R v Burrett
[2016] NZHC 636
•11 April 2016
ORDER PROHIBITING PUBLICATION OF NAME(S), ADDRESS(ES) OR IDENTIFYING PARTICULARS OF CONNECTED PERSON(S) PURSUANT TO S 202 CRIMINAL PROCEDURE ACT 2011.
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
CRI-2015-009-002748 [2016] NZHC 636
R
v
ROBERT SELWYN BURRETT
Hearing: On the papers Counsel:
D L Elsmore for the Crown
R G Glover for the DefendantD Goldwater as counsel for School X R G Smedley as counsel for School Y
J J K Spring as counsel for Employer Z
Judgment:
11 April 2016
JUDGMENT OF NATION J
[1] In 2014 and 2015, Mr Burrett was the caretaker at a primary school in Christchurch (school X). While at the school and in a small shed on the school grounds, he committed serious sexual abuse offences involving children attending the school. Mr Burrett was also the driver of a bus for a major bus company (employer Z). In that capacity, he drove disabled children to another school (school Y). He has pleaded guilty to serious sexual abuse offences involving three children,
those offences having been committed when the particular child was on the bus.
R v BURRETT [2016] NZHC 636 [11 April 2016]
[2] Throughout the criminal proceedings against Mr Burrett, the names of the two schools and employer Z have been suppressed. All three applicants now seek permanent suppression orders and I must consider whether the interim suppression orders should continue.
The Law
[3] Section 202 of the Criminal Procedure Act 2011 (the Act) relevantly provides that:
202 Court may suppress identity of witnesses, victims, and connected persons
(1) A court that is hearing a proceeding in respect of an offence may make an order forbidding publication of the name, address, or occupation of any person who—
…
(b) is a victim of the offence; or
(c) is connected with the proceedings, or is connected with the person who is accused of, or convicted of, or acquitted of the offence.
(2) The court may make an order under subsection (1) only if the court is satisfied that publication would be likely to—
(a) cause undue hardship to the witness, victim, or connected person; or
…
(c) endanger the safety of any person; or
(d) lead to the identification of another person whose name is suppressed by order or by law; or
[4] For a person to be “connected with the proceedings”, they must be directly connected with matters before the Court in the sense of relating to or referring to the school or employer concerned.1
[5] The term “person” as used in s 202(1) could include a school or company. I
accept that school X, school Y and employer Z, children at these schools, children
1 R v Shapiro [2008] NZCA 151.
who travelled on the bus and their families are connected to the proceedings and to Mr Burrett as the person who has been convicted of the offences involved in these proceedings.
[6] I accept that, to establish that certain consequences are “likely” as the term is used in s 202(2), the outcome must be “more than a mere possibility but does not require proof that the concerns addressed by the section are more likely than not to eventuate”.2 I consider the expression “undue hardship” as used in s 202(2)(a) means hardship that is “excessive or greater than circumstances warrant”, that is to say it is disproportionate to the sort of harm that could normally arise through someone being connected to matters which were the subject of a criminal prosecution.3
[7] All those seeking suppression acknowledge the starting point for the Court considering any request for suppression is “the importance in a democracy of freedom of speech, open judicial proceedings, and the media’s right to report”.4
Crown submissions
[8] The Crown has supported the application by school Y. The Crown sought a final suppression order in relation to school Y on the grounds that publication of the school’s name could lead to identification of the victims. The Crown referred to the small number of disabled children who attend that school and of the smaller number who travel to school by bus or taxi, and also to the fact that none of the offending involving pupils of that school occurred while on school grounds. The Crown advised that none of the victims’ families wish to have the name of school Y published.
[9] The Crown reserved its position with regard to suppression of employer Z. The Crown did not seek suppression on the basis that publication of the company’s
name would likely lead to identification of the victims who did travel with the
2 Beacon Media Group Ltd v Waititi [2014] NZHC 281 at [21].
3 At [26]-[27]; R v Ratu [2013] NZHC 3085 at [39].
4 R v Shapiro, above n 1, at [19].
company because of the number of runs which it operates for the benefit of disabled children.
[10] I accept, however, that there is good reason why publication of the company’s name, along with other information, could lead to identification of the victims, particularly by members of the victims’ wider families who are associated with a victim who was disabled and who would know that that child does travel on a bus with that particular company to school.
[11] The Crown acknowledged there could be damage to the reputation of the company and an impact upon the confidence which other families might have in using that company’s service. The Crown was content to rely on the submissions which would be made for the company with regard to whether or not this would constitute “undue hardship”. The Crown advised that the families of the victims who travelled on employer Z’s bus have all said they do not wish to see the bus company’s name published.
