Maskell v Police

[2024] NZHC 516

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

I TE KŌTI MATUA O AOTEAROA TAURANGA MOANA ROHE

CRI-2023-463-00117

[2024] NZHC 516

BETWEEN

TRAVIS JOHN MASKELL

Applicant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	11 March 2023
Appearances:	N L Hartigan for Applicant H J Speight for the Crown
Judgment:	11 March 2024

JUDGMENT OF ANDERSON J

(Redacted version)

This judgment was delivered by me on 11 March 2024 at 3.30 pm.

………………………………

Registrar/Deputy Registrar

Solicitors:

Lane Lawson, Mt Maunganui South

Crown Solicitor, Pollett Legal Limited, Tauranga

MASKELL v POLICE [2024] NZHC 516 [11 March 2024]

[1]        On his third appearance in Court on 26 September 2023, Mr Maskell entered pleas of guilty to three charges of possessing objectional publications with knowledge (child exploitation).1

[2]        At this third appearance, after guilty pleas were entered, Mr Maskell sought “interim name suppression”. Judge L M Bidois declined his application.2 Mr Maskell appeals.  The  application  was   based   on   the  submission  that   publication   of Mr Maskell’s name would cause extreme hardship to his children as persons connected with Mr Maskell.3 I understand that Mr Maskell is to be sentenced on 20 March 2024.

[3]        The age of Mr Maskell’s children was not before the District Court. The Police agreed to admission of the detail of their ages on appeal. They are aged [redacted].

Name suppression

[4]        By s 200(1) of the Criminal Procedure Act 2011 a court may make an order forbidding publication of the name of a person who is convicted of an offence. An application under s 200(1) involves a two-step process.4 The Court first considers whether it is satisfied that the relevant threshold grounds have been established. At the second stage the Court then considers whether name suppression should be granted in the Court’s discretion.

[5]        As relevant to this appeal, by s 200(2) a court may make an order if it is satisfied that publication “would be likely to cause extreme hardship to … any person connected with that person”. “Extreme hardship” denotes a very high level of hardship. That is because the word “hardship” on its own means “severe suffering or privation” and because it is greater than “undue” hardship, which is another threshold used.5 An assessment of whether hardship is “extreme” is contextual. It entails a relative comparison between the contended hardship and the consequences normally

1      Films, Videos & Publications Classification Act 1993, s 131A(1), maximum penalty 10 years’ imprisonment or to a fine not exceeding $50,000.

2      Police v Maskell DC Tauranga CRI-2023-070-2916, 26 September 2023.

3      Criminal Procedure Act 2011, s 200(2)(a).

4      Robertson v Police [2015] NZCA 7 at [39]; Beacon Media Group Ltd v Waititi [2014] NZHC 281.

5 At [48].

associated with a defendant’s name being published. It must be something beyond the ordinary associated consequences.6

[6]        By s 200(4), a defendant may apply for “interim name suppression” on a first appearance, to which a lower standard of an “arguable case” applies to assessing whether the relevant threshold test for suppression is met. The interim order expires at the person’s next court appearance and then may only be renewed if the Court is satisfied that one of the threshold grounds in s 200(2) applies.7 By s 208 a suppression order under s 200 may be made permanently, or for a limited period ending on a date specified in the order.

The District Court decision

[7]        The Judge commented that there had been no previous request for interim name suppression, despite Mr Maskell’s two prior appearances.8 Counsel submitted that the application was based on Mr Maskell having young children and that there would be undue hardship to them. In rejecting that submission, the Judge noted that no details were given of the children’s ages, what might be the circumstances of harm caused to them, or any evidential basis to support the application.9

[8]        The Judge observed that Mr Maskell’s application was ironic given his offending is child exploitation, yet he was seeking interim suppression to protect his children from the psychological harm of his offending.10

Mr Maskell’s case for suppression

[9]        Ms Hartigan, for Mr Maskell, submits that counsel in the District Court was prevented from advancing relevant submissions on whether the threshold test was met. She says that the submission would have been that the Police had knowledge that  Mr Maskell had young children, and this would have been sufficient to develop

6 At [49].

7      Criminal Procedure Act, s 200(5).

8      Police v Maskell, above n 2, at [3].

9 At [3].

10 At [4].

submissions on extreme hardship. She relies on the transcript of the hearing in which the Judge rejected the submission for interim name suppression in short order.

[10]      Ms Hartigan submits that the “extreme hardship” said to be suffered by Mr Maskell’s children if suppression is not granted is a “matter of logic”. She says that the impact on the children would include bullying from other children, stigma, and potential illegitimate conclusions due to the nature of the convictions. Ms Hartigan says that the consequences are heightened by Mr Maskell’s guilty plea. Ms Hartigan submits that the impacts do not require any evidence as opposed to reasoning as to what amounts to extreme hardship under the Criminal Procedure Act.

[11]      In questioning from me as to what “interim” suppression is  intended here, Ms Hartigan submitted that orders are sought until sentencing, when the matter might be revisited based on the sentence imposed.

Test on appeal

[12]      The Judge rejected the application at the threshold level. An appeal against whether any of the threshold criteria in s 200(2) have been established is an appeal by way of re-hearing. The appellate Court is entitled to come to its own opinion about the facts and the law, and if different from the lower Court, may substitute its decision.11

Discussion

[13]      Before considering the merits, a point of terminology: the Judge was, understandably, bemused by Mr Maskell’s application for “interim name suppression” when he had been before the Court twice already. As noted above, the Criminal Procedure Act provides for interim name suppression only on the first appearance.12 This appeal is characterised as an appeal against an application for interim name suppression also. That is a misnomer. What is sought is an order for name suppression until sentencing. That engages s 208, which contemplates orders for suppression being

11     Temple v Police [2023] NZHC 2436 at [16].

12     Criminal Procedure Act, s 200(4)

made for a certain period. Ms Hartigan accepted that the threshold test in s 200(2) applies, not simply an arguable case for suppression.

[14]      Turning to the substance, there is no merit in this appeal. There is no basis for a conclusion of “extreme hardship” to Mr Maskell’s children. Nothing is put forward by Mr Maskell as anything other than the ordinary consequences of publication of their father’s offending. I accept the Crown’s submission that the fact that Mr Maskell has children including young children is insufficient. There is no evidence of any particular vulnerability. The logical consequences of publication are the ordinary consequences of publication. That is not sufficient to meet the test of “extreme hardship.”

[15]      Mr Maskell is now convicted of a serious offence involving child exploitation. There is a public interest in open reporting of that fact and no basis for suppression. The appeal is dismissed.

Anderson J