F v R
[2020] NZHC 1653
•10 July 2020
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 AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2020-404-199
[2020] NZHC 1653
BETWEEN F
Appellant
AND
THE QUEEN
Respondent
Hearing: 23 June 2020 (and memorandum filed 24 June 2020) Appearances:
A Bloem for the Appellant E Smith for the Respondent
Judgment:
10 July 2020
JUDGMENT OF GAULT J
This judgment was delivered by me on 10 July 2020 at 3:00 pm pursuant to r 11.5 of the High Court Rules 2016.
Registrar/Deputy Registrar
……………………………………
Solicitors / Counsel:
Mrs A Bloem, Barrister, Auckland
Ms E Smith, Meredith Connell, Office of the Crown Solicitor, Auckland
F v R [2020] NZHC 1653 [10 July 2020]
[1] The appellant appeals against a decision of Judge N R Dawson in the District Court at Auckland declining permanent name suppression.1 The appellant had been granted interim name suppression on 5 April 2019.
[2]The appellant pleaded guilty to the following charges:
(a)one representative charge of doing an indecent act upon a young person aged 12 to 16;2
(b)two charges of sexual connection with a young person aged 12 to 16;3 and
(c)two representative charges of sexual connection with a young person aged 12 to 16.4
[3] On 5 June 2020, he was sentenced by Judge Dawson to two years and four months’ imprisonment.
[4] At the time of sentencing, the appellant applied for permanent name suppression on the basis that publication was likely to endanger the appellant’s safety due to his mental health diagnoses and increased thoughts of suicidal intention. Reference was also made to his daughter’s risk of self-harm and suicide, and his wife’s potential loss of employment.
[5] Although the Judge declined to grant the appellant permanent name suppression, he granted the appellant’s wife and children name suppression.
[6] The appellant appeals on the ground that the Judge erred in the exercise of his discretion to refuse the appellant permanent name suppression.
1 R v F [2020] NZDC 10678.
2 Crimes Act 1961, s 134(3).
3 Section 134(1).
4 Section 134(1).
Facts of the offending
[7] The appellant was a teacher who specialised in teaching English to international students. The victim, an international student who moved to New Zealand in 2014 to complete her schooling, was the appellant’s pupil. He was 38 and she was 15 years’ old at the time of the offending.
[8] The offending began when he sent the victim a friend request on Facebook prior to Christmas in 2014. Once she accepted, the two regularly conversed and the appellant asked if the victim had a boyfriend. He made multiple FaceTime calls, which she initially ignored. When she did answer, the appellant told her she was “cute”, “pretty” and “smart”. Around Christmas time, the appellant told the victim he loved her and wanted her to be his girlfriend. The victim told the appellant she was only 15 years’ old. While that age, between January 2015 and 1 July 2015, the appellant formed a sexual relationship with the victim, which continued after she turned 16 and she attended a different school.
[9] At the beginning of the school term in 2015, the appellant began asking the victim to meet him at the beach before school. He hugged and kissed her, on the cheek and lips. They began to meet every morning before school. The appellant also asked to meet the victim in a park after school, to which she reluctantly agreed.
[10] On a separate occasion, the appellant asked the victim to his home. He touched her over clothes then undressed her. He inserted two fingers into the victim’s vagina which caused her to bleed and she asked him to stop. The appellant then asked the victim to perform oral sex on him before he showered her. A routine was then established where the appellant would drive the victim to remote locations where he would perform oral sex on her and ask her to do the same. The appellant would also digitally penetrate the victim. On one occasion, the offending occurred at the victim’s homestay. After the victim had performed oral sex on the appellant, he began rubbing his penis on the outside of the victim’s vagina. Despite saying he would not do so, the appellant then inserted his penis into her vagina and had sexual intercourse with her.
[11] The victim wished to end things with the appellant, but he bombarded her with messages, blamed her for his sexual offending, and told her he would hurt himself if
she left him. When she was in the Bay of Islands for a holiday, the appellant drove from Auckland to see her. On another occasion, the appellant drove to the victim’s address and asked her to meet him in his vehicle. The appellant had penetrative sex with the victim. Following this, the appellant sent the victim video links to pornography websites.
