BKJ v The King
[2024] NZHC 1257
•21 May 2024
ORDER PROHIBITING PUBLICATION OF NAME, ADDRESS,
OCCUPATION OR IDENTIFYING PARTICULARS OF APPELLANT PURSUANT TO S 200 CRIMINAL PROCEDURE ACT 2011. SEE
IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY
I TE KŌTI MATUA O AOTEAROA
TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE
CRI-2024-463-53
[2024] NZHC 1257
BETWEEN BKJ
Appellant
AND
THE KING
Respondent
Hearing: 9 May 2024
(Heard at Tauranga)
Appearances:
T Braithwaite for appellant A L McConachy for Crown
Date of judgment:
21 May 2024
JUDGMENT OF JAGOSE J
This judgment was delivered by me on 21 May 2024 at 12.30pm.
………………………… Registrar/Deputy Registrar
Solicitors:
Braithwaite Law, Rotorua Gordon Pilditch, Rotorua
BKJ v R [2024] NZHC 1257 [21 May 2024]
[1] BKJ faces a charge, on 13 March 2022 at Rotorua, he raped the complainant.1 Trial is scheduled to commence on 26 August 2024.
[2] BKJ appeals against the 24 April 2024 decision of Judge S M Harrop in the District Court at Rotorua,2 declining his application for name suppression.3
Background
[3] BKJ first appeared in the District Court at Rotorua on 1 April 2022. Despite multiple subsequent appearances, including a bail appeal to this Court allowed on 8 August 2022, name suppression was not raised until an appearance on 31 August 2022, when an interim order appears to have been made pending determination of BKJ’s foreshadowed application.
[4] Regrettably, the original application is not included on the file before me. It appears to have been made on two bases: the potential impact of publication on BKJ’s hospitality business interests operating near to where the alleged rape was said to have occurred; and on BKJ’s children. The complainant disagreed BKJ should be granted name suppression, saying he had “violated her and taken away a part of her dignity, and to give him any kind of leeway and a blanket to hide under seems unjust”.
[5] The application was set down to be heard on 11 October 2022, but was adjourned initially to 9 November 2022 and then to 20 February 2023. On that last date, observing the “slim” evidence filed in support of the application “would not reach the threshold of extreme hardship for the interim suppression order to continue”,4 Judge M A MacKenzie further adjourned hearing for BKJ to file any additional evidence on which he sought to rely in relation to the contended impact of publication on one of his children, who was said to have mental health issues.
[6] On 25 May 2023, when the application came before Judge G C Hollister-Jones, the Judge had additional evidence from a clinical psychologist consulting with BKJ
1 Crimes Act 1961, ss 128(1)(a) and 128B.
2 R v [BKJ] [2024] NZDC 8749.
3 Criminal Procedure Act 2011, s 200.
4 R v [BKJ] HC Rotorua CRI-2022-063-1019, 20 February 2023 at [7] and [10].
and his partner as to the partner’s health, and recording the child’s diagnosis with anorexia nervosa, depression and anxiety and the child was exhibiting chronic suicidal ideation. The child had been admitted to hospital from 25 January to 7 February 2023. But the Judge also had evidence from a clinician involved with the child, advising “[t]here is no current medical condition determined” and “[w]e are unable to advise as to what the impacts might be of releasing her father’s name in the media as there is no assessment or diagnosis”. The Judge concluded “there is insufficient material to make out a case of extreme hardship to [the child] should the defendant’s name be published”,5 and “[e]xtreme hardship is not made out on the basis of the impact of publication on the defendant’s restaurant business”.6 Nonetheless the Judge made an interim suppression order pending appeal, inferentially under s 286.
[7] The appeal was heard by Lang J in this Court on 17 October 2023.7 The Judge noted BKJ no longer relied on the impact of publication on his business.8 Noting also the children’s mother’s recent death, the Judge was satisfied BKJ and his family would suffer extreme hardship if his name was then published, because support mechanisms for those suffering hardship could not be put in place in the seven weeks anticipated then to trial scheduled to commence on 27 November 2023, and disclosure of his name at that point risked BKJ’s fair trial rights.9 Accordingly, the Judge suppressed BKJ’s name until that commencement of trial,10 or pending renewed application if adjourned.11
[8] As has been seen, trial was adjourned, now to 26 August 2024. On 7 December 2023, BKJ renewed his application. The application contended for publication likely causing extreme hardship to BKJ, his wife and family and creating a real risk of prejudice to a fair trial.
