H v R
[2019] NZHC 2664
•18 October 2019
1. ORDER PROHIBITING PUBLICATION OF APPELLANT'S NAME OR ANY PARTICULARS WHICH MAY LEAD TO HIS IDENTIFICATION.
2. PURSUANT TO THE ORDER MADE IN THE DISTRICT COURT ON 16 AUGUST 2019, PUBLICATION OF THE NAMES OR ANY
IDENTIFYING DETAILS OF THE PEOPLE REFERRED TO IN [10] OF THIS JUDGMENT IS ALSO PROHIBITED
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2019-404-369
[2019] NZHC 2664
IN THE MATTER of an appeal against refusal to grant permanent name suppression BETWEEN
H
Appellant
AND
THE QUEEN
Respondent
Hearing: 11 October 2019 Counsel:
C Mitchell for appellant
SBC O'Connor for respondent
Judgment:
18 October 2019
JUDGMENT OF FITZGERALD J
[As to appeal against refusal to grant permanent name suppression]
This judgment was delivered by me on 18 October 2019 at 11 am.
Registrar/Deputy Registrar
Date……………
Solicitors: Meredith Connell, Auckland To: C Mitchell, Auckland
H v R [2019] NZHC 2664 [18 October 2019]
Introduction
[1] Mr H appeals against the District Court’s refusal to grant him permanent name suppression. He pleaded guilty to one charge of knowingly distributing an objectionable publication, six counts of possessing an objectionable publication, and one of indecency with an animal.
[2] Mr H seeks orders permanently suppressing his name and identifying particulars under s 200(1) of the Criminal Procedure Act 2011 (the Act), citing extreme hardship to his family pursuant to s 200(2)(a) and/or that publication of his name will likely lead to identification of suppressed persons (for the purpose of s 200(2)(f)).1
[3] Mr H’s family was granted permanent name suppression in the District Court. The Crown accepts that publication of Mr H’s name is likely to lead to the identification of his family. The key issue on the appeal is accordingly whether the residual discretion under s 200(1) of the Act should be exercised to nevertheless decline to continue suppression of Mr H’s name.
Offending
[4] On 29 December 2017, Mr H uploaded and sent an image of child exploitation through an instant messaging application. That image depicted a male and female, both naked, and both under the age of 15, lying in the missionary position. The female was holding the male’s penis about one centimetre from her vagina. This gave rise to the distribution charge.
[5] The possession of objectionable publication charges stem from a search warrant executed at Mr H’s address in June 2018. Police found 1,127 images depicting sexual conduct with and between young persons and children, children posing erotically, and bestiality. Most of these images were stored on Mr H’s mobile phone. The Police issued six charges in relation to these images, three of which were representative.
1 An earlier claim of extreme hardship to himself is no longer pursued.
[6] Police also found on Mr H’s mobile phone an image of him holding his exposed penis while his dog licked it. This gave rise to the indecency with an animal charge.
District Court decision
[7] The District Court Judge sentenced Mr H to two years, two months’ imprisonment.2 He then turned to consider name suppression.
[8] The Judge considered the employment risks to Mr H, as well as the damage which could be done to his wife’s business. He also had regard to possible consequences for Mr H’s two teenaged children, neither of whom were aware of the charges. None of these consequences, in the Judge’s view, met the “extreme hardship” threshold:
[24] It is accepted that the publication of your name will be highly embarrassing to you, and to your partner and children. Regretfully that is a normal consequence of convictions for this type of offending. Your wife and your children are in no way responsible for your offending, and have no culpability for it whatsoever. It has not been established that as a necessary consequence that you would necessarily lose your employment.
[9]Accordingly, he denied Mr H’s application.
[10] The Judge did, however, make an order granting name suppression to Mr H’s wife and children, as well as any information which may identify them. It is unclear under what section he made this order. I presume it was made pursuant to s 202 of the Act on the basis of undue hardship. The Judge further made an order under s 205 of the Act suppressing the oral and written submissions so far as they referred “to any information including names, occupation, schools and ages of [Mr H’s] wife and children.”3 There is no cross-appeal by the Crown in respect of any of these orders.
