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 A further charge against another male complainant was also withdrawn.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, a group including AB gathered to take a photograph. During the taking of said photograph, AB reached out and put his hand inside the front of E’s (second complainant) pants on top of his underwear to his genitals. E pushed AB’s hand away. Shortly after, AB again put his hand down E’s pants in the same manner, only not as close to E’s genitals. E again pushed AB’s hand away.

[8]    Later that night, AB apologised to E for touching him. The following morning, AB apologised to Z for what he had done the night before.

[9]    AB did not know either of the complainants prior to the camp. Z was 18 at the time of these events, while E was 16.

Circumstances and reasons for withdrawal, dismissal and acquittal

[10]   By minute dated 2 March 2020, I directed that the parties provide an agreed statement of position as to the circumstances of, and the reasons for, the acquittal of the indecent assault charges, and a reduction of the indecent assault charges to charges of common assault. I also sought clarification of the statutory basis for both steps. The following records the response to my direction.

[11]   On Monday, 2 September 2019, AB's trial commenced. AB faced a total of five charges of indecent assault involving two male complainants and two female complainants (there were two charges for one of the male complainants and one each for the other three complainants).

[12]   During the defence opening statement, AB's counsel set out her approach to defending the charges. This was as follows:

(a)Complainant 1 and 2 (males) – some form of touching occurred, but it was not indecent, and he did not appreciate that it was indecent. It was a light-hearted joke in the context of a party.

(b)Complainant 3 (female – the kiss) – the touching was consensual, or at the very least, AB had an honest belief in consent.

(c)Complainant 4 (female – touching breast/bottom) – the touching either did not happen or was accidental if it did. He had no recall of this happening at all.

[13]   As evidence commenced and the trial continued, AB’s position was put to the first Crown witness, a male. At the completion of the evidence-in-chief of the second complainant, but prior to cross-examination, counsel for AB enquired with the Crown whether there might be a route to resolving the matter.

[14]It was agreed that a resolution would involve:

(a)offering no evidence in respect of the two female complainants;

(b)amending the charge of indecent assault to reduced charges of common assault in respect of the two male complainants; and

(c)the Crown would not oppose an application for a discharge without conviction.

Resolution: the Crown perspective

[15]   In considering this proposal the Crown had regard to the Solicitor-General's prosecution guidelines, which require evidential sufficiency for charges and an assessment of whether there is public interest in a prosecution being implemented, or where implemented, continued.

[16]   Here, in bringing the charges, the Crown took the view that the evidential sufficiency threshold was met. As to public interest, the alleged offending was at the lower end of the spectrum of seriousness for sexual offending. However, in the absence of an acknowledgement by AB of at least some form of offending, the public interest required prosecution.

[17]   AB’s mid-trial proposal implied that AB recognised the touching of the two males did happen largely in the way the Crown alleged, but he continued his assertion that he did not know that the touching was indecent or that the circumstances made the touching indecent.

[18]   The Crown re-assessed the public interest in continuing the trial in light of the resolution proposal. This re-assessment needed to take account of the uncertainties and costs inherent in the jury process, the fact AB acknowledged the intentional non- consensual touching of the males, the consequence of avoiding either female complainant having to give evidence, and the moderate level of the alleged offending as a whole.

[19]Having undertaken that re-assessment, the Crown resolved to accept the offer.

Resolution: the defence perspective

[20]   AB had been prepared to offer a plea to a lower charge from case review stage. An initial resolution proposal was offered to, accepted by and then later rejected by the Police as inappropriate following consultation with the Crown. AB's position was always as set out in the opening statement to the jury.

[21]   In evidence, the first complainant commented that the defendant appeared happy when the assault occurred, and he did not think AB was aware that what he was doing was inappropriate.

[22]   When the second complainant gave evidence, he offered in examination-in- chief that when AB first touched him that he did not really think anything of it. When it happened a second time, he said that he laughed about it, still not thinking much of it.

[23]   Both male complainants commented on AB's level of intoxication and the need to get him to bed. There was objective evidence (in the form of videos and photographs) showing a party atmosphere.

[24]   At the conclusion of the evidence of the second complainant, the defence team believed that there was a strong evidential foundation for the defences being run by AB and that it would be appropriate to approach the Crown regarding resolution in accordance with the opening address. While it was believed the defence was strong, there was always the risk of a conviction, and the key objective was to avoid that. With an assurance given by the Crown that the discharge without conviction application would not be opposed, the proposal was accepted.