5 R v [BKJ] [2023] NZDC 10297 at [20].
6 At [23].
7 R v [BKJ] [2023] NZHC 2914.
8 At [6].
9 At [9]–[10].
10 At [11].
11 At [12].
Judgment under appeal
[9] Judge Harrop recorded the application and argument before him was made on the basis publication of BKJ’s name would be likely to cause extreme hardship to his 18-year-old daughter, 17-year-old son and partner; alternatively, likely to endanger the daughter’s safety.12
[10] So far as the partner was concerned, noting the partner’s and her psychologist’s views, the Judge considered:13
[T]he additional consequences likely to flow from publication as opposed to those flowing from [BKJ] being charged with sexual violation, while no doubt amounting to a level of hardship, fall well short of extreme hardship.
Neither was the Judge satisfied publication would be likely to result in danger to her safety.14 While recognising the son’s emotional and mental health and social media challenges,15 the Judge concluded publication was not likely to either cause him extreme hardship or endanger his safety.16
[11] Acknowledging the daughter’s “significant existing mental health issues and the related risks which are already present”,17 the Judge accepted a psychologist’s advice “there is a high risk of further destabilisation with the possibility of intensive, or even in-patient care, resulting from publication”.18 The Judge identified:19
The question is whether taking into account the level of treatment available, both in terms of medication and expert psychological assistance, the unmanageable consequences reach the very high standard of extreme hardship.
He concluded they did not, as the informed care she was receiving meant “the mitigation efforts which may be necessary consequent on publication are likely to be effective and sufficient to mitigate the risks”.20 He did not think the possibility they
12 R v [BKJ], above n 2, at [4] and [22].
13 At [33].
14 At [34].
15 At [35]–[36].
16 At [37].
17 At [47].
18 At [48].
19 At [49].
20 At [49]
may not reached the extreme hardship threshold.21 Similarly — given the level of service and care she was receiving, extending to arrangements made for her to be away from Rotorua around the time of trial — neither was her safety endangered.22 But the Judge continued suppression to 9 May 2024, to enable the daughter “to come to terms with this decision, the issue to be discussed with her and for any appropriate steps to be put in place”.23
[12] Otherwise, the Judge declined BKJ’s application for suppression of his name. But the Judge suppressed the identities of BKJ’s partner and two children, as persons connected with BKJ under s 202(1)(c), on grounds of undue hardship,24 as well as the evidence relating to them and their relationship to him under s 205 “since they would otherwise be identifiable”.25
[13] On appeal, for BKJ, Tim Braithwaite — while not abandoning claims to publication’s impact on BKJ and his partner and son — heavily focused on publication’s contended impact on his daughter. He argued the Judge erred in his comprehension of the psychologist’s advice, which was not that mitigation actions “may not” be effective, but mitigation actions were “unlikely and impractical” to be successful. For the Crown, Anna McConachy acknowledged the daughter’s pre-existing vulnerability and medical care and support but argued the Judge rightly made his own decision the impact of publication was not of extreme hardship. Even if so, open justice favoured no order suppressing publication of BKJ’s name.
[14] At my request after hearing, counsel also addressed by memorandum the materiality of Judge Harrop’s ss 202 and 205 orders to any prospective s 200 order.
21 At [49].
22 At [50]–[51].
23 At [52].
24 At [54], the Judge described “undue hardship” as “being the test in s 200(2)(a)”. The test in s 200(2)(a) is of “extreme hardship”. In context, the Judge must have meant ‘the test in s 202(2)(a)’.
25 At [54].
Approach on appeal
[15] BKJ has a right of appeal against Judge Harrop’s decision.26 I must determine the appeal by confirming, varying, or setting aside the decision appealed against, or making any other order I consider appropriate.27 As such, BKJ bears the onus of satisfying me I should differ from that decision.
