IN THE HIGH COURT OF NEW ZEALAND
GISBORNE REGISTRY
CRI 2013-416-04
[2013] NZHC 1101
Hearing:
IN THE MATTER OF
an appeal from a determination of the
District Court at Gisborne
BETWEEN
THE POLICE
Appellant
AND
M
Respondent
24 April 2013
Appearances: K Laurenson for appellant
Z Mohammed and M Insley for respondent
Judgment:
15 May 2013
JUDGMENT OF ALLAN J
In accordance with r 11.5 I direct that the Registrar endorse this judgment
with the delivery time of pm on Wednesday 15 May 2013
Solicitors/counsel :
Crown Solicitor Gisborne, [email protected]
M Insley [email protected]
[email protected]
THE POLICE V M HC GIS CRI 2013-416-04 [15 May 2013]
Introduction
[1]
Ms M appeared in the Gisborne District Court on 30 January 2013, and
pleaded guilty to a charge of driving a motor vehicle while the proportion of alcohol
in her breath exceeded 400 micrograms of alcohol per litre of breath. Her reading
was 801 micrograms, twice the legal limit.
[2]
After hearing counsel, Judge Hubble discharged the respondent without
conviction and made an order for permanent suppression of her name.
[3]
The informant, now the appellant in this Court, filed in the Gisborne District
Court a notice of intention to appeal by way of case stated on a question of law,
pursuant to s 107 of the Summary Proceedings Act 1957 (the Act). Judge Hubble
settled the case stated by posing the following questions of law for the determination
of this Court:
[4]
1.
Did the Judge correctly identify the test for a discharge without
conviction under s 107 of the Sentencing Act 2002, which requires a
sentencing Judge to engage in a three step process?1
2.
Was there sufficient material before the Judge to support a finding
that there were direct and indirect consequences of a conviction for
the respondent that would be out of all proportion to the gravity of
the offence?
3.
Did the Judge correctly identify the test in s 200(2)(a) of the
Criminal Procedure Act 2011 which requires that the Court can
suppress the name of the respondent only when it is satisfied that
publication would be likely to cause extreme hardship to the person
charged with, or convicted of, or acquitted of the offence?
4.
Was there sufficient material before the Judge to support a finding
that publication of the respondent’s name would be likely to cause
extreme hardship to the defendant?
Ms M’s appearance before Judge Hubble for sentence was her third
appearance on this charge. She had entered a guilty plea on the first occasion. The
Judge asked Ms Insley, who appeared for Ms M, whether there was anything special
1
Blythe v R [2011] NZCA 190, [2011] 2 NZLR 190; Z(CA447/12) v R [2013] NZCA 599, [2013]
NZAR 142 (CA).
about the case and whether she could pay a fine. At that point, Ms Insley embarked
upon a detailed and lengthy plea in mitigation, which covered Ms M’s offence-free
record, her family and sporting background and her employment history. During the
course of those submissions, Ms Insley handed up to the Judge four testimonials
from which it is apparent that Ms M is a fine young woman, a talented sportswoman
and a high performing member of the community.
[5]
Part way through the submissions in mitigation, Judge Hubble discerned a
pending request for a discharge without conviction. He commenced an analysis of
the argument for a discharge, but in turn was interrupted by Ms Insley who was
permitted to resume her plea in mitigation. After a time she was again asked by the
Judge to pause, in order that he could gain an indication from the prosecuting
sergeant of the police attitude to a discharge. The sergeant raised a question as to
whether a case had been made out but formally left the matter in the hands of the
Court.
[6]
Having ascertained the prosecution position, Judge Hubble then gave a brief
judgment without hearing further from Ms Insley, who plainly had further
submissions to make.
[7]
This Court has been provided with a complete transcript of the proceedings
before Judge Hubble. It is sufficient to reproduce the record of the concluding
exchanges:
MS INSLEY;… Ms M has been offered a job in England playing this sport
… I don’t know much about this sport, but my client has the opportunity to
be a player. A conviction would ruin her chances to travel and enhance her
sporting career. She has shown herself to be a high achiever in her sports
pursuits and she has shown herself as a responsible and contributing member
of the community prior to this incident. And I’ve got one more.
THE COURT: Can I just pause you there? What is the attitude of the
prosecution to a s 106 discharge on this matter?
Ms INSLEY: And name suppression sir if I may be bold?