[12] The Crown reserved its position with regard to the application for suppression made by school X. The Crown submitted that it was unlikely the publication of the school’s name would lead to identification of the victims “either inside or outside the school community” because it was well known within the school community that there had been a Police investigation into the caretaker, Mr Burrett. Mr Burrett has obviously not been at school in his employment since being arrested on these charges.
[13] I accept that, while knowledge of these matters must have already led to speculation within the school community as to which particular children may have been victims of the offending, publication of the school’s name would be likely to renew that speculation, could well result in further attempts to identify the victims of the offending and could lead to speculation and potential identification of the victims by people outside the school environment.
[14] The Crown acknowledges that publication of the school’s name could lead to a loss of reputation of the school within its community, criticism of the Board of
Governors and its headmaster. The Crown left it to the school to make submissions
as to whether this would constitute “undue hardship”.
[15] The Crown advised that, of the families of the nine pupils at the school who have been victims of Mr Burrett’s offending, two would like the school name published.
Discussion
[16] In considering all applications, I have regard to the fact there has been, and is likely to continue to be, extensive publicity as to the nature of Mr Burrett’s offending. There has also been extensive publication of his name. I have been advised that there has also been a careful investigation to see whether or not there could have been further victims of Mr Burrett’s offending, either at the school where he was employed as a caretaker or with children whom he drove to school. This is not a case where publication of the schools’ names or that of the bus company is likely to assist in identifying further victims of his offending.
School X
[17] In submissions for school X, Mr Goldwater has highlighted what he submits would be the likelihood of harm and hardship to pupils if details of the school were to be published.
[18] He relies on an affidavit from the principal. In that affidavit, the principal says:
[ … ]
[19] I agree with the principal’s view that the naming of the school is likely to spur unaffected pupils and their parents on an enquiry that is more likely than not to lead to the identification of the children who were the victims of the offender’s behaviour. I also accept his view that, if children at the school were to become aware of who the victims were, some of the children at the school could use the information in a way which could be harmful to the victims.
[20] I also accept that, if the school’s name is published, its reputation will suffer and that could well lead to any pupil who is attending the school at the time of the publication having a stigma attached to them through undeservedly being associated with events that were not of their making.
[21] The principal and the school recognise that the school had, and still has, an obligation to provide a safe and nurturing environment for its pupils and are thus horrified that the employment of Mr Burrett as caretaker has unwittingly provided him with the opportunity to offend in the way he has. In considering publication of the school’s name in connection with that offending, I have had regard to the fact that Mr Burrett will be sentenced on the basis he grossly abused the trust that was placed in him by the families of his victims and also by those who employed him.
[22] The Court is concerned with making it easier for the media to observe and report on what happens in Court, the decisions that are reached in Court and the basis on which those decisions have been reached. I do not consider that the need for open justice and access of the media to what happens in Court makes it necessary that they be able to publish the name of school X or any information that might lead to its identification. I do accept that publication could cause undue hardship to the school and to other children at the school and their families. I also accept publication of the school’s name could lead to the identification of victims whose names are suppressed by law.
[23] On that basis, I make an order for permanent suppression of the name of school X and any information that might lead to its identification.
School Y
[24] For school Y, it was submitted that publication of the school’s name will lead to the identification of victims of the offender whose names are suppressed. If the school’s name is published:
i. the victims of the offending will be identified, thereby subjecting them to a real risk of long-term harm, thereby endangering their safety; and
ii. the school, including its staff, students, former students and disabled students that it currently provides for will suffer lengthy, if not permanent, undue hardship; and
iii. there is a real risk that the […] programme, of which the school is an integral part, will be significantly adversely affected, causing undue hardship to the school and those that benefit from the programme.
[25] I accept that publication of the bus company’s name is likely to lead to the identification of victims of this offending. There has been and can be publication of the fact Mr Burrett committed offences with disabled children while driving them to their school. I acknowledge that, with that information, there may well already be speculation that certain children have been the victims of that offending, on the part of people associated with the victims who have known that they were disabled children and travel by bus to a particular school. Nevertheless, that speculation is likely to increase if the name of the school is published, just as it would have increased if I had permitted publication of a recent photograph of Mr Burrett. I have been advised by the Crown that the families of the victims are wishing to limit, as best they can, the further victimisation of their children through keeping what happened to their children confidential, even from siblings and members of their wider family. The Court should exercise caution before permitting any publication that would make it more difficult for the parents to achieve what they are aiming for in this regard.
