Quigley v The King

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA135/2024
[2024] NZCA 322

BETWEEN	LACHLAN WILLIAM QUIGLEY Applicant
AND	THE KING Respondent

Court:	Palmer, Brewer and Downs JJ
Counsel:	S J Zindel and A N Sacheun for Appellant B So for Respondent
Judgment: (On the papers)	17 July 2024 at 11am

JUDGMENT OF THE COURT

The application for leave to bring a second appeal is declined.

__________________________________________________________________

REASONS OF THE COURT

(Given by Downs J)

Lachlan Quigley pleaded guilty to charges of sexual connection with a young person, making an objectionable publication, knowingly distributing such a publication, possession of an objectionable publication, and supplying alcohol to a minor. Mr Quigley was sentenced to a term of 11 months’ home detention.[1]
[1]R v Quigley [2023] NZDC 27518.
Mr Quigley sought permanent name suppression on the basis publication of his name was likely to cause him, and/or his father, extreme hardship.[2] Judge J E Rielly concluded otherwise and dismissed the application.[3] Mr Quigley appealed to the High Court. Like Judge Rielly, Churchman J concluded the statutory threshold of a likelihood of extreme hardship was not met in relation to either Mr Quigley or his father.[4]
[2]Criminal Procedure Act 2011, s 200(2)(a).
[3]R v Quigley [2023] NZDC 28382.
[4]Quigley v R [2024] NZHC 481. Consequently, neither Churchman J nor Judge Rielly addressed discretionary considerations, including the presumption of open justice, which arise only when one of the statutory thresholds for suppression is established.
Mr Quigley seeks leave for a second appeal to this Court.
Leave may not be granted unless the Court is satisfied the appeal involves a matter of general or public importance or a miscarriage of justice may have occurred, or may occur, unless the appeal is heard.[5]
[5]Criminal Procedure Act, s 289(2).
Counsel for Mr Quigley contend the proposed appeal involves a matter of general or public importance, namely the correct interpretation of the terms “hardship” and “extreme hardship”.
We disagree. Unsurprisingly, the case law, including the recent decision of the Supreme Court in M (SC13/2023) v R,[6] establishes that these terms mean what they say.[7]
[6]M (SC13/2023) v R [2024] NZSC 29 at [69]–[70].
[7]See for example Robertson v Police [2015] NZCA 7 at [48]–[49].
Mr Zindel also contends Mr Quigley may suffer a miscarriage of justice unless the proposed appeal is heard because Judge Reilly and Churchman J were wrong to find the statutory threshold of a likelihood of extreme hardship was not met in relation to either Mr Quigley or his father.
We disagree for two reasons. First, the apprehended harm is speculative. In saying that, we do not doubt Mr Quigley and his father believe they will suffer (extreme) harm from publication of Mr Quigley’s name. But this does not make the apprehended harm any less speculative. Second, Mr Quigley confronts a concurrent determination, essentially of fact, that the threshold is not met. We see no prospect of that (concurrent) determination being successfully revisited given the speculative nature of the concerns about harm.
Perhaps anticipating this reasoning, Mr Zindel wishes to argue this places Mr Quigley and his father in an intolerable “Catch-22” situation, as it is not reasonable to expect either to identify independent evidence concerning the likelihood of extreme hardship. The answer to this contention is that name suppression is not available unless the identified threshold is met, and nothing in the record meets that threshold. This is not to conclude independent evidence is necessarily required in this context; no such rule exists. Rather, it is to emphasise the threshold is simply not met.

Result

The application for leave to bring a second appeal is declined.

Solicitors:
Zindels, Nelson for Applicant
Te Tari Ture o te Karauna | Crown Law Office, Wellington for Respondent

CaseChat Overview and Summary

In the Court of Appeal of New Zealand, Lachlan William Quigley, an appellant, applied for leave to bring a second appeal against a decision dismissing his application for permanent name suppression. The court, comprising Palmer, Brewer, and Downs JJ, declined the application. The case involved Quigley's conviction on several charges, including sexual connection with a young person and possession of objectionable publications. Quigley had previously been sentenced to 11 months’ home detention and sought name suppression, arguing that publication of his name would likely cause him and his father extreme hardship. Both Judge Rielly and Churchman J dismissed the application, concluding that the statutory threshold for extreme hardship had not been met. Quigley now sought leave for a second appeal to challenge the interpretation of "hardship" and "extreme hardship" as well as the factual determination that the threshold was not met.

The court considered the legal issues of whether the appeal involved a matter of general or public importance and whether a miscarriage of justice might occur unless the appeal was heard. Counsel for Quigley argued that the appeal concerned the correct interpretation of statutory terms and that a miscarriage of justice might occur due to the incorrect application of the statutory threshold. However, the court disagreed, finding that the terms in question were clear and that the concerns about harm were speculative. The court also noted that the threshold for name suppression had not been met, and that there was no prospect of successfully revisiting the factual determination given the speculative nature of the concerns. The court emphasised that name suppression is not available unless the statutory threshold is met, and found that this threshold was not met in Quigley's case.

The court concluded that the appeal did not involve a matter of general or public importance and that no miscarriage of justice was likely to occur. The application for leave to bring a second appeal was therefore declined. The court’s reasoning was based on the established case law regarding the interpretation of the statutory terms and the factual determination that the threshold for name suppression had not been met. The speculative nature of the concerns about harm further supported the court’s decision. The final orders of the court were that the application for leave to bring a second appeal was declined.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established