R v HC
[2024] NZHC 447
•5 March 2024
ORDER PROHIBITING PUBLICATION OF NAME(S), ADDRESS(ES), OCCUPATION(S) OR IDENTIFYING PARTICULARS OF
APPELLANT(S)/RESPONDENT(S)/DEFENDANT(S) ACQUITTEES(S) PURSUANT TO S 200 CRIMINAL PROCEDURE ACT 2011.
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI 2023-404-000618
[2024] NZHC 447
BETWEEN THE KING
Applicant
AND
HC
Respondent
CRI 2023-404-000619 BETWEEN
THE KING
ApplicantAND
NS
Respondent
Hearing: 22 February 2024 Appearances:
R K Thomson for the Applicant
A C Cresswell for the Respondent HC
R M Mansfield KC & R Buckley for the Respondent NSJudgment:
5 March 2024
JUDGMENT OF TAHANA J
(Appeal against permanent name suppression)
Solicitors/Counsel:
This judgment was delivered by me on 5 March 2024 at 3.00pm
…………………………
Registrar/Deputy Registrar
Crown Law, Wellington
R M Mansfield KC, Auckland Pōhutakawa Chambers, Auckland
R v HC & NS (appeal against permanent name suppression) [2024] NZHC 447 [5 March 2024]
Introduction
[1] The Crown appeals a decision dated 15 August 2023 of Judge J Bergseng in the Auckland District Court granting permanent name suppression to each of the respondents.1 The Judge provided reasons for that decision on 20 November 2023.2
[2] HC pleaded guilty to two charges of sexual connection with a young person.3 Those charges related to offending that took place between 1 November 2012 and 31 December 2013.
[3] NS pleaded guilty to a single charge of sexual connection with a young person.4 That charge relates to offending between 1 November 2012 and 23 February 2013.
[4] I must determine whether leave should be granted for the Crown to file its appeal out of time and if leave is granted, whether the sentencing Judge erred in granting permanent name suppression.
Background
[5] The charges relate to an investigation known as [redacted] which commenced in 2011. The investigation related to the activities of a group of young men who named themselves [redacted].
[6] In the latter part of 2013, publicity of the existence of the [redacted] became prominent. As a result, there was significant media attention surrounding the group. [redacted] concluded in 2014. No charges were laid at that time. There was a petition of some 110,000 signatures submitted to Parliament calling for action against the [redacted].
[7]Charges were laid against each respondent in December 2020.
1 R v HC & NS [2023] NZDC 17185.
2 R v HC & NS [2023] NZDC 25471.
3 Crimes Act 1961, s 134.
4 Section 134.
Offending against victim one
[8] Both HC and NS were involved in the offending against victim one. Both respondents were aged 16 years old at the time. Victim one was 14 years old.
[9] The respondents were friends and together with victim one would consume alcohol at NS’s home, in the garage which was known as “the [redacted] headquarters.”
[10] Victim one had sex with both respondents and an associate while victim one was intoxicated. Sometimes the respondents and others penetrated victim one with objects and took videos of her or committed other degrading acts.
Offending against victim two
[11] This offending relates to HC only. At the time, HC was 16 to 17 years old and victim two was 14 years old. The offending also occurred at the [redacted] headquarters.
[12] Victim two went back to the [redacted] headquarters with HC and an associate. HC and the associate had sex with victim two in various positions. Victim two said no to one position and pushed against HC because she wanted to stop.
District Court decisions
Sentencing and name suppression
[13] On 15 August 2023, the respondents were sentenced to home detention.5 In terms of name suppression, the Judge said:6
[156] Both of you have applied for permanent name suppression. That is opposed by at least one of the victims. After careful consideration, I have decided that you meet the requirements of extreme hardship and risk to yourselves and, accordingly, I am going to grant permanent name suppression. The reasons for granting name suppression will follow.