SERGEANT BROWNLIE: I don’t know if that’s been confirmed in any
way that a conviction would ruin her chance of travelling to the UK. So I
guess the best I can offer is we’re neutral, while not formally opposing it. In
your hands, sir.
THE COURT; Thank you for that. I am going to take it upon myself to
discharge her under s 106 and also make an order for name suppression.
This lady is exceptional. I am satisfied that in this sporting industry she
would need to travel worldwide. We know of at least one or two instances
where a rugby player has been refused entry to Canada because he had a
drink-driving conviction. So that I am satisfied that any penalty imposed at
all would far outweigh the possible deleterious effects to this young lady’s
career. You will be discharged under s 106 and you have your counsel to
thank for that.
This Court’s jurisdiction
[8]
This is an appeal by way of case stated. The Court’s jurisdiction is limited to
answering the four questions settled by Judge Hubble under s 107 of the Act. This is
not a general appeal. I have no power to substitute my own view for that of Judge
Hubble; my function is simply to answer the questions.
[9]
Counsel are agreed that, depending on the answers, this Court should either
dismiss the appeal or alternatively remit it to the District Court for reconsideration,
either in whole or in part.
Counsel’s arguments
[10]
Ms Laurenson for the appellant, submits that each of the four questions ought
to be answered “No”, and that the whole of the proceeding ought to be referred back
to the District Court for rehearing.
[11]
Mr Mohamed for the respondent, argues that the answer to each question
ought to be “Yes”. In addition, he raises three procedural matters, two of which he
says are fatal to the whole of the appeal. The third affects the appeal in respect of the
suppression order only.
[12]
I will deal with these preliminary matters in turn.
Settling the case
[13]
The procedure for settling a case stated on questions of law is prescribed by
s 107 of the Act. The appellant is required to file a notice of appeal in the District
Court. Thereafter:2
(3)
The appellant shall, within 14 days after the filing of the notice of
appeal, or within such further time as the District Court Judge or Justice or
Justices who constituted the Court or, if he or they are not available, any
District Court Judge may in his or their discretion allow, state in writing a
case in the prescribed form setting out the facts and the grounds of the
determination and specifying the question of law on which the appeal is
made, and file it in the office of the Court in which the notice of appeal was
filed, and the Registrar shall as soon as practicable submit it to the District
Court Judge or Justice or Justices whose determination is appealed against.
The appellant shall forthwith deliver or post a copy of the case to the
respondent or his solicitor.
(4)
As soon as may be practicable after receiving the case stated, the
District Court Judge or Justice or Justices shall, after hearing the parties if he
or they consider it necessary to do so, settle the case, sign it, and transmit it
to the Registrar. The settling and signing of the case shall be deemed for the
purposes of this Part of this Act to be the statement of the case by the Court.
[14]
Section 107(4) requires the District Court Judge to settle the case:
…after hearing the parties if he or they consider it necessary to do so …
[15]
Mr Mohamed argues that the subsection imposed upon the District Court
Judge an obligation to give the parties an opportunity to be heard in respect of the
proposed case stated before it was finally settled. He says that the word “they” in the
subsection must be taken to apply to the parties and that, if any party considers it
necessary to be heard, then the Judge must allow that party a reasonable opportunity
to make submissions as to the contents of the case stated. That did not occur here.
Mr Mohamed argues that the case stated procedure has miscarried in consequence,
and that the appeal ought to be struck out, or alternatively remitted to the District
Court Judge so that counsel for Ms M may be heard as to the contents of the case
stated.
2
Summary Proceedings Act 1957, s 107(3) and (4).
[16]
I do not accept Mr Mohamed’s submission.
The proper construction of
s 107(4) requires the word “they” to be read as applying to the expression “Justices”
earlier in the subsection. In other words, the word “they” is inserted simply to cover
the instance of a case stated being settled by Justices rather than a District Court
Judge.
The expression “he or they” in s 107(4) is replicated (with necessary
modifications), in s 107(3) and in s 109(1) where there can be no suggestion that the
reference to the plural is intended to be a reference to the parties.
[17]
I am reinforced in that conclusion by the judgment of Penlington J in Van Der
Kaap v Police where His Honour said:3
In the appellant’s reply, he complained that the learned Judge had not given
him the opportunity of being heard before refusing to state a case. The
Judge is not required by statute to give the parties an opportunity to be heard.
