S v The Queen
[2020] NZHC 2279
•2 September 2020
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) as he has not offended for 36 years.
[22] A letter from a clinician at WellStop states that isolation, fear and anxiety can exacerbate symptoms of the disease, putting [Mrs S] at risk of developing other health problems, depression, acceleration of cognitive decline and decrease a person’s quality of life. Again though, all of these are adverse consequences but they are not extreme. The harassment occurred at their previous address. They now live somewhere else. The concerns expressed about publication do not rise above the concerns ordinarily associated with someone related to a person who has offended. I do not consider the threshold of extreme hardship is met here either.
[23] If I am wrong about the threshold determination, I will indicate that I do not think the application should be granted, moving to the second stage. I would start with the presumption of open justice. The defendant has pleaded guilty. This confirms what has happened and that he accepts responsibility for what he did. This supports publication. The offending is serious and has had a significant effect on the victim’s life. It involved a breach of trust of a public position. Given the time that has passed since the offending and the defendant’s age, publication will have little, if any, effect on the defendant’s rehabilitation prospects and I have already referred to the fact that the victim does not support suppression of the defendant’s name.
[9] In summary, the Judge declined the application for name suppression because he did not consider that any of the grounds put forward satisfied the threshold required for name suppression. He also observed that he would not exercise the discretion to grant name suppression, even if the threshold criteria was met.
4 R v S, above n 3.
Leave to adduce fresh evidence
[10] Initially, Mr Bott sought to adduce an affidavit by Mr S’s wife, containing fresh information about the effect of publication of Mr S’s name on her existing medical condition (Parkinson’s disease).
[11] At the hearing on 31 July 2020 I considered that evidence was insufficient and required independent evidence from Dr David Bourke, a Wellington neurologist, who is responsible for Mrs S’s treatment.
[12] Fresh evidence on appeal requires the Court to assess whether the evidence passes the sequential tests the Privy Council set out in Lundy v R:5
The Board considers that the proper basis on which admission of fresh evidence should be decided is by the application of a sequential series of tests. If the evidence is not credible, it should not be admitted. If it is credible, the question then arises whether it is fresh in the sense that it is evidence which could not have been obtained for the trial with reasonable diligence. If the evidence is both credible and fresh, it should generally be admitted unless the court is satisfied at that stage that, if admitted, it would have no effect on the safety of the conviction. If the evidence is credible but not fresh, the court should assess its strength and its potential impact on the safety of the conviction. If it considers that there is a risk of miscarriage of justice if the evidence is excluded, it should be admitted, notwithstanding that the evidence is not fresh.
[13] The respondent accepts that, adopting the Lundy assessment, the affidavit by Dr Bourke is: credible; fresh, in the circumstances of COVID-19; and cogent to the issue of the impact of publication on Mr S’s wife.
[14] I am satisfied that the affidavit by Dr Bourke meets the criteria for fresh evidence on appeal, and that the interests of justice require its submission. For these reasons, I grant leave to adduce the affidavit of Dr Bourke.
5 Lundy v R [2013] UKPC 28; [2014] 2 NZLR 273 at [120].
Submissions
Mr S’s submissions
[15] Mr S’s appeal rests on the publication of his name causing extreme hardship to his wife. Mr Bott submitted that:
(a)there is fresh evidence from a neurologist about the particular impact of publication upon Mr S’s wife;
(b)the District Court erred in its assessment of the impact of the publication on Mr S’s wife; and
(c)the District Court erred in its assessment that the interests of open justice outweighed the impact upon Mr S’s wife.
The Crown’s submissions
[16] Ms Hislop, for the respondent, submitted that even accounting for the evidence of Dr Bourke, the Judge was correct to consider the consequences as failing to reach the threshold of “extreme hardship”. He submitted that the Court on appeal will not need to consider an appeal against the exercise of the discretion, but that if it did so, Mr S has not discharged the onus to successfully appeal against the exercise of discretion because there is no basis to say the Judge failed to take relevant considerations into account, or took irrelevant considerations into account.
[17] Any change in the information surrounding Mrs S’s Parkinson’s disease is a matter for the first stage, not the exercise of discretion at the second stage.
