R v Police
[2019] NZHC 2901
•7 November 2019
ORDER PROHIBITING PUBLICATION OF NAME, ADDRESS,
OCCUPATION OR IDENTIFYING PARTICULARS OF APPELLANT UNDER S 292 OF THE CRIMINAL PROCEDURE ACT 2011
UNTIL 5 PM THURSDAY 5 DECEMBER 2019 (OR UNTIL LEAVE FOR A FURTHER APPEAL IS DETERMINED IF SOUGHT BY THEN).
SEE PARAGRAPH [69] AND
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2015-404-336
[2019] NZHC 2901
BETWEEN R
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 25 June 2019 Appearances:
D P H Jones QC for the appellant
R M A McCoubrey for the respondent
Judgment:
7 November 2019
JUDGMENT OF PALMER J
The judgment was delivered by me on Thursday 7 November 2019 at 3.00pm
……………………………… Registrar/Deputy Registrar
Counsel/Solicitors:
D P H Jones QC, Auckland Dominion Law, Auckland Meredith Connell, Auckland
R v NEW ZEALAND POLICE [2019] NZHC 2901 [7 November 2019]
Summary
[1] In October 2015, Dr R was convicted and sentenced in the District Court for two charges of doing an indecent act with intent to offend, by exposing his erect penis and masturbating, on two separate occasions, in full view of a female jogger on Mt Eden, Auckland. This followed other similar offending by Dr R. The District Court declined his application for name suppression.1 Dr R was subject to disciplinary measures by the Health Practitioners Disciplinary Tribunal which also declined name suppression. That decision was upheld on appeal. Consistent with the rule of law, I consider the merits of the application on appeal, though the result would be the same if I considered it as the “exercise of discretion”.
[2] I dismiss Dr R’s appeal against the District Court’s refusal to grant name suppression in relation to his criminal offending. Although he is not likely to be without any employment prospects at all, I accept he is likely to experience hardship as a consequence of his offending. He will likely lose significant career options, at least for several years, that were previously open to him. That is because it would not be unexpected for patients to object to being treated by a doctor who has repeatedly engaged in criminally indecent behaviour by masturbating in public. But such a likely loss of career options for a doctor is one of the normal consequences to be expected of such offending. The natural consequences of criminal behaviour inconsistent with professional obligations include professional consequences. I do not consider that constitutes “extreme hardship” justifying name suppression under s 200 of the Criminal Procedure Act 2011 (the Act).
[3] If I am found to be wrong about that, I weigh the public interest considerations favouring publication against the considerations favouring suppression. In addition to the principle of open justice and the right to freedom of expression, the offending here was serious and the public interest includes the public’s right to make an informed decision about their choice of medical practitioner, knowing the character of those they entrust with their personal health and wellbeing. Against that is the hardship likely to be faced by Dr R, the fact that the Police do not now oppose name
1 I follow the Court of Appeal’s mode of anonymisation of the applicant as Dr R which is not necessarily an initial of his. I anonymise his name in this judgment on an interim basis, only in order to preserve his right to seek to appeal.
suppression, and that the victim does not care about name suppression. I consider the public interest in publication outweighs the public interest in suppression, by some margin.
[4] Neither does the evidence sustain Dr R’s claims that his family members would suffer undue or extreme hardship or that their names should be suppressed, or that his name should be suppressed for that reason. I dismiss the appeal. Because Dr R indicated he would seek to appeal my unfavourable decision further, I continue his interim name suppression for that purpose, and for the necessary time, only. Despite this proceeding being unduly long already, to do otherwise would deprive him of his lawful opportunity to seek leave to appeal further.
What happened?
Offending
[5] In 2003, Dr R was convicted of offensive behaviour. He was fined $125 and had to pay court costs. I do not have further information about this offending. Dr R subsequently qualified as a doctor and got a job at a hospital.
[6] On 8 June 2013 Dr R stopped his car on Mt Eden Road at 8.40 am in front of a young woman and masturbated in front of her while still in the car. He subsequently pulled over in front of her again, further up the road, but desisted on the advice of a passer-by. He admitted the offending and, in July 2013, was given diversion. He was apparently given interim name suppression. He informed the Medical Council of the prosecution. He received counselling and told his immediate work superiors.
[7] In September 2013, Dr R then faced two charges of doing an indecent act with intent to offend around the same time as the earlier offending. Each charge related to him exposing his erect penis and masturbating in full view of a woman jogging in the Mt Eden Domain on afternoons between 1 and 8 June and on 24 August 2013. It happened to be the same woman on each occasion though that was thought to be coincidental. When these allegations arose, Dr R denied them. In September 2013,
according to his evidence, Dr R was “stood down” or “suspended” from his job.2 There was media attention, despite him having interim name suppression. He returned to work.
Dr R’s circumstances
[8] After losing his High Court conviction appeal, Dr R’s evidence is that he was forced to resign his job in May 2016.3 He has not worked as a doctor since. He did some labouring work. He says he was denied a position as a medical research assistant on disclosing his criminal history, given the possibility his name suppression would lapse. However, he was invited to undertake further study and was awarded a fellowship, subject to Human Resources approval. Dr R’s evidence is that approval was not forthcoming because of the risk of damage to the tertiary education institution’s reputation should name suppression be lifted.4 He obtained a salary from a private source so that he could commence his studies.
[9] Dr R’s evidence is that no District Health Board (DHB) will hire him with the potential of name suppression being dropped.5 He says that prospect greatly restricts him in his day to day research. He says losing name suppression would mean “I would have no employment prospects as a clinical doctor or as an academic employed by a university”.6 He says that, without name suppression, he would not be employable by any DHB, which is his only option for employment as a doctor because he has not yet completed or applied for specialist training.7 And he says he would not be accepted for training in the speciality of surgery either. Effectively, he says losing name suppression would end his career in medicine and medical research and would punish him far beyond the gravity of the offending.
[10] Mr Patrick Alley, Clinical Director of Surgery at Ormiston Hospital, provided an affidavit in support of Dr R’s 2016 appeal.8 Mr Alley expressed his confidence that, if name suppression could continue, Dr R would be able to function as an
2 Affidavit of Dr R, 6 September 2016, at [7]; Affidavit of Dr R, 6 June 2019, at [4].
3 Affidavit of Dr R, 6 June 2019, at [5].
4 At [13].
5 At [17].
6 At [20].
7 At [21]–[22].
8 Affidavit of Patrick Alley, 5 September 2016.
effective participant in the delivery of specialist surgical care.9 Mr Alley considered that the lifting of name suppression “would materially and adversely affect [Dr R’s] chances of employment in any area of healthcare as a doctor” and Mr Alley would “confidently predict no authority would consider him for employment”.10
[11] Dr R says his mother would have to leave her job if his name suppression is dropped and is unlikely to get another job easily. He also says publication of his identity would make his wife’s job untenable, her professional judgement would be questioned, trust in her jeopardised and her job would be untenable on an emotional level. Before the Tribunal, Dr R produced a letter from his mother’s manager expressing the opinion her role and work would become untenable due to others’ perceptions and potential loss of trust and confidence in her. He also produced before the Tribunal a letter from a senior manager at his wife’s workplace, expressing concern that there is a real risk publication of Dr R’s convictions would limit his wife’s ability to progress in her career and suggesting her role would be become untenable and lead to questioning of her judgement.
