NN v The Queen

[2016] NZHC 669

NOTE: PUBLICATION OF NAMES, ADDRESSES, OCCUPATIONS OR IDENTIFYING PARTICULARS, OF COMPLAINANTS PROHIBITED BY S 203 OF THE CRIMINAL PROCEDURE ACT 2011.

NOTE: PUBLICATION OF NAMES, ADDRESSES, OCCUPATIONS OR IDENTIFYING PARTICULARS, OF ANY COMPLAINANTS UNDER THE AGE OF 18 YEARS WHO APPEARED AS A WITNESS PROHIBITED BY

S 204 OF THE CRIMINAL PROCEDURE ACT 2011. PERMANENT ORDER PROHIBITING PUBLICATION OF DEFENDANT'S NAME, ADDRESS OR ANY IDENTIFYING PARTICULARS

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

CRI-2015-088-000312 [2016] NZHC 669

BETWEEN

NN

Applicant

AND

THE QUEEN Respondent

Hearing:	12 April 2016
Appearances:	A R Fairley and P Magee for Applicant B Dickey and A M McClintock for Crown
Judgment:	13 April 2016

JUDGMENT OF VENNING J Application for Permanent Name Suppression

This judgment was delivered by me on 13 April 2016 at 11.30 am, pursuant to Rule 11.5 of the High

Court Rules.

Registrar/Deputy Registrar

Date……………

Solicitors:           Thomson Wilson, Whangarei Crown Solicitor, Auckland Bell Gully, Auckland

NN v THE QUEEN [2016] NZHC 669 [13 April 2016]

[1]      At the conclusion of his trial NN was found not guilty of all 12 counts of indecent assault. The verdicts were unanimous.

[2]      He now applies for permanent name suppression.

[3]      The Crown abides the decision of the Court.  I offered the media present the opportunity   to   have   the   application   adjourned   to   enable   them   to   arrange representation but, after taking instructions, the media representative advised the Court they did not seek to be heard further and were “neutral” on the issue of permanent  name  suppression.    They  did  ask  whether  it  would  be  possible  to authorise disclosure of further details, for example, the relationship between the complainants and defendant.

[4]      NN has had interim suppression from the outset of the proceeding.1   Initially that was until commencement of trial and then, following a decision of this Court on

1 April 2016, until completion of the trial.2

[5]      The  Court  has  previously  held  that  the  following  criteria  under  s  200

Criminal Procedure Act 2011 are engaged:

(a)       ss 200(2)(a) and (e) apply in relation to one of the defendant’s sons;

(b)      s 200(2)(d) – there was a real risk of prejudice to a fair trial;

(c)      s 200(2)(f)  because  publication  of  the  defendant’s  name  in  the circumstances of this offending would be likely to lead to the identification of the complainants whose names are suppressed by law:  ss 203 and 204 CPA.

[6]      Then, in the exercise of the discretion the Court most recently considered that the combined weight of the likelihood of identification of the complainants and therefore the real risk of breach of ss 203 and 204, the extreme hardship which

would follow the publication of NN’s name in relation to the mental (in particular)

1      NN v New Zealand Police [2015] NZHC 589.

2      NN v R [2016] NZHC 559.

and physical health of his son and the real risk of prejudice to a fair trial outweighed the principles of open justice and the freedom to exchange information which supported publication.

[7]      Now that the trial has concluded fair trial issues are no longer a relevant consideration.

[8]      The criteria in s 200(a) and (e) in relation to NN’s son and s 200(2)(f) in relation to the risk of identification of the complainants still apply.  Mr Magee relies on  those  criteria.    At  present  he  does  not  seek  to  advance  an  argument  that s 200(2)(a) applied in relation to the defendant on the basis of the acquittal.  But as s 200(2)(a) and (e) and (f) are engaged, the Court has jurisdiction to make the order for permanent suppression.  The issue is whether in the exercise of its discretion it should.

