S v The Queen
[2020] NZHC 777
•21 April 2020
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
AppellantAND
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 suppress the second surname used by S and any personal details that would enable the uninformed reader to identify the two surnames as attaching to the same person.6
[7] J sought name suppression on the grounds that publication of his name would endanger S’s well-being and place the fairness of any retrial at risk in the event the appeal against conviction was successful. Judge Jelas declined the application, finding that S would be adequately protected by her own suppression order in respect of her second surname and that there was no risk to the fairness of a retrial that could not be adequately mitigated in the event.
[8] S and J now appeal against the decision of Judge Jelas. S wants suppression to extend to her first surname, while J wants suppression of his name to ensure that S cannot be identified by association with him.
Relevant Law
[9] S applied for name suppression under s 202(1)(a) and (2)(a) of the Act, which provides:
(1)A court that is hearing a proceeding in respect of an offence may make an order forbidding publication of the name, address, or occupation of any person who—
(a)is called as a witness; …
(2)The court may make an order under subsection (1) only if the court is satisfied that publication would be likely to—
(a)cause undue hardship to the witness, victim, or connected person; …
4 Name suppression decision (DC), above n 2, at [13].
5 Criminal Procedure Act 2011, s 202(2)(a).
6 Name suppression decision (DC), above n 2, at [26].
[10] J applied for name suppression under ss 200(1), (2)(e) and (f) of the Act, which provides:
(1)A court may make an order forbidding publication of the name, address, or occupation of a person who is charged with, or convicted or acquitted of, an offence.
(2)The court may make an order under subsection (1) only if the court is satisfied that publication would be likely to—
…
(e)endanger the safety of any person; or
(f)lead to the identification of another person whose name is suppressed by order or by law; …
[11] Sections 200 and 202 map each other in structure. The Court of Appeal has held that a name suppression decision under s 200 consists of a two-stage analysis, stage one setting a threshold, and stage two requiring a discretionary assessment:7
[40] At the first stage, the judge must consider whether he or she is satisfied that any of the threshold grounds listed in [section] 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 prerequisites 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 on to 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.
[12] In weighing the competing interests of the applicant and the public, the Court must:8
… [take] particular account of the public interest in open justice and that the starting point will always be the prima facie presumption in favour of openness in reporting and the right of the media to report public trials accurately as “surrogates” of the public. The discretion to prohibit publication should be exercised sparingly and only as an exception to the general rule that criminal proceedings are to be openly reported.
(footnotes omitted)
7 Robertson v Police [2015] NZCA 7 at [39]–[41].
8 R v Gosset [2019] NZHC 331 at [6].
[13] On appeal, this Court must approach the first stage as a general appeal, and so must identify error and come to its own view on the merits.9 The second stage is to be treated as an appeal against the exercise of a discretion.10 The Court of Appeal has held that an appeal against the exercise of the lower court’s discretion requires the appellant to:11
… show that the judge acted on a wrong principle; or that [they] failed to take into account some relevant matter or that [they] took account of some irrelevant matter or that [they were] plainly wrong.
[14] Palmer J has made obiter comments recently in R v Police, to suggest that the Court of Appeal has not intended to limit appeals against the exercise of discretion in the second stage to the narrow sense outlined above.12 He notes that the Court of Appeal “just used the word ‘discretion’ … in the wider usual sense of a power to make a decision”.13 He concludes his consideration of the meaning of appeals against the exercise of discretion in this context by observing:14
I do not consider there is any foundation in statute or in principle for subjecting a name suppression decision to a lower judicial review-like standard of an appeal which tempts an appellate court, in practice, opaquely to defer to the lower court on the merits of the decision.
[15] I am, however, bound to apply the approach of the Court of Appeal and treat the second stage as the exercise of a discretion.
Appeal by S
The District Court judgment
[16] Judge Jelas concluded that S would likely suffer undue hardship in the event her name was published.15 She considered “undue” hardship to mean “hardship that is disproportionate to the public interest in open court proceedings.” 16 She relied upon
9 Austin, Nichols & Co Ltd v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141 at [16]; and
R v Police [2019] NZDC 2901 at [37].
