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NZME Publishing Limited & Others v/s The Queen & Another


Company & Directors' Information:- E B C PUBLISHING PRIVATE LIMITED [Active] CIN = U22121UP1985PTC007483

Company & Directors' Information:- S S PUBLISHING COMPANY PRIVATE LIMITED [Active] CIN = U74899DL1968PTC004168

Company & Directors' Information:- I-QUEEN PRIVATE LIMITED [Active] CIN = U74999KL2017PTC048635

Company & Directors' Information:- P H PUBLISHING PRIVATE LIMITED [Under Process of Striking Off] CIN = U22219DL2008PTC177755

    CA No. 247 of 2018

    Decided On, 11 September 2018

    At, Court of Appeal of New Zealand

    By, THE HONOURABLE MR. JUSTICE WINKELMANN
    By, THE HONOURABLE MR. JUSTICE CLIFFORD & THE HONOURABLE MR. JUSTICE GILBERT

    For the Appellants: T.C. Goatley, Advocate. For the Respondents: R1, C.A. Brook, M.W. Ryan, J.M. Hudson, Advocates.



Judgment Text

REASONS OF THE COURT

(Given by Winkelmann J)

[1] We are asked to exercise a power under s 208 of the Criminal Procedure Act 2011 to revoke an order this Court made in 1973 permanently suppressing Mr Mitchell’s name in connection with offending in that year.

[2] The applicants are three media organisations (we refer to them collectively as the media). They say that because of Mr Mitchell’s reoffending there is public interest in that earlier offending so that name suppression should be revoked. Mr Mitchell responds that the existing suppression order should stand because he has ordered his life on the longstanding understanding that the name suppression is permanent, and because 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 was sentenced 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 reasons for that name suppression it is common ground between the parties we should proceed on 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 suppression was 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 assault arising 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 multiple charges against two different victims arising from offending in 1992 and 2017.[5] Evidence of the 1984 offending was admitted as propensity evidence at Mr Mitchell’s trial. Mr Mitchell does not have name suppression in respect of the 1984, 1992 or 2017 offending.

[6] The fact of the 1973 offending was taken into account, but not referred to explicitly, by Fitzgerald J when sentencing Mr Mitchell to preventive detention, with a minimum term of 10 years’ imprisonment for the 1992 and 2017 offending.[6]

Jurisdiction and nature of power to review

[7] This is an application for review under s 208(3) of the Criminal Procedure Act 2011 (the Act). The 1973 order was made under the provisions of s 46 of the Criminal Justice Act 1954, well before the Act came into force. However, s 21 of the Interpretation Act 1999 operates so that name suppression orders under earlier legislation continue in force as if made under s 200 of the Act, and are therefore amenable for review under s 208 of that Act.[7] By virtue of s 210 of the Act, the media have standing to apply for such a review.

[8] Prior to the Act the law in relation to the ability to review permanent suppression orders was unsatisfactory. Section 138 of the Criminal Justice Act 1985 gave the courts authority to review permanent suppression orders made in respect of evidence or submissions but that statutory power of review did not extend to name suppression orders except where that order was made to protect the identity of a witness.[8] While the High Court could use its inherent jurisdiction in that latter circumstance, the District Court did not have inherent jurisdiction and so could not do the same.[9] It was against this background that the Law Commission recommended the inclusion in legislation of a power to review name suppression orders.[10] Section 208(3) of the Act therefore contains a general power to review suppression orders. It provides:

208. Duration of suppression order and right of review

...

(3) A suppression order may be reviewed and varied by the court at any time.

[9] Under the Act an application for review is one of the three principal ways a suppression 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 in the District Court.

[10] Appeal will usually be the appropriate procedural pathway where the merits of the original order are challenged. Under the Act an appeal under s 283 may be brought by the original applicant for the order, the prosecutor or a member of the media.[11] Although appeal is the usual pathway to challenge the making of an order, judicial review may be appropriate for interested parties who have no standing to pursue an appeal, such as the victim of the offence. That pathway of course is not available where the suppression orders are made in the High Court as there is no ability to 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 to the proper approach to an application to revoke permanent name suppression can be gained from case law, and from the statutory scheme.

[12] Prior to the enactment of s 208, permanent name suppression could be revoked although that seems to have occurred on only one occasion, in R v Burns (Travis).[12] In Burns media interests sought to revoke a secret witness’ permanent name suppression. As to the proper approach to such an application, this Court said:[13]

The Courts will be most difficult to persuade that the name of a secret witness should 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 applicant Mr Taylor was pursuing a private prosecution against 'Witness C' for attempting to pervert the course of justice, and perjury.[15] He sought to have Witness C’s name suppression revoked because he said it would assist with his investigation and on the grounds that the principles of freedom of expression and open justice weighed strongly in 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 this Court in Burns that only in exceptional circumstances will a final suppression order be varied.

