Dmello v New Zealand Customs Service
[2025] NZHC 1473
•5 June 2025
IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY
I TE KŌTI MATUA O AOTEAROA TE PAPAIOEA ROHE
CRI-2025-454-11
[2025] NZHC 1473
MARC CHARLES DMELLO v
NEW ZEALAND CUSTOMS SERVICE
Hearing: 5 June 2025 Counsel:
J J Harvey for Appellant
A Barnham for Respondent
Judgment:
5 June 2025
JUDGMENT OF GRAU J
[Name suppression appeal]
Introduction
[1] Marc Dmello has been charged with five representative charges of exporting an objectionable publication1 and five representative charges of distributing objectionable publications. 2 He has pleaded not guilty and elected trial by jury. The charges have recently had a case review hearing. No trial date has been set.
[2] Mr Dmello appeals against the District Court’s decision to decline to grant him interim name suppression.3 He seeks name suppression until the charges are resolved.
1 Customs and Excise Act 2018, s 390(1)(a) and (2)(a)—maximum penalty 10 years’ imprisonment.
2 Films, Videos and Publications Classification Act 1993, s 124(1) and (2)(a)—maximum penalty 14 years’ imprisonment.
3 NZ Customs Service v Dmello [2024] NZDC 32302.
DMELLO v NEW ZEALAND CUSTOMS SERVICE [2025] NZHC 1473 [5 June 2025]
He says he will suffer extreme hardship if these allegations are published, as publication will end his prospects of future employment in his chosen field, in the aviation industry.
[3] The Crown supports the District Court’s decision to decline interim name suppression.
The alleged offending
[4] The charges relate to alleged offending that occurred between 26 August and 3 November 2024. Mr Dmello allegedly used five separate accounts on the same overseas-based social media platform to send child sexual exploitation material (CSEM) to other users via private chat messages. The material includes videos of young children being sexually abused by adults.
[5] The social media platform detected the activity and filed reports with the National Centre for Missing and Exploited Children (NCMEC), a non-governmental organisation based in the United States. NCMEC forwards such reports to relevant law enforcement agencies. New Zealand Customs received the reports and identified that the offending occurred at Massey University in Palmerston North, where Mr Dmello is a student.
[6] On 12 December 2024, a search warrant was executed at Mr Dmello’s address. Forensic examination of his mobile phone and laptop showed that his phone was logged into the Gmail account that created the five social media accounts. His email inbox contained emails from the social media platform welcoming him each time he created one of the accounts. His phone also matched the offending device reported by the overseas social media platform.
[7] When interviewed, Mr Dmello did not make a statement, although he confirmed that the email address belongs to him.
The application for name suppression
[8] Mr Dmello swore an affidavit in support of his application on 13 March 2025. This affidavit was relied on in the District Court to advance the application to suppress his name.
[9] Mr Dmello is currently studying a Bachelor of Aviation Management at Massey University. He is a citizen of India studying in New Zealand on a Pathway Student Visa.
[10] Initially, Mr Dmello commenced studying a Bachelor of Aviation in July 2023, however, he had to take up work to support himself and was unable to maintain his studies alongside his employment. He failed three papers, after which he transferred to the Bachelor of Aviation Management, which he described as a “longer, but cheaper and easier route to gain an education in the field of aviation”. He says it is like medical students who do not immediately get into medical school and study an undergraduate science degree in order to attempt post-graduate admission. He began this degree in February 2024. He says this route will set him back six to eight years, which already puts him at a disadvantage professionally, as airlines like to hire younger pilots.
[11] Mr Dmello has deposed that, shortly after commencing his second semester in 2024, he learned that his father had been accused of “offending” back in India. Mr Dmello declined to speak to the precise allegations, but said his father was remanded in custody between July and November with no charges. This meant his family in India lost their main source of income. Mr Dmello is an only child and cannot work more than 20 hours a week on his visa, which means he cannot provide for his family in his father’s absence. Mr Dmello says he then began drinking more than he would otherwise and missed classes, resulting in him failing more papers. He became concerned that if he failed more papers, he would not be able to continue studying, which is a condition of his visa.
[12] Mr Dmello was remanded in custody for a period after he was charged, as he did not have a bail address. His flatmates did not want to risk having him near their children given the allegations, which Mr Dmello stresses are “only allegations”. He
says, “this is exactly the attitude I expect employers will have if they find out about these allegations”.
[13] Mr Dmello also provided more detailed information about the process of becoming a pilot. He stresses that age is a factor for older applicants. Mr Dmello believes that if his name is published in association with these charges, it is “almost certain” he will not be hired by professional airlines. He accepts that he must pass a fit and proper person test for industry membership, but he says his application for interim name suppression is not about that. Rather, his application is based on the damage the publication of “mere allegations” would have on any application for employment with an airline. He says a reasonable employer would not be able to look past them, and therefore the effects of publication would cause him extreme hardship.
District Court decision
[14] Judge Krebs considered the contents of Mr Dmello’s affidavit at some length. His Honour said he was “far from satisfied” that the application demonstrated extreme hardship. In the Judge’s view the hardship that arises is no different to the hardship that any defendant suffers as a result of charges being brought.