5 R v HC & NS, above n 1 at [152] to [153]. HC was sentenced to home detention for a period of 11 months and NS was sentenced to home detention for a period of six months.
6 At [156].
[14] On 9 November 2023, the Judge identified an issue with the sentences of home detention by reason of s 15B of the Sentencing Act 2002. The respondents were re- sentenced on 17 November 2023 to 12 months’ intensive supervision.7
Reasons for name suppression
[15] On 20 November 2023, the Judge issued reasons for granting permanent name suppression.8 The reasons given included that:
[44] The social media coverage in 2013 was extensive. Publication of their names at this point would almost inevitably lead again to the same calls for vigilante justice against them, possibly of a more extreme type in the current social environment of 2023.
[45] Given the previous threats and/or actual violence that both defendants have been subject to I was satisfied that publication would likely endanger the safety of both defendants. Further, publication would amount to extreme hardship to each of the defendants.
Procedural issue — extension of time
[16] An appeal must be filed within 20 working days after the date of the decision appealed.9 The Crown filed its appeal on 24 November 2023, being four days after the decision setting out the Judge’s reasons and 72 days after the decision of 15 August 2023 to grant permanent name suppression.
[17] The Court may at any time extend the time allowed for filing a notice of appeal under s 285(3) of the Criminal Procedure Act 2011 (CPA).
[18] Mr Mansfield KC for NS opposes an extension and says the delay offends youth justice principles. Mr Mansfield refers to the youth justice principles in s 5 of the Oranga Tamariki Act 1989. Those principles include that “decisions should be made and implemented promptly and in a time frame appropriate to the age and development of the child or young person.”10 Mr Mansfield says the filing of the appeal out of time has taken away certainty and finality. Further, that it is not in the interests of justice for the extension to be granted.
7 R v HC & NS [2023] NZDC 25487 at [14].
8 R v HC & NS, above n 2.
9 Criminal Procedure Act 2011, s 298.
10 Oranga Tamariki Act 1989, s 5(1)(b)(v).
[19] In considering where the interests of justice lie, it is relevant that the Crown did not receive the reasons for the decision until 20 November 2023. In the absence of reasons, it would have been more difficult for the Crown to reach an informed view as to whether there was any error in the Judge’s decision. Any expectation on NS’ part of certainty and finality needs to be viewed in that context. The Judge had indicated that reasons would follow so NS was aware that full reasons would not be provided until a later date.
[20] Further, the respondents have had the benefit of continued name suppression so there is no prejudice to them in allowing the extension. NS’ concern about finality does not outweigh the interests of justice in allowing an extension. Leave is therefore granted to the Crown to file the appeal out of time.
Applicable legal principles
Determining whether to grant name suppression
[21] Section 200 of the CPA confers a discretion on the court to grant name suppression, as follows:
Court may suppress identity of defendant
(1)A court may make an order forbidding publication of the name, address, or occupation of a person who is charged with, or convicted or acquitted of, an 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 extreme hardship to the person charged with, or convicted of, or acquitted of the offence, or any person connected with that person; or
…
(e) endanger the safety of any person; or
…
(3)The fact that a defendant is well known does not, of itself, mean that publication of his or her name will result in extreme hardship for the purposes of subsection (2) (a).
(4)Despite subsection (2), when a person who is charged with an offence first appears before the court the court may make an interim order
under subsection (1) if that person advances an arguable case that one of the grounds in subsection (2) applies.
…
(6) When determining whether to make an order or further order under subsection (1) that is to have effect permanently, a court must take into account any views of a victim of the offence conveyed in accordance with section 16B of the Victims’ Rights Act 2002.
