Q v New Zealand Customs
[2014] NZHC 2398
•2 October 2014
PUBLICATION OF THE NAME AND ADRESS OF THE APPELLANT ARE PROHIBITED BY S 200 OF THE CRIMINAL PROCEDURE ACT 2011
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2014-404-208 [2014] NZHC 2398
Q
v
NEW ZEALAND CUSTOMS
Hearing: 29 September 2014 Appearances:
G Foley for the Appellant
N Small for the RespondentJudgment:
2 October 2014
JUDGMENT OF THOMAS J
This judgment was delivered by me on 2 October 2014 at 3.00 pm pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Date:………………………….
Solicitors:
Meredith Connell, Auckland.
Counsel:
G Foley, Auckland.
Q v NEW ZEALAND CUSTOMS [2014] NZHC 2398 [2 October 2014]
Introduction
[1] Mr Q pleaded guilty to two charges of exporting an objectionable publication and two representative charges of possessing an objectionable publication. The publications in question were pornographic images involving children. He was sentenced in the District Court at Auckland to 10 months’ home detention.
[2] At his sentencing Mr Q applied for permanent name suppression on the basis that publishing his identity would cause extreme hardship to his wife and his elder daughter. Judge Paul declined to grant name suppression, considering that the test under s 200 of the Criminal Procedure Act 2011 (the Act) had not been satisfied. Mr Q now appeals against this decision.
Relevant facts
[3] Mr Q was identified by an undercover officer based in Queensland who had been conducting a covert online investigation. He communicated with Mr Q who used two different usernames.
[4] During the online contact with the officer, Mr Q sent child pornography to the officer. This was the basis of the exporting charges. The officer then contacted the New Zealand Customs Service and reported Mr Q.
[5] When Mr Q was arrested, further images were found in his possession. These formed the basis of the possession charges.
[6] Mr Q pleaded guilty immediately to all charges.
District Court decision
[7] Mr Q applied for permanent name suppression in the District Court. This application was based on the impact that publication would have on his wife, who does not share his unique surname, and his eldest daughter. In the case of his wife, it was argued that her medical condition would be worsened by the stress caused by publication. This would increase the risk of complications, including ventricular
fibrillation which can lead to death. In the case of his eldest daughter, she is reported to be doing well at school and it is argued that, since she shares his unusual surname, this could harm her progress. It was also argued that publication may harm Mr Q’s employment prospects.
[8] The Judge refused to make a permanent suppression order. His Honour began with the principle of open justice. The Judge considered the public interest in this case was strong, given the seriousness of the offending. He considered that the risks to Mr Q’s future employment did not displace this as the effect was likely to be no more than would normally follow a conviction for this kind of offending. In terms of the effects on Mr Q’s wife, the Judge considered that it was not sufficiently serious to engage s 200.
[9] The Judge also gave particular consideration to the situation of the eldest daughter. His Honour concluded, however, that similar consequences are faced by the children of all offenders and that this was not sufficient to engage the section.
Appellant’s submissions
[10] The appellant submits that the Judge erred in declining to grant permanent name suppression. This submission is supported on five grounds, namely that the Judge:
(a) did not give adequate reasons for his decision; (b) incorrectly weighed the public interest;
(c) gave excessive weight to the particular nature of the offending and the need for general deterrence;
(d)gave insufficient weight to the factors which supported the granting of name suppression; and
(e) erred in concluding that neither s 200(a) nor (e) was satisfied.
[11] In short, the appellant submits that the Judge gave insufficient reasons for his decision and that he applied the s 200 test incorrectly.
Respondent’s submissions
[12] The respondent says that the decision to grant name suppression is an exercise of discretion and so the standard to be applied on appeal is similar to that applied in sentencing cases.
[13] The respondent submits that the Judge was correct in his decision and that he considered all of the factors appropriately and gave them the correct weight. It also submits that the reasons given were adequate.
Approach to appeal
[14] The current appeal is a first appeal against a suppression order. Such appeals are dealt with by ss 282-288 of the Act.
