L v Police HC Wellington CRI-2005-485-112

[2005] NZHC 68

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI-2005-485-112

L

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         27 September 2005

Appearances: I M Antunovic and S Antunovic for Appellant

M A O’Donoghue for Respondent

Judgment:      27 September 2005

JUDGMENT OF GODDARD J

[1]      Mr L   appeals against one aspect of his conviction on three charges under the Harassment Act 1997.   Those charges concern his harassing of Muslim women by sending them ‘hate’ mail.  He was found guilty of the charges by Judge P J McAloon in the District Court and on conviction the Judge declined to make permanent an interim name suppression order.   It is from that refusal to suppress

publication of his name and identifying details that Mr L  now appeals.

L V POLICE HC WN CRI-2005-485-112  27 September 2005

The facts

[2]      The facts of the offending are very serious of their type.  The background to the offending concerned Mr L   sending two abusive and insulting letters to the Islamic Federation in Wellington in late November 2001.  Between January and the end of June 2004 he sent further similar letters to the Islamic Federation and the Islamic Food Federation.  Between January and the end of September 2004 he sent similar  letters  to  individuals  within  the  Wellington  Muslim  community  at  their private addresses.  The given and family name of each recipient was correctly spelt, indicating that each recipient had been carefully selected and their particulars researched.   The letters followed the same theme as the letters sent to the Islamic organisations in 2001.  In some instances, at least two letters were sent to the same addressee at the same address.  The content of the letters was threatening and highly offensive.   In relation to the letters sent to the three complainants, a further and distasteful aggravating feature was the inclusion of pieces of pork or ham in the letters.   Understandably the complainants found the letters frightening and were fearful for their lives and for those of their children.

[3]      The degree of criminality is evident not just from the background and the number and careful selection of the victims involved, but also from the obvious degree of preparation  and  deliberation  that  went  into  preparing  the  written  and pictorial content of the letters.

[4]      The  precipitant  to  Mr  L  ’s  offending  is  said  to  be  the  events  of

11 September 2001 in the USA and the 2002 Bali bombings.   Mr L   was however one of only countless millions of people throughout the world who felt justifiable anger and outrage at these terrorist acts.  Such understandable feelings do not justify any person in taking their own course of action against innocent third parties, totally unrelated in time or place and unconnected in any other way with such terrorist activity.

[5]      On being found guilty, Mr L   was assessed by Dr Justin Barry-Walsh, forensic  psychiatrist.     Dr  Barry-Walsh  found  Mr  L    had  a  number  of

personality traits that “if not explaining the offending provide some understanding of it”.  These were his orthodox Christian beliefs (although not fundamentalist religious beliefs), an obsessional nature, low self esteem, excessive sensitivity of criticism from others and a sense of slight and rejection by others.  Mr L   is also said to experience some problems with anger management.   Dr Barry-Walsh opined that whilst there are plausible links between these personality traits and the offending the connection was not entirely clear.   He found no evidence of psychiatric disorder mediating the offending.   Disinhibition through work habits and consequent sleep deprivation may have impaired Mr L  ’s judgement to an extent, but those factors provided insufficient explanation for his criminal actions.  Dr Barry-Walsh’s view is that Mr L  ’s offending implied “a rigidity of thought which elsewhere appear to  be expressed  in  obsessional  personality”.    He  noted  that  Mr  L   expressed   considerable   remorse   and   distress   for   his   actions   and   that   he acknowledged they were against his Christian principles.

[6]      Significantly,  for  this  appeal,  there  have  been  public  acceptances  of Mr L  ’s expressions of remorse by some of the victims and public forgiveness of him for his actions.

The appeal

[7]      The  starting  point  of  the  appeal  is  that  it  is  against  the  exercise  of  a discretion.  That means, to allow the appeal the Court must come to the view that the District Court Judge erred materially in fact or in principle in reaching his decision. No such error has been made.

[8]      The sole point is whether publication of Mr L  ’s name and identifying particulars might carry the risk of harm to himself or close family members in the way of reprisal action from members of the Muslim community.   In this regard Mr Antunovic advised that when he first sought interim name suppression in the District Court, the application was not opposed by the Police indicating that there may have been fears of reprisal action at that time.

[9]      Mr O’Donoghue has however made recent enquiry of the Police, who advise that they have no basis on which to hold any such fears at the present time and do not support continuation of name suppression now that convictions have been entered. Although name suppression is a matter for the Court to decide, the Court is grateful to the Police for that advice.

[10]     It would be contrary to principle to provide Mr L   with a shield from public scrutiny when his own actions have brought that scrutiny upon him and inevitably on those closely connected with him.  Those third parties are innocent of his offending and thus are also victims of his offending, indirectly at least.  That is however an inevitable consequence of criminal offending, and it is only in the most exceptional of circumstances that the welfare of third parties will tip the balance in favour of name suppression for a convicted criminal.  The case of R v W HC NEL CRI-2004-042-1663 2 December 2004 was one such exceptional case.

[11]     As Mr Antunovic acknowledged, it is well established that there is a strong presumption in favour of open justice and the open reporting of court proceedings. This includes publication of the name of persons convicted of criminal offending. There is an obvious distinction between name suppression up to the point at which an accused is convicted and post-conviction suppression.   The presumption of innocence ends upon conviction.   On the evidence before me there is no basis on which to conclude that Mr L   or his close family members will be at particular risk if his name is published.

Conclusion

[12]     The appeal is dismissed.

Solicitors:

I M Antunovic, Wellington, for Appellant

Luke, Cunningham & Clere, Wellington, for Respondent