[12] Dr R also says his very young daughter will undoubtedly suffer greatly. Dr R says he is tormented most nights with nightmares about losing name suppression and has suffered “immense trauma” from being falsely accused and convicted which could only worsen if he were to lose name suppression. He is on medication. He estimates his legal fees, fines, costs and lost income arising from his criminal and disciplinary proceedings has been over $500,000.
[13] The Police have obtained the complainant’s views about the potential suppression of Dr R’s name which are:
I do not care, I am over it. If he wants name suppression he can have name suppression. He got a conviction, I do not care about his name suppression.
9 At [5].
10 At [6]–[7].
District Court decisions and appeals
[14] On 4 September 2015, in the Auckland District Court, Judge R G Ronayne found Dr R guilty of the two charges after a judge-alone trial.11 The Judge found Dr R to be an untruthful witness and rejected his evidence.12 Dr R was again stood down from his job. He still denies this offending.
[15] On 21 October 2015, Judge Ronayne sentenced Dr R for the two charges to 120 hours community work and payment of $1,000 as emotional harm reparations.13 The Judge considered aggravating factors were: Dr R offended in a pre-meditated and planned way; he offended twice; it was repetitive behaviour akin to offending while the subject of a sentence; it occurred in a public place where the public expects safety and proper standards of behaviour by others; there was an effect on the victim; and the act had a moderately high level of indecency.14 The victim was shocked, deeply offended, disgusted and subsequently felt unsafe and frightened. In terms of mitigating factors, the Judge took into account the support of Dr R by his friends and family.15 The Judge said this about name suppression:16
While publication of your name will be significant for you I do not accept that the test of extreme hardship is met. It is a difficult test to meet and as I said at the outcome, the impact on your employment is what might be expected. The Courts need to be careful to avoid creating a special echelon of privileged persons in the community who will enjoy suppression where their less fortunate compatriots would not. Professional status does not set you apart in any way that justifies suppression. There is a presumption in favour of publication and publication of name is also part of the penal process.
I am assisted by comments at the High Court in Beig v New Zealand Police, a decision of Venning J refusing name suppression for a medical practitioner charged with the offence of male assaults female. Accordingly, suppression is declined.
[16] Because Dr R indicated his intention to appeal, Judge Ronayne ordered interim suppression of Dr R’s name and identifying particulars.
11 New Zealand Police v R [2015] NZDC 16528.
12 At [110].
13 R v R [2015] NZDC 20997.
14 At [15]-[20].
15 At [21].
16 At [27]-[28].
[17] On 24 March 2016, in the Auckland High Court, Asher J dismissed Dr R’s appeal against conviction but adjourned the appeal against name suppression (and continued the suppression on an interim basis), pending Dr R’s application for leave to appeal to the Court of Appeal.17 Asher J said the “principle of open justice requires that this not be delayed”.18 But, ironically, there has been a lengthy procedural history since then. This judgment represents the substantive disposition of the name suppression appeal proceeding in the High Court, adjourned by Asher J over three and a half years ago.
[18] On 23 August 2016, the Court of Appeal declined Dr R’s application for leave to bring a second appeal against conviction.19 The Court considered the grounds of appeal substantially reiterated those before Asher J, which the Judge had fully and properly addressed, and nothing new was raised.20 The Court continued suppression on an interim basis.
[19] The appeal against the District Court’s name suppression decision in the High Court was then “reactivated”. On 25 October 2016, Heath J adjourned it again and continued the interim suppression orders. He considered it ought to be determined after the completion of disciplinary proceedings against Dr R before the Health Practitioners Disciplinary Tribunal (the Tribunal):21
I say that because the specialist nature of that Tribunal is likely to be able to consider in greater context the likely impact of a direction suppressing [Dr R]’s name on patients with whom he may come into contact. The considered views of the Tribunal would be helpful to the Court on that particular topic.
Tribunal decision and appeals
[20] On 18 May 2017, the Tribunal: censured Dr R; suspended his registration for two years; ordered him to pay costs; and imposed conditions on his resuming practice, for two further years, that he inform any potential employer of the proceedings, have at least one other person present at all times during any interaction with a female patient and provide the Medical Council with six-monthly psychologists’ reports
17 R v New Zealand Police [2016] NZHC 523; Minute No 2 of Asher J, 14 April 2016.
18 At [92].
19 R (CA176/2016) v New Zealand Police [2016] NZCA 403.
20 At [27].
21 Minute of Heath J, 25 October 2016.
regarding his progress.22 In relation to name suppression the Tribunal considered, on the basis of the Court of Appeal’s decision in Y v Attorney-General, that there is a presumption in all civil proceedings, reinforced by its own legislation,23 in favour of openness.24 Before departing from that, the Tribunal considered it must be satisfied, having regard to the public interest and the interests of any person, that it is desirable to suppress.25
[21] The Tribunal heard evidence from two referees, Mr Stewart and Professor Windsor, that if the Tribunal were not to suppress Dr R’s name, that would “present a serious threat to his career” and his prospects of “being able to continue his training and become a surgeon were vanishingly small”.26 Aspects of this evidence troubled the Tribunal.27 It considered it was not able to conclude there is no risk of reoffending and, accordingly:28
In those circumstances, the Tribunal takes the view that the members of the public and in particular potential users of his services in the future, are entitled to make their own judgment as to whether or not to consult the Practitioner, having regard to his offending. In the Tribunal’s judgment, the only practical way of ensuring that members of the public are able effectively to exercise such a right is for the Tribunal’s decision to be published in full.
That is the public interest involved here, as we see it.