[15] The Judge said whether the allegations will have any deleterious effect on applications Mr Dmello might make for employment in the airline industry in the future is speculative. Accordingly, he declined the application.
Principles on appeal
[16] The starting point for the consideration of a suppression order is the presumption of open justice.4 The business of the courts should be conducted publicly and any departure from this general rule ought only to be “to the extent necessary to serve the ends of justice”.5
4 Robertson v Police [2015] NZCA 7; D (CA443/2015) v Police [2015] NZCA 541, (2015) 27
CRNZ 614.
5 Erceg v Erceg [2016] NZSC 135, [2017] 1 NZLR 310 at [3].
[17] A suppression order may be made under s 200 of the Criminal Procedure Act 2011 (the Act). The Court is required to undertake a two-step inquiry.6 First the Court must determine whether any of the threshold grounds in s 200(2) of the Act are met. Secondly, if the Court is satisfied one of the threshold grounds has been met, it must determine whether to exercise its discretion and forbid publication of the defendant’s details.7 The presumption of open justice is considered at this stage. To displace the presumption, the balance must clearly favour suppression.8
[18] An appeal court is required to undertake its own assessment of whether the threshold test is met.9 If satisfied that the criteria at the first stage has been met, the Court must then determine whether suppression should be granted or not. In doing so, the Court assesses whether the Judge acted on a wrong principle, failed to account for a relevant matter, considered an irrelevant matter, or was plainly wrong.10 The appeal court must confirm, vary or set aside the decision appealed against, or make any other order it considers appropriate.11
Submissions
Appellant’s submissions
[19] Mr Harvey, for Mr Dmello, submits that it would amount to extreme hardship if Mr Dmello is unable to become a pilot because of the allegations. He says it is “axiomatic” that a commercial airline, a service-based company with a significant public image, would not want the perception of association with allegations of child sexual exploitation material. He says that airlines will not hire Mr Dmello if there are public articles naming him, even if he is acquitted.
[20] Mr Harvey submits that the Judge erred in determining that the hardship in this case was no different to other cases, and by considering the effect on Mr Dmello’s employment prospects to be speculative.
6 D (CA443/2015) v Police, above n 4, at [10].
7 Fagan v Serious Fraud Office [2013] NZCA 367 at [9]; Robertson v Police, above n 4;
D (CA443/2015) v Police, above n 4.
8 D (CA443/2015) v Police, above n 4, at [17].
9 Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141 at [16].
10 O (CA680/2014) v R [2014] NZCA 579 at [21].
11 Criminal Procedure Act 2011, s 287.
[21] Mr Harvey says there are elements to the hardship in this case which make it extreme. Those elements include Mr Dmello’s youth, at age 20, and his personal circumstances, the particular career he is trying to pursue, and the way in which publication of these charges in particular would affect that career path. He emphasises Mr Dmello’s youth as making him particularly vulnerable in employment. He is not an experienced pilot protected by unions and collective bargaining agreements. Interviewers will be free to reject Mr Dmello with limited, if any, recourse being available to him. Counsel also refers to X v R, where the Court of Appeal held that the High Court had paid insufficient regard to the fact that X was a young, first-time offender.12 Mr Harvey also points out that Mr Dmello’s name is unique.
[22] In relation to Mr Dmello’s desire to become a pilot, Mr Harvey submits that it is not fair for the Judge to equate the prospect of becoming a pilot with any employment faced by any defendant. He says that Mr Dmello has deposed to his commitment to become a pilot, including years of study and flight time.
[23] On appeal, evidence from NZALPA, the largest pilot union in New Zealand, has been provided in support. It is NZALPA’s view that declining the application for name suppression will likely render Mr Dmello unemployable for any future commercial flying role. This evidence was not before the District Court. The Crown raises no objection to its admission on appeal. I have considered it accordingly.
[24] Mr Harvey accepts that any order for name suppression can only be on an interim basis; if Mr Dmello was ultimately convicted, it would be right to revisit suppression. What Mr Dmello seeks is name suppression until there has been due process in respect of his charges. If he is acquitted there would be an argument to continue suppression, if not, he would face hurdles.
12 X v R (CA226/2020) v R [2020] NZCA 387.
Respondent’s submissions
[25] Ms Barham, for the Crown, submits that Mr Dmello cannot establish a real and appreciable risk that publication would cause him extreme hardship. Ms Barham refers to Galvin-Cairns v R, in which Gwyn J dismissed an appeal against a District Court decision to grant interim name suppression for a doctor working in a psychiatric ward charged with sexual offences.13 The risk there was said to be extreme hardship to current and future employment prospects. Justice Gwyn commented that more than a feared loss of employment and future employment was required to meet the threshold, and there was no evidence about the impact of publication.14
[26] Ms Barham points out that the risk here is to potential future employment, but that future employment is contingent on Mr Dmello achieving his goal of becoming a pilot, which his affidavit demonstrates he is currently struggling with for reasons separate to these charges. Ms Barham accepts that there is now evidence about the impact of publication. However. she notes that risk is in relation to a person who is already a qualified pilot seeking employment. Mr Dmello is not such a person, and whether he ever reaches a position where publication would have such an impact is entirely speculative.
