Shepherd v The King
[2025] NZHC 280
•25 February 2025
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CRI-2024-483-015
[2025] NZHC 280
BETWEEN JASON CHRISTOPHER DAVID SHEPHERD
AppellantAND
THE KING
Respondent
Hearing: 13 February 2025 Appearances:
J H C Waugh for Appellant
K B Bell & D Lye for Respondent
Judgment:
25 February 2025
JUDGMENT OF CHURCHMAN J
[Appeal against suppression]
[1] Jason Shepherd (the appellant) appeals against a decision of Judge Marinovich refusing to grant him permanent name suppression. 1
Background
[2] On 25 October 2024, the appellant was sentenced following his pleas of guilty to two charges:
(a)meeting a young person following sexual grooming;2 and
(b)grooming for sexual conduct with a young person.3
1 R v Shepherd [2024] NZDC 25973.
2 Crimes Act 1961, s 131B.
3 Crimes Act 1961, s 131AB.
SHEPHERD v R [2025] NZHC 280 [25 February 2025]
The law
[3] Matters of name suppression are governed by s 200(2) of the Criminal Procedure Act 2011 (the Act).
[4] The appeal is against the making of a permanent suppression order rather than an interim one.
[5] The grounds upon which the Court may make a permanent suppression order are listed in s 200(2) of the Act. Relevant for the purposes of this appeal, the Court is required to be satisfied that publication of the appellant’s name would be likely to cause extreme hardship to the appellant or any person connected with him.
[6] When the Court is making a permanent order under s 200(6), the Act requires the Court to take into account any views of a victim of the offending.
[7] The appellant has the onus of satisfying the Court that extreme hardship to him or people connected with him will result unless there is name suppression.
[8] The Court undertakes a two-step inquiry: firstly, to see whether the threshold ground in s 200(2)(a) of the Act is met and then secondly, to make a discretionary assessment evaluating the competing issues of open justice with the interests of the appellant and those connected with him.4
[9] The threshold of extreme hardship is a high one and has been described as requiring a “compelling reason” or a “very special circumstance”.5
[10] The assessment of whether the threshold is met requires a comparison between the hardship that is contended for, and the consequences normally associated with the publication of a defendant’s name.6
4 D (CA 443/2015) v Police [2015] NZCA 541, (2015) 27 CRNZ 614 at [10]–[12].
5 R v N [2012] NZHC 2042 at [21]–[22].
6 Robertson v Police [2015] NZCA 7 at [43]–[46].
The decision under appeal
[11] The Judge held that the appellant, his wife, and two children would suffer extreme hardship if permanent suppression were not granted. In balancing the issues of open justice and the interests of the appellant and his family members, he concluded that the interests of open justice prevail.
[12]The Judge’s reasoning is set out in his sentencing decision as follows:
[42] I, however, have to exercise my discretion in the second stage, balancing public interest and open justice, and that hardship. It seems to me, from the information, that the schooling environment that the children are in is protective of them. Here is must take into account the seriousness of the defendant’s offending. In that regard I take into account his position as a teacher and the significant breach of trust that occurred. I note the longevity of the offending given the period of time over which it occurred. I take into account, importantly, the strong views of the victims that had been put before me. There they do not support suppression of name.
[43] Here I know that there is a public interest in knowing the character of the defendant given the position he held. Here I note also that his behaviour went undetected for a long time. There is, I accept, a concern that there may be other victims of your discrete offending. Here, in exercising my discretion, I decline your application for permanent name suppression.
Additional affidavits
[13] In addition to the affidavit evidence available in the District Court, the appellant has sought leave to file two updating affidavits. One is from the appellant’s wife and the other is from the appellant.
[14] The affidavit of the appellant’s wife deposes to the effect on her of harassment by members of the community who already know the appellant’s identity. She refers to having developed symptoms of post-traumatic stress disorder and appends to her affidavit a letter from her General Practitioner which confirms “ she is suffering from severe emotional distress, chronic anxiety, an acute panic state, insomnia and secondary reactive depression”.
[15] The General Practitioner expresses the conclusion that the appellant is suffering from: “… a mood disorder, depression (adjustment reaction to significant emotional stressors), insomnia, severe emotional distress and chronic anxiety".
[16] The General Practitioner details the medication the appellant is on, notes that the appellant has “expressed suicidal ideation and self-harm tendencies in the past” and says that the doctor is “extremely concerned for [the appellant’s] current and future mental health and wellbeing”, should his name be published in the wider community.