[16] As a general appeal, I only am justified in interfering with the decision if I consider the decision is wrong — in other words, the Judge erred.28 I then am to come to my own assessment of the merits of the case afresh, without deference to Judge Harrop (save for some caution in differing on witness credibility, if I have not had his advantage of observing witnesses).29 I may rely on the Judge’s reasons in reaching my own conclusions, but the weight I give those reasons is a matter for me.30
[17] To the extent a decision in the exercise of discretion, I only may interfere with it if BKJ establishes the Judge acted on wrong principle, did not address relevant matters or took into account irrelevant matters, or was “plainly wrong”.31 ‘Plainly wrong’ is not synonymous with ‘wrong’ but adds the quality of obviousness as being wholly outside “the available ambit of judicial discretion”.32
The law
[18] The Criminal Procedure Act 2011 — in its general provisions, under a subpart to address “[p]ublic access and restrictions on reporting” — establishes:33
… proceedings are generally open to the public.34 There is a power to clear the Court but that does not, in most cases, allow for the exclusion of the media.35 …
26 Criminal Procedure Act, s 283.
27 Section 287.
28 Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141 at [13].
29 At [13].
30 Kacem v Bashir [2010] NZSC 112, [2011] 2 NZLR 1 at [31].
31 At [32], citing May v May (1982) 1 NZFLR 165 (CA) at 170; and Blackstone v Blackstone [2008] NZCA 312, (2008) 19 PRNZ 40 at [8].
32 See National Heart Foundation of New Zealand v Carroll HC Nelson CIV-2008-442-495, 25 February 2009 at [5], citing G v G [1985] 2 All ER 225 (HL) at 228h and 229c.
33 ASG v Hayne [2017] NZSC 59, [2017] 1 NZLR 777 at [13]–[14].
34 Criminal Procedure Act, s 196.
35 Sections 197 and 198.
The Court also has power to suppress names and other identifying particulars of the defendant, witnesses, victims and connected persons as well as evidence and submissions where the statutory thresholds are met.36 Section 200(1) states that 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”.37
[19]Section 200, with “a lengthy provenance”,38 continues:
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
(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
(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.
(3) The fact that a defendant is well known does not, of itself, mean that publication of his or her name will result in extreme hardship for the purposes of subsection (2)(a).
(4) Despite subsection (2), when a person who is charged with an offence first appears before the court the court may make an interim order under subsection (1) if that person advances an arguable case that one of the grounds in subsection (2) applies.
(5) An interim order made in accordance with subsection (4) expires at the person’s next court appearance, and may only be renewed if the court is satisfied that one of the grounds in subsection (2) applies.
(6) When determining whether to make an order or further order under subsection (1) that is to have effect permanently, a court must take into
36 Sections 200, 202 and 205. Section 206 deals with the Registrar’s power to make and renew interim suppression orders.
37 Unless the context otherwise requires, “name” is defined to mean “the person’s name and any particulars likely to lead to the person’s identification”: s 194.
38 ASG v Hayne, above n 33, at [29].
account any views of a victim of the offence conveyed in accordance with section 16B of the Victims’ Rights Act 2002.
‘Likely’, for the purposes of s 200(2), does not mean publication’s more probable consequence, but only “the existence of an ‘appreciable risk’”,39 as a “real and appreciable possibility”.40 Also, ‘name’ means “the person’s name and any particulars likely to lead to the person’s identification”;41 and ‘publication’ means “publication in the context of any report or account relating to the proceeding”.42
[20] Name suppression does not make the name-suppressed person’s identity secret, but only prohibits publication ‘in the context of any report or account relating to the proceeding’ of anything likely to lead to their identification. By default, criminal proceedings remain held in courts open to the public, in which name-suppressed defendants nonetheless are identifiable and identified. A corollary of open justice is people involved in court proceedings necessarily will be identified:43
… a public trial is the best security for the pure, impartial and efficient administration of justice and the best means for winning public confidence in and respect for the system.
Suppression derogates from open justice in the right to freedom of expression to publish accounts and reports of court proceedings.44
[21] Reasons must be given for suppression decisions.45 A two-stage analysis is required:46
At the first stage the court considers whether the consequences in s 200(2) would likely follow publication of the person’s name. This is a threshold determination.
39 Huang v Serious Fraud Office [2017] NZCA 187 at [9], citing R v W [1998] 1 NZLR 35 (CA) at 39, interpreting ss 139 and 140 of the Criminal Justice Act 1985. See also Beacon Media Group Ltd v Waititi [2014] NZHC 281 at [21] and Wallis v Police [2015] NZHC 2904 at [22].
