Donga v The Queen - [2021] NZHC 1927

IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY

I TE KŌTI MATUA O AOTEAROA WHAKATŪ ROHE

CRI 2021-442-5

[2021] NZHC 1927

IN THE MATTER OF A name suppression appeal

BETWEEN

DAVID MANI DONGA

Appellant

AND

THE QUEEN

Respondent

Hearing: 12 May 2021 (Wellington)

Appearances:

S Zindel and R Brook for the Appellant (by AVL) S O’Donoghue for the Respondent (by AVL)

Judgment:

28 July 2021

JUDGMENT OF CAMPBELL J

This judgment was delivered by me on 28 July 2021 at 4.00 pm

Registrar/Deputy Registrar

DONGA v R [2021] NZHC 1927 [28 July 2021]

[1] Mr Donga was tried in the Nelson District Court in February 2021 on five charges of indecent assault against two female complainants. The jury found him not guilty of three of the five charges. They could not reach a verdict on the other two. A retrial on those two charges was ordered. However, in due course the Crown elected not to offer evidence on them. Mr Donga was discharged on those charges under s 147 of the Criminal Procedure Act 2011 (the Act).

[2] Mr Donga had enjoyed interim name suppression since April 2017. After his acquittal he applied for permanent name suppression under s 200 of the Act. On 28 April 2021, Judge J E Rielly refused his application.

[3]Mr Donga appeals against that decision.

Background

[4] Mr Donga is 46 years old. He is a registered physiotherapist. He has practised in several places in New Zealand for around 20 years.

[5] It was alleged that Mr Donga had indecently assaulted the two female complainants while treating them. The treatment of one complainant occurred in May 2013, the other in March 2016. Two other women gave propensity evidence that he touched them in similar, inappropriate, ways during treatment. Their evidence did not give rise to any charges.

District Court decision

[6] The application was advanced on the grounds of extreme hardship to Mr Donga, his wife (from whom he has separated) and their two young children. The Judge noted submissions that extreme hardship would be caused to Mr Donga because he continued to practise as a physiotherapist, his employment had recently ended and he planned to set up his own business. Failing to grant permanent name suppression would affect his reputation, livelihood and his capacity to provide for his family. Mr Donga and his wife were separated but she shared his name as did their young children. The older child had faced health problems which were attributed to stress. The Crown responded that the principle of open justice should have priority in the case and that

media reporting had cast suspicion on an innocent member of the public. Permanent name suppression would leave that person subject to suspicion.

[7] The Judge noted an earlier complaint of the same nature against Mr Donga when he was working in the Manawatū region in 2012. This had disciplinary consequences, including clinical supervision.

[8] The Judge said that Mr Donga gave lengthy evidence at his trial.…

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 Donga v The Queen

Details

AGLC: Donga v The Queen [2021] NZHC 1927
Case: [2021] NZHC 1927
Decision Date: 28 July 2021

CaseChat Overview and Summary

The appeal in Donga v The Queen was heard by Campbell J in the High Court of New Zealand, Nelson Registry. The appellant, Mr Donga, sought permanent name suppression after being acquitted of three out of five charges of indecent assault and not being prosecuted on the remaining two charges. The Judge had previously refused his application for permanent name suppression. Mr Donga argued that the refusal was wrong, claiming that publication of his name would cause extreme hardship to himself, his wife, and their children. The Crown, on the other hand, argued that the principle of open justice should take precedence, and that Mr Donga's acquittal did not necessarily warrant suppression. The primary legal issue before the court was whether the threshold of "extreme hardship" had been met for the purpose of ordering permanent name suppression under section 200 of the Criminal Procedure Act 2011. The court found that the appellant had not satisfied the threshold requirement. Although publication would cause some hardship, it was not likely to cause extreme hardship. The court also considered whether, in the exercise of its discretion, a suppression order should be made. The court found that the balance clearly favoured exercising the discretion against suppression. Open justice, the public interest in informed choice by potential employers and patients, and the need to relieve suspicion cast on an innocent person all weighed against suppression. The appeal was dismissed.

This case highlights the difficult balance between protecting the reputation of an acquitted individual and maintaining the principle of open justice. The court carefully considered the unique circumstances of the case, including the nature of the charges, the appellant's acquittal, and the potential impact on third parties. Ultimately, the court found that the threshold of extreme hardship had not been met, and that the public interest in open justice and informed choice outweighed the appellant's desire for permanent name suppression.

Orders