Cosci v District Court at Tauranga
[2017] NZHC 1907
•11 August 2017
IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY
CIV-2016-470-000213 [2017] NZHC 1907
BETWEEN KIMBERLEY ELENA COSCI
Applicant
AND
DISTRICT COURT AT TAURANGA First Defendant
JASON DAVID FORLONG Second Respondent
Hearing: 11 July 2017 Appearances:
Nikki Pender for the Applicant
First and Second Defendants abide the decision of the Court
Bill Nabney as Counsel Assisting the CourtJudgment:
11 August 2017
JUDGMENT OF MOORE J
This judgment was delivered by me on 11 August 2017 at 3:30 pm pursuant to Rule 11.5 of the High Court Rules.
Registrar/ Deputy Registrar
Date:
COSCI v DISTRICT COURT AT TAURANGA & ANOR [2017] NZHC 1907 [11 August 2017]
Introduction
[1] The second respondent, Jason Forlong, pleaded guilty to two counts of indecently assaulting a child under the age 12. The offending occurred in 2010 but did not come to the attention of the authorities until 2015. At sentencing in the District Court at Tauranga, Mr Forlong was granted permanent name suppression, primarily because of the claimed effect that publication would have on his nine-year-
old nephew who he cared for with his wife.1
[2] Ms Cosci, who is the applicant in these proceedings, brings three applications. First, she applies for a review of the District Court’s decision granting Mr Forlong name suppression. She alleges that the Judge misapplied the law and reached his decision on an erroneous factual foundation. She seeks an order quashing the suppression order made in the District Court. Secondly, she applies for an order permitting publication of her name which is automatically suppressed under s 203 of the Criminal Procedure Act 2011 (“the Act”) due the sexual nature of the offending against her. Thirdly, she applies for an order suppressing the identifying details of a friend who witnessed the offending against the applicant. This application is consequential on the earlier applications being determined in Ms Cosci’s favour.
Background
[3] The details of Mr Forlong’s offending are captured in the Summary of Facts to which Mr Forlong pleaded guilty. They are these.
[4] In January of 2010 Ms Cosci, who was then aged 11, was staying at a friend’s
house during the summer school holidays.
[5] Mr Forlong, then aged 32, asked Ms Cosci and her friend, then aged 13, if they wanted to stay at his place for the night. At the time, he was separated from his
wife and was the only person living there.
1 R v Forlong [2016] NZDC 17094.
[6] The two girls agreed. They passed the evening watching television but while doing so, Mr Forlong texted Ms Cosci a number of times despite being in the same room as she.
[7] Mr Forlong went to bed leaving the girls in the television room. From there he texted Ms Cosci, inviting her and her friend to join him in bed. The two girls got into Mr Forlong’s bed and lay on either side of him. Mr Forlong started to kiss Ms Cosci. She pulled away. He then took her hand and placed it on his erect penis. He held it there before moving his hand down over the top of her pyjama shorts over her genital area.
[8] Ms Cosci’s friend, observing Mr Forlong’s advances, said, “No”. Ms Cosci left the room and spent the night elsewhere in the house.
[9] Ms Cosci told no one about the offending until December 2015 when she confided first in her boyfriend and then her mother. Ms Cosci’s mother confronted Mr Forlong. After receiving an unsatisfactory response Ms Cosci decided to report the matter to the Police.
[10] Mr Forlong pleaded guilty to two charges of indecent assault on a child under
12. He was sentenced on 12 August 2016 to nine months’ home detention and was ordered to pay $5,000 in reparation to Ms Cosci. At the sentencing, the Judge made a final suppression order in favour of Mr Forlong.
[11] On that issue the Judge based his decision on two factors. First, he considered, on the basis of a psychologist’s report, that Mr Forlong’s offending may have been influenced in part by the effects of repeated concussions. Secondly, he determined publication of Mr Forlong’s name would cause undue hardship to Mr Forlong’s nephew who had been placed in his care and suffers from autism and other behavioural issues. The Judge’s reasoning on this point is set out below:
“[18] The final matter is the question of suppression of your name. You yourself suffer from the ill effects of repeated concussions over a period of time. I am satisfied from the psychologist’s report that that may well have had an influence on you getting yourself into the kind of trouble that you have got into here.