40 R (CA654/2022) v R [2023] NZCA 125 at [19], citing D (CA443/2015) v Police [2015] NZCA 541 at [30(a)].
41 Criminal Procedure Act, s 194.
42 Section 195.43 Clark v Attorney-General (No 1) [2005] NZAR 481 (CA) at [11], citing Scott v Scott [1913] AC 417 (HL) at 463.
44 McIntosh v Fisk [2015] NZCA 247, [2015] NZAR 1189 at [1], citing JXMX (A Child) v Dartford & Gravesham NHS Trust [2015] EWCA Civ 96, [2015] 1 WLR 3647 at [5]–[12].
45 Criminal Procedure Act, s 207.
46 Ratnam v R [2020] NZCA 92 at [5]–[6], citing DP v R [2015] NZCA 465, [2016] 2 NZLR 306 at
[6].
At the second stage, if the threshold is crossed, the court considers whether an order should be made as a matter of discretion.
The first stage is an evaluative conclusion giving rise to a general appeal.47 The second stage is a discretionary conclusion, allowing “different results may reasonably be reached by different judges”.48
[22]The first stage:49
… insists that the court determine on what principled basis suppression might be granted.50 The legislation does not impose a burden of proof but the presumption will apply unless the applicant can point to something to displace it.51
The applicant “must establish one of the prerequisites. This is a threshold test, not a balancing exercise”.52
[23] The second stage must decide if “suppression [is] in the public interest”.53 Consistent emphasis is placed on “the importance of openness in the reporting of judicial proceedings and the right of the media to report on what happens in court fairly and accurately as ‘surrogates of the public’”.54 At the second stage:55
… the court must balance relevant considerations in the exercise of discretion. The open justice principle must be considered at 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.
[24] Where the threshold quality is of ‘extreme hardship’, that means “severe suffering or privation”.56 The adjective ‘extreme’ adds to the meaning of hardship or
47 H v R [2021] NZCA 481 at [17], citing Austin, Nichols & Co Inc v Stichting Lodestar, above n 28, at [16].
48 At [17], citing Parker v R [2020] NZCA 502, (2020) 29 CRNZ 536 at [30].
49 D (CA443/2015) v Police, above n 40, at [10].
50 Robertson v Police [2015] NZCA 7 at [43]–[46].
51 R v Liddell [1995] 1 NZLR 538 (CA) at 546; and Lewis v Wilson & Horton Ltd [2000] 3 NZLR 546 (CA) at [41]–[43].
52 Sansom v R [2018] NZCA 49 at [10(a)].
53 At [10(b)]. citing Fagan v Serious Fraud Office [2013] NZCA 367 at [9]–[10] and Robertson v Police, above n 50, at [44]–[46].
54 At [11], citing R v Liddell, above n 51, at 540, and Erceg v Erceg [2016] NZSC 135, [2017] 1 NZLR 310 at [2].
55 D (CA443/2015) v Police, above n 40, at [12], citing Lewis v Wilson & Horton Ltd, above n 51, at [43].
56 Robertson v Police, above n 50, at [48].
undue hardship by requiring something significantly more again.57 Assessing if hardship has the necessary quality:58
… cannot take place in a vacuum. It is self-evidently contextual and in our view must entail a relative comparison between the contended hardship and the consequences normally associated with a defendant’s name being published. It must be something beyond the ordinary associated consequences.
It is “a comparative standard”:59
… [requiring] 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.
Discussion
—is the threshold crossed?
[25] The Judge was referred to a 25 February 2024 report from a registered clinical and neuropsychologist, Erin Eggleston. Dr Eggleston was engaged by Mr Braithwaite to advise of risks to the daughter of BKJ’s loss of name suppression. Dr Eggleston identified the daughter’s medical file “reflects psychiatric care over the past three years”, initially “focused on an [e]ating [d]isorder, with associated mood episodes and self-harm”. Her clinical presentation included attention-deficit hyperactivity disorder. She was hospitalised in February 2023 after reports she was self-harming and suicidal.
[26]In Dr Eggleston’s assessment:
The clinical profile suggested a clear pattern of responding that was consistent with Borderline Personality Disorder, including suicidality and self-harm potential, dysregulated and often low mood that probably meets diagnostic criteria for depression, stimulus seeking behaviours, a high level of worry and physiological anxiety, and a trauma background that probably meets criteria for Post-Traumatic Stress Disorder.
