F v Police

[2023] NZHC 3622

ORDER PROHIBITING PUBLICATION OF NAME, ADDRESS,

OCCUPATION OR IDENTIFYING PARTICULARS OF APPELLANT PURSUANT TO S 200 CRIMINAL PROCEDURE ACT 2011. SEE

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

I TE KŌTI MATUA O AOTEAROA

TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE

CRI-2023-463-000024

[2023] NZHC 3622

BETWEEN

F

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	21 November 2023
Appearances:	N Franklin for the Appellant T Taana for the Respondent
Judgment:	12 December 2023

JUDGMENT OF HARVEY J

[on appeal against refusal to grant permanent name suppression]

This judgment was delivered by me on 12 December 2023 at 1.00 pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/ Deputy Registrar

Solicitors/Counsel:

N Franklin, Barrister, Whakatāne Crown Solicitor, Tauranga

F v NEW ZEALAND POLICE [2023] NZHC 3622 [12 December 2023]

Introduction

[1]    F pleaded guilty to exposing a young person to indecent material. He was sentenced in December 2022 to six months’ community detention, 200 hours community work, and reparation of $3,000. He sought permanent name suppression. In February 2023, the District Court Judge declined F’s application for permanent name suppression.1

[2]    F now appeals that decision. He says publication would cause extreme hardship to his partner, X and endanger her safety.2 F argues that the Judge erred by:

(a)taking into consideration there was no suggestion of a mental health relapse on the part of X;

(b)failing to consider that the publication would endanger X’s safety;

(c)concluding there was no extreme hardship caused to X; and

(d)finding that the public interest outweighed the impact of publication.

[3]    The Police oppose the appeal. While acknowledging X’s diagnosis of persistent depressive disorder (PDD) and its impact on her, the respondent submits it is not likely she would relapse and experience depressive symptoms to the extent that extreme hardship would be suffered. In addition, the respondent argues that the Judge’s assessment of the second stage was correct, and there is public interest in enabling the community to make an informed decision whether to allow their children to associate with F.

Decision on appeal

[4]    The Judge set out the legal test under s 200(2)(a) relating to extreme hardship. He considered the material found in the report of a Dr A and the affidavits of X, who is profoundly deaf. She attended a boarding school and suffered bullying as well as

1      R v [F] [2023] NZDC 1245.

2      X did not seek name suppression for herself. However, publication of her name in light of her relationship to F would breach the order suppressing F’s name. Additionally, this judgment contains sensitive details. Accordingly, her name has been anonymised in this judgment.

physical violence from teachers. The Judge recorded X’s “significant genetic predisposition for anxiety, depression, ADHD and autism”. He noted X had suffered anxiety and depression symptoms when F was charged. Dr A’s diagnosis was of PDD which was described as a “chronic and enduring type of depression”.

[5]    The Judge emphasised that in Dr A’s opinion X’s PDD symptoms were in “full remission”. He noted Dr A’s assessment that sufferers of PDD are at a higher risk of experiencing a relapse of depressive symptoms if faced with stressors, and that X’s risk of experiencing a relapse is greater than the general population, given her history. However, the Judge also highlighted that Dr A found X to have a resilient personality, that she has a good job, is receiving consistent medication, has supportive parents and a sense of connection with her local community. As a result, Dr A noted X has not engaged in self-harm for many decades. The Judge recorded Dr A’s opinion that these protective factors may shield her from a relapse into depression.

[6]    After considering Dr A’s report, the Judge recorded that he was not satisfied that there was a real and appreciable risk that publication of F’s name would trigger a relapse of depressive symptoms to the extent that extreme hardship would be suffered by X. As to the depression and anxiety suffered at the time F was charged, the Judge reasoned this is a normal reaction to a person’s partner being charged with moderately serious sexual offending against a child. The Judge found that since F’s conviction and sentence there was no suggestion of a significant relapse of X’s mental health.

[7]    Two incidents were recounted by X where the victim’s family verbally abused her and her children. The Judge found that while unfortunate, these incidents were not entirely unexpected following a charge of this nature and did not rise to the threshold of extreme hardship.

[8]    Turning to X’s assertions she would move from her small home town, the Judge held that it would be X’s choice to leave. He noted that X was aware she would be leaving her support system. He could not discount the possibility that she was using the threat of leaving to pressure the Court into granting permanent suppression. The Judge also observed that in a small community, a number of persons must be aware

that F had been convicted and sentenced to sexual offending relating to a child, and X has not been caused to leave the area.

