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. For some allegations, he denied that the acts occurred. For others, his evidence was that any touching was in the course of giving treatment, and/or was accidental or misunderstood. The Crown called a physiotherapy expert whose evidence was that features of Mr Donga’s practices were outside acceptable methods, protocols and standards. Mr Donga acknowledged in his evidence that some of the techniques he used to treat the complainants and the propensity witnesses did not accord with best practice. Although Mr Donga was not convicted, the Judge considered it appropriate to take account of Mr Donga’s admitted conduct towards women while he was treating them in determining the application for permanent name suppression.

[9]    The Judge noted the uniqueness of Mr Donga’s surname and the impact on his professional reputation and his wife’s professional reputation if these matters became public. The Judge observed that Mr Donga’s wife was particularly concerned about the effect of publication on their children.

[10]   The Judge acknowledged the stress caused to family members by criminal proceedings but referred to the line of authority which held that stress, anxiety and professional embarrassment to family members falls well short of extreme hardship, which is a high threshold. The other factor relevant to determining the application was the suspicion cast on another male physiotherapist in Nelson. There was public interest in that person being able to properly establish he was not the subject of the charges.

[11]   The Judge concluded that extreme hardship would not be suffered by Mr Donga, his wife or their children. Even if she was wrong on this point, however, the Judge said she would not have exercised the discretion to order suppression. Absence

of conviction weighed in favour of exercising the discretion, but the Judge considered publication was necessary to ensure potential employers and patients, particularly female patients, could make an informed choice in respect of employing or obtaining treatment from Mr Donga.

Law

[12]   Suppression of a defendant’s name or identifying particulars is governed by s 200 of the Act. Relevantly, this provides:

200     Court may suppress identity of defendant

(1)A court may make an order forbidding publication of the name, address, or occupation of a person who is charged with, or convicted or acquitted of, an offence.

(2)The court may make an order under subsection (1) only if the court is satisfied that publication would be likely to—

(a)cause extreme hardship to the person charged with, or convicted of, or acquitted of the offence, or any person connected with that person; or

…

[13]   Section 200 requires a two-step inquiry. The first step is whether one of the threshold grounds in s 200(2) has been met. If one is met, the second step is whether, in the exercise of the Court’s discretion, a suppression order ought to be made.1

[14]   For the first step, Mr Donga relies on the ground in s 200(2)(a): that publication would be likely to cause extreme hardship to him or his family. “Likely” means, in this context, that there is at least an “appreciable risk”, one that “must not be fanciful and cannot be discounted”, that publication will lead to one of the outcomes specified in s 200(2).2 As to “extreme” hardship, that is a comparative standard. Hardship itself refers to serious suffering; extreme hardship is a very high level of hardship.3 The Court of Appeal has said the words “extreme hardship”:4

1      D (CA443/2015) v Police [2015] NZCA 541, (2015) 27 CRNZ 614 at [10].

2      R v W [1998] 1 NZLR 35 (CA) at 39–40 (interpreting ss 139 and 140 of the Criminal Justice Act 1985), referred to with implicit approval in Huang v Serious Fraud Office [2017] NZCA 187 at [9]; D (CA443/2015) v Police [2015] NZCA 541, (2015) 27 CRNZ 614 at [30](a).

3      Robertson v Police [2015] NZCA 7 at [48].

4      D (CA443/2015) v Police [2015] NZCA 541, (2015) 27 CRNZ 614 at [11].

… require that the Court compare the consequences of publication in the instant case with those that normally attend prosecution. Distress, embarrassment and adverse personal and financial consequences usually attend criminal proceedings, and something out of the ordinary is needed if the applicant is to get across the threshold.

[15]   At the second step of the s 200 inquiry, the ultimate question is whether, balancing relevant considerations, the principle of open justice should yield to suppression. Before a suppression order can be made, the balance must “clearly favour” suppression.5

Submissions

[16]   Mr Zindel, for Mr Donga, submitted extreme hardship was established. He relied on the presumption of innocence, and said the acquittal of Mr Donga was a significant factor supporting final name suppression. He said name publication would follow Mr Donga around forever, potentially ruin his career and his ability to support his family. The trial had adversely affected Mr Donga’s relationship with his wife. Mr Donga’s wife was concerned about her work position and finances, and one of the children had been hospitalised with chest pain. The hardship to the family would be compounded by Mr Donga’s unusual surname. As for the impact of the case on the reputation of an innocent member of the public, Mr Zindel submitted this was addressed by a social media post denying he was the subject of the charges.