[19] But far more importantly, the material placed before me indicates that you have a child dependent upon you who suffers from autism and a number of other issues arise in relation to that child. The child attends a small school and if your name is published, I am satisfied there would be undue hardship to that child. The child would indubitably suffer a difficult time at school, a time which is probably hard enough with the condition that the child already has.
[20] This is not a case of being lenient on you, and I understand full well that the complainant wants you to have your name published, but I have larger interests to consider. It is not the fault of your child who will indubitably suffer if your name is published.
[21] For those reasons, I accept Mr Balme’s argument that the statutory grounds for a final suppression order are properly made out and there will accordingly be a final suppression order.”
[12] On 2 December 2016 Ms Cosci issued proceedings in this Court seeking a review of the decision to grant name suppression. Both respondents, the District Court at Tauranga and Mr Forlong, abide the decision of the Court.
[13] The Solicitor-General was directed under r 10.22 of the High Court Rules to appoint counsel assisting the Court. Mr Nabney was appointed. He has filed submissions and appeared at the hearing.
The application to review the suppression order
[14] The review is focused on two alleged errors made by the Judge; the application of the wrong legal test when granting name suppression and the failure to take into account relevant considerations and/or taking into account irrelevant considerations.
[15] However, before descending into the discussion of these questions it is necessary to first examine whether this Court has jurisdiction to make the orders Ms Cosci seeks.
What is the source of the Court’s jurisdiction to review the suppression order?
[16] The first potential jurisdictional source is s 208(3) of the Act which enables a suppression order to be “reviewed and varied by the court at any time”. The question is whether the reference to “the court” is a reference to any court of
competent jurisdiction or a reference to the court which made the order sought to be reviewed.
[17] Mr Nabney submits the latter interpretation is the correct one. He refers to the case of R v Appelgren in which Robertson J was faced with an application by Television New Zealand to discharge an order made in the Court of Appeal prohibiting publication of the identity of a witness who gave evidence in a murder trial.2 The application was brought under s 138 of the now repealed Criminal Justice Act 1985. Section 138(4) of that Act provided that a suppression order made under s 138, if made permanently, could be “reviewed by the court at any time”.
[18] Counsel for Television New Zealand submitted that “the court” should be interpreted as a general reference to the definition of “court” in s 2, namely “a Court exercising jurisdiction in criminal cases”. Robertson J rejected this interpretation and held that “the court” is to be interpreted as meaning the Court in which the suppression order was made.
[19] Mr Nabney submits s 208(3) should be similarly interpreted. He says if s 208 of the Act is to be relied on, the application should have been made in the District Court.
[20] That must be correct. I cannot see how else the words “the court” could
otherwise be sensibly interpreted in the context of the legislation.
[21] However, as Mr Nabney rightly acknowledges, the High Court retains jurisdiction to deal with the matter by way of judicial review. I turn now to summarise the principles relevant to an application for judicial review of a decision
granting or refusing to grant an order for name suppression.
2 R v Appelgren HC Auckland M51/97, 7 February 1997.
Judicial reviews of decisions granting or refusing to grant name suppression
[22] I commence my analysis with reference to Forsyth v District Court at Lower Hutt in which Mander J canvassed the legal principles relating to judicial review of a decision to order name suppression.3
[23] There, two sisters applied to judicially review a decision of the District Court at Lower Hutt granting interim name suppression to a defendant who was later convicted of sexually abusing them. The sisters also applied to judicially review decisions made in the District Court at Christchurch, after the matter was transferred there for trial. These decisions had the effect of maintaining the interim suppression orders after the defendant was convicted. The sisters sought an order quashing the interim suppression order or, alternatively, a declaration that the interim order was conditional upon the sisters’ statutory protection which lapsed when they successfully applied to lift their suppression.
[24] Mander J’s discussion is instructive. The following principles emerge:4
(a) Judicial review proceedings are not an avenue of appeal on the merits; they challenge process rather than outcome, and are invoked as part of the supervisory jurisdiction of the High Court.
(b)The overarching and ultimate question requiring resolution on review is whether the process leading to the making of the suppression order bears scrutiny, not whether the order was right or wrong.
(c) The question requires an inquiry into whether the decision maker adhered to the principle of natural justice, correctly understood and interpreted the facts, applied the relevant law, and took account of all relevant considerations.
(d)Insofar as a right of appeal may potentially impact upon the appropriateness of judicial review, in cases such as the present rights
3 Forsyth v District Court at Lower Hutt [2015] NZHC 2567, [2016] 2 NZLR 248.
4 At [17]-[21].
of appeal are limited to the prosecutor, the Solicitor-General and the defendant. Complainants enjoy no right of appeal.