District Court decision
[12] Judge Dawson appears to have considered the risk of suicide under the extreme hardship threshold in s 200(2)(a) of the Criminal Procedure Act 2011 (the Act) rather than s 200(2)(e), endangering the safety of any person. The Judge concluded that sufficient grounds of extreme hardship had not been established in relation to the appellant. The Judge considered the principle of open justice was paramount. The offending was very serious and was the kind of offending which the public have a legitimate interest to know about – there remained the possibility of further victims given the appellant’s employment as a teacher.
[13] As indicated, the Judge did however grant name suppression to the appellant’s wife and children, having referred to their extreme embarrassment and concern as to the state of mind of the appellant’s daughter given the psychological report in support. Although not stated, this order was presumably made pursuant to s 202 of the Act, which requires undue rather than extreme hardship.
Approach on name suppression appeal
[14] There is a divergence between counsel as to the test to apply on appeal, but not on the test for name suppression. Mrs Bloem, counsel for the appellant, submits that an appeal against a refusal to make a suppression order is an appeal against the exercise of a discretion and that the Judge acted on a wrong principle by ruling that extreme hardship had not been established. Ms Smith, counsel for the Crown, submits that the assessment as to whether one of the s 200(2) grounds have been established is not a matter of discretion but is instead a matter of fact requiring judicial assessment. Therefore, normal appellate principles apply and the Court is entitled to consider the application de novo.
[15] The Court’s ability to suppress permanently the name of a person convicted of an offence is found in s 200 of the Act, which relevantly provides:
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
(f)lead to the identification of another person whose name is suppressed by order or by law; or
…
(3)The fact that a defendant is well known does not, of itself, mean that publication of his or her name will result in extreme hardship for the purposes of subsection (2)(a).
…
(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 28 of the Victims' Rights Act 2002.
[16] A decision on name suppression involves a two-stage analysis.5 First, the Judge must be satisfied that one of the threshold grounds in s 200(2) of the Act is met, that is “publication would be likely” to have one of the threshold consequences. Likely in this context means a real and appreciable possibility.6 Secondly, if satisfied that one of the threshold grounds exists, the Judge must determine whether, in the exercise of discretion, to forbid publication.
5 Robertson v Police [2015] NZCA 7 at [39]-[41]; and Fagan v Serious Fraud Office [2013] NZCA 367 at [9].
6 Huang v Serious Fraud Office [2017] NZCA 187 at [10].
[17] I agree with Ms Smith that the assessment as to whether one of the s 200(2) grounds has been established is not a matter of discretion but is instead a matter of fact requiring judicial assessment. It is well-established that on appeal, the Court must approach the first stage of the analysis as a general appeal.7 The appellate court should come to its own view on the merits. However, the second stage of the analysis is treated as an appeal against the exercise of a discretion.8 On an appeal against discretion, the appellant must establish that the Judge has acted on some wrong principle, taken into account an irrelevant factor, ignored a relevant factor or was plainly wrong.9
Submissions
Appellant
[18] Mrs Bloem submits publication of the appellant’s name would be likely to cause increased stress, anxiety and suicidal ideation, and the risk of suicide cannot be effectively managed or mitigated by the Department of Corrections. Mrs Bloem points to the appellant’s history of suicide attempts, the most recent of which occurred while the appellant was in custody at Mt Eden Corrections Facility. The appellant is said to have wrapped a jumper around his neck due to his concern that his name would be published and his family would find out about his offending.
[19] Mrs Bloem submits there is clear evidence in the psychiatric report prepared by Dr Jansen that publication of the appellant’s name would be likely to exacerbate his mental health and endanger his safety. The risk of suicide outweighs any public interest in his name being published, particularly given the risk of suicide is acute due to the high public interest in this case.
[20] Mrs Bloem also submits that publication of the appellant’s name could cause his 14 year old daughter to suffer extreme hardship as it would exacerbate her already fragile mental state.10 Mrs Bloem further submits that publication of the appellant’s
7 Meaning it is determined in accordance with the principles in Austin, Nichols & Co Ltd v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141.
8 NN v Police [2015] NZHC 589 at [13]-[14].
9 Wilson v R [2018] NZHC 1778 at [14].
10 The evidence is unclear whether she is still 14 or now 15, but nothing turns on this.
name could cause extreme hardship to the appellant’s wife. She is a teacher and the sole income earner for the family; publication of the appellant’s name could cause her to lose her employment.
