P v The Attorney-General HC Wellington Civ-2006-485-874

[2010] NZHC 1260

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2006-485-874

BETWEEN  P Plaintiff

ANDTHE ATTORNEY-GENERAL Defendant

Hearing:         22 July 2010

Appearances: Ms Cooper with Mr Benton for plaintiff

Mr Hancock with Ms Andrews for defendant

Judgment:      23 July 2010         at 11.15 am

JUDGMENT OF MALLON J

[1]      Following my judgment delivered on 16 June 2010 (and publicly released on

18 June 2010) the parties have filed submissions on the issue of name suppression and I have heard from them orally at a hearing convened yesterday.  The existing interim  suppression  applies  to  the  plaintiff  and  three  witnesses  called  by  the defendant (referred to as AZ, Leading Steward B and C).   The parties are in agreement, with one exception, that the names and identifying particulars which have been suppressed on an interim basis should continue to be suppressed.   The exception relates to the person referred to as AZ – the plaintiff opposes the continuation of name suppression for him whereas the defendant seeks that name suppression be continued.

[2]      It is accepted that the High Court has inherent jurisdiction to order name suppression in a civil proceeding and that this jurisdiction should be exercised on similar principles to that which apply when exercising the discretion to order suppression under the Criminal Justice Act 1985 in the criminal jurisdiction.[1]    It is therefore accepted that the starting point is the principle of open justice (which I use

as short-hand to cover freedom of speech, open judicial proceedings and the right of

media to report court proceedings) and that there must be a compelling reason to displace this.[2]

[1] For example, Clark v Attorney-General (2004) 17 PRNZ 161 at [3] upheld on appeal: [2005] NZAR

481 (CA) and 574 (SC); and Brown v Attorney-General [2006] NZAR 450 at [6] and [12] to [14]

although relating to the District Court’s power.

[2] Lewis v Wilson & Horton Ltd [2000] 3 NZLR 546 at [41] to [43].

[3]      I am satisfied that it is appropriate for the plaintiff to continue to have his name and identifying particulars suppressed.  His claim was for alleged physical and sexual abuse.  He succeeded in establishing, to the balance of probability standard, that he was subjected to AZ touching his genitals against his wishes.   Continuing name suppression for the plaintiff is consistent with the other similar historic abuse

claims where the plaintiffs have had name suppression.[3]

[3] White v Attorney-General (HC Wellington CIV-1999-485-85 and CIV-2001-864, 28 November 2008) and J v Crown Health Financing Agency (HC Wellington CIV-2000-485-876, 8 February 2008). 

[4]      Applying  the  Criminal  Justice  Act  analogy  for  persons  who  have  been subjected to sexual offending, but who are over 16 years old, name suppression applies unless the court permits publication.[4]   I accept that this analogy should not be applied automatically.   The Criminal Justice protection is there because legitimate complainants of sexual offending should not be dissuaded from making their complaints and giving their evidence at a trial of the offender.  Here the plaintiff has chosen to bring a civil claim for damages and there may be cases where name suppression will not be given in a civil case of this kind.[5]     Having heard all the evidence and seen the plaintiff give his evidence, I was satisfied that the plaintiff was an honest witness and that his claim was not brought for improper reasons.

[4] Section 139 of the Criminal Justice Act.

[5] For example an extortionate claim as mentioned in A v B (1999) 14 PRNZ 497 at 501.

[5]      I   was   also   satisfied   that   the   plaintiff   has   had   clinically   significant dysfunction.   Dr Barry-Walsh’s understanding was that the plaintiff’s difficulties initially worsened after the plaintiff’s interview with him.   It was apparent to me from observing the plaintiff that he continues to find it stressful to recount events as he recalls them.   The plaintiff’s health is a compelling reason which displaces the principle of open justice in respect of identifying him.

[6]      I am also satisfied that it is appropriate to continue suppression in respect of

Leading Steward B.  Serious allegations of bullying had been made against him.  It

was in the interests of the administration of justice that he cooperate by giving evidence.   He did so. The serious allegations made against him were not proven. The matters occurred more than 25 years ago.  To the extent there is a public interest in knowing what was alleged to have occurred within the Navy and what was found proven it is met by the judgment that has been issued without it being necessary to name Leading Steward B.   The public interest in cooperation from witnesses, the unproven and historic allegations and the absence of any particular public interest in naming him are compelling reasons displacing the principle of open justice in this respect.

