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A high-profile athlete’s proposal for name removal has been brought before the Court of Appeal, again, in the latest chapter of his fight to keep his identity secret forever.
Auckland High Court (file). Source: istock.com
By Anneke Smith of rnz.co.nz
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 Auckland Superior Court last year.
In 2017, Fangupo and Kulu imported large quantities of methamphetamine, disguised in Nike shoes and clothing declared as gifts. Finau was part of several imports.
At the trial, the Crown said that a series of messages on Wickr, an encrypted messaging application, showed that the athlete was involved in transporting and exchanging money and that Finau had supplied him with methamphetamine.
Although the athlete was the subject of police interest, the authorities did not speak to him, did not execute a search warrant and never charged him.
A number of court decisions have affirmed the legitimate public interest in these decisions, while making it clear that the charges against the man are just that.
This is the second time that the athlete’s request for the permanent deletion of the name has been submitted to the Court of Appeal.
The athlete appeals against the Superior Court’s refusal to grant the request, after it reconsidered it in June.
Judge Kos, Judge Muir and Judge Wylie reserved their decision after hearing the appeal at the Auckland Court of Appeal this morning.
Michael Heron QC reiterated that his client had sworn under oath, through an affidavit, that he had never dealt with methamphetamine and had never had the opportunity to challenge the allegations in court.
The attorney said the athlete was completely unaware of the allegations when they first surfaced.
He said that the Crown had erred in its duty to make accusations only when they were fair, reasonable and necessary.
The media had since published the Crown’s “damaging” presentation that its client was involved in an international drug syndicate and that could not be undone, Heron said.
On the issue of a person’s right to privacy, Judge Kos compared his own public position as president of the Court of Appeal to that of his brother, who does not hold public office.
The judge said the athlete was not a private figure but, like himself, “far more prominent,” with the means to recruit high-powered lawyers or public relations personnel to answer the allegations.
In response, Heron said that this did not completely eliminate his client’s right to privacy and, if named, the athlete would be inextricably linked to the allegations already published.
In a final presentation, Heron said the matter could still go to the Independent Police Conduct Authority, where he was sure the watchdog would claim that his client should not have been charged.
For the Crown, Rebecca Thomson said the Superior Court had correctly considered the level of difficulty the athlete would face if appointed, including any potential hardship in light of the allegations already posted online.
He said it was important that justice be seen to be done so that the public could maintain confidence that the criminal justice system was working.
On behalf of Stuff, media attorney Robert Stewart said it would be “extremely generous” to describe the police investigation that led to the decision not to charge the athlete with thoroughness.
Stewart said the public interest could not be fully satisfied unless the public could discuss the police decision, knowing all the facts of the case.
“Part of the role of the media is to hold those in power to account and to hold the police, as state actors, accountable for decisions made or not made,” Stewart said.
“Was there any form of favoritism in the police in deciding not to press charges [the sportsman] because he was a high profile individual? All these questions must be asked. “