[21] If a threshold ground is established, Mrs Bloem submits that the risk of suicide alone, both in relation to the appellant and his daughter, weighs strongly in favour of suppression. Mrs Bloem accepts that in some cases involving sexual offending there is a high interest in identifying the offender as it may bring further offending to light or help to prevent re-offending. However, Mrs Bloem submits propensity evidence available concerning similar behaviour by the appellant towards another student was different in nature and reduces the likelihood of other victims coming forward should the appellant’s name be published.
Respondent
[22] The Crown opposes the appeal. Ms Smith submits that publication of the appellant’s name would not be likely to endanger the appellant’s safety, given the clinical opinion available does not elevate the risk of suicide beyond a level at which the Department of Corrections could be expected to manage appropriately. Ms Smith further submits publication would not cause extreme hardship to the appellant’s wife and children, the consequences cited being nothing out of the ordinary.
[23] Ms Smith notes the principal concern appears to be the risk of the appellant self-harming following publication of his name. While Ms Smith acknowledges the opinion of Dr Jansen, she submits there is no discussion of the steps that can be taken to mitigate the risk of the appellant self-harming. Ms Smith submits that the Court must consider the ability of the Department of Corrections to manage the risk of self- harm. According to Corrections, the appellant is being housed in an At-Risk Unit. His wellbeing will be monitored at all times while in custody. Ms Smith considers that any risk consequent on publication is unlikely to endure and for that reason must be reasonably controllable by the Department of Corrections. It is not disputed however that the appellant has a longstanding history of suicidal ideation and multiple attempts to take his life.
[24] In relation to the risk of publication causing extreme hardship to the appellant’s family, Ms Smith acknowledges that publication will almost always result in hardship to an offender’s family. For suppression to be granted, the hardship must be extreme. Ms Smith considers there is nothing in this case that would elevate the likely effect of publication to the level of extreme hardship. She refers to authorities in which even recognised medical issues, the possibility of being shunned from the community and extreme embarrassment have all been considered to fall short of extreme hardship.11
[25] If the Court were to conclude that publication is likely to result in any of the nominated consequences, Ms Smith nevertheless submits the public interest in open justice weighs heavily against the granting of the appeal, taking into account the serious nature of the offending, the possibility of further victims coming forward and the victim’s opposition to name suppression.
Evidence
[26] Dr Jansen (a consultant psychiatrist) reports that he interviewed the appellant in June 2019 and in February 2020. By way of background, Dr Jansen notes the appellant has been admitted to the Te Whetu Tawera inpatient psychiatric unit in the past as well as to a respite facility on two separate occasions. His mood problems and suicidal ideations are recurrent. While his struggles with anxiety and depression have been apparent since 2011, Dr Jansen considered records indicate it can be traced back to when the appellant was a victim of sexual abuse when he was five. The appellant attempted to commit suicide in 2015 and self-harmed in 2018.
[27] When the appellant was interviewed in June 2019, Dr Jansen considered the appellant to be “very low in mood”. The appellant told Dr Jansen he had “frequent thoughts” about ending his life and experiences panic attacks. During the more recent interview in February 2020, the appellant again advised Dr Jansen that he had been admitted to the Koromiko mental respite facility. He was continuing to see his ACC counsellor and remained in contact with a community mental health team. The appellant also continued to take anti-depressant medication although Dr Jansen
11 Citing SSB v R [2017] NZHC 2590; R v Liddell [1995] 1 NZLR 538 (CA); as well as Q v New Zealand Customs [2014] NZHC 2398; B (CA860/10) v R [2011] NZCA 331; and Wilson v R [2018] NZHC 1778 at [36]-[38].
expressed some confusion as to the unusual formulation of the particular medication. Dr Jansen concluded that the appellant has established diagnoses of depression, anxiety with panic attacks and PTSD. Dr Jansen considered there is a real risk the appellant would commit suicide – assessed as high risk – and that risk will be sharply elevated by publication of his name. In Dr Jansen’s opinion, publication would cause the appellant extreme hardship and imperil his safety.
