Court of Appeal rules sports star linked to drugs conspiracy can be named

Sam Hurley, NZ Herald,
Publish Date
Thu, 1 Aug 2019, 4:05PM
The sportsman still has a right to take the case to the Supreme Court. (Photo / NZ Herald)
The sportsman still has a right to take the case to the Supreme Court. (Photo / NZ Herald)

Court of Appeal rules sports star linked to drugs conspiracy can be named

Sam Hurley, NZ Herald,
Publish Date
Thu, 1 Aug 2019, 4:05PM

New Zealanders will know who the prominent sportsman linked to an international drug conspiracy is at 3pm next Thursday ... unless the star takes his case for secrecy to the country's highest court.

The sportsman had fought to keep his name hidden after being connected to the High Court trial of Tevita Fangupo, Tevita Kulu and Toni Finau earlier this year.

Former solicitor-general Michael Heron, QC, is representing the Kiwi star and argues if his client is named it would cause almost irreparable damage to the sportsman's career.

However, in a decision after the May trial, Justice Mathew Downs declined the sports star's bid for permanent name suppression.

The decision was then challenged in the Court of Appeal last month, with both the Crown and media opposing a permanent gag order.

Today, the Court of Appeal judges released their decision.

Name suppression was declined by the trio of Justice Patricia Courtney, Justice Geoffrey Venning and Justice Rachel Dunningham.

It is now due to lapse at 3pm next Thursday if not appealed, they ordered.

But Heron told the Herald to expect an application for leave to appeal the decision to the Supreme Court.

The Court of Appeal judges said in their decision there is "unquestionably, a high public interest" in how methamphetamine comes into New Zealand, including how it is financed, transported and how it is distributed once it arrives.

"The public has an interest in knowing who is behind this offending, including those who assist or enable it to occur, even if not directly involved," they said.

Despite not being charged, the Crown named the sports star during the trial and alleged he was linked to the offending after several social media messages were uncovered.

The Crown accused him financing the drug syndicate by taking cash from New Zealand to the US to buy meth and import it back here.

A witness also said he saw the sportsman purchase "white pills" in 2017, which was argued at trial to be steroids and bodybuilding supplements.

Police have said they were set to lay criminal charges against the sports star over his alleged involvement with the syndicate, which was importing its drugs from California.

But sources have told the Herald police did not consider they had enough evidence to secure a conviction.

A search warrant was also obtained for him but never executed.

After the trial, Detective Inspector Scott Beard said in a statement the sports star did not receive "special treatment".

"We can confirm that as part of our investigation police identified others who may have been involved in this criminal activity and made significant inquiries into this but there was insufficient evidence to charge," he said.

The Court of Appeal judges said: "Although [the sports star] was the subject of police interest, he was never actually spoken to (having exercised, through counsel, his right to silence) ... He was never charged. He was not asked to give evidence in the proceeding. He did not have access to criminal disclosure."

Despite this, the judges added: "In our view, [the sportsman] did have the opportunity to respond to the allegations but did not do so."

They said by the time the name suppression application was argued the sportsman had made no response, either by affidavit or through counsel.

"It is only now, on appeal, that he has said, through counsel, that he denies the allegations," the judges said.

In a win for New Zealand's media, the Court of Appeal also strongly ruled in favour of open reporting of the country's court proceedings.

"The point of conducting criminal trials in public and the principle of open justice is that the trial can be fully reported by the media acting as proxy for the public," the Court of Appeal ruled.

"We agree that there is a legitimate public interest in the decision of the police not to charge someone who is named in evidence in a criminal trial as a person who may have been involved in the subject offending."

The Court of Appeal judges said while a suppression order would not preclude public debate based on the other known facts of the case it would be "more circumscribed than debate that occurs when the public is in full possession of all the facts".

"There is a legitimate public interest in knowing of allegations of serious conduct against a person who enjoys a high public profile and of the fact that the police have not considered that charges are warranted.

"The police statement that omits any names is insufficient to allow such debate."

However, the judges said care was needed to avoid a "trial by media".

"The allegations against [the sportsman] are no more than that; they have not been proven and there is currently no forum for that to happen," they said.

"It can, however, be assumed that the media will observe its obligation to report in a fair and balanced manner and make clear the limits on conclusions that can be drawn from the evidence given at trial."

The judges said: "We consider that the relevant factors in this case were the seriousness of the offending (including the manner in which the importation and distribution of the methamphetamine were effected), the public interest in the decision not to charge a high-profile individual and potential for suppression to erode public confidence in the criminal justice system.

"These are all powerful factors and ones that, in our view, could not properly be recognised without the media being able to fully report on the evidence given at trial."

The Court of Appeal judges said they were satisfied the sports star has had the opportunity to respond to the allegations against him.

"We see no unfairness in the way in which the application was determined," they said.

The members of the drug syndicate, Fangupo, Kulu, Finau and Halane Ikiua are all due to be sentenced in October.


Kerre McIvor Mornings

Kerre McIvor Mornings

9AM - 12PM