10 Youssefi v Police [2018] NZHC 1556 at [45].
11 May v May (1982) 1 NZFLR 165 (CA) at 170 as cited in Lawrence v R [2011] NZCA 272 at [11].
12 R v Police [2019] NZHC 2901 at [39]–[41].
13 At [39].
14 At [41].
15 Name suppression decision (DC), above n 2, at [21] and [14].
16 At [14].
this Court’s comments on the likelihood aspect of the test set out in Beacon Media Group Ltd v Waititi:17
The discretion of the Court to make an order under s 202 will be engaged if it is shown that the stated harm or risk of harm is a real and appreciable possibility that cannot be dismissed or ignored as being remote or fanciful.
[17] S relied upon two reports by a registered clinical neuropsychologist, Ms Sabine Visser. The reports describe S’s history of depression and post-traumatic stress disorder, as well as the effects the trial process has had on S, which become more acute at the thought of publication of her name.18 Ms Visser states:
I feel it would be gambling with her life for the Court to decline making a suppression order and instead attempt to control any deterioration of health that is detected.
[18]S’s family and close friends have knowledge of the prosecution.19
[19] The Crown opposed the application for name suppression, submitting that it was unlikely that S’s fears of media publication would eventuate, and emphasising that S had not been found unfit to work, nor was she taking medication.20
[20] The Judge readily accepted that S’s health was poor and that future publication might have a negative effect on S’s wellbeing. She found ultimately, in relation to the first stage of the test, that “there is an appreciable risk (being a real risk that cannot be readily discounted) that S will experience undue hardship if her name is not suppressed.”21
[21] Satisfied that the statutory threshold had been met, the Judge then exercised her discretion as to whether to grant the suppression, noting that:22
In exercising that discretion, the Court must balance the interests of the applicant and the wider public, particularly taking into account the public interest in open justice. The discretion to prohibit publication should be exercised sparingly and as an exception to the general rule of open justice.
17 Beacon Media Group Ltd v Waititi [2014] NZHC 281 at [21].
18 Name suppression decision (DC), above n 2, at [15].
19 At [15].
20 At [17].
21 At [19].
22 At [20].
[22] Judge Jelas declined to grant name suppression in relation to the surname S used predominantly at trial, but granted name suppression in relation to S’s second surname. She took the following factors into account:23
(a)S had professional assistance and conventional treatments available to her, which she had not exhausted.
(b)S was not isolated, having the love and support of close and involved family and friends.
(c)S’s concerns focussed upon future publication that may lead to her identification.
(d)S readily gave evidence in cross-examination about intimate and personal details in open court under her first surname without any application for suppression orders, even though she had access to legal advice. No members of the public were, however, present.
(e)It is rare, albeit possible, for the Court to grant suppression during or post-trial. The delay in applying for suppression meant that S must displace a greater presumption of openness than if she had applied pre- trial.
[23] The Judge considered that the balance between open justice and S’s needs could be met by making an interim order only in relation to her second surname and any personal details that would enable the uninformed reader to identify the two surnames as attaching to the same person.24
Submissions by S
[24] S submits that the Judge was correct to find that the statutory threshold had been met — that failure to grant S name suppression would cause S undue hardship.
23 At [22]–[23].
24 At [25].
[25] In relation to the second stage of the analysis, S submits that the Judge failed to take into account relevant considerations weighing in favour of name suppression. In particular, S submits that the Judge failed to consider the difference between her status as a witness and that of a defendant facing criminal charges or convicted of a criminal offence — the difference being that there is no public interest in knowing her character. S relies on R v Gosset, submitting that the same factors Mander J identified in that case as pointing against publication are applicable here.25 In particular, S highlights the following observations of Mander J:26
In the present instance … there will be no suppression of the content of any of the evidence [the witness] has given, which has and will continue to be reported in full. I do not consider publication of the witness’s name adds anything to the narrative of her evidence, nor is it necessary detail to understand her evidence or its relevance. It is not suggested that publication of her name may lead to further information coming forward which may bear on her credibility or reliability as a witness.
