JOSHUA GALVIN-CAIRNS AND THE KING
[2024] NZHC 3614
•29 November 2024
NOTE: PUBLICATION OF NAMES, ADDRESSES, OCCUPATIONS OR IDENTIFYING PARTICULARS OF COMPLAINANTS PROHIBITED BY S 203 OF THE CRIMINAL PROCEDURE ACT 2011. SEE
IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY
I TE KŌTI MATUA O AOTEAROA TE PAPAIOEA ROHE
CRI-2024-454-39
[2024] NZHC 3614
BETWEEN JOSHUA GALVIN-CAIRNS
Appellant
AND
THE KING
Respondent
Hearing (by VMR): 27 November 2024 Counsel:
K Pedder for the Appellant
B Vanderkolk for the Respondent
Judgment:
29 November 2024
JUDGMENT OF GWYN J
Introduction
[1] Joshua Galvin-Cairns appeals a decision of Judge Northwood in the Palmerston North District Court declining him interim name suppression.1
[2] Mr Galvin-Cairns has pleaded not guilty to criminal harassment2 in respect of the first complainant; indecent assault3 against the second complainant; rape (two
1 New Zealand Police v Galvin-Cairns [2024] NZDC 25874.
2 Harassment Act 1997, s 8(2). The maximum penalty is two years’ imprisonment.
3 Crimes Act 1961, s 135. The maximum penalty is seven years’ imprisonment.
GALVIN-CAIRNS v R [2024] NZHC 3614 [29 November 2024]
counts, one of which is representative)4 against the second complainant; and disabling/stupefying5 against the second complainant.
Factual allegations
First complainant
[3] The Crown alleges the following offending occurred. Mr Galvin-Cairns is entitled to the presumption of innocence. Between 5 June 2020 and 21 September 2022, the appellant was in a relationship with the first complainant. When the complainant ended their relationship, Mr Galvin-Cairns contacted her repeatedly, usually multiple times a day. He asked her to take him back, expressed suicidal ideations and made propositions for sex. He created a false dating profile online and talked to her while pretending to be someone else. Further, although the complainant told Mr Galvin-Cairns not to come to her house without her consent and had him trespassed, he is alleged to have gone to the complainant’s house on multiple occasions. It is alleged that on those occasions, he took photographs, hid in the bushes while the complainant was in the spa pool, and masturbated outside her window. He is also alleged to have gone to the complainant’s son’s school and attempted to enter her car. The harassment continued for almost a year until the complainant moved cities.
Second complainant
[4] The Crown alleges the following offending occurred. Mr Galvin-Cairns is entitled to the presumption of innocence. The appellant worked as a doctor at the Palmerston North Hospital psychiatry ward. In July 2023 the appellant admitted the second complainant into the Palmerston North Hospital psychiatry ward. Whilst the complainant was being treated, the appellant developed a personal relationship with her, although she had initially made clear that she was only entertaining friendship.
[5] On 13 December 2023, after the complainant had been discharged from hospital, the appellant went to her house to watch a movie. He gave her a bottle of
4 Section 128(1)(a). The maximum penalty is 20 years’ imprisonment.
5 Section 197. The maximum penalty is five years’ imprisonment.
wine. The alcohol combined with her medication caused the complainant to fall asleep during the movie. When she woke her shirt had been pulled up, exposing her breasts to the appellant who was masturbating next to her. For this allegation the appellant faces a charge of indecent assault.
[6] Subsequently the friendship between the appellant and the complainant developed and she moved into a room in the appellant’s house. Knowing the complainant’s medical history of alcohol addiction and prescription of Clonazepam (which the appellant knew should not be combined with alcohol), the appellant would bring the complainant alcohol which she would consume to the point of unconsciousness. The appellant is alleged to have raped the second complainant when she was unconscious. The charge of stupefying arises from one such incident in December 2023 when the complainant woke from unconsciousness, found the appellant raping her, and told him she did not want to have sex, but he continued, telling her to go back to sleep.
