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…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
R v Police [2019] NZHC 2901
Case
[2019] NZHC 2901
Decision Date
CaseChat Overview and Summary
In this case, Dr R was convicted of indecent acts with intent to offend in 2015. He was sentenced to community work and ordered to pay reparations. Dr R applied for name suppression but his application was declined. He appealed that decision. The appeal was dismissed. Dr R argued that suppression was necessary to prevent extreme hardship. He claimed that the likely loss of his career was a disproportionate consequence of his offending. The court held that such a loss of career options was one of the normal consequences to be expected of such offending and did not constitute extreme hardship. The court considered the public interest in publication outweighed the public interest in suppression. The court also rejected 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. The court dismissed the appeal. However, because Dr R indicated he would seek to appeal the court's unfavourable decision, the court continued his interim name suppression for that purpose, and for the necessary time.