(e) A decision of the District Court to grant or refuse to grant name suppression is amenable to judicial review. It will be the appropriate procedure for someone affected by the decision but who was not a party to the application for suppression.5
[25] Mander J found that the complainants had a significant personal or private interest in the proceedings beyond those shared with members of the public at large and, for that reason, had standing to bring their application. In practice this reasoning is likely to extend to all complainants in cases of sexual offending.
[26] Mander J found that the trial Court erred in failing to review the interim order at the conclusion of the trial, as it was obliged to do, and failed to properly consider the issue of whether the offender’s name suppression should become permanent.6
The question therefore became whether the relief sought by the applicants should be granted, namely the revocation of the suppression order made in the offender’s favour.
[27] Mander J observed that while it is a fundamental principle of judicial review that any remedy is discretionary, there is a presumption that a practical and effective remedy will be provided to a claimant who has succeeded in showing a public law wrong, and there must be a good and principled reason for the Court not to exercise
its discretion to provide a remedy.7
5 For this proposition, Mander J cited the following authorities: Auckland District Court v Attorney-General [1993] 2 NZLR 129 (CA); Tauhara Properties Ltd v Mercantile Developments Ltd [1974] 1 NZLR 584 (SC) at 592; Thomson v Attorney-General [1996] 1 NZLR 21 (CA); Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374 (HL); Lewis v Wilson & Horton Ltd [2000] 3 NZLR 546 (CA); Fairfax New Zealand Ltd v C [2008] NZCA 39, [2008] 2 NZLR 368 at [17]; Transport Accident Investigation Commission v Wellington District Court [2008] NZAR 595 (HC); Newspapers Publishers Association New Zealand (Inc) v Family Court [1999] 2 NZLR 344 (Full HC).
6 At [76]-[103].
[28] After weighing a number of considerations,8 Mander J decided against revoking the suppression order. The most influential factor was the length of time (some 20 years) which had elapsed since the offender had been dealt with by the criminal justice system. He concluded:9
“On balance, I do not consider the limitation placed on the victims’ ability to provide the full narrative of their offending overcomes what, in my view, would be the inequitable result of [the offender] having to bear the consequences of the public scrutiny, opprobrium and likely vilification, which, if visited upon him at all, should have occurred some two decades ago, at the time he was convicted and sentenced by the trial Court.”
[29] Thus in Forsyth it was determined there existed cogent factors displacing the presumption that a practical and effective remedy will be provided to a claimant who has succeeded in showing a public law wrong.
[30] With these principles in mind I turn to consider whether the Judge erred in making an order for name suppression in Mr Forlong’s favour. The natural starting point is to examine the correct approach in law as required by s 200 of the Act.
The correct approach under s 200
[31] It is well settled that the inquiry under s 200 involves a two-stage process. First, the Judge must consider whether any of the threshold grounds listed in s 200(2) have been established. This is often called the “jurisdiction” stage. Secondly, the Judge must weigh the competing interests of the person seeking suppression and those of the public. This is referred to as the “discretion” stage.
[32] In Robertson v Police the Court of Appeal described the two-stage process in this way:10
“[40] At the first stage, the judge must consider whether he or she is satisfied that any of the threshold grounds listed in 200(2) has been established. That is to say, whether publication would be likely to lead to one of the outcomes listed in subs (2). The listed outcomes are prerequisites to a court having jurisdiction to suppress the name of a defendant. It is “only if” one of the threshold grounds has been established that the judge is able to go on to the second stage.
8 At [139]-[140].
9 At [144].
10 Robertson v Police [2015] NZCA 7.
[41] At the second stage, the judge weighs the competing interests of the applicant and the public, taking into account such matters as whether the applicant has been convicted, the seriousness of the offending, the views of the victims and the public interest in knowing the character of the offender.”
[33] The first question requires the Court to determine whether the result is “likely to occur”. In Beacon Media Group Ltd v Waititi Gilbert J held that the phrase “would be likely to” meant more than “may”.11 Thus a mere possibility would not be sufficient. His Honour considered there had to be a “real risk that cannot be readily discounted”.12
[34] Ms Cosci says the Judge made errors at both stages of the inquiry. At the first stage, she says the Judge applied the wrong legal test and, in any event, there was an insufficient factual foundation for his findings. At the second stage, she says the Judge failed to take proper account of the countervailing circumstances.
