The Court of Appeal decision in full - part 4

...continuation

Reasons

[74] The Full Court considered that the case was one where the Judge was obliged to give reasons. It did not grant judicial review on that basis, however, although it indicated that if the matter had come before it on appeal it might well have granted the appeal on the grounds of lack of reasons alone. It is not clear why the Full Court drew the distinction.


[75] There is no invariable rule established by New Zealand case law that courts must give reasons for their decisions. That is a proposition which may seem surprising. Many may think that it is the function of professional Judges to give reasons for their decisions. And in recent years the general proposition has been steadily eroded in the United Kingdom and Australia, although in Canada the traditional view seems still to be adhered to (see R v Harrow Crown Court: ex parte Dave [1994] 1 WLR 98; Eagil Trust Co Ltd v Pigott-Brown [1985] 3 All ER 119; Flannery v Halifax Estate Agencies Ltd [2000] 1 WLR 377 (CA);. Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378, 386 per Mahoney JA; Public Service Board of New South Wales v Osmond (1986) 159 CLR 656, 667 per Gibbs CJ; Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247; R v Barrett [1995] 1 SCR 752, 753; R v R [1996] 2 SCR 291, 336).


[76] There are three main reasons why the provision by reasons by Judges is desirable. Others are identified in Singh v Department of Labour (1999) NZAR 258, 262-3. Most importantly, the provision of reasons by a Judge is an important part of openness in the administration of justice. The principle of open justice in criminal proceedings is affirmed by s138(1) of the Criminal Justice Act 1985 and s25(a) of the New Zealand Bill of Rights Act 1990, but it is far older in observance and extends beyond criminal proceedings (although it is of particular importance there). It yields only where the application of the general rule in the particular circumstances of the case would frustrate the interests of justice, and then only to the extent necessary: (Broadcasting Corporation v Attorney-General [1982] 1 NZLR 120, 123 per Woodhouse P; Attorney-General v Leveller Magazine Ltd [1979] AC 440, 450 per Lord Diplock; Police v O'Connor [1992] 1 NZLR 87, 95-96 per Thomas J). There were no special circumstances in the present case which required modification of the principle of open justice.


[77] Moreover, the lack of reasons in the present case failed to correct irregularities in the conduct of the hearing. It was understandable that the Judge should have acceded to the request from the police prosecutor to see counsel for the appellant and the prosecutor in Chambers. But it was a course which carried special risks for the principle of open justice. It made it incumbent on the Judge to take care in communicating his eventual decision. In the event, the interests of open justice were not served. As the transcript of the proceedings indicates, the public exchanges between counsel, the police prosecutor and the Judge proceeded by allusion to the written material and what had transpired in Chambers. The case would have been largely unintelligible to anyone present in Court. It effectively proceeded on a basis understood only by those who had participated in the Chambers hearing.


[78] It was a breach of the principles of open justice that the submissions on disposition in a criminal case were received in private and the summary of facts was taken as read in circumstances where the Judge did not then refer to them in reasons delivered in open court. Submissions on disposition may be received in writing and on a confidential basis only in exceptional circumstances (Broadcasting Corporation v Attorney-General at 122-123 per Woodhouse P; at 127-128 per Cooke J; at 132-133, 135-136 per Richardson J). As a result of the way the matter was handled, the exercise of judicial function was effectively withheld from public scrutiny.


[79] The principle of open justice serves a wider purpose than the interests represented in the particular case. It is critical to the maintenance of public confidence in the system of justice. Without reasons, it may not be possible to understand why judicial authority has been used in a particular way. The public is excluded from decision-making in the courts. Judicial accountability, which is maintained primarily through the requirement that justice be administered in public, is undermined.


[80] The second main reason why it said Judges must give reasons is that failure to do so means that the lawfulness of what is done cannot be assessed by a court exercising supervisory jurisdiction. Those who exercise power must keep within the limits imposed by law. They must address the right questions and they must correctly apply the law. The assurance that they will do so is provided by the supervisory and appellate courts. It is fundamental to the rule of law. The supervisory jurisdiction is the means by which those affected by judicial orders, but who are not parties to the determination and who have no rights of appeal or rehearing, obtain redress. Their right to seek such review is affirmed by s27 of the New Zealand Bill of Rights 1990. It is important that sufficient reasons are given to enable someone affected to know why the decision was made and to be able to be satisfied that it was lawful. Without such obligation, the right to seek judicial review of a determination will in many cases be undermined.