[17]   Ms O’Donoghue, for the Crown, submitted that neither Mr Donga nor his family would suffer extreme hardship if his name were published. Personal distress to him, his wife and their children was an ordinary consequence of publication of criminal proceedings. Any effects on his wife’s professional reputation were speculative and there was no evidence to establish effects on the children’s health.

Decision

[18]   The acquittal of Mr Donga is a factor that can be relevant at each step of the s 200 inquiry. At the first step, hardship may be more readily regarded as “extreme” where there has been an acquittal.6 At the second step, an acquittal will be relevant to

5      D (CA443/2015) v Police [2015] NZCA 541, (2015) 27 CRNZ 614 at [12].

6      W (CA447/2017) v R [2019] NZCA 192 at [22].

determining whether the principle of open justice has been outweighed.7 In that respect, the circumstances of the acquittal will be relevant. Suppression will be more readily granted where the prosecution has offered no evidence or withdrawn the charge than where there has been a trial or significant judicial involvement in the determination of the outcome.8

[19]   Extreme hardship is, as noted, a very high level of hardship. I have to be satisfied that publication would be likely to cause extreme hardship to either Mr Donga or a member of his family.

[20]   As to Mr Donga, I put to one side his concerns about the impact on his relationship with his wife. Those difficulties have arisen from the prosecution itself. Publication of Mr Donga’s name is unlikely to make any difference. I do, however, accept that publication will have other consequences for him. He will suffer further distress and embarrassment, though he has already suffered some of that from the proceeding itself. Publication is also likely to have adverse consequences for his career, though I am not satisfied that the consequences are likely to be as dire as Mr Donga predicts. In an affidavit that Mr Donga made in support of his application, he said he believed that if his name were published he would be unable to practise as a physiotherapist. Yet Mr Zindel told me that ten former female patients were, at the trial, prepared to give propensity evidence that Mr Donga provided appropriate and professional treatment to them. Their support for Mr Donga, even before he was acquitted, indicates that if his name were published he would suffer some adverse consequences for his career, but that he will still be able to practise.

[21]    Looking at those consequences together, and even allowing for his having been acquitted, Mr Donga has not satisfied me that publication is likely to cause him extreme hardship. The consequences are in my view not likely to be out of the ordinary.

[22]   As to Mr Donga’s wife, she has made an affidavit in which she expresses fear that publication of Mr Donga’s name would negatively affect her employment and

7      W (CA447/2017) v R [2019] NZCA 192 at [23].

8      M (CA762/2012) v R [2013] NZCA 113 at [23]-[24].

cause her further stress. She says she is changing her name to avoid association with Mr Donga. I am satisfied that she would likely suffer further stress and embarrassment, though it is clear from her affidavit that she has already suffered considerable stress from the prosecution itself. I am not satisfied that publication would be likely to have serious consequences for her employment. It is clear she is not at fault or involved in any of the events that were the basis for the charges against Mr Donga. The consequences of publication for Mr Donga’s wife fall well short of the threshold of extreme hardship.

[23]   Turning to the children, it is likely that the children of any defendant who appears in court on charges will be identified by those who know them whether their name is uncommon or not. The possibility of distress and embarrassment to the children falls well short of the threshold of extreme hardship. The possibility of any other consequence is speculative and not supported by any medical evidence.

[24]   For these reasons, I do not consider the threshold requirement in s 200(2)(a) is satisfied.

[25]   Even if I had found the threshold was satisfied, I would not have exercised the discretion in favour of permanent name suppression. Three considerations weigh against suppression:

(a)Open justice “is a paramount principle of judicial administration”.9 It must be accorded considerable weight.

(b)There is a public interest in those who may employ Mr Donga or those who may seek treatment from him being able to make an informed choice whether to employ him or seek treatment. I accept Mr Zindel’s submission that this factor can have less weight when the applicant has been acquitted. But that will depend on the circumstances of the acquittal. On three of the charges Mr Donga was acquitted only after a trial, in which he acknowledged that some of his treatment techniques were not in accordance with best practice.

9      Parker v R [2020] NZCA 502, (2020) 29 CRNZ 536 at [2].

(c)In this case suspicion has fallen on another innocent person. There is a public interest in disclosing the charges to relieve that innocent person of this burden.

[26]   The only consideration favouring suppression is that Mr Donga was acquitted. This is not a strong consideration, given the circumstances of the acquittal. Taken together, the balance clearly favours exercising the discretion in s 200(2) against suppression.

Result

[27]The appeal is dismissed.

Campbell J