[14] An application under s 208 was also addressed in the still more recent case of B v NZME Publishing Limited.[18] In that case NZME sought revocation of an offender’s name suppression in circumstances where he had, some years later, gone on to have a career in local government. Ellis J rejected an argument that the test under s 208 was whether the applicant had shown exceptional circumstances. She said:[19]

That phrase is merely descriptive of the (obvious) point that it will only be in such truly exceptional circumstances that the suppression of the name of a secret witness or Police informant will be lifted or revoked. That is because the policy reasons for granting such suppressions are unlikely to change over time. This was made clear by the Court of Appeal in R v Burns (whence the 'truly exceptional circumstances' term originated).

[15] Ellis J also rejected an argument that a revocation decision should be viewed simply as the re-exercise of the original suppression power.[20] In a careful analysis she said that the proper approach was rather to inquire whether there has been a 'triggering' change of circumstances that might warrant revisiting the name suppression order.[21] If satisfied there is such a change of circumstance, the question must be whether the change in circumstances are such that they might justify taking away the right to name suppression. This entails a balancing exercise whereby the change of circumstance is balanced against the existing right or expectation to which the original name suppression order gave rise.[22]

[16] We agree with Ellis J that when asked to revoke an order for permanent name suppression under s 208, the court’s task will not usually be to address whether the original order should have been made. Challenges to the initial making of an order will typically be made by way of appeal or judicial review, as discussed at [9]. We also agree with Ellis J that most applications under s 208 will be based, as is this one, on a change of circumstance. A party to the proceeding in which the permanent suppression order was made, and any media representative who had a proper opportunity of being heard, would be precluded from applying to revoke the order absent a change of circumstance. To allow them to do so, absent a change of circumstance, would permit a collateral attack on the correctness of the judgment - an abuse of process. There is a remaining issue, one we do not need to decide, as to whether s 208 is an available procedural pathway for those who were not party to the original decision and who do not have standing to appeal a suppression order, to nevertheless challenge whether the order was properly made.

[17] We do not however agree that the threshold this Court speaks of in Taylor, of exceptional circumstances, applies only in cases concerning secret witnesses. It is true that both Burns and Taylor concerned applications to revoke name suppression orders to support witness anonymity and that in Burns this Court’s remarks were connected to that particular circumstance. But this Court in Taylor did not limit its comments to the secret witness or police informant situation, as was made clear when explaining the high threshold:[23]

The reasons for that constraint are obvious: those who give evidence (and those others involved, such as complainants and defendants) are entitled to a due degree of permanence and finality in relation to suppression orders. Such orders are not made lightly in the first place, but only for very good reason. It would be inimical to the criminal justice system if such orders were then able to be discharged readily and without a very significant persuasive threshold first being met.

[18] That approach is undoubtedly correct. Because of the principles of freedom of expression and the requirements of open justice, the courts are slow to grant permanent name suppression. Whether addressed under the Criminal Justice Act or the Criminal Procedure Act, the threshold for permanent suppression has always been very high.[24] It follows that good reason must be shown for the revocation of a permanent name suppression order. The passage of time in itself will not be good reason. Nor will the type of changed circumstance which is an ordinary concomitant of the passing of time. A court necessarily has those matters in contemplation when granting permanent name suppression. It also follows we think, that something out of the ordinary, in other words exceptional, will need to be shown to justify revocation of the order.

[19] We prefer not to use the expression 'triggering change of circumstance' as the notion of a triggering change might be thought to suggest a single or sudden event. It could well be that it is an accumulation or series of events that amounts to a change of circumstance that justifies revocation.

[20] The change of circumstance relied upon must however bear upon the public interest in publication of the name. Relevant here will be the principles of open justice and freedom of expression. We do not exclude the possibility that other public interest considerations might also be relevant.

[21] We consider that the exercise for the court is to determine whether in light of that change of circumstances, the public interest in publication of the name outweighs the public interest, and the subject’s interest (we refer to the person whose name is suppressed 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 the opportunity to rehabilitate themselves without the stress that can attend name publication. It would be undermining of that intended outcome were the young person to have over his or her head that, if they do successfully rehabilitate, the order could well be revoked because the benefit of the order is spent. In such a case there is therefore both a public and private (the subject’s) interest in the permanence of the order.[25]

[23] The converse proposition is that if the change of circumstance is such as to make clear that the hope and expectation of rehabilitation was never realised, that might weigh in favour of revocation - in such a case there is no public interest in the continuation of the order. It may be that the change of circumstance is such that the subject also has no private interest that justifies the order continuing.

[24] In secret witness cases such as Burns and Taylor, other policy considerations will come into play. This Court discussed these in Taylor in the context of a prison informant case:[26]

[T]here are sound policy reasons why courts grant incarcerated Crown witnesses suppression, in particular the prevention of retribution to the witness or his or her family.

