Stuff Limited v M
[2022] NZHC 3538
•19 December 2022
ORDER PROHIBITING PUBLICATION OF NAME, ADDRESS,
OCCUPATION OR IDENTIFYING PARTICULARS OF RESPONDENT PURSUANT TO S 200 CRIMINAL PROCEDURE ACT 2011. SEE
THE SUPPRESSION ORDER MADE IN THE DISTRICT COURT (REFER [36]) CONTINUES.
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CRI 2022-485-64
[2022] NZHC 3538
UNDER the Criminal Procedure Act 2011 IN THE MATTER OF
an appeal against an order for name suppression
BETWEEN
STUFF LIMITED
Appellant
AND
M
First Respondent
NEW ZEALAND POLICE
Second Respondent
Hearing: 24 November 2022 Counsel:
D Nilsson for Appellant
S M Bolland for First Respondent M A for Second Respondent
Judgment:
19 December 2022
JUDGMENT OF MALLON J
STUFF LTD v M [2022] NZHC 3538 [19 December 2022]
Introduction
[1] M pleaded guilty to a charge of being found in a building without reasonable excuse.1 He was granted a discharge without conviction.2 An order suppressing M’s name, his occupation and his former occupation was also made. Suppression was also granted over personal circumstances that were accepted as having affected M’s behaviour on the day of the offending.
[2] Stuff Limited (Stuff) appeals the order suppressing M’s name and identifying particulars. It says the District Court Judge erred in finding that publication of M’s name met the relevant threshold criteria for name suppression, namely publication would be likely to result in extreme hardship to him or endanger his safety.3 It further says that, even if the threshold for name suppression was met, the Judge erred in exercising his discretion to grant suppression by asking the wrong question and proceeding on erroneous findings as to the nature and serious of the offending and the public interest in transparency and publication.
[3] The prosecution took a neutral position in the District Court and maintains that neutral position on appeal. It did not oppose name suppression because of the risks to M set out in the information provided to the Court and abides the Court’s assessment of that information.
Background
Summary of facts
[4] The victim was a 47-year-old woman who lived by herself. She had installed a pet camera inside her house which, when activated, sent alerts to her cellphone via
1 Summary Offences Act 1981, s 29(1)(a) (Maximum penalty of three months’ imprisonment or a
$2,000 fine). He was originally also charged with burglary as an alternative charge. The burglary charge was dismissed on the basis that there was no evidence which the Crown could prove that the defendant had an intent to commit an imprisonable offence in the building: New Zealand Police v [M] [2022] NZDC 699 at [45]; and Criminal Procedure Act 2011, s 147.
2 Sentencing Act 2002, s 106; and New Zealand Police v [M] [2022] NZDC 19526 [Name suppression decision].
3 Criminal Procedure Act, s 200(2)(a) and (e).
text message. At approximately 4 pm on Thursday 10 June 2021, the victim left her home to go to work.
[5] M, aged 67 at the time, lived at the neighbouring address with his wife. When the incident described below occurred, his wife was in Auckland and was returning to Wellington on the evening of Friday 11 June 2021.
[6] At 6.40 pm M entered the victim’s address via an insecure front door. The pet camera captured his image. He was clothed. M went into the nearby lounge and out of view of the camera. He walked back into the view of the camera and was naked. The camera captured M masturbating himself while walking around the house. He returned to the lounge, got dressed and left the house via the front door at approximately 6.46 pm.
[7] M returned to the victim’s house at 10.59 pm that same night. The pet camera captured him lowering his trousers (exposing his buttocks) and masturbating himself. He moved out of the view of the pet camera and walked around the house, leaving the address at 11.04 pm.
[8] The victim became aware of the intrusion at approximately 6.00 am on 11 June 2021 and contacted police. Police spoke to M at his home address later that morning while conducting area inquiries. He was subsequently arrested after being identified as the person in the pet camera footage obtained from the victim.
[9] M agreed to be electronically interviewed on DVD. He adamantly denied breaking into his neighbour’s property.
Personal circumstances
[10] M is now aged 69. He has no previous convictions of any kind. He has had a distinguished professional career. At the time of the offending, he was working in a number of roles, both paid and pro bono, and also undertook voluntary work. His work was very important to him, giving him purpose and a sense of contribution to society.