Did the Judge err at the jurisdiction stage?
[35] In determining this question, two inquiries must be undertaken; first, whether the correct legal test was applied and secondly, whether there was an adequate evidential foundation. I shall consider each of these questions in turn.
(a) Did the Judge apply the correct legal test?
[36] Ms Pender, for Ms Cosci, submits that the only applicable threshold ground in s 200(2) is paragraph (a) which permits the Court to make an order suppressing the identity of a defendant if the Court is satisfied that publication would be likely to cause “extreme hardship to the defendant or any person connected with that person”.
[37] Ms Pender refers to the Judge’s sentencing notes at [19] where he said he was satisfied that publication of Mr Forlong’s name would cause “undue hardship” to a vulnerable nine-year-old nephew dependent on Mr Forlong.
[38] Ms Pender submits this is a clear error of law. The relevant provision requires “extreme” rather than “undue” hardship. She submits there is a significant
11 Beacon Media Group Ltd v Waititi [2014] NZHC 281.
difference between the two standards and refers to Beacon Media Group Ltd v Waititi
where Gilbert J explained the difference:
“[22] As the Court of Appeal recognised in R v Liddell innocent family members will almost inevitably suffer anguish when an offender is convicted of a serious crime. However, such normal consequences will rarely be sufficient to displace the public interest in the open reporting of court proceedings. The public interest in open justice and freedom of expression will only yield in the case of a defendant in criminal proceedings where it can be shown that the harm likely to be suffered as a result of publication is extreme or excessive. By contrast, victims, witnesses and others connected with the proceedings or the defendant need only show that they are likely to suffer undue hardship as a result of publication of their details in connection with the proceedings. “Undue hardship” is therefore something more than the hardship that would normally attend publicity surrounding criminal proceedings but less than “extreme hardship”. This is the balance Parliament has struck between the competing public interest in open justice and freedom of expression and the right of an individual to be protected from harm likely to result from publication.”
[39] In R v Liddell, cited in Waititi, the Court of Appeal observed:13
“… anguish to the innocent family of an offender is an inevitable result of many convictions for serious crime. Only in an extraordinary case could it outweigh, in relation to the reporting of the name of a person convicted of a serious crime, the general principle of open justice and the open reporting of justice.”
[40] Mr Nabney acknowledges that the high standard of extreme hardship was probably not met on the evidence before the Judge. However, he submits there is an alternative jurisdictional basis on which the Judge could have made the order. He draws attention to s 200(2)(e) which permits the Court to make an order if satisfied that publication would be likely to “endanger the safety of any person”.
[41] Mr Nabney submits that evidence of likely psychological harm is sufficient to invoke the operation of the s 200(2)(e) and refers to R v Shailer where Brewer J said:14
“[17] I now turn to the related ground put forward by Mr Mills. That is that I can be satisfied that publication would be likely to endanger the safety of a person, namely Ms Shailer. There is case law to the effect that this provision does encompass a defendant. I agree with that authority. I consider that safety is a discrete factor which is not necessarily included within an evaluation of extreme hardship. It has a lower threshold.
13 R v Liddell (1994) 12 CRNZ 458 at 463-464.
[18] I accept also that a person’s safety is endangered if publication would cause physical or psychological harm. Suicide risks are often raised under this ground and that is the basis upon which Mr Mills advances his submissions. I accept that the medical evidence required to show that publication is likely to endanger the safety of a person does not have to be unequivocal. Further, I accept that publication does not have to be the sole cause of the risk to safety. It is sufficient that publication would cause a health condition to deteriorate further.”
[42] Mr Nabney submits that the Judge may have had grounds to make the order if he was satisfied that publication would likely endanger the safety of Mr Forlong’s nephew. Mr Nabney notes the child’s tender age (he is now 10). He refers to DP v R in which the Court of Appeal observed:15
[11] While s 200 of the CPA must be given full effect, nothing within its terms precludes a Court from recognising the special importance of youth at either the jurisdictional or discretionary stages of the name suppression inquiry. When interpreting the s 25(i) NZBORA right, UNCROC’s articles should be adopted in a way which advances Parliament’s purpose. As noted, that purpose is shared by both instruments. Courts can be expected to interpret legislation consistently with international treaties ratified by New Zealand. Moreover, Parliament is not to be assumed to have intentionally legislated contrary to New Zealand’s international obligations. In our judgment s 200 of the CPA must thus be interpreted in a way consistent with discharging those obligations.
