The Court of Appeal decision in full - part 3

...continuation


Section 140


[40] Section 140 of the Criminal Justice Act 1985 empowers the Court to prohibit publication of names or particulars likely to lead to the identification of any person connected with the proceedings in "any report or account relating to any proceedings in respect of an offence". The power is a discretionary one. Where a Police programme of diversion has been completed and the Registrar has granted leave to a Police informant to withdraw the information under s36(1A) of the Summary Proceedings Act 1957, the Registrar, with the consent of the police, may make a permanent order under s140: s36(1B). In all other cases, where disposition of the proceedings is a matter of judicial determination (as will be the case where the person charged is convicted, acquitted or discharged under s19 of the Criminal Justice Act 1985), s140 orders are made by the Judge. The consent of the Police to an order prohibiting publication is not a precondition of the exercise of the jurisdiction. Nor is it determinative. The decision to prohibit publication is a judicial decision which falls to be determined in accordance with law.


[41] In R v Liddell [1995] 1 NZLR 538, 546-7 this Court declined to lay down any code to govern the exercise of a discretion conferred by Parliament in terms which are unfettered by any legislative prescription. But it recognised that the starting point must always be the importance of freedom of speech recognised by s14 of the New Zealand Bill of Rights Act 1990, the importance of open judicial proceedings, and the right of the media to report court proceedings:

* What has to be stressed is that the prima facie presumption as to reporting is always in favour of openness.


[42] Factors it is usual to take into account in deciding whether the prima facie presumption should be displaced in the case include:

* whether the person whose name is suppressed is acquitted or convicted. If acquitted, the Court may more readily apply the power to prohibit publication, although in R v Liddell the Court recognised (in adoption of R v D(G) (1991) 63 CCC (3d) 134) that the public has an interest in acquittals also;

* the seriousness of the offending. Where a person is convicted of a serious crime it will only be in rare cases that name suppression will be ordered. Where the charge is "truly trivial", particular damage caused by publicity may outweigh any real public interest (R v Liddell at 547);

* adverse impact upon the prospects for rehabilitation of a person convicted: see, for example, B v B (High Court Auckland, 4/92, 6 April 1993, Blanchard J);

* the public interest in knowing the character of the person seeking name suppression, an interest which has been acknowledged in cases involving sexual offending, dishonesty, and drug use (see, for example, R v Liddell; M v Police (1991) 8 CRNZ 14; Roberts v Police (1989) 4 CRNZ 429); and

* circumstances personal to the person appearing before the Court, his family, or those who work with him and impact upon financial and professional interests. As it is usual for distress, embarrassment, and adverse personal and financial consequences to attend criminal proceedings, some damage out of the ordinary and disproportionate to the public interest in open justice in the particular case is required to displace the presumption in favour of reporting.


[43] The Judge must identify and weigh the interests, public and private, which are relevant in the particular case. It will be necessary to confront the principle of open justice and on what basis it should yield. And since the Judge is required by s3 to apply the New Zealand Bill of Rights Act 1990, it will be necessary for the Judge to consider whether in the circumstances the order prohibiting publication under s140 is a reasonable limitation upon the s14 right to receive and impart information such as can be demonstrably justified in a free and democratic society (the test provided by s5). Given the congruence of these important considerations, the balance must come down clearly in favour of suppression if the prima facie presumption in favour of open reporting is to be overcome.

Waiver

[44] The appellant claimed in his statement of defence that Wilson & Horton had failed to take the opportunity to be heard on the s140 order on 7 January. Such opportunity was said to arise through the presence in Court of the reporter from the New Zealand Herald.


[45] The High Court accepted that the news media have standing to be heard on applications for suppression orders and to apply for discharge, rescission or variation of them. In this, the Court relied upon two decisions of the High Court in R v L [1994] 3 NZLR 568 and A v B (High Court Auckland, CP 310/96, 11 May 1999, Young J). The appellant's argument that Wilson & Horton had lost its standing to contest the matter by not raising the issue when the application was dealt with was not accepted by the High Court. It found counsel's argument in seeking to distinguish R v L and A v B "unconvincing both in reality and in principle". The news media is "watchdog for the public" in protecting the rights recognised by s14 of the New Zealand Bill of Rights Act 1990 "and accordingly has standing to bring proceedings to judicially review such a decision".


[46] In this Court, Mr Ivory for the appellant submitted that the High Court had not dealt adequately with the argument. It was not suggested that the news media do not have standing to challenge a s140 order by judicial review. It was also accepted that the news media have standing to be heard on an application for the s140 order itself. Mr Ivory accepted that where the news media are not present in Court they are not precluded from seeking judicial review of an order prohibiting publication. He argued, however, that where the news media are present when a s140 application is sought, they have an opportunity to seek to be heard on an application. If they do not avail themselves of it, they have waived their standing to seek judicial review. In cases where they have an opportunity to be heard, there is an obligation to raise a request to be heard before the application is determined.