[22] Determining whether to order name suppression involves a two-stage inquiry. First, whether any of the thresholds in s 200(2) have been established, and second, whether in the exercise of the court’s discretion, an order should be made.11 At the second stage, the principle of open justice is weighed against factors in favour of suppression, and the balance must “clearly favour” suppression for an order to be made.12 The ultimate question being whether open justice should yield.13 Factors to be weighed and considered in this case include the seriousness of the offending, the public interest in knowing each respondent’s character and identity, the public’s right to freedom of expression, the impact of publication on each respondent’s prospects of rehabilitation, the personal circumstances of each respondent, the interests of the victims, and the interests of other affected persons.14
[23] The Crown has a right of appeal against a suppression decision.15 The approach on appeal shifts between the two stages. An appeal against one of the threshold grounds is a general appeal by way of rehearing in accordance with the principles in Austin Nichols.16 An appeal against the discretionary stage is constrained and in the context of name suppression, the Court of Appeal provided the following guidance in Parker v R:17
[30] The discretion whether to suppress in the face of undue hardship is a true discretion, where a range of answers may be available and different results may reasonably be reached by different judges. Divergence in the case of discretion is not indicative of error. A degree of appellate deference applies. The discretionary decision must be wrong, fundamentally, in one or more of these four respects: the Judge made an error of law or principle, failed to take into account some relevant matter, took into account an irrelevant matter, or
11 D (CA443/2015) v Police [2015] NZCA 541 at [10].
12 At [12].
13 At [12].
14 At [12].
15 Criminal Procedure Act 2011, s 283.
16 Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141 at [16].
17 Parker v R [2020] NZCA 502.
was plainly wrong. If not, the first instance decision should stand and appellate courts ought not interfere with it. The Criminal Procedure Act does not invite a revisiting of the merits of a suppression application, as if ab initio, on and up the appellate trail.
Youth justice principles
[24] The respondents argue that youth justice principles are also relevant given their respective ages at the time of the offending. Had the respondents been charged at the time of the offending when they were youths, they would have received automatic name suppression under s 438 of the Oranga Tamariki Act.
[25] The Crown says that because the respondents were adults at the time of the proceeding, they cannot claim the full force of youth. The Crown accepts the respondents’ youth at the time of offending is relevant to sentencing, culpability and “could factor into their claim to extreme hardship.” Given the respondents are now adults however, the impact of publication is to be viewed in that context where their respective maturity is greater than when they were young.
[26] The Crown refers to the dates of the offending being November 2012 to December 2013 and the police investigation which commenced on 4 November 2013. Each of the respondent’s turned 17 years’ old in the earlier months of 2013. The offending for which NS was charged all occurred when he was 16 years’ old while HC turned 17 years old when the offending against victim two occurred.
[27] The Crown says at the time of the offending, Youth Court jurisdiction only extended to persons over the age of 14 years but under 17 years.18 Any charges would therefore have had to have been brought before each respondent turned 17 years old in early 2013.
[28] While the police investigation did not start until 4 November 2013, the fact that the offending occurred while each respondent was 16 years’ old indicates they
18 Children, Young Persons, and Their Families Act 1989, s 2.
could have been subject to the Youth Court’s jurisdiction if charged earlier.19 That was a possibility so is a relevant factor when considering the second stage of the analysis.
[29] I now consider the Judge’s reasoning in deciding to grant permanent name suppression to determine whether there was any error in either stage of the analysis.
Analysis
[30]The Crown says that the Judge erred, as follows:
(a)in finding publication of the respondents’ names would likely endanger their safety: the finding that they had been assaulted because of their association with the [redacted] in the past was made without an evidential foundation, and there is no evidence that renewed online vitriol will lead to violence against them;
(b)in finding that extreme hardship would likely be caused to the respondents by publication of their names: both respondents attest to their activities with the [redacted] being widely known and so the consequences of publication have largely already occurred; and
(c)in exercising discretion to order name suppression: the Judge failed to undertake the second stage of the inquiry, thus failing to consider relevant considerations including the importance of open justice and the public interest in knowing the outcome of these prosecutions after the initial decision not to charge the respondents.