The decision under appeal
[7] Judge Northwood declined Mr Galvin-Cairns’ application for interim suppression on 24 October 2024. His reasons followed in a judgment of 1 November 2024.
[8] The Judge concluded that publication of Mr Galvin-Cairns’ name would not be likely to cause him extreme hardship. The Judge observed that any effect on Mr Galvin-Cairns’ future employment prospects is a natural and likely consequence of criminal prosecution, particularly for serious allegations. The Judge noted that Mr Galvin-Cairns’ current employer is likely already aware of the alleged offending given he has been in custody since 23 September 2024. The Judge considered there is no evidence of extreme hardship Mr Galvin-Cairns would be likely to face as a result of publication and there is a clear evidential connection between the sexual allegations and his workplace.
Relevant law
[9] Courts may suppress the identity of a defendant under s 200 of the Criminal Procedure Act 2011 (CPA). The starting point for a s 200 analysis is the principle of open justice.6 Courts have consistently emphasised a presumption in favour of openness in reporting.7 Publication is the norm. Suppression orders are only to be made in restricted circumstances and the threshold is high.8
[10] Section 200 contemplates a two-stage test.9 The first stage is a threshold determination. The Court may only order name suppression if it is satisfied that one of the consequences listed in s 200(2) would be “likely” to follow if no order were made.10 This first stage is met if the Court is satisfied there is a real or appreciable risk that the consequence will follow from publication.11 It is not necessary to establish that the risk of harm is more likely than not to occur.12
[11] One of the s 200 grounds for an order for suppression is if the court “is satisfied that publication would be likely to cause extreme hardship to the person charged with
… the offence”.13 The Court of Appeal has explained “extreme” and “undue” hardship
under s 200(2)(a) and (b) in the following terms:14
[30] This Court in Robertson v Police observed in the context of extreme hardship:
[49] An assessment of whether the contended hardship is “extreme” cannot take place in a vacuum. It is self-evidently contextual and in our view must entail a relative comparison between the contended hardship and the consequences normally associated with a defendant’s name being published. It must be something beyond the ordinary associated consequences. …
6 Erceg v Erceg [2016] NZSC 135, [2017] 1 NZLR 310 at [2].
7 R v Liddell [1995] 1 NZLR 538 (CA) at 546. See also Proctor v R [1997] 1 NZLR 295 (CA);
Robertson v Police [2015] NZCA 7; and Re Victim X [2003] 3 NZLR 220 (CA).
8 Robertson v Police, above n 7, at [44].
9 Fagan v Serious Fraud Office [2013] NZCA 367 at [9]; and Robertson v Police, above n 7, at [39]–[41].
10 Fagan v Serious Fraud Office, above n 9; and NN v Police [2015] NZHC 589 at [21].
11 Beacon Media Group Ltd v Waititi [2014] NZHC 281 at [17]; Huang v Serious Fraud Office [2017] NZCA 187 at [10]; Peglar v Police [2014] NZHC 1184 at [23]; JM v R [2015] NZHC 426 at [33]–[36]; and Young v R [2015] NZHC 426 at [33]–[36].
12 Beacon Media Group Ltd v Waititi, above n 11, at [17].
13 Section 200(2)(a).14 Samson v R [2018] NZCA 49 (footnotes omitted).
[31] The same necessity for a relative comparison applies in relation to the lower test of undue hardship. The assessment of undue hardship in this case is contextual and involves a comparison between the hardship contended for on behalf of Vodafone, and those normal hardship consequences that will follow publication of Mr Sansom’s name.
[32] Any publication of a defendant’s name in connection with a serious charge will cause a measure of hardship to a defendant and those connected to that defendant. Publication will generally excite curiosity and criticism (or support), and will cause embarrassment. Relationships will be affected, and in the commercial world where the allegation is commercial misconduct, commercial relationships and transactions arising from them inevitably will be affected. This sort of hardship is not undue hardship. Undue hardship must involve hardship that is greater than that which will inevitably follow publication. As this Court also stated in Robertson v Police:
The word “hardship” on its own means “severe suffering or privation”. The addition of the qualifier “undue” in s 200(2)(c) indicates that something more than hardship simple is required, while the word “extreme” in s 200(2)(d) indicates something more again.
