R v Nightingale
[2019] NZHC 2575
•10 October 2019
ORDER PROHIBITING PUBLICATION OF ANY PART OF PARAGRAPHS [15], [16] AND [18] OF THIS JUDGMENT. IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY
I TE KŌTI MATUA O AOTEAROA TE PAPAIOEA ROHE
CRI-2018-031-338
[2019] NZHC 2575
THE QUEEN v
PETER DRIES NIGHTINGALE
On papers Judgment:
10 October 2019
JUDGMENT OF DOBSON J
[Application for permanent name suppression]
[1] In a reserved judgment dated 30 August 2019, I granted the defendant’s application for permanent stay of charges against him.1 The charges arose out of allegations of historical sexual offending by him against four complainants between 40 and 63 years ago.
[2] During the hearing of the stay application, I extended interim name suppression for the defendant until further order of the Court, contemplating that, depending on the outcome of the stay application, the defendant might pursue an application for permanent name suppression. This has now ensued.
1 R v N [2019] NZHC 2163.
R v NIGHTINGALE [2019] NZHC 2575 [10 October 2019]
[3] During the two day hearing of the stay application, I heard substantial evidence about a combination of adverse health conditions suffered by the defendant. The focus of that evidence was very much on the extent to which deafness, complications from diabetes and other health impediments would have prevented the defendant mounting an effective defence. The nature of the defendant’s health conditions has now to be assessed in the different context of the criteria for permanent name suppression.
[4] The prospect of name suppression is provided for in s 200 of the Criminal Procedure Act 2011:
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; or
(b)cast suspicion on another person that may cause undue hardship to that person; or
(c)cause undue hardship to any victim of the offence; or
(d)create a real risk of prejudice to a fair trial; or
(e)endanger the safety of any person; or
(f)lead to the identification of another person whose name is suppressed by order or by law; or
(g)prejudice the maintenance of the law, including the prevention, investigation, and detection of offences; or
(h)prejudice the security or defence of New Zealand.
…
(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 28 of the Victims’ Rights Act 2002.
[5] An applicant for name suppression has not only to satisfy the Court that one or more of the situations in s 200(2) is likely to arise, but has also to do that where the
existence of grounds is to be tested against the principle of open justice, treated as of constitutional importance.2
[6] The present application is brought in reliance on the ground in s 200(2)(a), namely that publication of the defendant’s name would cause extreme hardship to him or to a child of his (X),3 or the defendant’s teenage grandchildren. Alternatively, that publication may imperil the defendant’s life and thereby, in terms of s 200(2)(e), endanger his safety.
[7] The Court’s task in such applications requires two stages, the first being whether the applicant for name suppression can make out one of the grounds to the requisite standard. If a relevant ground is made out, then the Court must still undertake a second stage discretionary assessment as to whether name suppression is appropriate, weighing the defendant’s interests against a number of other factors.4
[8] The Crown has opposed the application, first on the ground that none of the grounds in s 200(2) relied on by the defendant can be made out to the requisite standard. In any second stage discretionary assessment, Mr Vanderkolk submitted that the views of the four complainants who are all strongly opposed to final name suppression should weigh heavily against it being granted.
Extreme hardship to the defendant?
[9] I was satisfied on the evidence adduced on the stay application that the combination of adverse health conditions suffered by the defendant would preclude his being able to obtain a fair trial. However, the context of that assessment is quite different from the impact on the defendant’s medical conditions of the embarrassment and other consequences that may follow from publication of his name. Mr Stevens QC submits that several of the defendant’s serious adverse health
2 Erceg v Erceg [2016] NZSC 135, [2017] 1 NZLR 310 at [2].
3 X is closely involved in supporting the defendant and gave evidence at the hearing on the defendant’s stay application. To deal fully with the detail of X’s circumstances and that of X’s children, it is necessary to traverse personal details that are deserving of confidentiality, irrespective of the merits of the stay application. The publicly released version of this judgment will accordingly have paragraphs redacted dealing with those matters.
4 Robertson v Police [2015] NZCA 7 at [41].
conditions are, or are likely to be, exacerbated by stress. That point was made by the medical professionals attending him who gave evidence.
[10] However, the incidence of stress and the defendant’s capacity to deal with it when away from the heightened stress imposed on him by attempting to present a defence in a criminal trial requires a recalibration of the projected impact of such stress. Mr Stevens goes so far as to submit that the impact of publication would “almost inevitably produce a marked deterioration in health”. I am not satisfied that any such prospective inevitability arises. Thus far, the defendant has weathered the stresses of preliminary preparation and having to complete an extensive affidavit for the stay application. He has been relieved of the stress involved in a trial, and now faces the stigma and potential negative inter-personal dealings that are likely to follow from publication of his name.
[11] I consider it most probable that he will suffer adverse impacts on the various medical conditions that were described in evidence. Adverse impacts would arise for any defendant if allegations of historical sexual offending of the nature involved here are published. However, that probability does not make out extreme hardship as the test has to be applied.