[26] S further submits that the risk management factors the Judge identified in the second stage of the analysis (availability of treatment for S’s mental health) are more properly considered under the first stage.
[27] S also questions the Judge’s reliance on the substance of these risk management factors, particularly because they run contrary to the neuropsychologist’s professional observations. She submits that her psychological troubles can be directly attributed to her PTSD, making her particularly susceptible to publicity.
[28] Finally, S questions the Judge’s reliance on M (CA762/2012) v R as authority for the proposition that it is rare for name suppression to be granted during or post- trial.27
Submissions by Crown
[29] The Crown submits, in relation to the first stage of the analysis, that undue hardship has not been established. The Crown highlights that:
25 R v Gosset, above n 8.
26 At [12].
27 M (CA762/2012) v R [2013] NZCA 113.
(a)The evidence before the Court as to S’s mental state is dated.
(b)The evidence before the Court as to S’s mental state fails to draw a connection between the publication of her name and a material deterioration in what is already a poor state of mental health.
(c)The evidence demonstrates that S is well connected to professional support services and has a supportive family.
(d)There is no evidence that publication will cause S any harm or prejudice in her career.
(e)S did not seek to have her identity suppressed at any point during the trial, which was held in open court.
(f)There was no media interest in the trial, and there remains none.
(g)The Crown understands that the victim wishes to speak about her experience as a victim of sexual violence. There is, however, no indication that she wishes to discuss the offender or witness.
[30] In relation to the second stage of the analysis, the Crown submits that this is not an appropriate case for the Court to exercise its discretion in favour of suppression, because S has not demonstrated that the paramount principle of open justice should be displaced.
Discussion
[31] As to the first stage of the analysis, I see no reason to differ from the Judge’s assessment that S will likely suffer undue hardship if publication of her name occurs. The Crown has been unable to establish any error on the part of the Judge.
[32] The evidence before the Court has been updated. Counsel has provided a further report from Ms Visser dated 19 February 2020, and Ms Visser does draw a connection between publication of S’s name and a material deterioration in her mental
health. She proffers the opinion that, should name suppression be lifted, S’s PTSD would be re-triggered and she would experience the symptoms of PTSD with anxiety and depression in a very intense way. Ms Visser goes so far as to say that S may experience helplessness and hopelessness that can quickly (minutes and hours, rather than weeks or months) deteriorate into suicidal thoughts and actions.
[33] Although S is well connected to professional support services and has a supportive family, Ms Visser is of the view that District Health Board services are not adequate to comprehensively deal with PTSD being experienced in a very intense way and are slow to respond to imminent risk. Furthermore, although those in S’s profession may not be overtly prejudiced against her, the reality is that the fears experienced by S are real, and her emotions are real. She has experienced a sense of complete helplessness where she was unable to stop the rumours and the attacks on her in the past.
[34] Finally, it is true that S did not seek to have her identity suppressed at any point during the trial, but no media were present, nor did she have any knowledge that the victim would later seek to reverse the statutory presumption against publication of her name, so she could speak out about the case. If the media were present or S had knowledge that the victim intended to speak out about the case, I am of the view she would probably have made an application for suppression of her own name at trial. Although the victim has indicated that she wishes to speak about her experience as a victim of sexual violence, there would be nothing stopping her talking about S and her role in the offending in the absence of name suppression.
[35] I, therefore, agree with the Judge’s assessment that there is an appreciable risk that publication of S’s name would cause her hardship that is disproportionate to the public interest in open court proceedings. The public interest in open court proceedings is low here. Non-publication of S’s name does not affect the criminal law’s commitment to the rule of law or outcome responsibility to any great degree because S was a witness.
[36] As to the second stage of analysis, the Judge found it was an appropriate case for the Court to exercise its discretion in favour of suppression, but only in respect of
S’s second surname and not her first surname. Again, I see no reason to differ from the Judge’s assessment that it was appropriate to exercise her discretion in favour of name suppression, but I cannot see any principled basis for exercising that discretion to suppress one surname used by S, but not the other.
