Jensen v The Queen

[2020] NZHC 3237

NAME SUPPRESSION OF APPELLANT LIFTED FROM 10.00 AM ON MONDAY, 14 DECEMBER 2020 (SEE PARA [30]).

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

I TE KŌTI MATUA O AOTEAROA AHURIRI ROHE

CRI-2020-441-21

[2020] NZHC 3237

BETWEEN

PHILIP JAMES JENSEN

Appellant

AND

THE QUEEN

Respondent

Hearing:	24 November 2020
Counsel:	C J Tennet for appellant S J Revell for respondent
Judgment:	8 December 2020

RESERVED JUDGMENT OF DOBSON J

Introduction

[1]                 The appellant is in practice as a barrister at the criminal bar. He faced and has successfully defended charges of possession and supply of a class A controlled drug, namely methamphetamine, obtaining commercial sexual services from a person under 18 years of age and wilfully attempting to pervert the course of justice.

[2]                 The appellant had been granted interim name suppression from the outset of matters to preserve his fair trial rights. That order lapsed at the conclusion of the trials and he then sought an order for permanent suppression of his name. That application

JENSEN v R [2020] NZHC 3237 [8 December 2020]

was declined by Judge Butler on 25 August 2020 and this judgment deals with his appeal from that decision.1

[3]                 Judge Butler was mindful that in Judge Tompkins’ July 2018 consideration of the application for interim name suppression, the Judge had concluded that publication of the appellant’s name would not be likely to cause him extreme hardship and that there was a lack of firm evidential foundation for a claim that publication of the appellant’s name would cause extreme hardship to persons connected with him, including his mother.2

District Court decision

[4]                 The application for permanent name suppression was advanced before Judge Butler primarily on the basis that extreme hardship would be caused to his mother by publication, and, reflecting that, the order sought was for one that would continue to apply until 14 days after her death.

[5]                 The judgment focuses on the first of the two stage analysis required under s 200 of the Criminal Procedure Act 2011 (the Act), namely whether extreme hardship to a defendant or someone associated with them would be likely to result from the defendant’s name being published.

[6]                 The primary evidence of hardship caused to the appellant’s mother was in an affidavit from a registered psychologist, Hans Laven. Initially, Mr Laven had spoken to the appellant’s mother for some 10 minutes when they first met in July 2018. After that short assessment, the psychologist concluded that he could not say she was likely to suffer extreme hardship if her son’s name was published. Without seeing her again, and in reliance on advice from the appellant that his mother had suffered a medical event in 2019 which required intensive care treatment, the psychologist concluded that publication of the appellant’s name would be likely to cause his mother extreme hardship.

1      R v J [2020] NZDC 17090.

2      R v J [2018] NZDC 17014 at [32]–[34].

[7]                 Judge Butler noted that the psychologist’s revised opinion was not based on any consultation with the appellant’s mother nor on receipt of any specialist medical advice. His revised opinion had been stated prior to the appellant’s acquittal on all charges so had not been able to take account of the effect of that outcome on the mother’s learning of the charges once they had been successfully defended.

[8]                 Accordingly, the Judge’s conclusion was that the appellant had not established that publication of his name would cause extreme hardship to his mother and the application for permanent name suppression was declined.

Preliminary issues on appeal

[9]                 To address the limitations in the psychologist’s evidence commented on by Judge Butler, Mr Tennet had Mr Laven swear a further affidavit on 9 November 2020, which attached an updated report of 19 October 2020 following a further 30 minute interview with the appellant’s mother. His updated report included sections on matters for which he was clearly not qualified as an expert, such as the effect of acquittal on the nature of reporting of the existence of charges. The report also included sections on the impact on the appellant himself and two of his children. In respect of the appellant’s mother, Mr Laven opined that her increasing vulnerability led to a reasonable expectation that she would suffer unusually severely if she came to know about the allegations against, and prosecution of, her son, and was exposed to comments and reactions from fellow residents of the rest home in which she lives. The consequences of the stress caused by such disclosure were reasonably predicted to be extreme and included a significant risk of serious illness and hastened death.

[10]               In addition to seeking leave to adduce this new affidavit from Mr Laven,   Mr Tennet sought leave to adduce two additional affidavits, the first of which was completed by the appellant in support of his application for costs in respect of the defence of the charges brought against him. That affidavit detailed the costs he had incurred and his views on what he considered to be a malicious prosecution. That affidavit did not address matters going to extreme hardship being caused to the appellant or others close to him as a result of publication of his name.

[11]             The second affidavit was completed on 11 November 2020 by Brian Hunter, an acquaintance of the appellant. He set out complimentary observations about the manner in which the appellant has conducted his practice and purported to opine from personal experience on the tendency of Police in Hawke’s Bay to tell untruths and pro-Police bias he believed to exist within the media in Hawke’s Bay. These matters were expressed in robust terms.

[12]             The respondent opposed the admission of all the new affidavits on the conventional grounds that they were neither fresh nor cogent.

[13]             After numerous exchanges with Mr Tennet at the outset of his submissions, he agreed not to pursue  the  application  for  the  admission  of  the  appellant’s  and  Mr Hunter’s affidavits, but did persist with the application in respect of Mr Laven.

[14]             I indicated to Mr Tennet that he should address the content of that affidavit to the extent he considered it relevant to his submissions, and I would consider all the matters he raised on a de bene esse basis, reserving the extent to which I would be prepared to admit the Laven affidavit. To the extent that the new Laven affidavit reflects his opinion on the potential impact on the appellant’s mother’s mental health, I have found it sufficiently fresh (relying on a more recent interview) and cogent. I have accordingly had regard to the opinions on that matter in it.