[28] The appellant’s wife had emailed Dr Jansen with concerns about her daughter’s mental state after the daughter had locked herself in the bathroom and said she wanted to die. Dr Jansen commented on the distress the appellant’s offending has caused his wife and daughter and that the daughter stated that everybody would be better off if she were dead. Dr Jansen concluded publication of the appellant’s name would “disturb her profoundly” and cause extreme hardship. In relation to the appellant’s wife, Dr Jansen considered she suffers from depression and anxiety and the likely loss of her teaching job amounted to extreme hardship. The appellant’s son, aged nine or 10, has also made threats to kill the family dog.
[29] A report from Dr Raethel, a psychologist, focuses on the effect on the appellant’s children if his name were to be published. Neither child was aware of their father’s offending. Having interviewed the daughter, Dr Raethel considered her to be highly stressed and also recorded that she had said there were times when she felt it would be better for the family if she was no longer there. The son’s pre-existing behavioural difficulties were also discussed. Dr Raethel concluded that lifting name suppression would almost certainly cause shame and humiliation.
[30] The appellant’s wife deposes that she recently found a photo on her daughter’s phone of her self-harming. She says her son has recently been displaying behavioural difficulties. In relation to her own position, the appellant’s wife fears she will lose her job as a teacher if the appellant’s name is published, which will create financial instability.
Threshold assessment
Endangering safety?
[31] Safety is a discrete factor in s 200(2)(e) and does not involve a comparative evaluation like extreme hardship in s 200(2)(a).12 It is accepted that endangerment to safety can include where publication is likely to endanger the safety of the appellant. This is because on its face, the wording of s 200(2)(e) is sufficiently broad to cover a risk to the safety of any individual, including the defendant.13
[32] The appellant clearly has a history of mental health issues. He has made multiple suicide attempts and has been admitted to hospitals and acute care clinics. When interviewed by Dr Jansen the appellant was still experiencing suicidal ideations and a desire to self-harm.
[33] As the Court of Appeal stated in D (CA443/2015) v Police, “[t]he possibility of self-harm or suicide always gives a court cause for anxious consideration… But the Court cannot adopt the stance that any risk is unacceptable”.14 The defendant “must normally point to something more than the usual features of anxiety and despair that may attend proceedings”.15 The Court also commented that “[t]here normally are ways of managing the risk… [s]upport structures can be identified and deployed”.16 In that case, which concerned interim name suppression, there was no evidence that the risk could not be managed.
[34] Here, the Crown submits the Department of Corrections should be able to manage adequately the appellant’s risk of suicide and any risk consequent on publication is unlikely to endure. The Crown refers to the decision of R v Suttie, where the Court of Appeal upheld a refusal to order name suppression despite evidence illustrating the defendant was at chronic risk of suicide.17 The Court stated that the risk of suicide “must be reasonably controllable within the prison system and the
12 R v Shailer [2015] NZHC 2607 at [17].
13 D (CA443/2015) v Police [2015] NZCA 541, (2015) 27 CRNZ 614 at [8].
14 At [30(a].
15 At [30(c)].
16 At [30(g)].
17 R v Suttie [2007] NZCA 201.
probabilities are that it will be largely alleviated once the criminal justice process is at an end”.18
[35] Mrs Bloem submits Suttie is distinguishable and refers to the decision of this Court in BL v R,19 where the risk of suicide would have been exacerbated by publication. Permanent name suppression was granted. The Crown argues there are important factual distinctions between BL and the appellant – the risk of the defendant offending was low and the offending was said to be completely out of character. These factors are more relevant to the second stage of the name suppression analysis rather than in establishing the threshold ground. However, I accept that BL is different in that the defendant was subject to a sentence of home detention rather than imprisonment. The monitoring and support of the Department of Corrections was not present in the same way as it would be here.
[36] Previous decisions of this Court have determined that prison authorities may not be able to guard adequately against suicide risk in cases where psychiatric evidence suggested publication would endanger a defendant “significantly beyond the normal level any convicted prisoner may experience”.20
[37] It is of particular concern here that, despite the medical advice as to the high risk, the appellant recently attempted to harm himself in custody at Mt Eden Corrections Facility, on the day after his sentencing and name suppression was declined. This reinforces the depths of the appellant’s despair. His attempt was seen by a staff member who intervened. The appellant was put on closer observation. The only information available about the protective measures being taken to mitigate the risk of suicide is that Corrections advised the day before the appeal hearing that the appellant:
… is currently housed in a unit that requires a certain amount of observations and is therefore monitored for any deterioration in his mental health on a regular basis.