[81] The reasons may be abbreviated. In some cases they will be evident without express reference. What is necessary, and why it is necessary was described in relation to the Civil Service Appeal Board (a body which carried out a judicial function) by Lord Donaldson MR in R v Civil Service Appeal Board, ex parte Cunningham [1991] 4 All ER 310, 319:

* . . . the board should have given outline reasons sufficient to show to what they were directing their mind and thereby indirectly showing not whether their decision was right or wrong, which is a matter solely for them, but whether their decision was lawful. Any other conclusion would reduce the board to the status of a free-wheeling palm tree.


[82] The third main basis for giving reasons is that they provide a discipline for the Judge which is the best protection against wrong or arbitrary decisions and inconsistent delivery of justice. In the present case it is hard to believe that the Judge would have granted the order if he had formally marshalled his reasons for doing so.


[83] In New Zealand, the leading case on provision of reasons is R v Awatere [1982] 1 NZLR 644, 648-649. The Court declined to lay down "an inflexible rule of universal application", while recognising that "it must always be good judicial practice to provide a reasoned decision". The same view was taken by the majority in a differently constituted Court in R v MacPherson [1982] 1 NZLR 650. Somers J was prepared to go further. He would have held in that case that it was implicit in the right of appeal conferred by the Summary Proceedings Act 1957 that the Judge was under a duty to make "such findings or express such reasons or conclusions as in the particular circumstances are necessary to render the right of appeal effective" (R v MacPherson at 652). Such reasons, he thought, would not need to be elaborate and would add little to what is usually done in New Zealand courts.


[84] R v Awatere was considered and applied in R v Jefferies [1999] 3 NZLR 211. That case confirmed that while the giving of sufficient reasons for decision is always highly desirable, it is not an inflexible requirement.


[85] Whether it is time to say that as a general rule Judges must give reasons, is a matter this court would wish to consider at an early opportunity. In the present case however the point arose during argument and was not fully canvassed. It is not necessary to consider whether R v Awatere should be revisited. to dispose of the present case.


[86] In the present case the requirements of open justice in criminal proceedings, the right to impart and receive information recognised by s14 of the New Zealand Bill of Rights Act and the need to ensure that those whose rights were affected by the order had an effective opportunity to obtain judicial review, all made it incumbent upon the Judge to give reasons for the order prohibiting publication of the appellant's identity. The High Court was right to say that the Judge was required to give reasons. The failure to give reasons in this case was an error of law.


[87] We differ from the High Court as to the consequences. The error was not one which could be corrected only on appeal; as error of law, the failure to give reasons was a proper and distinct ground of judicial review. It was a sufficient ground, irrespective of whether it was not open to the Judge to grant the s140 application (as we have accepted to be the case) and without inferring failure to apply s14 of the New Zealand Bill of Rights Act 1990 (as the High Court preferred to find). On this ground too the decision should have been set aside. In the normal course it would have been remitted to the District Court for determination in accordance with law. The conclusion already reached that the order was not open to the Judge on the material before him, makes such step unnecessary.

Failure to consider the appellant's reputation


[88] In the judgment of the High Court this second ground upon which the Court granted judicial review was expressed as a failure to take into account a relevant consideration, namely the appellant's reputation as a user of cannabis and a supporter of cannabis law reform. It was not suggested by the Full Court that the error was the fault of the District Court Judge. He had not been given the information by the appellant.


[89] The ground was not pleaded by Wilson & Horton as failure to take account of a relevant consideration. Rather the Judge was said to have been led into material mistake of fact because he did not know the true reputation of the appellant (substantiated by United States magazine and newspaper clippings and material obtained through the internet).


[90] We agree with the submission on the part of the appellant that the High Court was in error in treating the new material put forward to it as establishing that the Judge failed to address a relevant consideration. The Judge's remarks on 6 January indicated that he had turned his mind to the reputation of the appellant, the relevant consideration in issue. The reputation of the appellant was also the main burden of the written submissions he received.


[91] What the material put forward by Wilson & Horton in the High Court was directed to was the submission that the Judge proceeded in error of fact, because the information he had been given did not disclose the appellant's true reputation in the United States as a user of cannabis and prominent supporter of its decriminalisation. The appellant had acknowledged being a user of cannabis and from his remarks the Judge appears to have appreciated that the appellant was in favour of its decriminalisation. But it is contended on behalf of Wilson & Horton that the appellant's public reputation, rather than his acknowledged behaviour and attitudes, was a fact material to the apparent decision that publication would harm him and the charities associated with him.


