Hayward v The King

[2024] NZHC 3077

NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 203 OF THE CRIMINAL PROCEDURE ACT 2011. SEE

align="center">NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS OF ANY COMPLAINANT/ PERSON UNDER THE AGE OF 18 YEARS WHO APPEARED AS A WITNESS [OR NAMED WITNESS UNDER 18 YEARS OF AGE] PROHIBITED BY S 204 OF THE CRIMINAL PROCEDURE ACT 2011. SEE

align="center">SUPPRESSION ORDERS EXIST IN RELATION TO ASPECTS OF THIS JUDGMENT PURSUANT TO S 205 CRIMINAL PROCEDURE ACT 2011: SEE PARAGRAPH [23].

align="center">ORDER FOR INTERIM NAME SUPPRESSION OF THE APPELLANT AS SET OUT AT PARAGRAPH [25] OF THIS JUDGMENT.

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2024-404-532 [2024] NZHC 3077

BETWEEN  JAMIE MATHEW HAYWARD

Appellant

AND  THE KING

Respondent

Hearing:                   14 October 2024 Appearances:   V I Tava for Appellant

S Wakefield for Respondent

Judgment:                22 October 2024

JUDGMENT OF O’GORMAN J

[Appeal against refusal to grant name suppression]

This judgment was delivered by me on 22 October 2024 at 2.30 pm

Registrar/Deputy Registrar

…………………………………

HAYWARD v R [2024] NZHC 3077 [22 October 2024]

Introduction

[1]    On 9 July 2024, Mr Hayward was sentenced to seven years and two months’ imprisonment on three charges of sexual violation by unlawful sexual connection and 12 charges of doing an indecent act on a child under the age of 12. At the sentencing hearing, a last minute oral application was made for suppression of the appellant’s name on account of the impact of publication on a young relative, A. The Court granted an order for interim suppression to enable a formal application and supporting evidence to be filed and the application heard on an opposed basis. That hearing took place on 20 September 2024, with Judge M-E Sharp issuing her ruling declining the application on the same day but extending interim suppression until determination of an intended appeal.1

[2]    This decision determines Mr Hayward’s appeal against the Judge’s refusal to grant him permanent name suppression pursuant to s 200 of the Criminal Procedure Act 2011 (CPA).

Legal principles

Applications for name suppression

[3]    A two-stage analysis applies in respect of applications under s 200(2) of the CPA:2

[40]      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.

[41]      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.

1      R v Hayward [2024] NZDC 23011.

2      Robertson v New Zealand Police [2015] NZCA 7 (footnote omitted), approved by the Supreme Court in M (SC13/2023) v R [2024] NZSC 29, [2024] 1 NZLR 83 at [35]–[39].

[4]    The starting point in any assessment remains the principle of open justice.3 However, this is most relevant at the second stage of the Court’s analysis if the threshold requirement is met.4 Suppression orders are only to be made in limited circumstances and the threshold is high.5

[5]    At the first stage, the Court must consider whether it is satisfied publication would be “likely” to lead to any one of the outcomes listed in s 200(2).6 “Likely” in this context means a “real risk that cannot readily be discounted”7 or an “appreciable risk” that one of the consequences set out in s 200(2) will occur.8

[6]    The concept of “extreme” hardship denotes something beyond the consequences normally associated with a defendant’s name being published:9

[11]  Under the thresholds in paragraphs 200(2)(a), (c) and (d) the Court must decide whether publication will cause “extreme” or “undue” hardship, or a “real risk” of prejudice. The adjectives indicate that these are comparative standards. They require that the Court compare the consequences of publication in the instant case with those that normally attend prosecution. Distress, embarrassment and adverse personal and financial consequences usually attend criminal proceedings, and something out of the ordinary is needed if the applicant is to get across the threshold. This is an important principle. Its workings are well-illustrated by the facts of Liddell, in which the offender’s wife was said to be “only just making it” after learning of his serial offending against children, but the Court reasoned that his family’s  anguish was not an exceptional consequence of his crimes.