18 R v Suttie [2007] NZCA 201 at [32].
19 BL v R [2013] NZHC 2878.
20 See R v D [2014] NZHC 2233 at [19] and [29].
He is seeing the mental health nurse daily who monitors his current mental state. He has seen the doctor on a number of occasions and will continue with this as needed.
[38] Mrs Bloem referred to the number of suicides in prison and after the hearing she filed a supplementary submission referring to the publicly available statistics including a report of 67 self-harm incidents that posed a risk to life in New Zealand prisons last year.
[39] In the absence of more specific evidence of the protective measures being taken to mitigate the risk of suicide, I remain concerned about the risk given the appellant’s history of attempted suicide/self-harm and Dr Jansen’s assessment of high risk. I am also conscious that the appellant’s sentence is relatively short, so he will not be subject to such measures for an extended period. In light of the appellant’s most recent self-harm/suicide attempt while in custody, I am satisfied (albeit by a small margin) there is a real possibility that the appellant’s safety would be endangered if publication were to occur.
Extreme hardship for family members?
[40] The term “extreme hardship” in s 200(2)(a) indicates a comparative standard, requiring the Court to compare the consequences of publication in this case with those that normally attend conviction. As the Court of Appeal has noted, “[d]istress, 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”.21
[41] The threshold for establishing extreme hardship to an offender’s family is very high.22 As the Crown submits, publication of an offender’s name will almost always result in hardship to an offender’s family. Sexual offending in particular “will always be associated with a degree of embarrassment and shame on the part of the family of
21 D (CA443/15) v Police [2015] NZCA 541, (2015) 27 CRNZ 614 at [11]. See also Robertson v Police [2015] NZCA 7 at [48]-[49].
22 H v R [2019] NZHC 2664 at [24].
the offender”.23 There must be something more to elevate it to the level of “extreme hardship”, a “very high level of hardship connoting severe suffering or privation”.24
[42] I do not consider the appellant’s wife would be caused extreme hardship if the appellant’s name is published. As Mrs Bloem accepts, exacerbation of fears and severe anxiety will generally be insufficient to meet the threshold and her circumstances do not meet the extreme hardship threshold. The shame associated with her husband’s offending is likewise a normal consequence of offending of this kind. There is a risk publication may compromise her job. However, it is unlikely that objective and responsible employers or prospective employers will think ill of her due to her husband’s offending.25
[43] I also do not consider that publication of the appellant’s name would likely cause his son extreme hardship. The son has had some behavioural difficulties, but the evidence does not reach the extreme hardship threshold.
[44] The situation is different in relation to the appellant’s daughter. She has self-harmed and said she wants to die. Dr Raethel considers the daughter needs to be managed as a suicide risk and the appellant’s wife also believes their daughter is a suicide risk. Ms Smith submitted that the mother is being proactive, which is true, but nevertheless the evidence indicates that publication of the father’s name would likely exacerbate the daughter’s mental health. Both Dr Jansen and Dr Raethel consider publication would have a profound or devasting effect on the appellant’s daughter and would need skilled therapeutic handling in advance. The daughter’s age adds an extra element of concern in part because of the age of the appellant’s victim. The daughter’s circumstances are quite similar to those of the appellant’s child in A v R,26 who was aged 13. She had self-harmed as a result of her mother’s offending, which also included an indecent act on a young person. Woolford J considered that publication of the appellant’s name would likely cause her daughter extreme hardship.27 In that
23 SSB v R [2017] NZHC 2590 at [21].
24 DP (CA418/2015) [2015] NZCA 476, [2016] 2 NZLR 306 at [6].
25 See Wilson v R [2018] NZHC 1778 at [36].
26 A v R [2019] NZHC 3412.
27 At [25]-[28].
case, the availability of support services did not sufficiently mitigate the risk of self- harm or suicide. I have the same concern here.
[45] The position in this case is further complicated because the appellant’s daughter does not yet know of her father’s offending – she has been told he suffers from mental health issues and needs to be away to receive treatment. I am conscious that when assessing risk, it is necessary to distinguish between the effect of publication and the effect of learning of the offending. The professional advice from Dr Raethel is that the children should be told the facts of the situation at a level they can understand – they will require therapeutic work and for this to be precipitated with name publication is highly likely to have serious consequences. Deferring publication with a 21 day extension of interim name suppression, which the Crown does not oppose, would not sufficiently address this concern.