[11] His affidavit expressed his deep remorse for his behaviour. He regards himself as being a very careful and deliberate person, not prone to taking risks (noting that he has received just one speeding ticket in his life), and good at controlling his emotions. He attributes his aberrant and unacceptable behaviour as caused by an emotional breakdown relating to distressing events in his past4 that were triggered by an event earlier in the day and in the context of a stressful and heavy workload.
[12] He apologised for denying his behaviour when he was arrested on 11 June 2011. He was in police custody for the first time in his life and was frightened. He could not admit what he had done to himself, let alone anyone else. Three days later, his lawyer advised the Police that he would accept that he was the person captured on the camera. He sent a letter of apology to the victim on 17 June 2021 and again in September 2021. He expressed his deep shame for his inappropriate behaviour and for its undoubted effects on the victim and for the breach of trust it involved. He also assured the victim that it was not directed at her in anyway and he would never enter her property again. His wife also separately wrote an apology to the victim. M also offered a reparation payment which would go to her chosen charity if she did not wish to retain it.
[13] In the July to September period, M resigned some of his roles to reduce stress and manage his increasing anxiety. Although M had name suppression throughout the District Court proceeding, word of his offending filtered out. In October, he was asked to resign from one of his roles and he did so immediately. He then resigned his other roles and withdrew from all social engagements outside a small circle of close personal friends.
[14] M’s affidavit discussed the effect that all this had on him. His mental health seriously deteriorated to the point that he wanted to end his life. A psychologist who he had been seeing contacted his GP on 7 October 2021, following a session with M, alerting the doctor to his distressed state and suicidal intentions. M’s wife drove M to the doctor and M was then put in the care of the District Health Board’s Mental Health
4 Detailed in his affidavit but suppressed pursuant to the District Court order.
Crisis Team. M was assessed and treated by the team’s psychiatrist and remained under their watch for the rest of the month until he became more stable.
[15] Subsequent media enquiries made of him and details in news articles indicated to him that “talk” was becoming increasingly widespread. M received text messages from concerned contacts. M said: “This has caused me deep anxiety, and a prolonged depressive state. I developed a firm plan to end my life.” He had been seeing a psychologist since July 2021 and throughout 2022 and this would continue for the foreseeable future. He had “alternated between long periods of deep despair and brief periods of hope for a future”. A storm of media over his offending and the consequent loss of any engagement in activities and community “will be unbearable”. M said:
My sense of guilt and hopelessness about the future has led to major depression, and an intention to end my life. Publication of my name, accompanying the details of my offending, will intensify exponentially the psychological distress that has characterised the last 12 months of my life. My behaviour is far from my own values and the way I have lived my life. I have found it very difficult to accept that I was capable of this behaviour, even when so emotionally upset. Despite other very tough times in my life, I have never considered the option of suicide and I am embarrassed to admit how much it has dominated my thoughts and plans in recent months, or that I could even acknowledge it and write it down in this affidavit.
[16] M’s wife filed an affidavit. She described herself as M’s primary emotional support. She had observed M experiencing deep and enduring depression and heightened anxiety. She confirmed M’s affidavit about the crisis situation that arose in October 2021. Medication and therapy stabilised him from immediate self-harm but he remained deeply depressed and without purpose. She needed to be with him full time. She reduced her professional and other commitments to support him.
[17] M’s wife also felt the distress when news started filtering around. She also withdrew from social contact and this gave her a sense of M’s feelings. She considered that his distress would be magnified by wider public reporting if name suppression was not continued. She observed M’s mental wellbeing significantly deteriorating and his suicide risk increasing in the months leading up to his sentencing. Having to be with M 24/7 was taking a significant toll on her. She was very worried that he would not survive the ordeal and, if he did, he would never regain his mental wellbeing and confidence.
[18] Friends and other family members filed affidavits. These included an affidavit from a friend to whom M had confided that he had come close to taking his own life. M’s wife called this friend on two subsequent occasions when M was having similar thoughts. On one of those occasions, he flew to see M and spend some time with him because he was terribly concerned for M and the toll it was taking on M’s wife. He said M was feeling particular shame because of the repercussions of his offending on his family and the likely public ridicule from it.
