Brice v The King - [2025] NZSC 37

NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 203 OF THE CRIMINAL PROCEDURE ACT 2011. SEE

IN THE SUPREME COURT OF NEW ZEALAND

I TE KŌTI MANA NUI O AOTEAROA

SC 122/2024
[2025] NZSC 37

BETWEEN	CHRISTOPHER OLIVER BRICE Applicant
AND	THE KING Respondent

Court:	Williams, Kós and Miller JJ
Counsel:	T Epati for Applicant J A A Mara for Respondent
Judgment:	11 April 2025

JUDGMENT OF THE COURT

The application for leave to appeal is dismissed.

____________________________________________________________________

REASONS

Following a jury trial in the District Court, the applicant was found guilty of indecent assault. He was convicted and sentenced to six months’ community detention and six months’ supervision with a special condition to undertake any necessary counselling. He was also ordered to pay the victim $6,000 by way of reparation for emotional harm.[1] The applicant appealed, but the Court of Appeal upheld the sentencing Judge’s refusal to discharge him without conviction or to permanently suppress his identity.[2] The Court took this view although it had been made aware after the appeal hearing—but before judgment delivery—that the applicant had made an additional $19,000 reparation payment to the victim.[3] The Court recorded its reasons as follows:
[95] The fact Mr Brice has now fully (if belatedly) reimbursed the complainant for the economic losses she suffered as a consequence of the offending does not materially change our view that the Judge was correct to decline both the discharge without conviction and the name suppression applications. … The fact the payment has now been made therefore does not significantly affect the analysis undertaken in respect of both applications including our assessment of the gravity of the offending. The increased payment does not render Mr Brice’s conviction disproportionate to his offending. Nor does it elevate the consequences of publication of his name to the qualifying level of extreme hardship.
[1] R v Brice [2023] NZDC 26478 (Judge Zohrab) [Sentencing notes] at [74].
[2]At [66] and [84]; and Brice v R [2024] NZCA 539 (French, Jagose and Grice JJ) [CA judgment] at [98] and [100].
[3]CA judgment, above n 2, at [91]–[97].
In this Court, the applicant now seeks leave to appeal against his conviction and the refusal of the Courts below to grant permanent name suppression.

The parties’ submissions

The applicant submits it is necessary in the interests of justice for this Court to hear and determine the proposed appeal because it involves a matter of general and public importance, and a substantial miscarriage of justice may have occurred.[4] The applicant submits the Court of Appeal erred in three respects. First, the Court erred in finding that the additional reparation payment and the victim’s accompanying views were immaterial to whether a discharge without conviction should have been granted.[5] The applicant says the gravity of the offending is reduced by the additional payment having materially mitigated the impacts of the offending and by the victim potentially changing their view in favour of suppression as a result.
[4]Senior Courts Act…

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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Details

Case: [2025] NZSC 37
Decision Date: 11 April 2025

CaseChat Overview and Summary

In the case of Brice v The King, the applicant, Christopher Oliver Brice, sought leave to appeal against his conviction for indecent assault and the refusal of the Courts below to grant permanent name suppression. The case involved a series of legal issues, including the weight of reparation payments in sentencing decisions, the admissibility of fresh evidence on appeal, and the application of different hardship standards in name suppression cases. The applicant argued that the additional reparation payment made after the appeal hearing, the potential impact of publication on his children, and the discrepancy in hardship standards warranted a review of the decisions below. The Crown contended that the Courts below had properly considered these matters and that no substantial miscarriage of justice had occurred.

The Court found that the applicant's arguments did not present issues of general or public importance or a risk of a miscarriage of justice. The Court observed that both the sentencing Judge and the Court of Appeal had given due consideration to the additional reparation payment, and the Court saw no genuine issue of principle arising from these facts. Regarding the admissibility of the psychologist's evidence, the Court agreed with the Crown that the argument had not been raised in the Courts below, and thus the Court lacked the benefit of the Court of Appeal's reasoned views. Finally, the Court noted that the applicability of the "extreme" or "undue" hardship standards was not addressed in the Courts below and that this issue had been recently considered by the Court in another case. The Court concluded that the approach of the Courts below did not appear erroneous and that there was no necessity in the interests of justice for this Court to hear and determine the proposed appeal.

The application for leave to appeal was dismissed, and the final orders of the Court reflect that the applicant's appeal against his conviction and the refusal of the Courts below to grant permanent name suppression was not granted. The Court's decision emphasizes the importance of adhering to procedural pathways and the consideration of open justice and public interest in such cases. The applicant's arguments, while raising some context-specific matters, did not meet the threshold for leave to appeal under the Senior Courts Act 2016.

Orders