E (SC 13/2023) v The King - [2023] NZSC 61

ORDER PROHIBITING PUBLICATION OF THIS JUDGMENT UNTIL
2 PM ON 25 MAY 2023.

INTERIM ORDER PROHIBITING PUBLICATION OF LF’S NAME, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS PENDING THE DETERMINATION OF THE APPEALS BY THE SUPREME COURT.

NOTE: COURT OF APPEAL ORDER PROHIBITING PUBLICATION OF NAME, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS OF E PURSUANT TO S 202 CRIMINAL PROCEDURE ACT 2011. SEE

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

NOTE: PUBLICATION OF NAMES, ADDRESSES, OCCUPATIONS OR IDENTIFYING PARTICULARS OF THE SECOND, THIRD AND FOURTH COMPLAINANTS PROHIBITED BY S 204 OF THE CRIMINAL PROCEDURE ACT 2011. SEE

IN THE SUPREME COURT OF NEW ZEALAND

I TE KŌTI MANA NUI O AOTEAROA

SC 13/2023
[2023] NZSC 61

BETWEEN	E (SC 13/2023) Applicant
AND	THE KING Respondent

SC 14/2023
BETWEEN	LF (SC 14/2023) Applicant
AND	THE KING Respondent

Court:	O’Regan, Ellen France and Kós JJ
Counsel:	E P Priest and P D Wilks for Applicants Z R Johnston and Z Zhang for Respondent T C Goatley and K M Wilson for NZME Publishing Limited
Judgment:	23 May 2023

JUDGMENT OF THE COURT

A The application for leave to appeal by E is granted (LF (CA596/2022) v R and E (CA671/2022) v R [2022] NZCA 656). The approved question is whether the Court of Appeal was correct to dismiss E’s appeal in so far as it sought suppression of LF’s name under ss 200(1) and 200(2)(f) of the Criminal Procedure Act 2011.

B The application for an extension of time by LF to appeal direct to this Court, against the High Court’s judgment ([LF] v R [2022] NZHC 2547) is granted. Leave to appeal is granted. The approved question is whether the High Court was correct to decline to grant LF permanent name suppression.

C We make an interim order prohibiting publication of LF’s name, address, occupation or identifying particulars pending the determination of the appeals by the Supreme Court.

DWe make an order prohibiting publication of this judgment until 2 pm on 25 May 2023.

____________________________________________________________________

REASONS

LF pleaded guilty to sexual offending in relation to six complainants. The offending occurred when LF was aged 14–17 years. He was sentenced to a term of 12 months’ home detention.[1] Having unsuccessfully sought permanent name suppression in the District Court on the basis that publication would be likely to cause him extreme hardship or endanger his safety under ss 200(2)(a) and (e) of the Criminal Procedure Act 2011,[2] LF appealed from the decision declining name suppression to the High Court. The High Court dismissed the appeal.[3] Leave to bring a second appeal in relation to the decision not to grant him permanent name suppression having been declined by the Court of Appeal,[4] leave is sought to appeal directly to this Court.
[1]R v L F [2022] NZDC 7356 (Judge Ryan).
[2]R v L F [2022] NZDC 8361 (Judge Ryan).
[3][LF]…

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.

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Details

Case: [2023] NZSC 61
Decision Date: 23 May 2023

CaseChat Overview and Summary

In the case of E (SC 13/2023) v The King and LF (SC 14/2023) v The King, both applicants sought to appeal decisions related to name suppression orders. LF had pleaded guilty to sexual offending involving six complainants and was sentenced to 12 months of home detention. He had previously sought name suppression in the District Court, which was denied, and his subsequent appeals to the High Court and Court of Appeal were also unsuccessful. E, a connected person under the Criminal Procedure Act 2011, sought suppression of her name due to the potential harm caused by publication, and her appeal was partially successful in the Court of Appeal. Both applicants now seek leave to appeal to the Supreme Court of New Zealand, with specific questions regarding the interplay between youth justice principles, rehabilitation prospects, and the risks arising from publication for both applicants, intersecting with the principles of open justice.

The legal issues before the Supreme Court were whether the Court of Appeal was correct to dismiss E's appeal in so far as it sought suppression of LF's name under sections 200(1) and 200(2)(f) of the Criminal Procedure Act 2011, and whether the High Court was correct to decline to grant LF permanent name suppression. The Court had to consider the balance between the principles of open justice and the protection of the applicants' rights under the Act.

The Supreme Court found that the proposed appeals raised questions of general or public importance about the way in which youth justice principles, rehabilitation prospects, and the risks arising from publication for both applicants intersect with the principles of open justice. Therefore, the Court granted leave for E's appeal and also granted leave for LF's appeal, despite the Court of Appeal's earlier decision to decline leave. The Court considered LF's case to be one of those rare, exceptional cases where leave to appeal should be granted notwithstanding the Court of Appeal's decision. In order to avoid rendering LF's appeal nugatory, the Court made an interim order suppressing publication of his name, address, occupation or identifying particulars pending the determination of the appeals by the Supreme Court.

The final orders of the Supreme Court were that leave to appeal was granted to both E and LF. The approved questions for appeal were whether the Court of Appeal was correct to dismiss E's appeal in so far as it sought suppression of LF's name under sections 200(1) and 200(2)(f) of the Criminal Procedure Act 2011, and whether the High Court was correct to decline to grant LF permanent name suppression. Additionally, an interim order was made prohibiting publication of LF's name, address, occupation or identifying particulars pending the determination of the appeals by the Supreme Court.

Orders