The Judicial Officer alone is responsible for the settling of the case if he
decides to state a case.
[18]
In my view, Ms M was not entitled to be heard as to the contents of the case
stated before it was settled by the Judge.
A general appeal in disguise?
[19]
Mr Mohamed’s second argument concerns questions three and four only.
They relate to the grant of a permanent suppression order.
[20]
Section 115C of the Act confers on an informant a right of appeal against the
making of a suppression order. The section reads:
115C Right of appeal against decisions relating to publication of
reports of proceedings or identifying particulars
3
(1)
The applicant for an order under section 200, 202, or 205 of the
Criminal Procedure Act 2011 forbidding publication of any report of
the proceedings or of any identifying particulars, or the informant
may appeal to the High Court against the District Court's decision in
respect of the application.
(2)
Where the decision is to refuse to make the order sought, the District
Court shall, on being satisfied that an appeal against that decision is
to be brought under this section, make an interim order to the effect
Van Der Kaap v Police HC Hamilton AP109/96, 30 April 1997 at 31.
sought by the applicant; and that interim order shall continue in
force—
(3)
[21]
(a)
Until the expiry of the period prescribed by section
116 of this Act for the filing of notice of the appeal;
or
(b)
If notice of the appeal is filed within that prescribed
period, until the appeal is finally disposed of, or
withdrawn, or abandoned.
The provisions of sections 116 to 144 of this Act, as far as they are
applicable and with the necessary modifications, shall apply to any
such appeal as if the decision of the District Court were an order
made on sentence.
Section 115C(3) requires that an appeal against a suppression order by an
informant be treated as if it were an appeal against sentence. Section 115A provides
that no appeal against sentence may be brought by an informant unless the consent
of the Solicitor-General has first been obtained and is lodged with the notice of
appeal. Strict time limits apply to the filing of an appeal by an informant against a
suppression order. Section 116(1)A provides that notice of appeal shall be filed
within three days after the date of the decision against which the appeal is brought.
[22]
Mr Mohamed argues that although the appellant chose to adopt the case
stated procedure under s 107, this is in substance a general appeal on the merits
under s 115C. As such it cannot succeed, because it is out of time (and there is no
application for an extension of time) and there is no consent from the SolicitorGeneral. He argues further that it would be an abuse of process to permit the
appellant to proceed by way of case stated when the right of general appeal under
s 115C would have served equally well.
[23]
I reject that submission. Section 115C was enacted in 1985 in order to
overcome procedural difficulties arising out of the inability of an informant to appeal
on the merits in suppression cases.4 The case stated procedure had existed long
before that. There is no suggestion in s 115C that it was intended to replace s 107 in
suppression cases. Had that been the intention of the Legislature then there would
have been an appropriate amendment limiting the reach of s 107.
4
Summary Proceedings Amendment Act (No 5) 1985, s 2(1).
[24]
Where an informant is able to frame an appropriate question of law in respect
of a suppression matter, and a District Court Judge is prepared to state a case
accordingly, the presence of s 115C on the Act does not, in my view, preclude this
Court from hearing and determining the questions posed in the case stated. They are
alternative procedures. I reject the argument that the present case stated amounts to
an abuse of process insofar as it concerns the suppression order.
Good faith
[25]
This case has generated quite extraordinary public interest. It has been the
subject of nationwide media coverage. There has been much discussion of it on
radio talkback and in the newspapers. In particular, a senior Queen’s Counsel (not
associated with the case) and various ex-police officers have been quoted at length.
It has been suggested that the decision to discharge Ms M without conviction is
unique, or at least highly unusual, in drink-driving cases, and that the decision was,
in effect, an aberration.
[26]
It is clear that this case is by no means unique. The New Zealand Herald
published an article reporting that it had obtained information from Ministry of
Justice sources showing that 239 persons charged with drink-driving offences had
been discharged without conviction since 2007.5 A senior lawyer specialising in
drink-driving cases estimated that to constitute about 0.2% of all drivers prosecuted
during that period.
[27]
Mr Mohamed presented a number of documents extracted from the print
media and news websites, in order to show the extent of the publicity, most of it
critical of Judge Hubble’s decision. He did so in support of a submission that the
police had appealed in this case simply as a result of media and public pressure, that
the decision to appeal amounted to an abuse of process, and that for the purposes of
s 107, the appeal by way of case stated was frivolous. He asked the Court to dismiss
the appeal on that ground alone.
