BL v R

[2013] NZHC 2878

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 a firearm, some days prior to their discovery of him.  BL was left, literally, to clean up the mess.   BL was profoundly depressed by these events and found himself reliving the circumstances of his first discovery of his son over and over again, in flashbacks, in colour, and with vivid sensory detail.  These flashbacks were accompanied by guilty suicidal thoughts.

[5]      It was because of these tragic events that a long-time close friend suggested BL might like to babysit his two children.  This was an act of kindness.  It was seen by the friend as a way of supporting BL, and it is in these circumstances that the offending took place.

[6]      There was extensive material available to the Judge in relation to BL’s circumstances.   The Judge had available to him a report prepared for sentencing. The report writer expressed significant safety concerns for BL because BL regularly contemplated suicide, had planned how to end his life and had the means to carry out that plan. The writer said that imprisonment was not recommended to ensure current protective factors, including the appellant’s relationship with his wife and his regular attendance at church, were maintained.

[7]      In relation to the risk of reoffending the report writer said:

The risk of reoffending is difficult to determine.  The forensic psychologist involved  with  [BL]  agreed  his  history  would  indicate  the  risk  is  low, however, his current mental state makes a dynamic assessment difficult. The risk of harm if he were to reoffend is assessed as high.  [BL] is likely to be compliant with court imposed requirements, however he is unlikely to successfully  engage  with  treatment  right  now.    It  is  hoped  that  with continued treatment from his psychiatrist and psychologist, he will be able to be referred for sexual offending treatment with SAFE while subject to Community  Probation  oversight.    To  allow  for  this  process  Community

Probation oversight should extend to the maximum length available to the court.

[8]      The Judge also had available to him reports prepared by BL’s psychologist Dr Tony Coates, and by a psychiatrist, Dr Ian Goodwin.  Both had diagnosed BL as having suffered from a major depressive episode triggered by post traumatic stress disorder,  with  uncontrollable  flashbacks  a  feature  of  the  disorder.    In  a  report prepared for a sentencing indication, Dr Coates said:

Such circumstances are followed by dissociation.  Dissociation is a term that describes a phenomenon in which part of the personality is said to become split (or dissociated) from the whole in order to escape or retreat from the horror of the trauma.   The normal accepted adult boundaries of one’s personhood are said to be split, or dissociated, and the person is said, that in order to escape the horror, to regress to an earlier time in which such normal processes of conduct regulation privy to an adult, are not available and the person behaves accordingly.

Having some  experience with  the  disorder,  it  is  my understanding after seeing [BL] for many sessions that this accounts for his sexual conduct occurring as it did in an intelligent man with an otherwise stainless professional reputation.

Such conduct would be otherwise inexplicable outside the tragic circumstances of his life.

Dr Coates assessed BL’s likelihood of reoffending as “vanishingly small”.  In a short updating report prepared for the name suppression hearing, Dr Coates said that publication of BL’s name would have a major impact on BL’s compromised mental state, and would place him at a very serious risk of self-harm.

[9]      In his report Dr Goodwin agreed that at the time of the offending BL was suffering from both a major depressive episode and post traumatic stress disorder and that it was possible that due to his mental state at the time he does not truly recall those offending behaviours.  He said:

[BL’s] age and lack of prior offending places him in a low risk category for future offending.   His lack of recollection of the offending is problematic, though potentially explicable due to his mental state at the time.

[10]     Dr Goodwin assessed BL’s current risk of suicide as high and expressed the opinion that publication of his name was likely to further exacerbate that risk.  He concluded:

He feels that he has suffered the loss of everything that matters in his life, and in my opinion, it is likely that the public exposure of this would likely give him further justification for suicide.

