BETWEEN JOSHUA JOHN MILLIN McAUSLIN Appellant AND NEW ZEALAND POLICE Respondent
[2023] NZHC 3708
•12 December 2023
IN THE HIGH COURT OF NEW ZEALAND BLENHEIM REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WAIHARAKEKE ROHE
CRI-2023-406-000014
[2023] NZHC 3708
BETWEEN JOSHUA JOHN MILLIN McAUSLIN
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 12 December 2023 Counsel:
M Zintl for Appellant
J T Vuataki for Respondent
Judgment:
12 December 2023
ORAL JUDGMENT OF RADICH J
[1] The appellant was convicted after pleading guilty to one charge of posting an intimate visual recording without consent under s 22A of the Harmful Digital Communications Act 2015.
[2] In a decision of the District Court of 9 October 2023, Judge Rielly declined to grant the appellant permanent name suppression under s 200 of the Criminal Procedure Act 2011.1 In addition, in that decision the Judge dismissed an application for discharge without conviction under s 106 of the Sentencing Act 2002 and sentenced the appellant to six months of community detention and 12 months’ intensive supervision with special conditions.
1 New Zealand Police v McAuslin [2023] NZDC 22287.
McAUSLIN v NEW ZEALAND POLICE [2023] NZHC 3708 [12 December 2023]
[3] The appellant now brings this appeal from the refusal to grant permanent name suppression. The grounds in the notice of appeal are:
(a)The Judge failed to properly consider the undisputed affidavit evidence filed;
(b)The Judge was wrong to require independent affidavit to be filed;
(c)The Judge incorrectly determined that the ground of extreme hardship to the appellant was not met in the circumstances;
(d)The Judge failed to consider whether there was a risk to the psychological safety of the appellant's mother;
(e)The Judge was wrong to determine that the discretionary stage was not met;
(f)The appellant intends on filing fresh evidence; and
(g)Such other grounds as appearing in counsel's written submissions.
[4] The appellant has, in addition, sought leave to file new evidence in affidavit form in relation to medical issues and from a business associate of the appellant. The application is opposed by the Crown. The Court will only grant leave to adduce new evidence on appeal if the interests of justice require it. That will generally be so where the evidence is fresh, credible and cogent. Where evidence is not fresh, because it could have, with reasonable diligence, been produced at the trial, it will generally not be admitted unless to do so would cause a miscarriage of justice.2 The interests of justice require parties to put their best case forward at trial, or at a primary hearing, to avoid wasting the Court’s limited time and resources.
[5] Here, the evidence the appellant seeks to adduce could, in some respects, have been produced at trial – and I refer in particular to the evidence relating to the business interests of the appellant – but I do observe that information that has been filed relating to the medical condition of the appellant’s mother is dated 31 October 2023. I certainly take that into regard. I observe also, with sadness, the tragic and untimely death of
2 Lundy v R [2013] UKPC 28, (2013) 26 CRNZ 699 at [119]—[120].
counsel who had been acting for the appellant between the hearing to which the appeal relates and this hearing.
[6] While on one hand there is no, in my view, potential miscarriage of justice that would justify the Court granting leave to adduce this evidence now, I will on balance have regard to the evidence in order to give the appellant the benefit of the doubt and to acknowledge the circumstances that I have described and the timing of some of the evidence that I have mentioned.
The approach on appeal
[7] The appellant has a right of appeal under s 283 of the Criminal Procedure Act 2011. The proceeding is to be conducted by way of a rehearing and proceeds on the basis described in the Austin Nicholls case.3
[8] The Court on appeal must come to its own view on the merits of the appeal as a matter of fact and law and has wide powers on appeal. It may confirm the District Court’s decision, it may vary it, it may set it aside or make any other order that it considers appropriate.
Legal principles applying to name suppression of a defendant
[9] Under s 200(2) of the Criminal Procedure Act, the Court may grant name suppression to a defendant if it is satisfied that (as relevant here) publication would be likely to cause extreme hardship to the appellant or any person in connection with him,4 endanger the safety of any person5 or lead to one of several other specified outcomes. The phrase “extreme hardship” indicates a very high threshold.6 There must be something well beyond the ordinary consequences associated with publication. For example, for extreme hardship to be made out purely in relation to financial matters requires there to be something more than a loss of livelihood or
3 Austin Nichols & Co Inc v Stichting Lodestar [2007] NZSC 41.
4 Criminal Procedure Act 2011, s 200(2)(a).
5 Section 200(2)(e).
6 Robertson v Police [2015] NZCA 7 at [48].
employment.7 However, the ultimate assessment of whether any likely hardship would be extreme must be based on all such likely hardship, looked at cumulatively.8
[10] In determining whether the tests for extreme harm or endangerment to the safety of any person are met, the starting point is the fundamental principle of open justice.9 Practically speaking, the Court will take a two-step approach.10 First, the Court must assess whether extreme hardship would be likely to follow if no suppression order is made. And, secondly, and only if that first step is passed, the Court must then determine whether in the exercise of its discretion it should make an order for name suppression.