[15] Section 287 of the Act provides:
287 First appeal court to determine appeal
A first appeal court must determine a first appeal by— (a) confirming the decision appealed against; or (b) varying the decision appealed against; or
(c) setting aside the decision appealed against; or
(d) making any other order it considers appropriate.
[16] The provisions concerning name suppression in ss 200-205 of the Act set out in detail a machinery to be applied by the court in determining these applications. This is very different from the unfettered discretion provided under s 140(1) of the Criminal Justice Act 1985. As a result, an appeal against a decision not to grant name suppression is no longer an appeal against an exercise of discretion. In Beacon
Media Ltd v Waititi, Gilbert J observed:1
[5] Unlike s 140 (1) of the Criminal Justice Act 1985, which conferred an unfettered discretion on the Court to make suppression orders in respect of anyone connected with the proceeding, s 202 of the new Act restricts the Court’s power to make such an order to those cases where at least one of the threshold tests set out in ss (2) is met. Section 202(2) operates as a gateway; it is only if the threshold is met that the Court is able to consider whether to exercise its discretion to make an order. No such restriction applied under s
140 of the old Act and cases decided pursuant to that section will therefore need to be treated with some caution when applying the provisions of the new Act.
[17] Appeals under this section are therefore general appeals. According to Elias
CJ in Austin, Nichols & Co Inc v Stichting Lodestar:2
Those exercising general rights of appeal are entitled to judgment in accordance with the opinion of the appellate court, even where that opinion is an assessment of fact and degree and entails a value judgment. If the appellate court’s opinion is different from the conclusion of the tribunal appealed from, then the decision under appeal is wrong in the only sense that matters, even if it was a conclusion on which minds might reasonably differ. In such circumstances, it is an error for the High Court to defer to the lower Court’s assessment of the acceptability and weight to be accorded to the evidence, rather than forming its own opinion.
Factors relating to the giving of reasons and the appellant
[18] I do not accept that the District Court Judge failed to give adequate reasons. He considered in detail the reasons put forward by the appellant and determined they were outweighed by the public interest. In doing so he recorded the weight he gave to each factor and the approach by which he reached his decision.
[19] In any event, as this is a general appeal, the real issue is the opinion of this appellate Court.
[20] A further ground of appeal was that inadequate weight was given to the detriment to the appellant’s business and ability to provide for his family. I am not however satisfied that there is sufficient merit in this submission particularly given the evidence that the appellant could continue working from home, a situation some might find surprising in light of the offending. I note the appellant’s evidence that his work from home would “evaporate” along with his professional reputation upon publication. However, I agree with the District Court Judge that the claimed
hardship is often related to employment when a person is convicted of this type of offending.
[21] I also agree with the District Court Judge’s determination that the information provided as to the risk to the appellant’s health did not meet the threshold required. The psychologist considered that media publication might lead to serious negative psychological consequences in addition to his depression and anxiety thus elevating risk of suicide and self harm. While some weight can be attached to this I am not satisfied that, in the context, this meets the threshold of extreme hardship.
Nature of offending
[22] The appellant refers to the 2011 Court of Appeal decision B (CA860/10) v R.3
That decision was decided under the Criminal Justice Act. The Crown says it should be confined to its own facts. However, there is some guidance from the Court of Appeal which is relevant to this case. In particular, the Court of Appeal decided that the District Court Judge had erred in determining that sexual offending should be seen automatically to be a heightened case for publically identifying the offender. The Court of Appeal acknowledged that it may be a decisive consideration when publication of the name of the accused may bring further offending to light or will help to prevent re-offending. But the Court of Appeal said at [21]:
The weight to be accorded to the public interest will vary according to the particular facts of the case (including the nature and seriousness of the offending) and the circumstances of the offender. The fact that sexual offending is an issue should not exclude a careful weighing of all relevant circumstances.
[23] In B (CA860/10) v R the Court of Appeal concluded that in the circumstances of that case it could not be said that name publication was critical to personal deterrence.
[24] There is some force in Mr Foley’s submission that if the legislature had intended cases involving child pornography to be considered in a materially different manner from other cases then the statute would have provided for this.
