Stewart v Police

[2013] NZHC 1280

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI-2013-485-32 [2013] NZHC 1280

BRANDYN ALAN STEWART

v

NEW ZEALAND POLICE

Hearing:                   31 May 2013

Counsel:                  S J Gill for Appellant

S C Carter for Crown

Judgment:                31 May 2013

JUDGMENT OF WILLIAMS J

In accordance with r 11.5, I direct the Registrar to endorse this judgment with the delivery time of 1.30pm on the 31st May 2013.

[1]      Mr Stewart faces two counts as follows:

(a)       blackmail contrary to s 237(1) of the Crimes Act 1961; and

(b)communicating  with  a  young  person  for  the  purposes  of  sexual grooming contrary to s 131B(1) of the Crimes Act 1961.

[2]      The allegations against the appellant are that he blackmailed an 11 year old girl to induce her into providing further indecent photographs of herself to him. There is also an allegation in relation to another 11 year old girl that he encouraged

or “groomed” her to perform a sexual act on him.

STEWART v NEW ZEALAND POLICE [2013] NZHC 1280 [31 May 2013]

[3]      The facts beyond that are not relevant to the appeal.

[4]      In the District Court, his Honour Judge Butler refused the appellant continued name suppression pending trial.  The appellant appeals that refusal.  The appellant relies on s 200(a) and (e) of the Criminal Procedural Act 2011.   These provisions focus on whether publication of the appellant’s name would:

(a)       cause extreme hardship; or

(e)       endanger his safety.

[5]      The starting principles underlying name suppression are well understood and now uncontroversial. They are:

(a)      the starting point is publication in light of the principles of open justice and freedom of speech, subject of course to the usual requirements of fairness and accuracy; and

(b)      special circumstances are required to displace the starting point.

[6]      The cases point to a range of factors rationally connected to the question of whether the particular circumstances of any case justify dislodging the starting point, but there is little need for reference to them in this case.

[7]      The appellant’s argument is essentially that he, at an appearance in court, was subjected to threats and intimidation both within the court and outside it such that he has had to leave his job to live in a different area.   The affidavit of Mr Stewart’s mother suggests that the intimidation that occurred outside the court came from members of the Mongrel Mob who surrounded her car when she came to pick the defendant  up.    Apparently  the  gang  members  took  down  the  car’s  registration number.  The fear was significant enough for the police to escort the defendant home for his own protection.  The defendant, his mother and grandmother were, it is said, terrified by the event.  I can well imagine.

[8]      The fear is that publication will lead to further threats of violence or actual violence.

[9]      The defendant also fears that publication will compromise his efforts at rehabilitation.  A letter from a clinical psychologist refers to the appellant suffering from attention deficit disorder for which he is being medicated as well as a likely problem with depression.   It appears that he has been something of an outsider throughout his life, with few close and supportive friendships.

[10]     I am not satisfied that the learned Judge in the District Court was “plainly wrong”, relied on the wrong principle or failed to take into account some relevant matter.    The  threats  that  were  made  against  the  appellant  were  made  while suppression was in place.  They were from people who were in the court at the time and recognised the defendant by his physical appearance.  Suppression clearly had no impact on them.

[11]     The appellant brings no particular evidence about threats or violence from individuals other than those who were in court at the time of his arraignment or on any occasion other than that occasion.   What the defendant seeks therefore is suppression on the basis that individuals charged with offending of the kind with which he is charged, are likely to be subjected to violence or threats of violence, by reason only of the nature of the charges.   That proposition is just not sustainable. Suppression on that basis would lead to suppression orders whenever such charges were laid.  Section 200 is obviously far narrower than that.

[12]     The appellant is apparently living at a different place now and he offers no evidence of concerns in respect of these matters in his new environment.

[13]     Similarly, it cannot be argued that suppression is necessary for rehabilitation. If that argument succeeded in this case, there would be automatic suppression in every case of this nature.   Depression is referred to in the psychologist report but again, that is hardly out of the ordinary, particularly for charges of this nature.

[14]     The appeal must therefore be dismissed.

[15]     That said, it does seem to me that the risk of the intimidation in the context of ongoing court appearances can be guarded against by having the defendant enter the court building through a side door.

[16]     I understand this matter is to be called in this court in the near future.  The

Registrar is directed to facilitate (with the help of the court constable) Mr Stewart’s

entry into the court by an appropriate side door.

Williams J

Solicitors:

Gill & McAsey, Lower Hutt

Crown Solicitor, Wellington