R v New Zealand Customs

[2019] NZHC 882

NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS OF APPELLANT PROHIBITED BY S 201 OF THE CRIMINAL PROCEDURE ACT 2011 UNTIL 5.00 PM, 18 JULY 2019 OR FURTHER ORDER OF THE COURT. SEE

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2019-404-132

[2019] NZHC 882

BETWEEN

R

Appellant

AND

NEW ZEALAND CUSTOMS

Respondent

Hearing:

16 April 2019

Counsel:

C Tuck for Appellant

R Thompson for Respondent

Judgment:

18 April 2019

JUDGMENT OF WHATA J

This judgment was delivered by me on 18 April 2019 at 3.00 pm

Registrar/Deputy Registrar Date: ………………………….

Solicitors:           Meredith Connell, Auckland

R v NEW ZEALAND CUSTOMS [2019] NZHC 882 [18 April 2019]

[1]    R has entered guilty pleas to 13 charges related to objectionable publications. Three of the charges are representative charges. The gravity of this offending is reflected by the fact that R will face a lengthy term of imprisonment. R, nevertheless, applied for permanent name suppression. This application was declined by Judge Jelas. He now appeals that decision on the basis that the Judge gave insufficient weight to the effect the publication of R’s name would have on the health of R’s mother.

[2]    At the hearing I indicated to counsel that I would allow the appeal on a limited basis, namely, to impose name suppression for three months while R’s mother embarks on her path to recovery from surgery for bowel cancer.  Reasonably, in my view,  Ms Thompson did not oppose this course.

[3]My reasons now follow.

Background

[4]    It is unnecessary to narrate the offending in detail. It was serious offending of its kind, involving the exportation and/or importation of objectionable material, including video footage of a young child performing oral sex on an adult male, penetrative penile violation by an adult male of a boy aged only 16 months, children involved in sexual intercourse, and a recording of the defendant involved in sexual touching of a child.

The District Court judgment

[5]    R’s primary ground for suppression in the District Court, as here, is that his parents will suffer extreme hardship if his name is published. This claim was supported by, among other things, a report of Barry Kirker, a psychologist. Judge Jelas acknowledged this report noting, among other things, the parents’ mental anguish, exacerbated by his mother’s recent diagnosis of bowel cancer. However, the Judge found that the consequences they have been experiencing or anticipate experiencing did not reach the required hardship threshold. She held that with appropriate oversight, their mental or physical health would not deteriorate significantly to the point where the effects upon either of them would be unduly harsh.

[6]    The Judge also referred to the parents’ connection to a church and noted that the elders of the church had demonstrated a positive and supportive response to the news. She expressed a hope that they will continue to support this family in need. She said there was no evidence that the impact from them will be negative. Finally, she considered the proposition that R (senior) would suffer undue hardship if his son’s name was published, as some readers might wrongly infer R (senior) was the person being prosecuted, not his son. She noted this possibility could be avoided by responsible reporting.

The evidence

[7]    Leave was sought and not opposed to produce further evidence about Mrs R’s condition. In the absence of any such opposition, leave was granted. Two aspects of the evidence resonated strongly with me. First, Mrs R’s doctor stated:

[Mrs R], was diagnosed with Sigmoid Cancer on 10 January 2019. Further investigations showed that there is already a liver metastasis present. [Mrs R] underwent surgery to remove the sigmoid cancer on the 25^th of February 2019, but the Surgeons are planning to do another operation to remove the cancer that has spread to her liver. This they have to do before she undergoes Chemotherapy.

[Mrs R] has a long and difficult treatment and recovery ahead of her and I have grave concerns that lifting her son’s name suppression will add to the suffering she is already experiencing and will adversely affect her chances of making a complete recovery.

[8]Second, Barry Kirkler, a clinical psychologist observed:

Research constantly identifies the strong relationship between physical and mental health. Any deterioration in [Mrs R’s] mental health would lead to further decompensation in her physical health, in particular her capacity to recover from cancer.

The threshold

[9]    The  application  for  permanent   name   suppression  is   made   pursuant  to s 200(2)(a) of the Criminal Procedure Act 2011. The relevant part of the section provides:

200     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;

[10]This is a high threshold. R must show that with the publication of his name: 1

(1)There is an appreciable risk of extreme hardship to his mother; and

(2)Suppression is justified, having regard to the appellant’s guilty pleas, the seriousness of the offending, and the public interest in open justice.

Evaluation

[11]   As both counsel agree, this is not an easy case. Mrs R is particularly vulnerable, at this point in time, to publication harm. She is in the very early stages of recovery from surgery for bowel cancer. She is due to undergo further surgery and then chemotherapy. While it is not possible to assess in quantitative terms either the scale of the publication harm or the likelihood that such harm will substantially impair Mrs R’s recovery, I am satisfied that, right now, there is an appreciable risk that her recovery will be impaired and with it the potential for a curative outcome.

[12]   I am not satisfied, however, that this provides a proper basis for permanent suppression. The available evidence falls short of showing that Mrs R will remain as vulnerable as she is presently to publication harm. In this regard, I agree with the Judge that she has good family support and it appears support from her local church community. That support should, over the longer term, buffer some of the publication harm to her. I also consider that the seriousness of the wrongdoing, and the nature of it, provides a very strong basis for publication.

1      See D (CA443/2015) v Police [2015] NZCA 541, (2015) 27 CRNZ 614 at [10]; Robertson v Police

[2015] NZCA 7 at [44].

[13]   But, with the benefit of the new evidence from her doctor, I am presently satisfied that while Mrs R is in the early stages of her recovery, a cautious approach is justified to best secure a potentially curative outcome. Failure to do so, in my view, would be to permit an appreciable risk of extreme harm to Mrs R.

[14]   I therefore allow the appeal on a limited basis. There shall be a suppression order for three months from today’s date to allow Mrs R to recover from surgery without the immediate prospect of publication. I reserve leave to R to reapply for permanent suppression. I wish to clearly signal, however, to R that this decision is a precautionary one at the outer boundary of the threshold for ongoing suppression. The public interest in publication of his name is very strong. There should be no expectation of ongoing suppression beyond this timeframe. Indeed, but for the fact Mrs R is in the early stages of her recovery, I would have been disinclined to make a suppression order.

Outcome

[15]   The appeal is allowed on a limited basis. There shall be suppression for a period of three months from today’s date, namely to 5.00 pm 18 July 2019. There should be no expectation of any further suppression, but leave is granted to R to reapply for permanent name suppression prior to that expiry date.