[43] The Court in DP v R was considering the effect of the defendant’s youth on his application for name suppression. Mr Nabney submits similar principles apply when a defendant applies for name suppression with reference to the effects of publication on a connected young person. Thus, Mr Nabney suggested there is an available argument that the Judge based his decision on the real possibility that publication of Mr Forlong’s name would lead to his nephew suffering psychological harm, having particular regard to his condition and youth.
[44] In my view it is clear the Judge made an error of law. His reference to “undue hardship” must be taken to have been deliberate. “Undue hardship” is a specific phrase which appears in s 200(2)(b) and (c). It denotes a particular legal standard which has been the subject of judicial exegesis in a number of decisions including Beacon Media Group. It is apparent the Judge applied the wrong legal standard and erred in law. I have no doubt he would have used different language if
he was directing the inquiry towards the safety of the child under s 200(2)(e).
15 DP (CA418/2015) v R [2015] NZCA 476, [2016] 2 NZLR 306.
[45] The question then arises whether the decision can be justified on review on the basis that jurisdiction nonetheless existed to grant name suppression under s 200(2)(e). The relevant inquiry is whether there was sufficient evidence that publication would endanger the physical or psychological safety of the child dependent on Mr Forlong. This question is better answered under the next heading.
(b) Was there an adequate evidential foundation for the order?
[46] Ms Pender submits that, irrespective of whether the Judge applied the correct legal test, there was an inadequate factual foundation for the order to be made. She submits the evidence is equivocal in a number of material respects. She says it is not clear:
(a) when Mr Forlong’s nephew came to live with Mr Forlong and his wife;
(b) the nature of the arrangement and its likely permanence;
(c) the extent to which Child Youth and Family, the child’s parents and other caregivers retain responsibility for the child’s wellbeing; and
(d) the level of concern that the child’s other caregivers have about
Mr Forlong’s offending.
[47] These are, to a greater or lesser extent, valid criticisms. However, I consider the more fundamental difficulty is that there is a dearth of evidence as to the likely effect of publication on the child’s psychological health. At sentencing, Mr Forlong provided the Court with three reports from health professionals assessing the child’s development and autism diagnosis. I briefly summarise them.
[48] The first report was prepared by Chris McAlpine, a clinical psychologist. Dr McAlpine saw the child and his mother in May of 2010 when he was just three years old. The report assessed the child against a system developed to identify children with autism and to distinguish them from developmentally delayed children without the autism syndrome. Dr McAlpine concluded that the child was autistic.
[49] The second report was prepared by Gemma Holleran, a speech pathologist in September 2012 when the child was aged five years and four months. Ms Holleran assessed the child as having severe receptive and expressive language impediments, was unable to participate in group activities and could not follow instructions containing more than one step. The child required constant one-to-one supervision for his own safety and the safety of others.
[50] The third report was prepared by Dr Gina O’Grady, a paediatric neurologist, in September 2015 when the child was nearing nine years of age. His mother and father attended the interview. The report discloses that the child was able to play alongside other children but not usually co-operatively with them. He was seen by Dr O’Grady because he had been suffering seizures. The report is primarily directed at addressing various medical issues such as seizures and headaches.
[51] In summary, all reports establish that Mr Forlong’s nephew presents with a severe form of autism. While it is clear on the evidence he experiences learning and social difficulties, there is nothing in the evidence indicate to the likely effect publication would have on the child’s psychological well-being.
[52] The Judge said the child “would indubitably suffer a difficult time at school, a time which is probably hard enough with the condition that the child already has”. While I can understand the Judge’s comments, there is simply insufficient evidence from which to draw the conclusion, even by inference, that the child will suffer either psychological harm under s 200(2)(e) or experience “extreme hardship” under s 200(2)(a).
[53] What must also be added to this consideration is that Mr Forlong’s nephew, being the child of his wife’s sister, does not share his surname. While those close to the family would obviously make the connection, the difference in surname adds some protection to the child.
