BL v R

Case [2013] NZHC 2878 31 October 2013

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ORDER PROHIBITING PUBLICATION OF NAME, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS OF APPELLANT PURSUANT TO S 200 CRIMINAL PROCEDURE ACT 2011.

NOTE: PUBLICATION OF NAMES, IDENTIFYING PARTICULARS, ADDRESS OR OCCUPATION OF COMPLAINANTS PROHIBITED BY S 203 CRIMINAL PROCEDURE ACT 2011.
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV-2013-404-289 [2013] NZHC 2878
BETWEEN BL Appellant

ANDTHE QUEEN Respondent

Hearing: 25 October 2013

Counsel: D P H Jones QC for appellant
K J Glubb for respondent

Judgment: 31 October 2013

JUDGMENT OF WINKELMANN J

This judgment was delivered by me on 31 October 2013 at 2.15 pm at pursuant to
Rule 11.5 of the High Court Rules.
Registrar/ Deputy Registrar

Solicitors:
The Small Law Firm Ltd, Auckland
Meredith Connell, Auckland

Counsel:
D P H Jones QC, Auckland

BL v R [2013] NZHC 2878 [31 October 2013]

[1] In September 2013, the appellant BL pleaded guilty to two representative counts of sexual conduct with a child under 12 years, and was sentenced to 12 months’ home detention. His name had been suppressed until that point, and an application for permanent name suppression was made at the sentencing hearing. It was made on the basis that publication of BL’s name or identifying details would cause him extreme hardship and endanger his safety, because it would exacerbate an existing suicide risk. Judge Paul declined the application for permanent name suppression.

[2] BL now appeals against the refusal of permanent name suppression, citing the following alleged errors by the Judge:

1.He failed to give sufficient weight to factors supporting the grant of name suppression.

2.He gave too much weight to certain factors militating against suppression.

3.He considered the risk of reoffending as a relevant factor despite there being no or insufficient evidence of this.

4.He erroneously considered that the adverse effects of publicity could be managed by treatment, family and Church support.

5.He failed to take into account two important factors supporting suppression, namely that the victims’ father supported name suppression, and that the Medical Council is aware of the convictions.

Relevant background

[3] The facts of the offending are as follows. The victims of BL’s offending were two young brothers, aged 6 and 11 at the time of the offending. The offending took place in the children’s home over a period of about four months. It involved three incidents against the older child, and multiple incidents against the younger child. By reason of the victims’ age, and the location of the offending, the offending

involved both vulnerable victims and a particular breach of trust. It was serious offending.

[4] The offending was BL’s first offence. BL is a registered medical practitioner, and the offending is accepted to be completely out of character. It is also accepted that it occurred at a time of intense emotional disturbance for him. Prior to the offending BL and his wife had been overseas, leaving their only son, aged in his early 20’s, at home. When they returned they found that their son had taken his own life, using…

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 BL v R

Details

AGLC: BL v R [2013] NZHC 2878
Case: [2013] NZHC 2878
Decision Date: 31 October 2013

CaseChat Overview and Summary

The appeal in BL v R involved an application for permanent name suppression, which was refused by Judge Paul at the sentencing hearing. The appellant, BL, pleaded guilty to multiple counts of sexual conduct with a child under 12 years, and was sentenced to 12 months’ home detention. The appellant’s application for permanent name suppression was based on the risk of exacerbating an existing suicide risk. The appellant now appeals against the refusal of permanent name suppression, citing alleged errors by the Judge. The appellant argues that the Judge failed to give sufficient weight to factors supporting the grant of name suppression, gave too much weight to factors against suppression, considered the risk of reoffending despite insufficient evidence, erroneously considered that the adverse effects of publicity could be managed by treatment, family and Church support, and failed to take into account two important factors supporting suppression, namely that the victims’ father supported name suppression, and that the Medical Council is aware of the convictions. The District Court Judge considered the principles of open justice, the right of the public to be informed and the news media to report proceedings of the Court. The Judge referred to the relevant law, and took into account the views of the victims of the offence. The Judge concluded that the appellant’s personal health did not outweigh the public interest in knowing that the appellant is responsible for such serious offending. The High Court allowed the appeal, finding that the Judge’s decision was plainly wrong in light of the additional evidence received. The Court found that the risk of suicide outweighs the public interest in knowing about the operation of the justice system, and granted an order for permanent non-publication of the appellant’s name and any details which may lead to his identification.

The Court considered the relevant principles and statutory provisions governing name suppression, and found that the Judge’s decision was not materially erroneous. However, the Court found that the Judge’s decision was plainly wrong in light of the additional evidence received. The additional evidence provided by Dr Goodwin made plain that it was both his and BL’s treating psychiatrist’s view that the risk of suicide will not be mitigated by the structures that the Judge identified. The Court found that the risk of suicide outweighs the public interest in knowing about the operation of the justice system, and granted an order for permanent non-publication of the appellant’s name and any details which may lead to his identification. The Court noted that the victims’ views were a mandatory consideration, but that the appellant’s medical condition required this element of special treatment. The Court weighed more than just the victims’ views in reaching a decision on this appeal. The Court found that the risk of reoffending was low, and that the appellant had been suspended from medical practice, which further addressed concerns regarding public safety. The Court concluded that the appeal should be allowed, and that the publication of BL’s name will cause him extreme hardship, and will endanger his safety by further heightening an existing high risk of suicide. Those factors outweighed all other considerations, including the principle of open justice.

Orders