2 Police v [H] [2019] NZDC 16211.
3 At [25].
Submissions
Appellant’s submissions
[11] Mr Mitchell, counsel for Mr H, submits Mr H’s family will experience extreme hardship were Mr H’s name to be published. Mr H’s wife, who shares his surname, is a pharmacist, and owns and runs one of two pharmacies in the small rural community in which they have resided for a considerable time. In an affidavit sworn in support of the original application, Mrs H deposes that she has run the pharmacy in their community for the last 20 years, and as a result, her and Mr H are well known in the area. She is very concerned at the impact on her business were she to be linked with her husband’s offending. Mrs H also gives evidence as to her and Mr H’s two teenaged children who do not know about the charges. They are about to sit examinations and one is looking to enter medical school in due course, and the other to join the Police. Mr Mitchell submits they will undoubtedly face ridicule and have their education disrupted. Mr Mitchell says that is particularly so given external examinations are about to commence and the crucial point of development which these young people are at in their lives.
Respondent submissions
[12] The Crown says the appeal should not be granted. It says that no error is discernible in the District Court Judge’s approach, nor was the decision “plainly wrong”. The Crown submits that distress and humiliation for Mr H’s family cannot reach the “extreme hardship” threshold for the purpose of s 200(2)(a) of the Act. In relation to the risk of identifying suppressed persons (s 200(2)(f) of the Act), while the Crown acknowledges this threshold is made out, it suggests the Court should exercise its discretion (under s 200(1)) to nonetheless refuse to grant suppression to Mr H. Mr O’Connor, for the Crown, submits the fact Mr H has pleaded guilty and the seriousness of the offending point towards open justice. He further submits that while unfortunate, any consequences Mr H’s family would experience from being identified are not out of the norm for families of offenders (to the extent they arguably do not amount to “undue hardship” for the purposes of s 202(2)(a) of the Act).4
4 Although I note the Crown expressly does not challenge the grant of name suppression to Mr H’s family.
Approach
[13] Mr H’s appeal against the District Court Judge’s decision on suppression is governed by ss 282 to 288 of the Act.
[14] Section 283 establishes the right to an appeal. Section 284(b) confirms that the appropriate court for hearing the first application is the High Court if the appeal is against a decision of the District Court, as in the present case.
[15]Section 287 provides:
287 First appeal court to determine appeal
A first appeal court must determine a first appeal by—
(a)confirming the decision appealed against; or
(b)varying the decision appealed against; or
(c)setting aside the decision appealed against; or
(d)making any other order it considers appropriate.
[16]The appeal standard in relation to name suppression was recently set out in
Wilson v R:5
[14] In determining an application under s 200 of the Act, the Court must first determine whether or not any of the threshold criteria in s 200(2) have been established. As this involves the application of law to facts, a court on appeal is entitled to reach its own view on whether or not any of the threshold criteria have been established by applying the usual appeal principles. The second step, however, requires the first instance Judge to undertake an exercise of judicial discretion. Accordingly, an appellate court will only interfere with the lower court's decision in relation to the second stage of the analysis if:
(1) the lower court erred in principle; or
(2) failed to take into account a relevant matter, or took into account an irrelevant matter; or
(3) was plainly wrong.
[17] Accordingly, I must reach my own view as to whether or not the threshold criteria under ss 200(2)(a) and/or 200(2)(f) are met. If so, I therefore propose to
5 Wilson v R [2018] NZHC 1778 at [14] (footnotes omitted).
consider the exercise of discretion under s 200(1), and whether the ultimate decision reached by the Judge ought to be impugned on any of those bases set out in the above extract from Wilson.
Threshold test for name suppression
[18] The starting point in name suppression applications is a presumption in favour of open reporting of court proceedings. However, the Act permits name suppression where publication would be likely to cause extreme hardship to the person convicted of an offence, or any person connected with that person.6 Suppression is also granted where publication is likely to lead to the identification of another person whose name is suppressed.7
[19] Section 200 of the Criminal Procedure Act 2011 contemplates a two-stage analysis:8
(a) As already noted by this Court in Fagan v Serious Fraud Office, the section contemplates a two stage analysis. Stage one is a threshold determination. Stage two is a discretionary assessment.
(b) At the first stage, the judge must consider whether he or she is satisfied that any of the threshold grounds listed in 200(2) has been established. That is to say, whether publication would be likely to lead to one of the outcomes listed in subs (2). The listed outcomes are prerequisites to a court having jurisdiction to suppress the name of a defendant. It is “only if” one of the threshold grounds has been established that the judge is able to go on to the second stage.
(c) At the second stage, the judge weighs 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 victims and the public interest in knowing the character of the offender.