[54] Mr Nabney helpfully referred to a passage in Robertson v Police where the Court of Appeal stated that the onus is on the applicant to satisfy the Judge of the claimed effects of publication.16 The Court said:
“[44] The wording of the section itself also reinforces the presumption, using the language “only if” as well as expressions such as “extreme” and “undue”. The intention is clear. Publication is the norm. Suppression orders are only to be made in restricted circumstances and the threshold is high. The onus is on the applicant to satisfy the judge that suppression should be ordered.”
[55] Mr Nabney submits that given the ambiguous material that was provided to the Court, it could well be concluded that insufficient consideration was given to the onus borne by the applicant and the evidential onus which flows from that. I agree. The evidence is not sufficiently cogent to demonstrate that publication of Mr Forlong’s name would cause the child to suffer extreme hardship or pose a danger to his safety.
(c) Conclusion
[56] It follows I conclude the Judge erred in law by applying the wrong legal standard. His mistaken reference to “undue hardship” constitutes a clear legal error. Moreover, I accept Ms Pender’s submission that the notoriously high threshold of “extreme hardship” is not met on the evidence. Nor does the evidence demonstrate with sufficient cogency that the child’s safety would be endangered. Thus, even if the issue is approached from the alternative perspective presented by Mr Nabney, I am satisfied the Judge committed reversible error when he found that Mr Forlong’s name should be suppressed by reason of its likely effect on his nephew.
[57] Having found the Judge erred at the jurisdiction stage it is unnecessary to then consider whether he also erred at the discretion stage. Obviously, the discretion cannot be exercised in the absence of jurisdiction. However, for completeness I turn
to address the arguments raised by Ms Pender and Mr Nabney.
16 Robertson v Police, above n 10.
Did the Judge err at the discretion stage?
(a) Was the victim given sufficient opportunity to express her views?
[58] The first criticism is that Ms Cosci was not given a sufficient opportunity to provide her views on whether Mr Forlong should be granted name suppression.
[59] Plainly, the Judge was aware she opposed the application because he said:
“This is not a case of being lenient on you, and I understand full well the complainant wants you to have your name published, but I have larger interests to consider. It is not the fault of your child who will indubitably suffer if your name is published.”
[60] However, Ms Pender’s submission is that Ms Cosci was not given a proper opportunity to gather her thoughts and articulate precisely why it was so important that Mr Forlong was not given name suppression. In an affidavit filed in this proceeding, Ms Coscis deposes:
“At the sentencing hearing, [Mr Forlong] also asked for name suppression. I was asked by the Court for my view on [Mr Forlong] getting name suppression. I didn’t know what to say so I simply said that I did not think he should get it. Nobody asked me to give any evidence or respond to things that [Mr Forlong] claimed to be true.”
[61] Ms Pender submits that had Ms Cosci been given time to prepare her thoughts, it is likely that she would have stressed that giving Mr Forlong name suppression would undermine her very reason for coming forward in the first place. In her own words:
“It would have been easy not to do anything more. But I felt I had no choice. All along I have been trying my best to do what is right. I want to make sure what has been done to me, doesn’t happen to anyone else. I especially want to let people know that paedophiles aren’t necessarily “weird looking”. Here was a man who had children and a wife. They appeared to be a normal family. His wider family is very religious, the last people that you would expect this to happen.
I was scared to go to the Police station. I would not have done it just for my own sake. But I kept thinking about others out there. What if this had happened to other people who might come forward if I did? Would my actions save others in the future? These thoughts were 90% of the reason why I finally went to the Police.
…
In the end, [Mr Forlong] did get name suppression … I have never felt so let down or angry in my life. What was the point of going through what I went through if no one knows about this, how will my actions have saved other people?”
[62] Mr Nabney, on the other hand, submits the Judge did take sufficient account of Ms Cosci’s views even if they were not expressed at that time as forcefully as they are now.
[63] I do not consider Ms Pender’s criticism of the Judge on this point is fair. The Judge properly took Ms Cosci’s views into account. It was the responsibility of Crown counsel, rather than the Judge, to prepare Ms Cosci adequately before the hearing so that her views could be effectively expressed when the opportunity arose at the hearing. Nevertheless, I do not overlook Ms Cosci’s position as expressed in her affidavit. Her comments dovetail with the principle that open justice should prevail absent cogent factors pointing to the contrary.
(b) What is the public interest in publishing Mr Forlong’s identity?
[64] Ms Pender further submits that where the complainant waives the right to anonymity, the offending is no longer in a special category and the usual default presumption of full and open reporting should apply. It is clear the Judge did not grant name suppression in order to protect Ms Cosci’s identity. Thus this submission is not directly applicable.