The District Court decision relating to name suppression
[11] In the District Court, the appellant sought name suppression on three grounds. First, he said that his broader family would suffer reputational damage from publication, and this, it was said, is especially so because his family name is distinctive and well known in the Marlborough community. It was said that reputational damage would flow on to the appellant’s sister who has business interests in the North Island. Secondly, and relatedly, he said that the appellant’s mother, in particular, would face hardship as a result of publication due to the impact on her reputation and on her pre- existing health conditions. Thirdly, the Judge said that his business as a self-employed electrician, and the apprentice he employs as part of that business, would suffer as a result of publication.
[12] The Judge explained, correctly, that the threshold approach for a permanent name suppression order is extremely high and that there is a two-step approach.11 She addressed the impact on the appellant’s wider family’s reputation and on his mother’s health.12 Earlier in her decision, the Judge had considered the impact of a conviction
7 Stephens v R [2021] NZHC 1902 at [26]; Blackwood v R [2017] NZHC 1262 at [10]–[12].
8 X v R [2020] NZCA 387 at [40].
9 R v Liddell [1995] 1 NZLR 538, (1994) 12 CRNZ 458 (CA) at 546, 466.
10 Robertson v Police, above n 6, at [39]–[41]; Fagan v Serious Fraud Office [2013] NZCA 367 at [9].
11 New Zealand Police v McAuslin, above n 1, at [38] and [39].
12 At [40]–[46].
(with the corollary being publication) on the appellant’s business,13 finding that it may negatively impact it in a “general way”.14 Ultimately the Judge found that:
[47] Overall, when I consider your particular circumstances, your mother’s particular circumstances, and other cases of this kind that come before the Court, although I have not been referred to any particular cases that are factually similar to yours, I do not consider that the very high threshold test for name suppression is met in your case.
Did the Judge fail to properly consider the appellant’s affidavit evidence?
[13] I now look at the grounds on appeal. I look, first, at whether the Judge did fail to properly consider the affidavit evidence.
[14] First, the appellant contends that the Judge failed to properly consider the affidavit evidence of the appellant and his mother and we now have evidence to supplement it. I do not agree that the Judge failed in that way in terms of the evidence in front of her. The appellant does not point to an aspect of the affidavits filed at that stage that the Judge failed to properly consider. Rather, their terms are recounted in the appellant’s submissions. The Judge, in her decision, as I see it, paid regard to the key factors set out by the appellant and by his mother in their affidavits in support of name suppression, including the views expressed about particular and potential impacts on the appellant’s business and the reputation of the wider family and evidence given about the health of the defendant’s mother. The Judge had clearly, in my view, read the affidavits and had considered them appropriately.
Did the Judge err by requiring independent evidence to be filed?
[15] The appellant has contended that the Judge made an error in making the following observation:
[25] I have today enquired about independent evidence of there being reputational damage to you and a potential for you to lose work in the future if you receive a conviction. There is an absence of independent evidence to support that in circumstances where your lawyer makes it clear that you have been in a difficult position because if you divulge the fact of this offence and
13 At [25]–[27].
14 At [27].
the circumstances of the offending behaviour to your suppliers, contractors or people you are connected with professionally, that that in and of itself may precipitate the negative consequences you fear.
[16] The appellant submits that this amounts to requiring independent evidence, which was not required because, he says, the affidavit evidence was uncontested. I do not see that to be the case. The Judge’s task was to evaluate the evidence before her to assess whether publication was likely to cause extreme harm. The Judge was entitled, in the exercise of her judgment, to weigh the absence of independent evidence verifying the evidence on this point – uncontradicted as it was – and factor that into making her assessment that a conviction “may” negatively impact the appellant’s business in a “general way”.15
[17] Despite, before the Judge in the District Court, the lack of independent evidence, the damage to the appellant’s reputation and to his work and business was something the Judge did take into account. She essentially gave him the benefit of the doubt on the point.
[18] The Judge referred to the submission made by the appellant’s lawyer that it was made clear that the appellant had been in a difficult position because, if he was to divulge the fact of the offence and the circumstances of the offending behaviour to suppliers, contractors or people connected professionally, that may precipitate the negative consequences that he fears. The Judge said that she did accept that there was some force in that submission. But she said that it was not the first time she had heard it being made. There had been other people in the same position saying that the prejudicial effects flow on in the ways advanced in this case. She found that it may well impact on the appellant’s business.
