P v Police HC Wellington CRI 2007 485 90

[2007] NZHC 1250

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI 2007 485 90

P

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         13 November 2007

Counsel:         P H Mitchell for Appellant

MWC Snape for Respondent

Judgment:      13 November 2007

ORAL JUDGMENT OF MACKENZIE J

[1]      This is an appeal against refusal of permanent name suppression.

[2]      The appellant was sentenced on 20 August 2007 after pleading guilty to what was described in the police summary of facts caption as “meets young person after sexual grooming”.  The sentencing Judge dealt with the issue of name suppression in these terms:

[21]     That leaves the issue of name suppression. In my view it would be inappropriate for you to have your name suppressed. The public are entitled to know what happens in the Courts, who appears in the Courts and what they are charged with unless there are good reasons why. In my view there are no special reasons which would support the suppression of your name in this case. That is part of the punishment when one makes such a gross error

P V NEW ZEALAND POLICE HC WN CRI 2007 485 90 13 November 2007

of judgement as you have done in this case. So I am refusing any application for name suppression. Obviously, the press will need to be careful as to how they  publish  this  case  because,  of  course,  there  is  always  an  order suppressing the name of the complainant and any details which might lead to the identification of the complainant.

[3]      Mr Mitchell for the appellant acknowledges that as the granting of name suppression is a discretionary matter the decision appealed against will not be disturbed unless it is wrong in principle, took into account irrelevant considerations, failed  to  take  into  account  relevant  considerations  or  was  plainly  wrong.    The essence of the appeal here is that the Judge failed to take into account a relevant consideration, namely the effect on the appellant’s family in particular his parents. This offending occurred in Nelson.  The family resides in Nelson and the appellant’s parents are the only family with the surname in the Nelson telephone book.   The appellant’s father is a well-known professional and member of the community.  He has filed an affidavit in which he indicates that he has offered his resignation should the appeal be unsuccessful and subsequent publication impact on his employer’s business.  He expresses a fear on behalf of his family for vigilante action and also draws attention to publicity about the case in the local press which he says contained some errors of fact.  The appellant was a first offender and it is also submitted that the publication of his name will be detrimental to the appellant’s rehabilitation.

[4]      The principles applicable to name suppression are well established.  They are set out in R v Liddell [1995] 1 NZLR 538 and also in Lewis v Wilson & Horton Ltd

& Ors [2000] 3 NZLR 546, as well as in any other cases. The starting point must always be the importance of freedom of speech and open recording. The public interest in knowing what takes place in Courts extends to knowing the identity of those who appear before the Court and that public interest must be outweighed by significant and special circumstances which would justify interference with the principle of open justice as the Court of Appeal said in Wilson & Horton, it is usual for distress, embarrassment, and adverse personal and financial consequences to attend criminal proceedings so that some damage out of the ordinary and disproportionate to the public interest in open justice in the particular case is required to displace the presumption in favour of reporting.

[5]      Embarrassment to the family in cases involving sexual offending can be expected and could not, of itself, be  considered unusual out of  the  ordinary or disproportionate to the public interest.  The question is whether there is sufficient in the circumstances which are relied upon here to outweigh that principle.  The Judge did not specifically advert to the effect on the family as a consideration.   I do not think that it is necessarily the case that he did not have regard to it, but adopting a generous approach to the appellant I approach the question of the effect on the family de novo.   Approaching the matter in that way, I do not consider that the circumstances here take this case out of the ordinary.   The question of possible reaction must be considered objectively rather than subjectively from the point of view of the family.   It does appear to me that while the embarrassment of the appellant’s father is understandable there is no reason why that should reflect on him or on his standing in the community to the extent that his resignation should be a consequence  or  to  the  extent  that  it  should  have  an  impact  on  his  employer’s business.   Viewed objectively, I do not think that the matter reaches that level of concern.   Similarly, in relation to the fears of vigilante action, that too must be considered objectively and I do not consider that the circumstances are such that that is a matter of sufficient concern to outweigh the public interest here.

[6]      For these reasons, the appeal will be dismissed.

……………………………

A D MacKenzie J

[7]

Solicitors:

Crown Solicitor, Wellington, for Respondent