[19] M’s psychologist filed an affidavit. She confirmed the October 2021 crisis. She also said that she believed that M “continued to be at serious risk of suicide and if his name is made public and he is hounded by the media his risk increases even more so.” She said that “in his eyes his life is diminished, having been cast out from the roles and groups he so enjoys”. Not being able to resume participation in such things would be a major setback in his already fragile mental health in her view. She also considered that publication of his name would be extremely detrimental to his wellbeing and his ongoing recovery because of his “high suicide risk”.
[20] Reports from Dr Gregory Young, a consultant psychologist who had interviewed M on several occasions in person and over the telephone, were before the Court. The first report was dated 20 September 2021 and followed an interview with M on 16 July 2021 (so close in time to the offending). The report referred to M experiencing “black despair” and thoughts of suicide that Dr Young assessed as genuine. A report dated 8 June 2022 followed an interview on 13 May 2022. Dr Young described M as severely depressed. M had researched methods of suicide and his wife and other health professionals involved in his care were concerned about his risk of suicide. He recommended that M’s wife remain vigilant.
[21] Dr Young provided a detailed report dated 3 July 2022. This followed the earlier contact and interviews, and further telephone contact with M on 29 June 2022. The thorough report discussed a range of things, including the triggers for the offending. It also provided more detail about M’s actions regarding his suicidal thoughts. Without going into detail about M’s mood, thoughts and actions in this judgment, they provided support for Dr Young’s assessment that M’s thoughts of suicide were genuine. Dr Young’s expert opinion included:
In my assessment, [M’s] depressive illness and significant risk of suicide are directly related to the present proceedings … loss of name suppression would result in tremendous shame and loss of mana, and … publication of [M’s] name and other information that is before the Court is likely to create a serious obstacle to managing the suicide risk.
…
[M] presents with continuing symptoms of a depressive disorder, including depressed, labile mood, anxiety, insomnia, and suicidal ideation. … I expect that the natural history of this depression will be that the symptoms ease as
[M] adjusts to whatever his circumstances are, but that this may take a considerable amount of time and successful therapy and medical treatment. The seriousness and prolonged course of the symptoms weigh against [M]’s presentation being a normal reaction to stress.
In my opinion, a critical factor in driving the depression is [M]’s experience of being humiliated. … [M] believes that … his reputation has, in his words, been ‘demolished’. Humiliation is recognised as a risk factor for depression and suicide.
…
… his age, gender and the role of humiliation make the risk of suicide higher. The problem of humiliation is that it is likely to be permanent; … if the Court allows publication of the details of this case, the circumstances of his fall from grace will be equally available. …
My clinical impression is that [M] is likely to be at serious risk of completing suicide for some time, and that the key factor that could increase or decrease the risk is public humiliation, that would inevitably follow loss of name suppression. The risk could be managed but it would be sustained for an uncertain period, and I am concerned that [M] has the ability and may have the motivation to suicide once his wife and others decrease their vigilance.
Law
Statutory test
[22]Section 200 of the Criminal Procedure Act 2011, as relevant, provides:
200 Court may suppress identity of defendant
(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—
(a)cause extreme hardship to the person charged with, or convicted of, or acquitted of the offence, or any person connected with that person; or
…
(e) endanger the safety of any person …
…
(3)The fact that a defendant is well known does not, of itself, mean that publication of his or her name will result in extreme hardship for the purposes of subsection (2)(a).
…
(6) When determining whether to make an order or further order under subsection (1) that is to have effect permanently, a court must take into account any views of a victim of the offence conveyed in accordance with s 28 of the Victims’ Rights Act 2002.
[23] This is a two-stage test.5 The first stage is a threshold determination where the Court must be satisfied that one of the consequences listed in s 200(2) would be likely to follow if no order were made.6 The applicant bears the onus of satisfying the Court that the threshold has been passed based on the available evidence.7 Likely means “more than a mere possibility” requiring the risk of harm to be a real and appreciable possibility that “cannot be dismissed or ignored or described as remote or fanciful”.8
[24]As summarised in L(CA417/2020) v R:9
[13] Extreme hardship sets a ‘very high’ threshold. It is a contextual assessment and entails a relative comparison between the contended hardship and the consequences normally associated with publication. To qualify as extreme hardship, there must be something well beyond the ordinary consequences of publication. Where it is the defendant whose safety is at risk, there is a degree of overlap between this threshold and that of endangering the safety of any person. The endangering safety threshold can encompass retribution or vigilantism but can also include physical or psychological harm of a serious kind.