[22] Professor Windsor’s response was that the public are not offered a choice of specialists, are not discerning users of medical professional services and it was appropriate for the Dr R’s background to be made known to potential employers and professional colleagues who, unlike the public, were able properly to assess its significance.29 Unsurprisingly, the Tribunal rejected that reasoning on the basis that, if the Tribunal approached the issue of suppression in this way, “the public would be entitled to consider that something approaching professional hubris had resulted in
22 Professional Conduct Committee appointed by the Medical Council of New Zealand v R [2017] NZHPDT 889 at [143].
23 Health Practitioners Competence Assurance Act 2003, s 95.
24 At [114], citing Y v Attorney-General [2016] NZCA 474.
25 At [106] and [114].
26 At [122].
27 At [123].
28 At [126]–[128].
29 At [129].
their interests being overlooked”.30 Heath J was right; the Tribunal’s decision is helpful. It said:
[134] This is a case in which the common law principle of openness in the administration of justice, reinforced by the principles of freedom of expression captured in s 14 of the New Zealand Bill of Rights Act, is of particular significance. We take the view that members of the public are entitled to the opportunity to make their own informed judgment about whether to engage this Practitioner.
[135] It was suggested during the course of the hearing that one way of achieving this might be to impose a condition on the Practitioner obliging him to confirm to any members of the public who asked him if he was the practitioner in this case. The Tribunal does not regard that as a satisfactory safeguard, as it would impose the responsibility on potential patients to ask the question.
[136] We are reinforced in our view by the very nature of the Practitioner’s misconduct. His misconduct involved the most public of acts. It was conducted in a public environment, and directed at a member of the public. It is ironic that, having chosen to act publicly in this way, the Practitioner now comes before the Tribunal and asks for an order which would keep his name out of the public arena.
[137] Further, the criminal proceedings have already attracted a degree of publicity. The Practitioner’s name has been supressed, but that publicity described him as a professional man and gave details of the nature of the three incidents, identified them as having occurred in the Mt Eden Domain. Were the Tribunal to make the order sought by the Practitioner, the suppression order itself would no doubt attract publicity and of course it would become obvious that the Practitioner was a medical practitioner. As a result, all Auckland-based male doctors would come under suspicion.
[138] Finally, in the circumstances of this particular case, having regard to the Practitioner’s conviction on the charges in the second criminal proceeding, and his continued denial of guilt, the Tribunal takes the view that suppressing his name would not assist his rehabilitation, but would stand in the way of him accepting his misconduct and putting it behind him.
[139] Mr Waalkens helpfully referred us to a number of previous Tribunal decisions, and appeals from those decisions, which touch on the issue of name suppression, all of which we have considered. They do not persuade us that the approach we propose taking to the Practitioner’s application is unsound.
[140] We are conscious, as Mr Waalkens pressed upon us on behalf of the Practitioner, that the publication of the Tribunal’s decision including his name will be humiliating and embarrassing for him. But that is a consequence of his own very public actions, and that in itself does not persuade us that it is desirable to make the order sought. We are conscious also that the Practitioner’s relatives and wider family, most particularly his wife and parents, may also suffer some personal embarrassment. Additionally, there was some evidence – or at least an assertion – that one of his relatives may
30 At [133].
suffer some professional embarrassment. Those outcomes are of course regrettable, but once again are a direct result of the Practitioner’s actions.
[141] This is not a case in which the Tribunal is satisfied it is desirable to make the order sought. In the end, our judgment is that the public interest in the publication of the Tribunal’s decision, including the Practitioner’s name, which will at least give members of the public the opportunity to make an informed decision about whether or not to engage the Practitioner, outweigh, by some margin, the Practitioner’s interests, and the interests of his family, in suppressing his name.
[142] The Tribunal is not prepared to grant the order sought. As requested, we will make an order prohibiting the publication of any report of this decision for 20 working days in order to enable him to take advice, file an appeal and seek an order for interim suppression pending the disposal of that appeal.
[23] Dr R appealed the Tribunal’s decision on penalty and name suppression to the High Court. The Professional Conduct Committee which brought the charges against him cross-appealed on penalty. On 1 November 2017, Gordon J dismissed the cross- appeal and upheld Dr R’s appeal on penalty, reducing his period of suspension to one year and nine months and varying the condition from any “interaction” to any “consultation” with a female patient.31
[24]Gordon J rejected the appeal in relation to name suppression, holding:
(a)The Tribunal’s finding, that the risk of harm to Dr R’s family was in the nature of professional embarrassment, was available on the evidence and she would come to a similar conclusion.32 She held the Tribunal did not make an error of law in holding the effects of publication on Dr R’s family are a direct result of his actions.33
(b)The Tribunal did fail to take into account a relevant consideration in failing to consider the complainant’s views in its decision-making, but, if anything, that weighed against Dr R’s application and did not affect the outcome of the application.34
31 R v A Professional Conduct Committee [2017] NZHC 2674 at [54], [63] and [68].
32 At [93].
33 At [96].
34 At [100].
(c)There was no error of law in the Tribunal’s treatment of the evidence regarding the risk of harm to Dr R’s career.35
(d)It was open to the Tribunal to characterise Dr R’s misconduct as being serious in nature, as it “demonstrates a lack of self-control and an attitude of sexual entitlement towards the women involved” which are troubling characteristics in a medical practitioner.36
(e)The criticism of the Tribunal’s analysis of the public interest, by Mr Waalkens QC on Dr R’s behalf, was not justified. The public interest includes the public’s right to make an informed decision about their choice of medical practitioner. That does not mean the public interest will require publication in every case but that the public interest is a relevant factor that must be weighed.37 Gordon J agreed with the Tribunal that Dr R’s offer to tell patients of his convictions if asked was not a satisfactory safeguard.38
(f)The concern expressed by the Tribunal, about other medical professionals coming under suspicion if Dr R’s name were suppressed, is less pressing where the applicant lives or practises in a populous area. But it is not irrelevant.39 And the Tribunal did not err in refusing to suppress the location of the offending.40
(g)The Tribunal applied the correct legal test, and its decision was not plainly wrong, with Gordon J concluding:41
Publication of [Dr R]’s name in connection with the offending will cause humiliation and embarrassment to [Dr R] and his family. His mother and wife may additionally suffer some embarrassment in their professional lives. However, those consequences are not in my view sufficient to overcome the strong public interest in publication. That public interest includes the interest in preserving the openness and
35 At [103].
36 At [109].
37 At [116].
38 At [117].
39 At [120]–[121].
40 At [122].
41 At [123].
integrity of disciplinary proceedings, as well as the public interest in knowing the character of those whom members of the public entrust with their personal health and wellbeing. That public interest is elevated in cases such as the present where the medical practitioner continues to deny his misconduct, giving rise to real questions about his prospects of rehabilitation.