[26] I also accept that there will be hardship to other disabled children who attend the school if the name of school Y is published given that there would then be speculation that other children, in addition to those who have been actual victims, might have been victims of this offending. Any speculation in that regard could result in unnecessary and distressing interactions with those other children or their family members.
[27] This risk is real given the small number of disabled children who attend school Y.
[28] I accept that, even if members of the victims’ wider families restrain themselves from questioning the victims or parents as to whether the particular child they were concerned with was a victim of the offending, publication of school Y’s name could well cause stress and anguish to those wider family members. That anguish would be increased if the parents felt they had no option but to respond to enquiries by confirming that a particular child was a victim.
[29] I thus accept that publication of school Y’s name could cause undue hardship to families associated with victims of Mr Burrett’s offending, other disabled children who attend the school and the families of those children.
[30] Those are all people with a connection to the proceedings and to Mr Burrett through the fact his offending occurred with disabled children whom he was transporting to school Y.
[31] I am also satisfied publication could cause undue hardship to staff and students currently associated with school Y, […]. I consider the publication of school Y’s name could suggest to members of the public that the school, in some way, unwittingly or otherwise, created an opportunity for this offending to occur. It cannot be assumed that those who would see publication of the school’s name would necessarily study the information as to the offending with the care necessary to recognise the reality that the offending did not occur when these children were at the school, and the school had nothing to do with the employment of Mr Burrett as the driver of the bus. I accept that the […] programme provided by the school is important to the school and to those who benefit from it. It would cause unnecessary and unwarranted harm to the school and its community if an apparent association between the school and Mr Burrett might deter families who would otherwise benefit from using the school’s […] programme from doing so or if they became unnecessarily apprehensive or nervous about doing so.
[32] I also do not consider publication of school Y’s name is necessary to ensure the media can report accurately on what has happened during the Court proceedings and the decisions which the Court will have to make.
[33] I thus make an order for the permanent suppression of the name or any information which would lead to the identification of school Y.
Employer Z
[34] Employer Z has also sought suppression on three grounds:
(a) First, that whilst identification of Employer [Z] may not in and of itself identify the victims, it may in conjunction with other available information enable their identification;
(b) Secondly, that the identification of Employer [Z] will inevitably cause undue hardship on other persons, namely families of children who are carried or were carried by Employer [Z] at or around the time of the defendant’s offending; and
(c) Lastly, that the identification of Employer [Z] will cause undue hardship to [Z] and its employees.
[35] I accept the employer is a person connected to the subject matter of the proceedings, given offending occurred with victims while they were being transported on one of its buses. I also accept it was connected to Mr Burrett through being his employer.
[36] Were it necessary for the media to be able to publicise the name of the bus company to accurately and fairly report on what has been said in Court or the decisions which the Court has reached, I would not have found the potential for damage to the company’s reputation or to its other employees to be of a degree sufficient to warrant suppression of its name. It is only Mr Burrett who was charged with the offending. There is no suggestion that any other employees or that the company, either negligently or knowingly, facilitated Mr Burrett’s offending in any way. There is no suggestion or information before me to suggest that the company acted negligently or otherwise than in accordance with industry practice in the way they vetted Mr Burrett before employing him. Mr Burrett will be sentenced on the basis that he was grossly in breach of the trust placed in him by the families of his victims and also by his employer.
[37] I am, however, satisfied that publication of the bus company’s name, in
conjunction with other information, could lead to identification of the victims and
could also lead to speculation from members of the wider families of victims and the families of other children who have travelled with that bus company, particularly disabled children, that either the victims or other children may have been the victims of Mr Burrett’s offending.
[38] For similar reasons as I have discussed in relation to school Y, I accept it is thus likely there could be undue hardship to other persons connected with the proceedings and through the company with Mr Burrett. Again, I do not consider that there is a real need for there to be publication of the employer’s name for the media to be able to fairly and accurately report on the proceedings and what happens in Court.
[39] For those reasons, I make an order for the permanent suppression of employer Z’s name in connection with these proceedings or with Mr Burrett.
[40] In recognition of the suppression orders, I have deleted references to certain information about the schools and the bus company from this judgment.
Solicitors:
Raymond, Donnelly & Co., Christchurch
Rupert Glover, Christchurch
David Goldwater, Barrister, Christchurch
Anthony Harper, Christchurch
Minter Ellison Rudd Watts, Auckland.
3
3
0