[18] Nor could the Judge’s summary of the relevant principles be said to be plainly wrong. It covered the relevant matters.
[19] Further, Ms Hislop submitted the Judge simply took a different view of the relevance of the facts to the exercise of the discretion than Mr S did, and that is not a basis to allow the appeal.
[20] If the Court was minded to consider the relevant factors again, Ms Hislop submitted that assessment must start with the presumption of open justice. Moreover, he submitted that the various factors indicated by the Court of Appeal in Lewis v Wilson & Horton Ltd support the discretion not being exercised in Mr S’s favour:6
(a)Whether the applicant has been convicted or acquitted: Mr S has pleaded guilty to the charges. The presumption of open justice is strengthened and supports publication.
(b)The seriousness of the offending: whilst not the most serious form of indecent assault at the time, this was sexual offending through skin to skin contact and ejaculation over a prolonged period of time. There was a very large abuse of trust. Ms Hislop submitted that the offending is sufficiently serious to further support publication. Moreover, the devastating impact on the victim, as revealed by her victim statement, supports the publication of Mr S’s name.
(c)Adverse impacts upon rehabilitation: given Mr S’s advanced age and low risk of reoffending, publication will not deny or deter proper rehabilitation.
(d)The public interest in knowing: Ms Hislop submitted that there is strong public interest in the revelation of historic sex offending. He submitted that this interest is even stronger when the offender has abused a position of trust he was put in by the public.
(e)The personal circumstances of the offender: Ms Hislop submitted that if discretionary assessment was to occur, it would be by a thin margin, so this would further support publication of Mr S’s name. He also emphasised that Mr S only applied for name suppression at the end of the proceedings, and had made disclosures to others of the offending.
6 Lewis v Wilson & Horton Ltd [2000] 3 NZLR 546 (CA) at [42].
[21] Finally, the Court is entitled to consider the views of the victim, who was opposed to name suppression.
[22] Ms Hislop submitted that these factors properly support publication, rather than name suppression.
Approach on appeal
[23] Under s 200(1) of the Act, the Court may make an order forbidding publication of the name, address, or occupation of a person who is convicted of an offence, provided it is satisfied that publication would be likely to give rise to one of the consequences in subsection (2), including that it would extreme hardship to a person connected with the defendant.
[24] The starting point for name suppression is the principle of open justice,7 and accordingly discretion to prohibit publication should be exercised sparingly.8
[25] The Court of Appeal in Robertson v Police confirmed that s 200 contemplates a two-stage analysis:9
[39] … Stage one is a threshold determination. Stage two is a discretionary assessment.
[40] At the first stage, the Judge must consider whether he or she is satisfied that any of the threshold grounds listed in s 200(2) has been established. That is to say, whether publication would be likely to lead to one of the outcomes listed in subs (2). The listed outcomes are perquisites to a court having jurisdiction to suppress the name of a defendant. It is “only if” one of the threshold grounds has been established that the judge is able to go onto the second stage.
[41] At the second stage, the judge weighs 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.
7 Erceg v Erceg [2016] NZSC 135, [2017] 1 NZLR 310 at [2].
8 R v Liddell [1995] 1 NZLR 538.
9 Robertson v Police [2015] NZCA 7 (footnotes omitted).
[26] The two-stage nature of the name suppression assessment means that two different approaches can arise on appeal, depending on which branch of the assessment is challenged.
[27] The first stage, in relation to whether the threshold under s 200(2)(a) is met, is determined in accordance with the approach in Austin, Nichols & Co Inc v Stichting Lodestar:10
Those exercising general rights of appeal are entitled to judgment in accordance with the opinion of the appellate court, even where that opinion is an assessment of fact and degree and entails a value judgment. If the appellate court’s opinion is different from the conclusion of the tribunal appealed from, then the decision under appeal is wrong in the only sense that matters, even if it was a conclusion on which minds might reasonably differ. In such circumstances it is an error for the High Court to defer to the lower Court’s assessment of the acceptability and weight to be accorded to the evidence, rather than forming its own opinion..
