AB v The Queen - [2020] NZHC 658

EXISTING INTERIM NAME SUPPRESSION ORDER EXTENDED AS INDICATED BELOW.

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2019-404-534

[2020] NZHC 658

BETWEEN
AB

Appellant

AND

THE QUEEN

Respondent

Hearing: 18 February 2020

Counsel:

E Priest for Appellant

E Woolley for Respondent

Judgment:

30 March 2020

JUDGMENT OF WHATA J (REDACTED VERSION)

This judgment was delivered by me on 30 March 2020 at 3:00 pm.

Registrar/Deputy Registrar Date: ………………………….

Solicitors: Meredith Connell, Auckland

AB v R [2020] NZHC 658 [30 March 2020]

Introduction

[1] AB faced five charges of indecent assault. His case received extensive media coverage because the offending took place at a Young Labour Party summer camp. AB was described as an alleged sexual offender by the media. But AB is not a sexual offender. Three of the charges of indecent assault were dismissed and two of the charges were reduced to common assault, to which AB pleaded guilty. He was then discharged without conviction. In the result, AB was deemed to be acquitted on all charges. Yet, the media in some respects continues to mischaracterise AB as a sexual offender. The key issue on this appeal is whether, because of the distress caused to AB by this media coverage, his name should be permanently suppressed.

Fresh evidence

[2] AB seeks to have admitted evidence of post-sentence media coverage of his offending. It is fresh and cogent insofar as it tends to support AB’s claim that the coverage has been extensive and, in some respects, has vilified AB as an alleged sexual offender post acquittal. I therefore admit it.

Facts of offending

[3] AB originally faced five charges of indecent assault involving alleged touching of Z and E’s genitals, kissing the neck and face of a young woman, and touching of the breast and bottom of another young woman. Two of the charges of indecent assault against the two men were reduced, by agreement, to the two charges of common assault mentioned above. A further charge against another male complainant was also withdrawn. The Crown offered no evidence in relation to the charges in respect of the two women. Those charges were therefore dismissed.

[4] The facts to which AB pleaded guilty are as follows. They are taken from the caption summary of facts adopted by Judge R J Collins in granting the discharge without conviction.

[5]On Saturday, 10 February 2018, AB was at a youth camp near Waihi. At about

8.00 pm that night, AB was in the dining hall where a number of people were in

attendance for a quiz night. AB, as well as other participants of the camp, were consuming alcohol. At the conclusion of the quiz, there was music and people dancing.

[6] At some point during that night, AB walked past Z (first complainant) and, as he did so, put his hand down Z’s pants, inside his underwear, grabbing his penis and testicles for approximately one second.

[7] Later on, at around midnight,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2020] NZHC 658
Decision Date: 30 March 2020

CaseChat Overview and Summary

AB appealed against the refusal of the High Court to make a permanent name suppression order. AB was acquitted of five charges of indecent assault but faced ongoing media coverage that continued to mischaracterise him as a sexual offender. AB argued that the distress caused by this media coverage amounted to extreme hardship, warranting a permanent name suppression order. The Crown argued that the distress was a natural consequence of the media coverage of a high-profile case and that the principle of open justice should prevail.

The court held that the media coverage was extensive and often sensationalised the allegations of sexual offending. The court found that the likely publication harm to AB was significant, including vilification, impact on employment prospects, and effects on family. However, the court concluded that the claimed hardship did not amount to extreme hardship as it was a natural consequence of media coverage of high-profile criminal proceedings. The court also found that the ongoing legitimate public interest in the proceedings, together with the principle of open justice, must prevail. The appeal was dismissed, but the court continued the name suppression order until 1 May 2020 to allow for a potential appeal to the Court of Appeal.

Orders