District Court Ruling

[11]     The Judge commenced his analysis with BL’s offending, noting that it was serious   offending   –   the   maximum   penalty   on   each   count   was   10   years’ imprisonment.     The  Judge  also  referred  to  BL’s  circumstances,  and  to  the information provided by Dr Coates and Dr Goodwin, summarising the gist of the material as follows:1

This man is experiencing a serious depressive illness and as a result has a limited expectation as to what the future holds for him, and has this risk of self-harm as a result; and … publication would be a significant factor which could lead to such an outcome.

[12]     The Judge referred to the relevant law, noting that he had to be satisfied that there was likely to be extreme hardship to the person charged or that publication could endanger the safety of any person, which he accepted could include the defendant.  He also noted that he had to take into account the views of the victims of the offence.  He recorded the objection of the boys’ mother to the granting of a non- publication order.  She described BL’s actions as premeditated, and not just a one off

incident.  She posed the question:2

Why should he be given any special treatment?  This type of offending is inexcusable.

[13]     The Judge did not refer to the fact of the victims’ father’s support for the grant of permanent name suppression, which had been communicated during the course of the hearing.

[14]     The Judge said the starting point for his analysis had to be the principle of open justice, the right of the public to be informed and of the news media to report proceedings of the Court.   The publication of an offender’s name is an important factor in the general deterrence of crime and an element of punishment.  He referred

to the evidence as to BL’s state of mind.   Although acknowledging that BL had

1      R v BL DC Auckland CRI-2013-004-009626, 27 September 2013 at [9].

2      At [17]-[20].

suffered from a major depressive episode and post traumatic stress disorder as a result of discovering his son dead in 2012, he noted that he was responding to medication.   The Judge said  the risk of suicide had  been  in  place prior  to  the offending  and  appeared  to  have  continued  at  that  time.    He  acknowledged  the opinion of Dr Goodwin that the danger of suicide would be exacerbated by the publication of BL’s name. Although he was prepared to accept that the danger would be elevated he continued:

However, I remind myself any Court confronted by such serious offending must be very cautious in making any suppression orders.  Of course, Courts must be alert to offenders who may wish to manipulate the system in their favour with such claims.  As I have already indicated, it appears the claims are founded on evidence from Dr Goodwin.   Suicidal thoughts may well support a final suppression order but, in my view, not necessarily.  It is my assessment that these thoughts have been in place prior to the offending, and subsequently.  That they result in feelings of hopelessness on your part [BL], and  I  also  note  concerns  about  an  inability  to  return  to  your  past employment.

It seems to me these concerns, and perhaps elevation and risk, can be addressed by the protective factors that have already been identified in the reports before me, such as [BL’s] wife, his church, and clearly the medical support and treatment he is receiving.

It is of concern when I read the reports as to the lack of recollection of this offending  and  the  inability  for  those  who  have  some  qualification  in assessing risk who say it is a little difficult in those circumstances.

I also must surely give weight to the views of the victims’ mother, and the concerns she has expressed to this Court which are concerns this Court would also share.

[15]     Ultimately, the Judge concluded:3

[BL’s] personal health does not outweigh the public interest in knowing that you [BL] are responsible for such serious offending.   That fundamental principle of open justice must today in my view prevail, and accordingly I decline your application for permanent non-publication of your identity.

Application for leave to adduce further evidence

[16]     BL seeks leave to admit a second report by Dr Goodwin which responds to material contained in the judgment as to the management of BL’s risk of suicide, and

as to the significance of BL’s imperfect memory of the offending to assessing his risk

3 At [21].

of reoffending.  The application to admit this further evidence is not opposed by the Crown.  I am satisfied the material does respond to remarks made by the Judge in his ruling and so is fresh evidence.  It is, in any event, useful updating material as to the mental state of BL, a critical issue on this appeal.   Given the seriousness of the matters at issue in this proceeding I have no hesitation in receiving this additional evidence.