5
Rebecca Quillam “Problem with Letting Off Drink Drivers Dismissed” New Zealand Herald, 15
March 2013.
[28]
In the course of his submissions on the point, Mr Mohamed challenged
counsel for the appellant to identify a single case in which the police had ever
appealed against a discharge without conviction in a drink-driving case; the absence
of any such prior authority tells heavily, he argues, against any argument that this
appeal is brought on a bona fide basis by the appellant.
[29]
Ms Laurenson advises the Court that she has had only a brief opportunity to
search for previous cases where the police have appealed against a discharge, but her
research has turned up a very recent instance. It is Gasson v N.6
That case was
decided in November 2012. Fogarty J dismissed an appeal by the police against a
decision of a District Court Judge refusing to state a case where he had earlier
discharged the respondent without conviction. That was an excess breath alcohol
case. For present purposes Ms Laurenson relies on Gasson as an instance in which
the police have sought to appeal by way of case stated in a drink-driving case.
[30]
I am not prepared to accede to Mr Mohamed’s request to dismiss the appeal
as frivolous. It may very well be that the decision to launch the present appeal was
taken in the context of a degree of public clamour, but that does not mean that it is
not brought in good faith, nor does it suggest that the appeal itself must be regarded
as frivolous. If the appeal has substance then the appellant is entitled to a remedy. If
it does not, then it will be dismissed. I reject the argument that the appeal ought to
be dismissed out of hand, simply because the District Court proceedings which gave
rise to the appeal attracted significant publicity.
Question one: Did the Judge correctly identify the s 107 test?
[31]
I turn now to the first of the four questions posed in the appeal by way of case
stated. The discretion to discharge an offender without conviction arises under s 106
of the Sentencing Act 2002 which provides:
6
106
Discharge without conviction
(1)
If a person who is charged with an offence is found guilty or pleads
guilty, the court may discharge the offender without conviction,
Gasson v N [2012] NZHC 2988.
unless by any enactment applicable to the offence the court is
required to impose a minimum sentence.
(2)
A discharge under this section is deemed to be an acquittal.
(3)
A court discharging an offender under this section may—
(a)
make an order for payment of costs or the restitution of any
property; or
(b)
make any order for the payment of any sum that the court
thinks fair and reasonable to compensate any person who,
through, or by means of, the offence, has suffered—
(c)
(i)
loss of, or damage to, property; or
(ii)
emotional harm; or
(iii)
loss or damage consequential on any emotional or
physical harm or loss of, or damage to, property:
make any order that the court is required to make on
conviction.
(3A) Sections 32 to 38A apply, with any necessary modifications, to an
order under subsection (3)(b) as they apply to a sentence of reparation.
[32]
But the discretion in s 106 is governed by the important provisions of s 107:
107
Guidance for discharge without conviction
The court must not discharge an offender without conviction unless the court
is satisfied that the direct and indirect consequences of a conviction would
be out of all proportion to the gravity of the offence.
[33]
Although the heading to s 107 refers to guidance, its requirements are plainly
mandatory.7
[34]
The combined effect of these sections is that a sentencing Judge must
consider three factors before granting a discharge without conviction:
7
(a)
The gravity of the offence;
(b)
The direct and indirect consequences of a conviction;
R v Hughes [2008] NZCA 546, [2009] 3 NZLR 222 at [8]; and Z(CA447/2012) v R, above n 1, at
[8].
(c)
Whether those consequences are out of all proportion to the gravity of
the offence.
[35]
So the discretion conferred by s 106 to discharge without conviction may be
exercised only where the Court is satisfied that the consequences of a conviction
would be out of all proportion to the gravity of the offending.
[36]
There has been some recent uncertainty in successive judgments of the Court
of Appeal as to the point in the analysis at which it becomes relevant to consider
personal aggravating and mitigating factors.8 In the most recent Court of Appeal
judgment, Z(CA447/2012) v R, a judgment of the permanent Court, it was said that
the Court should consider all aggravating and mitigating factors relating to the
offending and the offender at the first stage of the analysis, that is, when assessing
the gravity of the offence:
[27] For our part, we consider that there is much to be said for the approach
adopted by the Divisional Court in A(CA747/2010). That is: when
considering the gravity of the offence, the court should consider all the
aggravating and mitigating factors relating to the offending and the offender;
the court should then identify the direct and indirect consequences of
conviction for the offender and consider whether those consequences are out
of all proportion to the gravity of the offence; if the court determines that
they are out of all proportion, it must still consider whether it should exercise
its residual discretion to grant a discharge (although, as this Court said in
Blythe, it will be a rare case where a court will refuse to grant a discharge in
such circumstances).
