Name suppression in civil cases - the principles: Brown v Attorney General

The Court of Appeal has recently outlined the principles governing the granting of name suppression in civil cases. We take a look.

This was an appeal from a decision of Miller J in the High Court which upheld the decision of Judge Ongley in the District Court that Mr Brown's application for an order suppressing publication of his name and identifying details not be granted.

The background facts of the case were these: On 14 August 1998 Mr Brown was sentenced to five years' imprisonment on charges of kidnapping and indecent assault of a boy under 12. He was released on parole in July 2001 and was directed by his probation officer to live at an address in Strathmore, Wellington. According to Mr Brown, in August 2001, two police officers visited him at his home and persuaded him to let them in. They allegedly enquired about the conditions of his parole and photographed him. The police then circulated pamphlets in the Strathmore area headed "Convicted Paedophile Living in your Area". The pamphlet recorded that Mr Brown, "a convicted paedophile", had recently moved into Strathmore Avenue after being released from Rimutaka Prison where he served "a 3½ year sentence for sexual crimes against children". In fact, the sentence was in respect of one child. The pamphlet contained a photograph of Mr Brown and a physical description of him.

As a result of the circulation of the flyer Mr Brown became the subject of intense media scrutiny. Mr Brown alleged that he also suffered verbal abuse and physical threats and was compelled to move from the area.

Mr Brown then commenced legal proceedings against the Attorney-General (who was sued in respect of the actions of the police). He alleged that the actions of the police were in contravention of police policy and of the Privacy Act 1993 and were an abrogation of his rights under ss 9, 21 and 26(2) of the New Zealand Bill of Rights Act 1990.

Mr Brown applied in the District Court for an order suppressing publication of his name and identifying details. That application was declined both in the District Court and on appeal. However, Miller J gave Mr Brown leave to appeal to the Court of Appeal.

The Court of Appeal began by indicating that as any order on an application for suppression of name and identifying particulars necessarily involves the exercise of a discretion, the scope for successful challenge is therefore narrow.

The Judges (William Young, Chambers and Robertson JJ) then considered the relevant principles which were summarised in the following passage from Lewis v Wilson and Horton Ltd [2003] 3 NZLR 546:

The principle of open justice in criminal proceedings is affirmed by s 138(1) of the Criminal Justice Act 1985 and s 25(a) of the New Zealand Bill of Rights Act 1990, but it is far older in observance and extends beyond criminal proceedings (although it is of particular importance there). It yields only where the application of the general rule in the particular circumstances of the case would frustrate the interests of justice, and then only to the extent necessary.

The Court of Appeal was satisfied that both Judge Ongley and Miller J approached their respective decisions in conformity with the principles referred to in Lewis.

The Court of Appeal then turned to consider whether Miller J had made any errors of principle in coming to his decision.

Mr Brown alleged that he had in accepting that Mr Brown faced a risk of further assault and threats from publication but finding that the form of publication was unlikely to result in those consequences. While the Court of Appeal considered that there would be a risk that Mr Brown may be threatened or assaulted as a result of publicity surrounding his case, it did not consider that risk to be any greater than that faced by many litigants who are alleged to have done evil or despicable deeds. In this regard they said:

The risk of assault from vigilantes has to be balanced against the public's right to be informed of what is happening in their courts. The fact that we do not agree with Miller J's assessment of the likely degree of publicity does not render his decision wrong. Our different assessment of likely publicity does not cause this case to topple into the "exceptional circumstance" category.

For this and other reasons, the Court of Appeal held that Mr Brown had not established that Miller J's decision was plainly wrong.

The appeal was accordingly dismissed.

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