A high-profile sportsman's bid for name suppression has come before the Court of Appeal - again - in the latest chapter of his fight to keep his identity secret forever.
The Court of Appeal. Photo: RNZ / Rebekah Parsons-King
The man was named in the trial of the trio, Tevita Fangupo, Tevita Kulu and Toni Finau, who were found guilty of importing methamphetamine from California in the High Court at Auckland last year.
In 2017, Fangupo and Kulu imported large amounts of methamphetamine, disguised in Nike shoes and clothing declared as gifts. Finau was party to several importations.
At trial, the Crown said a series of messages on Wickr - an encrypted messaging app - showed the sportsman was involved through transporting and changing currency and had been supplied methamphetamine by Finau.
Although the sportsman was the subject of police interest, authorities did not speak to him, did not execute a search warrant and have never charged him.
A series of court decisions have affirmed the legitimate public interest in these decisions, while also making plain the allegations against the man are just that.
Today's appeal
This is the second time the sportsman's application for permanent name suppression has come before the Court of Appeal.
The sportsman is appealing the High Court's refusal to grant the application, after it considered it afresh in June.
Justice Kos, Justice Muir and Justice Wylie reserved their decision after hearing the appeal at the Court of Appeal in Auckland this morning.
Michael Heron QC reiterated that his client had sworn on oath, through an affidavit, that he had never had any dealings with methamphetamine and had never had the opportunity to challenge the allegations in court.
The lawyer said the sportsman was completely unaware of the allegations when they first surfaced.
He said the Crown had erred in its duty to only make allegations when they were fair, reasonable and necessary.
The media had since published the Crown's "damaging" submission his client was involved in an international drug syndicate and that could not be undone, Heron said.
On the subject of a person's right to privacy, Justice Kos compared his own public standing as the President of the Court of Appeal versus that of his brother, who does not hold a position in the public eye.
The judge said the sportsman was not a private figure but, like himself, "rather more prominent", with the means to enlist high-powered lawyers or public relations staff to respond to the allegations.
In response, Heron said this did not entirely remove his client's right to privacy and if named, the sportsman would be inextricably linked to the already-published allegations.
In a final submission, Heron said the matter could still go to the Independent Police Conduct Authority, where he was sure it would result in the watchdog affirming his client should not have been charged.
For the Crown, Rebecca Thomson said the High Court had correctly considered the level of hardship the sportsman would face if named, including any possible hardship in light of the allegations already published online.
She said it was important for justice to be seen to be done, so the public could maintain confidence the criminal justice system was working.
Acting for Stuff, media lawyer Robert Stewart said it would be was "exceedingly generous" to describe the police investigation that lead to the decision not to charge the sportsman as thorough.
Stewart said public interest could not be fully satisfied unless the public was able to discuss the police decision, knowing the full facts of the case.
"Part of the media's role is to hold those in power to account and hold the police, as state actors, to account in decisions made or not made," Stewart said.
"Was there some form of favouritism in the police deciding not to charge [the sportsman] because he was a high profile individual? All of these questions need to be asked."