[37] To some degree the stage two analysis overlaps with stage one, where the stage one ground is undue hardship because whether hardship is due is assessed in terms of whether it is proportionate to the public interest in the proceeding. It seems to me that the Judge did not, in either stage, take sufficient account that S was a witness and publication of her name was not necessary to understand the narrative of her evidence. The Judge, therefore, got the balance wrong when she stated that she considered the balance between open justice and S’s needs could be met by making an interim order for name suppression in relation to one surname only.
[38] The artificiality of the order made by the Judge suppressing only one surname used by S is illustrated by the further order she made that any details that would enable [Ms second surname] to be identified as [Ms first surname] was to be suppressed, including particulars such as [profession] student, present occupation, address and being a person known by two different surnames.
[39] In those circumstances, S’s appeal is allowed and the suppression order made by the Judge in relation to one of S’s surnames is extended to the other surname used by her as well. Both S’s surnames are suppressed permanently together with any details that may enable her to be identified as J’s partner.
Appeal by J
The District Court judgment
[40] Mr J sought name suppression on the grounds that: publication of his name would endanger S’s safety; and place the fairness of any retrial at risk in the event the appeal against conviction is successful.28
28 Name suppression decision (DC), above n 2, at [27].
[41] Judge Jelas declined the application. She found that S would be adequately protected by her own suppression orders.29 She also considered there to be no risk to the fairness of a retrial that could not be adequately mitigated in the event by appropriate jury directions and the time lapse between significant hearings.30 She noted that “[t]here have been many instances of significant publicity between verdict and trial.”31
Submissions by J
[42] On appeal, Ms Priest, for J, submits that the relevant grounds for name suppression are that publication would be likely to:
(a)endanger the safety of any person (namely, S) — s 202(2)(e); and
(b)lead to the identification of another person (namely, S) whose name is suppressed by order or by law — s 202(2)(f).
His second ground of appeal is therefore clearly contingent on S’s application.
[43] With respect to the statutory threshold for the first ground of appeal, J highlights Brewer J’s observations in R v Shailer:32
… a person’s safety is endangered if publication would cause physical or psychological harm … I accept that the medical evidence required to show that publication is likely to endanger the safety of a person does not have to be unequivocal. Further, I accept that publication does not have to be the sole cause of the risk to safety. It is sufficient that publication would cause a health condition to deteriorate further.
(emphasis added) (footnotes omitted)
[44] J submits that because S was granted partial name suppression due to the risk to her mental wellbeing, it can be accepted that her safety would be endangered if she were identified, even though s 202(2)(e) was not explicitly referenced.
29 At [29].
30 At [28].
31 At [28].
32 R v Shailer [2015] NZHC 2607 at [18].
[45] With respect to the statutory threshold for the second ground of appeal, J submits that publication of his name would likely lead to S’s identification, even where S’s second surname and her particulars are suppressed. It is submitted that identification of his name and S’s first surname, together with the details of his polyamorous relationship with S, will identify S because they remain in what is now a long-term relationship. J submits that anyone who has associated with them in the past or present would easily be able to identify S, and the fact that this group may be small in number is irrelevant.33
[46]J highlights Thomas J’s observation in R v D:34
[56] Once publication has been found to create a real risk of identifying someone who has met the criteria for name suppression, it will be rare circumstances in which it is appropriate to exercise the Court’s discretion not to grant name suppression to a defendant thereby triggering the real risk of identifying the person whose name is suppressed. In many cases, such identification will either undermine the decision of another Judge as to whether that person should be identified, or the statutory presumptions of Parliament under ss 203 and 204.
[47] J notes that, in H v R, name suppression was granted because it would likely lead to identification of the defendant’s family, who had been granted suppression.35 Fitzgerald J factored in that the effect of publishing the defendant’s name on the suppressed persons would not be minor, the nature of the offending was highly stigmatised and there was no heightened public interest in the case.36
[48] J further highlights Duffy J’s comments in Solicitor-General v [A],37 which were endorsed on appeal in A (CA605/2016) v R.38 The Court of Appeal observes:39
The interests of third parties will be relevant to the discretionary assessment if the qualifying ground is s 200(2)(f). But those interests are not determinative of the assessment as a matter of course. As Duffy J said, care must be taken as to the weight to be attributed to those interests in any particular case. It is possible that public interest in publication will prevail, as Duffy J considered it did in this instance.