[7]      I am also satisfied that it is appropriate to continue name suppression for C. The plaintiff had initially made the allegation that C was an accomplice (by his presence and encouragement) of the serious sexual offending alleged as against AZ. By the time of the hearing the plaintiff accepted that he must have been mistaken as to C’s presence with AZ (documentation showed that C was not on board the ship at this time).  As my judgment discusses, C was a person with whom AZ was alleged to have engaged in consensual homosexual activity and at a time when this was a criminal offence and grounds for discharge from the Navy.   Those allegations are concerned with what are now essentially private matters of a historic nature, and which is not now criminal activity nor grounds for discharge from the Navy.  The public interest in knowing what was alleged is served without naming C.   The private and historic nature of the allegations and the absence of any particular public interest in naming C are compelling reasons that displace the principle of open justice in this respect.

[8]      As to AZ, the principal reasons advanced by the plaintiff as to why he should not have name suppression are that he was found to have engaged in what is criminal conduct and that, as such, he has a lesser claim that name suppression is in the interests of justice, that other persons who have been found to have engaged in

wrongful conduct in these kinds of cases have not had name suppression,[6]  and that

there is a public interest in identifying the perpetrators of sexual offending because there may be other victims of offending by AZ who are yet to come forward.

[6] Eg White v Attorney-General HC Wellington CIV-1999-485-85 and CIV-2001-864, 28 November

2008.

[9]      The defendant, on the other hand, emphasises that AZ cooperated with the defendant by providing a brief of evidence and coming to court to give his evidence, that the allegations as proven were of a much more minor nature than had been alleged,  that  the  matters  are  historic  and  have  been  raised  in  a  civil  claim  for damages rather than in a criminal prosecution, and that AZ has in effect already been punished in that he was removed from the Navy against his wishes.

[10]     In my view these are all relevant points to be weighed in the exercise of my discretion.   It is the case that I have found proven that AZ touched the plaintiff’s genitals  against  the  plaintiff’s  wishes.    However,  this  was  proven  to  the  civil standard.   AZ has not been found guilty of an indecent assault to the criminal standard and in the criminal jurisdiction.  One must be careful in applying how the balance between open justice and other interests would be struck in the criminal jurisdiction with its higher standard of proof to the civil jurisdiction with its lower standard.

[11]     It is possible that AZ engaged in unwanted sexual activity with others.  It is possible that if this occurred then identifying AZ may encourage them to come forward.   Against this, however, is that on the evidence before me it seemed that AZ’s nature was to make advances and to not proceed further if those advances were rejected.  While he went further than a brushing or touching of the arm in the case of the plaintiff (on the evidence as assessed by me), and it is possible he may done so with others, if he did so with others then they are most likely to be naval personnel (since AZ was in the Navy for some time).   Such personnel (if they exist) should have little difficulty in identifying AZ from the judgment as issued (even though the general public will not be able to do so).  Furthermore, identifying an offender in a judgment must be just one factor amongst others that might encourage a complainant to come forward.

[12]     Counsel made submissions about what may have motivated AZ to cooperate by  providing  his  brief  and  giving  his  evidence  and  whether  he  gave  truthful

evidence.  I think it would only be speculating to say whether AZ cooperated out of self interest or out of a sense of duty to the Navy or for some other reason.  The fact is that he did provide a brief and did give evidence in circumstances that cannot have been pleasant for him but which did serve the interests of the administration of justice.  Apart from having to respond to serious allegations dating back to events many years ago, he was cross-examined about what may be seen as salacious but nevertheless  private  matters  (ie  his  sexual  activity  with  others  on  the  ship). Although I did not accept his denial that anything at all occurred in relation to the plaintiff, I did not reject most of his evidence.   In a sense there might be some unfairness in granting name suppression to the plaintiff when not all of his evidence was accepted as reliable and refusing it to AZ because one part of his evidence was rejected.

[13]     Although the proven allegation does not fall into the category of trivial which can sometimes be a factor in favour of name suppression,[7] I think it is relevant that it was of a more minor nature than had been alleged.  Added to this, the matters are historic and AZ was in a sense punished for this at the time.  He was removed from the ship and discharged from the Navy because of the plaintiff’s allegation, amongst others.  I accept that at this time AZ ought not to have been in the Navy under its

then rules because he did engage in consensual homosexual activity and he had lied about this, but the Navy’s rules (and the criminal law in this respect) are now viewed as wrong by today’s standards.   AZ was subjected to investigations and medical examinations for consensual activity which would now not occur.   AZ has now undoubtedly moved on from his time in the Navy and I consider it would be unfair to now name him.  For these reasons I am satisfied that AZ’s privacy interests outweigh the principle of open justice in respect of identifying AZ.

[7] R v Liddell [1985] 1 NZLR 538 at 547

[14]     Accordingly the suppression orders that were made on an interim basis (as set out in my judgment as released on 18 June 2010) are to continue.

Solicitors:

S Cooper, Cooper Legal, Wellington, email: [email protected]

H Hancock, Crown Law Office, email: [email protected]

Mallon J