Quigley v The King

[2024] NZHC 481

IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY

I TE KŌTI MATUA O AOTEAROA WHAKATŪ ROHE

CRI-2024-442-3

[2024] NZHC 481

BETWEEN

LACHLAN QUIGLEY

Appellant

AND

THE KING

Respondent

Hearing:	6 March 2024
Appearances:	S Zindel and A N Sacheun for Appellant J M Webber for Respondent
Judgment:	7 March 2024

JUDGMENT OF CHURCHMAN J

Introduction

[1]    The appellant, Lachlan Quigley, was sentenced to 11 months’ home detention,1 with conditions including psychological assessment, for charges of unlawful sexual connection with a young person under the age of 16,2 making an objectionable publication,3 knowingly distributing an objectionable publication,4 possession of an objectionable publication5 and supplying alcohol to a minor.6

1      R v Quigley [2023] NZDC 27518.

2      Crimes Act 1961, s 134(1).

3      Films, Videos and Publications Classifications Act 1993, ss 123(1)(a) and 124.

4      Sections 123(1)(d) and 124.

5      Section 131.

6      Sale and Supply of Alcohol Act 2012, ss 241(1)–(2).

QUIGLEY v R [2024] NZHC 481 [7 March 2024]

[2]    The appellant sought permanent name suppression on the grounds that publication of his name would be likely to cause him and his father extreme hardship.

On 7 December 2023, Judge Rielly declined that application.7

[3]    The appellant appeals that decision. He submits that the Judge failed to consider that publication could risk the appellant’s rehabilitation and ability to reintegrate into the community. The appellant also submits that the element of personal deterrence is absent in this case and so publication would not prevent reoffending. The appellant also argues that the Judge failed to properly take into account the appellant’s youth and the impact of publication on his father’s employment.

[4]    The respondent opposes the appeal. It submits that the Judge made no error in her assessment of the evidence or in finding the threshold of extreme hardship was not met.

Background

[5]    The appellant’s convictions concern offending in June 2021 and sometime between 13 and 15 August  2021,  where  he  had  sex  with  the  victim,  who  was 15 years old at the time, and filmed and distributed a recording of that sexual interaction via the social media app Snapchat.

[6]    The appellant pleaded guilty, and was granted interim name suppression up until sentence.

District Court Decision

[7]    In declining the appellant’s application for permanent name suppression, the Judge found that the extreme hardship threshold was not met. She was not satisfied that there was a risk of the appellant being bullied and being “called out” on social media and found that any such risk fell far short of the threshold of extreme hardship. She reasoned that negative social media attention is a risk for all young people charged with criminal offending.

7      R v Quigley [2023] NZDC 28382 [Decision under appeal].

[8]    The Judge noted that the appellant’s father was genuine in his concerns about the potential adverse effect on his career, and his community’s perception of him as a manager in a local organisation and as someone involved in Civil Defence in a small community. However, the Judge did not accept that a responsible employer would take the view that the father’s reputation was tarnished by the appellant’s conduct and make decisions adverse to him as a result. She further found that there was no independent evidence that such negative flow on effects would eventuate should the appellant’s name be published.

[9]    The Judge found that since the jurisdictional threshold was not met, she did not need to consider the discretionary stage.

Submissions

Appellant’s submissions

[10]   The appellant submits that the Judge made a number of errors. He submits that the Judge failed to take into account that publication could risk his rehabilitation back into the community. He points to the fact there has been mainstream media coverage following sentencing, including by New Zealand Herald and the local newspaper, as well as hostile commentary on social media, such as on a New Zealand Herald Facebook page. The appellant contends that the public interest in the offending does not require the appellant’s name to be disclosed, and that publication would have him “in the digital stocks and pillory”.

[11]   The appellant also submits that since he has been assessed as at a low risk of re-offending due to lack of any previous sexual offences, remorse, and his motivation to rehabilitate, there is no supporting factor for publication of punishing or deterring the offender. Publication would not lead to discovery of further offending, nor limit opportunities for reoffending.

[12]   The appellant further submits that the Judge failed to properly consider the appellant’s youth and how publication would affect him more than someone who was older, as his convictions could trigger widespread public scorn and criticism. He draws comparison to R v M, where Winkelmann J pointed to the damage criminal

convictions can do to a young person’s employment and educational opportunities.8 The appellant contends that publication of his sexual offending would mean he could face hardship in obtaining a job many years after conviction, and that this has greater consequences for him as a young person.

[13]   The appellant also argues the Judge erred in finding that his father was not at risk of extreme hardship. The appellant submits that the Judge failed to sufficiently consider the cases cited by counsel, particularly P v R9 and H v R.10 He also claims that despite his father’s employer being a professional organisation, gossip and innuendo would tarnish his father’s reputation, and his father would lose the trust of his colleagues, which he relies on to be effective in his work. The appellant submits that the media is interested in the case and so his father will be the subject of negative media attention that an employer could not ignore.