[37]
Ms Laurenson accepts that Judge Hubble’s decision:
… at least broadly references the three step process required.
[38]
He assessed the offending as being “moderately serious” noting that Ms M’s
breath alcohol reading was 801 micrograms. The appellant takes no issue with that
assessment of the level of seriousness.
[39]
Then Judge Hubble said:
The Court must be satisfied that the direct or indirect consequences of a
conviction would be out of all proportion to the gravity of the offence.
8
See A(CA747/10) v R [2011] NZCA 328 at [25]; R v Hughes, above n 7, at [41], Blythe v R, above n
1, at [11].
[40]
That correctly states the law, although it represents an amalgam of steps two
and three in the assessment process. Again, there is no real objection on the part of
the appellant to the Judge’s articulation of the test.
In my view, this very
experienced and able Judge has correctly identified the test for a discharge as one
might expect, given the frequency with which such applications are made in the
District Court.
[41]
Accordingly, I am satisfied that question one must be answered “Yes”.
Question two: Was there sufficient material before the Judge to support a
finding that there were direct and indirect consequences of a conviction for the
respondent, that would be out of all proportion to the gravity of the offence?
[42]
This question is framed in a slightly ambiguous fashion. The reference to
“sufficient” evidence may be seen as an invitation to review the adequacy or strength
of the material tendered in support of the application for discharge. Seen in that light
it is not a question of law at all and is impermissible. I take the question to ask
whether there was any sufficient material before the Judge to support his finding,
and so imply the word “any” before the word “sufficient”. Read in that way, the
question may properly be construed as asking whether, as a matter of law, there was
material before the Judge upon which he was entitled to discharge the respondent.
Where there is no such material, then the determination will be reviewable as a
matter of law, as is confirmed by the judgment of the Supreme Court in Bryson v
Three Foot Six Ltd.9
[26]
An ultimate conclusion of a fact-finding body can sometimes be so
insupportable – so clearly untenable – as to amount to an error of law: proper
application of the law requires a different answer. That will be the position
only in the rare case in which there has been, in the well-known words of
Lord Radcliffe in Edwards v Bairstow, a state of affairs “in which there is no
evidence to support the determination” or “one in which the evidence is
inconsistent with and contradictory of the determination” or “one in which
the true and only reasonable conclusion contradicts the determination.
[43]
These three tests are, in effect, one and the same, as Lord Radcliffe explained
in Edwards v Bairstow (Inspector of Taxes).10
9
Bryson v Three Foot Six Limited [2005] 3 NZLR 721 (SC) at [26].
Edwards v Bairstow (Inspector of Taxes) [1956] AC14, and [1955] 3 All ER 48(HL)
10
[44]
The question for consideration is therefore whether Judge Hubble had any
sufficient material before him upon which it would have been proper for him to act.
If there was such material then this Court is unable to substitute its view of the
merits.
[45]
It must be said that the material before Judge Hubble was extremely thin.
That may be because Ms Insley was cut short by the Judge, who had made up his
mind to grant a discharge without conviction before her submissions were complete.
She seems to have had further material to produce to the Court and it is plain from
the transcript that she wished to advance further argument. Having said that, there
was no affidavit from the respondent, such as one could ordinarily expect in support
of a discharge application.
[46]
The only relevant material before the Judge was an assertion by Ms Insley
that the respondent had a job offer in the United Kingdom, and that a conviction
would “ruin” her opportunity to travel and take up that job. There was no material
beyond Ms Insley’s oral submission to support the contention that the job offer
existed at all, or that the respondent would be prevented from taking up the offer by
the entry of a conviction. Indeed, the Court was not explicitly told even that the
respondent did intend to take up a position in the United Kingdom. The Judge
referred to his awareness that a conviction for drink-driving could prevent travel to
Canada, but there was no suggestion that the respondent proposed to go there in the
foreseeable future.