[9]      I  note  that  s 200(6)  provides  that  when  determining  whether  to  make  a permanent order the Court must take into account any views of the victim of the offence conveyed in accordance with s 28 of the Victims Rights Act 2002.  Having regard to the provisions of s 28 and s 4 of the Victims Rights Act I do not consider the complainants come within the definition of victim.  Given the verdicts it cannot be said they have been the victims of any offending.

[10]     To the extent it was relevant, Mr Dickey indicated that the complainants’ position remained as it was recorded when the matter was most recently considered by the Court at the outset of the trial, namely that the complainants are not concerned at the prospect of publication of NN’s name and consider that some members of the local  community  may  know  of  the  alleged  offending.    They  both  said  in  the statements prepared prior to trial that they would feel “safer” if the defendant’s name was published.  Given the acquittals on all counts the issue of complainants’ “safety” does not arise.

[11]     The most material change in circumstance since the last hearing on this issue is the acquittal of the defendant on all counts.  While not determinative the acquittals are relevant to the exercise of the discretion.   There can still be legitimate public

interest in a high profile case which is ultimately resolved by an acquittal:  Rogers v

Television New Zealand Limited.3

[12]     In M (CA762/12) v R the Court of Appeal observed that:4

[18]     … In determining questions of permanent name suppression, courts must strike a balance between the public interest in open court proceedings, represented by the media as “surrogates of the public”, and the potential harm which may result to individuals connected with criminal proceedings. As this Court recognised in R v Liddell, an acquittal may or may not justify a name suppression order. …

(footnotes omitted)

[13]     The Court in M (CA762/12) went on to examine the circumstances of the acquittal and to take those circumstances into account when deciding the extent to which the principle of open justice had been outweighed in the particular case.5    In M (CA762/12) the Crown had offered no evidence.

[14]     The following factors are relevant to the exercise of the discretion in this case:

(a)      the importance in a democracy of the freedom of speech, access to information and the openness of justice;

(b)importantly  and  significantly  where  the  case  was  a  direct  contest between the complainants and the defendant the case resulted in unanimous acquittals on every charge;

(c)      the principle of open justice has been observed in this case to the extent that the media have been present throughout and, subject to the suppression concerning the complainants and defendant’s identities, have  been  able  to  accurately  report  the  case  in  detail  as  it  has

progressed;

3      Rogers v Television New Zealand Limited [2007] NZSC 91 at [115] and following.

4      M (CA762/12) v R [2013] NZCA 113.

5 At [24].

(d)freedom of expression is in any event restricted by statute in relation to identification of the complainants;

(e)      the allegations made by the complainants (which the jury were not satisfied about) have already had a significant impact and effect on the defendant;

(f)      while the offences charged were moderately serious, the details of the offending alleged were at the lower end of seriousness of such offending;

(g)apart  from  the  statutory  protection,  there  is  reason  to  protect  the identity of the complainants from further scrutiny given the outcome of the case.  To disclose the defendant’s name would very likely lead to identification of the complainants;

(h)      the need to avoid the extreme hardship and potential harm to the

defendant’s son.

Result

[15]     Weighing  those  factors  I  am  satisfied  that  the  balance  heavily  favours permanent suppression of the defendant’s name in this case.  I exercise the discretion in favour of the defendant’s application for permanent name suppression.  There will be an order permanently prohibiting publication of the defendant’s name, address or any identifying particulars.

[16]     I note  that  I  have  considered  whether  it  would  be  possible  to  relax  the suppression orders in a nuanced way to enable reporting of further detail concerning the case.  However, my perusal of various media reports related to the case discloses open and full reporting of aspects of the evidence, details of the charges and the

nature of the complaints.6    Given the extent and detail of that reporting, to disclose

6      For example an NZME Report in the New Zealand Herald news online on 12/4/16 following verdict,  includes  detailed  references  to  the  closing  summaries  of  Crown  and  Defence submissions and detail of all the charges.

the relationship between the complainants and the defendant would be likely to lead

to identification of the complainants.

Venning J