Notwithstanding the validity scales and a slightly more moderated view required, with specific regard to risk, the Self-Harm subscale, Depression scale, Suicide Potential Index and Chronic Suicide Risk Index were all very
57 Sansom v R, above n 52, at [32], citing Robertson v Police, above n 50, at [48].
58 Robertson v Police, above n 50, at [49], citing Jeffries v Police [2014] NZHC 2379 at [24].
59 D (CA443/2015) v Police, above n 40, at [11], citing Lewis v Wilson & Horton Ltd, above n 51, at [42]; and Robertson v Police, above n 50, at [49].
high and more than two standard deviations above the normative group, with clear indications of risk.
[27] Noting the daughter’s “risk of reactivity and suicide … exacerbated by stress, and the worry and trigger of abandonment is a key one for [the daughter]”, Dr Eggleston advised:
[The daughter]’s personal view is that the lifting of name suppression, and seeing her father’s name in the paper, will be shocking to her, even though she knows it could happen, and likely lead to her [destabilising], and in her view, probably needing to go back to inpatient care.
Given her stage in disclosure around her own trauma, the high dosage psychology required for stabilisation, and even with this, the need for Acute Response Team contacts, I agree with her Community Mental Health Team that if interim name suppression is lifted and her father’s name published in the Rotorua Daily Post, there is a high risk that she will destabilise further, probably requiring more intensive care, possibly inpatient care. Noting that the level of service provided is already high, it is in my view, unlikely and impractical that the risks posed by lifting of interim name suppression can be sufficiently mitigated at this time.
I note the plan for [the daughter] to move away to study in July 2024. If this happens, and as she settles into University life outside of Rotorua, over the course of mid to late 2024, that may help in reducing/mitigating the noted risks of lifting of name suppression. A further report on final name suppression may assist the court at that time.
[28] The Court of Appeal recently affirmed “the principles that apply where suppression is sought on the basis that publication will cause the defendant to self-harm or commit suicide” require “something more than the usual feelings of anxiety and despair that may attend proceedings”.60 For example, if “the defendant is psychologically troubled for other reasons and is particularly susceptible to publicity”, perhaps “coupled with evidence that the case will attract unusually extensive or critical media publicity”.61 Divergent mental health is not in itself sufficiently ‘out of the ordinary’ to cross the threshold of extreme hardship.
[29] Judges are cautioned in those respects to respect, but not to defer to, the opinions of medical professionals as to qualifying risk.62 The Judge plainly differed from Dr Eggleston’s view it was “unlikely and impractical that the risks posed by
60 Lee v R [2023] NZCA 305 at [32], affirming D (CA443/2015) v Police, above n 40, at [30].
61 D (CA443/2015) v Police, above n 40, at [30(c)].
62 At [30(f)].
lifting of interim name suppression can be sufficiently mitigated at this time”. That is not an error, but precisely what the Judge is directed to assess. The Judge’s assessment was “that particular risk” was not “such as to justify the conclusion that [the daughter] would likely suffer extreme hardship as a result of the publication”.63 Neither, “given the level of service and care she is receiving and given her awareness of the prospect of publication”,64 could the Judge conclude her safety would be endangered.
[30] I additionally see no error in that assessment. The Judge notably was careful to link qualifying risk to publication. In context, there can be no question the daughter’s mental health is not reliably stable and so ‘destablisation’ has multiple prospective sources, but ‘destablisation’ by loss of name suppression and the attendant prospect of publication is not evidenced beyond the daughter’s own perception that is what would occur. Although Dr Eggleston attributes that perception also to the daughter’s community mental health team, no separate foundation for such hearsay concern is established. Even so, the Judge accepted the risk existed, but nonetheless was not of qualifying “extreme hardship” to the daughter or, given her support mechanisms, endangering her safety. That was a conclusion available to him, even if another judge might have concluded otherwise.65
[31] I accept the daughter’s mental health is such its unmanaged ‘destabilisation’ by publication could endanger her safety, but that is far from the daughter’s actual wraparound care environment or presenting extreme hardship by comparison with those so unafflicted. Connection to a person charged with serious crime, even with the presumption of innocence, affords hardship from publication by that association. A range of emotional stress can readily be expected, with variable consequences for those experiencing it. The daughter’s mental health renders her own hardship comparatively undue, as being beyond that as may usually be expected, recognised by Judge Harrop’s s 202 order. But it is not so distinct in character or gravity as to render it of severe suffering compared to anyone else so connected. The daughter’s hardship only derivatively may be due to publication; fundamentally, any stress may destabilise
63 R v [BKJ], above n 2, at [49].
64 At [50].
65 See, for example, F v R [2020] NZHC 1653 at [44]–[46].
her mental health. Dr Eggleston leaves too much for inference as to the relevance of “abandonment”; I do not understand how that may be implied by publication.