[28] The second stage, in relation to the exercise of the discretion, is determined in accordance with the principles in O v R:11
It is common ground that an appeal against the refusal of name suppression is to be approached on the footing that an application of this kind involves the exercise of a discretion. Applying the principles in May v May, the appellants must demonstrate that the Judge acted on a wrong principle, or that he failed to take into account some relevant matter, or took into account some irrelevant matter, or that the Judge was plainly wrong.
Analysis
[29] Because Mr S says that the threshold in s 200(2)(a) has been met, this is an appeal against the first stage of the requisite analysis under s 200 and is subject to the approach reserved for general appeals. If my view differs from that of Judge Hastings, I must go on to make my determination about whether suppression should be granted.
10 Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141, (2007) 18 PRNZ 768 at [16] (footnote omitted); NN v Police [2015] NZHC 589 at [13].
11 O v R [2014] NZCA 579 at [21] (footnotes omitted); F v Police [2016] NZHC 1969 at [22].
Is the threshold in s 200(2)(a) met?
[30] This appeal turns specifically on the application of s 200(2)(a). In terms of what is meant by “extreme hardship”, in R v Police Palmer J opined:12
[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. “Likely” in ss 200(2) and 202(2) has been held to mean “a real and appreciable possibility”. 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”:
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.
…
[31] What is clear from this is that, in terms of “extreme hardship”, the particular consequences to a person in terms of s 200(2) must be greater than the distress, embarrassment and adverse personal and financial circumstances that usually attend criminal proceedings.
[32] It is true, as observed by this Court and the Court of Appeal, that anguish to the innocent family of an offender is an inevitable result of convictions for serious crime, such that only in an extraordinary case could circumstances outweigh principles of open justice. However, it is a question of balance and each case will turn on its own particular facts. Here, the impacts upon Mrs S are causing a significant deterioration of her condition, that can rightly be described as extreme hardship.
[33]This hardship is greater than that which ordinarily is expected to visit those
innocent members of an offender’s family following a conviction. Further, this
12 R v Police [2019] NZHC 2901 (footnotes omitted).
hardship cannot be ameliorated by an order under s 202(2)(a) of the Act. There is incontrovertible expert evidence from Dr Bourke that Mrs S’s medical condition is deteriorating as a direct result of fears about publication of Mr S’s name. Here I quote from Dr Bourke:
…
The natural progression of Parkinson’s disease varies significantly from individual to individual. It normally follows a steadily progressive course, with the first few years following diagnosis often described as the ‘honeymoon period’ where patients receive good effect from their medications and can live relatively symptom-free.
In my opinion, the only way of predicting the future course of an individual patient with Parkinson’s disease with any accuracy is to look at their progression over a previous time period. If this is very slow, then you could expect the subsequent time period to progress at a similar rate.
I first diagnosed Mrs S with Parkinson’s disease in September 2017. Her symptoms were mild and didn’t require treatment. At her next appointment in March and May 2018 her symptoms were still mild, but her tremor had got slightly worse, so we decided to start treatment with levodopa. In October 2019 she had improved on treatment and was doing very well. She still had a slight tremor, but no other issues, including no depression or anxiety problems, which we routinely screen for. On the 11th of August 2020 she was much worse, with increased tremor, poor balance and falls, slowed movements and severe anxiety and depression (see clinic letter).
It would be very unusual for a patient in Mrs S’s position, with early Parkinson’s disease, who was getting a good response from medications, to progress this much over such a short time period without an external cause. There are no other reasons I can find for this deterioration other than the new severe anxiety and depression she is suffering. Mrs S attributes this to concerns about her husband’s name being published and says she would feel much better if it wasn’t. Moreover, it would be unusual for a patient with Parkinson’s disease to develop severe anxiety and depression over this short a time period. Normally this builds up slowly over many years.
Therefore, I can only conclude that the recent external stressor of her husband’s name being published is responsible for her deterioration – I can’t find another reason for it, and it is not in keeping with the expected natural progression of her illness.
…
If name suppression were lifted there would be a significant risk that Mrs S’s deterioration could worsen or not improve.
