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…
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.
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AGLC
BKJ v The King [2024] NZHC 1257
Case
[2024] NZHC 1257
Decision Date
CaseChat Overview and Summary
BKJ appeals against the decision of Judge Harrop in the Rotorua District Court declining his application for suppression of his name under s 200 of the Criminal Procedure Act 2011. BKJ argues publication of his name will cause extreme hardship to his daughter and a real risk of prejudice to a fair trial. The Crown submits the Judge was correct to decline suppression of BKJ’s name, and open justice favours no suppression order. The appeal is allowed and BKJ’s name is suppressed until the commencement of trial. The appeal raises questions of the threshold and balancing considerations for suppression of a defendant’s name. The first stage requires the court to determine if publication is likely to cause one or more of the consequences in s 200(2). The second stage requires the court to determine if suppression is in the public interest. The threshold is not high, but requires something out of the ordinary. The balancing stage requires the court to give open justice “clearly” the upper hand. The Court of Appeal has recently emphasised the importance of open justice in cases of suppression sought on the basis of the defendant’s mental health. The appeal court must determine if the District Court erred in its assessment of the evidence and conclusions it reached. The Court of Appeal has cautioned the trial court not to defer to the opinions of medical professionals as to qualifying risk. The appeal court must determine if the District Court’s conclusions were open to it. The appeal court may interfere if the trial court acted on wrong principle, did not address relevant matters, took into account irrelevant matters, or was “plainly wrong”. The appeal court is not to substitute its own decision for that of the trial court. The appeal court found no error in the District Court’s assessment of the evidence. The appeal court found error in the District Court’s failure to address the likelihood that publication would lead to the identification of BKJ’s children, suppressed by Judge Harrop’s s 202 orders. The appeal court found the threshold was crossed. The appeal court found the balance of competing requirements clearly required open justice to yield. The appeal court suppressed BKJ’s name until the commencement of trial.