The Court of Appeal decision in full - part 1

PUBLICATION OF THE NAME OF THE APPELLANT OR DETAILS IDENTIFYING HIM ARE PROHIBITED UNTIL 2.15 PM ON THE DAY FOLLOWING DELIVERY OF JUDGMENT


CA131/00

IN THE COURT OF APPEAL OF NEW ZEALAND




BETWEEN "L"

Appellant

AND WILSON & HORTON LIMITED

First Respondent

AND THE DISTRICT COURT AT OTAHUHU

Second Respondent

AND THE NEW ZEALAND POLICE

Third Respondent


Hearing: 27 July 2000



Coram:

Elias CJ

Richardson P

Keith J

Blanchard J

Tipping J



Appearances:

A Ivory and M J Dyhrberg for Appellant

B D Gray and R Rasalingam for First Respondent

Judgment: 29 August 2000

JUDGMENT OF THE COURT DELIVERED BY ELIAS CJ





Table of Contents

Paragraph Number

Summary [1]

The appeal [5]

History of the proceedings [11]

The decision in the District Court [27]

Section 140 [40]

Waiver [44]

Error of Law [53]

Reasons [74]

Failure to consider the appellant's reputation [88]

Futility of the order [93]

Discretion [96]

Rehearing [97]

Result [100]

Summary

[1] The length of this judgment should not be taken to suggest that the appeal has raised matters of complexity or difficulty. This is a case where the outcome has been inevitable. The Judge in the District Court was plainly wrong when he made an order under s140 of the Criminal Justice Act 1985 prohibiting publication of the appellant's identity when he appeared on criminal charges. No grounds were available to the Judge which could justify departing from the important principle of open justice and the freedom to receive and impart information protected by s14 of the New Zealand Bill of Rights Act 1990. The order was accordingly made in error of law. In addition, the conduct of the proceedings in the District Court was marked by procedural irregularity in breach of the principle of open justice and a failure by the Judge to give reasons for his decision. In the circumstances the failure to give reasons for the s140 order was also an error of law.




[2] Both errors of law plainly required the s140 order to be quashed on judicial review. The absence of any grounds upon which the Judge could have made the order made it inappropriate to remit the matter for rehearing.




[3] Delay in reaching this result was occasioned because application for judicial review was not made until two months after the order was made. In the meantime the parties pursued applications in the District Court which were largely misdirected. Judicial review in the High Court was the appropriate means for Wilson & Horton as a party affected by the order to challenge its legality.



[4] It has been necessary to set out what happened in the District Court in some detail because, regrettably, the Judge did not conduct the proceedings wholly in public and did not correct that irregularity by explaining what information had been supplied to him and what he had taken into account, as would have happened if he had given reasons for his decision. It has also been necessary to deal with a number of additional issues raised in the appeal, in deference to the arguments put forward. But the reasons why the s140 order was rightly quashed by the High Court are dealt with in paragraphs [53] to [87] below.

The appeal

[5] "L" appeals a decision of the High Court quashing an order made in the District Court prohibiting publication of his identity in any report of court proceedings. The High Court decision was made upon application for judicial review of the District Court order brought by the publishers of the New Zealand Herald, Wilson & Horton Limited.




[6] On 7 January 2000, Judge Harvey prohibited publication of "L"'s identity under s140 of the Criminal Justice Act in any report of the court proceedings on that day when "L" was discharged without conviction having pleaded guilty to three charges of importing drugs. The charges, laid under the Misuse of Drugs Act 1975, involved cannabis plant and cannabis resin (classified under the Act as Class C and Class B drugs respectively) found on search of the appellant when he arrived at Auckland airport and on subsequent search under search warrant of his vessel in Auckland harbour. The cannabis plant found in the appellant's possession at Auckland airport weighed 33 grams. Cannabis plant found on the appellant's vessel weighed 47 grams. The cannabis resin found on the vessel weighed 56 grams. The quantity in respect of each charge was sufficient to raise the presumption of dealing under s6 of the Misuse of Drugs Act 1975. It was however accepted by the police that the cannabis was for the appellant's own use and he was dealt with on that basis.




[7] A Full Court of the High Court granted Wilson and Horton's application for judicial review and quashed the s140 order. The Court held in its judgment of 27 June 2000 that the decision to prohibit publication of the name of the appellant or details which might identify him was reached in error of law in two respects:

* it was an "undeniable inference" from the absence of reasons for the decision that Judge Harvey had failed to give consideration to the right to freedom of expression recognised by s14 of the New Zealand Bill of Rights Act 1990

* Judge Harvey had proceeded on the basis of information about the appellant's reputation which was incomplete and did not disclose that he was known in his home country (the United States) to be a user of cannabis and a supporter of reform of the law as to its use; the Judge therefore "was not able to and did not take into account all relevant considerations".