[46] I am satisfied there is a real possibility that publication of the appellant’s name would cause his daughter extreme hardship. Indeed, the evidence indicates that if publication were to occur there is a real possibility her safety would be endangered in terms of the separate threshold ground in s 200(2)(e).
Identification of suppressed persons?
[47] Pursuant to s 200(2)(f), the Court may suppress the identity of a defendant if satisfied that publication would be likely to lead to the identification of another person whose name is suppressed by order or by law. As indicated, the Judge granted name suppression to the appellant’s wife and children. The Crown has not cross-appealed against that order. Section 200(2)(f) was not addressed by the Judge nor by either party in written submissions for the appeal. I raised it at the hearing. Mrs Bloem advised that she had not applied for name suppression for the family members in the District Court, which may explain why no consideration was given to s 200(2)(f). Ms Smith submitted there was a lack of evidence showing that publication of the appellant’s name would be likely to lead to the identification of his wife and children although she accepted there was some risk. She submitted that if the threshold was crossed, it was not by much (which is relevant to the discretion).
[48] Although s 200(2)(f) was not previously considered, it arises now because the Judge made an order suppressing the names and identifying details of the wife and children. In that sense, this case is similar to W (CA639/2016) v R.28 The Court of Appeal stated that the threshold ground which is now relied on in s 200(2)(f) does not require that the implications for the family members of publication of their identity be revisited. The issue is simply whether publication of the name of the appellant would be likely to result in the order made under s 202 being frustrated.29 I must be satisfied “that there is a real and appreciable risk or possibility that publication of [the appellant’s] name will lead to an existing suppression entitlement of another person being undermined”.30 I must address the statutory threshold on the limited evidence available.
[49] The appellant shares the same surname as his wife and two children. It is not a common name. Both parents are teachers of high school age children and so are known within the teaching community in Auckland. The daughter attends another high school. She is not much younger than the victim. I am satisfied it is likely that publication of the appellant’s name would lead to the identification of his wife and children.
Discretionary assessment
[50] Having determined that I am satisfied at least one of the threshold grounds in s 200(2) is met, I turn to consider the exercise of discretion whether to forbid publication. This involves a balancing exercise, weighing the competing interests of the applicant and the public, taking into account such matters as whether the applicant has been convicted, the seriousness of the offending, the views of the victim(s), the public interest in knowing the character of the offender, the public’s right to freedom of expression, the likely impact publication will have on the applicant’s prospects of rehabilitation, other circumstances personal to the applicant, and the interests of other affected persons.31 The principle of open justice must be considered at this stage.
28 W (CA639/2016) v R [2017] NZCA 580.
29 At [15].
30 At [18].
31 Robertson v Police [2015] NZCA 7 at [41], citing Lewis v Wilson & Horton Ltd [2000] 3 NZLR 546 (CA) at [42]; and D (CA443/15) v Police [2015] NZCA 541, (2015) 27 CRNZ 614 at [12].
Before open justice should yield to suppression, the balance must “clearly favour” suppression.32
[51] While the Judge found that sufficient grounds of extreme hardship had not been established, I take the reference to the principle of open justice as indicating that in any event he also exercised his discretion against granting name suppression, and so I assess whether the Judge acted on some wrong principle, took into account an irrelevant factor, ignored a relevant factor or was plainly wrong in concluding at the discretionary stage that the balancing assessment fell in favour of publication.
[52] I acknowledge the importance of the principle of open justice. The Judge emphasised the serious nature of the appellant’s offending and that it was of the kind which the public has a legitimate interest to know about. I agree. The possibility of further victims coming forward, given the appellant’s role as a teacher, was also considered. In some sexual cases there is an especially high public interest in identifying the offender. The Court of Appeal in B (CA860/10) v R considered that while it “may be a decisive consideration when publication… may bring further offending to light or help to prevent reoffending”, sexual offending does not “automatically carry a heightened case for publicly identifying the offender”.33 Here, Ms Smith submitted there is evidence of some further offending but she accepted the potential propensity evidence was limited to grooming behaviour towards another student. However, the possibility of further victims coming forward is not ruled out.