[14]   He further contends that the Judge focussed on the potential consequences from his father’s secondary employer rather than the consequences for the clients of the organisation his father worked for. The appellant also submits that the Judge was incorrect in finding there was no independent evidence that his father would suffer flow on effects, as the father’s affidavit was sufficient. Additionally, seeking evidence from others would have defeated the purpose of keeping the appellant’s offending from public knowledge.

Respondent’s submissions

[15]   The respondent does not accept the appellant’s claims regarding rehabilitation and reintegration, and notes that these claims were not advanced at the hearing. Counsel argues the Judge correctly distinguished X v R11 from the present case, as there is no evidence of bullying or harassment towards the appellant. The two comments on the New Zealand Herald Facebook post are argued to not be evidence of significant public reaction or outcry, and do not come close to the public reaction to the sentencing of Jayden Meyer, nor the threshold of extreme hardship.

8      R v M [2014] NZHC 1848 at [38].

9      P v R [2018] NZCA 302.

10     H v R [2019] NZHC 2664.

11     X (CA226/2020) v R [2020] NZCA 387, (2020) 30 CRNZ 296.

[16]   The respondent submits that the appellant’s employment prospects were not advanced as a ground of his name suppression application, and it notes that his prospects for employment with the organisation, which his interim name suppression was partly premised on, are no longer viable. The respondent submits that the evidence that the appellant’s employment as an apprentice mechanic could be in jeopardy is wholly speculative and does not reach the threshold of extreme hardship.

[17]   In regard to the impact on the appellant’s father, the respondent submits that there was no evidence on the degree of contact between the father in his role as a manager of a service and the clients of the service. It also contends there was no objective evidence that the appellant’s father would lose his job or be viewed unfavourably in applications for other roles. The respondent submits that the Courts have repeatedly held that objective evidence of the risk of loss of employment is required, with subjective fears of the person being insufficient. It also does not accept that it is impossible to obtain independent evidence of such a risk without divulging the circumstances of the appellant’s offending.

Relevant law

[18]   Courts may suppress the identity of a defendant under s  200  of  the  Criminal Procedure Act. The starting point is the principle of open justice, which is “fundamental to the common law system of civil and criminal justice.”12 Courts have consistently emphasised a presumption in favour of openness in reporting.13 Publication is the norm. Suppression orders are only to be made in restricted circumstances and the threshold is high.14

[19]   An assessment under s 200 contemplates a two-stage analysis.15 The first stage is a threshold determination. The Court may only order name suppression if it is satisfied that one of the consequences listed in s 200(2) would be likely to follow if no

12 Erceg v Erceg [Publication restrictions] [2016] NZSC 135, [2017] 1 NZLR 310 at [2].

13 R v Liddell [1995] 1 NZLR 538 (CA) at 546. See also Proctor v R [1997] 1 NZLR 295 (CA) at 298–299; Robertson v Police [2015] NZCA 7 at [43]–[47]; and Re Victim X [2003] 3 NZLR 220 (CA) at 238.

14 Robertson v Police, above n 13, at [44].

15 Fagan v Serious Fraud Office [2013] NZCA 367 at [9]; and Robertson v Police, above n 13, at [39]–[41].

order were made.16 This first stage is met if the court is satisfied there is a real or appreciable risk that the consequence will follow from publication.17 It is not necessary to establish that the risk of harm is more likely than not to occur.18

[20]   If one of the threshold grounds under s 200(2) is met, the Court must then determine whether to exercise its discretion to suppress the defendant’s name.19 At this point, the Judge weighs the competing interests of the applicant and the public, taking into account such matters as the seriousness of the offending, the views of the victim, and the public interest in knowing the character of the offender.20 In exercising its discretion, the Court must weigh the competing interests of the applicant and the public interest in open justice. A high threshold must be reached before suppression is justified,21 and the balance must “come down clearly in favour of suppression”.22

[21]   Grounds for suppression of a defendant’s name under s 200(2) include if publication would be likely to cause extreme hardship to the person charged with the offence or undue harm to any person connected with that person. “Extreme hardship” under s 200(2)(a) requires evidence of a very high level of hardship which is plainly out  of the ordinary and greater than “undue” hardship as referred to  elsewhere in     s 200(2).23 When assessing the threshold determination for “extreme hardship”, the Court of Appeal in X v R held that the court should identify all likely hardship factors, and assess their cumulative effect.24 The Court considered no factor should be discounted on the basis that it is a usual consequence of the reporting of proceedings.

