Taylor v The the Queen
[2022] NZHC 2188
•31 August 2022
SUPPRESSION ORDERS EXIST: SEE [2] IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2022-404-190
[2022] NZHC 2188
BETWEEN JEMMA TAYLOR
Appellant
AND
THE QUEEN
Respondent
Hearing: 22 August 2022 Appearances:
M Dyhrberg QC and J J Jackson for Appellant S Murphy for Respondent
R Reed QC for St Cuthbert’s School
Judgment:
31 August 2022
JUDGMENT OF LANG J
[on appeal against refusal to grant interim name suppression
This judgment was delivered by me on 31 August 2022 at 2. pm.
Registrar/Deputy Registrar Date……………
Solicitors:
Crown Solicitor, Auckland
TAYLOR v R [2022] NZHC 2188 [31 August 2022]
[1] Ms Taylor faces three charges of sexual conduct with a child under the age of 12 years.1 She has denied the charges and elected trial by jury in the District Court.
[2] On 3 June 2022, Judge E M Thomas declined an application by Ms Taylor for an order suppressing her name and identifying particulars until verdict.2 Ms Taylor has a 12 year old son, N. The Judge also declined Ms Taylor’s application for suppression of N’s name and identifying particulars. In addition, the Judge dismissed an application by Ms Taylor for suppression of the name of the school at which she was working when the complainant made her allegations. However, he made an order by consent suppressing from publication the fact that [redacted].3 That order remains in force.
[3]Ms Taylor appeals against all other aspects of the Judge’s decision.
The alleged offending
[4] The charges were laid as a result of offending that allegedly occurred in April 2012. At that time Ms Taylor was in a relationship with the complainant’s father. On 8 April 2012 she was at her former partner’s address, celebrating his birthday. The complainant, then 11 years of age, alleges that Ms Taylor entered her bedroom and indecently assaulted her in different ways on three occasions throughout the evening. However, the complainant did not make her allegations against Ms Taylor until early 2022. Ms Taylor was working at the school as a senior communications manager when that occurred.
[5] The school has entered an appearance on the appeal as an interested party. If Ms Taylor and/or her son are granted suppression, the school nevertheless seeks an order that its name not be suppressed. It wishes to communicate with parents, staff and students to reassure them that the charges are historic and relate to activity that allegedly occurred before the person charged began working at the school. It also wishes to confirm that this person is no longer working at the school.
1 Crimes Act 1961, s 132(3).
2 R v Taylor [2022] NZDC 10337.
3 At [16].
Jurisdiction
[6] Suppression in this context is governed by ss 200 and 202 of the Criminal Procedure Act 2011, which relevantly provide as follows:
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
(b)cast suspicion on another person that may cause undue hardship to that person; or
(c)cause undue hardship to any victim of the offence; or
(d)create a real risk of prejudice to a fair trial; or
(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; or
(g)prejudice the maintenance of the law, including the prevention, investigation, and detection of offences; or
(h)prejudice the security or defence of New Zealand.
…
202 Court may suppress identity of witnesses, victims, and connected persons
(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; or
(b)is a victim of the offence; or
(c)is connected with the proceedings, or is connected with the person who is accused of, or convicted of, or acquitted of the 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 undue hardship to the witness, victim, or connected person; or
(b) create a real risk of prejudice to a fair trial; or
(c) endanger the safety of any person; or
(d) lead to the identification of another person whose name is suppressed by order or by law; or
(e) prejudice the maintenance of the law, including the prevention, investigation, and detection of offences; or
(f) prejudice the security or defence of New Zealand.
(3)Subsection (1) applies whether or not the court has made an order under section 200 suppressing the identity of the defendant.
(4)An order under subsection (1) suppressing the identity of a witness, victim, or connected person may not prevent publication of the name of the defendant (which may be prohibited only by an order made under section 200) or the nature of the charge.