[53] In terms of risk of re-offending, the appellant is assessed as being a low risk but poses a high risk of harm if he were to do so. The opportunity for the appellant to offend in a similar manner is unlikely to arise given his teacher registration has been cancelled.
[54] The views of the victim are a mandatory consideration. I take into account the fact that the victim opposes name suppression.
32 D (CA443/2015) v Police [2015] NZCA 541, (2015) 27 CRNZ 614 at [12]; and W (CA639/2016)
v R at [21].
33 B (CA860/10) v R [2011] NZCA 331 at [21].
[55] The appellant’s mental health and suicide risk, which on the evidence is somewhat but not adequately mitigated, is a factor which weighs in favour of suppressing his identity. However, on its own, this residual risk may not outweigh the public interest in knowing his name, particularly given the nature of his offending and a possibility of further victims coming forward.
[56] As indicated, the Judge did not consider whether publication of the appellant’s name could lead to the identification of the appellant’s wife and children in terms of s 200(2)(f). Where publication is likely to lead to the identification of another person whose name is already suppressed, the interests of that other person are not determinative.34 A balancing exercise must still be carried out – but it is more complex.
[57] In R v MVD,35 Thomas J upheld the defendant’s name suppression on the basis it would likely lead to identification of a company with name suppression. Thomas J stated:36
Once publication has been found to create a real risk of identifying someone who has met the criteria for name suppression, it will be rare circumstances in which it is appropriate to exercise the Court’s discretion not to grant name suppression to a defendant thereby triggering the real risk of identifying the person whose name is suppressed.
[58]In Solicitor-General v Antolik, Duffy J said:37
…the court must weigh three sets of competing interests: the defendant’s interest in avoiding publication; the public interest in open reporting; and the interests of the third party whose name suppression may be rendered ineffective by publication of the defendant’s identity.
[59] Despite the likelihood of identification of a company, Duffy J declined suppression on the grounds that any consequences of that identification would be minor. The Court of Appeal upheld Duffy J’s decision and did not consider there was any difference of consequence in the approach in the High Court cases,38 stating:39
34 A v R [2017] NZCA 49 at [19].
35 R v MVD [2016] NZHC 333.
36 At [56].
37 Solicitor-General v Antolik [2016] NZHC 2643 at [57].
38 Also referring to R v X [2016] NZHC 840 where Heath J granted name suppression for a defendant on the basis publication would likely lead to the identification of her victims (her children).
39 A v R [2017] NZCA 49 at [19].
The interests of third parties will be relevant to the discretionary assessment if the qualifying ground is s 200(2)(f). But those interests are not determinative of the assessment as a matter of course. As Duffy J said, care must be taken as to the weight to be attributed to those interests in any particular case. It is possible that public interest in publication will prevail, as Duffy J considered it did in this instance.
[60] As the Court of Appeal said in W (CA639/2016) v R, the true beneficiary of the order sought under s 200(2)(f) is the person whose identity the Court has already considered it appropriate to suppress.40 In that case, W was granted permanent name suppression under s 200(2)(f) so as not to defeat name suppression for her young son which had been granted in the High Court.
[61] Here, as indicated, Ms Smith submitted that if the threshold was crossed in relation to the risk of identification of the family members, it was not by much, and this is relevant to the discretion. She submitted it did not displace the principle of open justice. However, I consider the interests of the appellant’s daughter do weigh in favour of suppression. The consequences of publication for her are likely to be devastating given the risk identified by Dr Raethel.41 She is an innocent 14 year old. Although younger than the teenagers in H v R,42 she too is at “a pivotal time of development” in her life. I also do not overlook the fact that Judge Dawson must have considered the appellant’s wife and son would also suffer undue hardship if their names were published. Like the appellant’s daughter, they too already have permanent name suppression.
[62] Balancing the public interest in open justice, the appellant’s interest already referred to and the interests of the family members, most acutely the appellant’s daughter’s interests, and their existing name suppression, I consider that in these very particular circumstances the balance clearly favours suppression. I am satisfied the Judge erred in declining the appellant name suppression.
40 W (CA639/2016) v R [2017] NZCA 580 at [20] at [23]-[25].
41 At [29] and [44] above.
42 H v R [2019] NZHC 2664 at [48].
Result
[63]I allow the appeal and grant the appellant permanent name suppression.
Gault J
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