16 Fagan v Serious Fraud Office, above n 15, at [9].

17 Beacon Media Group Ltd v Waititi  [2014] NZHC 281 at [17]; Huang v Serious Fraud Office  [2017] NZCA 187 at [10]; Peglar v Police [2014] NZHC 1184 at [23]; and JM v R [2015] NZHC 426 at [33]–[36].

18 Beacon Media Group Ltd v Waititi, above n 17, at [17].

19     Fagan v Serious Fraud Office, above n 15, at [9]; and Robertson v Police, above n 13, at [39] and [41].

20     Robertson v Police, above n 13, at [41], citing Lewis v Wilson & Horton Ltd [2000] 3 NZLR 546 (CA) at [42].

21     Robertson v Police, above n 13, at [41]–[44].

22     Lewis v Wilson & Horton Ltd, above n 20, at [43], followed in D (CA443/2015) v Police [2015] NZCA 541, (2015) 27 CRNZ 614 at [12].

23     Robertson v Police, above n 13, at [48].

24     X v R, above n 11 at [40].

Approach to appeal

[22]   Section 283 of the Criminal Procedure Act provides a right of appeal against a decision of a court to make or refuse to make a suppression order. The court on appeal must adopt a similar approach to that taken in the District Court. An appeal against the first decision is a factual assessment and subject to the ordinary approach on a general appeal.25 The appellate court is entitled to come to its own opinion about the facts and the law.26 The Court must determine whether or not any of the threshold criteria in s 200(2) have been established. If the appellate court’s opinion is different, the lower court decision is regarded as erroneous even if it was a conclusion “on which minds might reasonably differ”.27

[23]   An appeal against the second limb is an appeal against discretion.28 An appellant must establish that the judge has “acted on some wrong principle, taken into account an irrelevant factor, ignored a relevant factor or was plainly wrong”.29 If there is such an error, the appellate court considers the discretion afresh.30

Analysis

First ground of appeal—impact on appellant

[24]   First, it is important to note that the appellant has raised issues that were not advanced before the District Court. These issues were the Judge’s alleged failure to consider the consequences of publication on the appellant’s rehabilitation, reintegration and career prospects. Normally, issues not raised by counsel in the court below cannot be raised on appeal without leave of the Court.31 However, I will address these issues in determining whether the decision arrived at in the Court below was plainly wrong.

25     Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141.

26 At [16].

27 At [16].

28     Wilson v R [2018] NZHC 1778 at [14].

29     Saggers v R [2012] NZCA 560 at [25]; and see B (CA860/10) v R [2011] NZCA 331 at [9]; and

Lawrence v R [2011] NZCA 272 at [11].

30     Kacem v Bashir [2010] NZSC 112, [2011] 2 NLZR 1 at [32].

31     Brodie v Turkmani [2017] NZHC 2945 at [18]–[20].

[25]   Judge Reilly was correct to find that the appellant was unable to establish that he faced a risk of extreme hardship. Although media interest in the appellant increased following sentencing, it is not comparable to the situation in X v R.32 That case concerned an incident at a Labour Party camp which received “unnaturally high” media attention, and involved a considerable amount of harmful misinformation, including the appellant being labelled a predator and a paedophile.33 The few negative social media comments that the appellant has pointed to were focussed more on the perceived leniency of the appellant’s sentence than on him specifically, and were far below the vitriol present in X v R.

[26]   I accept the respondent’s submission that publication is unlikely to gravely affect the appellant’s ability to reintegrate or rehabilitate, as those proximate to him are already aware of his offending. There was evidence that he has already lost friends due to the offending. That is unsurprising.

[27]    It is ironic that the reason that a number of the appellant’s friends became aware of his offending is because he made the deliberate decision to send them copies of the video that he had taken of himself having sex with a 15 year old girl. Although the deliberate sending of the video was to a limited group of friends, as opposed to his accidental posting of the video on Snapchat to a much wider audience, this counts against the argument that the appellant is concerned that publication of his name would result in him suffering extreme hardship in respect of his potential rehabilitation. As a result of his own action, his friends will already know what he did.

[28]   The Judge also did not err in considering the appellant’s youth and the consequences for his employment. The appellant is relatively young (21), and the courts have previously recognised that the degree of hardship suffered by a young person due to publication is greater than an adult, and that name suppression protects their prospects of rehabilitation.34 However, those cases generally concern much younger offenders in their teens who are yet to obtain employment. Here, the appellant already has employment as an apprentice mechanic, and there is no evidence that this

32     X v R, above n 11.

33 At [55].

34     R v Q [2014] NZHC 550 at [42].

was likely to be imperilled by his offending being revealed. The effect of the conviction on other roles he might apply for in the future is speculative. The situation in R v M,35 where Winkelmann J placed great weight on the consequences for the defendant as a young person, is not comparable as this concerned the consequences of conviction, not of publication, and concerned offending that resulted in another young man’s death.