[12] If one of the threshold grounds under s 200(2) is met, the Court must then determine whether to exercise its discretion to suppress the defendant’s name.15 At this point, the Court 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 victim(s) and the public interest in knowing the character of the offender.16 In exercising its discretion, the Court must weigh the competing interests of the applicants and the public interest in open justice. An acquittal can give rise to a legitimate public interest.17 There is a high threshold to be reached before suppression is justified,18 and the balance must “come down clearly in favour of suppression”.19
15 Beacon Media Group Ltd v Waititi, above n 11, at [9]; and Robertson v Police, above n 7, at [39] and [41].
16 Robertson v Police, above n 7, at [41], citing Lewis v Wilson & Horton Ltd [2000] 3 NZLR 546 (CA) at [42].
17 M (CA762/12) v R [2013] NZCA 113 at [23].
18 Robertson v Police, above n 7, at [41]–[44].
19 Lewis v Wilson & Horton Ltd, above n 16, at [43], followed in D (CA443/2015) v Police [2015] NZCA 541, (2015) 27 CRNZ 614 at [12].
Submissions
For the appellant
[13] Mr Pedder, for the appellant, submits that Mr Galvin-Cairns should be granted interim name suppression under s 200(2)(a) of the CPA, at least until the investigation referred to below is completed.
[14] The appellant is currently subject to an investigation by the Professional Conduct Committee of the Medical Council. He argues that the District Court’s decision presupposes an adverse outcome resulting from that investigation and continued employment with his current employer. The appellant submits the real risk of extreme hardship should be assessed beyond his current employment and have regard to his future prospects.
[15] Beyond the outcome of the Professional Conduct Committee investigation, the appellant notes that his profession as a psychiatrist requires a high degree of trust from patients. For that reason, publication of his name will have the real risk of his ability to obtain employment in both a commercial context and from potential patients, which the appellant submits constitutes extreme hardship.
[16] In terms of the discretionary assessment, the appellant submits that publication of his name may have the unintended consequence of prejudicing the Professional Conduct Committee investigation if the Police charges come to light within the community. The appellant submits that the serious and sensitive nature of the allegations and ongoing investigations weigh in favour of interim name suppression until the next hearing date (20 December 2024) or until trial.
For the Crown
[17] Mr Vanderkolk, for the Crown, submits the appeal should be dismissed because there is insufficient evidence that Mr Galvin-Cairns would be likely to experience extreme hardship as a result of his name being published.
[18] The Crown refers to another case involving a medical professional, R v New Zealand Police20 where the High Court declined to grant name suppression to a doctor who was convicted of two charges of doing an indecent act with intend to offend after masturbating in front of a female jogger. Justice Palmer concluded that the offending demonstrated sexual entitlement towards the women involved and lack of self-control, which are “troubling characteristics in a medical practitioner”.21 The Judge said that extreme hardship does not depend on the professional group that the offender belongs to and for a doctor, loss of career options is a normal consequence of offending of that nature. The Crown that the consequences Mr Galvin-Cairns identifies are also the ordinary associated consequences of the alleged offending, and this Court should dismiss the appeal.
[19] The Crown also refers to Barnes v New Zealand Police22 where Mr Barnes was charged with intentionally making an intimate visual recording after fixing a video camera in gym changing rooms. The Court of Appeal held that it was in the public interest to know that Mr Barnes, as a high-ranking public servant, had committed that offending. The Court held that the consequences of job loss and job prospects loss flowed from the offending itself, not the publication of Mr Barnes’ name, and therefore his circumstances did not establish extreme hardship.
