A v The Queen

[2019] NZHC 3412

ORDER PROHIBITING PUBLICATION OF NAME, ADDRESS, OR IDENTIFYING PARTICULARS OF APPELLANT/DEFENDANT PURSUANT TO S 200 CRIMINAL PROCEDURE ACT 2011. SEE

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2019-404-000457

[2019] NZHC 3412

BETWEEN

A

Appellant

AND

THE QUEEN

Respondent

Hearing:	17 December 2019
Appearances:	P Hamlin for the Appellant E Smith for the Respondent
Judgment:	19 December 2019

JUDGMENT OF WOOLFORD J

This judgment was delivered by me on Thursday, 19 December 2019 at 9:00 am

Registrar/Deputy Registrar

Solicitors:           Meredith Connell (Office of the Crown Solicitor), Auckland Counsel:     Mr P Hamlin, Auckland

A v R [2019] NZHC 3412 [19 December 2019]

Summary

[1]    On 4 October 2019, A was sentenced to 10 months’ home detention in the Auckland District Court on charges of:

(a)Doing an indecent act on a young person;

(b)Meeting a young person following sexual grooming;

(c)Exposing a young person to indecent material;

(d)Supplying cannabis to a person under 18 years old (x 2); and

(e)Attempting to pervert the course of justice.

[2]    Judge Field declined to make an order placing her on the Child Sex Offender Register as he was of the view that she did not pose an ongoing risk to children, but declined to grant permanent name suppression. This is an appeal against that decision. A bases her appeal on the consequences of publication for her husband (H) and their three teenage children (C1, C2 and C3).

Background

[3]    A was a social worker with Oranga Tamariki. The offending occurred after she took over the case of the first complainant aged 15, who lived with the second complainant, aged 14. She visited the address frequently and was in constant contact with the first complainant over a period of weeks.

[4]    She supplied both complainants with cannabis. She exchanged nude pictures with the first complainant and requested pictures of his penis. She also met him outside her role as a social worker and kissed him on a number of occasions.

[5]    When she found out that the first complainant’s grandfather had gone to the police, she asked him to say that nothing had happened and delete their photos and messages.

District Court Decision

[6]    Judge Field noted that the Criminal Procedure Act 2011 was quite clear in its terms and that he had to be satisfied that publication of A’s name would cause extreme hardship to the children. He accepted that there would be stress caused to the children by publication of their mother’s name and that there was already a hint, and perhaps more than a hint, of mental disturbance in the children, as they awaited the outcome of the proceedings.

[7]    In the end, the Judge accepted the consequences as outlined, but did believe they could be mitigated with the input of A herself, with appropriate counselling and assistance.

Law

[8]    The Court’s power under s 200 of the Criminal Procedure Act 2011 to grant name suppression requires a two-stage analysis.1

[9]    First, the applicant must establish that one or more of the threshold grounds under ss 200(2) is “likely” to occur as a result of publication. Here ss 200(2)(a) and

(e) are relevant:

(2)       The court may make an order under subsection (1) only if the court is satisfied that publication would be likely to-

(a)cause extreme hardship to the person charged with, or convicted of,  or acquitted of the offence, or any person connected with that person; or

...

(e)       endanger the safety of any person; or

…

[10]   Likely means a “real and appreciable possibility that cannot be dismissed or ignored as being remote or fanciful”.2 Hardship means severe suffering – and

1      Robertson v Police [2015] NZCA 7 at [39]-[41].

2      Beacon Media Group Limited v Waititi [2014] NZHC 281 at [21].

‘extreme hardship’ is regarded a very high level of hardship.3 Something out of the ordinary is needed to get across the threshold.4

[11]   Second, in determining whether open justice should yield, any departure from the principle of open justice must be clearly justified. The balance must "clearly favour" suppression.5 Relevant considerations include:6

… the open justice principle, the seriousness of the offending, the presumption of innocence, the public interest in knowing the applicant's character and identity, the public's right to freedom of expression, the applicant's youth and the likely impact publication will have on the applicant's prospects of rehabilitation, any other circumstances personal to the applicant, the interest of victims and the interests of other affected person.

