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Ditlhabi v The King

Ditlhabi v The King

Case [2024] NZHC 1374 29 May 2024

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NOTE: INTERIM ORDER PROHIBITING PUBLICATION OF THE APPELLANT’S NAME, ADDRESS, OCCUPATION OR IDENTIFYING

PARTICULARS UNTIL 5:00 PM 27 JUNE 2024 PURSUANT TO S 291 OF THE CRIMINAL PROCEDURE ACT 2011.

NOTE: DISTRICT COURT ORDER PROHIBITING PUBLICATION OF NAME, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS OF WITNESS PROHIBITED BY S 202 OF THE CRIMINAL PROCEDURE ACT 2011 REMAINS IN FORCE. SEE

NOTE: PUBLICATION OF NAMES, ADDRESSES, OCCUPATIONS OR IDENTIFYING PARTICULARS OF COMPLAINANTS PROHIBITED BY S 203 OF THE CRIMINAL PROCEDURE ACT 2011. SEE

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CRI-2024-485-15

[2024] NZHC 1374

BETWEEN
MARTIN DITLHABI

Appellant

AND

THE KING

Respondent

Hearing: 11 April 2024

Appearances:

V C Nisbet and S W O Campbell for Appellant R De Silva and N L Jamieson for Respondent

Judgment:

29 May 2024

JUDGMENT OF McQUEEN J

[1] Mr Ditlhabi appeals the decision in the District Court declining his application for permanent name suppression.1

1 R v Ditlhabi [2024] NZDC 1537.

DITLHABI v R [2024] NZHC 1374 [29 May 2024]

[2]For the reasons set out below, I decline the appeal.

[3]Before giving my reasons for declining the appeal, I note three matters.

[4] First, I express the hope that only responsible commentary on this case will be published. There is no place for any repetition of the racist and threatening commentary directed to Mr Ditlhabi that occurred on social media in 2020.

[5] Second, to preserve Mr Ditlhabi’s appeal rights, I direct that interim name suppression will continue for a further 20 working days from the date of this judgment to permit his counsel to take instructions and, if required, file an appeal. In the event no appeal is filed within the period required pursuant to s 291 of the Criminal Procedure Act 2011 (the Act), the interim order will lapse.

[6] Third, I direct that this judgment is provided to the Department of Corrections to draw to the Department’s attention the need for ongoing mental health care and support for Mr Ditlhabi.

Background

[7] On about 18 October 2020, an individual named Ms Madeleine Petersen- Hodge posted on the social media outlet Instagram a post about “Wellington Musicians” who were sexually assaulting woman. The “Wellington Musicians” referred to a group of three men, one of whom was Mr Ditlhabi. A livestream on Instagram also occurred the same day, held by Ms Petersen-Hodge and another, Mr Joshua Cooper-Taepa. This generated a significant amount of interest with young women, who sent Ms Petersen-Hodge their experiences with the “Wellington Musicians”, which was then also shared to Instagram.

[8] As a result of being named as one of the “Wellington Musicians”, people started sending Mr Ditlhabi abusive messages to his Instagram and Facebook accounts. His flat, in which he lived in with two other individuals also being accused of sexual offending as part of the “Wellington Musicians”, was broken into and vandalised.

[9] The social media posts attracted attention from the media and sexual violence advocates. A…

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 Ditlhabi v The King

Details

AGLC: Ditlhabi v The King [2024] NZHC 1374
Case: [2024] NZHC 1374
Decision Date: 29 May 2024

CaseChat Overview and Summary

Martin Ditlhabi appeals the decision of the District Court to decline his application for permanent name suppression. Ditlhabi was convicted of one charge of sexual violation by rape following a retrial. The District Court had previously declined Ditlhabi’s application for permanent name suppression on the basis that the threshold of extreme hardship was not met, and that the balance of the competing interests favoured open reporting. The appeal raises two issues: whether the District Court correctly applied the law in concluding that Ditlhabi would not suffer extreme hardship if his name was published; and if it did not, whether the Court should interfere with the exercise of the District Court’s discretion. I conclude that the appeal should be dismissed. Ditlhabi’s position, while difficult, does not meet the threshold of extreme hardship. The District Court was correct to conclude that the principle of open justice should prevail.

Orders