[29]   Additionally, the appellant’s submission regarding the lack of a deterrent factor misunderstands the process by which name suppression is considered. As discussed, the presumption is open justice, and it needs to be shown, amongst other possible grounds, that there is a risk of extreme hardship for the appellant. The lack of a reason to publish an appellant’s name, such as a lack of a need to deter them from future offending, concerns the discretionary stage, not the threshold stage. It is not relevant until extreme hardship is made out. The concept of deterrence also applies to the need to deter others from committing the same sort of offending. If other young men realise that their name is likely to be published should they be convicted of such offending, that could well act as a deterrent to them.

Second ground of appeal — impact on father

[30]   The Judge similarly did not err in finding that publication of the appellant’s name would not cause the appellant’s father to suffer extreme hardship either. The decision of Collins J in Wilson v R36 is applicable to this case. In that case, the appellant’s wife was found not to be at risk of extreme hardship, as the Court held that an objective and responsible employer would not think ill of the wife merely due to her husband’s offending, and that the humiliation and distress she would no doubt suffer would fall far short of extreme hardship.37 The organisations that the appellant’s father has employment links with are both professional organisations that would have no basis upon which to attribute the appellant’s actions to his father. Although the appellant’s father, in his affidavit, makes clear it is his genuine belief he will face significant consequences, a subjective belief that is not rationally based is not

35     R v M, above n 8.

36     Wilson, above n 28.

37     At [36]–[37].

sufficient evidence of a risk of extreme hardship, as has been indicated in cases such as Blackwood v R.38

[31]   In relation to the issue raised around the relatively small community that the father works in, there are clear material differences between the circumstances here and those in P v R39 and H v R,40 which the appellant relies on. Those cases concerned more serious offending, and findings that publication threatened the offenders’ spouse’s only means of employment, and in the case of H v R, would also impact their teenaged children.

[32]   As has been noted by the respondent, the father’s role with his present employer is managerial, and no independent evidence has been raised to indicate he engages with his employer’s clients. Consequently, the Judge rightly found a risk of extreme hardship was not made out.

[33]   The appellant’s surname is not so distinctive that it’s publication would automatically identify who his father was, so there is no basis for suppressing the appellant’s name to avoid hardship to his father. I deal below with the issue of publication of the father’s full name and details of his employment which is a separate issue.

Suppression of the father’s name and occupation

[34]   During the hearing, counsel for the appellant submitted that the Court should grant name suppression to the appellant’s father and supress the identities of the father’s employers, either by exercising its inherent jurisdiction or through the powers granted by the Criminal Procedure Act.

[35]   The relevant jurisdiction for suppressing the names of connected persons is s202 of the Criminal Procedure Act. The Supreme Court in Siemer v Solicitor-General41 found that the wordings of ss 200, 202 and 205 of the

38     Blackwood v R [2017] NZHC 1262 at [10]–[11].

39     P v R, above n 9.

40     H v R, above n 10.

41     Siemer v Solicitor-General [2013] NZSC 68, [2013] 3 NZLR 441.

Criminal Procedure Act, which provide that orders may only be made if certain grounds are made out, exclude the inherent power to make orders of those kinds.42

[36]   Consequently, in order to make an order suppressing the father’s name and the details of his employers, the Court must be satisfied that there is a real risk that publication would cause undue hardship to the father.43 This is a lower threshold than that of extreme hardship in the case of suppression of the appellant’s name, but a high threshold nonetheless.

[37]   The ordinary consequences of a family member being convicted of offending, such as distress, embarrassment, and personal and financial consequences, do not constitute undue hardship.44 There is no evidence from the fathers’ employers around any consequences for his employment, nor any indication that suspicion will be cast on him, or that he would face any health risks. In Gupta these factors were found to be determinative,45 and I find they are here as well. The threshold stage under s 202 is not satisfied.

[38]   Despite an order suppressing the name of the appellant’s father and the details of his employment not being available, this does not mean that the media are likely to publish this information. The New Zealand Media Council Statement of Principles states that publishers should exercise particular care and discretion before identifying relatives of persons convicted or accused of crime where the reference to them is not relevant to the matter reported.46 Publication of the father’s details is not necessary to properly report on the offending, as he had no involvement in it.

Conclusion

[39]   The Judge did not err in her finding that the threshold for suppression of the appellant’s name was not met.

42 At [137].

43     Criminal Procedure Act, s 202(1)(c) and (2)(a).

44     R v Gupta and Jain [2019] NZHC 3401 at [17].

45     At [17]–[22].

46     New Zealand Media Council “Statement of Principles” < align="left">[40]   Since the threshold stage is not satisfied, consideration of the discretionary stage is unnecessary.

[41]The appeal is dismissed.

Churchman J

Solicitors:

Zindels Barristers & Solicitors, Nelson for Appellant Crown Solicitor, Nelson for Respondent