[25] In this case, there is no suggestion that naming of the appellant would reveal further offending or prevent re-offending. The appellant was a first offender and prior to sentencing had already commenced counselling directed toward the causes of the offending. The Judge acknowledged the efforts made by the appellant to rehabilitate himself. He did that when giving him credit for personal mitigating factors.
[26] I am not persuaded that the nature of this offending in this case means that any greater weight should attached to the public interest in openness than any other type of offending.
Application to adduce new evidence
[27] The appellant seeks to adduce further evidence in the form of two new medical reports relating to the physical and mental health of the appellant’s wife, Mrs Q.
[28] The Crown opposes the appellant’s application to adduce further evidence on the basis of the Act. Section 334 sets out an appeal court’s power to receive and hear evidence, the primary basis being the documentation from the hearing appealed from. The Crown refers to Taylor v R, where the Court of Appeal said:4
As to any inherent power of this Court to receive evidence beyond the record for the purpose of facilitating the hearing of an interlocutory appeal, this Court is a creature of statute.
[29] The Crown notes that the ability of an appeal court to hear fresh evidence is dealt with under s 335 of the Act which specifically provides for fresh evidence to be heard in appeals against convictions, sentence or a finding of, or sentence for, contempt. The court may hear fresh evidence “if it thinks it necessary or expedient in the interests of justice”. Ms Small points out that appeals against name suppression are not included.
[30] In R v Ratu,5 Venning J held that the High Court had inherent jurisdiction to admit further evidence in an appeal in relation to a suppression order. He found that s 336(1) included the power for the Court of Appeal and Supreme Court to receive further evidence in relation to appeals generally. Unlike the Court of Appeal and the Supreme Court, however, which are creatures of statute, the Court can rely on its inherent jurisdiction. As noted by Venning J at [23] “it would be strange if, in those circumstances, this Court could not receive further evidence on the first appeal, but the Court of Appeal could on a second appeal”. He said the discretion to admit evidence should be exercised sparingly and only when necessary in the interests of justice.
[31] Ms Small questions whether the High Court’s inherent jurisdiction survives s 335. She says that, in any event, there would not be a miscarriage of justice were the further information not admitted in evidence. She submits there was a plethora of information before the Judge in District Court. In her submission the information now sought to be adduced was available at the time the application was heard in the District Court and should have been presented then.
[32] In response Mr Foley says that the appellant’s wife had not recently been to see her cardiologist and she had to wait several months to obtain an appointment. That was the reason the information was not before the District Court. Furthermore, in his submission, it was compelling evidence which should be admitted.
[33] I accept the difficulty in providing a report from the cardiologist at the time of the District Court hearing. I note from the new evidence that he saw Mrs Q on 28
August 2014. The information before the District Court consisted of letters from Mrs Q about her condition and reference to it in the pre-sentence report. The medical evidence consisted of three letters dated June, October and November 2013. They attested to Mrs Q’s physical condition, its treatment, particularly given she had recently given birth, and whether the newly born child might also suffer from the same condition. There was, however, no expert evidence before the District Court Judge as to the potential risks associated with publication of Mr Q’s name on Mrs
Q’s condition. The further evidence is an up to date report from the specialist
5 R v Ratu [2013] NZHC 3085.
cardiologist specifically addressing the issue. As such, it carries considerably more weight than the letters from Mrs Q before the District Court Judge. For those reasons, I am satisfied that it is in the interests of justice to admit the further evidence.
Medical evidence
[34] Dr Smith is a cardiologist and recognised authority on the management of the medical condition suffered by Mrs Q. Dr Smith reports that Mrs Q suffers from a rare inherited heart condition in which episodes of irregular heartbeat can cause fainting or sudden death. Such episodes are generally triggered by stress or by exercise.
[35] Dr Smith describes research which applies to women older than forty and explains that women with the condition Mrs Q suffers from are two and a half times more likely to die between the ages of forty and sixty as a result of the condition.