Legal basis for the resolution

[25]The parties' resolution was implemented pursuant to the following provisions:

(a)the Crown sought and obtained leave of the Court to amend two of the charges involving the male complainants from indecent assault to common assault, pursuant to s 133 of the Criminal Procedure Act 2011 (CPA);

(b)the Court dismissed the two charges involving the female complainants pursuant to s 147 of the CPA, following the Crown's indication that it would not call any further evidence; and

(c)the remaining charge involving one male complainant was withdrawn pursuant to s 146 of the CPA – this was because this charge was included in the charge of common assault.

Discharge without conviction

[26]   Given the agreement reached, the Court was invited to discharge AB without conviction. After stating the facts of the offending, Judge Collins observed that the gravity of the offending was low. He noted:

[15]      Just by way of observation, in terms of my view that the gravity of the offending is low, can I just say this. In what is a quite representative week for any District Court Judge in this country, on Monday I dealt with six Judge alone trials. Tuesday, approximately 30 matters in a Crown case review hearing list. On Wednesday, yesterday, 13 defendants for sentencing. In 10 minutes time, I will start a Judge alone trial list which has eight defendants for Judge alone trial. Approximately 57 matters.

[16]      To the best of my assessment, in only one of those matters is the offending less serious than what is before me today, and in that case the young woman was discharged without conviction. So the assessment of the gravity of the offending as being low is in comparison with the volume of cases coming before this Court.

[27]The Judge also observed:

[17] But, to be added into that, are the following matters which reduce [AB’s] blameworthiness. I accept, too, that in everything I have read about him that but for this night he is also otherwise an impressive young man who has succeeded, to this point, very well in life. I have the obvious sympathy for him in the position that he found himself on account of his own drunken stupidity. He has pleaded guilty to the two charges. He has sought counselling. His chances of further offending have been assessed by a clinical psychologist as very low. He is a dedicated scholar. He has provided excellent references from those who know him. He has also lost one job as a result of his actions.

[28]The Judge then concluded:

[18]      When those matters are factored in, the gravity of his offending becomes even less. As to the consequences, there are, as set out in Ms Priest’s submissions, a real and appreciable risk of not only a general detriment to his future but also a real and appreciable risk that conviction would have on his future employment prospects. He is a talented, capable young man who should treat today as a challenge to not only get on with his own life but also use his talents to contribute positively to society.

[19]      So, in my view, the consequences of conviction to him are out of all proportion to the gravity of the offending, and he will be discharged without conviction.

Suppression

[29]On the issue of suppression, Judge Collins acknowledged and found that:

… the high standard of extreme hardship had not been reached. It is not for the Courts to dictate to the media what cases the media choose to cover. Both the Courts and media have their own fundamentally important role to play in free and [democratic] societies, and I certainly do not want to use this judgment as a platform to embark upon wider discussion about that.

[30]   The Judge did not accept that AB would be ostracised [REDACTED]. The Judge acknowledged the submission that AB would “always be blighted as the young man who was involved in the allegations of sexual offending”. But he said:

this had to be balanced by the fact that is not what transpired in the Court, that is not what he admitted and because some people might erroneously interpret what occurred, in my view that does not add particular weight to his application for suppression.

Evidence

[31]   Evidence has been provided by AB and Mr R, [REDACTED].1 It was not contested. The following part of the judgment is based on this fresh evidence.

AB

[32]   AB had just turned 20 at the time of the offending. [REDACTED]. He is deeply fearful of how his family and wider community will react to the allegations of sexual offending.

[33]   AB recently graduated with a degree [REDACTED]. He is nearly completed a postgraduate qualification [REDACTED]. He has aspirations to be a [REDACTED] consultant or adviser. His employment has already been impacted. AB recently lost his job as a [REDACTED] assistant. Shortly after he pleaded guilty to the assault, his employers were informed by an anonymous source via the Whistleblower Hotline that AB was the defendant in the Labour camp trial, as it had become known. He was immediately dismissed.

1      [REDACTED].

[34]The stress of the trial and the media attention was and still is immense for AB.

[35][REDACTED].

[36][REDACTED].

[37][REDACTED].

[38][REDACTED].

[39][REDACTED].

[40][REDACTED].