(h)Interim name suppression would continue, to enable Dr R to appeal to the Court of Appeal.42
[25] Dr R did appeal to the Court of Appeal, with leave, on a point of law about the approach on appeal to a decision on name suppression. In its judgment of 9 April 2019, the Court of Appeal dismissed the appeal.43 The Court recorded that both parties accepted that the decision I make in this judgment (subject to any further appeal) would be determinative of suppression both in the criminal context, on appeal from Judge Ronayne’s 2015 decision, and in the disciplinary context, in relation to the Tribunal’s decision.44 This was said by the Court to be because there would be no point in Dr R attempting to overturn the Tribunal’s decision if suppression was declined under the test in the criminal jurisdiction and, alternatively, if suppression was granted in the criminal jurisdiction, that would overtake the Tribunal’s decision.45 On that basis, the Court of Appeal considered the point of law to be moot, declined to answer it, and dismissed the appeal.46
Relevant law
Law of name suppression in a criminal case
[26] Name suppression is now governed by ss 200 and 202 of the Criminal Procedure Act 2011 (the Act). The leading case concerning the predecessor to s 200 was the Court of Appeal’s decision in Lewis v Wilson & Horton Ltd.47 It recognised that “the starting point must always be the importance of freedom of speech recognised by s 14 of the New Zealand Bill of Rights Act 1990, the importance of open judicial
42 At [129].
43 R (CA679/2017) v A Professional Conduct Committee of the Medical Council of New Zealand
[2019] NZCA 95.
44 At [14].
45 At [14].
46 At [17].
47 Lewis v Wilson & Horton Ltd [2000] 3 NZLR 546 (CA).
proceedings, and the right of the media to report Court proceedings”, holding there was a presumption in favour of openness.48 The Court identified the factors to be taken into account in deciding whether the presumption should be displaced as including:49
· whether the person whose name is suppressed is acquitted or convicted. If acquitted, the Court may more readily apply the power to prohibit publication ...
· the seriousness of the offending. Where a person is convicted of a serious crime it will only be in rare cases that name suppression will be ordered. Where the charge is “truly trivial”, particular damage caused by publicity may outweigh any real public interest;
· adverse impact upon the prospects for rehabilitation of a person convicted;
· the public interest in knowing the character of the person seeking name suppression, an interest which has been acknowledged in cases involving sexual offending, dishonesty, and drug use;
· circumstances personal to the person appearing before the Court, his family, or those who work with him and impact upon financial and professional interests. As it is usual for distress, embarrassment and adverse personal and financial consequences to attend criminal proceedings, some damage out of the ordinary and disproportionate to the public interest in open justice in the particular case is required to displace the presumption in favour of reporting.
[43] The Judge must identify and weigh the interests, public and private, which are relevant in the particular case. It will be necessary to confront the principle of open justice and on what basis it should yield. And since the Judge is required by s 3 to apply the New Zealand Bill of Rights Act 1990, it will be necessary for the Judge to consider whether in the circumstances the order prohibiting publication under s 140 is a reasonable limitation upon the s 14 right to receive and impart information such as can be demonstrably justified in a free and democratic society (the test provided by s 5). Given the congruence of these important considerations, the balance must come down clearly in favour of suppression if the prima facie presumption in favour of open reporting is to be overcome.
[27] The Court addressed an argument for suppression based on Mr Lewis’s standing:50
48 At [41] (citing R v Liddell [1995] 1 NZLR 538 (CA) at 546-547).
49 At [42]–[43] (citations omitted).
50 At [68].
The standing of the appellant as “an extraordinarily successful businessman, community leader and philanthropist” was not grounds for suppressing his name in the absence of evidence of special harm to him through publicity. No harm to the appellant was suggested beyond the submission that his standing would make media interest in him “undue”. That is tantamount to a submission that successful or prominent members of the community should receive name suppression because there may be media interest in such people. The Court cannot enter into assessment of whether media or public interest is appropriate or “undue”. The right to receive and impart information is not limited in the present context according to qualitative and subjective standards adopted by the Judge. It is a right to receive information “of any kind in any form”. In cases where some real harm is identified, it may be necessary for the Judge to decide whether the harm which would be caused is disproportionate to the public interest in open justice and the freedom to receive information “of any kind”. In such cases it may be necessary for the Judge to weigh the public interest in receiving the particular information. But in the absence of identified harm from the publicity which clearly extends beyond what is normal in such cases, the presumption of public entitlement to the information prevails. Any other approach risks creating a privilege for those who are prominent which is not available to others in the community and imposing censorship on information according to the Court’s perception of its value.
[28] In the report that led to the enactment of the Criminal Procedure Act 2011, the Law Commission concluded there was a need for greater specificity of the statutory grounds on which name suppression may be granted, to “reflect the high threshold required by the leading cases, to avoid dilution of the strong presumption in favour of open justice, and to provide adequate protection for freedom of expression”.51 The Commission proposed the starting point should be “a strong presumption in favour of publication”.52 It noted the personal circumstances of a defendant may carry different weigh at different stages of a trial, noting what amounts to extreme hardship before the trial may not be extreme hardship after conviction.53 It recommended the discretion to suppress be narrowed.54
[29] In relation to hardship to a defendant, the Commission considered ordinary hardship will not be enough but “one can imagine cases in which a convicted person may suffer extreme hardship from publication of his or her name, out of all proportion to the public interest in open justice in the particular case, especially if the person suffers from physical or mental ill health”.55 It chose not to adopt a test of undue
51 Law Commission Suppressing Names and Evidence (NZLC R109, 2009) at [3.6].
52 At [3.26].
53 At [3.27]–[3.28].
54 At [3.29].
55 At [3.36].
hardship or significant harm out of proportion to the gravity of the alleged offence in favour of “extreme hardship”, saying:
[3.41] … we have come to the view that extreme hardship better describes the level of hardship that should be required to result from publication of the name of an accused before the court exercises its discretion to suppress. It makes it clear that suppression of the name of the accused should be exceptional. Where extreme hardship to an accused would result, the judge may decide that the harm which would be caused is disproportionate to the public interest in open justice and the freedom to receive information.
[3.42] However in some cases, where there is a high public interest in open justice, even extreme hardship may not be sufficient to justify a restriction on publication, and as the courts have indicated in the past, the circumstances that will result in name suppression after a conviction for a serious offence will be rare.
[30] Where hardship to people connected with a defendant was a factor in applications for suppression of the name of the accused, the Commission recommended the test of extreme hardship should apply.56 But it recommended “undue hardship” as the test for suppression of the names of people connected with a defendant. The Commission considered whether the fact publication might have a greater impact on well-known people should affect suppression decisions, and cited Lewis v Wilson & Horton Ltd in saying the fact that someone is well known “is not by itself grounds for name suppression, but nor it is an irrelevant factor”.57 It considered it will only be relevant to extreme hardship and recommended against listing it as a separate factor, in order to avoid “a risk that this may create a special class, a situation the courts have rightly tried to avoid”.58
[31]Sections 200 and 202 provide, relevantly:
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—
56 At [3.44].
57 At [3.50].
58 At [3.51].
(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.
(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).
…
(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.