[31] I consider each of the Crown’s grounds of appeal in turn by first considering stage one of the analysis which requires that the court be satisfied that publication would be likely to endanger the safety of any person or cause extreme hardship.
19 I note that HC was 17 years old for a number of months during the period of the offending against victim two so he would not have been subject to the Youth Court’s jurisdiction for that period of the offending.
Danger to safety
[32] In finding that publication would likely endanger the safety of the respondents, the Judge considered that publication would “almost inevitably lead again to the same calls for vigilante justice” which were made on social media in 2013 and 2014 and to “the previous threats and/or actual violence that both defendants have been subject to.”20
[33] The Crown says there was no evidential foundation for the finding that both respondents had suffered actual violence prompted by the threats made on social media; nor for the conclusion that their safety would likely be endangered if their names were published.
[34]It is therefore necessary to consider the evidence before the Judge.
[35]The Judge referred to a sample of social media postings in 2013:
[40] A sample of the social media posting are attached to Mr NS’s affidavit. Exhibit A refers to the Facebook pages “Lock up the [redacted]” which has 2800 likes and followers and “[redacted] Should Be Put Behind Bars – They Are Rapists” that has 9,400 likes and 9,200 followers. Some of the messages posted to social media included “You fucking sick cunt, the public is gonna get you if the cops don’t, watch out boy, your fucked”, “…I hope your dick shrivels off. God help you if I see you. You are the devil. I hope being outed haunts you. You deserve to be thrown in jail. And trust me it will happen. Do you know what they do to rapists in prison…? They rape them. I hope you have lube. It’s going to be painful”, “fuckn faggot im still gonna get you…pick up your nuts meet me somewhere your mine…”, “come see me boy…dead man walking your family name and you are marked for life now bro. come see me…wont be surprised if you don’t see the end of 2013. Some angry people out thre” and “I’m gonna fuckn smash your face in when I see you cunt…over your shit. I’m gonna make you cry film it and post it on Facebook.”
[36] HC provided affidavit evidence of what happened to him after the social media posts, as follows:
When the [redacted] scandal hit the papers, I had finished school and was staying at my Aunty’s home in West Auckland. The day the story broke, I immediately began to receive abuse and threats. People started coming to the house, walking around, and my aunty had to pull the curtains closed. We stayed inside and locked the doors. My aunty and I were in tears. Hours after
20 R v HC & NS, above n 2 at [44] and [45].
the story broke, I checked Facebook and there were hundreds and hundreds of comments on there, about me, abusing me.
In the first hour I received hundreds of messages and comments. I went onto the [redacted] Facebook page – all the comments on my pages were death threats, abuse, and harmful comments. On my Facebook page, I had earlier posted photos of myself when I was young, and there were comments about me being a “rapist in the making” and other abuse.
…
Within a few months, around Christmas I came back up to Auckland. I stayed at my sister’s house and a neighbour of hers tried to attack me with a tyre iron, having become aware I was there. Police were called. Auckland was starting to be somewhere I didn’t want to come back to.
[37] HC was also assessed by a psychologist and the psychologist’s report21 includes HC’s account of another incident, as follows:
[HC] described significant disruption due to the negative public attention attracted by the actions of himself and his co-offenders. He described too that this attention continues to the present day, becoming more frequent when being actively reported by media. [HC] described receiving death threats through social media and messaging platforms, as well as being physically threatened on a number of occasions, at times with weapons. He spoke of one incident where an irate stranger tried to force [HC]’s vehicle off the road and then got out of his vehicle intending to assault [HC]. He said this occurred while he had his children in his car with him. He also said he believed that a “gang hit” had been directed on him, but his father’s reputation had been protective on this occasion. He described that while he finds such situations frightening and provocative, he recognises that responding aggressively would make the situation worse for him.