[34] Based on Dr Bourke’s evidence, I am satisfied that Mrs S’s suffering is caused by publication of her husband’s name, as distinct from his conviction. I am also satisfied that the acceleration of the disease is causing a permanent deterioration in her
physical condition. Given her age, and the chronic and degenerative nature of Parkinson’s disease, I am satisfied this deterioration (in particular, the increase in her tremor and poor balance leading to falls) meets the threshold for extreme hardship in s 200(2)(a).
Should the discretion be exercised in Mr S’s favour?
[35] The starting point is indeed the principle of open justice.13 The Supreme Court commented that the “principle of open justice is fundamental to the common law system of civil and criminal justice.”14 Sufficient reasons must exist for this principle to yield in favour of name suppression.
[36] In terms of the balancing of personal circumstances and public interest, Palmer J in R v Police held:15
…
(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”. In cases turning on s 200(2)(a), relevant considerations 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”. 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. The balance must “clearly favour” suppression for it to be granted.
[37]In X v Police, Brown J held:16
[37] However, as that case also recognises, it is ultimately a question of balance and turns on the facts of the particular case. In that case the accused had been sentenced to imprisonment for a total of seven years nine months on charges of (inter alia) indecent assault and sexual violation by unlawful sexual connection cumulative on a sentence he was already serving. While I do not discount in any way the seriousness of the appellant's conduct, his sentence was eight months imprisonment.
13 Erceg v Erceg, above n 7, at [2].
14 At [2].
15 R v Police, above n 12, at [32] (footnotes omitted).
16 X v Police [2014] NZHC 934 (footnotes omitted).
[38] As Williamson J noted in S v R (which was also a name suppression case in the context of assaults on children in a school environment) the various factors are always ones of degree. They must be carefully weighed in order to strike the correct balance between the interests of the accused, his family and others and the undoubted interests of the public in open and equal justice.
[39] The fact of the possibility of further complaint and offence detection is a major benefit of publication and open reporting. However Mr Borich makes the point that in this case, given the thoroughness of the police and school approach, the passage of time and there being no further complaints identified, the utility of that benefit is most likely exhausted.
[40] In that connection I further note that the appellant's pre-sentence report noted his risk of reoffending as low providing he addressed factors relating to his offending. While these factors are being addressed, Mr Borich submitted that they may be undermined by publication and the consequences of that for his wife. He further submitted that personal deterrence is not critical at this point and that, given those combination of circumstances, the factors generally weighing in favour of publication (usually considered at the time of conviction) are absent.
[38]In the present case, the following factors are relevant:
(a)Mr S was convicted of serious offending involving the sexual assault on a child over a two-year period, within the context of a school environment;
(b)the victim is opposed to the granting of name suppression;
(c)Mr S has been sentenced to a term of six months’ home detention;
(d)the offending occurred over three decades ago;
(e)there is no evidence to suggest any further offending since;
(f)the case has been investigated by Police thoroughly;
(g)no further offending of a similar nature has been identified;
(h)Mr S has been professionally assessed by psychologist Mr Riley as presenting with a minimal risk of reoffending, and a “by now negligible risk of further sexual recidivism”; and
(i)the psychological assessment report notes that his risk of reoffending is so low, that there is little to be gained by undertaking courses to address risk.
[39] I acknowledge the importance of open justice, especially in relation to serious offending such as in the present case, and the views of the victim. However, on balance I am satisfied that the interests of the health of Mr S’s wife outweigh this, and I exercise my discretion in favour of granting name suppression.
Conclusion
[40] Each case will turn on its own particular facts. Here, the impacts of the potential publication of her husband’s name and all the consequent implications that follow publication are causing a significant deterioration of Mrs S’s condition, by irreversibly exacerbating her Parkinson’s disease. That deterioration can rightly be described as extreme hardship.
[41] The public interest in open justice is outweighed by the clear personal extreme hardship to Mrs S in this case.
[42] This appeal turned on a fresh evaluation, because of the fresh evidence adduced before me on appeal. There can be no criticism therefore of the District Court Judge’s decision. His decision was correct in light of the evidence that was available to him.
Result
[43]The appeal is granted.
[44] I order the permanent suppression of Mr S’s name, address and occupation and any other particulars that may lead to his identification.
Doogue J
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