Q v New Zealand Customs - [2014] NZHC 2398

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 Respondent

Judgment:

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…

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.

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Details

Case: [2014] NZHC 2398
Decision Date: 2 October 2014

CaseChat Overview and Summary

Mr Q, the appellant, pleaded guilty to exporting and possessing child pornography. He was sentenced to home detention. He sought to have his identity suppressed on the basis that publication would cause extreme hardship to his wife and daughter. The District Court declined to grant the application. The appellant appeals against this decision. The court finds the appeal has merit and orders that the appellant's name and address are suppressed. The court found that the District Court did not give adequate reasons for its decision and gave insufficient weight to the evidence of hardship. The appellant's wife suffers from a rare heart condition that puts her at a significantly higher risk of death between the ages of forty and sixty. The cardiologist's evidence is that publication of the appellant's name and likely identification of the daughter will expose her to a risk of a serious cardiac arrhythmia. This is a real and appreciable possibility and cannot be dismissed or ignored as being remote or fanciful. The evidence satisfies the threshold requirements of s 200(2) of the Criminal Procedure Act 2011. The court also considered the discretion in s 200(1). Given the seriousness of the real and appreciable risk to the health of the appellant's wife, the balance in this case weighs in favour of non-publication and the court exercises its discretion in favour of granting the order sought.

Orders