5 Fagan v Serious Fraud Office [2013] NZCA 367 at [9]; Robertson v Police [2015] NZCA 7 at [39]–[41]; and D (CA443/2015) v Police [2015] NZCA 541, (2015) 27 CRNZ 614 at [10]–[12].
6 Fagan v Serious Fraud Office, above n 5, at [9]; and Robertson v Police, above n 5, at [39].
7 Robertson v Police, above n 5, at [44].
8 Simon France (ed) Adams on Criminal Law (online loose-leaf ed, Thomson Reuters) at [CPA205.03] and [CPA194.01]; and Huang v Serious Fraud Office [2017] NZCA 187 at [10].
9 L (CA417/2020) v R [2020] NZCA 604 (footnotes in quotation omitted).
[25] Where, as here, the issue is the psychological well-being and risk of self-harm of a defendant there is substantial overlap between the extreme hardship and endangering safety ground.10
[26] In D(CA 443/2015) v Police the Court provided comments on where the threshold question concerned the risk of suicide:11
… Judges know that people may experience suicidal ideation when confronted with criminal proceedings, which are immensely stressful, but very seldom, if ever, act upon it. The proceeding is normally the principal cause of stress, although publication identifies the proceeding with the defendant and may cause great anxiety at particular points in time.
… For these reasons a defendant who relies on a risk of self-harm or suicide attributable to publication of his or her name must normally point to something more than the usual feelings of anxiety and despair that may attend proceedings. It is usual to offer evidence that the defendant is psychologically troubled for other reasons and is particularly susceptible to publicity. This may be coupled with evidence that the case will attract unusually extensive or critical media publicity.
… The opinions of medical professionals deserve respect, but a court need not not defer to them. It is unlikely to question an uncontradicted medical diagnosis of the defendant’s condition, but such opinions may assume that any risk is too much …
… There normally are ways of managing the risk. Where possible, medical reports prepared to assist the courts should recommend and evaluate these options. For example, a brief period of suppression may reconcile the defendant to the inevitability of publicity after the initial shock of arrest and first appearance. Support structures can be identified and deployed. …
[27] If either of the extreme hardship or endangering safety statutory thresholds are crossed, the second stage involves the Court exercising its discretion as to whether suppression should be granted. This requires the Court to weigh up the competing interests of the applicant and the public.12 Because of the importance of open justice, the balance must “come down clearly in favour of suppression” if suppression is to be ordered.13
10 NL (CA344/2022) v R [2022] NZCA 497 at [29]; D (CA443/2015) v Police, above n 5, at [8];
Hawea-Edwards v R [2021] NZCA 52 at [22]; Santos v R [2019] NZCA 252 at [27]; and Q (CA418/2016) v R [2017] NZCA 185. See also C (CA123/2022) v R and M (CA124/2022) v R [2022] NZCA 566 at [37].
11 D (CA443/2015) v Police, above n 5, at [8]; and as discussed in NL(CA344/2022) v R, above n 10, at [30]–[32].
12 Robertson v Police, above n 5, at [41]–[44].
13 D (CA443/15) v Police, above n 5, at [12]; Lewis v Wilson & Horton Ltd [2000] 2 NZLR 546 at [43]; and Parker v R [2020] NZCA 502, (2020) 29 CRNZ 536 at [8].
Approach on appeal
[28] The Court of Appeal in H (CA361/2021) v R set out the approach on appeal as follows:14
[17] Section 287 of the Act empowers this Court on appeal to confirm, vary or set aside the High Court’s decision or make any other order we consider appropriate. The High Court’s decision at the first step of the two-step approach involves an evaluative conclusion, which is subject to the usual approach by rehearing for a general appeal.15 The decision at the second step is considered to involve the exercise of a discretion where different results may reasonably be reached by different judges.16 It should not be interfered with unless it involves an error of law or principle, fails to take into account a relevant matter, takes into account an irrelevant matter, or is plainly wrong.17
District Court
Discharge without conviction
[29] On the application for a discharge without conviction, the Judge was satisfied “by a wide margin” that the consequences of the conviction would be out of all proportion to the gravity of the offending. He therefore granted M a discharge from conviction.18
[30] In doing so, he assessed the gravity of the offending as “low.”19 He did so taking into account that there was no real risk of confrontation with the victim, M did not know the pet camera was there, the incident was the result of M’s profound distress and it was not sexually motivated. He also took into account that M was of good character, was remorseful, had entered a guilty plea and had sent letters of apology soon after the incident and the offending was a “complete aberration”.20
[31] The Judge considered the consequences of conviction were all related to M’s health. He referred to the psychological and psychiatric evidence before him
14 H (CA361/2021) v R [2021] NZCA 481. The appellant referred to a discussion in a High Court judgment that contended for a different approach at the second step. However, the High Court is bound by the Court of Appeal pursuant to the doctrine of precedent.