[15] The second preliminary issue related to the appellant’s outstanding application for an order for costs in his favour under the Costs in Criminal Cases Act 1967. Mr Tennet indicated that the application was being vigorously pursued on the basis that the prosecutions had been brought in bad faith and arguably on misconceived grounds. Mr Tennet argued that if the application succeeded, vindication in that context would be relevant to the appellant’s entitlement to permanent suppression of his name.

[16]             If this point had compelling merit, it was in effect an application for adjournment of the present appeal on an open-ended basis. In the meantime, the appellant is able to maintain interim name suppression. The application for costs has

not been timetabled and Mr Tennet could not be more precise than suggesting a fixture will likely occur “sometime next year”.

[17]             After testing the possible additional arguments that might be raised following a successful application for costs, I was not persuaded that an open-ended adjournment of the present appeal was warranted. I took Mr Tennet to eventually accept that any entitlement to costs for the appellant could not have any bearing on the threshold issue he is required to make out, namely the existence of extreme hardship. If the onus on that threshold issue is made out, then there might arguably be some incremental weight to be given to criticisms of the prosecution in the terms of a favourable judgment on costs for the appellant, but it seemed unlikely to be decisive. Certainly, it was insufficient to allow an extended adjournment of the appeal on the issue of whether the Judge was wrong to find the first stage threshold inquiry had not been made out. It would amount to indefinite extension of name suppression presently in place only because this appeal remains unresolved.

[18]I accordingly proceeded to hear the merits of the appeal.

The grounds of the appeal

[19]             The primary ground for seeking permanent name suppression is that publication of the appellant’s name would be likely to cause extreme hardship to his mother. Mr Tennet submitted that the evidence before the District Court was entitled to more weight than it was given. In his written submissions, he contended it was a breach of natural justice for the Judge to form the view that the evidence was inadequate without affording the appellant an opportunity to supplement the evidence of hardship in respect of his mother. Mr Tennet did not advance that point in his oral argument and it is misconceived.

[20]             He did advance  the  appeal  on  the  basis  that  relevant  new  material  in  Mr Laven’s 9 November 2020 affidavit now justified a finding that extreme hardship for the appellant’s mother was made out, justifying the narrowed application for permanent name suppression until 14 days after her death.

[21]             Approaching the totality of the opinions of Mr Laven as Judge Butler did, I agree with him that even on the more definitive opinions most recently expressed, the likelihood of extreme hardship to her arising from publication of her son’s name is not made out. She is an 89 year old resident in a rest home, in frail physical health but ostensibly with normal mental health for a woman of her age. It can reasonably be assumed that, once the appellant is aware that publication will follow, he will have the opportunity to describe to his mother the circumstances in which he was charged, including the fact of his acquittals and his apparent confidence that he would be further vindicated by an award of costs in his favour.

[22]             The mother’s circle of acquaintances appears to be primarily confined to other residents of the rest home where she is living. Without generalising about the level of their generosity of spirit, it is reasonable to assume that those who learn of it and understand the circumstances as the appellant is entitled to explain them will not alter their relationship with his mother in an adverse way.

[23]             If his mother appreciates the aspects of the matter that the appellant will no doubt emphasise and maintains her support for her son, then the level of hardship likely to result does not reach the threshold for extreme hardship.

[24]             Further, with respect to Mr Laven, his assessment of the consequences is provided from an understandably sympathetic perspective, knowing the test the appellant is required to meet to obtain name suppression.

[25]             There is no evidence that the appellant’s mother is exposed to or participates in any form of social media. Mr Tennet submitted that the level of interest in the proceeding and the nature of the appellant’s occupation made the case a prime target for malicious social media commentary, including irresponsibly misconstrued references to what has occurred. In this regard, he invited analogy with the Court of Appeal’s reasoning in the recent decision in X (CA226/2020) v R.3 In that appeal, which related to a prosecution that had attracted very substantial publicity arising out of assaults at a Labour Party youth camp in 2018, the Court had regard to the capacity for extreme hardship to be caused to the defendant by vitriolic social media posts.

3      X (CA226/2020) v R [2020] NZCA 387.

[26]             To the extent that the appeal was advanced on the basis of undue hardship claimed by the appellant himself, the circumstances are readily distinguishable from those in X. There is no evidence of malicious social media posts either misrepresenting the circumstances of the charges or suggesting any connection with the appellant. There is no foundation, as there was in X, for a concern that this appellant would be targeted in social media to an extent causing extreme hardship to him. I do accept  Mr Tennet’s point that the same level of responsibility that can reasonably be expected of the established media cannot be expected of social media outlets, but the prospect of commentary about the case in distorted terms is only speculative in this case.

[27]             I also accept Mr Tennet’s point that it is worth recording the expectation of the Court that established media will only report the matter, to the extent they do, in balanced terms which necessarily includes unambiguous references to the fact of acquittals.

[28]             I am accordingly not persuaded that the Judge erred in finding that the threshold of extreme hardship had not been made out. Indeed, I agree with that finding.

[29]             It is therefore unnecessary to go on and consider the second stage of the inquiry under s 200, that being the aspect to which the outcome of the appellant’s application for costs might possibly have had some bearing.

[30]             The appeal is accordingly dismissed. Given the contemplation that the appellant will explain the circumstances of the charges to his mother (and potentially other family members) before there is any publicity, I direct that name suppression is to be lifted from 10.00 am next Monday, 14 December 2020.

Dobson J

Solicitors/Counsel:

C J Tennet, Petone for appellant Crown Solicitor, Napier