[7] It is now well established that an application for suppression must be determined on a two-stage basis.4 First, the Court must determine whether any of the threshold requirements set out in s 200(2) or 202(2) have been made out. If that is the case, the Court must go on to consider how it should exercise its discretion by balancing the identified threshold interests against the need for transparency in criminal proceedings.5
The application for suppression
[8] Ms Taylor advanced her application for suppression on several bases. First, she sought an order under s 200(2)(a) on the basis that she would suffer extreme hardship if her name was published. She also sought an order under s 200(2)(f) on the basis that publication of her name would lead to the identification of the complainant, whose name is automatically suppressed.
[9] In addition, Ms Taylor sought an order suppressing the name of her 12 year old son under s 202(2)(a) on the basis that he would suffer undue hardship if his name was published. If the application relating to her son succeeded, she sought an order
4 Fagan v Serious Fraud Office [2013] NZCA 367 at [9].
5 R v Liddell [1995] 1 NZLR 538 (CA) at 546.
suppressing her name and identifying particulars from publication under s 200(2)(f) on the basis that publication of her name would likely lead to the identification of her son.
[10] Finally, Ms Taylor sought an order under s 200(2)(f) suppressing the name of the school from publication on the basis that publication of the school’s name would lead to her being identified.
Ms Taylor’s application under s 200(2)(a)
[11] Ms Taylor ceased her role with the school in March 2022. This has placed considerable strain on her because she is now largely reliant on her current partner for financial support. She has commenced a business selling flowers online. However, she has 20 years experience in the communications field and hopes to resume her career in that field in the future. At 37 years of age Ms Taylor has no previous convictions. She is concerned that publication of her name will have serious adverse effects for her online business and will also prevent her from obtaining future roles in the communications field even if she is acquitted.
The application in relation to Ms Taylor’s son
[12] Ms Taylor and her son now live on the North Shore, where her son is attending an intermediate school. His recent move to the area, coupled with significant periods spent at home due to COVID-19 lockdowns, mean he has not yet established a strong network of friends at his new school. He is also facing issues academically. Ms Taylor is concerned that, given the unusual nature of the charges, publication of her name will result in her son being excluded socially. She fears that he will be the subject of ridicule both at his new school and on social media. Ms Dyhrberg points out that word travels very quickly on social media and those who publish information online are not subject to the responsibilities imposed on mainstream media agencies. She submits this will inevitably cause Ms Taylor’s son to suffer both socially and academically.
The Judge’s decision
[13] The Judge concluded Ms Taylor could not satisfy the test of extreme hardship in relation to the potential loss of her career in the communications field for the following reasons:
[10] The second element is that you have left your employment. You are not working presently in your chosen career. In your affirmation in support of your application you state your intention that once all of this is over you would like to resume your career. You argue that if your name was to be published that would affect your ability to resume your career. It would do. There will be some people who will remember and there will be some doors that might be closed. The question is whether that would result in extreme hardship. One of the reasons why it does not is because we are talking about this period between now and trial where you are not at threat of losing your employment because you have left it already. You are not in any danger of not getting employment in your chosen field because you are not intending to do that until all of these proceedings are over. If you were convicted of this offence then obviously that would change everything for you the question of suppression at that point becomes much different. It becomes even harder for you to win. But significantly if you are acquitted at trial then that obviously greatly lessens the risk that you will not be able to resume your career. You will have been exonerated. There will be some who are not interested in that. People can be cruel about that. They read something and they do not want to dig too deeply behind it. But most people do. Most employers recognise that someone has been charged and they have been cleared that there is no room or need to associate them with that offending because it has not been proved. On the grounds relating to your career, that on its own is not enough to establish extreme hardship. There is still hardship there, I recognise that. That even with an acquittal some of this will follow you. But it is not extreme at this point.
[14] The Judge also held that the threat to Ms Taylor’s new online business was not sufficient to amount to extreme hardship.6 He observed that Ms Taylor had not provided evidence that the customer or supplier base of her business was likely to collapse if her name was published. He also noted this was a fledgling business and Ms Taylor had not provided any evidence as to turnover. However, as a relatively new business it was inherently unlikely Ms Taylor stood to lose a significant income stream if her name was published at this point.