15 Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141 at [16].
16 Parker v R, above n 13, at [30].
17 At [30].
18 Name suppression decision, above n 2, at [33].19 At [26].
20 At [17]–[23].
concerning the catastrophic effect the offending, its discovery and consequences had had on his mental health. He referred to the evidence that M had been suicidal on a number of occasions and was assessed as being a risk of suicide. He then said:
[28] There are some protective factors in relation to suicide, including his supportive relationship, other supports, his resources and ability to access treatment and assistance and I accept all of that but in the most recent report from Dr Young, he says … that [M] is likely to be at serious risk of completing suicide for some time.
[29] The suggestion is made … that the best way of predicting future risk is past risk and that when [M] has been in a crisis over the last year or so, that the risk has been managed but I do not accept that analysis.
[30] I rely on Dr Young’s report about how risk can continue over time, how people can conceal how they are feeling and then act on suicidal ideation. I hold a Family Court warrant and I sit regularly in mental health units around this region, and I am entitled to rely on my general knowledge around mental health and the difficulty of accurate risk assessment.
[31] I am satisfied that the risk of self-harm or suicide is a real and appreciable risk and a real and appreciable consequence of conviction and even if that were not the case, I am completely satisfied that there would be a certain negative impact on [M’s] mental health generally as a consequence of conviction.
[32] The Judge was also satisfied on the basis of affidavit evidence that a conviction would prevent M from working in the fields in which he is qualified and suited to work. This would deprive M of the sense of purpose and service that has defined his working life, with flow on effects for his sense of self, self-worth and his mental health.21 The Judge was satisfied that this aberrant behaviour should not define his future.22
Name suppression
[33] The Judge referred to the threshold grounds of extreme hardship or endangering safety.23 He noted the high bar and the presumption in favour of open justice.24 He also considered the views of the victim, whom he said was opposed to
21 At [32].
22 At [33].
23 At [34].
24 At [35].
name suppression based on her perception that there was a risk of the M’s behaviour being repeated.25 The Judge considered the risk of a recurrence to be “negligible”.26
[34] The Judge noted that name suppression was advanced on the basis of employability. He considered that publication would mean that the roles for which he would be suited would not be available to him. The organisations would not want their reputation to be tarnished by association. This raised the risks to M’s mental health that the Judge had discussed in relation to a discharge without conviction. The Judge considered this met the threshold of extreme hardship and it also met the endangering safety threshold.27
[35] On the second stage, the exercise of discretion, the Judge referred to the requirement to balance the principle of open justice with the effects of publication.28 He considered that part of assessing the public right to know about what happens in courts and who is coming before them required an assessment of the public interest in publication. Here he considered that M’s past roles did not create a public interest in knowing about M’s offending when M is not a risk to anyone other than himself. He considered the media interest in the case arose solely because of M’s previous high profile. He agreed that persons of position and privilege should not be better off than persons without privilege but nor should they be “worse off” – the application had to be considered on its merits.29
[36] The Judge concluded that the public right to know in these circumstances did not “tip” the balance in favour of publication when set against the extreme hardship to M and that it would it endanger his safety. He therefore made a final order suppressing M’s name, his occupation and his former occupation.30 He also suppressed publication of any mention of the personal circumstances that had led to his emotional breakdown on the day of the offending.31
25 At [36].
26 At [36].
27 At [37]–[40] and [42].
28 At [43].
29 At [45].
30 At [46].
31 At [48].
Stage one
[37] Stuff submits that the District Court Judge erred in finding that publication of M’s name was likely to result in extreme hardship to him or endanger his safety. Stuff says that the Judge relied on information from Dr Young’s report that was more than one year prior to the sentencing. It also says the Judge focused on narrow aspects of Dr Young’s reports and did not properly assess the mitigation measures available and their history of success. It submits the evidence showed that when M suffered a deterioration in his mental health, he did not take his own life but rather “his support structures held”.
