H v R - [2019] NZHC 2664

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…

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.

Continue reading H v R

Details

AGLC: H v R [2019] NZHC 2664
Case: [2019] NZHC 2664
Decision Date: 18 October 2019

CaseChat Overview and Summary

The appeal in H v R was brought by Mr H against the District Court’s refusal to grant him permanent name suppression. Mr H had 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. He sought orders permanently suppressing his name and identifying particulars under s 200(1) of the Criminal Procedure Act 2011, citing extreme hardship to his family or that publication of his name will likely lead to identification of suppressed persons. The key issue on the appeal was 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.

The court considered whether the threshold criteria under ss 200(2)(a) and/or 200(2)(f) were met. Extreme hardship under s 200 required 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. The court found that the hardship to Mr H’s family did not meet the threshold of extreme hardship. However, the court was satisfied that the residual discretion in s 200(1) ought to be exercised in favour of suppression of Mr H’s name, given the combination of factors discussed in the judgment.

The appeal was allowed, and Mr H was granted permanent name suppression.

Orders