[47] Mr Ivory accepted that in most cases it will be unrealistic to expect that a reporter present in Court will be in a position to argue the media interest in publication on the spot. It will usually be the case that the application will have to be adjourned after intervention from the reporter.


[48] Mr Ivory was not able to cite any authority in support of his submission that standing is waived if a reporter who is present does not intervene and ask for an opportunity to be heard. In cases of bias or other breach of natural justice, the right to seek judicial review may be lost by waiver if the person seeking judicial review participated in the process and took no objection at the time, at least where the facts and the right to object are known (see Hoffmann-La Roche v Secretary of State for Trade [1975] AC 295, 320 per Lord Denning MR; R v Nailsworth Licensing Justices ex parte Bird [1953] 1 WLR 1046; Thomas v University of Bradford (No. 2) [1992] 1 All ER 964). As these authorities indicate, such waiver (although often incorporated into the substantive rules relating to bias) is properly seen as a consideration relevant to the discretion to grant relief, rather than as vitiating standing.


[49] The conduct of an applicant is relevant to the discretion to grant a remedy. Relevant conduct includes not only failure to object in a timely way at the hearing where the facts are known (R v Nailsworth Licensing Justices, ex parte Bird) but also delay in the bringing and the conduct of judicial review proceedings (R v Aston University Senate, ex parte Roffey [1969] 2 QB 538).


[50] We are unable to accept that the conduct of Wilson & Horton is such as to disentitle it to seek a remedy, if the s140 decision is shown to have been made by error for which judicial review is otherwise available. The reporter was not a participant in the process. While in some circumstances it may be appropriate for the media to be heard at the time the Court is considering an order to prohibit publication, the occasions when such opportunity is a realistic one are likely to be rare. They will generally be cases where the media have sufficient warning of the matter to be in a position to arrange representation and to give notice that they wish to be heard. That will not typically be the case when an application is made in the summary jurisdiction.


[51] The orderly conduct of a busy list court would be unacceptably disrupted if court reporters felt obliged to intervene and ask to be heard in order to preserve the opportunity to seek judicial review. It is unrealistic to suggest, as the appellant does, that "the media have a responsibility to ensure their reporters are both capable of seeking the right to be heard, and trained in the appropriate way of seeking that right". The acknowledgement made by counsel that, where objection is taken by a reporter, an adjournment would have to be sought to enable a representative or counsel to be heard demonstrates that the suggestion is unworkable. It would mean that adjournments would have to be sought against the chance that it may be thought necessary to apply for judicial review. That need may not arise if, on hearing the application, no s140 order is made or if an order is made on grounds which the media accept as sufficient. A request to be heard before a s140 order is determined will usually be premature. In most cases the Police or prosecuting counsel will sufficiently represent the public interest in publication. A decision to seek judicial review is a decision which can only be taken responsibly after consideration of the decision and advice. In most cases it will be the appropriate procedure for someone affected who is not a party to the s140 application. The right to bring a challenge by way of judicial review is not subject to the precondition that the media seeking review must first have participated in the determination.


[52] The High Court was accordingly correct to hold that Wilson & Horton had standing to bring the judicial review proceedings. Its right to do so was not waived.

Error of Law

[53] The statement of claim pleaded that the District Court Judge had granted name suppression in reliance on "the facts advanced by ["L"] in support of the name suppression application". Those facts, it was claimed, did not constitute circumstances in which the Judge could lawfully have made the order prohibiting publication.


[54] The Full Court did not proceed on the basis that the District Court Judge had adopted the submissions on behalf of the appellant as his reasons. The Court was of the view that the Judge "unfortunately . . . gave no reasons for nor made any comment, on his decision to prohibit publication of L's name". That approach was in our view correct. The written submissions were part only of the material before the Judge. It is impossible to know from the Judge's remarks, set out in paragraphs [35] and [38], even as later explained in his memorandum and the 17 January judgment, what factors he considered relevant to the decision to prohibit publication and why those he may have identified made it appropriate to grant the order, notwithstanding the presumption in favour of open justice and the right to receive and impart information recognised by s14 of the New Zealand Bill of Rights Act 1990. There are no reasons which provide any assurance that the Judge addressed these considerations, the concerns of New Zealand Customs, and the public and media interest in publication. Nor is it possible to understand whether in granting the s140 order the Judge took into account the donation made by the appellant.