[9]    The Judge considered that even if extreme hardship had not been made out, he would not have granted permanent name suppression. The public interest in knowing F’s identity outweighed it and would allow others to make an informed choice as to whether to permit their children to associate with F.

[10]   The Judge then turned to consider whether there would be extreme hardship to F’s school-age children. He found that the impacts (likely bullying) could be managed by the school and did not justify suppression. This point was not taken on appeal. For completeness, the Judge recorded that the victim’s family were “totally against” any permanent name suppression for F.

Psychiatrist’s report

[11]   X was interviewed by a specialist forensic psychiatrist. Dr A recorded the following background information. X was born with profound deafness. She was sent to boarding school where she experienced physical abuse and bullying which was traumatic. After leaving the boarding school in her early teens she was very unhappy and engaged in binge drinking from the age of 15. She also engaged in self-harm by cutting and overdosing on medication.

[12]   X was diagnosed with depression in 2006 and commenced antidepressant medication. In 2007 she stopped taking the medication and experienced a relapse of depressive symptoms. However, she has now stopped drinking altogether and has not self-harmed for more than 20 years. Her parents are supportive. A close family member passed away in recent years and X was able to cope without a “full-blown depressive relapse”.

[13]   After legal proceedings commenced, X reported experiencing panic attacks, inability to sleep, crying, and worry. She was extremely worried about the prospect of moving away from her home town. Dr A however commented that this was not of clinical significance and most people in her situation could be expected to experience these symptoms. Dr A diagnosed X with persistent depressive disorder (PDD) which

he described as “a more chronic and enduring type of depression”. Dr A’s assessment bears setting out in full:

Implications of [X]’s diagnosis

People experiencing PDD are at a higher risk of experiencing a relapse of depressive symptoms while facing significant stressors. …

In the case of [X] however her risk of experiencing a relapse is greater than the general population because of her genetic predisposition, congenital deafness, suffering teasing and bullying, history of physical abuse, history of alcohol use disorder and remaining in an emotionally abusive relationship purely for the sake of her children.

Resilient personality, on the other hand, as evidenced by her capacity to survive significant life events including loss of a significant other and her capacity to function in a foreign country would be protective against depression. Receiving consistent treatment, having supportive parents, a sense of connection with the community where her family have been known for generations would also be protective in this regard. These protective factors have contributed to [X] not engaging in any self-harm for many decades. They may continue to protect her against relapse of depression in the future.

The protective effect of the factors outlined above can be easily lost and [X]’s risk of experiencing a depressive relapse could increase exponentially if she was to move away from the community where she has lived for many years. A sense of rejection or being targeted in the small community has the potential of retriggering memories of her own abuse and bullying from her childhood. Such an event, in my view, would be far greater than “the embarrassment and shame” most people would experience in similar circumstances as [X].

I acknowledge it is difficult to predict if the potential negative effects from the publication of her partner’s details or rejection/negative reaction from the community would necessarily overshadow the protective effects of [X]’s resilience, supportive relationship with her parents, and her strong sense of purpose towards her [children]. The tension between the protective factors and factors likely to trigger relapse for [X] will need to be monitored as the case against [F] unfolds in the court. It is difficult to predict at this point in time if the precise impact of any hardship experienced by her would reach the threshold of “extreme” in the distant future as it is impossible to know what her circumstances will be.

(Emphasis added).

Submissions

[14]   Mr Franklin submitted that the Judge erred in finding that “there is no suggestion of a significant relapse” and “there has been no suggestion that since F’s conviction and sentence X’s mental health has significantly deteriorated”.3 This is

3      R v [F], above n 1, at [12] and [14].

because following conviction and sentence F had the benefit of interim name suppression. So the effects of publication could not have impacted on X then. Further, counsel contended that following the sentencing, there was no opportunity to provide updated information on X’s state. Mr Franklin argued that impact post-conviction and sentencing is irrelevant; it is the likely impact publication of the appellant’s name would have on X that was relevant. He referred to X’s affidavit of her fears of the future if publication occurred.

[15]   The second ground of appeal was that the Judge failed to refer in his decision to whether there was a danger to X’s safety. Mr Franklin noted this is a discrete ground not tied to extreme hardship. The Court in R v Shailer commented that there is a lower threshold than extreme hardship.4 Further psychological harm is included in the definition of danger to safety.