[20] For those reasons, the Crown submits the extreme hardship threshold is not met. Even if the threshold test were satisfied, the Crown submits the Court should exercise its discretion in favour of publication. Although this is a pre-trial application and, in such cases, courts are more cautious to decline suppression, the Crown submits that the public interest outweighs the appellant’s interests in these circumstances.
[21] The Crown submits that, as with Judge Northwood’s observation that there is an evidential link between the offending and Palmerston North Hospital, Palmer J’s observation in R v New Zealand Police is relevant here:23
20 R v New Zealand Police [2019] NZHC 2901.
21 At [46].
22 Barnes v New Zealand Police [2021] NZCA 16.
23 R v New Zealand Police, above n 20, at [3].
… the public interest includes the public’s right to make an informed decision about their choice of medical practitioner, knowing the character of those they entrust with their personal health and wellbeing.
[22] The Crown suggests that it is possible other complainants will come forward if publication is allowed, although the Crown is not aware of the extent of Police enquiries in that regard, and counsel does not suggest that in itself is a reason in favour of publication.
[23] The Crown advises that the complainants do not want the appellant to have name suppression. Their views can be taken into account under s 200(6) of the CPA. These factors weigh against suppression.
Analysis
Extreme hardship
[24] I am not satisfied that there is sufficient evidence of extreme hardship likely to result from publication of the appellant’s name. The professional investigation he is currently subject to will not be affected by publication given the investigators will already know his name. Similarly, as the District Court Judge noted, the appellant’s current employer must already be aware of the situation given his imprisonment. Any reporting of the charges Mr Galvin-Cairns faces must be expected to be accurate, and reported as charges only.
[25] The key issue is whether, as the appellant submits, publication of his name would be likely to have a negative effect on his future employment prospects, thus causing extreme hardship.
[26] Even if there had been evidence to support that submission, more than feared loss of employment, or future employment, is required to meet the threshold.24 And the principal difficulty for the appellant is that there is simply no evidence before the Court as to the submitted impact of publication. I accept from counsel that there was no real opportunity for the appellant to put such evidence before the District Court
24 See, for example, Stephens v R [2021] NZHC 1902 at [26]; and Blackwood v R [2017] NZHC 1262 at [10]–[12].
because the Judge made the substantive decision on suppression at the time of application. However, there were no such impediments in relation to the appeal.
[27] Without such evidence, I am left to conclude that the potential consequences likely to result from publication are the usual consequences that attend facing trial for serious sexual offending.
[28] Although the District Court Judge’s judgment was brief, I am not satisfied that the Judge was in error in concluding that publication of the appellant’s name would not result in extreme hardship.
Discretionary assessment
[29] If I had not reached that conclusion, I would have been required to consider whether suppression should have been denied. The factors to be weighed in this assessment are set out at [12] above.
[30] I am conscious that Mr Galvin-Cairns is still to face trial, having pleaded not guilty, unlike the two cases cited by the Crown (R v New Zealand Police and Barnes v New Zealand Police). But that in itself is not sufficient to justify suppression. For example, in Chawdry v New Zealand Police,25 the appellant was a doctor charged with sexual offending against men during medical consults. Justice Nation declined pre- trial suppression. Unlike in this case, there was evidence to support the application — from another doctor about the medical impact of stress on the appellant and his wife, and also his mother. That, together with arguments about the appellant’s commercial interests in a dentistry business, were insufficient to establish extreme hardship, even on an interim basis.
[31] The alleged offending is serious. The appellant is in a position of public trust, treating inherently vulnerable patients. The second set of charges relate to a serious abuse of that trust. There is a clear public interest in his identity being known (particularly for former patients).
25 Chawdry v New Zealand Police [2016] NZHC 2733.
[32] Both complainants do not want the appellant to have name suppression, even if there is a possibility that publication will lead to their own identification.
[33] Having regard to all of those factors, I would have refused continued suppression in the exercise of the discretion.
Outcome
[34]I dismiss the appeal.
Gwyn J
Solicitors:
Crown Solicitor, Palmerston North
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