Media coverage

[41]   Attached to the unpublished version of this judgment is a collection of relevant media publication headlines and excerpts concerning this matter. Some examples are from before AB’s acquittal (28 November 2019) while the rest are from afterwards. Overall, the examples show the significant extent to which the media coverage is imbued with the allegations of sexual offending, prior to and after the acquittals. It is not included in the published version of this judgment because that would serve only to unnecessarily aggravate the harm such publication has caused.

Appellate jurisdiction

[42]   As Ms Woolley noted, ordinary appellate principles apply.2 AB must show the Judge erred in some material respect, but in deciding whether he did or not, I may come to my own view on key issues in dispute, including issues of fact.

2      Austin Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103 at [16].

The threshold assessments

[43]AB claims extreme hardship per s 200(2)(a) of the CPA, which states:

200 Court may suppress identity of defendant

(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

[...]

[44]As the Court of Appeal stated in Robertson, s 200 requires a two-step test:3

[40]      At the first stage, the judge must consider whether he or she is satisfied that any of the threshold grounds listed in 200(2) has been established. That is to say, whether publication would be likely to lead to one of the outcomes listed in subs (2). The listed outcomes are prerequisites to a court having jurisdiction to suppress the name of a defendant. It is “only if” one of the threshold grounds has been established that the judge is able to go on to the second stage.

[41]      At the second stage, the judge weighs the competing interests of the applicant and the public, taking into account such matters as whether the applicant has been convicted, the seriousness of the offending, the views of the victims and the public interest in knowing the character of the offender.

(Footnotes omitted.)

[45]The Court of Appeal in D, described the threshold assessments in this way:4

[11]              Under the thresholds in paragraphs 200(2)(a), (c) and (d) the court must decide whether publication will cause “extreme” or “undue” hardship, or a “real risk” of prejudice. The adjectives indicate that these are comparative standards. They require that the court compare the consequences of publication in the instant case with those that normally attend prosecution. Distress, embarrassment and adverse personal and financial consequences usually attend criminal proceedings, and something out of the ordinary is needed if the applicant is to get across the threshold. This is an important principle. Its workings are well illustrated by the facts of Liddell, in which the offender’s wife was said to be “only just making it” after learning of his serial offending against children, but the Court reasoned that his family’s anguish was not an exceptional consequence of his crimes.

[12]              At the second stage the court must balance relevant considerations in the exercise of discretion. The open justice principle must be considered at

3      Robertson v Police [2015] NZCA 7.

4      D v Police [2015] NZCA 541.

this stage, notwithstanding that the threshold has been crossed. That is so because the ultimate question remains whether open justice should yield. The balance must “clearly favour” suppression. In a case turning, as this one does, on subs (2)(a), (d) and (e), relevant considerations accordingly include 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 persons.

(Footnotes omitted.)

[46]   It is common ground that extreme hardship must be something out of the ordinary. As the Court of Appeal in Robertson explained:5

The word “hardship” on its own means “severe suffering or privation”. The addition of the qualifier “undue” in s200(2)(c) indicates something more than hardship simple is required, while the word “extreme” in s 200(2)(d) indicates something more again.

[47]   The harm must also be likely to occur; that is, the harm must be a real and appreciable possibility that cannot be dismissed or ignored as being remote or fanciful.6

[48]   Relevant to this case are the dismissals of three of the charges of indecent assault and the reduction of the remaining charges to common assault. As the Court of Appeal said in M:7

[24] In our view it is open to the Court to examine the circumstances of the acquittal and to take those circumstances into account when deciding the extent to which the principle of open justice has been engaged, and whether it has been outweighed in the particular case. This approach is consistent with the decisions which have considered whether an acquittal justifies an order for permanent name suppression.

[49]   These observations were approved by the Court more recently in W, wherein it stated:8

[23] We turn to discretion. In doing so we note that where a defendant has been acquitted, the complainant is no longer a “victim” for the purpose of consultation under s 28 of the Victim’s Rights Act 2002. In

5      Robertson v Police, above n 3, at [48].

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

7      M v R [2013] NZCA 113.

8      W v R [2019] NZCA 192.

M (CA762/2012) v R, this Court held that name suppression should be more readily granted where the prosecution has offered no evidence or withdrawn the charge than where there has been significant judicial involvement in the determination of the outcome. It will similarly be more readily granted where the court has found no case to answer than when there is an acquittal following trial. We considered the fact the appellant had been discharged because the Crown elected not to call evidence in respect of certain charges was an important factor supporting permanent name suppression. That, coupled with evidence of serious psychological risks if the appellant’s name was published, was   enough   to   displace   the   presumption   of   open   justice.   While   M (CA762/2012) was decided under the previous Act, and therefore applies a holistic approach to granting suppression (rather than the two-stage inquiry mandated by the Criminal Procedure Act), these considerations are relevant to the exercise of discretion under stage two.