33 H (CA300/2012) v R [2012] NZCA 514 at [19].
34 R v D [2016] NZHC 333. See also R v X [2016] NZHC 840 at [43].
35 H v R [2019] NZHC 2664.
36 At [45].
37 Solicitor-General v [A] [2016] NZHC 2643.
38 A (CA605/2016) v R [2017] NZCA 49.
39 At [19].
[49] J submits that the statutory threshold has been passed in relation to the grounds of S’s safety and identification. He submits that the Court should exercise its discretion in his favour.
[50] J acknowledges the open justice principle, but submits that it is outweighed by the following factors:
(a)He is not seeking a total bar on publication, but to restrict details likely to lead to the identification of S and himself.
(b)S is vulnerable and the effect of publication on her cannot be categorised as minor. There is a real and serious risk to S’s health.
(c)There is no public interest in this case; there is “a difference between something being of interest to the public and being in the public interest”.40
(d)This case is akin to B (CA860/2010) v R in that factors that tend to weigh against name suppression in sexual cases are absent.41 Publication of J’s name is not critical to personal deterrence, as he has a low risk of reoffending.
(e)J’s offending was isolated and low-level. He has no previous convictions and is of good character. Publication would tarnish his good character.
Submissions by Crown
[51] The Crown submits that J’s appeal is contingent upon the outcome of S’s appeal. If the Court considers that S’s identity should be suppressed pursuant to s 202(2)(a), the Court must then turn its attention to whether J’s name should also be suppressed pursuant to s 200(2)(f).
40 See DP (CA418/2015) v R [2015] NZCA 476 at [39].
41 B(CA860/2010) v R [2011] NZCA 331 at [22].
[52] The Crown submits that publication of J’s name would not lead to the identification of S. S gave evidence willingly at trial using her first surname. J does not share a surname with her and S practices professionally using her second surname. The risk of someone unknown to S connecting S with J is said to be unlikely.
[53] The Crown submits it is very unlikely that publication of J’s name will frustrate the order suppressing S’s second surname. The case is not one where domestic partners share a surname and have a high profile, or where the applicant is a child of a high-profile personality. S and J are ordinary people with different surnames and it is unlikely they will be connected by persons unknown to them.
Discussion
[54] Again, I see no reason to differ from the Judge’s assessment that there is no need for J to have his name suppressed as S is adequately protected by her own name suppression orders. J has been unable to establish any error on the part of the Judge.
[55] I do not accept that, irrespective of the outcome of S’s appeal, naming J would likely lead to the identification of S. The Judge commented that S has the love and support of close and involved immediate family and friends who inferentially must know of J’s trial and the fact that S gave evidence in support of J. The question is would anyone else without that knowledge immediately identify S as a witness in the trial if J’s name was published.
[56] The offence happened in May 2017, almost three years ago now. At the time, J and S had been in a relationship for just over a year. J and S remain in that relationship. The offending, therefore, occurred at a relatively early stage of their relationship. If J’s name was now published as a person convicted of indecent assault of a woman while a second unnamed woman was in the same bed, S would not immediately be identified as that second unnamed woman. I agree with the Crown that it is unlikely they will be connected by persons unknown to them.
[57] Although I accept that J’s offending was not the most serious of sexual assaults, and unlikely to be repeated, J must bear the ordinary consequences of being convicted of indecent assault, one of which is the possibility of his name being published as an
offender. There is a public interest in open justice which is not displaced by his previous good character.
[58]J’s appeal is dismissed.
Result
[59] In summary, the appeal by S is allowed and the order made by the Judge suppressing one of the surnames used by S is extended to include the second surname used by her.
[60] The appeal by J is dismissed as there is no need for J to have his name suppressed as S is adequately protected by her own name suppression order.
Woolford J
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