[12] Part of the defendant’s fear is that publication of the charges he faced would cause health professionals who provide support for him to lose sympathy for him, causing a drop in the quality of care he receives. Whilst one cannot discount a measure of adverse reaction as a matter of human nature, the services the defendant receives are provided by health professionals who should be expected to disregard any such adverse personal feelings in caring for the health needs that bring them into contact with the defendant.
[13] Having reflected on all the arguments put on the present application, I reach the same conclusion on the alternate ground of s 200(2)(e), namely whether publication is likely to endanger the defendant’s safety. Mr Stevens submits that the adverse impacts mean that his life may be imperilled. There is no evidentiary foundation for so severe a consequence.
Extreme hardship to X and defendant’s grandchildren?
[14] The application was also made on the basis that publication would cause extreme hardship for X, or for the defendant’s teenage grandchildren. To assess the evidence in support of this ground, it is necessary to traverse certain details that X is entitled to have suppressed, irrespective of the outcome of the application. The version of this judgment that is published will accordingly omit the paragraphs [15], [16] and
[18] so that my conclusion on this ground will depend only on the summaries in [17] and [19] below.
[15][Redacted]
[16][Redacted]
[17] I do not discount the risk that publication of the defendant’s name will trigger difficulties for X in the work place. It may well be realistic for X to attribute to colleagues the approach I have described to learning of X’s support for an 82 year old father charged with historical sexual offending. However, that risk, combined with a risk of adverse impact on X’s own health, do not make out the threshold of extreme hardship that is required.
[18][Redacted]
[19] Again, I do not dismiss the prospects of such adverse consequences for the defendant’s grandchildren. However, they are not adversities of the type that meet the requirement for extreme hardship.
[20] Standing back, I appreciate that the risks for all of the defendant, X and the defendant’s grandchildren cumulatively give rise to a greater level of risk of adverse consequences than when the circumstances of each of them is considered in isolation. However, it is not a circumstance in which cumulative impact can help one or more of them discharge the high onus of making out extreme hardship. No fine judgements have been necessary in distinguishing the standard required to make out the likelihood
of extreme hardship under s 200(2)(a), or any lower threshold under s 200(e) where the inquiry is as to the likelihood of endangering the safety of any person.5
[21] A measure of hardship must always be contemplated as flowing from publication of the existence of such charges. The risks here are of moderate levels of hardship, but given what must ordinarily be expected, the margin to make out hardship to an extreme extent cannot be achieved.
Discretionary assessment – views of the complainants
[22] If I were wrong in failing to recognise adverse consequences from publication of the defendant’s name that would reach the level of extreme hardship, then I would in any event have exercised my discretion against granting the application. On this aspect, I would give material weight to the strongly expressed views of the complainants. Their fear of the defendant, and complaints against him, have a continued impact on them. Despite not being determined because of the permanent stay, recognition of their complaints by the laying of charges has been a cathartic experience for them. The lack of resolution because of the stay would be exacerbated if the defendant avoided any publicity of the existence of the charges. The complainants express concerns about the prospect of other victims who did not come forward, sensing that they would be failing any other women in that situation if they did not oppose permanent name suppression.
[23] One of the complainants, Adrienne Robertson, has applied for the lifting of the automatic suppression of her name as a complainant. Section 203(4) of the Criminal Procedure Act directs the Court to make such an order on the application of a complainant who is aged 18 years or older and where the Court is satisfied that the complainant understands the nature and effect of her decision to apply. Such order lifting name suppression can also only be made where the name of the defendant is not suppressed.
5 R v Shailer [2015] NZHC 2607 at [18].
[24] From Ms Robertson’s statement on the issue of name suppression for the defendant, I am satisfied that she does understand, and I am accordingly prepared to make the order she seeks.
[25]Another of the complainants has foreshadowed making a similar application.
[26] Mr Stevens criticises the terms of the complainants’ opposition to the present application, contending that they presume guilty findings on the charges when, as a matter of law, the stay instead entitles the defendant to maintain his presumption of innocence. I accept that the terms of the complainants’ statements assume that their complaints would be made out. That is understandable and it does not require their views to be ignored. The recognition of their complaints reflected in the charges being laid is significant for the complainants, and the concerns that the charges not be kept secret on a permanent basis is valid without any presumption that convictions would have followed.
[27] Something of a parallel can be drawn with the terms of the defendant and X’s statements in support of the application. They make no acknowledgement of the presumption of innocence to which the defendant is entitled, and treat the consequences of publication as if they would both be facing a post-conviction situation. No acknowledgement is made of the prospects of deflecting adverse consequences by making the point that the defendant had pleaded not guilty and, on the stay being granted, is entitled to a presumption of innocence.
Outcome
[28] I accordingly dismiss the application for permanent name suppression. I direct that the interim name suppression order is to lapse five working days after delivery of this judgment. Until that time, this judgment is being released to counsel only.
[29] For the reasons given at [14], I make an order prohibiting publication of any part of paragraphs [15], [16] and [18] of this judgment.
[30] I further order under s 203(4) of the Criminal Procedure Act 2011 that suppression of the identity of Adrienne Robertson as a complainant in the case is to be lifted from the same time, namely five working days after delivery of this judgment.
Dobson J
Solicitors:
Crown Solicitor, Palmerston North Fergus Steedman, Palmerston North
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