S v The Queen - [2020] NZHC 2279

ORDER PROHIBITING PUBLICATION OF NAME, ADDRESS,

OCCUPATION OR IDENTIFYING PARTICULARS OF APPELLANT PURSUANT TO S 200 CRIMINAL PROCEDURE ACT 2011. SEE

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CRI-2020-485-000056

[2020] NZHC 2279

BETWEEN
S

Appellant

AND

THE QUEEN

Respondent

Hearing: 31 July 2020 & 2 September 2020

Counsel:

M Bott for the Appellant

C Hislop for the Respondent

Judgment:

2 September 2020

JUDGMENT OF DOOGUE J

This judgment was delivered by Justice Doogue On 2 September 2020 at 3.30 pm.

Registrar/ Deputy Registrar Date:

Solicitors:
Crown Law Office, Wellington Heretaunga Law, Upper Hutt

S v R [2020] NZHC 2279 [2 September 2020]

Introduction

[1] The appellant, Mr S, appeared before Judge Hastings in the District Court at Wellington on 30 June 2020, having pleaded guilty to three historic charges of indecent assault on a girl aged between 12 and 16 years.1 Mr S was sentenced to six months’ home detention, subject to three special conditions.2

[2]The offending occurred in the 1980’s.

[3] Mr S applied for interim and permanent name suppression, on the grounds that publication would cause extreme hardship to his wife. Judge Hastings declined those applications.3

[4] Mr S now appeals that decision on the ground the statutory threshold in s 200(2)(a) of the Criminal Procedure Act 2011 (the Act) is met.

[5] The Judge granted interim name suppression for 20 days to allow Mr S’s appeal to be heard, and I continued that on 31 July 2020 when I adjourned the matter for further evidence to be filed.

The District Court decision

[6] The Judge identified the four grounds advanced by Mr Bott, on behalf of Mr S, in support of his application for interim and permanent name suppression. They were:

(a)hardship to the victim;

(b)casting suspicion on another person (in this case, Mr S’s four grandchildren);

(c)causing extreme hardship to persons connected with Mr S, namely his four grandchildren; and

1 Crimes Act 1960, s 134(1); maximum penalty seven years’ imprisonment.
2 R v S [2020] NZDC 12337.
3 R v S [2020] NZDC 13426.

(d)causing extreme hardship to a person connected to Mr S, namely his wife.

[7] The Judge very quickly rejected the first three grounds before turning to what he described as the principal ground advanced, namely the extreme hardship to Mr S’s wife. This ground was advanced on the basis that the couple had been harassed at their home (a police business card was left in their letterbox, and they received phone calls which were hung up when answered), and the stress may increase the risk and severity of Mrs S’s Parkinson’s disease.

[8] The relevant reasons for the Judge’s decision to decline an order are captured in the following paragraphs from his decision:4

[21] As I said, I am concerned about the prospect of social isolation at the retirement home but this is a consequence of conviction and would have little effect on the defendant’s rehabilitation (as in P)…

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.

Continue reading S v The Queen

Details

AGLC: S v The Queen [2020] NZHC 2279
Case: [2020] NZHC 2279
Decision Date: 2 September 2020

CaseChat Overview and Summary

In this appeal, the appellant, Mr S, challenges the decision of the District Court to deny his application for name suppression. Mr S pleaded guilty to three historic charges of indecent assault on a child and was sentenced to six months' home detention. He applied for interim and permanent name suppression, arguing that publication would cause extreme hardship to his wife due to her existing medical condition, Parkinson's disease. The District Court declined the application, and Mr S appeals on the grounds that the statutory threshold in s 200(2)(a) of the Criminal Procedure Act 2011 has been met. The High Court granted interim name suppression for 20 days to allow the appeal to be heard, which was continued when the matter was adjourned for further evidence.

The legal issues before the court were whether the threshold in s 200(2)(a) has been met and, if so, whether the discretion to prohibit publication should be exercised in Mr S's favour. The starting point for name suppression is the principle of open justice, and discretion to prohibit publication should be exercised sparingly. The court must undertake a two-stage analysis under s 200 of the Act: the first stage is a threshold determination, and the second stage is a discretionary assessment.

In considering whether the threshold in s 200(2)(a) has been met, the court found that the consequences of publication on Mrs S's condition are greater than the distress, embarrassment, and adverse personal and financial consequences that usually attend criminal proceedings. The court accepted the fresh evidence from Dr David Bourke, a Wellington neurologist responsible for Mrs S's treatment, which demonstrated that her medical condition has deteriorated as a direct result of concerns about the publication of Mr S's name. The court found that this deterioration meets the threshold for extreme hardship in s 200(2)(a).

In relation to the exercise of the discretion, the court acknowledged the importance of open justice and the views of the victim. However, it found that the interests of Mrs S's health outweighed the public interest in open justice. The court exercised its discretion in favour of granting name suppression.

The appeal was granted, and the court ordered the permanent suppression of Mr S's name, address, occupation, and any other particulars that may lead to his identification.

Orders