ORDER PROHIBITING PUBLICATION OF VICTIM IMPACT STATEMENT PURSUANT TO S 27 VICTIMS' RIGHTS ACT 2002.

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2013-404-000048 [2013] NZHC 2550

BETWEEN	DANNY NORSWORTHY Appellant	

AND	
NEW ZEALAND POLICE Respondent	

Hearing:	30 September 2013	

Counsel:	
J B Wickliffe for Appellant R E Savage for Respondent K M Bradley for APN	

Judgment:	
1 October 2013	

JUDGMENT OF COLLINS J

Introduction

[1]       The question I have to consider is whether the District Court should have suppressed the publication of Mr Norsworthy’s name in relation to a charge concerning his current partner, and his association with a police investigation into the death of his former partner, because there is a possibility that he may face a further charge in relation to the death of his former partner.

Context

[2]       This  question  arises  in  the  context  of  an  appeal  from  a  decision  of Judge Dawson who, on 14 February 2013, sentenced Mr Norsworthy to nine months’ imprisonment for one charge of male assaults female.   That charge concerned an assault by Mr Norsworthy on his current partner.  At the same time Judge Dawson
declined Mr Norsworthy’s applications for orders suppressing publication of his

NORSWORTHY v NEW ZEALAND POLICE [2013] NZHC 2550 [1 October 2013]

name and his association with the police investigation into the death of his former partner.  Judge Dawson did make orders under s 205 of the Criminal Procedure Act
2011 (the Act) prohibiting publication of submissions made in the District Court, and any reference that was made in Court to that other police investigation.

Relevant legislation

[3]       Section 200(2)(d) of the Act provides that an order may be made forbidding publication of the name, address or occupation of a person who is charged with, or convicted or acquitted of an offence if the Court is satisfied that publication would be likely to create a real risk of prejudice to a fair trial.

[4]      Section 205 of the Act enables the Court to prohibit the publication of submissions and evidence in proceedings if, among other reasons, the Court is satisfied that publication of that material would be likely to create a real risk of prejudice to a fair trial.

[5]       Section 207 of the Act provides that judges must give reasons for making, varying or revoking a suppression order.   However, if a judge is satisfied that exceptional circumstances exist they may decline to state in public all or any of the factors, reasons or considerations that were taken into account when reaching their decision.

Inherent jurisdiction

[6]       The application to suppress publication of Mr Norsworthy’s connection to the ongoing police investigation into the death of his former partner does not appear to be based on any statutory provision. That is because the powers contained in the Act are limited to suppressing the identity of defendants, witnesses, victims, connected persons, and evidence or submissions in relation to proceedings that are before the Court.  If there is jurisdiction to suppress publication of Mr Norsworthy’s connection to the ongoing police investigation into the death of his former partner, then that

jurisdiction  could  only  arise  from  the  High  Court’s  inherent  power  to  take

appropriate steps to protect a person’s fair trial rights.1

Judge Dawson’s decision

[7]       The suppression portion of Judge Dawson’s decision reads:2

An application has been made for name suppression for you today.  I will not go into all the reasons for that application because to do so would simply be to publish what is sought to be kept out of the public arena.  I am of the view that it is not appropriate to grant you name suppression with respect to your name and your linkage to this offence.  Mr Norsworthy, are you listening to me?  Therefore, name suppression is not granted with respect to your name and linkage with this charge.

An order is made for the suppression of all defence and police submissions with respect to the application for name suppression and any reference made in open Court to you potentially being linked to any other police investigation.  I note that no charges are laid against you at this stage in any event but to be sure there is no prejudice to you should matters progress in the future, that order is made.

Jurisdiction

[8]       Mr Norsworthy’s appeal is dealt with as a rehearing.3   As this case involves an appeal against the exercise of a District Court Judge’s discretion, the approach which I take is governed by the test set out by the Court of Appeal in May v May.4
The Judge’s decision can only be reversed if, I am satisfied that it contained an error in principle, a relevant factor was not considered, an irrelevant factor was taken into account, or the outcome was plainly wrong.

Relevant principles

[9]       Those who are charged with or convicted or acquitted of an offence are eligible to have their names published unless the grounds for prohibiting publication
contained in s 200(2) of the Act exist.   This reflects the presumption that court

1	Siemer v Solicitor-General [2013] NZSC 68.
2	Police v Norsworthy DC North Shore CRI-2012-044-5351, 14 February 2013 at [12]-[13].
3	Criminal Procedure Act 2011, s 330.
4	May v May (1982) 1 NZFLR 165 (CA);  see Rowley v Commissioner of Inland Revenue [2011] NZSC 76.

proceedings should be able to be published.  This point was made by the Court of

Appeal in R v Liddell in the following way:5

... the starting point must always be the importance in a democracy of freedom of speech, open judicial proceedings, and the right of the media to report the latter fairly and accurately as “surrogates of the public”.

[10]     The presumption in favour of publication of the names of those who appear in criminal proceedings can be rebutted where there is likely to be a real risk of prejudice to their rights to a fair trial.

[11]     The threshold of a “real risk” is a moderately high threshold and reflects the

fact that courts have traditionally:

(1)	placed  some  reliance  on  juries  adhering  to  clear  warnings  about ignoring pre-trial publicity; and

(2)       recognised that not all pre-trial publicity can be eliminated.