[36] Mrs Q has been Dr Smith’s patient since 2008 and his evidence is given in accordance with the Code of Conduct for expert witnesses in the High Court Rules. Not only does he give the background to the appellant’s wife’s condition, but he saw her as recently as 28 August 2014 when he described the effects of stress on her from the court proceedings as completed and clearly evident. Mrs Q had lost weight and her recent evaluation showed the critical measurement in relation to her condition was clearly above the accepted upper limit of normal for women, and is the highest measured by him over the six years during which he has been treating Mrs Q. This is a relevant factor in evaluating the risk of sudden death in a patient with Mrs Q’s condition.
[37] There is no doubt from the evidence that Mrs Q is suffering to a significant degree as a result of his offending. It is true to say that a material contributing factor is the stress of dealing with her two children as a solo parent, as the appellant was not permitted home detention at his family’s address. She has been receiving counselling and seeing a psychiatrist who wishes to start her on treatment for depression and is concerned about possible aggravation of her condition. The cardiologist says:
Because her husband has a very unusual surname, Mrs Q is intensely anxious that publication of his name will lead to identification of her six year old daughter and thereby expose her to possible hurtful comment and psychologic distress at her school. From now until the time of the Court hearing, this anxiety and stress in Mrs Q is likely to progressively increase, and in my opinion constitutes a significant risk for induction of a cardiac arrhythmia.
In my opinion therefore that publication of her husband’s name, and thereby the likely identification of her daughter, is a source of marked psychologic [sic] stress for Mrs Q which will expose her to a risk of serious cardiac arrhythmia, notwithstanding that overall she would normally be in a low risk category. I cannot predict the magnitude of this risk but it is an avoidable risk and any decision to proceed with publication of her husband’s name should clearly take into account the possible detrimental risk to Mrs Q’s health and wellbeing and risk of serious cardiac arrhythmia.
[38] The medication prescribed to Mrs Q to lessen the risk cannot be taken at the full dose because of other medical conditions suffered by Mrs Q.
Extreme hardship and endangerment of safety
[39] The power of the Court to suppress a defendant’s name is set out in s 200 of
the Act, which relevantly provides:
200 Court may suppress identity of defendant
(1) A court may make an order forbidding publication of the name, address, or occupation of a person who is charged with, or convicted or acquitted of, an offence.
(2) The court may make an order under subsection (1) only if the court is satisfied that publication would be likely to—
(a) cause extreme hardship to the person charged with, or convicted of, or acquitted of the offence, or any person connected with that person;…
(e) endanger the safety of any person;…
[40] The critical test that applies under s 200 is whether publication would be likely to cause extreme hardship to any person connected with Mr Q or endanger the safety of any person.
[41] In R v N, Collins J made the following observation about the meaning of
“extreme hardship”:6
[22] The term “extreme hardship” is not defined in that Act, but should be interpreted consistently with the high threshold that was necessary to displace the presumption of publication at common law. This threshold was often described as a “compelling reason” or a “very special circumstance.”
[42] The threshold of extreme hardship was held to have been satisfied in BL v R where the fact that the appellant was at risk of committing suicide was considered sufficient to cross the threshold.7 In GWS v Police suppression was ordered where the daughter of the two defendants was considered at a risk of relapse into depressive and suicidal symptoms.8 By contrast in Biernat v R name suppression was refused.9
In that case, Pankhurst J accepted a submission that the stress that was present there was limited to that which was normally consequent on a criminal conviction.10
Furthermore, his Honour treated with caution the allegation that the appellant had in fact attempted suicide prior to the application being made.11 Both BL and Biernat related to sexual offending against children.
[43] In Beacon Media Group Ltd v Waititi, Gilbert J considered the meaning of the phrase “likely to”. Following a number of decisions that had defined the phrase in different areas of law, Gilbert J concluded that this phrase should mean:12
…more than a mere possibility but does not require proof that the concerns addressed by the section are more likely than not to eventuate. The discretion of the Court to make an order under s 202 will be engaged if it is shown that the stated harm or risk of harm is a real and appreciable possibility that cannot be dismissed or ignored as being remote or fanciful.