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—
…
(c) … 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 … connected person; or
(b)create a real risk of prejudice to a fair trial; 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
(e)prejudice the maintenance of the law, including the prevention, investigation, and detection of offences; or
(f)prejudice the security or defence of New Zealand.
(3)Subsection (1) applies whether or not the court has made an order under section 200 suppressing the identity of the defendant.
(4)An order under subsection (1) suppressing the identity of a … connected person may not prevent publication of the name of the defendant (which may be prohibited only by an order made under section 200) or the nature of the charge.
[32] The substantive points made by the Court of Appeal in Lewis v Wilson & Horton Ltd still apply since enactment of the Act in 2011. But the courts have determined that the test in s 200(2) involves two steps:
(a)First, the court must consider whether publication would be likely to lead to extreme hardship.59 “Likely” in ss 200(2) and 202(2) has been held to mean “a real and appreciable possibility”.60 The Court of Appeal has stated the thresholds of extreme hardship in s 200(2)(a), undue hardship in para (c) and a “real risk” of prejudice in para (d) are “comparative standards”:61
The adjectives indicate that these are comparative standards. They require that the court compare the consequences of publication in the instant case with those that normally attend prosecution. Distress, embarrassment and adverse personal and financial consequences usually attend criminal proceedings, and something out of the ordinary is needed if the applicant is to get across the threshold.
(b)Second, the court must weigh 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”.62 In cases turning on s 200(2)(a), relevant considerations
59 Robertson v Police [2015] NZCA 7 at [40]-[41].
60 Huang v Serious Fraud Office [2017] NZCA 187 at [10].
61 D (CA443/2015) v Police [2015] NZCA 541, (2015) 27 CRNZ 614 at [11].
62 Robertson v Police, above n 59, at [41].
also include “the public's right to freedom of expression, the applicant's youth and the likely impact publication will have on the applicant's prospects of rehabilitation, any other circumstances personal to the applicant, the interest of victims and the interests of other affected persons”.63 The presumption is of open justice, as recognised in the legislative history of the provision and emphasised by the Court of Appeal, and must be considered at this stage.64 The balance must “clearly favour” suppression for it to be granted.65
[33] “Extreme hardship”, as used in s 200, has been characterised by the Court of Appeal in Robertson v Police:66
[48] As regards the level of hardship required by the phrase “extreme hardship”, we consider it clear beyond argument that it connotes a very high level of hardship. The work “hardship” on its own means “severe suffering or privation”. The addition of the qualifier “undue” in s 200(2)(c) indicates that something more than hardship simple is required, while the word “extreme” in s 200(2)(d) [sic] indicates something more again.
[49] An assessment of whether the contended hardship is “extreme” cannot take place in a vacuum. It is self-evidently contextual and in our view must entail a relative comparison between the contended hardship and the consequences normally associated with a defendant’s name being published. It must be something beyond the ordinary associated consequences. Accordingly, it was in our view no error for Gendall J to take into account, for example, that the hardship to Mrs Robertson’s family was simply a natural consequence of her offending. As the Judge put it, the hardship suffered by the family “simply [did] not fall outside the ordinary experience”.
[34] “Undue hardship”, as used in s 202, has been held to mean “hardship that is greater than that which will inevitably follow publication” or consequences “disproportionate to consequences that typically result from publication”.67
[35] In Beig v New Zealand Police, Venning J refused name suppression for a medical practitioner charged with male assaults female.68 He noted, in enacting s 200, Parliament had implicitly accepted the reasoning of previous cases in relation to the
63 D (CA443/2015) v Police, above n 61, at [12].
64 Robertson v Police, above n 59, at [45]-[47]; D (CA443/2015) v Police, above n 61, at [12].
65 D (CA443/2015) v Police, above n 61, at [12].
66 Robertson v Police, above n 59, (the reference in [48] to s 200(2)(d) should be to s 200(2)(a)).
67 Sansom v R [2018] NZCA 49 at [32]; P (CA265/2019) v R [2019] NZCA 350 at [11].
68 Beig v New Zealand Police [2015] NZHC 40.
impact on employment of a professional person, encapsulated in the principle that “[o]ne must be careful to avoid creating a special echelon of privileged persons in the community who will enjoy suppression where their less fortunate compatriots would not”.69
Law of appeal of name suppression decisions
[36] Under s 283 of the Act, Dr R has a right of appeal against the District Court’s decision on name suppression. Under s 287, I must determine the appeal by confirming, varying or setting aside the decision or making any other order I consider appropriate. He may have a further appeal, to the Court of Appeal, by leave. Mr Jones advises he will apply for leave if my decision is unfavourable to Dr R. In that case, under s 292, I may make an interim order continuing name suppression, effectively to enable the appeal to proceed.
[37] It is common ground, and I accept, that an appeal against the first stage of a name suppression decision under ss 200 and 202 is conducted on the principles applied to ordinary appeals in Austen, Nichols & Co Inc v Stichting Lodestar.70 That requires identification of error and the appellate court to come to its own conclusion of the merits of the application. There is no reason to think any other approach applies.
[38] An appeal against the second stage of a name suppression decision is often considered to be an “appeal against a discretion” and therefore, following Kacem v Bashir, only interfered with if the court appealed from erred in principle, failed to take into account a relevant consideration, took into account an irrelevant consideration or was plainly wrong.71 The distinction is between the application of law, entailing judgement, which should be decided afresh on appeal, and an “exercise of discretion” which, apparently, should not.72 This sort of exercise of discretion appears to be a narrower concept than the commonplace administrative law concept of exercising a power to make decisions. In Kacem v Bashir, Tipping J observed “the fact the case
69 P v R HC Auckland T167/96, 17 July 1996 at 4. This was cited by the Court of Appeal on appeal Proctor v R [1997] 1 NZLR 295 (CA) at 299-300, though the Court of Appeal unfortunately turned “fortunate” into “unfortunate. I have dropped the “un”.
70 Austen, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141. See, for example, Wilson v R [2018] NZHC 1778 at [14].
71 Kacem v Bashir [2010] NZSC 112, [2011] 2 NZLR 1 at [31]-[33].
72 Taipeti v R [2018] NZCA 56, [2018] 3 NZLR 308 at [45].
involves a factual evaluation and value judgment does not of itself mean the decision is discretionary” in this narrower sense.73 He also acknowledged the distinction is “not altogether easy to describe in the abstract” which is not a promising start for a legal concept.74
[39] The Court of Appeal appears to have assumed recently, in P (CA265/2019) v R, that the second stage of the name suppression test in s 202 involves an exercise of discretion, albeit apparently without hearing argument on the point.75 It may even have done the same in relation to s 200 in Taipeti v R, which cited Fagan v Serious Fraud Office and Robertson v Police.76 But in neither of those cases did the Court of Appeal hold that the second stage of an appeal of a suppression decision is by way of an appeal against an “exercise of discretion” in the narrower Kacem v Bashir sense. They just used the word “discretion”, I consider, in the wider usual sense of a power to make a decision.