[32] The usual expectation is suppression orders substantively are dealt with at an early stage in criminal proceedings, on a defendant’s next appearance after any grant of interim suppression (to be sought on first appearance).66 There also is clear expectation resilience to publication be developed where possible, to which end the Court’s prohibitive powers may be claimed in aid.67 Here, Lang J expressly referred to the latter expectation,68 and Judge Harrop also acted on it.69 Compared to the seven weeks to trial incentivising Lang J’s conditional grant of name suppression, at the time of BKJ’s renewed application, trial was nearly nine months distant (and still four months from the Judge’s determination). But there was no indication developing the daughter’s resilience was inappropriate or unachievable, or if anything had been done for or by her in that respect in the subsequent months, BKJ preferring to rely on so-called ‘continuation’ of the interim order until trial.70 Given the following presumptive importance of open justice, name suppression applications should not be able to game proximity to trial.
[33] Likely reflecting the focus of submissions, the Judge did not expressly address the “real risk of prejudice to a fair trial” limb on which name suppression also was sought. Given the question squarely was before him, the Judge’s omission erred. Lang J’s concerns in this respect in the few weeks then to trial were two-fold: pressure on BKJ in being required both to prepare for trial and to support his children in the additional stress of their mother’s recent death; and publication of “[BKJ]’s name before the jury panel in the Rotorua district shortly before the trial is scheduled to commence”.71 Neither appeared still to be relied upon before the Judge or before me in support of a claim to fair trial’s prejudice. I therefore have no basis on which to
66 Criminal Procedure Act, s 200(4)–(5).
67 D (CA443/2015) v Police, above n 40, at [30(g)].
68 R v [BKJ], above n 7, at [9].
69 R v [BKJ], above n 2, at [52].
70 For the reasons I explained in R v [H] [2022] NZHC 1741 at [11]–[14], BKJ’s application now is to be understood as for an order under s 200(1) in terms of s 208(1), meaning it is an application for a suppression order to be “made permanently, or for a limited period ending on a date specified in the order”: Criminal Procedure Act, s 128(1)(a). The Judge therefore was to be satisfied publication would be likely to have one or more of s 200(2)’s consequences.
71 R v [BKJ], above n 7, at [10].
assess the merits of such a claim to suppression. BKJ’s circumstances do not cross the threshold of such prejudice.
[34] I nonetheless have considered if anything is changed by Judge Harrop’s ss 202 and 205 orders, suppressing the identity of BKJ’s partner and children as connected to him. The uncontested evidence is the BKJ surname in New Zealand is shared only with people related to BKJ, and in Rotorua only with his immediate family. There are cases in which publication of a unique or unusual connected name has been found to cause qualifying extreme hardship to the connected person, justifying a defendant’s name suppression.72 Evidence of the extreme hardship is required, not mere speculation it may arise.73 For the reasons I have explained at [31] above, I do not consider that to be the case here.
[35] But a separate ground for ordering name suppression is if publication of a defendant’s name may “lead to the identification of another person whose name is suppressed by order or by law”.74 While Mr Braithwaite acknowledges Judge Harrop’s s 202 orders offer an alternative threshold ground for suppression, Ms McConachy argues BKJ’s family “are not connected in any way to the charges he faces”; rather, Judge Harrop’s own motion orders were:
… plainly [put] in place to ensure that any reporting associated with the name suppression application would not identify the grounds for his application, namely the health of members of his family. There is nothing on the facts of the case that suggests that publication of [BKJ’s] name — in connection with the alleged rape — would lead to the identification of his family. If that was the law, defendants could circumvent the s200(2)(a) test, simply by pointing to the lesser standard of undue hardship to family members.
