G v Department of Internal Affairs HC Rotorua Ap65/01

[2001] NZHC 965

IN THE HIGH COURT OF NEW ZEALAND
ROTORUA REGISTRY AP65/01

IN THE MATTER of an application pursuant to Section 140 of the Criminal Justice Act 1985

BETWEEN G
Appellant

AND DEPARTMENT OF INTERNAL AFFAIRS
Respondent

Hearing: 11 October 2001

Counsel: E M Eggleston for Appellant
A J Gordon for Respondent

Judgment: 12 October 2001

JUDGMENT OF FISHER J

Solicitors:
East Brewster (Rotorua) for Appellant
Davys Burton (Rotorua) for Appellant

[1] The 44 year old appellant is employed at the YMCA in Rotorua. He faces 30 charges of possessing pornographic material contrary to s 131(1) of the Films, Videos and Publications Classifications Act 1993. Many of the items in respect of which the charges are brought have a paedophile element to them. Name suppression for the appellant having been refused in the District Court, he appeals today. He is seeking permanent name suppression regardless of the outcome of the charges.

[2] The charges were originally called in the District Court on 5 September 2001, followed by a remand on 24 September to 8 October 2001. Without opposition from the Crown, interim name suppression was granted on 24 September 2001.

[3] On 1 October the matter was brought back before the District Court to obtain a remand by consent to 15 October instead of 8 October. On that occasion the question of name suppression again arose. By this stage the Court had before it a letter from the doctor for the appellant’s mother. In the letter presented to the Court, the doctor opined that publicity about her son’s identity and prosecution would have “the most profound adverse effects” upon her mental and physical health. Counsel for the appellant sought to defer the question of name suppression to 15 October 2001 so that he could present further evidence to the Court on that topic.

[4] The Judge declined to delay matters further. She referred to the presumption in favour of disclosure. While acknowledging that there could be reasons for suppression, particularly to allow elderly relatives to be informed, she pointed out that the appellant had had 2 1/2 weeks for that purpose since the matter had been called in Court on 5 September. The Judge referred to the appellant’s work with the YMCA and considered that his employers and the clients of YMCA should be aware of the charges. Comparing those considerations with his mother’s ill health she decided that the balance fell in favour of disclosure and declined to continue the name suppression. An appeal being lodged against that decision, she re-imposed interim suppression purely for appeal purposes.

[5] In this Court Mr Eggleston advanced the case in support of suppression with care and thoroughness. The first ground of appeal was that the learned Judge had failed to allow the appellant the opportunity to present his evidence in support of name suppression. It seems to me that the matter having been first called on 5 September 2001, the appellant had had 2 1/2 weeks in which to prepare evidence on that topic. The essence of freedom of information about a Court’s processes is that public knowledge should be contemporary. A moment’s reflection would show that allowing a prolonged period for the preparation of argument and evidence in connection with name suppression could result in de facto suppression for an unacceptably lengthy period. I do not think that more than 2 1/2 weeks could be justified for that exercise.

[6] On the other hand nothing is lost, since the appellant has filed fresh evidence in this Court. Although there has been no application to adduce fresh evidence on appeal, I consider it appropriate to consider that further evidence to see whether it might have produced a different outcome had it been available to the learned Judge. Three affidavits are put forward. One is from the medical practitioner for the appellant’s elderly mother. He repeats the content of the letter which was placed before the Judge and then goes on to make the comment:-

“I consider that the effect could be life threatening, particularly in relation to her [ ].”

He adds the additional comment that the appellant’s mother is “a most respectful and refined lady who worries considerably about her reputation in the community.”

[7] There is then an affidavit from the appellant’s mother herself. She goes to considerable lengths in the affidavit to refer to the background and standing of the appellant’s family, referring to the appellant’s father as being well known and the surname of the appellant as having been “in the area since 1910.” She refers to the numerous community activities in which she was involved, as well as referring to her medical difficulties. She says that she does not know if she could manage if the appellant’s name were to be published given that her many friends and acquaintances would not accept the nature of the offending and would ostracise her which she could not cope with. None of that, of course, differs materially from other relatives of persons who are charged in the Courts. I have to say that a family’s standing in the community and the fears of ostracisation, with the no doubt unintended but unfortunate implications for respectable middle class people of this sort, should not mean that they receive treatment which differs from persons in less fortunate circumstances.