[40] The exercise of a court’s discretion at the second stage of considering name suppression is not untrammelled or arbitrary. The primary purpose of s 200, as stated by the Law Commission, was to narrow an overly broad discretion and significantly reduce the possibility of judicial decisions depending on the subjective views of the judge. The word “discretion” does not appear in s 200 but has been used as a convenient shorthand by judges to distinguish the step in their reasoning which weighs the required ground for suppression against the public interest in order to exercise the power to suppress. The grounds for suppression themselves are now carefully prescribed in law. The name suppression discretion is required to be exercised consistently with the Bill of Rights. It involves an evaluation of fact and law and a reasoned application of identifiable relevant considerations while ignoring irrelevant considerations. It is a substantive, not a procedural decision. It is an evaluative judgement according to prescribed standards, required to be exercised according to
73 Kacem v Bashir, above n 71, at [32].
74 At [32].
75 P (CA265/2019) v R [2019] NZCA 350 at [2].
76 Taipeti v R, above n 72, at [47], citing Fagan v Serious Fraud Offıce [2013] NZCA 367 at [9] and
Robertson v Police, above n 59, at [39]–[41].
law. An appeal court can judge whether or not it has been so exercised. That is what the appeal provision requires. So, I consider, does the rule of law.77
[41] Accordingly, I do not consider there is any foundation in statute or principle for subjecting a name suppression decision to a lower judicial review-like standard of an appeal which tempts an appellate court, in practice, opaquely to defer to the lower court on the merits of the decision.78 Indeed, it is not clear to me that any decisions should fall within such a category, other than by reason of clear statutory words. There has been a recent appellate trend to narrowing the range of appeals considered to be an “exercise of discretion”, such as in relation to bail decisions and professional misconduct.79 I consider this reasoning should also extend to decisions about name suppression. But whether it does or not does not make a difference to my decision here. After all, both approaches require that, to be overturned on appeal, a decision must be “wrong” or “plainly wrong”.80
Submissions
[42]Mr Jones QC, for Dr R, submits:
(a)The affidavits of Dr R and Mr Alley establish that: Dr R is not a risk to the public he comes into contact with as a doctor; he needs to be employed by a DHB to advance professionally; he was effectively forced to resign as a result of his convictions and the spectre of publicity; the prospect of him being employed or employable in the health sector is remote if his identity is made public; and publication of his identity would undoubtedly follow suppression being lifted. The consequences Dr R has suffered informs an assessment of what may well happen to him in the future.
77 McCaig v A Professional Conduct Committee [2015] NZHC 3063 at [15].
78 See M B Rodriguez Ferrere “The Unnecessary Confusion in New Zealand’s Appellate Jurisdictions” (2012) 12 Otago L R 829.
79 Taipeti v R, above n 72, at [49]; Hart v Auckland Standards Committee 1 of The New Zealand Law Society [2013] NZHC 83, [2013] 3 NZLR 103 at [12]; Sisson v Standards Committee 2 Canterbury-Westland Branch [2013] NZHC 349, [2013] NZAR 416 at [15].
80 McCaig v A Professional Conduct Committee, above n 77, at [11].
(b)Judge Ronayne erred in finding the hardship to Dr R was not extreme because his career would effectively be at an end which is disproportionate to the level of offending which was not serious. Dr R “would effectively become a pariah, unemployable, unable to train as a surgeon and ineligible for academia”.81
(c)The Tribunal’s decision on penalty provides for the safety of the public in relation to Dr R’s practice of medicine. In some ways, the Tribunal’s decision on name suppression was contrary to the evidence before it and it was applying a lesser test than I have to apply. Gordon J’s decision was on the basis of her application of the law of appealing an exercise of discretion. Here, the assessment of the first stage of name suppression under s 200 is open to appeal on the principles in Austen,
Nichols & Co Inc v Stichting Lodestar.82
(d)Those who have more to lose by publication cannot be prejudiced by that fact and freedom of expression and information relate more to the issues before the court as opposed to the identity of the person.
(e)The complainant’s views support suppression and are important. Naming and shaming Dr R will serve no useful purpose while destroying his professional life with consequential loss to his family.
(f)Publication would cause Dr R’s wife and mother to suffer hardship which, if extreme, would enable Dr R’s name to be suppressed or, if undue, would enable their names and Dr R’s name to be suppressed under ss 202(2)(a), 200(2)(a) and 200(2)(f).
(g)There is no reason why the court should not exercise its discretion to suppress Dr R’s name permanently.
81 Supplementary submissions, 14 June 2019, at [22].
82 Austen, Nichols & Co Inc v Stitchting Lodestar, above n 70.
[43] In 2016 Mr McCoubrey, for the Police, filed written submissions for the High Court. He submitted the significant effect on Dr R’s ability to practise as a surgeon is a natural consequence of a professional being convicted of these offences.83 He submitted there is a presumption in favour of openness in reporting and that allowing the appeal would be to misapply the test of extreme hardship.
[44] In 2019, however, Mr McCoubrey submits, for the Police, that the length and detail of Dr R’s latest affidavit sets things out in more detail and more starkly than before. He submits the issue is for the Court to determine and “in the circumstances of this case, the respondent does not offer any submissions in opposition to permanent name suppression”.84 He maintains the submission about being careful to avoid creating a special echelon of privileged persons but submits the Police’s new stance does not do that. Rather, Mr McCoubrey submits, the Police now do not consider Dr R’s career being at stake to be “an overdramatic characterisation of the evidence”. He submits the Tribunal did not squarely address the “vanishingly small” prospects the evidence indicated Dr R has of being able to become a surgeon.85 And, he submits, the Court must take into account that the victim “does not care” whether Dr R has name suppression. The Police now accepts “that this may well be a case which can properly be characterised as ‘a very special circumstance’ or ‘something quite out of the ordinary’”.86
Should Dr R’s name be suppressed?
What are the consequences of publication for Dr R?
[45] The first step in deciding whether Dr R’s name should be suppressed involves deciding whether publication of his name is likely to cause him extreme hardship. I approach this by first identifying what consequences I consider are likely and second by considering whether they constitute extreme hardship.