Submissions

Appellant submissions

[12]   A’s submissions focussed on the risks to her family if her name was published. The family were interviewed by a registered clinical psychologist, Ms Sabine Visser, who has provided three reports, one prior to the Judge’s decision and two subsequently. The latter two are dated 14 November 2019 and 12 December 2019. A community support worker who has been working with C1 for two years and has filed an affidavit dated 13 December 2019. A herself has also filed a lengthy affidavit dated 12 December 2019. No information about the views of the victims was provided to the Court.

[13]   Counsel submits that H will be unable to cope with the scrutiny of his colleagues if name suppression lapses, and that he will resign from his job. Ms Visser has significant concerns about his mental health:

During the interview he disclosed that he was feeling depressed and that he has had suicidal thoughts. He expressed real concerns for his own future as he feels if name suppression was lifted, he will not be able to continue with his work. His feelings of confusion, shame and guilt have led to significant deterioration in his mental health and coping. He is not able to express a plan of how to cope if name suppression is lifted. He cannot formulate what he would do which places him at extreme risk for suicide…

3      Robertson v Police [2015] NZCA 7 at [48].

4      DP (CA418/15) v R [2015] NZCA 476 at [6].

5      D (CA443/2015) v Police [2015] NZCA 541 at [12].

6 At [12].

I believe that there is a high risk of suicide and emotional collapse which will impact the children significantly and it will affect the family financially as H is the main income earner. I do believe that if name suppression is lifted H will resign his employment.

[14]   Counsel also submits that C1 is highly anxious for his safety, and the safety of his siblings, if name suppression lapses. C1 told Ms Visser that he is considering not returning to school next year and finding work instead, although he wants to be an engineer. His community support worker states that she has seen a sharp increase in his levels of stress and anxiety in recent months and that he has said he is worried about C3 accidentally killing herself if she continues to self-harm. Counsel also notes that C2 is anxious he will lose friends and be subject to bullying.

[15]   Counsel further submits that C3 is at real risk of accidental death or suicide if A’s name is published. A has deposed that C3 is extremely anxious about name suppression lapsing, and the (online and in-person) bullying that she and her brothers are likely to face. C3 has self-harmed on at least two occasions since A’s arrest, cutting her arms with a razor. She is starting at a new school next year without any of her friends. The community support worker described C3’s self-harm as pre-meditated. Ms Visser said of her interview with C3:

We talked about her previous self -harm and C3 was very clear that she could not give guarantees that she would not resort to this again. As a matter of fact she was very clear that there was a high likelihood that she would revert to this behaviour despite knowing that this was high risk behaviour that could lead to death. C3 indicated that if name suppression was lifted, she felt that her life would be severely impacted and could not guarantee her safety.

[16]   Counsel submits that A’s case has attracted significant media publicity. Following her first appearance, the case was reported by Stuff, the New Zealand Herald, TVNZ, Radio New Zealand, and the Otago Daily Times. Oranga Tamariki’s deputy chief executive issued a statement, saying: “We are appalled at the allegations, which are shocking and deeply upsetting.”

[17]   Counsel has also proposed a ‘Plan B’. In response to the children’s growing distress in recent months, the community support worker has arranged for stronger support from community Trust. If H resigns from his job, the family will likely be

placed in the Trust’s High Risk Register. If name suppression lapses, Ms Visser will see H shortly afterwards in order to mitigate his suicide risk.

[18]   As to the public interest, counsel refers to B v R in which the court held that there is no reason why sexual offending should be seen to automatically carry a heightened case for publicly identifying the offender.7 A has been assessed by Jim Van Rensburg, a clinical psychologist, to have a low risk of re-offending so name publication is not critical to personal deterrence.

Crown submissions

[19]   The Crown submits there is little to differentiate A’s family’s situation from others charged with similar offending and emphasizes that there is a difference between hardship experienced because of the offending and hardship experienced because of the publication of A’s name.

[20]   The evidence in respect of C1 and C2 establishes no more than that they are worried about being bullied at school and when playing sports, and are concerned for the wellbeing of their sister and father. While the community worker’s affidavit asserts a risk of C1 becoming clinically depressed if he is unable to protect his younger siblings from any negative consequences of publicity, this falls short of establishing a real and appreciable risk.

