Nevin v The King - [2023] NZSC 160

NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 203 OF THE CRIMINAL PROCEDURE ACT 2011. SEE PUBLICATION OF NAME, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS OF ANY COMPLAINANT UNDER THE AGE OF 18 YEARS PROHIBITED BY S 204 OF THE CRIMINAL PROCEDURE ACT 2011. SEE DISTRICT COURT ORDER PROHIBITING PUBLICATION OF THE NAME OF THE SCHOOL PURSUANT TO S 202 OF THE CRIMINAL PROCEDURE ACT 2011 REMAINS IN FORCE. SEE DISTRICT COURT ORDER PROHIBITING PUBLICATION OF THE OCCUPATION AND SPORT OF THE APPLICANT PURSUANT TO S 200 OF THE CRIMINAL PROCEDURE ACT 2011 REMAINS IN FORCE. SEE DISTRICT COURT ORDER PROHIBITING PUBLICATION OF EVIDENCE AND SUBMISSIONS CONTAINED IN DISTRICT COURT AND HIGH COURT DECISIONS PURSUANT TO S 205 OF THE CRIMINAL PROCEDURE ACT 2011 REMAINS IN FORCE. SEE cellpadding="0" cellspacing="0">

IN THE SUPREME COURT OF NEW ZEALAND

I TE KŌTI MANA NUI O AOTEAROA
SC 79/2023
[2023] NZSC 160

BETWEEN
CONNOR SEAN CLAYTON NEVIN
Applicant

AND

THE KING
Respondent

Court:
Glazebrook and Kós JJ

Counsel:

I M Brookie and R A van Boheemen for Applicant
H G Clark for Respondent

Judgment:

7 December 2023

JUDGMENT OF THE COURT

A The application for an extension of time to apply for leave to appeal is allowed.

B The application for leave to appeal is dismissed.

C The interim suppression order dated 21 July 2023 is lifted.
____________________________________________________________________

REASONS

Background

The applicant, Mr Nevin, was convicted after a jury trial of sexual offending against a teenager. He was sentenced in the District Court to six years and six months' imprisonment.[1] A conviction and sentence appeal to the Court of Appeal was dismissed.[2]
[1]R v Nevin [2022] NZDC 23920 (Judge Northwood).
[2]N (CA28/2023) v R [2023] NZCA 378 (Collins, Lang and Woolford JJ).
This judgment deals with the applicant’s application to bring a second appeal against Palmer J’s refusal in the High Court[3] to overturn the District Court’s dismissal of his application for permanent name suppression.[4] He initially sought leave to appeal in the Court of Appeal but abandoned that application in favour of a “leapfrog” application to this Court on discovering that leave to this Court had been granted in relation to LF (CA596/2022) v R.[5]
[3]Nevin v R [2022] NZHC 3585 (Palmer J) [HC judgment].
[4]R v Nevin [2022] NZDC 23942 (Judge Northwood) [DC suppression decision].
[5]LF (CA596/2022) v R [2022] NZCA 656. This Court granted leave to appeal: E (SC 13/2012) v R [2023] NZSC 61. The appeal has been heard but the judgment has not yet been issued.
The applicant’s application for leave to appeal against the Court of Appeal judgment relating to his conviction and sentence is dealt with in a judgment released at the same time as this judgment.[6]

The legislation

[6]Nevin v R [2023] NZSC 161.

The proposed name suppression appeal raises a question about the relationship between s 200(2)(a) and (f) of the Criminal Procedure Act 2011. Section 200(1) provides that…

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.

Continue reading Nevin v The King

Details

AGLC: Nevin v The King [2023] NZSC 160
Case: [2023] NZSC 160
Decision Date: 7 December 2023

CaseChat Overview and Summary

In the Supreme Court of New Zealand, Connor Sean Clayton Nevin, an applicant convicted of sexual offending against a teenager, sought to appeal the High Court's refusal to grant him permanent name suppression. The High Court had dismissed his application on the grounds that the publication of his name would not cause extreme hardship to his relative, would lead to the identification of a school, and could identify the victim, but that these factors were outweighed by the principles of open justice and the public interest in knowing the offender's identity. The Supreme Court was asked to consider whether the High Court's decision was correct and whether the applicant's application should be granted leave to appeal. The legal issues in this case involved the interpretation of sections 200(2)(a) and 200(2)(f) of the Criminal Procedure Act 2011, which govern when a court may make an order for permanent name suppression of a defendant's identity. The Court considered whether the High Court had erred in its interpretation of these sections and whether it had appropriately balanced the factors in favour of and against suppression.

The Supreme Court found that the High Court had correctly interpreted and applied the relevant sections of the Act. It noted that the High Court had properly balanced the factors in favour of and against suppression, taking into account the principles of open justice, the public interest in knowing the offender's identity, and the views of the victim. The Court also found that the High Court had not erred in its reference to section 202(4) of the Act, which provides that suppressing the identity of a connected person does not prevent publication of the defendant's identity. The Supreme Court concluded that the High Court's decision was just a matter of applying settled law to the facts of the applicant's case and that there was no risk of a miscarriage of justice. Therefore, the application for leave to appeal was dismissed, and the interim suppression order was lifted.

The final orders of the Court were that the application for an extension of time to apply for leave to appeal was allowed, the application for leave to appeal was dismissed, and the interim suppression order dated 21 July 2023 was lifted.

Orders