Submissions for AB

[50]   Ms Priest submitted that there is a real and appreciable risk of extreme hardship to AB and his family having regard to:

(a)the scale of the media attention already given to the circumstances of offending;

(b)the degree of misinformation and inappropriate scandalising of the circumstances of the offending by the media, including social media; and

(c)AB’s youth, employment prospects, and family [REDACTED] circumstances.

[51]   Ms Priest elaborated that AB has suffered through an intense and highly publicised trial and that he will suffer extreme hardship emotionally, socially and in his career if his name is not supressed permanently. She submits his family will also suffer extreme hardship [REDACTED].

[52]   Ms Priest emphasised that the potential harm to AB must be seen in its context, including the extent and role of the media in this case. She submits the Judge erred in determining that the content of the media was not relevant to the issue of extreme hardship. While the high volume of media coverage does not in itself prove extreme

hardship, she submits that the misinformed media content exacerbates the hardship on AB’s mental health, his employment prospects and his family.

[53]   In this regard, Ms Priest refers to several screen shots of media and social media which are said to show the intense and negatively toned media frenzy. It shows that AB has been vilified and his character tainted beyond repair. She noted that after AB pleaded guilty to assault charges and despite being acquitted of the sexual charges, members of the public have still labelled him as a “sexual predator”, “the Labour Youth Camp pervert”, and have used other such names on several social media platforms (namely, Facebook and Twitter) when commenting on recent media publications and posts concerning this matter.9 The effect of this, she submits, is to portray AB as, nevertheless, guilty of sexual offending. She notes further that one of the victims has spoken publicly about the “sexual” assault and that, even though AB was acquitted of all sexual assaults against the complainants, his offending is consistently described as a serious sexual assault and/or connected to a different alleged sexual assault (that was found to be unsubstantiated).

[54]   Ms Priest also refers to cases where permanent name suppression had been granted. I address those below when I come to my assessment. The key point she makes by reference to those cases is that the Court will suppress where adverse media comment may adversely affect rehabilitation.

[55]   She also refers to AB’s immediate loss of his employment on the discovery of his association with the “Labour Camp” scandal, as further evidence to support the extreme hardship claim. She says this shows that his character will be permanently and unfairly tainted with ongoing significant consequences for him in terms of obtaining employment. He will, in short, be permanently known as the Labour Party sexual offender. She notes, in this regard, that he was discharged without conviction because of the disproportionate effect of the conviction on his employment prospects. She says publication would completely undermine the basis for the discharge.

9      See ‘ANNEXURE OF MEDIA CONTENT “B”’ – submitted by defendant counsel in support of submissions.

[56]   Ms Priest also submitted the Judge wrongly failed to consider the unchallenged [REDACTED] evidence. She submits the Judge was wrong to presume that AB’s family would not experience significant shame [REDACTED].

[57]   Ms Priest also submits that AB has suffered considerable stress and will suffer extreme stress if his name is not suppressed.

[58]   As to the second stage of assessment, Ms Priest submits that the principle of open justice has been observed to the extent that the press has been present throughout. She says this is not a case where AB was found innocent but, rather, a case where the prosecution agreed the charges had to be withdrawn, because it was recognised that this was not sexual offending. She submitted further that the discharge would be undermined if his name was not supressed, as his name would be permanently linked to the allegations of sexual offending.

[59]   Finally, she submits that AB is a young person of good character with good employment prospects. This favours an exercise of the discretion to suppress.

Submission for the Crown

[60]   Ms Woolley submitted that the extent of media coverage is not relevant to the assessment of extreme hardship. She says it is no more than is to be expected in a high-profile case. Any inaccuracy should be addressed by way of complaint to the New Zealand Media Council. As to social media, Ms Woolley submits that AB can choose not to engage with it. Moreover, there is no evidence to show that AB’s mental health will suffer as a consequence of the media coverage.

