R v Browne

[2022] NZHC 708

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2021-404-340

[2022] NZHC 708

THE QUEEN

v

ROSS DOUGLAS BROWNE

On papers
Counsel:	R K P Stewart for Mr Smith
Judgment:	7 April 2022

JUDGMENT OF TOOGOOD J

[Order under Criminal Procedure Act 2011, s203(3)(b) permitting publication of the name of Ciarin Smith]

This judgment was delivered by me on 7 April 2022 at 1.30pm.

Registrar/Deputy Registrar Date:

Counsel:
Robert Stewart, Auckland

Copy to:

Crown Solicitor, Auckland Katrina Hamblin, Auckland

R v BROWNE [2022] NZHC 708 [7 April 2022]

[1]    On 2 December 2021, Ross Douglas Browne was sentenced to six and a half years’ imprisonment on charges of sexual violation and indecency, offending which occurred while he was the chaplain and a teacher at Dilworth School in Auckland between 1987 and 2002.1 Mr Browne had pleaded guilty to the charges on 6 October 2021. Ciarin Smith, now aged 33, was one of his victims and a complainant in the prosecution.

[2]    Mr Smith’s identity was  automatically  suppressed  from  publication  under s 203(3) of the Criminal Procedure Act 2011 (CPA). He now applies, however, for an order under s 203(3)(b) permitting publication of his identity.

[3]    In his affidavit in support of the application, Mr Smith says that he has been approached to be interviewed on TVNZ’s “Sunday” programme regarding his experience at Dilworth and the actions taken by the school in sending him to counselling at an organisation which provided counselling services for sexual offenders. The reason for that reference was that Mr Smith, as a 16-year old, had had sexual contact with minors; in other words, he was treated as an offender rather than as a victim.

[4]    For reasons which Mr Smith is likely to explain in the television interview, allowing him to be identified will enable him to address the issues of guilt and fear which continue to trouble him.

[5]Section 203 of the CPA provides, so far as is relevant:

203     Automatic suppression of identity of complainant in specified sexual cases

(1)This section applies if a person is accused or convicted of an offence against any of sections 128 to 142A or 144A of the Crimes Act 1961.

(2)The purpose of this section is to protect the complainant.

(3)No person may publish the name, address, or occupation of the complainant, unless—

(a)the complainant is aged 18 years or older; and

(b)the court, by order, permits such publication.

1      R v Browne [2021] NZHC 3286.

(4)The court must make an order referred to in subsection (3)(b) if—

(a)the complainant—

(i)is aged 18 years or older (whether or not he or she was aged 18 years or older when the offence was, or is alleged to have been, committed); and

(ii)applies to the court for such an order; and

(b)the court is satisfied that the complainant understands the nature and effect of his or her decision to apply to the court for the order; and

(c)in any case where publication of the identity of the complainant may lead to the identification of the person who is charged with or convicted of the offence, no order or further order has been made under section 200 prohibiting publication of the identity of that person.

….

[6]    In his affidavit, Mr Smith says he understands that allowing publication of his name will enable the public to know that he was a victim of Mr Browne and that, in coming forward publicly, he exposes himself to some risk. He says that the decision to make the application involved weighing the potential risk to himself against the potential value to other victims who might hear his story. Mr Smith says:

I firmly believe that the value my story has (unanonymised) holds more weight. It will also be a massive weight off my shoulders. What happened to me at Dilworth has had a significant impact on my life and has shaped me into the man I am today. The people who know me have a right to know the whole me.

[7]    I agree with Mr Smith that publishing his identity is unlikely to inadvertently expose to the public the identity of any other victim of Mr Browne’s offending.

[8]    The order sought by Mr Smith must be made by the Court if the grounds exist; the choice of permitting publication is that of the complainant. I do not consider the application is one that should be referred to Mr Browne or the Crown for a response. The only matters into which the Court might need to enquire are the complainant’s age at the time of the application (which must be 18 years or older) and whether the complainant understands the nature and effect of his or her decision to apply for the order. Moreover, since Mr Browne’s identity has been published, his interests will not be adversely affected by the order.

[9]    I am satisfied that the applicant, Ciarin Smith, is aged over 18 years and that he understands the nature and effect of his decision to apply to the Court for the order.

[10]   Accordingly, I order under s 203(3)(b) of the CPA that Mr Smith’s identity as a complainant in the prosecution of Ross Douglas Browne may be published.

Toogood J