[55] The High Court indicated that, had the challenge been by way of appeal, it was likely that it would have been successful because the failure to give reasons was an error:

* Because of the nature of a non-publication order and the requirement that it be made only in very special circumstances and for compelling reasons, we consider that it is in the category of judicial decision for which reasons should be given and that the Judge was wrong in not giving them.


[56] Later, the Court repeated its view that reasons should have been given:

* As stated earlier, we are concerned that the Judge did not give any reasons for his decision to prohibit publication of L's name. Even though the suppression order followed a decision to discharge without conviction and even though both applications were not opposed by the Police, the exceptional nature of drug importing calls in our view for statement in Court of the reasons.


[57] It is not clear why the Court, having expressed the view that the failure to give reasons was an error of law which could have been corrected on appeal, did not feel able to grant judicial review on that basis. Instead, it held that, in the absence of any indication that Judge Harvey had given consideration to s14 of the New Zealand Bill of Rights Act 1990, it could only be inferred that he had failed to consider it, in error of law.


[58] The appellant submitted that the High Court was wrong to infer that Judge Harvey had failed to consider s14 of the New Zealand Bill of Rights Act 1990 the Judge was not required to give reasons and it was not error of law for him to fail to do so; Judge Harvey was an experienced Judge, sitting in a Court with a heavy criminal workload and he would have been well aware of the decision in R v Liddell and the need to take into account s14 of the New Zealand Bill of Rights Act 1990. Although it was not put as starkly in argument, the force of the submission is that to infer that the Judge had failed to take s14 into account from the absence of reasons is to require the Judge always to give reasons for a s140 order. Such result is said to be contrary to authority.


[59] Mr Gray, for Wilson & Horton, initially submitted that the High Court had not quashed the District Court decision for failure to give reasons. Instead, he suggested that the High Court had correctly treated the information supplied to the District Court on behalf of the appellant "as if it were the reasons for the decision". It was necessary for the High Court to identify the reasons for the decision "so that the Court can assess whether there is an error of law by reason of misunderstanding of the law, failure to consider a relevant fact or consideration of an irrelevant fact". Since the information supplied to the Court on behalf of the appellant did not refer to s14 of the New Zealand Bill of Rights Act, the Court was right to infer failure to take it into account.


[60] In the alternative, as developed in oral argument, Mr Gray contended that the failure to give reasons was an error of law. The point had not been pleaded. Counsel for the appellant was however content to deal with the point despite the lack of pleadings.


[61] As indicated in paragraph [32] above, it is possible to construct the Judge's reasons from the submissions supplied to him. The Full Court did not purport to do so. Instead, the judgment accepts that, since the Police did not provide any opposing information, "it is implicit that the Judge reached his decision on the basis of the information given to him on L's behalf". That is not the same thing as suggesting that the information is inferred to have been adopted by the Judge as his reasons.


[62] The information supplied was the only factual basis upon which the Judge could have made his decision. In the exercise of the supervisory jurisdiction to review, the High Court can determine whether it was open to the Judge, properly directing himself on the law, to have ordered suppression of the appellant's identity on the basis of the information before him. That was the way in which the fourth ground of review was put in the statement of claim.


[63] Where the facts cannot support a decision, judicial review is available on the partially overlapping grounds of error of law (on the basis that it must be inferred that the decision-maker has misconceived the law) or unreasonableness. Why error of law is to be inferred was described by Lord Radcliffe in Edwards v Bairstow [1956] AC 14, 36:

* If the case contains anything ex facie which is bad law and which bears upon the determination, it is, obviously, erroneous in point of law. But, without any such misconception appearing ex facie, it may be that the facts found are such that no person acting judicially and properly instructed as to the relevant law could have come to the determination under appeal. In those circumstances, too, the court must intervene. It has no option but to assume that there has been some misconception of the law and that this has been responsible for the determination. So there, too, there has been an error in point of law.


[64] The ground of unreasonableness restated by Lord Greene MR in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223, 228-229 may be viewed as coinciding with the second category of error of law recognised in Edwards v Bairstow, although it is usually treated as a distinct ground.


[65] The High Court did not approach matters in that way. It inferred failure to consider s14 of the New Zealand Bill of Rights Act 1990 from the absence of reasons given by the Judge. Such an approach suggests that absence of reasons will always be fatal, at least where there are considerations which it is mandatory for the decision-maker to take into account. It was not necessary for the Court to put matters on that basis. Absence of reasons was not pleaded as a ground of review. The pleaded ground was that upon the facts the Judge could not have granted name suppression if he had properly applied the relevant law and that in such circumstances, error of law could and should be inferred.