[20] Extreme hardship under s 200 requires “a very high level of hardship connoting severe suffering or privation, and requiring a comparison between the hardship contended by [the defendant] and the consequences normally associated with publication.”9
6 Criminal Procedure Act 2011, s 200(2)(a).
7 Section 200(2)(f).
8 Robertson v Police [2015] NZCA 7 at [39]-[41].
9 DP v R [2015] NZCA 476, [2016] 2 NZLR 306 at [6].
[21] In addition, the defendant cannot simply point to the possibility that a s 200 consequence might occur; the Court must be satisfied that a consequence is “likely”.10
Presumption of open justice
[22] In the particular context of possession of objectionable publications, the Court of Appeal has said this about the public interest in knowing an offender’s identity:11
[21] In some sexual cases, there is undoubtedly an especially high public interest in identifying the offender. It may be a decisive consideration when publication of the name of the accused may bring further offending to light or help to prevent reoffending. But there is no reason why sexual offending should be seen to automatically carry a heightened case for publicly identifying the offender. In Lewis v Wilson & Horton Ltd this Court noted that the public interest in knowing the character of a person seeking name suppression had been acknowledged in cases involving sexual offending, dishonesty and drug use. That is not to suggest that the public interest in publication will be uniformly high in all such cases. The weight to be accorded to the public interest will vary according to the particular facts of the case (including the nature and seriousness of the offending) and the circumstances of the offender. The fact that sexual offending is in issue should not exclude a careful weighing of all relevant circumstances.
[22] In this case, factors which often weigh decisively against name suppression in sexual cases are absent. Publication would not lead to the discovery of further offending. Nor would it limit opportunities for reoffending. Because of the type of offending, Mr B was described in the pre- sentence report as a low to medium risk offender, though assessed by the Department of Corrections as at low risk of reoffending. In the circumstances, it could not be said that name publication was critical to personal deterrence.
[23] Although, as the Court of Appeal explained, there may be no heightened need for publication of Mr H’s name, the presumption of open justice undoubtedly remains the start point. Keeping this start point in mind, I now move to the two bases for suppression of Mr H’s name; namely that it could lead to extreme hardship to his family, and, being the focus of the argument on appeal, that it could lead to identification of suppressed persons.
10 Huang v Serious Fraud Office [2017] NZCA 187 at [9]-[10].
11 B (CA860/10) v R [2011] NZCA 331.
Extreme hardship for family members?
Authorities
[24] The standard for establishing extreme hardship to an offender’s family is very high.
[25] In SSB v R, the applicant sought name suppression after being charged with indecent assault.12 He argued there would be extreme hardship to his wife, as well as to his children, aged 11 and 13. He provided a letter from the children’s doctor confirming they had anxiety issues likely to be exacerbated by publication of their father’s name. There was also evidence from the family’s priest that the children would be unable to live within or marry anyone within their small immigrant community because they would be insulted and judged by their father’s actions.
[26] Nation J noted that there was always a degree of embarrassment and shame on the part of the family when an offender’s name was published, particularly in the context of sexual offending. He also accepted the harm may be greater for this family, given the community to which they belonged. However, he considered that the harms to the children were somewhat speculative, and that negative impacts on families was “one of the sad realities of criminal offending. The cases where suppression has been granted on such grounds tend to involve more severe potential consequences, such as a risk of suicide.” Name suppression was denied.
[27] Hardship to family members was also considered in Wilson v R.13 Mr Wilson had been convicted of covertly filming women using the bathroom, both at his home and the hospital where he worked. He cited (among other things), extreme hardship to his wife, who also worked as a medical professional, and extreme hardship to his children.
[28]In relation to Mr Wilson’s children, Collins J concluded:
[33] Sadly, it is likely that Dr Wilson's children will be victimised in some way because of their father's offending and that they will suffer distress and
12 SSB v R [2017] NZHC 2590.
13 Wilson v R, above n 5.
anxiety. It is most unfortunate that Dr Wilson's children will be victims of his offending. The distress and concerns that Dr Wilson's children are likely to suffer, however, fall well short of the threshold of extreme hardship set out in s 200(2)(a) of the Act.
[29] Nor did Collins J consider damage to Ms Wilson’s employment prospects constituted extreme hardship. The Judge found it was difficult to see how any reasonable employer would judge her due to her husband’s wrongdoing, and did not consider the humiliation she would inevitably suffer constituted extreme hardship.
[30] I note that in neither of these cases did the family members have pre-existing name suppression themselves.
[31] Mr Mitchell relies in particular on the Court of Appeal’s decision in B (CA860/10) v R where an opposite result was reached.14 Mr B was convicted of 21 charges of being in possession of an objectionable publication, after images and videos depicting the exploitation of children for sexual purposes were found in his possession. He sought name suppression on the grounds of extreme hardship to family members, who all shared his uncommon and well-known surname; his ex-wife and daughter held positions in the Court system which required them to deal with the public, and another daughter held an IRD position which could be affected. There were also concerns for a younger child and grandchild’s schooling, as well as Mr B’s father who was a Justice of the Peace, and Mr B’s mother who had recently suffered a stroke.
