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Forsyth v District Court at Lower Hutt

Forsyth v District Court at Lower Hutt

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NOTE: PUBLICATION OF NAME OR IDENTIFYING PARTICULARS OF THIRD RESPONDENT PROHIBITED BY S 140 OF THE CRIMINAL JUSTICE ACT 1985.

NOTE: ALL IDENTIFYING PARTICULARS IN RELATION TO THIRD RESPONDENT HAVE BEEN REDACTED.

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CIV-2014-409-865 [2015] NZHC 2567

BETWEEN
ANNE-MARIE FORSYTH

First Applicant

KAREN BEAUMONT Second Applicant

AND

DISTRICT COURT AT LOWER HUTT First Respondent

DISTRICT COURT AT CHRISTCHURCH Second Respondent

A

Third Respondent

Hearing: 2 September 2015

Appearances:

N M Pender for Applicants
J Eaton QC for Respondents

Judgment:

20 October 2015

JUDGMENT OF MANDER J

Introduction

[1] The applicants, Anne-Marie Forsyth and Karen Beaumont are sisters. As young girls in the 1970s, they were the victims of sexual abuse at the hands of the third respondent, A. Some 20 years later, the two women complained to police. A
was subsequently convicted of discrete acts of sexual offending against both women.

FORSYTH & ANOR v DISTRICT COURT AT LOWER HUTT & ORS [2015] NZHC 2567 [20 October 2015]

[2] When A first appeared before the District Court in 1994 an interim order was made suppressing publication of his name. That order remained in place throughout the criminal proceeding and, notwithstanding A’s subsequent conviction and sentence, has remained in force ever since.1

[3] Because of the sexual nature of the charges, Ms Forsyth and Ms Beaumont’s names were the subject of automatic statutory suppression.2 However, in 2014, they applied successfully for orders lifting that suppression.3 They contend the only basis upon which the interim order was made suppressing A’s name was for the purpose of preserving their statutory protection. Having waived their entitlement to suppression, they submit there is no longer any need to preserve the order made in
A’s favour.

[4] The sister’s seek to judicially review the decision by the District Court at Lower Hutt, alleging error on its part in granting interim name suppression to A. Further, that after the matter was transferred for the purpose of trial before the Christchurch District Court, it failed to review or discharge the interim order. Finally, it is alleged that more recently the Christchurch District Court erred in finding that continuation of the suppression order was not conditional upon the maintenance of the statutory suppression in favour of the sisters and did not automatically lapse once their own suppression was lifted.

[5] The sisters seek an order quashing the interim suppression order or, in the alternative, a declaration that the interim order was conditional upon the sisters’ statutory protection which lapsed when their suppression was lifted.

[6] In the usual way, the first and second respondents, being the District Courts at
Lower Hutt and Christchurch, abide the decision and were granted leave to be excused from attendance at the hearing.

1 Section 140(2) of the Criminal Justice Act 1985 provides that an interim suppression order which is temporarily unqualified will crystallise into a permanent order.
2 Criminal Justice Act 1985, s 139.

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: [2015] NZHC 2567
Decision Date: 20 October 2015