[61]   She also submits that the concerns about impact on future employment prospects is overstated. She notes, referring to the decision in Proctor v R, that the impact on employment is what might be expected in the case of a professional person.10

10     Proctor v R [1997] 1 NZLR 295.

[62]   Ms Woolley further submits that it was available to Judge Collins not to accept the [REDACTED] evidence and find that the [REDACTED] ramifications were overstated. [REDACTED].

[63]   Turning to the second step, Ms Woolley emphasised the importance of open justice and referred to authorities where suppression was declined even though the likely extent of the media coverage might well have a significant impact. She also submitted that the acquittals and discharges, while relevant, do not mean AB is more or less entitled to name suppression. She also noted that after a spike in attention, the publication impact is likely to die down over time.

Hardship

[64]   I agree with Ms Priest that the harm caused to AB by publication (publication harm) is likely to be very significant having collective regard to the following factors:

(a)the scale and nature of the media coverage;

(b)the likely vilification of AB as a sexual offender;

(c)the likely impact of publication of AB’s name on his ability to gain employment; and

(d)the likely impact on AB’s family [REDACTED].

[65]Turning then to these factors.

The media coverage

[66]   Contrary to the submission made by Ms Woolley, the scale and nature of the potential effect of publication of AB’s name must be understood in light of the scale and nature of the media coverage of the “alleged” offending by him. In simple terms, the larger the scale and severity of the publication impact, the more significant the likely effect on AB.

[67]   The media coverage in this case was extensive. It was nationwide. The alleged offending also attracted international attention. It was covered by both mainstream and social media. It sensationalised what had allegedly occurred at the Labour Summer Camp. The media coverage referred to and often emphasised the allegations of sexual offending, before and after the acquittals. This is an aggravating feature in terms of the likely publication harm AB might suffer, especially as some coverage continues to wrongly cast AB as a sexual offender.

[68]   As Ms Priest submitted, this media coverage will likely have a significant impact on AB, his family and his community. Indeed, the imprint this type of coverage will leave with the public could be deep and long-lasting.

Vilification

[69]   The reputational impact on AB through publishing his name is likely to be severe. He will likely become a target, not only for legitimate criticism, but for unfair vitriol and vilification as a sexual offender. I also accept the opinion of Mr R that [REDACTED] AB and [REDACTED] could also become a target for [REDACTED] vilification.

Effects on AB’s employment prospects

[70]   There is already evidence of the immediate impact of the media coverage on AB. He was immediately dismissed [REDACTED] when it was discovered that he was the person subject to the Labour camp allegations. It is easy to see that if AB’s name is published, he will continue to be confronted with similar reputational concerns to those expressed by [REDACTED] when he applies for jobs within the professional sector. As Judge Collins found in respect of the black mark of conviction (though there is no conviction here, the principle can still apply generally to criminal proceedings), there is a real and appreciable risk that the allegations of sexual offending will imperil AB’s ability to gain a foothold in his chosen profession.

Impact on family [REDACTED]

[71]   I also consider his family’s reputation might suffer. They could experience [REDACTED] vilification. This will be particularly hard felt by AB’s father, who has an active leadership role [REDACTED] It will also be deeply felt by [REDACTED]. As Mr R noted, [REDACTED] that the [REDACTED] combine to elevate the significance of the media coverage of the allegations [REDACTED]. I am prepared to accept this evidence as providing a helpful insight [REDACTED]. I also accept that the impact on [REDACTED] of the publication of AB’s name, as a whole, would likely be significant. [REDACTED].

Summary of publication harm

[72]   In summary, the mass media publication of the initial allegations of sexual offending will have a significant impact on AB, even more so if publicity continues to mischaracterise his offending as sexual. His life will likely be defined by these events for the foreseeable future. He will likely be identified and vilified, wrongly, as a sexual offender, and there is a real and appreciable risk that a career in his chosen profession will be denied to him. He is still a young man and thus more vulnerable to the full force of this publication harm. However, I do not think that there is enough evidence to show that AB will be ostracised [REDACTED]. Mr R does not say that will happen. However, nonetheless, his whakamā will be immense, and the burden of that whakamā will be very distressing for him. Kāore e kore, ka tino patua ia e te whakamā.