[38] I consider that all of Dr Young’s reports are relevant. They present a consistent picture of a man who has been severely depressed for an extended period, who has had persistent thoughts of suicide and who has taken preliminary steps towards that end, albeit interspersed with better periods. Similarly, M’s psychologist considered him to be a “high” risk of suicide.
[39] I have set out earlier Dr Young’s expert opinion at the time of his most recent report.32 He considered M was likely to be at “serious risk of completing suicided for some time”. The public humiliation that would inevitably follow the loss of name suppression was the “key factor” that could increase or decrease that risk. The risk could be managed, but it would need managing over a sustained period and Dr Young was concerned that M had the “ability and may have the motivation to suicide once his wife and others decrease their vigilance”.33
[40] In other words, although M had excellent family support, was taking medication and was engaging in sessions with a clinical psychologist, he remained a suicide risk. As the District Court Judge considered, with his experience of suicidal risk in the context of his Family Court and mental health unit work, people who have suicidal ideation can conceal how they are feeling and then act on that ideation. The fact that M has not committed suicide over the last year, did not mean that he was a low risk of doing so in the future.
32 At [21] above.
33 At [21] above.
[41] The facts are distinguishable from Santos v R which involved a defendant with long-standing ambivalence to being alive and “some suicidal ideation associated with that”.34 The clinical psychologist who assessed him for a name suppression application regarded him as presenting a “moderate” risk of serious self-harm if name suppression was lifted. While there could be short-term additional risk, the psychologist considered that his overall suicide risk “seem[ed] unlikely to become severe and enduring in response to name suppression being lifted”.35 In addition to his family support, he was on remand in a youth unit with two forensic nurses and a psychologist able to look after him.36 He had been assessed nine times and was presently considered not to be at risk of self-harm or suicide.37
[42] Considered in terms of the points made in D (CA443/2015) v Police set out earlier:
(a)The evidence was that M was experiencing more than the usual despair and anxiety that may attend proceedings – he was deeply depressed with suicidal ideation and Dr Young’s view was that the seriousness and prolonged nature of the symptoms pointed against it being the usual stress response.
(b)He was particularly susceptible to publicity because, as he said, he had “demolished” the reputation he had established in his long career that has been important to him and he had tremendous shame and felt humiliated.
(c)The odd nature of the offending – a person with a long and successful career of unblemished character in his later stage of life unlawfully entering a neighbour’s home (twice in the one evening), knowing her not to be present, for (ostensibly) sexual self-gratification – is such that it is likely to receive excessive media attention and publicity relative to
34 Santos v R, above n 10, at [9].
35 At [12].
36 At [14].
37 At [15].
the low seriousness of that offending as compared with other kinds of sexual offending or other offending generally.
(d)M was receiving help and that help would continue but it was not foolproof and differed from the kind of constant watch and forensic services available in a more controlled environment (such as a youth justice facility).
(e)Dr Young’s diagnosis was uncontradicted, was not premised on the basis that any risk was too much and took into account ways in which the risk could be managed.
(f)M’s depressed mental state had continued over a long period and it was Dr Young’s view that it would continue to do so – this was not a situation where a brief period of suppression would be sufficient.
[43] Stuff also says that the Judge’s conclusion that suppression would facilitate future employment, which in turn would alleviate the risk of serious self-harm, was without evidential foundation. Stuff refers to the evidence given by the defendant and two other witnesses to the effect that, when M applies for work in his profession in the future he will need to disclose the offending, but with name suppression he will be able to do so in a manner that “delicately” manages the offending. Stuff says that this evidence is speculation and assertion. Further, the assertion that future employers would be willing to employ M, with his intended disclosures, runs contrary to the fact that he was dismissed as soon as his employer found out about the allegations.
[44]M submits that the permanent suppression order has changed the circumstances
– it allows some selectivity about who disclosures are made to and offers some security that discussion about the offending will be done in a deliberative and confidential way where the Court’s assessment of the seriousness of the offending can be referred to. In other words, M says that if he is required to make a disclosure, he will have the opportunity to explain and control the narrative.