[65] However, there is force in the submission that the presumption for open justice is a strong one and should only be displaced in the clearest of cases. As Duffy J said in H v R:17
“The discretion to prohibit publication should be exercised sparingly; only as an exception to the general rule that the community is entitled to know the identity of people coming before the courts; and in cases involving serious offences with the utmost caution.”
[66] This is another factor suggestive of error on the part of the Judge. Nowhere in his sentencing notes did he expressly identify or recognise the significance our legal system places on the principle of open justice.
[67] Ms Pender’s next argument raises a difficult issue. She submits the public has a right to know about Mr Forlong’s offending because there may have been another victim in the form of Ms Cosci’s 13-year old friend. Ms Cosci deposes that her friend, after joining Ms Cosci elsewhere in the house, disclosed events which indicated Mr Furlong offended against the friend immediately after Ms Cosci left the room.
[68] Ms Pender submits that there is, therefore, an evidential basis giving good cause to believe Mr Furlong’s offending was not confined to Ms Coscis, and this increases the risks associated with not reporting Mr Forlong’s identity.
[69] By contrast, Mr Nabney submits there is no great need for the public to know about the offending. He refers to B v R where the Court of Appeal said:18
“In some sexual cases, there is undoubtedly an especially high public interest in identifying the offender. It may be a decisive consideration when publication of the name of the accused may bring further offending to light or help to prevent reoffending. But there is no reason why sexual offending should be seen to automatically carry a heightened case for publicly identifying the offender … the weight to be accorded to the public interest will vary according to the particular facts of the case (including the nature and seriousness of the offending) and the circumstances of the offender. The fact that sexual offending is an issue should not exclude a careful weighing of all relevant circumstances.”
[70] Mr Nabney submits that the only other person identified as a possible victim of Mr Forlong’s offending, Ms Cosci’s friend, was aware of the charges and has made her own decision as to whether to make a formal complaint. As Ms Cosci herself acknowledges, her friend, even now, does not seek to take matters further.
[71] It follows I do not accept these circumstances operate in favour of open justice beyond the general rule that the community is entitled to know the identity of people convicted of serious offences. However, as observed earlier, it is only exceptional cases that will avoid the operation of this general rule.
(c) Should the Judge have taken Mr Forlong’s concussions into account?
[72] The Judge referred to a report from a psychologist saying that Mr Forlong suffered “from the ill effects of repeated concussions over a period of time” and concluded that these “may well have had an influence on [him] getting [him] into the kind of trouble that [he] got into here”. Presumably, the Judge saw this as a relevant factor as to whether Mr Forlong posed an ongoing risk to the public.
[73] Ms Pender submits that the conclusion reached by the Judge, namely that he was still suffering from the effects of concussion when he offended against Ms Cosci, lacked a proper foundation. She submits that the psychologist who gave the report is not a neurologist and has not cited any of Mr Forlong’s medical records. Moreover, Ms Pender contends the theory is inconsistent with evidence given by Ms Cosci that Mr Forlong sent her inappropriate texts over a sustained period of months, suggestive of premeditated grooming.
[74] Mr Nabney takes a contrary position. He submits that the concussive effects
do not appear to have been a determinative factor in the Judge’s decision.
[75] I agree. The decision was based largely on the effect of publication on Mr Forlong’s nephew. After referring to the possible effects of Mr Forlong’s repeated concussions on his offending, the Judge remarked “but far more importantly, the material placed before me indicates that you have a child dependent upon you who suffers from autism and a number of other issues arise in relation to that child”. The Judge does not appear to have been influenced to any great extent by the effects of successive concussion.
[76] However, I accept Ms Pender’s submission that the evidence relied on by the Judge lacked cogent probative force. The alleged effect of the concussions is not a factor which points strongly in favour of an order for name suppression.
(d) Conclusion
[77] As Mander J explained in Forsyth, judicial review proceedings are not an avenue of appeal on the merit. The ultimate question is not whether the order was right or wrong. The question is whether the process bears scrutiny.
[78] In the present case I am not convinced that the evidence of a health professional on the effects of concussion was an irrelevant consideration even if that evidence was somewhat speculative in nature. Similarly, I am not satisfied the Judge failed to take into account a relevant consideration, being the views of Ms Cosci.