[16]   Mr Franklin submitted that it should have been assessed separately from the extreme hardship ground. He contended that the psychiatric report of Dr A demonstrated that she has a higher risk of relapse of her PDD due to genetic predisposition, congenital deafness, extensive past suffering teasing and bullying, history of physical abuse, history of alcohol use disorder and remaining in an abusive relationship. He submitted that this goes not only to extreme hardship, but if X relapsed and harmed herself it would endanger her safety, and this should have been considered under the latter ground. Counsel also noted that X has a more difficult time engaging with psychological services due to her congenital deafness. There is also a dearth of psychological services available in the area, even less so when communication assistance would be required.

[17]   Thirdly, Mr Franklin submitted that the Judge failed to give any weight to the likely impacts on X remaining in her home town when dismissing her assertion that she would leave the area in the event of publication. In any event counsel submitted she would suffer extreme hardship whether she stayed or left. Additionally, he contended that the Judge was wrong to speculate that some people in the area must know about the offending and that had not caused X to leave. The appellant has had

4      R v Shailer [2015] NZHC 2607.

interim name suppression throughout proceedings and as such X and her family have been protected from the impacts of publication, with no need to relocate as a result. It was wrong of the Judge, in counsel’s submission, to infer her stated intention was disingenuous as a result.

[18]   Counsel submitted that the Judge needed to assess Dr A’s statement that X was in “full remission” in light of the fact that publication had not occurred and consider whether publication “would be likely to” cause her relapse in the future. Counsel pointed to Dr A’s assessment that X was at a greater risk of relapse than the general public because of her personal characteristics, and while he found she had protective factors he also noted these could be easily lost.

[19]    Fourthly, Mr Franklin argued that the Judge incorrectly assessed the balance between public interest and impact of publication. He pointed to F’s guilty plea and the fact by doing so he accepted responsibility for the offending; that there was no suggestion publication could bring further offending to light; that F is already under conditions not to associate with children and has completed 10 months of a rehabilitative sentence, so publication to reduce the risk of reoffending is unnecessary; and that the offending, while inappropriate, was not the worst of its kind.

[20]   Counsel also noted that in terms of the appellant’s circumstances, the appellant had a difficult and abusive childhood leading to hearing impairment, which in turn affected his educational opportunities. X also has a hearing impairment which poses communication difficulties for the family. Counsel submitted they will be less able to respond to questions and comments about the offending and will become further isolated from the community. He acknowledged the victim’s family is strongly against name suppression being granted but observed that they have demonstrated an intention to “pursue” F and his family publicly for this offending. He noted that although the victim’s family had initially not respected the suppression order they had been spoken to by Police and now have been complying.

[21]   Finally, Mr Franklin submitted that all the hardship must be looked at cumulatively, citing X v R.5

5      X (CA226/2020) v R [2020] NZCA 387 at [40].

[22]   Mr Taane for the respondent submitted that anxiety and depression are not unusual impacts for family members of defendants being prosecuted for sexual offending. That alone is insufficient to meet the high extreme hardship threshold.

[23]   In terms of X’s diagnosis of PDD, counsel contended that the Judge correctly found that there was not a real and appreciable risk publication would cause a relapse of depressive symptoms amounting to extreme hardship. Counsel pointed to Dr A’s assessment that X has a resilient personality and family/community support systems and relied on this support system when previously faced with distressing circumstances. In addition, he noted Dr A’s comments that any risk of deterioration can be effectively mitigated by X engaging in psychological treatment. Further Mr Taane emphasised that according to the report X’s mental health has been stable for many years and she has not engaged in self-harm or alcohol abuse for over 20 years.

[24]   Secondly, Mr Taane contended that the fact X would move from her home town for fear of shame and retaliation does not met the extreme hardship threshold. As the Judge identified, if X were to leave that would be her own decision and she would leave behind her support.

[25]   As to the second stage exercise of discretion, Mr Taane submitted that although the offending is at the lower end for the nature of the offending, there is still high public interest in offending against children. Especially so, in counsel’s submission, for a conviction of sexual offending against a school-age child. He contended the Judge was correct in concluding that publication will enable the community to make an informed decision whether to allow their children to associate with the appellant.