[38] The Crown says that HC’s affidavit does not report any physical violence following through on social media threats. I reject this submission and consider that the following evidence indicates violence and/or threats of violence:
(a)there was an attempt to attack HC with a tyre iron;
(b)there was an attempt to force HC’s car off the road in circumstances where his children were also in the car;
(c)HC was “physically threatened on a number of occasions, at times with weapons;” and
21 Dr Hamish Bartle Pre-sentence psychological assessment report to the Court (8 March 2023).
(d)HC received death threats.
[39] Whether someone’s safety is endangered, does not require that the person has been a victim of physical violence. I consider that attempts at physical violence (by seeking to drive a car off the road), threats with weapons (such as a tyre iron) and death threats are all relevant to whether there is a likelihood that publication will endanger HC’s safety. The fact that previous attempts were unsuccessful in physically injuring HC does not in my view, indicate that the Judge erred in finding that there were “previous threats and/or actual violence.” Next time, such attempts may be successful.
[40] Turning to whether there was an evidential foundation for the Judge to find that there was a danger to the safety of NS, NS also filed an affidavit deposing that:
I have been subject to randomised assaults in the past. I acknowledge that some of these were from people who knew my father, or to whom he owed money. However, people who also have connected me with the offending as result of social media and messaging. People drive past my house calling me a rapist on many occasions. When I have been randomly beaten up when out and during that I have been called a rapist. And even recently, after I plead guilty to the charge, I received a note in my letter box calling me a rapist. That is not to mention all the many social media posts and messages I have received calling me names and threatening me and my family with actual violence. These are from people I do not even know. It seems that people feel justified to act this way because of the reporting and the community response.
…
As noted already, when the [redacted] first made headlines, people made Facebook groups dedicated to beating us up…. The mere existence of these groups made me fearful for my life and my family’s life. Being on the receiving end of vigilante justice I genuinely do not put it past someone to want me hurt or even dead because of this offending. The reporting and community response to date, would make them empowered and perhaps thanked for doing so.
It is I suppose possible that the landscape is now changed, and people are less angry and prone to resort to using violence as they were in 2013. I trust that any media reporting would at least be objective. But I do not have that confidence and live in constant fear that even just one person, out of the hundreds of thousands of people interested in this case, will seek to take justice into their own hands and put my family, or me, at risk. I do not sadly think this is an unreasonable concern on my behalf.
[41] NS was also assessed by a clinical and neuropsychologist, Sabine Visser, who reported that:22
[NS] also lives in constant fear that he would be identified in the media and that he would then be exposed to violence from others as a result of his involvement in the matters before the court. In this relation [NS] informed that before our last meeting he heard had rumours that someone was looking for him to assault him on behalf of the victim. He informed at the second interview that he had been assaulted twice since our last meeting with injuries to his face (bruising and a broken nose) [NS] stated that he thought he had suffered a concussion. He explained that he had suffered two seizures since the assault both leading to [NS] losing consciousness for a short time and waking on the floor. [NS] has not sought any medical attention or informed police due to his fear of further retribution.
[42] In the case of NS, there is evidence of actual physical violence including being “assaulted twice” so I reject the Crown’s submission that there was no evidential foundation for the Judge’s finding of actual violence.
[43] The Crown then says that there is no evidence that the online threats had prompted physical violence against the offenders. In circumstances where the respondents have provided evidence of social media posts, followed by in-person threats towards the respondents, attempts at physical violence against them and actual physical violence against NS, it was open to the Judge to find that social media prompted those threats, attempts at violence and actual violence.
[44] The Crown says neither of the respondents has ever complained to police of vigilante violence against them. HC gave evidence that he went to police on the day the “scandal” hit the papers and after he received messages and comments. I accept that NS did not go to police after he was assaulted but I do not infer from his failure to report to police that the assaults did not happen.
