By Anna Longdill
Application for leave to appeal the Court of Appeal’s first instance granting of name suppression to appellate counsel for mosque terrorist – Senior Courts Act 2016, s 74; Criminal Procedure Act 2011, s 202 – does the proposed appeal disclose a matter of general or public importance? – is the court satisfied it is necessary in the interests of justice to hear and determine the proposed appeal before the proceeding’s conclusion?
NZME Publishing Ltd v Tarrant [2024] NZSC 36
Brenton Tarrant pleaded guilty to 51 charges of murder, 40 charges of attempted murder and one charge of engaging in a terrorist attack following the Christchurch Mosque attacks on 15 March 2019. He was convicted and sentenced to life imprisonment without parole.
On 3 November 2022, Tarrant filed a notice of appeal against conviction and sentence. The appeal is on the basis that he pleaded guilty under duress.
Tarrant’s current counsel, Lawyer A and Lawyer B, were assigned to act for him in August 2023. They applied to the Court of Appeal for an order permanently suppressing publication of their names on the grounds set out in s 202(2)(a) and (c) of the Criminal Procedure Act 2011.
The Court of Appeal granted the application, finding that Lawyers A and B would face undue hardship, even though the evidence did not identify any specific risks of abuse or threats towards them (refer case note here: Mosque terrorist’s lawyers granted name suppression – Law News).
NZME Publishing Ltd applied for leave to appeal to the Supreme Court, seeking to advance three grounds of appeal said to be of general and public importance:
1. The Court of Appeal improperly applied the “undue hardship test” by failing to articulate the counterfactual to which the hardship is compared, the reasons for barrister’s public role and the efficacy of mitigation options.
2. Evidence of specific, as opposed to general, evidence of hardship is required to meet the jurisdictional threshold.
3. The Court of Appeal misapprehended the last step of the analysis, which is an evaluative, not discretionary, exercise.
The Crown supported leave being granted on the first ground, particularly as to how the test for undue hardship is construed in relation to criminal lawyers.
Tarrant and Lawyers A and B opposed leave being granted on any ground, emphasising the importance of suppression to Tarrant’s fundamental rights, the unimportance of the lawyers’ names to reporting and confidence in the justice system and the unlikelihood of the decision setting an adverse precedent.
Applicable principles: Senior Courts Act 2016, s 74; Criminal Procedure Act 2011, s 202(2)(a) & (c) – does the proposed appeal disclose a matter of general or public importance? (no, this is not an appropriate case in which to consider the approach to undue hardship as the unusual circumstances of the underlying appeal disclose no balanced question of general or public importance. The second ground is highly fact-specific and does not disclose a question of general or public importance. In relation to the third ground, the precise test for appellate review is unlikely to be a material issue and there is no appearance of error in the evaluation undertaken by the Court of Appeal) – appeal from an interlocutory application – is the court satisfied it is necessary in the interest of justice to hear and determine the proposed appeal before the proceeding’s conclusion? (no).
Held: The application for leave to appeal is dismissed. Accordingly, the Court of Appeal’s order permanently prohibiting publication of Lawyer A and Lawyer B’s names, addresses or identifying particulars remains in force. An order is made prohibiting search of the files for this application without leave of a judge of the Supreme Court.
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