Benny v Police - [2017] NZHC 817

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 Crown

Judgment:

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…

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.

Continue reading Benny v Police

Details

AGLC: Benny v Police [2017] NZHC 817
Case: [2017] NZHC 817
Decision Date: 28 April 2017

CaseChat Overview and Summary

In Benny v Police, the appellant, Mr Benny, sought to appeal the District Court's refusal to make a final order suppressing his name in relation to a charge of receiving commercial sexual services from a person under 18 years. The appellant argued that the District Court erred in finding that the consequences he cited did not amount to extreme hardship, as required by section 200(2)(a) of the Criminal Procedure Act 2011.

The legal issues that the Court had to decide included whether the District Court's approach to determining extreme hardship was correct and whether the appellant's concerns about the impact of publication on his future career prospects amounted to extreme hardship. The Court noted that there is a settled presumption in favour of open reporting, based on the principles of open justice and freedom of expression. To amount to "extreme hardship," the hardship that risks being suffered must be significantly greater than the hardship normally associated with the publication of a defendant’s name.

The Court concluded that the appellant's concerns about the impact of publication on his future career prospects did not amount to extreme hardship. The Court found that the first concern, regarding the impact on his credibility as an expert witness in Court, was not a likely consequence of publication. The Court also found that the impact on his ability to find employment was not a consequence that went beyond the ordinary consequences of a conviction of this type. The Court was satisfied that the failure to order permanent name suppression would not cause hardship that was out of the ordinary for Mr Benny and, much less, that it would cause him extreme hardship. For this reason, the appeal was dismissed.

No orders were made in relation to the appeal.

Orders