[45] The Crown argues that there “is real evidence that actual violence will not result from the online vitriol: it has not done so in the past.” This submission ignores the evidence of actual assaults on NS and requires the Court to ignore attempts at violence against HC. The fact that previous attempts at violence did not result in actual injury is not evidence that in the future, such attempts will not be successful. The issue
22 Sabine Visser Re: [NS] (24 April 2023).
is whether publication would be likely to endanger safety and the fact of previous threats to safety, after social media indicates that it is likely to happen again.
[46] The Crown then says that those who threatened the respondents likely already knew them because of social media commentary so any danger to safety would not arise from publication now. The Crown submits that the Judge made a “leap” from social media to a risk of violence in the absence of evidence.
[47] The Crown then says that in no other case has the Court made the leap from social media threats to an actual risk of violence and refers to Durrant v Police23, S v R24 and LF (CA596/2022) v R.25
[48] In Durrant, this Court was not convinced there was a “real risk of vigilantism or retributive offending against the defendants or even their families”.26 The Court did not consider the Judge had erred in finding that there was no such risk.
[49]In S v R, in referring to social media, the Court noted that27:
[15] As the Judge pointed out, abusive and threatening messages to the appellant and G, as well as commentary on social media, began before charges were laid. This extended also to the appellant’s employer and parents. Many of these referred to the fact that the appellant was a murderer and would be going to prison. The messages and posts would have been distressing for the appellant and her family and plainly ignored her right to the presumption of innocence. Without more, however, we do not consider they jeopardised her fair trial rights. Furthermore, it is likely that those who were privy to the online posts already knew the appellant’s identity.
(footnotes omitted).
[50] It is clear from the above passage that threats alone “[w]ithout more” may not be enough to jeopardise fair trial rights. Further, the Court considered that those who were privy to the posts, likely already knew the appellant’s identity.
23 Durrant v Police [2019] NZHC 582 at [29].
24 S v R [2022] NZCA 383 at [17].
25 LF (CA596/2022) v R [2022] NZCA 656 at [24].
26 Durrant v Police, above n 23 at [29].
27 S v R, above n 24 at [15].
[51] In LF, the sentencing Judge accepted there had been an attack on the family home and there was a risk of more attacks, but pointed out that they are likely attributable to people already familiar with the background.28 Further, the Court in LF considered that “there is a risk of social media vigilantism but there was little evidence of it having occurred to date.”29
[52] The above decisions indicate that the Courts have considered that where there is negative social media commentary, even where it constitutes “vigilantism,” more is required to establish extreme hardship or a danger to safety. It depends on the circumstances of each case. Here, the Judge relied on evidence of actual violence and/or threats of violence after previous social media commentary and then went on to consider the nature of any future social media commentary if the respondents’ names were published.
[53] In considering the likely social media commentary, the Judge referred to the Court of Appeal’s decision in X v R where the court observed that:30
[c]ommentary about a case or about a defendant on social media is a very different matter. There can be no reasonable expectation that such reportage will be fair or accurate. And there is no realistic way of controlling its content or its spread, particularly in a high profile and politically controversial case. In our view this is a problem with which the Courts have yet fully to grapple, particularly in the context of suppression under s 200(2)(a), where a defendant is young and, so, especially vulnerable to trolling, doxing, and internet vigilantism.
(footnotes omitted)
[54] The Court in X v R found that much of the social media commentary was abusive, threatening or disseminated misinformation. If the offender's name was published such comments would then be directly linked to, or directed at, the offender personally. The nature and magnitude of public shaming could not be said to be an ordinary consequence of publication. The Court distinguished the hardship associated in mainstream media with that in social media.31 The "potential hardship caused by the pernicious, judgemental, exponential, indelible, and often ill-informed publication
28 LF (CA596/2022) v R, above n 25 at [24] citing R v LF [2022] NZDC 8361 at [73].
29 LF (CA596/2022) v R, above n 25 at [24] citing R v LF above n 28 at [73].
30 X v R [2020] NZCA 387 at [49].
31 At [47]-[48], and [52].
on social media platforms is of a quite different magnitude."32 Young people were "particularly vulnerable" to this form of hardship.33 The Court of Appeal concluded that the public shaming would likely endure and was not an ordinary consequence of publication. The extreme hardship test was met, and the Court exercised its discretion to grant permanent name suppression.