[19] I do agree with the Judge that this is not enough to set this case apart from the many others in which a conviction and the publication that follows will have in terms of an impact upon business, as well as on personal interests. It is not enough, in my view, to meet the threshold that is required for extreme hardship to be made out.
15 At [27].
[20] I say that, having taken into account also the new evidence that has been filed which, again, while advancing the point, does not take it in my view beyond the threshold to which I have referred. Reference has been made in written submissions for the respondent to several cases and they have been the subject of comment by counsel for the appellant. The case of Blackwood is said to be distinguishable because there was no supporting affidavit evidence, which is a feature that distinguishes it from the case here and I accept that to be a point of difference.16 The Stevens case that has been referred to was a case in which the business of the appellant was effectively in a state of abeyance and the impact is different to the impact that is suggested here.17 I should mention, finally, the case of Blanch v Police which was a case that referred to employability, whereas the prejudice that is suggested in this case is submitted to be real, immediate and significant.18
[21] The conclusions that I have reached, however, do not change upon considering the new affidavit evidence now sought to be filed from a business associate of the appellant. The business associate has worked collaboratively with the appellant for six years. He said that in his view publication would affect not only the appellant’s business but also his own. I do understand those concerns and those consequences, but even looking cumulatively at the hardship to the appellant and to his business associate, it does not in my view rise to the level of hardship that would warrant the identity to be suppressed.
[22]As Muir J said in the case of Stephens v R:19
Likewise difficulty in obtaining interim employment, particularly in the context of alleged dishonesty offending, is an entirely natural, if unfortunate, consequence of a defendant facing criminal charges. The authorities establish that something more than loss of employment or livelihood is required to meet the high threshold of extreme hardship.
16 Blackwood v R, above n 7.
17 Stephens v R, above n 7.
18 Blanch v Police [2018] NZHC 780.
19 Stephens v R, above n 7, at [26].
Did the Judge fail to consider the risk to his mother’s psychological safety should name suppression be declined?
[23] The appellant submits that the Judge failed to consider the risk to his mother’s psychological safety should name suppression be declined. In particular, he says the Judge ought to have considered her circumstances, under s 200(2)(e) which enable the Court to order suppression if it is satisfied that publication would be likely to endanger the safety of any person.
[24] The Judge was not in error on this point in my view. For the court to be satisfied, on a s 200(2) ground, it must come to a decision on the evidence before it. The appellant carried the evidential onus to advance reasons why the presumption in favour of publication should not apply.20 The appellant did not apply for suppression on the ground of endangerment to safety.
[25] Regardless of that point, whether the Judge referred explicitly to the ground of endangering safety, is not in my view the salient point. There is, in practice, substantial overlap between the grounds of endangering a person’s safety and extreme hardship to a defendant and any other person connected with them. Suppression on the grounds that publication would threaten a person’s physical health may be granted under either head.21 This is because, usually, where there is a real risk that publication will endanger a person’s safety, and that person is connected to the offender, it is also likely that that person will suffer extreme harm as a result of publication. Therefore, the primary point is whether the Judge considered the impact of publication on the appellant’s mother’s health.
[26] The Judge did in my view. At [37], the Judge referred to the argument advanced that there was the potential for publication to cause extreme hardship to the mother, and she addressed that in [40] and in [44]. It was acknowledged that it would be very upsetting for the appellant’s mother to be connected with the appellant’s offending through their linked family name. However, she noted that there was no independent evidence, medical or otherwise, on that claim. At [47], she found that the threshold test for name suppression was not met, having considered both the
20 Victim X v Television New Zealand Ltd [2003] 3 NZLR 220, (2003) 20 CRNZ 193 (CA) at [45].
21 D (CA443/15) v Police [2015] NZCA 541, (2015) 27 CRNZ 614 at [8].
appellant’s circumstances and those of his mother. Having found that the appellant’s mother’s circumstances did not, even when combined with other factors relating to hardship, establish a likelihood of extreme harm, it is unlikely the Judge would have been able to find publication was likely to endanger the appellant’s mother’s safety. That conclusion remains sound in my view even if considered under s 200(2)(e) which has a lower threshold than the extreme hardship test.
[27] In addition, for the ground of endangerment to safety to be made out, there needed to be an evidential basis.22 This will usually take the form of medical evidence. Suppression may be justified where, for example, there is a clear link between publication and an enhanced risk of suicide;23 or where there is the possibility of fatal consequences due to an existing serious health condition.24 Affidavits from the appellant himself and his mother, someone very closely connected with him, could not be seen as the type of independent evidence that would usually be required for a claim of endangerment to safety to be established. I do not see the Judge having erred on that count.