[21]   As for the effect on C3, the Crown notes she has not expressed any suicide ideation or previously attempted suicide. H also has no history of self-harm or suicide attempts.

[22]   The Crown submits all the family have access to appropriate and effective support structures. The Crown further submits that the principle of open justice favours lifting suppression and there is a legitimate public interest in the publication of A’s name.

7      B v R [2011] NZCA 331 at [21].

Discussion

Step One

[23]   In cases concerning the risk of self-harm or suicide, evidence is required to show that suicide is a “real and appreciable possibility” before the extreme hardship threshold is met.8 An applicant will normally have to point to something more than the usual feelings of anxiety and despair that may attend proceedings.9

[24]   For H, C1 and C2, I do not consider there is enough evidence that I can say there is a real and appreciable risk of extreme hardship or endangerment if their cases are considered individually. Their cases do, however, add weight to my assessment that there is a real and appreciable risk of extreme hardship or endangerment in the case of C3. The whole family is under huge stress.

[25]   C3 is just 13 years old. There is evidence that she has self-harmed as a result of her mother’s offending. She is frightened of the publication of A’s name, when she has started a new school where she does not have friends. She has suggested she may continue self-harming and Ms Visser considers that there was a real risk she would attempt suicide. The fact that C3 is an adolescent adds an extra element of risk and concern. Adolescence is a period of internal instability where children challenge boundaries. They are vulnerable to emotional turmoil and others opinion, especially their peers. In my view, there is a real and appreciable possibility that C3 may continue to self-harm or commit suicide.

[26]As to whether this constitutes extreme hardship, Winkelmann J’s judgment in

BL v R held:10

Where there is a risk of suicide, the Court must consider the medical evidence before it. Where a risk of suicide is established, name suppression does not automatically follow; the existence of a suicide risk is a relevant, but not determinative, factor.

8      D (CA443/2015) v Police [2015] NZCA 541 at [30](a).

9 At [30].

10     BL v R [2013] NZHC 2878.

[27]   Judge Field accepted the consequences as outlined, but believed that they could be mitigated with the input of A herself, with appropriate counselling and assistance. It is here I differ from the Judge. On the evidence now before the Court, A’s relationship with her husband and children has deteriorated since she was arrested. C3 may well shun A or reject any offers of assistance from her. Furthermore, while the community Trust is to be commended for their assistance to this family in distress, I am fearful that the assistance will not be enough to mitigate the probable consequence of lifting name suppression. In making this assessment, I have had the benefit of updated and new information which was not available to the Judge.

[28]   Ms Visser concludes that no amount of counselling and support will undo the damage the children and H will suffer as a result of name suppression being lifted. The entire structure of the family will disintegrate and while psychological input will be able, over time, to assist with the children dealing with that loss of the family unit, it will not be able to be repaired. Ms Visser also notes that while a referral to Mental Health Services will be made, she is under no illusion that the help available from a public funded system will be less than adequate as there are long waiting periods and psychologists are not available due to overloading and underfunding.

Step Two

[29]   Standing back, and looking at the overall circumstances, I accept the offending was serious and open reporting is a central value of the criminal justice system. However, very special circumstances exist in this case which displace the principle that offender’s names should normally not be suppressed. In this case, the balance clearly favours suppression.

[30]   A has already been described in media reports as a former Oranga Tamariki social worker in her mid-30’s. Full details of her offending have been published. Reference in newspaper reports has been made to a psychologist’s report, which discussed the motivation for the offending. A photograph of her with her head covered by a denim jacket leaving Court has been published. The public know everything, but her name. The Judge found the offending to be one-off offending and declined to

make an order placing her on the Child Sex Offender Register. Publication of her name is not required for personal deterrence or to protect the community.

Result

[31]   The appeal against Judge Field’s decision dated 4 October 2019 to decline A’s application to suppress her name, address and any details which may identify her is allowed. There will be an order forbidding publication of A’s name, address and any details which may identify her pursuant to s 200 of the Criminal Procedure Act 2011.

Woolford J