Extreme Hardship

[73]   Given this, the harm AB is likely to suffer if his name is published is, in my view, extreme in the ordinary sense of the word. But, as stated in D, to qualify under the CPA, the claimed hardship must be something that does not usually attend a criminal prosecution and, ordinarily, the distress and other consequences of media reporting (including vilification and job loss) would not qualify as hardship, let alone extreme hardship. There is something unfair about making this discount in the hardship calculus in this particular case, because of the lack of correspondence between the scale and nature of the media coverage and the actual offending. But that point is one that might be made in a number of cases, and is not strong enough to

warrant departure from the orthodox position. And when that orthodoxy is applied, I am unable to find that the publication harm to AB amounts to extreme hardship. In short, much of the identified harm is a natural consequence of media coverage of high profile criminal proceedings.

[74]   Given this outcome, it is not strictly necessary to move to the second stage. However, in case my assessment of hardship is wrong, I turn to that assessment.

Public interest – open justice

[75]   There remains an ongoing legitimate public interest in AB’s name because of the initial allegations of sexual offending and his connection to the Young Labour Party. The combined seriousness of the alleged offending and the political dimension strongly engages the principle of open justice. I am also obliged to have regard to the views of the victims. While these views have not been made known to me, I understand one of the victims continues to engage with the media. I will assume, therefore, that he wishes to exercise his right to freedom of expression, which includes identifying AB. Furthermore, while not sexual offending, AB’s actions were of a kind which could fairly attract criticism. Non-consensual touching is to be deterred. In this regard, [REDACTED].

[76]   Balanced against this, AB’s prosecution has been thoroughly publicly scrutinised. There has been independent oversight of the media and this Court throughout every step of the criminal process. The allegations, the dismissals, the guilty pleas and the discharge without conviction have been fully reported by the media. In addition, there has been no suggestion, and certainly no evidence, that AB has any personal connection whatsoever to the present Labour Party or any member of it. Unsurprisingly, there has been no submission or suggestion that AB’s name should be suppressed because of his connection to the Labour Party or the Government. The political dimension, therefore, is not personal to AB or his family.

[77]   Should, then, AB’s name be published? Ms Wooley submitted that it would be wrong to conflate the proportionality assessment for discharge under ss 106-107 of the Sentencing Act 2002 with the assessment that must be made here. And she is, of course, correct about that. But an outcome that is grossly disproportionate to the actual

offending is to my mind a strong factor to be weighed in the assessment of whether the presumption in favour of open justice is displaced.

[78]   Nevertheless, I have come to the view that the ongoing legitimate public interest in the proceedings, together with the principle of open justice, must prevail. While AB did not sexually offend, his actions still legitimately attract public scrutiny, including from within his own community and prospective employers. In addition, the evident political dimension to the coverage and corresponding public interest, strongly favours transparency to maintain confidence in the integrity and independence of the judicial process.

[79]   Furthermore, this judgment and the discharge without conviction, should help mitigate the risk of ongoing inaccurate reporting and any resulting harm. AB did not sexually offend and any reporting to that effect, directly or by implication, risks undermining the confidence of this Court in the media. My expectation is that the mainstream media will be careful to report that AB’s offending involved, at most, low- level common assaults.

[80]   In this regard, the Court of Appeal has previously noted that a cause of action in defamation may be available to an acquitted person where the media steps out of line and publishes misinformation.11 This Court, following that dicta, has also noted the common belief that “where there is smoke there is fire” is only maintained when the public is not kept informed of the details of occasions such as this where criminal charges have been laid on the basis of insufficient evidence.12

[81]   I also wish to record my view that AB’s offending was plainly an aberration and that he is a fine young man fully deserving of a career in his chosen profession. The discharge without conviction is testament to that.

[82]   Finally, as I signalled to counsel at the hearing, I have considered whether I should continue suppression until after the election. But on reflection, the political

11     Leary v R [2010] NZCA 195 at [20].

12     R v Yang HC 2010 CRI-2008-004-017744B at [11].

dimension mentioned above, I think, precludes such a course. The public’s right to know will be most engaged at that time.

[83]The appeal is dismissed.

[84]   I anticipate AB will wish to seek leave to appeal this decision and for that purpose I acknowledge that this case raises difficult issues about the application of orthodox principles to the facts of this case, and the balance between the public’s right to know and an acquitted individual’s right to be left alone. I therefore continue name suppression until 1 May 2020. If an appeal is filed then suppression will continue until the Court of Appeal makes a determination on the matter.

[85]   Two copies of this judgment have been issued. The judgment will be distributed to the parties in a form which includes their real names and identifying facts. An anonymised version of the judgment will be available to other interested persons during the currency of the interim suppression order. The anonymised version will be replaced by the unredacted version on lapse of the suppression order.