Benny v Police
[2017] NZHC 817
•28 April 2017
IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY
CRI-2017-412-000005 [2017] NZHC 817
BETWEEN DAN WILLIAM BENNY
Appellant
AND
NEW ZEALAND POLICE Respondent
Hearing: 26 April 2017 Appearances:
C Savage for Appellant
R D Smith for CrownJudgment:
28 April 2017
JUDGMENT OF DUNNINGHAM J
[1] Mr Benny appeals the refusal of the District Court Judge to make a final order of name suppression on a charge of receiving commercial sexual services from a person under 18 years.1 The appeal is advanced on the ground that the Judge erred in finding that the consequences relied upon did not amount to extreme hardship for Mr Benny.
Facts
[2] On 11 March 2016, the appellant, who was 25, was getting money out of an ATM with a friend at around 11.30 pm. The victim, who was 13, approached with her 14 year-old friend. Both girls were clearly drunk. A conversation ensued which resulted in the victim offering to perform oral sex on the appellant in return for $50. They went to a nearby car park where the victim performed oral sex on him. The
appellant paid her the $50 and they went their separate ways.
1 Police v Benny [2017] NZDC 245.
BENNY v NEW ZEALAND POLICE [2017] NZHC 817 [28 April 2017]
District Court decision
[3] In the District Court the Judge considered both an application for discharge without conviction (which was denied), and an application for a final order suppressing the defendant’s name. The Judge noted that he could only make an order forbidding publication if he was satisfied that publication would be likely to cause extreme hardship to the applicant.2 Only then did he need to go on to consider the exercise of his discretion as to whether, when considering the competing interests of the applicant and the public, an order should be made.
[4] In terms of establishing extreme hardship, the Judge noted that it is a “very high barrier”, which required something more than simply hardship to eventuate.
[5] The Judge discussed the decision in Police v KK, where the loss of a job and severe damage to existing family relationships was held to be “somewhat an inevitable outcome” of the offending in that case and, without more, did not warrant suppression.3 He also noted Priestly J’s comments in RM v Police that:4
Publication will excite curiosity, criticism, social ostracism, and embarrassment. But a suppression order can be made legitimately only if the damaging effects on the offender cause hardship which is extreme. The necessary extremity is contextual and will depend on the unique factual and personal circumstances surrounding each s 200 application.
[6] In this case the Judge decided that what was put before him by way of extreme hardship did not satisfy the strict test. Having considered the affidavit provided by Mr Benny’s supervising professor, the Judge acknowledged there was a real risk that the defendant’s career would be affected as public knowledge of the charge would “stigmatise” Mr Benny and potentially hinder him from reaching “his full potential” in his chosen career as a planner. There were also some more immediate concerns, such as whether his part-time job at a sports centre with young people would be able to continue if his name was published.
[7] However, the Judge concluded that these were “in reality matters that would
be in effect and would occur to any person when a conviction is entered on a serious
2 Criminal Procedure Act 2011, s 200(2)(a).
3 Police v KK [2014] NZHC 1629.
4 RM v Police [2012] NZHC 2080 at [43].
criminal charge”. He therefore declined the application for suppression of the appellant’s name, on the basis that the prerequisite in terms of s 200 had not been made out.
Principles on appeal
[8] Section 283 of the Criminal Procedure Act 2011 (the Act) permits an applicant for a suppression order to appeal the Court’s decision to refuse to make the order. This appeal is against the Judge’s decision on the first stage of the test under s 200 of the Act. The test for whether extreme hardship would be likely to result is a
matter of fact requiring judicial assessment.5 Therefore the appeal is based on the
approach taken by the Supreme Court in Austin, Nichols & Co Ltd v Stichting Lodestar.6 This Court is able to make its own assessment on whether or not extreme hardship has been established. If it decides that the test is met, the District Court decision is wrong, even if it is a conclusion on which minds might reasonably differ.7
Principles applying to name suppression
[9] Section 200 of the Act provides for the suppression of the name and other identifying details of a defendant.
200 Court may suppress identity of defendant
(1) A court may make an order forbidding publication of the name, address, or occupation of a person who is charged with, or convicted or acquitted of, an offence.
(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
(b) cast suspicion on another person that may cause undue hardship to that person; or
(c) cause undue hardship to any victim of the offence; or
(d) create a real risk of prejudice to a fair trial; or
5 R v Rajamani [2007] NZSC 68 at [4] – [5], applied to the s 200 context by Police v KK, above n 3, at [26].
6 Austin, Nichols & Co Ltd v Stichting Lodestar [2007] NZSC 103.
7 Police v KK, above n 3, at [27].
(e) endanger the safety of any person; or
(f) lead to the identification of another person whose name is suppressed by order or by law; or
(g) prejudice the maintenance of the law, including the prevention, investigation, and detection of offences; or
(h) prejudice the security or defence of New Zealand.
[10] Notwithstanding the statutory power to order name suppression, I accept, as was said in DP v R, that there is a “settled presumption in favour of open reporting, based on the two fundamental principles of open justice and freedom of expression and extending to all aspects of the criminal process including public identification of
a person convicted of an offence”.8
[11] I also note that, in order to amount to “extreme hardship” as required by s 200(2)(a), the hardship that risks being suffered must be significantly greater than the hardship normally associated with the publication of a defendant’s name. Furthermore, it denotes something greater than the “undue hardship” required under s 200(2)(c). It must be something that goes beyond the ordinary consequences arising out of publication of a defendant’s name, and then, by some margin.