[15] The Judge then turned to consider the application for suppression Ms Taylor advanced on behalf of her son. Rather than attempt to paraphrase the Judge’s reasoning I set it out in full:
6 At [11].
[16] You point to perfectly understandable consequences for [N]. He like all kids of his age is starting a new school, trying to get into a new friendship group, all of those things. He is no different from any other kid who is trying to do that. He is at a stage in his life where probably those connections with his peers are as important if not more important than his connections with people at home. If he is not at that stage yet, it will come. But he is also no different from any other 12-year-old whose parent is unfortunate enough to be going through this sort of process. In other words what you all are going through, including [N], is the ordinary and inevitable consequence of having to go through this process. If that is what it is then, courts above mine have said well that does not amount to undue hardship. It may well be hardship but it is not undue hardship. You argue that [N] is in a different category, this is a critical time for him, we have come out of COVID, it is a wildly-active social media environment that he is entering, he is needing to re-establish himself in connections in a face-to-face way that many kids have not been able to do for some time. All of that is true and I sympathise deeply for you and I sympathise deeply for [N]. But those are the same consequences that any child in his situation, with a parent going through this process, has to endure. So no, you have not been able to demonstrate that the hardship that [N] would endure would be undue.
[17] Having said that, I see absolutely no reason for [N]’s name to ever be published. He is not part of these proceedings, he is not a potential witness. I would be very surprised if his name ever hit the media. Those close to you will know obviously that [N] is your son if your name is published. But most people will not necessarily make that connection. Taylor is a common enough surname and he has a variation of that, so I am hopeful that he will not endure much more than he is already enduring.
[18] What that means for today though is that I must refuse your applications for the suppression of your name based on extreme hardship grounds and the suppression of [N]’s name based on undue hardship grounds. That means that there is no need to consider suppression of your name on the grounds that it would identify [N].
Decision
Ms Taylor’s application for suppression of her name and identifying particulars
Extreme hardship
[19] In this context the Court is required to make a comparison between the contended hardship and the consequences normally associated with publication of the defendant’s name. Extreme hardship requires the applicant to demonstrate consequences “well beyond the ordinary associated consequences”.7 An applicant
7 Robertson v Police [2015] NZCA 7 at [48].
who asserts financial or reputational damage will generally be required to establish an appreciable risk of more than loss of livelihood or employment.8
[20] Applying these principles, I do not consider Ms Taylor can establish that she will suffer extreme hardship if her name is published. As the Judge noted, Ms Taylor has now ceased working at the school and has decided not to seek another role in the communications field until the charges have been resolved. At that point she will either have been convicted or acquitted of the charges. If she is convicted, she will have to deal with the likely consequences on her future career in her chosen field. It seems likely that a conviction would prevent her from obtaining any role that involves interaction with young people. However, her proficiency and experience in the communications industry open the possibility of employment in many different areas. It is not immediately apparent why a conviction on the present charges would also prevent her from working in other roles where she would not have contact with young people.
[21] If Ms Taylor is acquitted, her position will obviously be different. She will be able to rely upon the jury’s verdicts as exoneration of guilt on the charges the Crown has brought. As the Judge observed, she may nonetheless encounter some residual prejudice but I consider this is likely to be manageable. The Court is entitled to proceed on the basis that most prospective employers are likely to focus on Ms Taylor’s experience and skill set. They should also be presumed to have the ability to accept a jury’s verdicts at face value. I therefore do not accept Ms Dyhrberg’s submission that Ms Taylor’s career is likely to be completely destroyed even if she is acquitted. It follows that she will not suffer extreme hardship if her name is published.
Identification of the complainant
[22] The complainant’s name and identifying particulars are automatically suppressed by law.9 However, Ms Dyhrberg points out that the media have already reported that a 37 year old woman has been charged with the indecent assault of a young girl under the age of 12 years. She submits it will be virtually impossible for
8 Stephens v R [2021] NZHC 1902 at [26].
9 Criminal Procedure Act 2011, s 203(1).
the media to report on the trial without creating a risk that the complainant is identified. She says this may occur if the date or location of the alleged offending is published, or the fact that the complainant is the daughter of Ms Taylor’s former partner. Ms Dyhrberg submits that publication of such information creates an inevitable risk that some persons in the community will make the connection between Ms Taylor and the complainant. She also points out that it is irrelevant that the identity of the complainant will only be apparent to a narrow class of persons.10
[23] This submission proceeds on the assumption that there will be considerable publicity about the trial in the mainstream news media. However, I consider the prospect of this to be relatively low notwithstanding the slightly unusual nature of the charges. Very few criminal trials are subject to ongoing reporting in the news media, especially in metropolitan centres such as Auckland. It is difficult to see why the present case would attract sustained attention.