[55] After considering X v R, the Judge set out the social media postings from 2013. He noted that both respondents have accepted responsibility and the offending had taken place 10 years ago when they were aged 16 and 17. He noted that much of the reporting and commentary was predicated on offending that constituted sexual violation by rape and unlawful sexual connection and those were not the charges against the respondents. This indicates that the Judge considered that misinformation as to the nature of the charges was likely with any future publication.
[56] In that context, the Judge concluded that publication “would almost inevitably lead again to the same calls for vigilante justice against them, possibly of a more extreme type in the current social environment of 2023.”34 The Judge considered historical social media commentary, evidence of threats and actual violence against the respondents after that commentary and the likely future social media commentary before being satisfied that publication would be likely to endanger safety. I am therefore satisfied the Judge did not “leap” from social media commentary to being satisfied that publication would be likely to endanger safety without any evidential foundation.
[57] Mr Mansfield provided examples of social media commentary since sentencing, which includes the following statements:
"[c]ommit multiple rapes, get Playstation time.”
“How in any sane world can rape not end up in a jail sentence.” “It was rape. And it was fully the rapist’s fault, not theirs.” “Unlawful sexual connection = / = sexual violation by rape.”
32 At [52].
33 At [53].
34 R v HC & NS, above n 2 at [44].
[58] The above commentary indicates that the Judge’s observation that future commentary would likely include misinformation was correct. The respondents were not charged with unlawful sexual connection or sexual violation by rape. While some comments sought to clarify the actual charges, far more expressed outrage because of their view that the respondents had engaged in rape.
[59] For the above reasons, I am satisfied that the Judge did not err in finding that publication is likely to endanger safety.
[60] I now consider whether the Judge erred in finding that publication would cause extreme hardship.
Extreme hardship
[61] The Crown acknowledges that the Judge appears to have considered that the respondents were likely to suffer extreme hardship by reason of the risk to their safety and not by reason of social media commentary alone. The Crown says that exposure to online criticism does not constitute “extreme hardship.” I do not consider that the Judge’s notes indicate a finding of extreme hardship arising from social media commentary alone in circumstances where the Judge said:35
[44] The social media coverage in 2013 was extensive. Publication of their names at this point would almost inevitably lead again to the same calls for vigilante justice against them, possibly of a more extreme type in the current social environment of 2023.
[45] Given the previous threats and/or actual violence that both defendants have been subject to I was satisfied that publication would likely endanger the safety of both defendants. Further, publication would amount to extreme hardship to each of the defendants.
[62] It was the likelihood of publication leading to calls for vigilante justice possibly of a more extreme type and evidence of previous threats and/or actual violence that led to the finding that publication would be likely to cause extreme hardship. In those circumstances, I do not consider that the Judge relied on social media commentary alone but rather it was the finding as to the likelihood of danger to safety that led to the Judge being satisfied that publication would also cause extreme hardship.
35 At [44] and [45].
Mitigation of risks
[63] The courts have accepted that it is relevant to consider whether risks may be mitigated. In the context of a suicide risk the courts have acknowledged that Corrections supervision may mitigate the risk or counselling may mitigate the risk to mental health.36 Here, the Crown asserts that reporting to the police would appropriately mitigate the risk of danger to safety and extreme hardship.
[64] I accept that reporting to the police will assist in responding to threats, but it cannot assist at the time that an assault takes place, especially in circumstances where a respondent does not know the identity of potential perpetrators. Reporting to the police also cannot assist if action is taken by those who see publication and/or social media commentary but do not make any threats before acting. In those circumstances, I do not accept that reporting to the police indicates that the danger to safety or extreme hardship can be mitigated.