[25] Mr Ryan for Mr Mitchell argued that the time that has passed since the original order is relevant under s 208. As addressed above however, there is nothing in the fact of delay in and of itself that is relevant to such an application.

[26] Mr Ryan also argues that the public interest in finality in litigation should be weighed. We agree that is so. That is why we consider that it is only in exceptional circumstances that permanent suppression will be revoked. However there is a statutory 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 208 necessarily diminishes the reasonableness of any expectation that an order will stay in force for ever.[27] We would not wish to overweigh this consideration. It seems to us that 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 only be disappointed where there is a change of circumstance which means that the public interest in publication outweighs the public and the subject’s interest in continuing name suppression. The public interest in continuing name suppression has as 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 be determined. The lifting of the name suppression will result in publication of that person’s name. Accordingly, if the person can point to circumstances which meet the threshold in s 200 of the Act, it will follow that the application for review of the name suppression will be dismissed.

[28] Finally, as to relevant principles, we also wish to address some matters of procedure. 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 should nevertheless 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 review and have an opportunity to be heard. In all cases the victim’s views should be sought and communicated to the court in accordance with the Victim’s Rights Act 2002. That would 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 made in the following context. Mr Mitchell’s name would have been statutorily suppressed if he was dealt with in the Children’s Court in 1973.[28] Although the orders were made before the United Nations adopted its Convention on the Rights of the Child, we have no doubt that this Court had in mind protecting Mr Mitchell’s prospects of rehabilitation and reintegration.[29]

[30] As to the change of circumstance, the media relies on each of the occasions of offending, 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, as Mr Mitchell is appealing his conviction.

[31] What is the public interest in publication in this case? There is legitimate public 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 criminal history. It is relevant to this point that when sentencing Mr Mitchell for the 1992 and 2017 offending, Fitzgerald J placed weight upon his earlier offending but did not detail the 1973 offending in her sentencing notes because of the existing suppression order.[30] It is consistent with the principles of open justice that the full nature of the matters that the Judge took into account in deciding upon a sentence of preventive detention be open for public consideration.

[32] On the other side of the balancing exercise, Mr Mitchell can point to nothing in his present circumstances which justifies continuing name suppression. Mr Mitchell is a serving prisoner. He has been convicted of serious sexual offending since the time of the 1973 offending. His name has been published in connection with that 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 publication of 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 this case.

[34] We have also considered whether the outcome would be different were Mr 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 repeat offenders are dealt with in our criminal justice system would remain.

[35] We are therefore satisfied that the name suppression should be revoked. For completeness, we grant this application irrespective of Mr Mitchell’s prospective success on appeal. We are satisfied that the 1984 offending alone supports revocation for the reasons set out above.

Stay in revocation order

[36] The Crown, although supporting the revocation of name suppression, asks us to take a precautionary approach and continue name suppression until after completion of the criminal proceedings against Mr Mitchell.[31] This is because of the concern that publication of Mr Mitchell’s name in connection with this offending in 1973 will cause intense 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 the effect of the order revoking name suppression until final disposition of proceedings.

Result

[38] The media’s application for revocation of the 1973 permanent name suppression order is granted, but the effect of this order is stayed until final deposition of the criminal proceedings against the second respondent in CRI-2017-004-2810 and CRI2017-004-2621.

[39] We make no order as to costs.

------------------------------------------------------------------

[1] 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.

[6] At [48] and [88].

[7] Taylor v C [2017] NZCA 372 at [22]–[23], citing Genge v Chief Executive of the Department of Corrections [2015] NZCA 157 at [23]. At the time the suppression order was made, s 46 of the Criminal Justice Act 1954 governed matters of suppression. Section 17 of the Criminal Justice Amendment Act 1975 subsequently amended s 46 and inserted ss 45B and 45C of the Criminal Justice Act 1954. These provisions were then repl

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aced by ss 138 to 140 of the Criminal Justice Act 1985. The existing suppression provisions in the Criminal Procedure Act 2011 replace ss 138 and 140 of the Criminal Justice Act 1985. [8] R v Burns (Travis) [2002] 1 NZLR 387 (HC) at [26]. While Chambers J accepted there was jurisdiction to review a witness suppression order under s 138, there was doubt in that case as to whether 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]. [11] A member of the media to whom s 210(1) applies. [12] R v Burns (Travis) [2002] 1 NZLR 387 (CA). [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). [20] At [26]. [21] At [25]. [22] At [28]. [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 publication would likely lead to extreme hardship of the defendant or connected person, cast suspicion on another, undue hardship on the victim, create a risk of prejudice to a fair trial, endanger the safety of any person, lead to identification of another person whose name is suppressed, or prejudice the maintenance of the law or security of New Zealand. [25] For a full discussion of the considerations affecting name suppression of young offenders, see this Court’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). [27] B v NZME, above n 18, at [36]. [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]. [31] CRI-2017-004-2810 and CRI2017-004-2621.
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