Keating v Police - [2018] NZHC 942

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KOTI MATUA O AOTEAROA TAMAKI MAKAURAU ROHE

CRI-2018-404-116

[2018] NZHC 942

BETWEEN
ALFRED HAROLD KEATING

Appellant

AND

THE NEW ZEALAND POLICE

Respondent

Hearing: 1 May 2018

Appearances:

G J Newell for the Appellant

B D Tantrum and S T Teppett for the Respondent

Judgment:

4 May 2018

ORAL JUDGMENT OF POWELL J

Solicitors:
Kevin McDonald & Associates Crown Solicitor, Auckland Counsel:
G J Newell, Barrister, Auckland

KEATING v THE NEW ZEALAND POLICE [2018] NZHC 942 [4 May 2018]

[1] The appellant, Alfred Keating, has been charged with attempting to intentionally make an intimate visual recording.1 He has sought name suppression pending trial on this charge. His application for continued name suppression was however declined by His Honour Judge KJ Glubb in the District Court at Auckland.2

[2] In the hearing in the District Court Mr Keating advanced a number of grounds in support of his application; that it would cause him extreme hardship through making it difficult to obtain future employment, and would cause extreme hardship to others including his partner, a close family friend, and his son and daughter. He also raised the possibility of reputational damage to the New Zealand Defence Force. Each of these arguments was rejected by Judge Glubb on the basis it did not meet the high threshold set out in s 200(2) of the Criminal Procedure Act 2011(“CPA”).

[3] On appeal to this Court the matters at issue have narrowed significantly. The sole issue identified in the notice of appeal is the effect on Mr Keating’s daughter, although his counsel, Mr Newell, did in passing also raise the difficulty of Mr Keating obtaining future employment, and the possibility of health issues arising if name suppression was not continued.

Background

[4] Until early this year Mr Keating held the rank of Commodore in the Royal New Zealand Navy, and as such was one of its most senior officers.

[5] In July 2017, he was serving as the Senior New Zealand Defence Attaché in Washington D.C, based at the New Zealand Embassy. At the time Mr Keating held full diplomatic status as a New Zealand citizen, and held immunity from prosecution in the United States.

[6] On Thursday 27 July 2017, a visual recording device was located in a unisex bathroom on Level 3 of the New Zealand Embassy. The device was a small covert camera, set to capture and record movement. It had been purposely mounted inside a heating duct unit in the bathroom, at a height and direction that captured recordings

1 Crimes Act 1961, ss 216H and 72. The maximum penalty is 18 months’ imprisonment.
2 Police v Keating [2018] NZDC 6335.

from people who arrived and used the toilet. The facility was generally only available to those employed at the Embassy, approximately 60 persons at any given time.

[7] The device was discovered at about 1.30 pm that day when it fell onto the floor of the bathroom. It was subsequently…

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.

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Details

Case: [2018] NZHC 942
Decision Date: 4 May 2018

CaseChat Overview and Summary

Alfred Harold Keating, a former senior officer in the Royal New Zealand Navy, has been charged with attempting to intentionally make an intimate visual recording. His application for name suppression pending trial was declined by Judge KJ Glubb in the Auckland District Court. On appeal to the High Court, the sole issue identified was the effect on Mr Keating’s daughter. The court was required to determine whether publication of Mr Keating’s name would cause his daughter extreme hardship or endanger her safety, as required by s 200(2)(a) and s 200(2)(e) of the Criminal Procedure Act 2011.

The High Court found that the assertions made by Mr Keating were not sufficient to meet the high threshold for extreme hardship. The court held that questioning of family members is an ordinary consequence of someone being charged with a criminal offence, and that there was no factual foundation for the claims of harassment, victimisation, or punitive treatment. The court also noted that Mr Keating had not informed his daughter of the charge he faced or the possibility of the publication of his name. The court concluded that Judge Glubb was correct in declining to continue name suppression, and dismissed the appeal. Publication of Mr Keating’s name, occupation and identifying particulars are accordingly now permitted.

The final orders of the Court were that the appeal is dismissed and publication of Mr Keating’s name, occupation and identifying particulars are now permitted.

Orders