Fagan v Serious Fraud Office

JurisdictionNew Zealand
CourtCourt of Appeal
JudgeWhite,Goddard,Simon France JJ
Judgment Date14 Aug 2013
Neutral Citation[2013] NZCA 367
Docket NumberCA408/2013

[2013] NZCA 367

IN THE COURT OF APPEAL OF NEW ZEALAND

Court:

White, Goddard and Simon France JJ

CA408/2013

Between
John Grant Fagan
Applicant
and
Serious Fraud Office
Respondent
Counsel:

E A Hall for Applicant

M J Lillico and A R van Echten for Respondent

Application for special leave to appeal decisions of the District Court and High Court to decline name suppression — proposed question of law on which the leave was sought was whether a court was obligated to consider the stage of the proceedings and the presumption of innocence in determining applications for name suppression under s200 Criminal Procedure Act 2011 (“CPA”) (court may suppress identity of defendant) — whether leave should be declined as the proposed question of law did not arise from the facts of applicant's case — whether it was necessary to consider the stage of the proceedings and the presumption of innocence in determining applications for name suppression under s200 CPA.

ORDER PROHIBITNG THE PUBLICATION OF NAME OR IDENTIFYING PARTICULARS OF THE APPLICANT UNTIL AFTER 5.00 PM ON FRIDAY 16 AUGUST 2013.

The issues were: whether leave should be declined as the proposed question of law did not arise from the facts of applicant's case; whether under s200 CPA, a judge was required to refer to the stage of the proceedings and the presumption of innocence in determining applications for name suppression.

Held: Previously, name suppression for a defendant was governed by the Criminal Justice Act 1985. The relevant principles were well settled. The specific issue raised by the proposed question of law was whether the CPA (which applied to F's case) changed things.

A defendant had to establish one of the preconditions listed in paragraphs (a) — (h) of s200 (2) CPA for name suppression to be ordered. In the present case reliance was placed on s200(2)(a) (cause extreme hardship to the person charged ……… or any person connected with that person). However, neither of the lower courts considered that the likelihood of extreme hardship had been established. Thus no jurisdiction to forbid publication of F's particulars arose. Answering this question one way or the other would not have any impact on the resolution of this factual issue. F was effectively just seeking a further appeal on whether extreme hardship would result from publicity.

Further, no serious uncertainty existed in relation to the proposed question of law. There was no reason to consider that s200 CPA was intended to, or did, affect the settled law that the stage of the proceeding and in particular the presumption of innocence was a relevant consideration. How relevant would vary with the facts of the particular case

The presumption of innocence was a constant factor applicable to all applications heard prior to conviction and it was well-established it would not be enough in itself to satisfy the test.

In addition, the proposed question focussed on whether a judge was required expressly to refer to the stage of the proceedings and or the presumption of innocence when considering an application. It was not a proposition of general importance or one which was conducive to a useful general answer. The extent to which those factors would be relevant to an analysis would vary from case to case. Further, the fact that these concepts were not expressly referred to did not necessarily mean that they were not considered.

Application for special leave to appeal declined

JUDGMENT OF THE COURT
  • A The application for special leave to appeal is declined.

  • B Order prohibiting the publication of name or identifying particulars of the applicant until after 5.00 pm on Friday 16 August 2013.

REASONS OF THE COURT

(Given by Simon France J)

1

Mr Fagan faces numerous charges of forgery, using a forged document, and making a false statement as a promoter and one charge of obtaining by deception. The proceedings are at an early stage. This is an application for special leave to appeal pursuant to s 144 of the Summary Proceedings Act 1957 to appeal the decisions of the District Court 1 and High Court 2 to decline Mr Fagan name suppression. 3 The basis advanced in support of name suppression is the effect publicity may have on the health of a near relative. Leave to appeal to this Court was declined by the High Court. 4

2

We note at the outset that in accordance with s 115C(2)(b) of the Summary Proceedings Act, if this Court does not grant leave, the appeal will be finally disposed of, and the interim suppression order made in the District Court will lapse. 5

3

If leave were granted, the question of law would be:

Whether a Court is obligated to consider the stage of the proceedings and the presumption of innocence in determining applications for name suppression pursuant to s 200 of the Criminal Procedure Act 2011.

4

The general context is the balance to be drawn between the principles of open justice on the one hand, and a defendant's right to be presumed innocent on the other. Previously, name suppression for a defendant was governed by s 140 of the Criminal Justice Act 1985. The relevant principles were well settled. The specific issue being raised by the proposed question of law is whether the Criminal Procedure Act 2011 (which applies to Mr Fagan's case) has changed things.

5

A convenient statement of the previous position was recently provided by M (CA762/2012) v R: 6

Name suppression, while rare during and post-trial, is more common pre- trial. This difference is due to the presumption of innocence and the need to avoid the risk of prejudice to a fair trial. This means displacing the presumption of openness where suppression is sought pre-trial is less onerous than later in the proceeding or after the applicant has been convicted.

(Footnote omitted.)

6

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