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S v The Queen

S v The Queen

Case [2020] NZHC 777 21 April 2020

Standing

Jurisdiction

Appeal

Admissibility of Evidence

Public Interest

Undue Hardship

Criminal Law

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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2020-404-000004

[2020] NZHC 777

BETWEEN
S

Appellant

AND

THE QUEEN

Respondent

CRI-2020-404-000037

BETWEEN

J
Appellant

AND

THE QUEEN

Respondent

Hearing: 2 March 2020

Appearances:

A Couchman for S

P Wilks and S Gray for J J Lee for the Respondent

Judgment:

21 April 2020

JUDGMENT OF WOOLFORD J

This judgment was delivered by me on Tuesday, 21 April 2020 at 3:45 pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors: Meredith Connell (Office of the Crown Solicitor), Auckland

S v R [2020] NZHC 777 [21 April 2020]

Introduction

[1] S was a Crown witness in the trial of her partner, J, on charges of indecent assault and sexual violation. J was convicted of indecent assault and acquitted on the charge of sexual violation. He was sentenced to a term of community detention. He has appealed his conviction.

[2] The indecent assault took place in S and J’s bed in their apartment. S was asleep in the same bed at the time. It was the case for the defence that discussions about a possible threesome with the victim had been considered prior to the night of the offending.

[3] The Crown called S as a witness only after Judge Jelas ruled Facebook messages exchanged between the victim and S to be inadmissible.1 S’s evidence-in- chief concentrated on the messages ruled inadmissible. Judge Jelas noted in a subsequent application for name suppression that:2

In cross-examination, [S] proved to be a defence-friendly witness … [she] gave extensive evidence about her relationship with [J], her preferred sexual relationships and past sexual experiences … readily [offering] intimate details of her personal relationships.

[4] S gave evidence using her first surname, which is the surname used in all of Judge Jelas’ minutes, rulings and other decisions relating to the trial. A pre-trial application under s 44 of the Evidence Act 2006 was, however, filed by S using a second and different surname. S now more commonly uses the second surname.

[5] No applications for suppression were made at trial. The victim’s name, address and occupation were automatically suppressed.3 After trial, the victim applied for an order permitting publication of her suppressed personal details. Judge Jelas made an order under s 203(3)(b) of the Criminal Procedure Act 2011 (the Act) that the victim’s name could be published, but maintained the suppression of the victim’s course of

1      R v J [2018] NZDC 17406.
2      R v J [2019] NZDC 24085 [Name suppression decision (DC)] at [5].
3      Criminal Procedure Act 2011, s 203(1).

study at university and present occupation so as not to undermine orders made relating to S.4

[6] S sought an order suppressing her name, address and occupation on the ground that publication would likely cause her undue hardship.5 Judge Jelas declined to grant name suppression in relation to the surname used predominantly at trial. The Judge however made an interim order 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.

Continue reading S v The Queen

Details

AGLC: S v The Queen [2020] NZHC 777
Case: [2020] NZHC 777
Decision Date: 21 April 2020

CaseChat Overview and Summary

This case involves the appeal of two defendants, S and J, against decisions made by Judge Jelas regarding name suppression orders. S was a Crown witness in J's trial for indecent assault and sexual violation, and both defendants appealed against Judge Jelas' decisions regarding the suppression of their names. The legal issues before the court were whether the District Court had correctly exercised its discretion in granting and refusing name suppression orders, and whether the appeals by S and J should be allowed.

In relation to S's appeal, the court found that the District Court had correctly determined that the statutory threshold had been met, and that publication of S's name would likely cause her undue hardship. However, the court found that the District Court had exercised its discretion incorrectly by granting suppression only in relation to S's second surname and not her first surname. The court held that there was no principled basis for suppressing only one surname used by S, and extended the suppression order made by the Judge to include both surnames used by S.

In relation to J's appeal, the court found that the District Court had not erred in its determination that there was no need for J to have his name suppressed, as S was adequately protected by her own name suppression orders. The court held that there was no real and serious risk that publication of J's name would lead to the identification of S, and that the public interest in open justice outweighed J's arguments in favour of name suppression.

In summary, the appeal by S was allowed and the order made by the Judge suppressing one of the surnames used by S was extended to include the second surname used by her. The appeal by J was dismissed as there was no need for J to have his name suppressed as S was adequately protected by her own name suppression order.

Orders