[44] In this case the District Court Judge noted that stress, anxiety and the possibility of family being publically exposed are typical consequences for
defendants and their families with this type of offending.
6 R v N [2012] NZHC 2042 at [21]-[22].
7 BL v R [2013] NZHC 2878.
8 GWS v Police [2013] NZHC 943.
9 Biernat v R [2013] NZHC 3478.
10 At [22].
11 At [20].
12 Beacon Media Group Ltd v Waititi, above n 1, at [21].
[45] The Court of Appeal in B (CA860/10) v R decided the Judge erred in the way in which he dealt with consequences to family members.13 The Court said that no attempts had been made to assess the weight that should attract, possibly because the District Court Judge saw public interest as the decisive consideration. The Court considered the Judge to have proceeded on the basis that no amount of injury to family members would be sufficient to displace the presumption in favour of open
reporting. The Court inferred that the Judge took the view that the orders he made in relation to individual family members would be effective to shield them from injury. The Court of Appeal said:
[24] Publication of Mr B’s name would plainly cause incalculable hurt to individual family members and the extended family as a group. Apart from the acute embarrassment it would cause on a personal level, it would undoubtedly compromise the ability of Ms B and her two daughters to do their jobs. It will inevitably cause distress to the children involved and has the potential to seriously disrupt their development.
[25] The suppression orders made by Judge Garland are unlikely to bring any significant benefit. The evidence is clear that the relationship of all family members to Mr B is widely known in the community in which they live. Publication of his name will cause immediate and unavoidable harm to them regardless of the suppression orders.
[26] Had the Judge fully considered the position of family members and appropriately weight the public interest in identifying the offender, we are satisfied he would not have denied the application. We consider his decision was plainly wrong and should not stand.
[46] Mr Foley submitted in this case that the Judge gave inadequate weight to the identified likely detriment to the appellant’s daughter being only five and half years old and sharing a “unique” family name. The Judge said that concerns of this type were very much a consequence of this type of offending for all children of offenders and he concluded that the section was not engaged.
[47] In B (CA860/10) v R the unusual surname was a material consideration in the Court of Appeal’s decision finding that publication “would inevitably cause stress to the children involved and have the potential to seriously disrupt their
development”.14
13 B (CA860/10) v R, above n 3.
14 At [24].
[48] In this case there was no challenge to the evidence that the appellant’s name is unique. As such, the result of publication will inevitably lead to the identification of the appellant’s young daughter. Given the nature of the offending there must be a real and appreciable possibility that there will be likely detrimental consequences to her should the appellant’s name be published.
[49] Arguably this is not sufficient to meet the test of extreme hardship, although it would certainly be callous indeed to expose a five and a half year old girl to those consequences. The case is made stronger, however, by the link between the likely impact on the appellant’s daughter, Mrs Q’s stress about that and the potential consequences to Mrs Q’s health, and therefore, to the appellant’s daughter.
[50] The appellant claims that the Judge gave inadequate weight to the risk to the appellant’s wife’s health. The Judge did not have the benefit of the additional medical evidence. The Judge said that stress, anxiety and adverse publicity are usual consequences for defendants and their families. In Mr Foley’s submission this failed to address or acknowledge the link between the “typical” consequences and the appellant’s wife’s serious heart condition which in his submission cannot be considered “typical”. The risk is that the typical psychological consequences will trigger in the appellant’s wife a potentially fatal incident resulting from her rare inherited heart condition. The Judge noted it is a pre-existing condition but did not consider it sufficiently extreme to engage s 200. In Mr Foley’s submission the fact a condition is pre-existing cannot be a material consideration in deciding what weight should be placed on it. Furthermore, reference to “‘sufficiently extreme’ misstates the statutory tests”. The Court need only be satisfied that publication would be
“likely to… endanger the safety of any person”.15
[51] The fact that Mrs Q had a pre-existing condition supports the application. This is not a case of an offender’s wife alleging severe medical consequences or suicide risk as a result of the offending. Mrs Q suffers a serious existing medical condition. The medical evidence is that the stress of publication of Mr Q’s name and likely identification of his daughter is a source of marked psychological stress which
will expose her to a risk of serious cardiac arrhythmia.