[8] The High Court did not accept a contention on behalf of "L" that Wilson & Horton lacked standing to apply for judicial review. Nor did it accept submissions on behalf of Wilson & Horton that the order was futile given the limited effect of s140 orders (which do not apply to private disclosure and which have no extra-territorial effect) and the fact that "L" is domiciled in the United States. The futility of the order was said to be demonstrated by subsequent overseas and internet publication of the name of the appellant.

[9] The appellant contends that the High Court decision is erroneous in five main respects:

* 1. Wilson & Horton had "waived" any standing to seek judicial review by its failure to seek to be heard on the s140 application before its determination on 7 January;

* 2. decisions of the District Court are not reviewable for failure to give reasons and no inference that s14 of the New Zealand Bill of Rights Act 1990 was not taken into account should have been drawn from the absence of express reference to it by the Judge;

* 3. the Judge did not fail to take into account a mandatory relevant consideration in respect of the material as to the appellant's reputation in the United States as a user of marijuana and supporter of its decriminalisation put in evidence by Wilson & Horton in the High Court;

* 4. the High Court, in the exercise of the discretion to grant relief, should have declined relief because of the failure of Wilson & Horton to act promptly and the lack of a public interest in publication of the appellant's name, rather than determination of the point of principle; and

* 5. it was not open to the High Court on application for judicial review to substitute its judgment on the s140 application for that of the District Court Judge; the application should have been remitted to the District Court for re-determination.

[10] Wilson & Horton supports the judgment in the High Court but argues in addition that the s140 order should have been quashed for futility arising out of the internet and United States media publication of the appellant's name. The High Court is said to have erred in considering that to accede to the futility argument would be to condone breach of court orders because:

* the order under s140 does not have extra-territorial effect;

* section 140 prohibits only publication in any report or account relating to the proceedings;

* there was no evidence that the publication through the internet and overseas resulted from breach of the order; and

* "Citizens and media within New Zealand should not be prevented from knowing and saying what can and most likely was going to be said outside New Zealand".

History of the proceedings

[11] The appellant, "L", lives in the United States but has a daughter and grandchildren living in New Zealand. He pleaded guilty on 6 January 2000 in the District Court at Otahuhu to two charges of importation of a class C drug (cannabis plant), and one charge of importation of a class B drug (cannabis resin). Before pleas were entered in open court, counsel for the appellant and the police prosecutor saw Judge Harvey in chambers, written submissions were then supplied to the Judge on behalf of the appellant. Later, after the pleas had been taken in open court, the Judge remanded the appellant on bail for sentencing on 7 January. He suggested that in the interim the appellant might consider a donation to charity. That possibility had earlier been raised with the Judge in chambers by counsel. The appellant's willingness to make a sizeable donation to charity had already been discussed between counsel and the police prosecutor.




[12] On 7 January, after Judge Harvey had been advised that a donation amounting to NZ$53,000 had been made by the appellant to a drug rehabilitation charity, the appellant was discharged without conviction under s19 of the Criminal Justice Act 1985 and the order prohibiting publication of his name was made under s140 of the Criminal Justice Act 1985. The orders under s19 and s140 were not opposed by the police prosecutor. The Judge was, however, handed a note from New Zealand Customs expressing the view of the Department that a s19 discharge should not be granted for reasons of "fairness and consistency", to avoid any perception that those arriving in New Zealand on "super yachts" were being treated differently from others because of their "status". The decision of the District Court is referred to in more detail in paragraphs [27] to [39] below.

[13] On 7 January Wilson & Horton made application in the Otahuhu District Court for discharge or review of the order prohibiting publication of the appellant's name. Thereafter the matter became complicated by procedural wrangling which may be seen in retrospect to have been to little purpose. The effect was to delay High Court consideration of the correctness of the order prohibiting publication of the name of the appellant for some months. A prompt application for judicial review to the High Court by Wilson & Horton would have saved much time and cost.




[14] Instead, Wilson & Horton continued with the application for discharge of the s140 order in the District Court. The appellant opposed the standing of Wilson & Horton to make such application. The standing point was decided in favour of Wilson & Horton by another District Court Judge on 13 January. The standing judgment of 13 January was appealed to the High Court by appeal lodged on 19 January. On 21 January the appeal was dismissed in the High Court after the appellant lodged notice of abandonment.




[15] In the meantime, Wilson & Horton had filed an application in the District Court at Otahuhu for an order that the Court file be released for inspection and copying. The appellant then applied for stay of this application. At the same time he applied for stay of the application by Wilson & Horton for discharge of the s140 order. After a defended hearing, Judge Harvey on 17 January ordered that the written submissions put before the Court on behalf of the appellant on 6 January be released to Wilson & Horton, on terms which limited their use to counsel for the purposes of the application for discharge of the s140 order. The Judge also declined to stay the application for discharge of the name suppression order and set the application down for hearing. This decision was immediately appealed by the appellant to the High Court by notice of appeal lodged the same day. On 20 January the High Court dismissed the appeal from the District Court judgment of 17 January. The application for discharge of the name suppression order was therefore able to proceed.