[92] Whatever the scope of mistake of fact as a ground of judicial review (as to which see Daganayasi v Minister of Immigration [1980] 2 NZLR 130, NZ Fishing Industry Association v Minister of Agriculture and Fisheries [1988] 1 NZLR 544), the additional facts put forward in the High Court do not establish reviewable error. The approach adopted in the High Court would have the effect of permitting any conclusion of fact to be reopened on application for judicial review. The supervisory jurisdiction does not go so far, except where the decision of fact is a condition precedent to the exercise of power or where the error of fact results in a decision which is unreasonable. In such cases, the decision-making process will have miscarried. That was not the case here, even accepting the Judge to have been under the wrong impression of the true facts. Given however the conclusions reached on the reasonableness of the decision, it is unnecessary to consider the point in more detail.

Futility of the order

[93] We do not accept the contention on behalf of Wilson & Horton that the order as made was futile because it was inevitable that the identity of the appellant would be publicised. There was no inevitability about the escape of information simply because the appellant was resident in another jurisdiction. The order related to disclosure in the course of a report about the New Zealand proceedings. Section 140 is to be treated as effective to prevent that occurring where an order is made.


[94] Where information as to the identity of someone appearing before the Court is already in the public domain, it will not generally be appropriate to grant name suppression (Attorney-General for UK v Wellington Newspapers Ltd [1988] 1 NZLR 129; Tucker v News Media Ownership Ltd [1986] 2 NZLR 716, 736 per McGechan J).


[95] In the present case there is no evidence that the fact that the appellant was appearing on charges in the Otahuhu District Court was publicly known at the time the s140 order was made. The order was not futile. Judicial review on this ground was correctly declined by the High Court.

Discretion

[96] Relief is discretionary. Delay in the bringing of judicial review proceedings may be a ground for the exercise of the discretion against relief. On behalf of the appellant it was asserted that the delay before 20 March when the judicial review proceedings were filed made it inappropriate to grant relief to Wilson & Horton. This matter was rightly not pressed at the hearing of the appeal. Given the limited information publicly available because of the way in which the application was heard and the absence of published reasons, it is not surprising that Wilson & Horton attempted to obtain release of the court file and a rehearing. As already indicated, we are of the view that the applications in the District Court were misdirected and that the appropriate procedure was to seek judicial review, but that view is expressed with the benefit of hindsight. In the circumstances it would not be right to decline relief for the delay. It was not substantial and Wilson & Horton continues to be affected by the order which prevents it publishing details of the identity of the appellant.

Rehearing

[97] Because of the conclusion we have reached that it was not open to the Judge to make the name suppression order, it is not appropriate to remit the application for rehearing. Had the successful ground of review been failure to give reasons, or failure to consider the application in accordance with law, then it would have been necessary to consider whether, in addition to the order quashing the determination, the Court should grant the remedy of directing the Judge to reconsider the application or an order in the nature of mandamus (see s4 of the Judicature Amendment Act 1972). It would be appropriate to send the matter back if the discretion to make the order can be properly exercised. It is not for the reviewing court to substitute its own discretion.


[98] The decision to send the matter back is itself a distinct discretionary remedy. As Mr Ivory properly conceded, its exercise falls to be taken in the light of the circumstances at the time the question of remedy is considered. Where a s140 order is quashed on judicial review, an order that the application be reheard will not generally be appropriate if the identity of the person has entered the public domain in the meantime. We agree with the submission on behalf of Wilson & Horton that how the information escaped (whether in breach of Court order or not) will not normally be of significance.


[99] Had it been necessary to consider whether the matter should be remitted to the District Court, the internet and overseas publication of the appellant's identity would have made that course inappropriate.

Result

[100] The appeal is dismissed, for reasons which differ from those adopted in the High Court The order of the High Court quashing the s140 order in the District Court is confirmed. There will be no order for rehearing, with the result that there is no prohibition on publication of the appellant's identity. Wilson & Horton are entitled to costs on the appeal which are fixed at $5,000.00, together with reasonable disbursements, including travel and accommodation expenses of counsel, to be fixed if necessary by the Registrar.

Solicitors

Wendy Galvin and Associates, Auckland, for appellant

Bell Gully, Auckland, for first respondent