[24] Putting this issue to one side, I am not satisfied the evidence to be given at trial will identify the complainant. The physical address where the alleged offending occurred is largely irrelevant to the charges and is unlikely to be disclosed. Likewise, I fail to see how the date upon which the alleged offending occurred is likely to lead to the identification of the complainant given that it was in 2012. The name and identifying particulars of Ms Taylor’s former partner are also likely to be suppressed from publication.
[25] Finally, the courts are now well used to dealing with allegations of sexual offending and the issues they raise regarding the identification of complainants. The news media are also alert to the risk of publishing information that may lead to the identification of a complainant. Furthermore, the Crown can always apply for evidence to be suppressed from publication if it becomes concerned that it may lead to the identification of the complainant.
[26] Other factors that decrease the risk of identification include the fact that Ms Taylor and the complainant are not related and do not share the same surname. Furthermore, Ms Taylor was in a relationship with the complainant’s father for a little
10 H (CA300/2012) v R [2012] NZCA 514.
over 12 months, approximately ten years ago. The complainant’s father also has a different surname to that of the complainant.
[27] I therefore do not consider there is any risk that the complainant will be identified if Ms Taylor’s name is published.
The application for suppression in relation to Ms Taylor’s son
[28] In order to obtain an order for suppression of her son’s name and identifying particulars, Ms Taylor was required to establish an appreciable risk that publication of his name would result in undue hardship for him. In this context “undue hardship” has been interpreted to mean hardship greater than that which would normally follow the publicity of criminal proceedings. However, it is less than extreme hardship.11
[29] As the Judge observed, it is difficult to see why the news media would wish to publish any information about Ms Taylor’s son. He was not present when the alleged offending occurred and is unlikely to be referred to at trial. I therefore see little risk of his name being published.
[30] More importantly, I consider the Judge was correct to determine that Ms Taylor’s son is in exactly the same position as any twelve year old child whose parent has been charged with sexual offending. This may lead to unfortunate consequences of the type Ms Dyhrberg has identified. However, these are the usual consequences and, whilst they are obviously unpleasant for all involved, they cannot be said to be undue.
[31] As Ms Murphy points out for the respondent, there is no evidence to suggest Ms Taylor’s son is particularly vulnerable or that he suffers from any underlying condition or disorder that would exacerbate these negative effects.
[32] Furthermore, I consider Ms Taylor’s son is less likely to be the subject of attention by his peers than may often be the case. First, the alleged offending occurred in a different locality to his school and to where he and Ms Taylor are currently living.
11 Beacon Media Group Ltd v Waititi [2014] NZHC 281 at [21].
Secondly, Ms Taylor’s surname is relatively common. The link to her son is further obscured by the fact that his surname incorporates, on a hyphenated basis, both Ms Taylor’s surname and that of his father. People who see Ms Taylor’s name through publicity relating to the charges will therefore not automatically associate her with N. Thirdly, the charges relate to alleged activity that occurred more than ten years ago. This means they are unlikely to attract considerable media attention despite their slightly unusual nature. Fourthly, Ms Taylor’s son has only recently moved to his current school. He is therefore likely to be less well known at the school than would be the case if he had attended it for a longer period.
[33] Taken altogether, I consider the Judge was correct to find Ms Taylor’s son would not suffer undue hardship in the unlikely event that his name is published.
Result
[34] The appeals against refusal to grant suppression of Ms Taylor’s name from publication is dismissed, as is the appeal against refusal to grant suppression of her son’s name and identifying particulars. It follows that the appeal against the refusal to grant suppression of the school’s name must also be dismissed.
Lang J
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