[45] I agree with Stuff to the extent that I am sceptical that name suppression will allow M to return to many of the kinds of roles he has previously had. If an organisation does not consider it appropriate to employ a person in the role if there is publicity given to this incident, it is difficult to see why it would be appropriate to employ that person in the absence of that publicity. Such an approach lacks transparency. The person either is or is not suitable for the role regardless of publicity around the incident. I also agree that the approach that was made to M – asking him to resign and M’s response to that – shows that M is unlikely to be able to secure many of the roles he was formerly regarded as entirely suitable for.
[46] However, I do not regard this as a reason against a finding that the extreme hardship or endangering safety thresholds are met. Quite the contrary. As M’s self- worth is tied up with his contribution to society through his work, his depression will not be alleviated through regaining all the kinds of roles he has previously had. Rather, being rejected for roles when disclosing this incident seems likely to reinforce his shame and humiliation. That said, there will undoubtedly be some work and community service activities to which his skills will be an asset and which can provide him with the sense of contribution that is important to him and for which this incident is not disqualifying. Name suppression may assist in securing these roles in the sense that M’s mental health will have the opportunity to improve without the humiliation and its debilitating effects that will come from publicity. If he can secure some worthwhile and suitable roles, his mental health may improve.
[47] I therefore conclude that M has met the threshold of publication being likely to endanger his safety, namely endangering his mental health and in turn the risk that he will act upon his thoughts of suicide. It overlaps with and also meets the threshold of extreme hardship.
Stage two
[48] Stuff submits the Judge’s assessment of the second stage of the statutory test was in error because he did not give sufficient weight to open justice. It says it is not a case of which way the balance is tipped, but rather the Court must ask if suppression is “clearly” favoured in the circumstances. Stuff also submits that M’s prior and
prospective roles increase the public interest in openness, and the Judge was plainly wrong in his assessment of the nature and seriousness of the offending and wrong to dismiss the victim’s views.
[49] Stuff is correct that the proper question to ask is whether, from the starting point of open justice, the circumstances “clearly favour” suppression.38 However, I disagree that the Judge failed to approach the assessment in this way. The absence of the words “clearly favour” does not mean that Judge asked himself the wrong test. The Judge was giving an oral decision late in the day after a reasonably lengthy hearing. It is clear that the Judge understood a balancing exercise was required and that he undertook that exercise. It is also clear he understood the importance of open justice. Indeed, he started his analysis by noting that “[t]here is a strong presumption in favour of publication and open justice”.39
[50] There are, however, both general and specific interests in open justice. The Judge was entitled to take into account the specific nature of the public interest in this case in the balancing exercise. As to that, I disagree with Stuff that M’s previous and prospective roles pointed in favour of publication. M no longer has those roles and, as discussed earlier, is most unlikely to regain any similar roles where there would be a public interest in knowing of the incident.
[51] I also disagree with Stuff that the Judge wrongly assessed the seriousness of the offending. It was a serious invasion of the neighbour’s privacy and sense of security in her home and it is unsurprising that the neighbour found it threatening, stressful and serious. Although not intended to have been caught on camera, the fact is that it was. Knowing of the invasion would be one thing, but seeing M behave in that way in her home would be awful. It is also understandable that the neighbour found the lengthy court process stressful, as almost every victim does.
[52] However, on the other side of the coin, this was aberrant behaviour precipitated by an emotional breakdown (for which there was an evidential basis both from M and his wife and from professional witnesses). The Judge was entitled to find that it was
38 See n 13 above.
39 Name suppression decision, above n 2, at [35].
not directed at the neighbour as M knew the house was empty, would have been able to desist in the unlikely event of the neighbour returned unexpectedly, and did not know there was a pet camera in the house. M, who is of mature years, is of good character, has never before offended in this way or at all and the risk of him doing so in the future is assessed as negligible.
[53] The human condition is such that good people make mistakes, even deeply shameful ones that cause harm to others. When they are criminal, but at the low end of seriousness40 and unlikely ever to repeated by a remorseful and humiliated offender, and risks endangering their safety or causing them extreme hardship, publication of the person’s name in the interests of open justice is unnecessarily punitive.
[54] I conclude that the Judge understood the balancing assessment required of him. I agree with his assessment. In the circumstances of this case, the balance clearly favours suppression despite the importance of open justice and taking into account the harm to the neighbour and her views on suppression.
Result
[55] The appeal is dismissed. The suppression orders made in the District Court remain in place.
Mallon J
40 Compare with Parker v R, above n 13, at [46].
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