[79] However, I do consider the Judge erred by failing to recognise or give sufficient weight to the principle of open justice. The Court of Appeal has said the balance at the discretion stage must “clearly favour” suppression before publication is the proper course.19 Accordingly, the basis for interfering with the Judge’s exercise of discretion, had the jurisdiction been made out, would lie in his failure to appreciate the weight of factors required to shift the presumption. That is an error of law.
What is the appropriate relief?
[80] As observed in Forsyth, there is a presumption that a practical and effective remedy will be provided to a claimant who has succeeded in showing a public law wrong, and there must be a good and principled reason for the Court not to exercise its discretion to provide a remedy.20
[81] Having found that the Judge was wrong to find there was jurisdiction to make an order for suppression in Mr Forlong’s favour, I consider an order quashing the decision of the District Court should be made. The particular factors which militated
against such an order in Forsyth are not present here.
19 D (CA443/2015) v Police [2015] NZCA 541, (2015) 27 CRNZ 614 at [12].
20 Forsyth v District Court at Lower Hutt, above n 3, at [114].
Application permitting publication of the applicant’s identity
[82] The applicant applies for an order under s 203(3)(b) of the Act. Relevantly, this section reads:
“203Automatic suppression of identity of complainant in specified sexual cases
(1) This section applies if a person is accused or convicted of an offence against any of sections 128 to 142A or 144A of the Crimes Act 1961.
(2) The purpose of this section is to protect the complainant.
(3) No person may publish the name, address, or occupation of the complainant, unless—
(a) the complainant is aged 18 years or older; and
(b) the court, by order, permits such publication.
(4) The court must make an order referred to in subsection (3)(b) if—
(a) the complainant—
(i) is aged 18 years or older (whether or not he or she was aged 18 years or older when the offence was, or is alleged to have been, committed); and
(ii) applies to the court for such an order; and
(b) the court is satisfied that the complainant understands the nature and effect of his or her decision to apply to the court for the order; and
(c) in any case where publication of the identity of the complainant may lead to the identification of the person who is charged with or convicted of the offence, no order or further order has been made under section 200 prohibiting publication of the identity of that person.
…”
[83] Ms Cosci is now 18 years of age. The sole issue is therefore whether the Court is satisfied that she understands the nature and effect or her decision to apply to the Court for the order.
[84] The purpose of this provision, as expressly stated in s 203(2), is to protect the complainant. In Chan v Attorney General McKenzie J was confronted with an application brought under s 139(1)(b) of the Criminal Justice Act 1985, the
predecessor section to s 203.21 After finding the relevant statutory test to have been met, McKenzie J remarked:22
“It would be paternalistic in the extreme if this Court were to hold, contrary to Mrs Chan’s express wishes, which must be given effect to with regard to the disclosure of her name, that her interests continue to require that the details of the offending be suppressed.”
[85] Those observations apply here with equal force. Ms Cosci is a university student who aspires to be a psychologist. Her affidavit impressed me as balanced, focused and persuasive. There is nothing before me which would indicate anything other than she has given this issue careful and mature consideration. She plainly appreciates the effects publication of her name may have on her. On the question of lifting suppression of her name, Ms Cosci says:
“I never wanted name suppression, I assumed the case would be public, and I was prepared for that. I am old enough to make up my mind about this. I have had it explained to me what the implications of lifting suppression would be, especially if media become interested in my case. But I would rather have that than secrecy.”
[86] I have no hesitation in making this order.
Application to protect identity of Ms Cosci’s friend
[87] Ms Cosci says she does not want to identify her friend against her wishes. For that reason she seeks consequential orders preventing publication of her friend’s name and any other details which might lead to her being identified. Those orders are sensible and I am satisfied they should be made.
Result
[88] The application is granted and the following orders are made:
(a) the order of the District Court of 12 August 2016 forbidding publication of the name, address or occupation of the second
respondent is quashed; and
21 Chan v Attorney-General [2005] NZAR 135.
22 At [13].
(b) publication of the applicant’s name and occupation is permitted; and
(c) an order suppressing the name, address, occupation and any details which might lead to the identification of the applicant’s friend is
made.
Costs
[89] Ms Cosci does not seek costs. In my view, in the circumstances of the case and having regard to the position adopted by Mr Forlong, that is appropriate and no
order as to costs is made.
Moore J
Solicitors/Counsel:
Franks Ogilvie, Wellington
Mr Nabney, Tauranga
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