[17] There is another letter attached to the affidavit from the same General Practitioner relating to the appellant’s son. That letter details the mental health issues being experienced by the appellant’s son. It records that the son has been bullied at school as a result of knowledge in the community about the appellant’s convictions.
[18] The letter contains the statement that in the opinion of the General Practitioner, the appellant’s son would “…suffer irreparable consequences and irreversible harm, both mentally, emotionally and socially … should [the appellant’s name] … become public in the wider community”.
[19] The appellant’s wife deposes to interactions she has had in her work environment with work colleagues. She expresses the view that if permanent name suppression is denied, it will be impossible for her to continue in her role. The appellant’s wife also deposes to the adverse financial consequences of the appellant not being able to continue employment.
[20] The affidavit addresses the adverse effect on the parties’ daughter who has been bullied and targeted as a result of knowledge in the community about her father’s convictions.
[21] Counsel for the respondent indicated that the Crown took a neutral position on the Court receiving the updating evidence but noted that the updating affidavits referred to much of the information that was already before the District Court. The Crown contends that the updating affidavits lack sufficient probative value to advance the appellant’s position in relation to name suppression.
[22] Given that the respondent does not oppose the Court receiving the affidavits, I have received and considered them.
Appellant’s submissions
[23] Mr Waugh submits that, even with interim name suppression, the appellant and his family have been subject to a five-year long campaign of abuse, harassment and demonisation. These issues have resulted in significant medical issues for the whole family, including the two children. The loss by the appellant of his livelihood is said to threaten to destroy the family unit and any long-term prospects of rehabilitation.
[24] He also submits that the assessment of whether likely hardship would be extreme must be looked at cumulatively and based on all of the hardships being experienced.
Respondent’s submissions
[25] The respondent argues that extreme hardship is a very high level of hardship meaning “severe suffering or privation” or “hardship that is excessive in the particular circumstances of the case”. 7 The respondent relies on T v R for the proposition that where information as to the identity of someone appearing before the Court is already in the public domain, name suppression is generally not appropriate. 8
[26] In relation to some of the additional possible consequences of publication that the appellant has relied on, counsel notes:
(a)suppression does not stop the offending from being talked about or written about in the media;
(b)the fact of suppression does not mean that convictions can be omitted from employment applications, nor hidden from an employer who has a genuine need to know;
(c)the appellant’s wife, and her current employment, will have the protection of normal employment law;
7 M (SC 13/2023) v R [2024] NZSC 29, [2024] 1 NZLR 83 at [69].
8 T (CA 183/2023) v R [2023] NZCA 478 at [21].
(d)the appellant has not tendered evidence from the children’s schools about any concerns that they may have in relation to the children if the appellant’s name is published; and
(e)the medical reports do not provide sufficient analysis around how publication would aggravate existing issues, given the evidence from both the appellant and his wife that the appellant’s name is already well known in the community. The medical information relied on also lacks sufficient reasoning to support the conclusionary comments where the appellant’s name is already known within the community and negative impacts stemming from the offending have already occurred.
Is extreme hardship made out?
Extreme hardship for the appellant
[27] The fact that the appellant might lose employment or have difficulty obtaining further employment if his name is published is an ordinary result of a conviction for serious criminal offending. The same comments apply to the fact that publication of the appellant’s name will put stress on the family unit. I accept the Crown’s arguments as to the lack of specificity in the medical report relating to the appellant. The fact that the appellant has expressed suicidal ideation and self-harm tendencies in the past does not address the current situation or make a direct connection with the consequences of name publication.
[28]In F v R, the High Court said:9
As the Court of Appeal stated in D (CA 443/2015) v Police “[t]he possibility of self-harm or suicide always gives the Court cause for anxious consideration… But the Court cannot adopt a stance that any risk is unacceptable. The defendant “must normally point to something more than the usual features of anxiety and despair that may attend proceedings”. The Court also commented that “[t]here are normally ways of managing the risk… [s]upport structures can be identified and deployed” (citations omitted).
9 F v R [2020] NZHC 1653 at [33].
[29] In F v R, the Judge was satisfied by a “small margin” that a recent self-harm/suicide attempt by the appellant meant that there was a real possibility that the appellant’s safety would be in danger if publication were to occur.10
[30] In light of the reasons above, I am not satisfied that the threshold of extreme hardship has been met for the appellant.
Extreme hardship for family members
[31] As noted above, the medical report in relation to the appellant’s wife is more detailed than the report in relation to him. It confirms that she is “suffering from severe emotional distress, chronic anxiety, an acute panic state, insomnia and secondary reactive depression” which was ongoing.