[65] I turn now to consider whether the Judge erred in the second stage of the analysis in exercising discretion to grant permanent name suppression.
Exercise of discretion
[66] The Crown says that the Judge failed to consider the second stage of the analysis in determining to grant name suppression.
[67] The Judge accepted that name suppression involves a two-stage analysis and referred to Robertson v Police where the Court held that at the second stage: 37
… the judge weighs the competing interests of the applicant and the public, taking into account such matters as whether the applicant has been convicted, the seriousness of the offending, the views of the victims and the public interest in knowing the character of the offender.
36 For example, counselling as a protective measure against mental health decline or Corrections supervision against suicide in custody: D (CA443/2015) v Police above n 11 at [30]; and Hawea- Edwards v R [2021] NZCA 52 at [47]-[48].
37 R v HC & NS, above n 2 at [8] citing Robertson v Police [2015] NZCA 7 at [41].
[68] The Judge also noted that the ultimate question is whether after balancing the relevant considerations, the principle of open justice should yield to suppression.38
[69] While the Judge did not expressly refer to the second stage, the Judge did consider the views of the victims, the nature of the offending, the risk of reoffending and the respondents’ ages at the time of the offending.
[70] The Judge noted that both victims of the offending have been significantly impacted and at least one opposed name suppression being granted.39 I understand from the Crown’s submissions that both victims oppose name suppression. That factor weighs against suppression.
[71] The Judge noted that both respondents have accepted responsibility and the offending took place when they were aged 16 and 17. Given their age at the time of the offending, the Judge observed that the case could have proceeded through the Youth Court where their identities would have been automatically suppressed.40 That is correct in so far as any offending occurred while each respondent was 16 years’ old but would not apply to HC’s offending against victim two for the period when he was aged 17.
[72] The Judge noted that since the offending, there had been no further charges nor allegations of similar sexual offending. The risk of reoffending is relevant to the public interest in knowing the respondents’ identity. The greater the risk of reoffending, the greater the public interest in knowing the respondents’ names.
[73] I accept, as the Crown submits, that there is high public interest in the case. The initial investigation preceded and anticipated the international “me too” movement. Sexual offending against young women raises valid and important issues of public interest. The circumstances of the offending raise legitimate public interest issues about the vulnerability of young women and the behaviour of young men. The way in which the criminal justice system responds to victims is also a valid issue of public interest.
38 At [11].
39 At [12].
40 At [42].
[74] Further, there is a legitimate interest in further complainants being encouraged to come forward. Here, there has been wide publicity about the [redacted] but there is a possibility that publication of the respondents’ names may result in further complainants coming forward.
[75] The Crown says that freedom of speech means a “far wider latitude is granted to express anger in verbal form than in violent actions.” I accept that people are free to express their anger, but that freedom is subject to our criminal laws. Section 306 of the Crimes Act 1961 provides that:
Everyone is liable to imprisonment for a term not exceeding 7 years who—
(a)Threatens to kill or do grievous bodily harm to any person; or
(b)Sends or causes to be received, knowing the contents thereof, any letter or writing containing any threat to kill or do grievous bodily harm to any person.
[76] The law does not condone threats of the above nature so freedom of speech is to be viewed in that context, particularly as is the case here, where there is a history of threats of violence and actual violence.
[77] There is also public interest in knowing the outcome of the proceedings. Publication will inform the public that the respondents have pleaded guilty and been sentenced in accordance with s 15B of the Sentencing Act 2002. The public will be aware of the outcome of the investigation and proceedings, and the nature of the offending. The key issue is whether the public interest also requires that the public know the respondents’ names.
[78] I consider that in circumstances where publication would likely endanger the safety of the respondents, the balance clearly favours suppression. I am not therefore satisfied that the Judge erred in granting permanent name suppression.
Result
[79]The appeal is dismissed.
Tahana J
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