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…

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.

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Details

Case: [2013] NZHC 1280
Decision Date: 31 May 2013

CaseChat Overview and Summary

Brandyn Alan Stewart appeals against the decision of the District Court to refuse a continued name suppression pending trial. The appellant faces two charges: blackmail under section 237(1) of the Crimes Act 1961 and communicating with a young person for the purposes of sexual grooming under section 131B(1) of the Crimes Act 1961. The District Court's refusal of continued name suppression was based on section 200(a) and (e) of the Criminal Procedural Act 2011, which focus on whether publication of the appellant's name would cause extreme hardship or endanger his safety.

The court must determine whether the appellant's situation justifies continued name suppression, given the starting principles of open justice and freedom of speech, which are subject to fairness and accuracy. The appellant argues that he has been subjected to threats and intimidation, including from members of the Mongrel Mob, which led to him leaving his job and relocating. He also claims that publication would compromise his efforts at rehabilitation due to his attention deficit disorder and depression. However, the court found that the threats were made while suppression was in place and were from individuals present in court, suggesting that suppression had no impact on them. The court concluded that suppression is not necessary simply because the appellant faces charges of this nature, and there is no evidence of ongoing concerns in his new environment or that suppression is essential for rehabilitation.

The court dismissed the appeal, noting that the risk of intimidation during court appearances could be mitigated by having the appellant enter the court through a side door. The Registrar was directed to facilitate this arrangement. The court's judgment highlights the narrow scope of section 200 and the need for specific evidence of threats or safety concerns to justify continued name suppression.

Orders