[7]    At the second stage, the Court must weigh the competing interests of the applicant and the public, taking into account matters such 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 offence.10 This discretion should be exercised sparingly, with caution in cases involving serious offences, and with due regard to the presumption in favour of publication, open justice and free speech.

3      At [43]; and M (SC13/2023) v R, above n 2, at [44].

4      At [46]; and M (SC13/2023) v R, above n 2, at [39].

5      R v Kempson [2019] NZHC 166 at [19].

6 At [20].

7      Becon Media Group Ltd v Waititi [2014] NZHC 281 at [17].

8      Huang v Serious Fraud Office [2017] NZCA 187 at [9]–[10].

9      D (CA443/2015) v Police [2015] NZCA 541, (2015) 27 CRNZ 614 at [11] (footnotes omitted and emphasis added).

10 At [12].

Appeals against suppression decisions

[8]    There is a right of first appeal against a decision refusing to make a name suppression order.11

[9]    The appeal requires a two-stage analysis of the decision. The first stage — whether the prerequisite threshold prescribed in s 200(2) is reached — is an evaluative exercise and is to be assessed according to the approach set out in Austin, Nichols & Co Inc v Stitching Lodestar.12

[10]   To date, the second stage has been described as involving the exercise of discretion, but the Supreme Court has recently raised the question of whether the second stage is also evaluative.13 If discretionary, an appeal will only be allowed where the appellant is able to demonstrate either an error of law or principle; that the court failed to take into account a relevant matter or took into account an irrelevant matter; or that the decision is plainly wrong.14

Decision on appeal

[11]   The application before the District Court was advanced under s 200(2)(a) of the CPA, on the basis that publication of the appellant’s name would be likely to cause extreme hardship to A.

[12]   The likely impact was addressed by an affidavit of Ms Page. That affidavit updated the Court that A was doing well at school and increasingly feeling safe and settled. Ms Page expressed concern that publication of the appellant’s name would inevitably connect A to the appellant’s offending, thereby having a severe adverse impact in all areas of her life, at school, in her relationships with her peers, and within her community. The specific nature of the anticipated hardship was not specified, but implicitly includes the potential impact of social media comments and distress and embarrassment from association with the appellant’s conduct.

11     Criminal Procedure Act 2011, s 283.

12     Austin, Nichols & Co Inc v Stitching Lodestar [2007] NZSC 103, [2008] 2 NZLR 141.

13     M (SC13/2023) v R, above n 2, at [47].

14     At [46], applying May v May (1982) 1 NZFLR 165 (CA) at 170.

[13]   Judge Sharp declined the application on the basis that neither of the two stages of the test were met:

(a)The threshold requirement was not met. The Judge accepted that publication may cause a link between Mr Hayward and A, which in turn may cause some degree of social ostracism, humiliation or shame.15 However, the Judge was not satisfied that this was either “likely to occur” or, more importantly, that such effects would constitute extreme hardship in terms of s 200(2)(a). Rather, those matters were the ordinary and predictable consequences of an open justice system. This did not satisfy the required level of vulnerability beyond mere youth, such as a diagnosed mental health condition or disorder.16

(b)Even if the first stage threshold test had been met, suppression should not be ordered as a matter of discretion because of the seriousness of the offending, the public interest in knowing the offender’s character and identity, the public’s right to freedom of expression, and the fundamental purpose of specific and general deterrence.

[14]   However, the Judge did make an order under s 205 of the CPA suppressing the nature of the relationship between the appellant and A to at least moderate any potential adverse outcome from application.17

Submissions on appeal

[15]   The appellant submits that the Judge made an error in the conclusions that she reached on both stages of the test. In particular, the appellant submits that the Judge failed to adequately consider the effect on A of declining to grant the application, contrary to the automatic protection of her under s 204(1)(b) of the CPA as a witness who was under the age of 18 years.