83 Submissions, 19 October 2016.
84 Further memorandum, 20 June 2019, at [1].
85 Professional Conduct Committee appointed by the Medical Council of New Zealand v R, above n 22, at [122].
86 Further memorandum, 20 June 2019, at [6], citing phrases used in High Court decisions.
[46] What are the consequences here? I accept that publication of Dr R’s name would mean there is a real and appreciable chance he will not be employed, for several years, as a doctor treating patients. I have no reason to doubt Mr Alley’s, Mr Stewart’s, Professor Windsor and Dr R’s evidence about this. I do not consider such a reaction would be unjustified in the short term, contrary to the tone of their evidence. It would reflect the sentiment expressed by Gordon J that the offending “demonstrates a lack of self-control and an attitude of sexual entitlement towards the women involved” which are troubling characteristics in a medical practitioner.87 And it would not be unexpected for patients to object to being treated by a doctor who has repeatedly engaged in criminal offending by behaving indecently. That may also extend, in the short term, to Dr R’s prospects of obtaining a role in an academic institution involving treatment of patients or teaching of students.
[47] I am not confident that consequence would necessarily last forever. As Dr R acknowledges, if he does not reoffend over 10 or 20 years a DHB may be prepared to reassess the situation.88 He says he would still need to apply for specialist training which would be “unusual” at his age. But that does not establish that he can never be employed as a doctor again. Furthermore, I do not consider Dr R is likely to be without any employment prospects at all. He could retrain for employment in a sphere that would not be so impacted by his convictions. Neither do I accept Dr R’s suggestion that no academic institution would accept him. Despite his convictions he has been successful in enrolling in, and obtaining funding for, further studies. Dr R’s assertions do not demonstrate he would necessarily be unable to obtain a job in medical research, without a teaching component, which would be less affected by offending of the sort he has committed. New Zealand’s academic and research institutions are more robust than that.
[48] Overall, I consider Dr R is likely to experience hardship as a consequence of his offending. He is not likely to lose all his career options, but he is likely to lose significant career options, at least for several years, that were open to him before his offending. Is that “extreme hardship” for the purposes of the Act?
87 R v A Professional Conduct Committee, above n 31, at [109].
88 Affidavit of Dr R, 6 June 2019, at [25].
Is Dr R likely to suffer extreme hardship from publication?
[49] This raises the question of whether the consequences I should take into account are those that anyone would be likely to suffer or those that only someone in the applicant’s particular professional group would be likely to suffer.
[50] There are cases in which the risk of a serious health effect due to name publication has been found to constitute extreme hardship, as the Law Commission envisaged. In Q v Customs, there was expert evidence of a rare heart condition in which stress triggered episodes of irregular heartbeat which could cause sudden death.89 Such circumstances are not the product of social or professional groupings.
[51] But what of consequences that are only likely for a certain professional group? A doctor who has spent years qualifying to practise medicine might well subjectively consider it an extreme hardship to be effectively prevented from doing so, as Dr R argues here. Relative to their life and career before, such a step may be extreme and feel like a disproportionate punishment. But others, who lack such qualifications, may well not regard it as any hardship to be prevented from doing something they are not qualified to do anyway. So name publication can have varying effects on offenders, depending on their circumstances. Are all such effects to be assessed as “hardship” in terms of s 200?
[52] Parliament stated in s 200(3) that “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”. I take that to indicate Parliament’s purpose is not to enable name suppression for consequences of criminal offending that derive only from being well known, as recommended by the Law Commission in its report.90 The Court of Appeal in Robertson stated extreme hardship must be “something beyond the ordinary associated consequences”.91
89 Q v New Zealand Customs [2014] NZHC 2398. In R v New Zealand Customs Service at [2019] NZHC 1878 at [14], I held that required a direct causal link to a specifically identified consequence constituting extreme hardship and a real and appreciable risk that consequence will occur.
90 Law Commission, above n 51, at [3.50].
91 Robertson v Police, above n 59, at [49].
[53] Parliament’s purpose in enacting s 200 was to set an objective standard of “extreme hardship”. I consider there is a good argument that does not include hardship which depends on which social or professional group the offender belongs to. That is an available implication of the legislative context of s 200(3). Another way of putting it is that, for a doctor, a likely loss of career options is one of the normal consequences to be expected of offending such as Dr R’s. As the Court of Appeal has determined, normal associated consequences of offending are not “extreme hardship” for the purposes of s 200.
[54] This interpretation of the meaning of “extreme hardship” is assisted by application of s 14 of the New Zealand Bill of Rights Act 1990 (Bill of Rights). Section 14 provides “[e]veryone has the right to freedom of expression, including the freedom to seek, receive, and impart information and opinions of any kind in any form”. This right is subject “only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society”, under s 5 of the Bill of Rights. It reinforces the presumption of open justice that underlies s 200. I consider that an interpretation of “extreme hardship” that varies with the social or professional group to which the offender belongs is not a reasonable limit that can be demonstrably justified in a free and democratic society. Rather, it would be an example of the creation of a “a special echelon of privileged person in the community who will enjoy suppression where their less fortunate compatriots would not”, against which the Court of Appeal has warned.92 That must be partly on the basis of upholding the dimension of the rule of law that emphasises equality before the law. As Lord Bingham said, “[t]here should not be one law for the rich and another for the poor”.93
[55] Accordingly, I consider that Dr R’s likely loss of significant career options, when such options would normally be expected to be lost to such a professional known to have committed such offences, does not constitute “extreme hardship” of the sort required for name suppression under s 200.
92 Proctor v R [1997] 1 NZLR 295 (CA) at 299-300 citing P v R HC Auckland T167/96, 17 July 1996 at 4. See also Lewis v Wilson & Horton Ltd, above n 47, at [68].
93 Tom Bingham The Rule of Law (Allen Lane, London, 2010) at 55.
Otherwise, should I suppress Dr R’s name?
[56] If I am correct that Dr R is not likely to suffer extreme hardship under s 200, my decision-making ends there. However, in case I am found to be wrong in that conclusion on appeal, I now consider whether I would otherwise suppress Dr R’s name.
[57] First, as the Court of Appeal made clear in Robertson and D (CA443/2015), the presumption is of open justice. The competing interests in favour of name suppression must be sufficient to outweigh the value of open justice. The Supreme Court has described open justice as “fundamental to the common law system of civil and criminal justice”, “a principle of constitutional importance” and “an almost priceless inheritance”, departure from which must only be to the extent necessary to serve the ends of justice.94 In a passage recently quoted by both Downs J and the Court of Appeal in a recent name suppression case, Lord Steyn in the House of Lords said:95
A criminal trial is a public event. The principle of open justice puts, as has often been said, the Judge and all who participate in the trial under intense scrutiny. The glare of contemporaneous publicity ensures that trials are properly conducted. It is a valuable check on the criminal process. Moreover, the public interest may be as much involved in the circumstances of a remarkable acquittal as in a surprising conviction. Informed public debate is necessary about all such matters. Full contemporaneous reporting of criminal trials in progress promotes public confidence in the administration of justice. It promotes the values of the rule of law.