[17]     Dr  Goodwin  was  asked  by  counsel  for  BL whether,  if  BL’s  name  were published, the risk of suicide could be adequately mitigated by the treatment, family and church support BL is receiving.  His opinion is that those factors are unlikely to significantly mitigate this risk – a risk which remains high.  He also reports that the opinion of BL’s treating psychiatrist Dr Shieff is that the answer to the question is no.  Dr Goodwin says that it is relevant that the significant factors associated with the risk of suicide appear to be BL’s shame and his self-perceived loss of honour. Dr Goodwin identifies a number of risk factors for suicide for BL including his age, gender, circumstances, means of committing suicide and also a partly treated major depressive episode and post traumatic stress disorder, noting that BL has had only partial improvement in mood.

[18]    Dr Goodwin was also asked to comment upon the significance for risk assessment  of  BL’s  inability  to  completely  recall  the  events  giving  rise  to  the offences.  He says that major depressive episodes and post traumatic stress disorder are both conditions known to significantly impair memory.   Although the lack of complete recall does impact on risk assessment it does not make risk assessment impossible.  BL’s static risk factors, such as his lack of previous offending and age, tend to place him in a low risk category.   Moreover, BL has indicated on two occasions that he is willing to attend any treatment programme that is recommended by the Court which Dr Goodwin says does not indicate a lack of insight and, he says, “indeed appears to indicate a willingness to address the issues and potential risk factors that may become more evident should [BL’s] mental state improve”.

Discussion

Approach on appeal

[19]     This is an appeal against the exercise of a discretion.  Consequently, BL must demonstrate that the District Court Judge acted on a wrong principle, or that he failed to take into account some relevant matter, or took into account some irrelevant matter, or that he was plainly wrong.4

Principles: name suppression

[20]     As the Judge noted, the starting point for his consideration of the application was the principle of open justice.  In considering whether or not to make an order forbidding publication of the identity of a defendant, the courts have consistently emphasised the presumption in favour of openness in reporting. In R v Liddell the Court of Appeal stated:5

...  the  starting point  must  always  be  the  importance  in  a  democracy of freedom of speech, open judicial proceedings, and the right of the media to report the latter fairly and accurately as ‘surrogates’ of the public.

This principle of openness reflects the “public interest in knowing about all aspects of the operation of the justice system.”6   Further, publication contains an element of punishment and deterrence, and may protect the public from further offending or encourage  other  victims  to  come  forward.7      It  also  avoids  suspicion  falling  on others.8

[21]     This is the context within which s 200 of the Criminal Procedure Act 2011 fell to be considered by the Judge.  Section 200 provides in material part:

(1)       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.

(2)       The court may make an order under subsection (1) only if the court is satisfied that publication would be likely to—

4      May v May (1982) 1 NZFLR 165 (CA) at 170; Lawrence v R [2011] NZCA 272.

5      R v Liddell [1995] 1 NZLR 538 (CA) at 546.

6      EPL v Police HC Auckland CRI-2010-404-76, 22 April 2010 at [37].

7      Proctor v R [1997] 1 NZLR 195 (CA).

8      R v Edwardson HC Rotorua CRI-2006-012-2670, 20 July 2006.

(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

...

(e)      endanger the safety of any person;

...

(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 account any views of a victim of the offence conveyed in accordance with section 28 of the Victims' Rights Act 2002.

[22]     The words utilised in s 200(2)(a) are intended to create a high threshold for the grant of name suppression.  Publication of an offender’s name will usually cause hardship both to the offender and their family, and it is clear that more than that is required to make out extreme hardship.

[23]     As to s 200(2)(e), as the Judge accepted, the offender falls within the class of persons whose safety may be considered.  Where there is a risk of suicide, the Court must consider the medical evidence before it.  Where a risk of suicide is established, name suppression does not automatically follow; the existence of a suicide risk is a relevant, but not determinative, factor.9

[24]     I can find no material error in the reasoning of the District Court Judge which justifies overturning that decision.   The Judge correctly directed himself as to the appropriate principles that governed his decision, and clearly confronted the issue before him, namely whether, given the risk of suicide for this offender who is guilty of serious sexual offending, it was appropriate to grant permanent name suppression. The weight given to the various factors considered was a matter for the Judge’s discretion.