[32] The Court of Appeal held that publication of Mr B’s name would cause “incalculable harm” to his family, and in particular would “undoubtedly compromise the ability of Mrs B and her two daughters to do their jobs”.15 The Court also considered it significant that there was clear evidence the relationship of all family members to Mr B was well known in the community in which they lived.16 The appeal was upheld and name suppression was granted.
[33] Similarly, the Court of Appeal in P v R granted name suppression on the basis of extreme hardship to Mr P’s wife, X.17 Mr P faced charges of historic sexual
14 B (CA860/10) v R [2011] NZCA 331.
15 At [24].
16 At [25].
17 P v R [2018] NZCA 302.
offending against underage family members. Mr P and his wife lived in a small community with “a recent history of well-publicised paedophilia cases”, such that there was immense stigma in the town.18 X was a registered mental health professional and gave evidence she would lose confidence of her clients and have to cease work, citing a previous colleague who had to resign when news broke that their family member had sexually abused young girls.19
[34] The Court considered that “this particular and unique set of circumstances goes far beyond the ordinary sort of hardship for family members that follows publication.”20 X’s particular occupation and locale, as well as the fact her age meant she could not resume her career at a later date, meant extreme hardship was established, and name suppression granted until trial.
Evaluation
[35] On the basis of these cases, in my view extreme hardship in relation to Mr H’s family has not been made out. The cases where name suppression was granted all involve special circumstances elevating the harm the family would face. For example, in both B v R and P v R, there was particular evidence of direct consequences to the families’ business, standing in the community or mental health. In B v R, the surname was also reasonably uncommon, and in P v R, the Court placed weight on the stigma surrounding sexual offending against children in the particular community in which the family lived.
[36] I accordingly consider the Judge did not err in finding that extreme hardship was not made out in relation to Mr H’s family for the purposes of s 200(2)(a) of the Act.
Identification of suppressed persons?
[37] As noted above, the Crown does not cross-appeal against the suppression granted to Mr H’s family. The Crown also, responsibly, accepts that publication of
18 At [5].
19 At [6]-[8].
20 At [16].
Mr H’s name will likely identify his family. Given the evidence that Mr and Mrs H are at least somewhat well known in the community in which they live, this must be correct. Accordingly, the threshold criteria pursuant to s 200(2)(f) of the Act is satisfied.
[38] However, the Crown asks the Court to exercise its residual discretion under s 200(1) to nonetheless decline to grant name suppression to Mr H. In support of that submission, it cites A v R.21
[39] In that case, A had been sentenced for importation of a Class B drug. His name was suppressed because it could lead to the identification of a company whose name was also suppressed. In the High Court (and endorsed on appeal), Duffy J was satisfied A’s identification would identify the company.22 She nonetheless exercised her residual discretion to decline suppression, on the grounds that any consequences of that identification would be minor – it was unlikely customers or retail outlets would react strongly in a way that damaged the company or its investors.
[40] Asher J reached a different conclusion in NN v Police.23 NN had been charged with sexual offending against his partner’s daughters. NN also had a high profile; he was a former detective and Member of Parliament. Asher J considered given his high profile, and the fact it was known the complainants had lived with him, it was likely publication of NN’s name would identify the complainants. He also concerned there could be extreme hardship to NN’s son, who had suffered a brain injury. He then turned to consider the discretionary stage. He considered there was a strong public interest in knowing NN’s identity, given his high profile public position.24 He noted there was no suggestion other complainants would come forward if NN’s name was published, making that a neutral factor.
[41] Ultimately, the Judge decided not to exercise his residual discretion to deny name suppression:25
21 A (CA605/2016) v R [2017] NZCA 49.
22 Solicitor-General v Antolik [2016] NZHC 2643.
23 NN v Police [2015] NZHC 589.
24 At [68].
25 At [70].
If the only issue was the protection of NN's son from extreme hardship, the balancing might well be close. However, in my view the public interest is outweighed distinctly by the combination of the appreciable risk of identification of the complainants and his son's condition. I am particularly influenced by the views of the victims and their wish to have their identity protected. There is an appreciable risk that they will lose that protection in respect of many members of the Doubtless Bay community, should NN's name be published. The purpose of s 203 is to protect such complainants. I conclude that the discretion should be exercised in favour of suppression.
