H v R HC Rotorua Ap99/01

[2002] NZHC 148

IN THE HIGH COURT OF NEW ZEALAND
ROTORUA REGISTRY AP99/01

[SUPPRESSION ORDER PROHIBITING PUBLICATION OF NAME, ADDRESS AND DETAILS OF APPELLANT UNTIL SENTENCING.]

BETWEEN H
Appellant

AND THE QUEEN
Respondent

Hearing: 28 February 2002

Counsel: EM Eggleston for the Appellant
AJ Gordon for the Respondent

Judgment: 28 February 2002

ORAL JUDGMENT OF RODNEY HANSEN J

Solicitors:
East Brewster, P O Box 1742, Rotorua for the Appellant
Davys Burton, P O Box 248, Rotorua for the Crown

[1] The appellant appeals against the refusal of a District Court Judge to grant her interim name suppression. On 16 November 2001 she pleaded guilty in the District Court at Rotorua to a charge of assaulting a ten-year-old child in her care. Her counsel sought a discharge without conviction under s 19 of the Criminal Justice Act and an order for permanent name suppression. She was referred to Mana Social Services Trust for counselling as part of a “second chance” programme. A final decision on sentence is to await the completion of that programme. A s 19 discharge remains a possibility. A final psychologist’s report is awaited. Sentencing is now expected to take place on 14 March.

Background facts

[2] The victim was the ten-year-old daughter of the appellant’s former husband. She had cared for her since she was young. The appellant was also caring for two four-year-old twins. The assault occurred after she found them kissing one another. They told her they had been taught this by the ten-year-old. When the appellant confronted her, she initially denied responsibility. The appellant struck her on the buttocks with a plastic broom. After the girl admitted kissing the twins “because she wanted to know what it felt like”, she was struck several more times with the broom across the back of the legs. The appellant then hit the victim on the nose, according to the police summary of facts “without realising”, causing it to bleed. As a result of the assault, the child sustained bruising to her buttocks and legs, as well as the bloodied nose.

[3] The incident came to the notice of the police after the appellant sought help from her doctor. With her permission, he contacted Child Youth and Family Services who brought the matter to the attention of the police.

[4] The appellant is the principal of a school. From all accounts she has made an outstanding success of the job. The school has had its share of troubles over recent years and has received considerable adverse publicity. It is going through a rebuilding phase which could be jeopardised if knowledge of the appellant’s offending reached the wider public.

[5] The risk of damage to the school was one of the reasons put forward in support of the application for name suppression. The other was the effect on the appellant herself. She has endured much in her life. She had what has been described by her counsellor as a dysfunctional upbringing. She was sexually abused as a ten-year-old and when she was older. As so often happens, this led to anti-social attitudes and behaviour. As a teenager she was in trouble with the law. That, however, ceased before she turned twenty. To her great credit, the appellant proceeded to turn her life around. She trained as a teacher. She has served with distinction and dedication in her profession, most recently in her position as principal of the school.

[6] It was also argued before the District Court Judge that she would have to give up that position if her name were published. That consequence was submitted to be out of proportion to the offending.

District Court Judge’s decision

[7] The District Court Judge was wholly sympathetic to the risk of injury to the school arising by association as a result of publication of the appellant’s name. He decided to meet that concern by suppressing publication of the name of the school or any particulars (apart from the name and personal details of the appellant) which might lead to its identification. That would confine any damage resulting from publication of the appellant’s name to those who knew she was the principal of the school.

[8] The Judge did not accept that the appellant would lose her job as principal if there was publication and there was nothing before him to suggest that this would be the inevitable outcome. The school’s Board of Trustees were aware of the offending and the Judge did not see why the attitude of the trustees would be affected by publication of what they already knew.

[9] It was also argued that publication would jeopardise the appellant’s rehabilitation. The Judge rejected that as a significant factor, noting that the starting point of the rehabilitative process is the need to identify and face up to the conduct in question. The Judge referred to the presumption in favour of openness in reporting judicial proceedings referred to in cases such as R v Liddell [1995] 1 NZLR 538 and Proctor v R [1997] 1 NZLR 295 and to the need for quite substantial countervailing grounds to displace the presumption. After discussing the nature of the offence itself, the special position of the appellant as a teacher, her general good character and the implications of the offending for the school and the community, he came to the view that the presumption in favour of open justice had not been displaced.

[10] In my judgment, that was a decision which the Judge was entitled to make on the information made available to him and the argument presented to him. He had an unfettered discretion under s 140 of the Criminal Justice Act and his decision could not be overturned if it was one he was reasonably entitled to reach, even if an appellate court might have decided differently. But there has been evidence placed before me and arguments advanced which were not presented to the Judge.