This point was made in the following way by William Young P and Robertson J in R

v B:6

Judges are reluctant to allow prejudicial publicity to stultify the criminal process.   Where there has been such publicity, judges usually rely on appropriate  judicial  directions  to  limit  the  risk  that  the  defendant  will actually be prejudiced.   This willingness to go on with the trial is not premised on the assumption that all risks of prejudice can be eliminated with appropriate directions.  Rather, it is based on a pragmatic assessment that the possibility of prejudice to a defendant associated with such publicity does not outweigh the public interest in criminal cases being tried.

Is there a real risk of prejudice to Mr Norsworthy’s future right to a fair trial?

[12]	There are three reasons why I have concluded that Mr Norsworthy has not established that s 200(2)(d) applies in the circumstances of this case.

5	R v Liddell [1995] 1 NZLR 538 (CA) at 546.
6	R v B [2008] NZCA 130, [2009] 1 NZLR 293 at [77].

(1)       The application is speculative

[13]     While it is possible Mr Norsworthy may be charged with an offence in relation  to  the  death  of  his  former  partner  he  has  not  been  charged  and  any possibility that he will be charged is, at this stage, pure speculation.

[14]     It is very difficult to conclude that allowing publication of Mr Norsworthy’s name in relation to his conviction and sentence for the charge of male assaults female in relation to his current partner is likely to create a real risk of prejudice to a possible future trial when he has not been charged with an offence and may never in fact face trial.  In my assessment, in order for there to be a real risk of prejudice to a trial, there must be more than just a possibility that there may be a trial at some future point in time.

(2)       Time to any future trial

[15]     Even if Mr Norsworthy was charged with the offence that he believes he may be charged with, any trial will not take place for a considerable period of time.  In Solicitor-General v W & H Specialist Publications Ltd, Elias CJ stated:7

Whether there is a real risk in the particular case depends upon all the circumstances, the most important of which are the impact of the publication and the timing in relation to trial.   Dissipation of effect (and therefore the reality of risk) is a factor of both timing and impact.  For that reason, it is not possible to develop a rule of thumb that the distance of a fixed period from publication will prevent the risk of prejudice remaining real. The assessment of real risk is inevitably a judgment which is specific to the facts of the particular case.

[16]     I accept, however, that the ability to access newspaper reports through the internet means that articles that have been published a long time before trial may still be able to be easily accessed by jurors.  Accordingly, the lapse of time between publication and trial may no longer be as decisive a factor as it was in cases that pre- dated the internet.8    Nevertheless, the likely length of time to any future trial is a
factor that weighs against Mr Norsworthy’s application.

7	Solicitor-General v W & H Specialist Publications Ltd [2003] 3 NZLR 12 (HC) at [30].
8	See for example:  R v Harawira [1989] 2 NZLR 714 (CA) and Gisborne Herald v Solicitor- General [1995] 3 NZLR 563 (CA).

(3)       Jury directions

[17]     If there is any risk of prejudice through publication of Mr Norsworthy’s name in relation to the charge of male assaults female, then that prejudice can be addressed through clear and careful directions to the jury if he is ever the subject of a further trial.

Inherent jurisdiction

[18]     I  decline  to  exercise  any  inherent  jurisdiction  I  may  have  to  prohibit publication of the connection between this offending and the ongoing police investigation into the death of his former partner.   I have reached this decision because if Mr Norsworthy is charged in relation to the death of his former partner, any prejudice that would result from the publication of this offending alongside that charge is unlikely to prejudice the fairness of his trial, for reasons already outlined.

Section 205 of the Act

[19]    Judge Dawson ordered suppression of all submissions in relation to Mr Norsworthy’s application for name suppression and any link between him and the ongoing police investigation that was mentioned in open court.

[20]     That aspect of Judge Dawson’s judgment has not been appealed and will

therefore remain in force.

[21]    However, apart from one detail I do not see how I can logically suppress publication of the submissions and evidence which I have heard.  The reason for that is  that  I  have  already  concluded  that  publishing  Mr  Norsworthy’s  name  in connection with the charge determined in the District Court at this juncture does not create a real risk of prejudice to a possible future trial.  Accordingly, s 205(2)(e) of the Act does not apply.

[22]     The only exception that I can make concerns an order prohibiting publication of the victim’s impact statement.  The victim has asked that her impact statement be withheld.  She has made that request through the Crown pursuant to s 27(1) of the

Victims’ Rights Act 2002.   I am satisfied that an order is necessary to protect the

victim’s privacy.9

[23]     I am also satisfied that allowing publication of the victim’s impact statement would be likely to create a real risk of undue hardship to the victim and accordingly the victim impact statement may not be published.10

Conclusions

[24]     For these reasons the answer to the question posed in paragraph [1] is that Mr Norsworthy’s name and his connection with the ongoing police investigation into the death of his former partner may be published.   I also declined to prohibit publication of the submissions and evidence which I heard, except for the victim impact statement which cannot be published.

[25]     Although  I  have  reached  this  conclusion  by  applying  the  principles articulated by the Court of Appeal in May v May I would have reached exactly the same conclusion had I applied the test set out in the Supreme Court’s judgment in Austin, Nichols & Co Inc v Stichting Lodestar.11

[26]     Mr Norsworthy’s appeal is therefore dismissed.

[27]     At the request of counsel, I direct that this judgment will not take effect until mid-day 4 October 2013.  This will enable counsel for Mr Norsworthy to file any
notice of application for leave to appeal under s 289 of the Act.

D B Collins J

Solicitors:
Public Defence Service, Albany for Appellant
Crown Solicitor, Auckland for Respondent
Bell Gully, Auckland for APN

9	Victims’ Rights Act 2002, s 27(2)(e).
10	Criminal Procedure Act 2011, s 205(2)(a).
11	Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141.