Evaluation
[42] This is a finely balanced enquiry. As Duffy J noted in Solicitor-General v Antolik, the balancing exercise under s 200(1) of the Act is more complex where the threshold ground which has been met is s 200(2)(f), given in such cases, 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 or parties whose name suppression may be rendered ineffective by publication of the defendant’s identity.26
[43] Duffy J also noted the tension between the concerns reflected in s 200(2)(f) and factors favouring publication. She noted:27
If the concerns reflected in s 200(2)(f) were generally allowed to trump factors favouring publication, the outcome would be inconsistent with the explicit statement in s 202(4) that a name suppression order in respect of a connected person "may not prevent publication of the name of the defendant", which I read to also include an offender. Further, such an outcome would enable defendants to achieve name suppression for themselves through someone connected with them obtaining suppression first by demonstrating undue hardship under s 202(2)(a), which would drive a coach and four through the principle of open justice.
[44] An application for leave to bring a second appeal against Duffy J’s decision was rejected by the Court of Appeal. The Court of Appeal canvassed various High Court decisions concerning the residual discretion in s 200(1) where the threshold criteria met was s 200(2)(f) and stated that:28
All [decisions] recognised that the nature of the qualifying ground may be taken into account in the discretionary assessment. The interests of third parties will be relevant to the discretionary assessment if the qualifying ground
26 Solicitor-General v Antolik, above n 22, at [57].
27 At [60].
28 A v R, above n 21, at [19].
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.
[Emphasis added]
[45] In this case, like in B v R, factors which often weigh decisively against name suppression in sexual cases are absent. Publication of Mr H’s name would not lead to the discovery of further offending. Nor would it limit opportunities for reoffending. Mr H has been assessed as low risk of reoffending. As the Court of Appeal noted in B v R, “in the circumstances, it could not be said that name publication was critical to personal deterrence”.29 Nor, as in A v R, am I satisfied that the effect of publication on Mr H’s family would be “minor”, as Duffy J categorised the effects in that case. Nor is there heightened public interest in this matter, as was the case in NN due to the appellant’s high profile.
[46] It is clear that the nature of the appellant’s family’s employment in B v R carried significant weight with the Court of Appeal, who were satisfied that apart from the acute embarrassment it would cause on a personal level, publication would undoubtedly compromise the ability of the appellant’s wife and two daughters to do their jobs, given their position of trust and need to engage with the public. The Court also noted that it would cause inevitable distress to the children involved and had the potential to seriously disrupt their development.
[47] I have already found above that the hardship to Mr H’s family does not meet the threshold of extreme hardship. They have, however, been granted permanent name suppression by the District Court. Mrs H runs one of two pharmacies in a relatively small community, and has done so for the last 20 years. I accept that the role of pharmacist involves significant interaction with the public and requires a high degree of trust between the pharmacist and their customers. And while there is no particular evidence before me of the possible impact on the business if members of the public were to link Mrs H to Mr H’s offending,30 I am satisfied that, unfortunately, through gossip and innuendo, Mrs H’s reputation and her business could be damaged. I
29 B v R, above n 14, at [22].
30 Noting that in name suppression applications, there will rarely be any clear evidence of what the likely future effects could be.
consider this goes beyond the normal embarrassment and shame of being associated with the offending in this case.
[48] There are also two teenage children involved, who do not presently know the nature of their father’s offending. They are shortly to go into examinations. As set out earlier, one child is going to seek entry into medical school, the other entry into the Police. There is of course no suggestion whatsoever that their efforts in this regard would be tainted by their father’s offending; those dealing with their applications would plainly be aware that the children were at no fault. But, the children are at a pivotal time of development in their lives. I accept that the particular nature of the offending in this case, including that associated with the charge of indecency with an animal, would likely bring incalculable shame and embarrassment on them at this crucial stage of their lives.
[49] Ultimately, the combination of the nature of this particular offending (including the stigma attaching to the charge of indecency with an animal); the family’s long- term presence in a relatively small community; the nature and duration of Mr H’s wife’s employment (which inherently requires a high degree of interaction with the public and trust and confidence between her and her customers); the age and stage of the teenage children; that Mr H’s wife and children already enjoy permanent name suppression; and those matters set out at [45] above, persuades me that the exercise of the residual discretion in s 200(1) ought to be exercised in favour of suppression of Mr H’s name. This has been a finely balanced outcome, however, and the absence of one or more of these factors would likely have tipped the balance in favour of publication.
[50] Given the above, I am satisfied the Judge erred in declining Mr H name suppression, and in particular, did not take into account those matters at [45] above, in conjunction with the combination of factors discussed at [49] above.
[51]The appeal is allowed. Mr H is granted permanent name suppression.
Fitzgerald J
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