Grounds of appeal

[11] The appellant’s arguments before me were that the decision did not take into account or failed to give adequate weight to the likelihood that publication of the appellant’s name would lead to:

[a] Identification of the school at which she is principal,

[b] The appellant losing her job as principal, and

[c] Identification of the victim.

[12] All grounds were supported by new evidence introduced by way of an affidavit from the appellant and one from the Chairman of the school’s Board of Trustees. The material is relevant and largely uncontroversial. Although filed at a late stage, it should be taken into account and, responsibly, Ms Gordon did not oppose its introduction.

[13] The appellant’s affidavit contains a great deal more information about her teaching background and her role in the teaching profession and her community. It speaks of the contribution she has made to the school. It makes clear that her name is closely associated with the school and that its publication would significantly diminish the utility of the Judge’s order against publication of information which would lead to identification of the school. In her affidavit the appellant also expresses concern about the effect of name publication on the victim who has now returned to live with the appellant. She attends the school in question. She and the appellant have the same surname.

[14] The affidavit from the Chairman of the Board of Trustees confirms that publication of the appellant’s name will be injurious to the school. He explains how closely the appellant’s name is associated with that of the school. He foresees adverse effects on the school, its pupils and the community it serves. He deposes that the Board’s concern is such that it has come to the view that it would be obliged to ask the appellant to resign if her name were published. He says that it is a decision which has been reached with great reluctance as the appellant’s resignation would be a huge loss for the school and very disruptive for the school community. He says that the appellant brings unique qualities to the school and lauds the contribution she has made in helping bring the school through difficult times. He also refers to the difficulties of recruiting teachers for small rural schools.

Decision

[15] Although I cannot be fully satisfied that the consequences to the school will be as dire as predicted, I consider the additional information provided to this Court firmly tips the balance towards granting name suppression. The effect of publication on innocent parties is a relevant and sometimes a decisive consideration, particularly if the damage to them is out of the ordinary and disproportionate to the case for open justice in the particular case: see Lewis v Wilson & Horton Limited [2000] 3 NZLR 546, [2000] 18 CRNZ 55 at para 42.

[16] There is no doubt that publication of the appellant’s name would lead to the school being identified in the minds of a large section of the public. It was accepted by the Judge that that would be undesirable and injurious. Such an outcome resulted in name suppression in S v R (unreported, AP.23/94, High Court, Timaru, Williamson J), one of the cases referred to me by Mr Eggleston.

[17] I consider also that it is inevitable that publication would add to the pressure on the victim. Of course, as Ms Gordon reminded me, distress and embarrassment to family members is a commonplace consequence of criminal proceedings. But I see the effect on the victim, whose interests it is the business of the criminal justice system to protect, as in an entirely different category. In my view, it is a weighty consideration in favour of name suppression.

[18] The effect on the appellant’s position does not itself carry great weight. That too is frequently the consequence of criminal offending. It is the effect on those innocent parties with whom the appellant is associated, not the effect on her personally, which I see as of critical importance in this appeal.

[19] The District Court Judge saw the appellant’s position as a teacher as a factor favouring publication. He recognised the public interest in what a teacher does. He saw publication as a means of ensuring greater scrutiny of the appellant and as providing an enhanced ability to detect the signs of stress which could lead to repeat offending. Ms Gordon urged me to adopt the Judge’s reasoning and referred me to Gibbs v R (unreported, AP.35/95, High Court, Auckland, 22 March 1995, Blanchard J) which emphasises the undesirability of denying future employers or other interested persons knowledge of relevant personal information.

[20] The weight to be given to this consideration will depend on the nature and gravity of the offending. In this case I do not see it as outweighing the countervailing considerations I have referred to. The offence bears only in a peripheral way on the appellant’s fitness to teach, a view plainly adopted by her current employer. The offending did not and would not have occurred in the school environment. It was the product of unresolved personal issues which appear to have been compounded by the abusive relationship in which the appellant was then living. The way in which the appellant has faced up to her offending and its underlying causes is commendable and gives cause for comfort that it is unlikely to be repeated. Indeed, the matter would not have come to the attention of the police at all if she had not taken responsibility for her actions and accepted that she needed help. Having regard to her personal and professional history, it cannot be said that she poses any significant risk to her pupils.

[21] These considerations persuade me that the public interest - an interest which includes the priority to be accorded to the protection and nurturing of the young in our society - will be best served by an order for interim name suppression. A decision as to a final suppression order will, of course, ultimately be one for the sentencing Judge.

Result

[22] The appeal is allowed. I make an interim order suppressing publication of the name of the appellant or of any particulars likely to lead to her identification.