[27] Ms Barham submits that Mr Dmello’s case is no different to any other defendant charged with such offending who has plans of future employment and therefore it does not reach the threshold of extreme hardship.
Analysis
[28] As above, the assessment under s 200 of the Criminal Procedure Act is a two- stage inquiry.15 First, the Court must consider if the threshold requirement is met, that is whether publication of Mr Dmello’s name is likely to cause him extreme hardship.16 If that threshold is met, the Court must weigh the competing interests in determining whether to grant name suppression.
13 Galvin-Cairns v R [2024] NZHC 3614.
14 At [26].
15 M (SC 13/2023) v R [2024] NZSC 29.
16 Criminal Procedure Act, s 200(2)(a).
Would publication of Mr Dmello’s name be likely to cause him extreme hardship?
[29] It is inevitable that publication of a defendant’s name will occasion some form of hardship. In order to meet the threshold of extreme hardship, a very high level of hardship needs to exist.17
[30] Mr Dmello’s application is advanced on the basis that publication of the charges he faces will affect his future chances of obtaining employment at a commercial airline once he completes a very significant period of education and training to become a pilot, and that is the case even if he is ultimately acquitted.
[31] Notwithstanding the letter by NZALPA, I agree with the District Court Judge that, at this still very early stage in Mr Dmello’s training, any effect on his future career as a pilot is simply too speculative to meet the threshold of extreme hardship. His future career is itself speculative, given the significant steps Mr Dmello needs to take, and achieve, before he can have such a career. In his affidavit, Mr Dmello deposes that he was experiencing difficulties in his studies which predates these charges. In my view, that makes the potential consequences upon which Mr Dmello advances his application even more speculative.
[32] Should Mr Dmello be successful in obtaining his qualification as a pilot, he will be subject to a “fit and proper person” test.18 Notwithstanding the evidence provided, I am unable to accept that, if Mr Dmello was eventually acquitted, a potential employer would inevitably go beyond that test and take into account publication of these allegations—at least without seeking comment. That is particularly so given, as Mr Dmello stresses in his affidavit, the pathway to becoming a pilot is a long one. By the time Mr Dmello would be in a position to seek employment at a commercial airline, he will be 28 years old according to his affidavit. I consider that the publication of allegations (at least if they did not ultimately lead to convictions) arising when he was 20 years old would not inevitably prevent him from obtaining such employment if he otherwise met all of the requirements.
17 Robertson v Police, above n 4, at [48].
18 Civil Aviation Act 1990, s 10.
[33] I also note here that Mr Dmello is now potentially already in jeopardy in relation to meeting a fit and proper person test in the future. As Mr Harvey responsibly and fairly advised the Court, Mr Dmello now also faces a charge of driving with excess breath alcohol. If that charge results in a conviction, it would need to be disclosed.
[34] When Mr Dmello’s future career prospects are far in the future, and contingent on his achieving a number of steps along the way, my view is that more is required to meet the threshold in s 200(2)(a).19 I agree with the Crown’s submission that Mr Dmello’s case is no different to any other defendant charged with this type of offending who has plans of future employment. I do not consider the case of S v R20 that Mr Harvey referred to is of any assistance when the circumstances were very different. That case concerned a person whose charges were dismissed, including for insufficiency of evidence, and thus publication would have unfairly suggested she had been engaged in criminal activity but escaped conviction on a technicality. She also had a well-established career and provided evidence she would lose her employment.
[35] While the case of X v R assists Mr Dmello in confirming that the assessment of extreme hardship is to be made in context of the combination of factors engaged, including Mr Dmello’s youth, the District Court did not overlook this approach. Rather, the Judge, rightly in my view, considered that the personal factors affecting Mr Dmello largely pre-date the charges and are caused by reasons other than the consequences of publication, and that the link contended for as to potential elimination from the future job market for commercial pilots was too tenuous, in Mr Dmello’s circumstances.
[36] The facts of X v R were also quite unique. It was a case attracting significant public attention due to the political setting, generating illegitimate, harmful vilification on social media following X’s discharge without conviction on reduced charges, having originally been charged with sexual offences. The Court of Appeal in that case considered that the public interest in X’s identity was “disproportionately and
19 Galvin-Cairns v R, above n 13, at [26]; Stephens v R [2021] NZHC 1902 at [26]; Blackwood v R
[2017] NZHC 1262 at [10]–[12].
20 S v R [2024] NZHC 2485.
illegitimately high”.21 While Mr Dmello, like X, is a young, first-time offender, I do not find that case to assist him further.
[37] Accordingly, I agree with the Judge that the threshold requirement of extreme hardship is not made out in Mr Dmello’s case.
Given the threshold in s 200(2)(a) is not met, the second stage of the enquiry does not arise for consideration. I cannot make an order for suppression.
Result
[38]The appeal is dismissed.
[39] The interim order for name suppression will continue for 20 working days to enable Mr Dmello to consider his options.
Grau J
Solicitors:
BVA The Practice, Palmerston for Respondent cc: J J Harvey for Appellant
21 X v R, above n 12, at [59].
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