[47]
No information was provided to Judge Hubble about the rules and regulations
governing entry to the United Kingdom in cases where an applicant has been
convicted and sentenced to a non-custodial penalty. Although the case for Ms M was
put to Judge Hubble on the basis that her chances of taking up a position in the
United Kingdom would be “ruined” if a conviction was entered, his decision rested
upon his determination that he could take judicial notice of the fact that sports men
and women needed to travel internationally and that a conviction was likely to
impede their ability to do that.
[48]
Section 107 imports no onus of proof. The requirement is simply for the
Court to be satisfied that the disproportionality test has been met.11
[49]
The central issue for present purposes is the extent of the information that
must be furnished to the Court before a Judge can be enabled to make the necessary
assessment. Fogarty J helpfully outlined the ordinary position in Gasson v N:
[23]
In most cases counsel seeking a discharge without conviction will
provide relevant material for consideration by the Court. This will often be a
reliable letter or memorandum from a person with authority informing the
Court of the consequences of a conviction on the career of the defendant.
[24] The text of s 107 does not require either evidence “or relevant material”.
As I do not think the Court in Hughes was intending to preclude Judges from
taking judicial notice of facts (which Judges can always do) and relying on
their own direct knowledge (which can be appropriately relied upon
provided it is disclosed relevantly in the reasoning). Such notice is
information.
[50]
Judicial notice was relied upon by Panckhurst J in R v Hemard, where a
discharge without conviction was granted to a French tourist who had imported 0.7
grams of cocaine for personal recreational purposes.12 The appellant was a French
citizen engaged in the corporate leisure business, an occupation which required him
to travel extensively. Panckhurst J accepted the submission of counsel that the entry
of a conviction would have dire consequences for the appellant, taking judicial
notice of the fact that persons who have a conviction for importing a drug would
have great difficulty in obtaining permits to enter many countries throughout the
world.
[51]
Similarly in Han v Police, a minor assault case, Chisholm J assumed that a
conviction for assault might have significant consequences when it came to the
appellant gaining entry into China where members of his family lived.13 But the
Judge noted that he had “no solid information on this topic”.
11
R v Hughes, above n 7, at [53].
R v Hemard HC Christchurch T30/03, 11 April 2003.
13
Han v Police [2012] NZHC 791.
12
[52]
The position was different in respect of entry to Japan. There, the Judge had
copies of the relevant legislation and held that the possibility of an impediment to
entry could not be disregarded on the basis of the material before him.
[53]
These were examples of cases in which this Court, on appeal, has relied at
least to some extent on judicial knowledge in granting discharges without conviction.
I accept that Judge Hubble was entitled to do likewise to the extent that the scope of
the discharge application justified that approach.
[54]
A case bearing some significant similarity to the present case is Brunton v
Police, also an excess breath alcohol case.14 There, the appellant wished to go to
Canada in order to study as an exchange student for part of his undergraduate degree.
There was evidence before the Court as to the circumstances in which a person with
a drink-driving conviction might be admitted to Canada. The available evidence,
collated from websites, was confusing and apparently conflicting. Clifford J said:
As I observed to Mr Edgar, there is therefore considerable uncertainty as to
whether or not this conviction will have any effect at all on Mr Brunton’s
ability to travel to Canada. The Courts have held on numerous occasions that
tentative future travel plans carry little weight in a s 107 context. Potential
problems with travel overseas have often been seen as a universal
consequence, and unless real evidence can be shown that a conviction would
impede entry into another country, such speculative consequences will not
form the basis for a discharge without conviction. Here the evidence before
me is that this conviction will not have any real effect on Mr Brunton’s
ability to travel to Canada. On the basis of that evidence there is not a real
and appreciable risk of an adverse consequence. I am, therefore, not
persuaded on the basis of that consideration that there is a direct or indirect
consequence that is relevant.
[55]
Brunton suggests that where foreign travel difficulties are to be relied upon,
the evidence placed before the Court ought to be detailed and reliable. The level of
alcohol in Mr Brunton’s blood was low (150 micrograms of alcohol per litre of
breath), but he was only 18 years of age and lower levels applied. Clifford J
regarded the offending as “serious”.
[56]
In the present case, Judge Hubble summarised his reasons for granting a
discharge as follows:
14
Brunton v Police [2012] NZHC 1197 at [16].
