Barnes v Police
[2021] NZSC 46
•24 May 2021
| NOTE: THE ORDER MADE BY THE DISTRICT COURT SUPPRESSING THE NAME OF THE GYM WHERE THE OFFENDING OCCURRED REMAINS IN FORCE. |
| ORDER CONTINUING SUPPRESSION OF THE APPLICANT’S NAME, ADDRESS, OCCUPATION AND ANY IDENTIFYING PARTICULARS UNTIL 2 PM ON TUESDAY 25 MAY 2021. |
| IN THE SUPREME COURT OF NEW ZEALAND I TE KŌTI MANA NUI |
| SC 20/2021 [2021] NZSC 46 |
| BETWEEN | PHILLIP BARNES |
| AND | NEW ZEALAND POLICE |
| Court: | O’Regan, Ellen France and Williams JJ |
Counsel: | R M Mansfield for Applicant |
Judgment: | 24 May 2021 |
JUDGMENT OF THE COURT
A The application for leave to appeal is dismissed.
BWe make an order continuing suppression of the applicant’s name, address, occupation and any identifying particulars until 2 pm on Tuesday 25 May 2021. Suppression will lapse at that time.
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REASONS
The applicant pleaded guilty to a representative charge of intentionally making an intimate visual recording of another person under s 216H of the Crimes Act 1961. The Crown case was that the applicant had, on four separate occasions, placed a hidden video camera in the changing rooms of a gym he attended and made recordings of those using the changing rooms in various states of undress. The applicant is a man in his mid‑60s, and held a senior position in a Crown entity at the time of the offending. He later became its acting chief executive. He had no previous record of offending.
In the District Court, the applicant was discharged without conviction and granted permanent name suppression.[1]
[1]New Zealand Police v Barnes [2020] NZDC 11260 (Judge Bennett) [DC judgment].
The police successfully appealed against the District Court judgment. The High Court reversed both aspects of the District Court judgment, entered a conviction, quashed the suppression order and remitted the matter to the District Court for re‑sentencing.[2]
[2]New Zealand Police v Barnes [2020] NZHC 2682 (Moore J) [HC judgment].
The applicant applied to the Court of Appeal for leave to appeal against the High Court judgment. The Court of Appeal granted leave but dismissed the appeal.[3]
[3]Barnes v New Zealand Police [2021] NZCA 16 (Kós P, Thomas and Gendall JJ) [CA judgment].
The applicant now seeks leave to appeal to this Court. He argues that there has been a miscarriage of justice and also that there are points of public importance that could be addressed by the Court in the event that leave were granted.
Refusal of discharge without conviction
The application for leave to appeal against the aspect of the Court of Appeal judgment dealing with the refusal to discharge the applicant without conviction is advanced on the basis that matters of public importance arise and that a substantial miscarriage of justice has occurred.[4]
Miscarriage
[4]Senior Courts Act 2016, s 74(2)(a) and (b).
The miscarriage ground is based on the applicant’s submission that the High Court and the Court of Appeal overlooked his personal mitigating features when assessing the gravity of his offending and in finding that it was serious offending (in contrast to the District Court Judge’s assessment that it was moderate only).[5] The applicant argues that the High Court and the Court of Appeal miscalculated the consequences of a conviction because both courts worked on the basis that the consequences advanced by the applicant arose from the offending itself rather than from being convicted for the offending. The applicant says the approach adopted by the High Court and Court of Appeal meant they identified what was not a consequence of conviction, but did not identify what the consequences actually were. So the essential test in the relevant provision (s 107 of the Sentencing Act 2002), namely that the consequences of the conviction were out of all proportion to the gravity of the offending, became meaningless because neither of the balancing factors had been properly assessed by either Court.
[5]The applicant’s counsel says the applicant was negotiating a period of intense personal turmoil when the offending occurred. Having previously battled depression, the applicant found himself combatting addictions to alcohol and pornography, addictions which had their origin in an unfortunate medical diagnosis. Furthermore, counsel pointed to the applicant’s guilty plea, lack of previous convictions, respectable career, concerted efforts to rehabilitate, and the completion of community work, all of which he submits were not adequately taken into account by either the High Court or Court of Appeal when assessing the gravity of the applicant’s offending.
We do not discount that submission completely. But we do not think there is any proper basis for giving leave on this ground because we do not consider that the argument the applicant wishes to pursue, that the consequences were, in fact, out of proportion to the gravity of the offending, has sufficient prospect of success to justify a further appeal.
Matters of general or public importance
The applicant’s argument that matters of general or public importance arise is confronted by the reality that cases under s 106 of the Sentencing Act are essentially fact‑specific. Faced with that, he argues that, if leave were given, it would give the Court “an opportunity to consider discharges in circumstances which will give the judgment relevance beyond its particular facts”. He says the present case would be “a suitable vehicle for considering discharges”, enabling the Court to engage with factors relevant to the assessment of gravity, including the relevance of personal mitigating factors in assessing this inquiry.[6]
[6]In Z (CA447/2012) v R [2012] NZCA 599, [2013] NZAR 142 at [27], the Court of Appeal said personal mitigating factors were relevant to the assessment of the gravity of the offending, even though they were personal to the offender.
Although the applicant identifies a number of issues that he says could usefully be addressed by this Court, we do not see any of them as justifying the grant of leave. In all of them, the real issue is the application of the law to the particular facts, and we do not see that addressing these issues in the applicant’s case will have any significant precedential effect for other cases.
Name suppression
In relation to name suppression, the applicant says he wishes to argue on appeal that the decisions of both the High Court and the Court of Appeal focused on the type as opposed to the extent of the hardship the applicant would suffer if his name were published. He also wishes to argue that both Courts erred by not taking into account his personal mitigating factors. We do not see these issues as matters of general or public importance and we do not consider that the arguments the applicant wishes to make have sufficient prospect of success to justify the grant of leave.
The applicant argues that a matter of general or public importance arises, namely the interpretation of the expression “extreme hardship” in s 200(2)(a) of the Criminal Procedure Act 2011. This was the provision under which the District Court’s order suppressing the applicant’s name was made. We see the grounds the applicant wishes to raise about that issue as essentially fact-specific points that are unlikely to be of more general application.
Entry of conviction in High Court
The applicant argues that the High Court Judge erred in entering a conviction once he had found errors in the District Court decision. He wishes to argue on appeal that the High Court Judge should have remitted the case to the District Court so that the whole process could start again, leaving open the possibility that a discharge without conviction could be granted by the District Court when dealing with the matter after remission. We do not see this as a matter of general importance nor do we see it as a sufficiently compelling point to justify the grant of leave.
The application for leave to appeal is dismissed. This means that the interim suppression order made by the Court of Appeal will lapse.[7] However, in order to provide the applicant with the opportunity to communicate the result as he needs to, we make an order continuing suppression of the applicant’s name, address, occupation and any identifying particulars until 2 pm on Tuesday 25 May 2021. After that time, there will be no impediment to the reporting of the applicant’s name.
[7]The Court of Appeal made an interim order suppressing the applicant’s name, address, occupation and identifying particulars for ten working days after the date of its judgment (16 February 2021) unless renewed by further order. On 2 March 2021, Kós P made an order extending interim name suppression until determination of the applicant’s leave application to this Court, or determination of the appeal if leave were granted.
Solicitors:
Crown Law Office, Wellington for Respondent
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