[16] The opposed application for discharge of the name suppression order was heard on 27 January. In a reserved decision of 8 February Judge Harvey held that he had no jurisdiction to discharge or review his earlier order made under s140. This decision is the subject of an appeal lodged by Wilson & Horton on 15 February in the High Court. The appeal has been adjourned pending determination of the present proceedings.


[17] On 10 February Wilson & Horton filed an application in the District Court at Otahuhu for discharge of the conditions attached to the release to counsel of the written submissions on behalf of the appellant submitted to the Court on 6 January. This application was resolved by consent order lifting the restrictions in respect of a copy of the submissions from which references which would identify the appellant had been deleted.


[18] On 20 March Wilson & Horton began the proceedings the subject of the present appeal. It applied by way of judicial review to the High Court challenging both the 7 January s140 order prohibiting publication of the appellant's name and the 8 February determination that the Judge lacked jurisdiction to discharge or review the s140 order. By consent, the High Court ordered that the application for review of the 7 January order be heard before the application for review of the 8 February decision that the District Court lacked jurisdiction to discharge the s140 order and the appeal against that determination. The present appeal concerns only the application for judicial review of the 7 January s140 order.


[19] Six grounds of review were pleaded in respect of the decision. The first claimed mistake of material fact as to the appellant's reputation in the United States and failure to take account of the actual reputation of the appellant as a user of marijuana and supporter of marijuana decriminalisation. The second and third grounds of review claimed mistake of fact by the District Court Judge as to the consequences for the appellant in circumstances where the appellant's name had been published in overseas newspapers and on the internet and such publication had been likely throughout. The fourth ground of review claimed that the Judge had made an error of law in misapplying or misunderstanding the principles governing prohibition on publication of names; such principles required exceptional circumstances justifying the restriction notwithstanding "the principles of freedom of speech, open judicial proceedings, the right of media to report judicial proceedings and the principle of equality before the law". As a fifth ground of review Wilson & Horton claimed that the Judge erred in law in according "inappropriate weight" to the appellant's donation to charity. Finally, it was claimed as a sixth ground of review that only the reputation of the appellant in New Zealand was relevant to the grant of a s140 order and that he had no reputation in New Zealand deserving protection.


[20] By his statement of defence, the appellant admitted that he is a supporter of the legalisation of the medical use of marijuana but denied that his use of drugs was "in the public domain in his domicile or elsewhere, or was known to professional and charitable organisations with which he was associated". In addition to denials that the s140 order was made in error, the appellant challenged Wilson & Horton's right to relief on the grounds that it had failed to take the opportunity to be heard at the hearing of the s140 application and upon the grounds that its conduct since was such that it should be denied relief in the discretion of the Court.


[21] The application for judicial review of the 7 January order was heard in the High Court by a Full Court. In its judgment of 27 June, the Court accepted that Wilson & Horton had standing to seek judicial review and was not precluded from obtaining relief because its reporter present in Court had not sought to be heard on the non-publication order.


[22] The Court held that the District Court Judge had erred in law in two respects:

* (a) The Judge gave no reasons for making the non-publication order. There was no indication that he gave consideration to relevant provisions of the Bill of Rights in exercising his discretion

* (b) The Judge was not provided with all material relevant to his decision; therefore he was not able to and did not take into account all relevant considerations.


[23] The second error identified refers to the material put forward in the judicial review proceedings (and not made known to Judge Harvey) as to the reputation of the appellant as a user of cannabis and supporter of cannabis decriminalisation in his home country.


[24] The High Court rejected a contention by Wilson & Horton that the name suppression order should be quashed on the grounds of subsequent publication of the appellant's name overseas and through the internet. It held that to quash the order on those grounds would be to condone the breach of the order by which publication occurred and would be contrary to public policy.


[25] The High Court quashed the order made in the District Court. It declined to remit the application under s140 of the Criminal Justice Act 1985 to the District Court Judge for rehearing on the basis that, with the information available to the High Court, it was able to decide that publication of the appellant's name should not be prohibited. There was no logical basis for remission to the District Court, as the appellant's counsel had urged should follow. Such remission would incur unnecessary expense and further delay. Costs were reserved, with an indication that the appellant would be ordered to pay costs to Wilson & Horton if the parties were unable to agree.


[26] Notice of motion on appeal from the decision of the High Court was filed on 3 July. On 7 July Wilson & Horton gave notice of cross appeal. The points on appeal and the grounds of the cross-appeal have been summarised at paragraphs [9] and [10] above, and need not be repeated.


Continued in part 2