I am satisfied that in the sporting industry she would need to travel worldwide. We know of at least one or two instances where a rugby player has
been refused entry to Canada because he had a drink-driving conviction. So
I am satisfied that any penalty imposed at all would far outweigh the
possible deleterious effects to this young lady’s career.
[57]
I accept that Judge Hubble was entitled to have regard to previous cases in
which drink-driving offenders had been refused entry to Canada. But of course that
was not the basis of Ms M’s application for a discharge. On the very limited
material available to this Court (partly because Ms Insley was cut short in the course
of her submissions), it appears that she intended to seek the Court’s indulgence in
clearing the way for entry into the United Kingdom so that she could take up a
proffered sporting position there. It was not suggested that she planned to enter
Canada, or indeed any other country. That information was conveyed to Judge
Hubble by Ms M’s counsel. Although four documents were handed up to the Judge
during the course of counsel’s submissions, they were all in the nature of references
and testimonials which bore upon Ms M’s good character, but added nothing to her
case for a discharge on travel grounds.
[58]
Nothing in writing was tendered to the Judge to support Ms M’s claim that
she would or might encounter difficulties in entering the United Kingdom.
Moreover, all that the Judge had in respect of potential employment in England was
Ms Insley’s statement from the bar that her client had been offered a job there, and
the assertion that a conviction would ruin her chances to travel and enhance her
sporting career.
[59]
The prosecuting sergeant, on being questioned by the Judge about the attitude
of the prosecution to a discharge, pointed out that it had not been confirmed in any
way that a conviction would ruin Ms M’s chance of travelling to the United
Kingdom. The sergeant’s observation was perfectly accurate.
[60]
Ms M’s case for a discharge was that she had an offer for employment in
England (which by inference she wished to accept), and that if she did not get a
discharge, then her prospects of obtaining the position would be ruined. But there
was absolutely nothing to support that contention. There was no website information
as to United Kingdom entry requirements, no evidence as to the applicable English
law regarding entry, no affidavit evidence of any description. As Fogarty J has
pointed out in Gasson, affidavit evidence is not imperative, but it is routine. In my
view, there ought to have been some documentary material confirming the
employment offer and Ms M’s need to go to the United Kingdom, and also providing
detail of UK entry requirements in respect of persons who have a drink-driving
conviction.
[61]
Judges sitting in busy list or sentencing Courts in the District Court have an
unenviable task. The sheer volume of work renders it impracticable to require or
consider copious written material.
But in a case like this, some evidence or
supporting information is to be expected in order that the Judge may exercise his or
her jurisdiction under s 106 properly.
[62]
Here, the Judge acted upon mere assertion by Ms Insley. In my view that was
insufficient to qualify as “information” for the purposes of a discharge without
conviction. The Judge did not therefore have before him any sufficient evidence
upon which to grant a discharge without conviction.
[63]
Accordingly, question two is answered “No”.
Question three: Did Judge Hubble correctly identify the suppression test?
[64]
Section 200 of the Criminal Procedure Act 2011 provides, as relevant:
200
Court may suppress identity of defendant
(1)
A court may make an order forbidding publication of the name,
address, or occupation of a person who is charged with, or convicted
or acquitted of, an offence.
(2)
The court may make an order under subsection (1) only if the court
is satisfied that publication would be likely to—
(a)
[65]
cause extreme hardship to the person charged with, or
convicted of, or acquitted of the offence, or any person
connected with that person; …
In this case the Judge simply said:
I am going to take it upon myself to discharge her under s 106 and also make
an order for name suppression.
[66]
He did not refer to the extreme hardship test, nor indeed to any other factors
relevant to name suppression. Question three therefore must be answered “No”.
Question four: Was there sufficient material before the Judge to support a
suppression order?
[67]
Ms Insley simply asked for an order. Judge Hubble granted it without any
explanation, and without giving any reasons. In my opinion, there was no material
before the Court to support the suppression order made by the Judge. Question four
is accordingly answered “No”.
Result
[68]
For the foregoing reasons, question one in the case stated is answered “Yes”.
The remaining three questions are answered “No”.
[69]
As agreed by counsel, the proceeding is remitted to the District Court for
reconsideration.
For the avoidance of doubt, the sentencing process is to be
conducted entirely afresh. It is agreed by counsel that either side is entitled to make
further submissions and to provide further evidence or information. The suppression
order will inure until reconsidered in the District Court.
C J Allan J