[8] The appellant’s mother also acknowledges that she has known about the impending charges against the appellant since 17 October 2000 when the police and Department of Internal Affairs’ Inspector came to her house to conduct the search which revealed the incriminating items. She refers to the effects that that had on her at that time, both medical and personal. I see that as relevant because, without in any way belittling the impact that that must have had on her, there is a question of degree only when one moves to the added burdens of publicity.

[9] There is then an affidavit from the appellant himself. To his great credit, he reveals a responsible approach to recognising his own shortcomings and taking active steps to address them. He does indicate, and this has been confirmed by his counsel, that in three days time on 15 October he will be pleading guilty to 24 of the 30 charges involved. Of the other six, four were sent for classification of the items in question and two involve disputed facts which are still in the process of being sorted out between counsel.

[10] Also new is the Summary of Facts now filed in the case. From this and the nature of the charges it is plain that the appellant does not face any allegations of selling these items. On the other hand, it does appear that his activities went somewhat beyond passively receiving items and did include swapping items with acquaintances.

[11] The evidence that I now have develops in greater detail matters which in their essentials were already before the Judge in the District Court. Certainly there is the heightened concern of the doctor in the way in which he describes the risk to the appellant’s mother. Against that we now know that the appellant will be pleading guilty to at least the majority of charges and that the usual factor counting in support of suppression, namely the presumption of innocence, is no longer available in the scales in his favour. Overall I am not persuaded that procedural developments and further evidence are a ground of appeal in themselves but I am certainly prepared to take this material into account both for and against allowing the appeal when I move on to the second ground of appeal.

[12] The second ground is that the Court “failed to consider the effect of publicity on the appellant’s mother”. The ground as stated is plainly insupportable. The Judge did consider the effect of publication on the appellant’s mother and, as she was required to do, balanced that against contrary considerations. Broadly speaking this is an appeal against the exercise of a judicial discretion. Without ignoring the additional evidence I have before me, it is still broadly the case that I must be persuaded that the Judge in the District Court got it wrong.

[13] Mr Eggleston’s submissions helpfully survey the relevant authorities. There is a strong presumption in favour of publication underscored by such decisions as R v Liddell [1995] 1 NZLR 538. Impact upon the defendant’s relatives is a relevant consideration, as is the seriousness of the offending. It would be fair to say, however, that in very few cases indeed will there be suppression once the presumption of innocence has been removed. Once it is clear that the defendant has pleaded guilty or has been found guilty or has disclosed that such a plea will be entered name suppression other than for the benefit of a complainant will be rare. Ultimately, of course, there is a balancing exercise in every case. The public interest in publication must be compared with the private interests of the defendant and his family.

[14] In the present case it is fair to say that the seriousness of the offending is only moderate compared with most of the name suppression cases. The maximum penalty is a fine of $2000 on each charge, although the sheer number of charges could produce a very substantial fine in total. There are, as I say, elements of swapping pornographic items as well as simply being a passive customer. There is the paedophilic content of many of the items involved and there is the fact that the appellant has had some degree of interaction with children in his activities with Boys Brigade. The nature of his work at the YMCA, while involving adults, is scarcely one which would insulate him from encounters with children in general terms. Broadly speaking one can see a case for publicity here so that employers and members of the community can have the opportunity to make their own assessment in the light of their knowledge of the appellant’s fall from grace.

[15] That is to be weighed against the possible effect upon the mother. One of the worrying features of these cases is that I can think of very few cases involving middle class defendants in which there has not turned out to be a close relative, usually an elderly parent, whose health would be affected by publicity. There is a pattern here in which the family doctor is asked to provide a certificate of this sort. Of course the precise details and the adverse effects will vary from one case to another. The Court does have to be careful, however, to avoid any actuality or impression of one law for the rich and another for the poor on this subject.

[16] In this case there is undoubtedly ill health on the part of the appellant’s mother and it will cause adverse consequences for her, as indeed one would expect for any relative in that situation. I think, however, that from the wording the doctor has used, there is an element of speculation as to the real consequences of publicity, particularly bearing in mind that she has now had 12 months in which to come to terms with the prosecution and its possible implications in terms of publicity. I believe that she is unduly pessimistic when she assumes in her affidavit that all her friends and supporters will desert her if and when publicity follows. The high standing of herself and her family, which I do not question for a moment, is not a significant factor to be weighed in favour of name suppression.

[17] Balancing all of these matters, and bearing in mind particularly the advice that there will be guilty pleas, I am not persuaded that the Judge’s exercise of her discretion ought to be interfered with. I am prepared to, and do, make an order that the name and details of the appellant’s mother and all other members of the appellant’s family should be suppressed from publication. With that qualification, the appeal is dismissed.