[36] Given Judge Harrop made both ss 202 and 205 orders, I am not able to infer his object was only to suppress evidence of BKJ’s family’s health. The Judge separately accepted “publication of their names would be likely to cause undue hardship to them”.75 The material question is if publication of BKJ’s name would be likely to frustrate Judge Harrop’s s 202 order.76 If satisfied there is “a real and
72 See, for example, R v P [2023] NZHC 842 at [61]–[64]; and Q v New Zealand Customs [2014] NZHC 2398.
73 Bitossi v R [2014] NZCA 595 at [8].
74 Criminal Procedure Act, s 200(2)(f).
75 R v [BKJ], above n 2, at [54].
76 W (CA639/2016) v R [2017] NZCA 580 at [15].
appreciable risk or possibility that publication of [BKJ’s] name will lead to an existing suppression entitlement of another person being undermined”, the threshold test is met.77
[37] Given Judge Harrop’s s 202 order, I consider his failure to consider BKJ’s qualification for suppression orders under s 200(2)(f) also was in error. In then considering those merits, I am not to revisit the Judge’s grant.78 Implicit in it is publication of BKJ’s name is likely to lead to identification of at least his children. That is express in the Judge’s s 205 reason to suppress the evidence in his judgment “relating to [BKJ]’s partner and his two children, and their relationship to him, since they would otherwise be identifiable”.79 The local uniqueness of their shared name leads inexorably to that conclusion. It is at least a real and appreciable possibility. Thus the threshold is crossed.
—should BKJ’s identity be suppressed?
[38] Given that ‘principled basis’ for the making of a suppression order,80 the question then is if the balance of competing requirements clearly requires open justice to yield.81 It is “a case-specific inquiry in which the starting point is the open justice principle”.82
[39] Open justice has differential application, depending on the stage of the proceeding in which it is engaged. An indication of those differences may be drawn from r 13 of the Senior Courts (Access to Court Documents) Rules 2017, which identifies open justice’s “greater weight” during substantive (albeit civil) hearing and in relation to its determination. Notably, s 200 identifies a distinction available between name suppression of a person either charged with an offence, or convicted or acquitted of it.
77 At [18].
78 At [15].
79 R v [BKJ], above n 2, at [54].
80 See [22] above.
81 See [23] above.
82 Harris v R [2023] NZCA 462 at [31].
[40] It is important to recognise the limited ambit of a suppression order. It exclusively is to forbid publication of likely identifying particulars of its subject “in the context of any report or account relating to the proceeding”.83 It is not a more general prohibition on publication of anything related to BKJ. It seems unlikely there will be any report or account relating to this proceeding now before commencement of trial. There was none despite BKJ’s multiple appearances in the several months after his first appearance on 1 April 2022, prior to his seeking name suppression after 31 August 2022.84
[41] Given Judge Harrop’s s 202 order, open justice clearly must yield because court orders in their nature are to be given primacy.85 While taking the complainant’s views into account, I need not to give any other consideration material weight.86 As orders made without specification of any term, they have “permanent effect”.87 Accordingly, they may be revoked, reviewed or varied by a court at any time.88 But I am not asked to do so, and would not here of my own motion given absence of challenge to them.
[42] In my assessment, the second stage balance is best established by making an order suppressing BKJ’s name until commencement of trial, when different considerations — including as to the suppression of his partner’s and children’s identities — may apply.89 The trial judge then also will be able to revoke, review or vary Judge Harrop’s s 202 and 205 orders, so all matters of suppression are open for reconsideration in trial context (and possibly in subsequent context, on BKJ’s acquittal or conviction). It would be sensible for such consideration to be raised with the trial judge before trial, so the judge has time to consider the issues other than at commencement of trial. Counsel should liaise with the registry for such time if required in addition to any pre-trial conference.
Result
[43]The appeal is upheld.
83 See [19] above, referring to s 195 of the Criminal Procedure Act.
84 See [3] above.
85 Siemer v Solicitor-General [2010] NZSC 54, [2010] 3 NZLR 767 at [26].
86 W (CA639/2016) v R, above n 76, at [25].
87 Criminal Procedure Act, s 208(2).
88 Section 208(1)(c) and (3).
89 See [20] above.
[44] In reliance on s 200(2)(f) of the Criminal Procedure Act (with reference to Judge Harrop’s 24 April 2024 orders under ss 202 and 205), under s 200(1), I order publication of BKJ’s name, address or occupation as a person charged with an offence is forbidden for a limited period ending on 26 August 2024.
—Jagose J
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