[32] The second of the two medical reports focuses on the health of the parties’ son. It describes the son’s medical issues as:
… suffering from significant anxiety and emotional stress, which has exacerbated his nervous facial twitching and nervous tics (involuntary facial muscle twitching), and caused secondary insomnia. His clinical presentation has been significantly exacerbated by the initial allegations…. and the immense pressure that this has inflicted on his relationship with his father, his emotional state, personal health, and his family’s mental health and wellbeing since these events became known to him.
[33] The updating affidavit filed by the appellant’s wife has confirmed that their son struggled with the knowledge of his father’s conviction — the son initially lived with a family friend as he was too distraught to live with his father. The affidavit described ongoing ways in which the son’s distress manifested itself, including hiding in his room and disengaging from friends and sporting team members.
[34] The evidence in relation to the parties’ daughter is less specific. The appellant’s wife updating affidavit notes that she has started high school this year. The affidavit noted that their daughter had been ostracized at her prior school and subject to bullying and name calling as a result of the school community becoming aware of her father’s convictions.
10 At [29].
[35] By a fine margin, I have concluded that the evidence relating to the appellant’s wife and son meets the level of extreme hardship.
Discretionary assessment
[36] As I have determined that at least one of the threshold grounds in s 200(2) is met, I now turn to consider the exercise of discretion and whether I should make a permanent suppression order.
[37] There is no doubt that the offending is serious and of the type that the public has a legitimate interest in knowing about. The principle of open justice is an important one and I accept that before open justice should yield to suppression the balance must “clearly favour” suppression.11
[38] The possibility of further victims coming forward, given the appellant’s role as a teacher, was emphasised by the respondent. There have been cases where the Courts have considered that this has been a decisive consideration.12
[39] On the particular facts of this case, there would appear to be relatively little prospect of publication resulting in further victims coming forward. The offending that was the subject of the charges in this case occurred between 2011 and 2015. That is more than a decade ago. Notwithstanding interim suppression orders, it appears that there is some knowledge of the appellant’s identity in both the school and wider community. Publication would not seem to be necessary to meet the public interest of encouraging further victims to come forward.
[40] It is difficult to see that publication of the appellant’s name is necessary by way of either specific or general deterrence. In terms of specific deterrence, the appellant will not work as a teacher again and appears to have been making progress towards rehabilitation. As far as general deterrence goes, the most significant deterrent aspect would seem to be the fact that the appellant has been prosecuted, convicted and sentenced. The information is in the public domain and the publication of the appellant’s name would not seem to add much by way of deterrent.
11 D (CA 443/2015) v Police, above n 4, at [12].
12 See B (CA 860/10) v R [2011] NZCA 331 at [21].
[41] I have carefully considered whether the fact that some knowledge in the community of the identity of the appellant should operate to negate the consideration of the extreme hardship that I have found would be caused to the appellant’s wife and son. Ultimately, I have concluded that on the facts of this case that it is a relevant consideration. A number of the most significant adverse consequences relied on are the harassment, bullying, and threatening that have already occurred and, in some instances continue to occur. To the extent that the appellant’s identity is already in the public domain, perversely, an order finally suppressing his name may well provoke those who have been engaging in the harassment to redouble their efforts.
[42] A further matter that I consider relevant in balancing the public and private interests are that publication of the appellant’s name would clear suspicion from any other teacher at the school. That is a factor in favour of lifting suppression.
[43] Finally, the views of the victims are a matter that I must have regard to. They are firmly opposed to suppression.
[44] The respondent submits that ongoing name suppression of the appellant would impede the victims from completing their recovery process. Counsel notes that secrecy was a key characteristic of the appellant’s offending against the victims and is the cause of substantial guilt and shame they continue to experience today.
[45] The offending is said to have isolated the victims from others and that a permanent suppression order would continue to isolate them from their support networks and impede their recovery.
Conclusion
[46] Notwithstanding my acceptance that publication of the appellant’s name will cause extreme hardship to members of his family, I have reached the same conclusion as the Judge below that the public interest factors discussed above justify the publication of the appellant’s name. The factors which justify my decision are the wishes of the victims, the fact that there already seems to be a level of knowledge of the appellant’s identity in the school and wider community, that publication will clear
other teachers at the school from suspicion, the nature of the offending and the need for the appellant to be held accountable for his actions.
[47]Accordingly, the appeal is dismissed.
[48] In order to alert the appellant’s family as to the impending lifting of the suppression order, I direct that a further interim suppression order is made which will expire five working days after the date of this decision.
Churchman J
Solicitors:
Crowley Waugh, Whanganui for Appellant Crown Law, Wellington for Respondent
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