Legal principles

[26]   Name suppression of a defendant is governed by s 200 of the Criminal Procedure Act 2011 (CPA), which sets out, in relevant part:

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

…

(e) endanger the safety of any person; or

…

…

(6) When determining whether to make an order or further order under subsection (1) that is to have effect permanently, a court must take into account any views of a victim of the offence conveyed in accordance with section 16B of the Victims’ Rights Act 2002.

[27]   There is a two-stage approach. First, the Court must determine whether the threshold test set out in ss 200(2) is met. This is a jurisdictional test. The Court must be satisfied that, in the context of this case, publication of the appellant’s name is likely to lead to “extreme hardship” for his partner or danger to her safety. “Likely” means there is a real and appreciable risk or possibility of the specified consequence occurring.6 “Hardship” means “severe suffering or privation”; the qualifier “undue” used in  s  202(2)(a)  indicates  “something  more”  and  the  qualifier  “extreme”  in s 200(2)(a) is another degree further.7 “Extreme hardship” is a very high threshold which requires something “well beyond” the ordinary consequences of publication.8

[28]   At the second stage, the Court exercises its discretion to determine whether permanent name suppression should be ordered. The relevant matters are whether the applicant has been convicted, the seriousness of the offending, the views of the victim9 and the public interest in knowing the character of the offender.10 The onus is on the applicant to displace the principle of open justice.11

6      D (CA443/2015) v Police [2015] NZCA 541, at [30](a); and W v R [2017] NZCA 580 at [15].

7      H (CA34/2023) v R [2023] NZCA 240 at [11].

8 At [11].

9      Which must be considered under s 200(6).

10     Robertson v Police [2015] NZCA 7.

11     H (CA34/2023) v R, above n 7.

[29]   Section 283 of the CPA provides a right of appeal against a decision to refuse to make a suppression order. The appellate court is entitled to come to its own opinion about the facts and the law when assessing whether the jurisdictional test in s 200(2) is made out.12 Regarding the second stage, this is an appeal against discretion. The appellant must establish that the judge has “acted on some wrong principle, taken into account an irrelevant factor or was plainly wrong”.13 If there is such an error, the appellate court considers the discretion afresh.

[30]   In D (CA443/2015) v Police the Court of Appeal set out some general principles drawn from the case law relating to name suppression applications where the defendant is at risk of self-harm or suicide:14

(a)The possibility of self-harm or suicide always gives a court cause for anxious consideration. Suicide would be a devastating and unacceptable consequence of publication and it cannot always be assumed that an at-risk person will behave rationally. But the court cannot adopt the stance that any risk is unacceptable. Under s 200 it must be satisfied that the relevant subs (2) risk is likely; that is, a real and appreciable possibility.

(b)Judges know that people may experience suicidal ideation when confronted with criminal proceedings, which are immensely stressful, but very seldom, if ever, act upon it. The proceeding is normally the principal cause of stress, although publication identifies the proceeding with the defendant and may cause great anxiety at particular points in time.

(c)For these reasons a defendant who relies on a risk of self-harm or suicide attributable to publication of his or her name must normally point to something more than the usual feelings of anxiety and despair that may attend proceedings. It is usual to offer evidence that the defendant is psychologically troubled for other reasons and is particularly susceptible to publicity. This may

12     Temple v Police [2023] NZHC 2436 at [16].

13     Saggers v R [2012] NZCA 560 at [25].

14     D (CA443/2015) v Police, above n 6, at [30], (footnotes omitted).

be coupled with evidence that the case will attract unusually extensive or critical media publicity.

(d)…

(e)Anything that reinforces or mitigates other risk factors may affect the likelihood that publication will precipitate self-harm or suicide.

(f)The opinions of medical professionals deserve respect, but a court need not defer to them. It is unlikely to question an uncontradicted medical diagnosis of the defendant’s condition, but such opinions may assume that any risk is too much risk or (as in this case) urge suppression without adequately addressing alternative ways in which the risk might be managed.

(g)There normally are ways of managing the risk. Where possible, medical reports prepared to assist the courts should recommend and evaluate those options. For example, a brief period of suppression may reconcile the defendant to the inevitability of publicity after the initial shock of arrest and first appearance. Support structures can be identified and deployed. Sensitive information of a personal nature may be suppressed.

(h)Suppression does not follow automatically from the court being satisfied that a relevant risk exists. The court must further consider the second issue: whether an order ought to be made in the exercise of discretion.