[25]     Counsel for BL is correct in his submission that the Judge directed himself only to the views of the mother of the victims and not to the view of the father of the victims, who was supportive of name suppression.  But that is not a material error, since  it  is  clear  from  the  Judge’s  decision  that  the  mother’s  views  were  not

determinative of the application.   Nor is the failure to refer to the fact that the Medical Council is aware of the convictions a material error; in reaching his decision the Judge did not appear to attach weight to the possibility of BL practising medicine again in the future.

[26]     Having found no material error on the part of the Judge, I have nevertheless resolved to allow the appeal.  That is because the decision is “plainly wrong” in light of the additional evidence now received.  A material consideration for the Judge was that BL’s family support and church structures could mitigate the heightened risk of suicide  should  BL’s  name  be  published.    The  additional  evidence  provided  by Dr Goodwin makes plain that it is 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. As Mr Glubb for the Crown accepted, this appeal must proceed on the basis that BL is at a high risk of suicide due to the major depressive episode and post traumatic stress disorder he has been suffering since discovering the body of his son, and that this suicide risk will be elevated still further by the publication of his name.  There is no comfort available to the Court that this risk can be mitigated in some way.  That being the case, it is necessary for me to undertake the s 200 assessment afresh.

[27]     The Crown relies upon the Court of Appeal decision in R v Suttie as a similar case where the Court upheld a refusal of name suppression even though the evidence was that publication would heighten an existing risk of suicide.10   This case contrasts sharply with the fact situation in Suttie.  In Suttie, as the Court of Appeal reasoned, the fact of the appellant’s conviction was likely to become public when she went to prison.  Moreover, prison care would itself mitigate the risk of suicide, because of

the preventive measures that are put in place within prison when a risk of suicide is known. These factors are not present in this case.

[28]     Here I am satisfied, on the basis of the medical evidence, and in particular the fresh  evidence from  Dr Goodwin, that the risk of suicide outweighs the public interest in knowing about the operation of the justice system.  The Crown argues that even if this is correct, in a case such as this, where there is a risk of reoffending, and

where the potential victims are vulnerable children, the Court should nevertheless decline name suppression.  Protection of the public demands it.

[29]     There may be circumstances where the risk of reoffending is so great that, notwithstanding that it will result in a heightening of a high risk of suicide, name suppression will be declined.  I do not consider that this is such a case.  Having read all the material, it is apparent that BL's risk of reoffending is to be assessed as low. He is a man in his mid 60s who has never offended in this fashion before.   His offending occurred in the immediate aftermath of a traumatic episode, and has been assessed by both Dr Coates and Dr Goodwin as being linked to the post traumatic stress disorder and depression that followed.  That this was a consequence of BL’s mental illness is now known and treatment can be directed to it, both through his mental health providers, and most likely, through probation-directed rehabilitation programmes.  I also note that BL has been suspended from medical practice, which further addresses concerns regarding public safety.

[30]     The views of the victim are a mandatory consideration.   Here the victims’ mother opposes name suppression, and their father supports it.  These views do not cancel each other out.   I do not know the reasons for the father’s support.   The mother raises the issue of BL’s culpability for the offending, and also objects to his receiving special treatment.   Both are valid considerations, but in this particular situation  BL’s  medical  condition  requires  this  element  of  special  treatment. Ultimately I am obliged to weigh more than just the victims’ views in reaching a decision on this appeal.

[31]     In light of the new information available to me, I have determined that the appeal should be allowed.   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 outweigh all other considerations, including the principle of open justice.

[32]     For these reasons, the appeal is allowed.   I therefore make an order under s 200 of the Criminal Procedure Act for permanent non-publication of the appellant’s name and any details which may lead to his identification.