Suppression orders under the Criminal Procedure Act 2011 - should we be left in the dark?
Suppression orders under the Criminal Procedure Act 2011 - should we be left in the dark?
R v Samsudeen [2018] NZHC 1632
When the Prime Minister and Commissioner of Police addressed the nation on 3 September 2021, about the terror attack at LynnMall which critically injured 3 people, they said they were unable to name the alleged perpetrator for legal reasons.
While the attack has, understandably, led to debate about the adequacy of s.6A of the Terrorism Suppression Act 2002, which apparently does not criminalise planning or preparing a terrorist act, there has been less debate about the inability to name the offender in the immediate aftermath.
The publication issue has its origins in the suppression order made by His Honour Justice Wylie on 3 July 2018, pursuant to s.200 of the Criminal Procedure Act 2011 (CPA). Did the law prevent the naming of the offender, despite the overwhelming public interest in knowing who had committed the alleged crime?
The principle that justice should not only be done, but should be seen to be done, is of fundamental importance to the administration of justice in New Zealand. It is based on the English common law (for example, R v Sussex Justices; Ex parte McCarthy [1924] KB 256). The principle is indirectly acknowledged in the CPA, which provides that Court proceedings are generally open to the public.
The granting of a suppression order must therefore be seen as a serious derogation from this fundamental principle.
The corollary, however, is the need to grant suppression to uphold the presumption of innocence where not to do so would, inter alia, cause extreme hardship to the person charged with the offence or endanger the safety of any person.
The New Zealand courts have recognised the conflict inherent in this balancing exercise, which ultimately is a matter for judicial discretion. In R v Liddell [1995] 1 NZLR 538 the Court of Appeal said that the starting point must always be: “… the importance in a democracy of freedom of speech, open judicial proceedings, and the right of the media to report the latter fairly and accurately as ‘surrogates of the public’”.
The CPA recognises the interests of the media (and by extension, the public) by granting news organisations the right to be heard in relation to an application for a suppression order, including an application to vary the order and any appeal. But it should not be left to the media to fight the corner of open justice.
In this case, the High Court held there was a real risk to Mr Samsudeen’s safety if his refugee status was revoked and he was deported to Sri Lanka. There was clearly evidence before the Judge to support this conclusion. A number of aspects of the decision may, however, justify comment:
There was no explicit recognition that the starting point was open justice, although it was referred to in submissions by counsel for the media. The CPA does not expressly require Judges to take this fundamental principle into account when deciding whether to grant suppression, although the case law does;
Mr Samsudeen had pleaded guilty to 5 charges, including knowingly distributing “restricted material” and was awaiting sentencing. It might be thought that the fact of a guilty plea or conviction would militate against the grant of a suppression order. The CPA does not appear to require this, but rather, enables a suppression order to be made in favour of any person charged with, or convicted or acquitted of, an offence. Equally, a person acquitted of an offence would still have to show extreme hardship to avoid publication;
The charges related to material indicating that Mr Samsudeen held militant Islamist views and advocated violence. This seems to have been taken as a factor which supported suppression because of its possible effect on the Sri Lankan authorities. The CPA does not say that the seriousness of the offending, or the nature of the offending (for example, specified hate crimes or terrorist offences) are factors for the Judge to take into account, although again the case law does address this in general terms;
Mr Samsudeen had been recognised as a refugee by the Immigration and Protection Tribunal, although Immigration New Zealand had served him with notice of intention to cancel his refugee status. The Court held there was a real and appreciable risk that, if refugee status was revoked and he was deported to Sri Lanka, his safety could be in danger. He was therefore granted name suppression until his refugee status was finally determined. Because Mr Samsudeen then appealed the deportation notice, the issue was still unresolved on 3 September 2021 and the suppression order was still in effect.
Following the supermarket attack, the Court received an urgent application to revoke the suppression order. The Court agreed that the suppression order precluded the publication of Mr Samsudeen’s name and identifying details.
Despite Mr Sansudeen’s death, the Court was urged to delay publication, to avoid putting family members at risk. The Judge noted that this was not the basis on which suppression had been granted. He revoked the suppression order and allowed 24 hours for the family to make their own application for suppression.
At the next hearing on 4 September 2021, the family sought a further extension of 12 hours. This was declined, the Crown submitting this was effectively an application for suppression in relation to the attack. The Judge accepted there were no extant orders suppressing Mr Samsudeen’s name in relation to what happened at Lynn Mall. The suppression orders were made in relation to earlier offending. There being no criminal proceedings in relation to the attack, there was no jurisdictional basis for a suppression order.
It follows that the scope of the suppression order made in July 2018 may have been misunderstood. It may not have prevented publication of Mr Samsudeen’s name in relation to the events on 3 September 2021. In terms, the CPA requires that suppression orders apply in respect of specific offending. Certainly, it is difficult to see why an order should ever apply to subsequent offending.
