefact of the appellant's guilty plea. Finally, the Judge recognised that the woundingwith intent charge was quite different and was unrelated to the drug dealing charges.For those reasons, the Judge declined to grant interim name suppression.Relevant law[8] Courts may suppress the identity of a defendant under s 200 of the CriminalProcedure Act 2011. The starting point for a s 200 analysis is the principle of openjustice.7 Courts have consistently emphasised a prima facie presumption in favour ofopenness in reporting.8 The Court may only order name suppression if satisfied thatpublication would be likely to result in one of the situations listed in s 200(2). Theappellant's application for name suppression was on the grounds that publicationwould create a real risk of prejudice to a fair trial.9[9] The court must be satisfied that one of the consequences listed in s 200(2)would be likely to follow if no order were made.10 If one of the threshold groundsunder s 200(2) is met, the Court must determine whether to exercise discretion tosuppress the defendants name.11 There is a high threshold to be reached beforepublication is justified,12 and the balance must "come down clearly in favour ofsuppression".13[10] Section 283 of the Criminal Procedure Act 2011 provides that an appeal maybe brought as of right against a name suppression order decision. On appeal, differentapproaches apply to the different stages of the test. The first stage is a factual6 At [7].7 Erceg v Erceg [2016] NZSC 135, [2017] 1 NZLR 310 at [2].8 R v Liddell [1995] 1 NZLR 538, (1994) 12 CRNZ 458 (CA) at 466 and 546. See also Proctor v R[1997] 1 NZLR 295 (CA); Robertson v Police [2015] NZCA 7; and Re Victim X [2003] 3 NZLR220 (CA).9 Section 200(2)(e).10 Fagan v Serious Fraud Office [2013] NZCA 367.11 At [9]; and Robertson v Police, above n 8, at [39] and [41].12 Robertson v Police, above n 8, at [41]–[44].13 Lewis v Wilson & Horton Ltd [2000] 3 NZLR 546 at [43]; recently followed in D (CA443/2015)v Police[2015] NZCA 541, (2015) 27 CRNZ 614 at [12].assessment and subject to the ordinary approach to appeals.14 If the appellate court'sopinion is different from the decision appealed, the decision is wrong even if it was aconclusion "on which minds might reasonably differ".15 The second stage isdiscretionary and subject to the approach reserved for appeals against discretion.16Analysis[11] Although the matter is finely balanced, and I have decided that the appealshould be allowed and that interim name suppression should be continued until thesentencing indication hearing scheduled for 4 November 2020. I do so to preserve fairtrial rights.[12] In particular I accept Mr Zintl's submission that there is significant localconcern about drug dealing, and the possibility of media attention given to theappellant's conviction and sentence as a consequence. It is conceivable that membersof the jury pool will have seen that publicity if there is a trial on the wounding withintent to do grievous bodily harm early next year.[13] I asked Ms Crawford to outline her views on that question given Mr Zintl'ssubmission. She agreed that there was a prospect of prejudice to the trial arising fromsuch factors. She explained that the Crown would have consented to suppressionorders were it not for the fact that the Crown will seek to contend that the drugoffending is relevant to the alleged wounding with intent to cause grievous bodilyharm charge. She indicated that the Crown's ability to refer to the drug offendingwould likely be a matter that will need to be determined pre-trial, however. Given thatacceptance, however, it seems to me that the fair trial concerns are legitimately raisedsuch that the statutory threshold for suppression is met.[14] The period of suppression sought is short, only through to 4 November, andthere is a prospect that the remaining charge can be resolved following a sentencingindication. If that were to occur the principles of open justice will be satisfied by thereporting on the outcome of both sets of offending in a fair and transparent way. To14 Austin, Nichols and Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141.15 At [16].16 B v R [2011] NZCA 331 at [9]; and Lawrence v R [2011] NZCA 272 at [11].continue suppression for a short period of time until that point seems to me to beappropriate.[15] Accordingly the appeal is allowed and the appellant is granted suppressionthrough to 4 November 2020.Cooke JSolicitors:O'Donoghue Webber, Nelson for Respondent