S v Police HC Wellington CRI-2009-085-7853

[2010] NZHC 2033

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI-2009-085-7853

S

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         17 August 2010

Counsel:         V C Nisbet for Appellant

I R Murray for Respondent

Judgment:      27 August 2010 at 10.15am

In accordance with r 11.5 I direct the Registrar to endorse this judgment with a delivery time of 10.15am on the 27th day of August 2010.

RESERVED JUDGMENT OF MACKENZIE J

[1]      The appellant appeals against a decision by the District Court not to grant permanent name suppression following sentencing on five charges of indecent assault.

[2]      The appellant submits that the Judge erred in balancing the prima facie presumption of freedom of expression against the harm to the appellant.  He submits

that the Judge failed to give sufficient weight to the adverse effects publication and

S V NEW ZEALAND POLICE HC WN CRI-2009-085-7853  27 August 2010

identification would have on innocent third parties such as the appellant’s partner and daughter, the real likelihood that disclosure would bring about the identification of the complainant, and the impact publication would have on the significant rehabilitation the appellant has already made.

[3]      Counsel for the respondent submits that adverse consequences to others from the naming of an offender is an unfortunate but necessary part of the criminal justice system working effectively.   Publication of the offender’s name is part of the punishment and serves a purpose.  Counsel submits that there is no sufficient basis on which name suppression could be ordered and that the effect on the appellant’s daughter,  while  unfortunate,  is  insufficient  to  rebut  the  presumption  of  open reporting.   The respondent submits that there is no evidence of exceptional circumstances so as to justify name suppression and therefore the Judge was correct to decline it.

[4]      In dealing with name suppression, Judge Butler said:

[11]I decline to make a permanent suppression order. I do so with some regret given the terms of the letter that your daughter has written to me.

[12]Mr  Gilbert,  for  the  Crown,  has  pointed  out  a  Court  of  Appeal decision in a case called R v Liddell [1995] 1 NZLR 538, dealing with permanent suppression orders. The Court of Appeal, in that case, said this:

Anguish to the innocent family of an offender is an inevitable result of many convictions for serious crime. Only in an extraordinary case could it outweigh, in relation to the reporting of the name of a person convicted of a serious crime, the general principle of open justice and the open reporting of justice.

[13]For that reason, I decline the permanent suppression order that is sought.

[5]      The daughter’s letter, to which Judge Butler referred, said:

It is important to me that he remains under name suppression because unlike my sister, I have my dad’s surname and I have no wish to be stigmatised by the association.  He has been a good father to me and I love him, and that my relationship with him could be tainted by the outcome of this trial is painful to have to consider.

[6]      As the Court of Appeal in R v Liddell recognised, anguish to the innocent family of an offender is an inevitable result of many convictions for serious crime.[1]

The Judge reached his decision on name suppression with some regret.   He was, understandably, concerned at the possible effect on family members.  But the Judge was required to exercise his discretion in a principled way.  There was no material which would place this case in the extraordinary category, envisaged in Liddell, where  it  might  outweigh  the  general  principle  of  open  justice.    There  was  no evidence of a particular vulnerability on the part of the daughter, or of any way in which publication might impact particularly adversely against her.  I do not consider that the circumstances in this case were shown to be exceptional.   Other family members (not bearing the same surname) did not wish to have the name of the appellant suppressed.

[1] R v Liddell [1995] NZLR 538

[7]      Mr Nisbet submits that the Court should have regard to the possibility that refusal  of name  suppression  will  lead  to  the  identification  of  the  complainants. Statutory suppression of the name of the complainant must be observed by any media  reporting  the  case,  so  that  care  may need  to  be  taken  in  describing  the relationship between the appellant and the complainant.   That is a not uncommon situation, and does not justify an exception to the general principle of publication, particularly when that is not sought by the complainant.   Preservation of the anonymity of the complainant does not justify an order for suppression.

[8]      I do not consider that any error of principle has been demonstrated in the Judge’s exercise of his discretion.  The decision is one which properly fell within the range of his discretion.

[9]      For these reasons, the appeal is dismissed.

“A D MacKenzie J”

Solicitors:         Crown Solicitor, Wellington for Respondent

V C Nisbet, Barrister and Solicitor, Wellington for Appellant