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…

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.

Continue reading R v Browne

Details

AGLC: R v Browne [2022] NZHC 708
Case: [2022] NZHC 708
Decision Date: 7 April 2022

CaseChat Overview and Summary

The case of R v Browne saw Ross Douglas Browne sentenced to six and a half years' imprisonment for sexual violation and indecency committed while he was a chaplain and teacher at Dilworth School in Auckland between 1987 and 2002. Ciarin Smith, a victim of Browne’s crimes, applied for an order under section 203(3)(b) of the Criminal Procedure Act 2011 to permit publication of his identity, which had been suppressed under the same Act. Smith sought to be interviewed on TVNZ’s "Sunday" programme to discuss his experiences and the school's handling of his case. He argued that allowing publication of his identity would help address ongoing issues of guilt and fear stemming from the incident.

The court was tasked with determining whether to grant Smith’s application to permit publication of his identity under the CPA. The legal issues included whether Smith met the statutory requirements for lifting the suppression order and if his decision to apply for the order was well-understood. The court considered Smith’s affidavit, where he expressed his understanding of the potential risks and benefits of revealing his identity. The court also examined whether permitting publication might inadvertently reveal the identity of other victims.

In granting the application, the court found that Smith was over 18 years of age and understood the implications of his decision. The court concluded that Smith’s application met the statutory criteria, and no other victims would be inadvertently exposed by publishing his identity. Therefore, the court ordered that Smith’s identity as a complainant in the prosecution of Ross Douglas Browne could be published.

Orders