Police v KK - [2014] NZHC 1629

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

CRI-2014-441-000016 [2014] NZHC 1629

BETWEEN
NEW ZEALAND POLICE

Appellant

AND

KK Respondent

Hearing: 3 July 2014

Counsel:

R Fairbrother QC for Appellant
FE Cleary for Respondent

Judgment:

11 July 2014

JUDGMENT OF ASHER J

This judgment was delivered by me on Friday, 11 July 2014 at 1pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors/Counsel:
R Fairbrother QC, Napier.
Crown Solicitor, Napier.

NZ POLICE v KK [2014] NZHC 1629 [11 July 2014]

Introduction

[1] This is an appeal by the Solicitor-General against a decision of Judge Adeane granting KK permanent suppression of name.

[2] KK had pleaded guilty to a charge of indecent assault on the first victim, and two charges of assault of a child relating to the first victim and also a second victim. The two assault charges carried with them the maximum penalty of two years’ imprisonment at the relevant time. The maximum penalty today is 10 years’ imprisonment.

[3] The offending occurred between 1984 and 1990 when KK was living with the two victims as their stepfather. The first victim recalls that while living at the home of her mother and KK, KK would regularly come and lie next to her in bed. While lying with her he would put his hand over her body and feel her breasts and vaginal area on top of her clothing. On occasions he touched her vaginal area underneath her clothing. She was between eight and 10 years old at the time. She also recalls numerous beatings at the hands of KK when she was between eight and 14 years old. On one occasion KK used a leather strap to smack her hands and when she would not cry struck her with the strap on her legs and body, and around her neck, causing her major discomfort and pain.

[4] The second victim is the younger brother of the first victim. He recalls an occasion when he was eight years old disobeying KK on a minor matter. He was sent to his room. KK came in and picked him off the floor and threw him against the wall, and hit him numerous times with his hand over his whole body. He then took off his jandal and hit him numerous times around his head and body. This caused him major discomfort and pain.

[5] KK provided Judge Adeane with affidavit evidence that shortly after his offending he faced up to what he had done and took all steps he possibly could to redress any harm that he had caused. He undertook counselling which was initially with the victim. He then moved to another city and continued with the counselling. He deposed that:

I thought I should report myself to the Police, but took the advice of my counsellor that was not a constructive step. I now wish I had because this matter would have been addressed at the time and be part of our shared history.

[6]…

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 Police v KK

Details

AGLC: Police v KK [2014] NZHC 1629
Case: [2014] NZHC 1629
Decision Date: 11 July 2014

CaseChat Overview and Summary

This case concerns an appeal by the New Zealand Police against a decision by Judge Adeane to grant permanent suppression of the name of KK, who had pleaded guilty to indecent assault and two charges of assault of a child. The court was required to decide whether the District Court had the jurisdiction to grant the suppression order and whether the decision was correct based on the statutory criteria for suppression. The court found that the District Court had jurisdiction to hear the suppression application, and the appeal should proceed based on ordinary appellate principles. The court examined the statutory criteria for suppression under the Criminal Procedure Act 2011 and concluded that the hardship to KK, while significant, did not meet the threshold of "extreme hardship" required for suppression. However, the court found that an unusual factor in this case, namely KK accepting his wrongdoing shortly after the offending and building a new life, combined with the severe consequences of publication, resulted in extreme hardship. The appeal was ultimately dismissed, and the District Court's decision to grant permanent suppression of KK's name was upheld.

The court's decision highlights the importance of considering both the hardship to the defendant and the public interest in open justice when determining whether to grant suppression. It also underscores the high threshold of "extreme hardship" required for suppression and the need for a balanced approach that takes into account the seriousness of the offending and the impact on victims.

Orders