15 Criminal Procedure Act 2011, s 200(2)(e).
[52] The Crown opposes the application notwithstanding the fresh medical evidence on the basis that there is not a clear link between publication of Mr Q’s name and the risk to Mrs Q. In Ms Small’s submission there needs to be a direct link between publication of the name and the impact on her medical condition otherwise offenders will be able to hide behind the cloak of secrecy. In Ms Small’s submission, Dr Smith was unable to quantify the risk.
[53] It would be an unusual doctor who would unequivocally state the level of risk in the context of a condition such as this one. What the Doctor has said, is that publication is a source of marked psychological stress and that it would expose her to a risk of a serious cardiac arrhythmia. He is unable to predict the magnitude of the risk but it is an avoidable one. He advises the Court that any decision to refuse suppression should take into account the risk of serious cardiac arrhythmia.
[54] Section 200 requires there to be a likelihood of causing extreme hardship or endangering the safety of any person. In this case the stated harm or risk of harm is a real and appreciable possibility. It cannot be dismissed or ignored as being remote or fanciful.
[55] In the case of K v Inland Revenue Department the appellant’s wife had attempted suicide following the refusal of the District Court to grant name suppression.16 The High Court on appeal decided suppression should be granted under s 200(2)(e).17 Williams J dealt with a submission from the Crown that s
200(2)(e) was designed to protect individuals from risk of actual physical harm because of the vigilantism or retribution. He said:18
While the Law Commission report in particular, suggests that danger to the safety of a defendant’s family was not in the contemplation of those whose recommendations produced the legislation, even less, self inflicted danger, the wording of s 200(2)(e) is clear and broad. It suggests that the open justice principle is not so powerful that it provides a reason to place individuals in harm’s way. That limit on open justice makes good sense. Nor does the provision contain any restriction on the ways in which the safety of individuals can be endangered. There is certainly no good reason
16 K v Inland Revenue Department [2013] NZHC 2426.
17 The decision was reversed in Inland Revenue Department [2013] NZHC 3474 because the Crown showed that there was no reliable evidence that the wife had attempted suicide in the past. The discussion in the original decision, however, remains informative.
18 K v Inland Revenue Department, above n 16, at [51].
to read the restrictions suggested by the Crown into the wording. If open justice will put individuals in danger, for any reason, the court has the power (and indeed ought to have the power) to prevent that occurring.
[56] I agree with the analysis. Section 200(2)(e) requires that publication will be likely to endanger the safety of any person. Mrs Q suffers from a condition associated with the occurrence of cardiac arrhythmias causing fainting or sudden death. The evidence is that publication of Mr Q’s name and thereby the likely identification of his daughter will expose her to risk of a serious cardiac arrhythmia. This must endanger the safety of Mrs Q. It also constitutes extreme hardship for her and her children. The test in s 200(2)(a) and (e) is met in those circumstances.
Should the discretion in s 200(1) be exercised?
[57] The threshold requirement in s 200(2) having been crossed I now need to consider whether to exercise the discretion in s 200(1).
[58] It is ultimately a question of balancing the harm likely to be caused by publication against the principle of open justice.19
[59] I have considered whether the alternative of suppressing the identity of Mrs Q and the daughters as related parties while permitting Mr Q’s identity to be published would suffice. However, given that the children share Mr Q’s unique surname the likely harm would not be prevented.
[60] I have carefully considered the evidence before me and potential harm to Mr Q’s family against the public interest in this case. Given the seriousness of the real and appreciable risk to the health of Mrs Q, I am satisfied that the balance in this case weighs in favour of non- publication and I exercise my discretion in favour of
granting the order sought.
19 Lewis v Wilson & Horton Ltd [2000] 3 NZLR 546 (CA) at 563-564.
Result
[61] I make an order under s 200(1) forbidding publication of the name and address of the appellant.
Thomas J
12