[28] The evidence that is now to be advanced for the appellant, which I have admitted, is a letter in the first place from a neurologist to the appellant’s mother. While it is not in the form that would normally be regarded as evidence – being a letter between different parties – I am, as I have said, content to accept it. It refers to the appellant’s mother attending the neurologist’s clinic for a certain condition. It would appear from the letter that is attached that it is addressed from the neurologist to what I understand to be the mother’s general practitioner, and there the question is addressed of what I understand to be a pre-existing condition of a certain nature. The letter refers to the appellant’s mother being tearful and embarrassed about an issue faced by her son. But it goes nowhere towards enabling a conclusion that publication would endanger her safety. The focus is on the medical conditions described in that letter and certain other ailments. It does not in my view support this ground of appeal.
22 Bitossi v R [2014] NZCA 595 at [8].
23 D (CA443/15) v Police, above n 21, at [8].
24 Q v New Zealand Customs [2014] NZHC 2398.
[29] Accordingly, I see no error in the Judge’s decision under this head and can take the point no further on appeal. I do not see, on the basis of this evidence, that grounds are made out for suppression under either s 200(1)(a) or (e).
Did the Judge err in finding that extreme hardship was not met?
[30] The appellant advances the following grounds on a cumulative basis – in looking at the next question as to whether the Judge erred in finding that extreme hardship was not met as a whole:
(a)the reputational damage and loss of work in the appellant’s business;
(b)the appellant’s specialised role in the industry in which he works;
(c)his unique name; and
(d)his mother’s health conditions and the stress that the proceedings are causing her.
[31] I have addressed the question of reputational damage in the appellant’s work and the loss of business. In the affidavit evidence of the appellant and his mother, particular emphasis was placed upon damage through publication to their family’s reputation in the local community. That reputation was built, it was said, through a role held by the appellant’s father in a Government organisation and through him having later operated, together with the appellant’s mother, a business in the community. Reference is made to their involvement in community organisations.
[32] I do acknowledge those effects and that they will be difficult but, again, they are not extreme hardship. The claim to have a specialised role in the industry in which the appellant works is not a factor that affects my assessment under this head. And any uniqueness in appellant’s name would not in my view, in and of itself, warrant suppression.
[33] Under this head, the appellant has referred to X v R, where the Court of Appeal did grant name suppression to a defendant on the grounds of extreme hardship based on, among other factors, the defendant having a unique name.25 In addition, the uniqueness of the name in that case was only one factor when taken cumulatively with other factors present. And I acknowledge that to be the case here in terms of the arguments advanced. There were several other significant factors in that case indicating extreme hardship. First, the case had itself received attention from both mainstream and social media on both a national and international level.26 Secondly, the name of the person in that case clearly identified him as being Muslim, leading to an appreciable risk on the circumstances there that the person would be targeted on social media partially due to his cultural and religious background.27 Thirdly, in that case, future job loss was likely, given that he had been dismissed by his employer when it was discovered he had been the subject of the allegations in that case.28 And, finally, it was found that the publicity on social media would be of such a degree, in terms of shaming him, that protection was warranted.
[34] The nature of the factors that the appellant asks the Court to assess cumulatively, alongside his name, do not reflect those in my view in X v R. I do not consider that the District Court Judge erred in finding that extreme hardship is unlikely to follow for either the appellant or any person connected with him. I am of the view that whether the matters advanced are considered individually or cumulatively, the high threshold to which I have referred is not met.
Did the Judge err by not moving to step two, the discretionary stage?
[35] The appellant submits that the Judge erred by not moving to the discretionary stage of the assessment under s 200(2). As mentioned earlier, the Court is only to move to consider whether to exercise its discretion if step one, the threshold determination, is made out successfully.29 The Judge was, for the reasons I have given,
25 X v R, above n 8, at [45].
26 At [20].
27 At [46].
28 At [23].
29 Robertson v Police, above n 6, at [39]–[41].
correct not to find step one to have been out and therefore was in order not to move to the second stage of the assessment.
Conclusion
[36] The District Court Judge did not in my view err in finding that the circumstances of the appellant and his family do not meet the threshold required for the Court to be able to grant permanent name suppression. The circumstances do not displace the important principle that justice must be seen to be done. For these reasons the appeal is dismissed.
[37] On Mr Zintl’s application, the current interim suppression will remain in place until 5 pm on Friday, 15 December 2023 to enable the appellant to consider the prospects of an appeal.
Radich J
Solicitors/Counsel:
M Zintl, Blenheim for Appellant Crown Law, Wellington for Respondent
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