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…

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: [2024] NZHC 516
Decision Date: 11 March 2024

CaseChat Overview and Summary

Travis John Maskell appealed the decision of the District Court to decline his application for interim name suppression. Maskell pleaded guilty to charges of possessing objectionable publications with knowledge, specifically child exploitation. The District Court denied his application for interim name suppression, which Maskell sought on the basis that publication of his name would cause extreme hardship to his children as persons connected with him. The appeal before the High Court was to challenge the District Court's refusal to grant interim name suppression, with Maskell arguing that suppression should be granted until his sentencing. The Court examined the statutory provisions under the Criminal Procedure Act 2011, which allows for name suppression orders if certain threshold grounds are met, such as the likelihood of causing extreme hardship to a connected person. The Court assessed whether the District Court had correctly applied the legal test for extreme hardship and whether the appeal presented a valid argument for suppression.

The Court found that the District Court did not err in its assessment. The District Court had noted that the application was made despite Maskell's two previous court appearances and that no details of the children’s ages or the nature of the harm were provided. The Court found that Maskell's argument did not rise to the level of "extreme hardship" as required by the statute, as there was no evidence of particular vulnerability or circumstances beyond the ordinary consequences of publication. The Court also considered the irony of Maskell’s request given the nature of his offending. The High Court concluded that there was no basis for a conclusion of extreme hardship to Maskell's children and dismissed the appeal.

Orders