[66] On the material before him it was not open to the District Court Judge, correctly applying the law, to make the order prohibiting publication of the appellant's identity. As indicated in paragraph [34] above, counsel for the appellant accepted that only four considerations put forward to the District Court Judge were not answered by the s19 discharge and so were available to be relied upon in considering the name suppression order. Neither separately nor in combination were they considerations which were capable of overcoming the presumptions in favour of open justice and the freedom to exchange information.


[67] The appellant's lack of previous criminal convictions and acceptance of responsibility for his actions are commonplace factors. They will often be present in a name suppression application. Indeed in the present case the appellant's willingness to explain himself and accept responsibility may have been inevitable in circumstances where he was found in possession of drugs in quantities sufficient to raise the statutory presumption of dealing.


[68] The standing of the appellant as "an extraordinarily successful businessman, community leader and philanthropist" was not grounds for suppressing his name in the absence of evidence of special harm to him through publicity. No harm to the appellant was suggested beyond the submission that his standing would make media interest in him "undue". That is tantamount to a submission that successful or prominent members of the community should receive name suppression because there may be media interest in such people. The Court cannot enter into assessment of whether media or public interest is appropriate or "undue". The right to receive and impart information is not limited in the present context according to qualitative and subjective standards adopted by the Judge. It is a right to receive information "of any kind in any form". In cases where some real harm is identified, it may be necessary for the Judge to decide whether the harm which would be caused is disproportionate to the public interest in open justice and the freedom to receive information "of any kind". In such cases it may be necessary for the Judge to weigh the public interest in receiving the particular information. But in the absence of identified harm from the publicity which clearly extends beyond what is normal in such cases, the presumption of public entitlement to the information prevails. Any other approach risks creating a privilege for those who are prominent which is not available to others in the community and imposing censorship on information according to the Court's perception of its value.


[69] The suggestion that charities and businesses with which the appellant is associated might suffer adverse consequences from publicity about his appearance on criminal charges was unsubstantiated and wholly speculative. For the most part the charities to which the appellant has been a generous benefactor are substantial ones. Those identified in the written submissions before the District Court are large museums and universities of international standing. The "philanthropic causes" supported by the appellant were identified as including a home for the aged, and educational institutions. The involvement of the appellant in these organisations appears from the material supplied to the Court to have been mainly as a donor. No facts are indicated in the submissions from which it is possible to identify any real risk of detriment to the organisations identified. Indeed, the submissions to the District Court do not suggest that detriment to them is likely. All that was put in front of the Judge was the tentative submission that:

* In this case the adverse consequences likely to accrue with the publication of the Defendant's name could extend to the various professional and charitable organisations associated with the Defendant's criminal conduct.

* If various business and community reputations suffer damage by such an association then the many years of hard work in building up these reputations will be seriously undermined.


[70] In addition, in the unrecorded oral submissions made to the Judge in Chambers (and related to the High Court by Ms Dyhrberg), it was suggested that the other board members of the company of which "L" is currently a 15% shareholder and the Chief Executive Officer might feel it necessary to remove him from his position, for the good of the stockholders. If so, it was not suggested that the appellant would suffer from loss of the job. (Ms Dyhrberg acknowledged him to be a man of some considerable wealth and said he was phasing out of the Chief Executive's role in any event). Rather, counsel advised the Judge, somewhat vaguely, that if the appellant no longer had that particular income it might affect his ability to make tax effective charitable donations, to the detriment of the charities he has supported in the past.


[71] This speculation as to detriment to the charities of which the appellant is a benefactor was inherently implausible. It provided no basis upon which it could be concluded that the risk of damage outweighed the interests of freedom of information and the principle of open justice.


[72] The fourth ground identified by Mr Ivory from the submissions made to the District Court as justifying name suppression was the risk that the charge of "importing" would be taken by the media or the public to suggest that the appellant had been trafficking in drugs. It is impossible to accept this contention. The charge of importing carries no such meaning. It is unlikely in the extreme that anyone would consider that an individual as wealthy as the appellant would smuggle relatively small quantities of drugs for gain. More importantly, the best protection against speculation is the freedom to receive and impart information recognised by s14 of the New Zealand Bill of Rights Act 1990. A full report of what transpired including the fact that "L" had been discharged without conviction would be a complete answer to baseless rumour and conjecture.


[73] The offending was not trivial. The quantities of drugs involved and the fact that the importation was achieved on two occasions (as the presence of drugs on the appellant's vessel shows) puts the offending out of that category. Singly or in combination, the factors put forward could not have justified the Judge in making the order prohibiting publication of the appellant's name. They are not capable of displacing the presumption in favour of freedom of speech and the principle of open justice affirmed in R v Liddell. It can only be inferred that the Judge misdirected himself and that the decision was taken in error of law. The decision of the District Court should have been quashed in the High Court on these grounds.


Continued in part 4