Submissions
The appellant’s submissions
[12] The appellant submitted that the Judge erred in concluding that the consequences relied upon were an inevitable result of the appellant’s offending. Mr Savage submitted that Mr Benny’s offending was opportunistic, unpremeditated and did not involve a breach of trust such as in the decision Police v KK. His offending was therefore less serious than the offending in Police v KK and the Judge wrongly relied on this authority to assess the gravity of Mr Benny’s offending and therefore to determine what consequences would normally flow from it. Given the lesser seriousness of Mr Benny’s offending, it was submitted that the consequences he would suffer were not “entirely foreseeable” consequences of the offending.
Rather, the impact on his career prospects, in particular, was extreme hardship.
8 DP v R [2015] NZCA 476 at [9].
[13] In oral submissions, the appellant also emphasised the potency of the internet in providing an enduring source of information about this conviction which would follow Mr Benny throughout his professional life. Thus, even when he was entitled to the protection afforded by the Criminal Records (Clean Slate) Act 2004, his professional reputation would still be affected because of the ability of people to search and find out about this conviction on the internet.
[14] The appellant also submitted that if the extreme hardship test was met on the facts, the Court should exercise its discretion to suppress publication as there was no relevant consideration which would require publication in the circumstances of this case.
The respondent’s submissions
[15] The respondent submitted that the Judge was correct in concluding that the present facts did not meet the level of extreme hardship required under s 200(2)(a). All of the elements of hardship identified in this case were no more than the ordinary consequence of being convicted of such an offence. Importantly, the ability to search for and find out about the offending on the internet must now be considered a normal consequence of conviction, and unless it had a consequence that reached the threshold of extreme hardship on this particular person, the threshold for name suppression had not been met.
[16] The respondent also submitted that if the Court did find that extreme hardship was met on the facts, the Court should nevertheless not exercise its discretion in favour of suppression, as publication was important in meeting the sentencing purpose of deterrence for crimes of this nature.
Discussion
Circumstances on appeal
[17] The appellant has just completed a masters degree in planning law at the University of Otago. At the time these matters came before the District Court he was in his fifth and final year of study and was completing his thesis. His professor
describes him as a top student with an impressive academic record. In an affidavit sworn in October 2016, the appellant expressed concern that the entry of a conviction and any publicity that attaches to it would have a disproportionate effect, both on his present ability to complete his degree, and on his ability to achieve his full potential in his future career. However, those comments were made when Mr Benny was seeking a discharge without conviction, as well as name suppression.
[18] At the time Mr Benny also worked at a large multi sports centre in South Dunedin in a part-time customer service role and he depended on that job for income to support his studies. He was also involved in coaching high school aged students and was concerned that he would have to discontinue his involvement with the team.
[19] Thus, when he appeared before the District Court, the appellant relied on the following consequences of publication:
(a) the impact on his credibility if he were to appear as an expert planning witness in Court;
(b) his ability to find future employment in his chosen field;
(c) his ability to complete collaborative student research at university; (d) his ability to work part-time at the Edgar Centre; and
(e) his ability to coach young persons in sport.
[20] As was acknowledged at the hearing of this appeal, Mr Benny has completed his university studies and is now no longer working at the Edgar Centre or coaching a high school football team. Furthermore, a conviction has been entered and that is not being appealed. The appeal is therefore brought solely on the basis of the impact of publication on Mr Benny’s future career as a consequence of publication of his name. Thus, on appeal Mr Benny primarily relied on the fact a record of his conviction would endure on the internet and be able to be searched, with the consequent risk that this would affect his career. For example, it may affect a client’s
willingness to engage him in a professional capacity, including as an expert planning witness to give evidence at hearing.
[21] In summary therefore, the remaining grounds of hardship are:
(a) an impact upon Mr Benny’s credibility if he were to appear as an expert witness in Court; and
(b) an impact on his ability to find employment.
Discussion
[22] I concur with the respondent’s submission that, in the field of endeavour Mr Benny is pursuing, it is extremely unlikely that reference to this conviction could ever be relevant, and therefore admissible, to challenge his credibility as an expert planning witness. Thus, the first concern is not a “likely” consequence of publication, in the sense of being a real risk that cannot be discounted.9
[23] That leaves the general issue of the impact on his future employment as a planner. Because he is now convicted, it was accepted that the fact of his conviction would have to be disclosed on request to potential employees or professional bodies, except in circumstances where the Criminal Records (Clean Slate) Act 2004 applied. To the extent that such disclosure would affect his employment prospects, I consider that does not arise from publication of his name, but from the conviction itself.
[24] The only remaining consequence was the potential for future employers and clients to research his background on the internet and be able to find out about this conviction, including after the clean slate provisions apply. That was then linked to a potential, albeit unquantifiable, risk to his career. In my view, however, such a consequence does not result in extreme hardship. Mr Benny is acknowledged by university staff to be a top student. The behaviour which led to this conviction is accepted as being out of character and Mr Benny is remorseful. This discovery of this conviction will no doubt prompt surprise and enquiry from a future employer or
client. But, particularly with the passage of time, this is likely to be overshadowed
9 Peglar v Police [2014] NZHC 1184 at [23].
by his level of professional expertise. In my view, Mr Benny has shown no real risk to his future prospects of employment, which go beyond those that ordinarily attach to a conviction of this type. I am satisfied therefore, by some margin, that the failure to order permanent name suppression will not cause hardship that is out of the ordinary for Mr Benny and, much less, that it would cause him extreme hardship.
[25] For that reason, I do not need to go on to consider the question of whether, in the exercise of my discretion, publication should be ordered despite a finding of extreme hardship.
[26] The appeal is therefore dismissed.
Solicitors:
Public Defence Service, Dunedin
RPB Law, Dunedin
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