[58] In New Zealand, in a statement approved by the Court of Appeal in the same case, Downs J said name suppression in a particular case “may, in all these circumstances, contribute to the incremental erosion of public confidence in the administration of criminal justice through disproportionate weight on immediate consequences instead of a long-term view”.96 I consider that applies here.
[59] Second, the principle of open justice is reinforced by the right to freedom of expression guaranteed by the Bill of Rights, as outlined and analysed briefly above. As the Court of Appeal observed in Lewis v Wilson & Horton Ltd, the Bill of Rights
94 Erceg v Erceg [Publication restrictions] [2016] NZSC 135, [2017] 1 NZLR 310 at [2]-[3].
95 R v Fangupo [2019] NZHC 1211 at [53] and P (CA265/2019) v R, above n 75, at [42] citing Re S
[2004] UKHL 47, [2005] 1 AC 583 at [30].
96 R v Fangupo, above n 95, at [56], quoted and approved by the Court of Appeal in P (CA265/2019)
v R, above n 75, at [51]-[52].
directly constrains a court’s decision-making, because s 3(a) binds the judicial branch of government.97 In order to uphold the right to freedom of expression, a court is required not to suppress a name unless doing so constitutes a reasonable limit prescribed by law as can be demonstrably justified in a free and democratic society. As will be apparent from the analysis above, I do not consider a consequence specific only to a social or professional group to which the offender belongs is a reasonable limit on the right to freedom of expression that can be demonstrably justified in a free and democratic society. Neither is it consistent with the rule of law. The courts’ concern not to create a special echelon of privilege does not mean professionals are punished more for indecent offending of this nature. It means the natural consequences of criminal behaviour inconsistent with professional obligations include professional consequences.
[60] Third, I consider the nature of Dr R’s offending. It does not involve violence. But it involved two instances of doing an indecent act with intent to offend, in a public place. And it is not alleged offending that has yet to be proven. Although Dr R continues to deny it, the offending has been proven beyond reasonable doubt and tested on appeal. His continued denials do not sit well with his prospects of rehabilitation, as Gordon J observed.98 Before this offending, Dr R had been convicted of offensive behaviour in 2003 and had been given diversion for very similar offending to this, in the same time period and at the same general location.
[61] As Judge Ronayne said in his sentencing remarks, the offending was aggravated by being pre-meditated, occurring twice, being a repetition of other similar offending, involving a moderately high level of indecency and having an effect on the victim who was shocked, deeply offended, disgusted and felt unsafe and frightened. The Tribunal noted the irony that “having chosen to act publicly in this way, [Dr R] now … asks for an order which would keep his name out of the public arena”.99 I do not accept Mr Jones’ submission it is not serious offending. I agree with Gordon J that it can be characterised as serious.100 That militates in favour of publication.
97 Lewis v Wilson & Horton Ltd, above n 47, at [43].
98 R v A Professional Conduct Committee, above n 31, at [123].
99 Professional Conduct Committee appointed by the Medical Council of New Zealand v R, above n 22, at [136].
100 R v A Professional Conduct Committee, above n 31, at [109].
[62] Fourth, I consider the views of the victim. Understandably, given the length of this proceeding, she is “over it”. She does not care about name suppression. I do not consider the victim’s views favour either suppression or publication.
[63] Fifth, the interests of future possible patients of Dr R are a relevant consideration. As I observed above, it would not be unexpected for patients to object to being treated by a doctor who has repeatedly engaged in criminal offending by behaving indecently by masturbating in public. This is one reason why Dr R’s employment prospects are likely to be impacted. But potential patients might object even more to being treated by such a doctor without knowing of that history and having the opportunity to decline his treatment. The Tribunal considered potential users of Dr R’s services in the future are entitled to make their own judgements as to whether or not to consult him, having regard to his offending.101 As Gordon J stated, the public interest includes the public’s right to make an informed decision about their choice of medical practitioner and in knowing the character of those they entrust with their personal health and wellbeing.102 I agree. This consideration militates in favour of publication. The prospect of public lack of confidence in a medical professional is not a reason to suppress information that would give rise to that lack of confidence.
[64] Sixth, I have fully considered the submissions on behalf of Dr R and the Police. But although the parties agree that name suppression should be made permanent, I do not. I am obliged to apply the law as I see it, not as the parties agree it to be, between themselves.
[65] Overall, I would consider the public interest considerations favouring publication would outweigh those favouring suppression, by some margin. I consider there is nothing wrong, or plainly wrong, in Judge Ronayne’s decision in October 2015 to decline Dr R’s application for name suppression. Furthermore, like Gordon J in relation to the Tribunal’s refusal of name suppression in the professional disciplinary context, I would make the same decision.
101 Professional Conduct Committee appointed by the Medical Council of New Zealand v R, above n 22, at [127].
102 R v A Professional Conduct Committee, above n 31, at [115] and [124].
Should family members’ names, and Dr R’s name therefore, be suppressed?
[66]The other set of issues is whether:
(a)the names of Dr R’s wife and mother should be suppressed, under s 202(2)(a), because publication would be likely to cause them undue hardship;
(b)if so, Dr R’s name should be suppressed, under s 200(2)(f), because publication would be likely to lead to identification of his wife and mother; and
(c)Dr R’s name should be suppressed, under s 200(2)(a), because publication would be likely to cause his wife and mother extreme hardship.
[67] I do not consider the evidence sustains the claims that Dr R’s mother and wife would necessarily be required to leave their jobs if his offending becomes known. Any worthwhile workplace will judge an employee’s performance on the basis of their own actions and behaviour, not those of a son or spouse. To do otherwise would be irrational and likely to found a claim for unjustified dismissal. Absent employer requirements, any decision to leave their employment is theirs. Like the Tribunal and Gordon J, I consider the effects of publication of Dr R’s name on family are in the nature of embarrassment. That is a natural consequence of his offending. It does not constitute undue hardship or extreme hardship justifying suppression of their names. Accordingly, neither ss 200(2)(a) nor (f) is a basis for suppressing Dr R’s name.
Result
[68] I dismiss Dr R’s appeal of Judge Ronayne’s decision to decline his application for name suppression.
[69] Because Dr R has indicated that he will seek leave to appeal an unfavourable decision, I reluctantly continue his name suppression on an interim basis for that purpose only. Despite this proceeding being unduly long already, to do otherwise
would to deprive him of the opportunity to appeal to which he is entitled. I continue suppression of his name until the deadline expires for filing a notice for application for leave to appeal this judgment under s 291 of the Act, at 5 pm Thursday 5 December 2019. If such an application is made, s 291(3) extends interim suppression until it is determined.
Palmer J
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