15     R v Hayward, above n 1, at [40].

16     At [34]–[39] and [41]. See also R v M [2024] NZHC 636 at [23], referencing R v P [2023] NZHC 842.

17 At [45].

[16]   In terms of the threshold issue in the first stage, the appellant says the consequences are likely to be humiliation, shame and social ostracism at a particularly sensitive age (when a young person’s social and personal identity is being constructed). These consequences will be long term given the ease of internet searches.

[17]   In terms of the second stage assessment, the appellant submitted that the potential for extreme hardship outweighs the public interest in this case, relying on the following:

(a)B (CA860/2010) v R,18 in which the Court of Appeal granted suppression of the appellant’s name because of the incalculable hurt, acute embarrassment and distress that publication would plainly cause to children who shared an unusual surname that was well known in the rural district in which the affected family members lived; and

(b)Q v New Zealand Customs,19 where the adverse impacts to the defendant’s wife and elder daughter outweighed the public interest in publication of his name and respective convictions for distributing child pornography and possession of similar images.

[18]   The appellant says that any public interest in discovering further offending, limiting opportunities for reoffending and personal deterrence will be achieved by his mandatory registration on the Child Sex Offender Register, so more general publication is not required to achieve those objectives.

[19]   The respondent submits that the Judge was correct in her findings on both stages of the test:

(a)The cases establish that a very high level of hardship is required to meet the “extreme hardship” test. Distress and embarrassment, even to young persons, does not meet that threshold. There needs to be a level

18     B (CA860/2010) v R [2011] NZCA 331.

19     Q v New Zealand Customs [2014] NZHC 2398.

of vulnerability beyond mere youth. Even community ostracism does not meet that threshold.20 Unlike the two cases relied on by the appellant, there is no evidence of direct consequences to mental health or physical wellbeing. However, the Crown does accept that the first stage threshold is met under s 200(2)(f) of the CPA on the grounds that A was a defence witness at trial and is entitled to automatic suppression unless the Court orders otherwise. This argument was not advanced before the District Court.

(b)The District Court was correct in its second stage assessment, taking into account the following factors:

(i)Mr Hayward has been convicted and sentenced. The presumption of innocence no longer applies, nor is there any risk to prejudicing Mr Hayward’s right to a fair trial. As such, displacing the presumption of openness will be more onerous than when interim name suppression is sought pre-trial.21

(ii)The offending was serious and involved repetitive sexual abuse of a child. This was acknowledged by the Judge at sentencing, placing the offending at the higher end of band two as described in R v AM (CA27/2009).22

(iii)There is a high public interest in publication, as one of the fundamental purposes of sentencing is to deter others from committing the same or similar offences.

(iv)The victim and her guardian are both strongly opposed to permanent name suppression. The Court must take a victim’s views into account when considering an application for permanent name suppression (pursuant to s 200(6) of the CPA).

20     Edirisooriya v R [2022] NZCA 135 at [82]–[86]; and SSB v R [2017] NZHC 2590 at [21].

21     Fagan v Serious Fraud Office [2013] NZCA 367; and M (CA762/2012) v R [2013] NZCA 113 at [23].

22     R v AM (CA27/2009) [2010] NZCA 114, [2010] 2 NZLR 750 at [98].

(c)The above discretionary factors are also relevant and favour publication in the present circumstances, notwithstanding the automatic suppression of A pursuant to s 204:

(i)The starting point is that nothing in s 204(1) prevents publication of the name of the defendant or the nature of the charge.23

(ii)Ultimately, the weighting to be given to all relevant factors in s 200(2) and the principle of open justice will hinge on the circumstances of the particular case.24

(iii)In undertaking that task, the Court must weigh three sets of competing interests: the defendant’s interest in avoiding publication; the broader public interest in open reporting; and the interests of the connected person or third party whose name suppression may be rendered ineffective by publication of the defendant’s identity.25

