Fagan v Serious Fraud Office

• Jurisdiction: New Zealand
• Judge: White,Goddard,Simon France JJ
• Judgment Date: 14 August 2013
• Neutral Citation: [2013] NZCA 367
• Docket Number: CA408/2013
• Court: Court of Appeal
• Date: 14 August 2013

Between

John Grant Fagan

Applicant

and

Serious Fraud Office

Respondent

[2013] NZCA 367

Court:

White, Goddard and Simon France JJ

CA408/2013

IN THE COURT OF APPEAL OF NEW ZEALAND

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.

Counsel:

E A Hall for Applicant

M J Lillico and A R van Echten for Respondent

• 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.

JUDGMENT OF THE COURT

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 The Crown, when first responding, supported the application on the basis that there may be an issue to be resolved because of what it perceived to be a conflict on the point arising from an unrelated High Court decision. However, leave is now opposed on the basis that the proposed question of law does not arise from the facts of Mr Fagan's case.

7 Whilst we accept that the proposition states a question of law, we agree with the Crown that leave to appeal ought not to be given.

8 Section 200 of the Criminal Procedure Act 2011 provides:

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) cause extreme hardship to the person charged with, or convicted of, or acquitted of the offence, or any person connected with that person; or

  • (b) cast suspicion on another person that may cause undue hardship to that person; or

  • (c) cause undue hardship to any victim of the offence; or

  • (d) create a real risk of prejudice to a fair trial; or

  • (e) endanger the safety of any person; or

  • (f) lead to the identification of another person whose name is suppressed by order or by law; or

  • (g) prejudice the maintenance of the law, including the prevention, investigation, and detection of...