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Judgment: Fairfax v Ismail - Name Supression

[Full document: Fairfax_New_Zealand_Ltd_v_Ismail_Name_Suppression.pdf]

NOTE: PUBLICATION OF NAMES, ADDRESSES, OCCUPATIONS OR IDENTIFYING PARTICULARS, OF COMPLAINANT PROHIBITED BY S 203 OF THE CRIMINAL PROCEDURE ACT 2011.

IN THE HIGH COURT OF NEW ZEALAND

WELLINGTON REGISTRY

CRI-2014-485-000056
[2014] NZHC 1525

UNDER
Subpart 7 or Part 6 of the Criminal Procedure Act 2011

IN THE MATTER
of an appeal against an order suppressing the name of the Respondent made by the District Court at Wellington in CRI-2014-085-005323 on or about 30 May 2014

BETWEEN

FAIRFAX NEW ZEALAND LIMITED
Appellant

AND

MUHAMMED RIZALMAN BIN ISMAIL
Respondent

[…]

REASONS FOR JUDGMENT OF COLLINS J

Introduction

[1] This judgment explains why on 1 July 2014 I granted an appeal by Fairfax New Zealand Ltd (Fairfax) from a decision of Judge Davidson made in the Wellington District Court on 30 May 2014. Fairfax appealed Judge Davidson’s decision to extend an interim name suppression order in relation to Mr Ismail.

[…]

Analysis

[19] Judge Davidson was placed in an unenviable position when the police advised him that they did not oppose continuation of the interim name suppression orders. With the benefit of hindsight it would have been wiser for the police to have focused on whether or not the statutory criteria for interim name suppression applied.

[20] Mr Burston, who did not appear for the police in the District Court, has now properly focused on the statutory criteria for name suppression and agrees with Fairfax that none of the criteria for name suppression applies in this case.

[21] I agree with the stance now taken by Fairfax and the police. In particular:

(1) there was no suggestion Mr Ismail would suffer extreme hardship if his name was published in connection with the charges;

(2) there was no suggestion that it was necessary to suppress publication of Mr Ismail’s name in order to avoid casting undue suspicion on another person. On the contrary, continuing to suppress publication of Mr Ismail’s name is likely to unfairly cast suspicion on other members of the Malaysian High Commission in New Zealand;

(3) there is no suggestion that publishing Mr Ismail’s name will cause undue hardship to the victim. The victim of this case enjoys automatic name suppression and nothing may be published which could identify her; [Criminal Procedure Act 2011, s 203.]

(4) there is no suggestion that publication of Mr Ismail’s name would pose a real risk of prejudice to any trial. Mr Ismail has now left New Zealand’s jurisdiction and, as at 1 July 2014, there was no certainty he would ever face trial in New Zealand; and

(5) there is no suggestion that any of the other criteria in s 200(2) of the Act applied in this case.


[22] Thus, absent any statutory basis to continue the interim suppression orders made in favour of Mr Ismail, I allowed Fairfax’s appeal. When reaching this conclusion I was satisfied that while the Convention required Mr Ismail be treated with due diplomatic respect, his status did not alter the statutory criteria that governed the decision that was made on 30 May 2014.

[23] I carefully considered whether or not it was appropriate to hear the appeal in the absence of any representation for Mr Ismail. As Mr Ismail chose to exercise his right to leave New Zealand and place himself beyond the immediate jurisdiction of New Zealand’s courts I believed he had effectively waived any right he would otherwise have had to be heard in relation to the appeal.

Conclusion

[24] The order made on 30 May 2014 continuing the interim name suppression of Mr Ismail was quashed by me on 1 July 2014.

[25] Nothing may be published which names or otherwise identifies the victim.

[Full document: Fairfax_New_Zealand_Ltd_v_Ismail_Name_Suppression.pdf]

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