(iv)In terms of the third competing interest of the connected person, it is relevant to note that the presumption of suppression arises from A’s role as a defence witness rather than as a victim of the offending, so the policy objectives for protecting victims are not in play. In addition, it is harder in a factual sense to establish that name suppression should be granted at the second stage if the extreme harm threshold is not met, even if automatic suppression applies.26

23     Criminal Procedure Act, s 204(3).

24     Solicitor-General v Antolik [2016] NZHC 2643 at [60]; and A (CA605/2016) v R [2017] NZCA 49 at [19].

25     R v H [2021] NZHC 2793 at [13].

26     M (SC13/2023) v R, above n 2, at [106].

Analysis

[20]   I find that the Judge did not make any error in assessing the first and second stage issues of the suppression application as argued before her:

(a)The Judge correctly summarised the nature of the threshold required to establish “extreme hardship” for the purposes of s 200(2)(a) of the CPA. This is further supported by the cases referenced above.

(b)There was no submission made before the District  Court  under  subss 200(2)(f) and 204(1)(b). It is that separate ground raised on appeal that satisfies the threshold requirement and requires a more detailed analysis of the second stage of weighing competing interests. The significant question on appeal is whether the fact of automatic suppression under s 204(1)(b) changes the second stage assessment.

[21]   I accept the Crown’s submissions that the interests underlying the automatic suppression intended to protect a child witness do not override the broader public interest in open reporting in this case:

(a)The starting point in s 204(3) is that nothing in s 204(1) prevents the publication of the name of the defendant or the nature of the charge.

(b)The appellant has already been convicted and sentenced so the presumption of innocence no longer applies, nor is there any risk to prejudicing the right to a fair trial.

(c)The offending was serious and involved repetitive sexual abuse of a child. There is a high public interest in publication, both as a general and specific deterrence.

(d)The victim and her guardian both strongly oppose permanent name suppression.

(e)While it is unfortunate that A may suffer some degree of social ostracism, humiliation or shame, these are an unwelcome but common consequence of criminal proceedings. Such consequences do not meet the high threshold requirements of “extreme hardship”, absent special vulnerabilities such as diagnosed mental health conditions or disorders. As the Supreme Court has recognised, it will be harder in a factual sense to establish that a name suppression order should be made at the second stage where the order concerns a connected person if the extreme hardship threshold is not met.27

(f)The issues arising for A result from her family relationship rather than any evidence given as a witness, so the policy underlying that automatic protection is not engaged at a level that would override the presumptions in favour of publication, open justice and free speech, particularly when no “extreme hardship” has been substantiated.

(g)The suppression that exists in relation to A pursuant to ss 204 and 205 of the CPA can be expected to be respected by the media.28

(h)The function achieved by the Child Sex Offender Register is narrower. It is aimed at providing government agencies and the police with information to monitor child sex offenders in the community and more rapidly resolve cases of child sexual offending.29 That, on its own, does not satisfy wider concerns of open justice, free speech, deterrence, and the public interest in knowing the offender’s character.

[22]   Accordingly, I am not satisfied that it is appropriate to grant permanent name suppression.

27 At [106].

28 At [108].

29     Child Protection (Child Sex Offender Government Agency Registration) Act 2016, s 3.

[23]   For the avoidance of doubt, the order made by the District Court Judge under s 205 of the CPA suppressing the nature of the relationship between the appellant and A endures. That order was made to at least moderate any potential adverse outcomes of publication.30

Result

[24]I dismiss the appeal.

[25]   Pending a decision about whether leave to appeal is sought under s 289 and an application made under s 292 of the CPA, I make an order for interim name suppression to continue for the next 20 working days. The interim order will lapse at the end of that period, unless expressly extended by the Court in that context.

O’Gorman J

Solicitors/Counsel:

Shannon Withers, Barrister, Auckland Meredith Connell, Auckland

30     R v Hayward, above n 1, at [45].