Discussion

Was a threshold requirement met?

[31]   As the Court of Appeal summarised in  Stuff v R, “likely” in the context of     s 200(2) means a “real and appreciable possibility”.15 There are two thresholds that must be considered: whether publication is likely to cause extreme hardship or whether it is likely to endanger her safety. The latter threshold is, in my view, the more relevant one.

15     Stuff v R [2021] NZCA 86 at [17].

[32]   I accept that, by a narrow margin, there is a risk to X. Although X has been able to manage her depressive symptoms for some time, as Dr A noted, a large part of this is because of the support from her family and her community. There have been instances in the past of X engaging in self-harming behaviours and if this occurred it would meet the definition of endangering her safety. Dr A recorded that X is more sensitive to relapse.

[33]   If F’s name is published, it is likely she will lose the support of her community. That is an inevitable result of close association with a person who has been convicted of sexual offending against a child. When that occurs, she will have to choose whether to remain or leave. The former would expose her to possible targeting and rejection which as Dr A recorded could retrigger her childhood abuse and trauma. The latter would cause her to lose her close proximity to her parents who are supportive and her largest protective factor against depressive relapse. Either situation exposes X to a risk of harm. Moreover, I consider that there is a real risk X will suffer severe mental distress with the loss of that support, provoking a relapse into persistent depressive symptoms which are essentially relentless. Added to the real risk of self-harm, I am satisfied that this combination also meets the extreme hardship threshold.

[34]   Therefore with respect to the learned Judge, I disagree with his assessment of the stage one test for two principal reasons. First, I consider s 200(2)(e) to be the most appropriate test, and the Judge did not consider it. Secondly, I differ in my assessment of X’s resilience because I find that publication is likely to threaten her existing protective factors, whether or not she remains in her home town.

Should a permanent suppression order be made?

[35]   The central question is “whether open justice should yield” to the case for suppression.16 Two competing considerations are relevant the exercise of this discretion. First, the principle of open justice and the notion that the community is entitled to know who amongst its members have been convicted of wrongdoing carries weight. Although the risk of reoffending has been assessed as low, the need to inform

16     D (CA443/2015) v Police, above n 6, at [12].

the community so that they can make informed decisions cannot be underestimated or overemphasised. The need for public denunciation of the offending is also relevant.

[36]   Even so, in B v R, the Court of Appeal observed that the fact that sexual offending is in issue should not in itself “automatically carry a heightened case for publicly identifying the offender” in the absence of other factors.17

[37]   X’s mental health as F’s spouse is an important consideration. There is no dispute that her condition is long-standing and one that has been subject to various treatment regimes. According to Dr A, there is a very real risk of psychological harm which will be exacerbated by publication of F’s details. Publication will be permanent and likely have ongoing effects in the context of X’s condition. I also note that F has a low risk of reoffending and does not present an immediate risk to children.

[38]   While on the one hand it would be a perverse outcome for the appellant’s offending to be shielded from public scrutiny because of the risk to the mental health of X, it is also evident based on the report of the professionals that there is in fact a present risk of psychological harm and a real risk of self-harming behaviours. In short, there is no simple answer before the Court.

[39]   Added to that is the reality that the victim’s parents and family know the identity of the appellant. Until they were spoken to by police there are at least two recorded instances of them confronting the appellant and X. While it is speculation, there is also the understandable possibility that the victim’s parents have also disclosed the appellant’s identity to other family members or even friends, given the two confrontations in public places. That said, I also accept the assurance provided via counsel that there have been no further instances of this kind.

[40]   Crown counsel argued that while was some empathy for the position of the appellant’s spouse, the principles of open justice and the need to protect the community must override that consideration. In the alternative, and as foreshadowed, F submitted that there is a real risk to X here.

17     B v R [2011] NZCA 331 at [21]; reiterated by Thomas J in Q v New Zealand Customs [2014] NZHC 2398.

[41]   As mentioned, I accept that there is a real risk of harm to X’s mental health. Added to that are the real difficulties as highlighted in oral submissions with accessing any kind of supportive services that might soften the impact of publication on her.

[42]   Taking all of these factors into account, it is appropriate for the Court to exercise its discretion and suppress F’s name to protect X’s safety.

Decision

[43]The appeal is allowed.

[44]The appellant is entitled to permanent name suppression.

Harvey J