CaseChat Overview and Summary

The applicants, Anne-Marie Forsyth and Karen Beaumont, sought to challenge the continued suppression of the name of their alleged offender, A. The applicants had successfully applied to lift their own statutory name suppression, but A's name continued to be suppressed. The applicants alleged error on the part of the District Court in granting interim suppression of A's name and in the failure of the Christchurch District Court to review or discharge the interim order. The applicants sought either an order quashing the suppression order or a declaration that the interim order was conditional upon their statutory protection which lapsed when their suppression was lifted. The applicants had standing to bring the application as they had a significant private interest in the proceeding beyond those shared with the public at large. They also had a right of freedom of expression which was infringed by the suppression order in favour of A, restricting their ability to tell their story and speak publicly. The applicants alleged that the Lower Hutt District Court made an error in granting an interim suppression order for A's name. The applicants argued that A had no grounds for suppression in his own right and that the decision to grant interim suppression was made in error. The applicants identified several traditional grounds of review which they submitted gave rise to reviewable error for the following reasons: the order was based on a mistake of fact by the Court, the Court failed to take into account relevant considerations, the Court failed to consult with or provide them with an opportunity to be heard before making the interim order, and the interim order was unnecessary, disproportionate and constituted an unjust limitation on the applicants' freedom of expression in breach of s 14 of the New Zealand Bill of Rights Act. The applicants further argued that the Christchurch District Court had a duty to review or discharge the interim order, and failed to do so. The applicants submitted that the interim order was continued during the trial, and that the trial Court permitted the interim order to have permanent effect by default. The applicants argued that the Christchurch District Court was obliged under the New Zealand Bill of Rights Act to discharge the interim suppression order unless there were demonstrably justifiable reasons for leaving it intact. The applicants submitted that by allowing the interim order to have permanent effect, the Christchurch Court permitted an unwarranted limitation to be placed on their freedom of expression which breached s 14 of the New Zealand Bill of Rights Act. The Court found that the sisters had not established that the District Court at Lower Hutt made any reviewable error in making the interim suppression order in May 1994. The Court found that the sisters had established the Christchurch District Court erred in its approach to the issue of whether the interim order was to have permanent effect. The Court found that the sisters were offended against by A and had a right to tell their story, which necessarily would involve a narrative referring to the nature of the offending. The Court found that the principle of open justice applied and there must be exceptional reasons before a departure from free reporting was warranted. The Court found that the sisters had a constitutional right under s 14 of the New Zealand Bill of Rights Act to freedom of expression and, in particular, to impart information. The Court found that had the interim suppression order not been continued, they would have been free to speak openly about these events. The Court found that the only discernible reason for the continuation of the order post-conviction was for their benefit in supplementation and support of the statutory suppression of their names. The Court found that that suppression had now been lifted. The Court found that A, at least after his conviction and sentence, had no right to suppression. The Court found that he had, in error, for some 20 years had the benefit of suppression to which he was not otherwise entitled. The Court found that the delay in bringing the claim was through no fault of the sisters. The Court found that to be weighed against those considerations were the factors identified by A which supported his submission that the Court should exercise its discretion against granting relief. The Court found that the most influential factor was the length of time that had elapsed since A was formally dealt with by the criminal justice system. The Court found that a further factor was that, while the Court had the ability to permit publication of the name of a victim who was of or over the age of 16 under s 139(1)(b) of the Act, it would not be for another seven years after A's trial, with the passage of the Victims Rights Act in 2002, that victims were provided with what was effectively a statutory right to have their name suppression lifted. The Court found that the future contingency of the victims invoking their entitlement to have their name suppression lifted would not have been apparent to A as it would now, or at least ought to be, to a defendant today. The Court found that the granting of relief to the sisters to remove the suppression had to be considered against A's situation in 2015, not as it was at the conclusion of his trial in 1995. The Court found that the circumstances of the present case were that A, over the course of the intervening 20 years, had re-established himself and moved on with his life. The Court found that he did so in reliance on what appeared, at least to him, to be the judicially sanctioned final suppression of his name, and had constructively developed his personal, vocational and business life. The Court found that he had not reoffended during that period. The Court found that there was no evidence to suggest that he was other than a rehabilitated person. The Court found that on balance, it did not consider the limitation placed on the victims' ability to provide the full narrative of their offending overcame what, in its view, would be the inequitable result of A having to bear the consequences of the public scrutiny, opprobrium and likely vilification, which, if visited upon him at all, should have occurred some two decades ago, at the time he was convicted and sentenced by the trial Court. The Court found that for him to be now subject to those consequences after a period of some 20 years, when he was entitled to consider the prosecution had long been finalised, the criminal justice process at an end, and his punishment complete, would not constitute an equitable remedy in the circumstances of this case. The Court found that by declining to quash the existing suppression order, the sisters' rights of expression remain infringed. The Court found, however, that in the circumstances, the continuation of that limitation was one which, after assessment of the various competing factors, it considered itself obliged to conclude was justified. The Court declined the pleaded relief to quash the suppression order. The Court found that there was reviewable error on the part of the Christchurch trial Court in its approach to the issue of whether A's name should be permanently suppressed. The Court found that both parties could claim some success in the litigation, and it was inclined to allow costs to lie where they fell.

Orders