The Queen v Kealey
[2001] NZCA 173
•31 May 2001
| IN THE COURT OF APPEAL OF NEW ZEALAND | CA 63/01 |
THE QUEEN
V
PETER FAIRNELL KEALEY
| Hearing: | 31 May 2001 (at Christchurch) |
| Coram: | Thomas J McGechan J Hammond J |
| Appearances: | T M Gresson for Solicitor-General K N Hampton QC for Respondent |
| Judgment: | 31 May 2001 |
| JUDGMENT OF THE COURT DELIVERED BY THOMAS J |
The Solicitor-General’s appeal
The respondent, Mr Kealey, was convicted in the Timaru High Court of ten counts of indecent assault and one count of committing an indecent act. An order directing permanent name suppression was imposed in respect of these convictions. The Solicitor-General has applied to this Court for leave to appeal against that order.
The facts
The convictions relate to the respondent’s sexual abuse of his two stepdaughters over a period of more than a decade, from about 1974 through to approximately 1988. The offending against the older child spanned the period 1974 to 1977. The offending against the younger victim began in 1979 and continued until 1988. Some of the charges of indecent assault related to incidents which occurred when the victims were less than 12 years of age. They involved touching the victims’ breasts and genitalia, masturbation and digital penetration. One of the complainants disclosed the offending in 1988 and a family meeting was held. Shortly afterwards, the other complainant also revealed the offending on her. For the next decade the matter remained in abeyance. Ultimately, the victims complained to the Police. Mr Kealey asserted his innocence before a jury, but he was convicted on the counts referred to.
The sentence
In sentencing Mr Kealey, the sentencing Judge noted the difficulty of reconciling the picture portrayed by the references supplied to the Court, and the picture portrayed by the victim impact reports. He also adverted to the support Mr Kealey was receiving from his wife and other family members. He indicated that Mr Kealey vehemently maintained his innocence. The Judge set out a number of factors, however, which made the offending extremely serious: there was a breach of trust; the offending extended over an extremely long period of time; and the offending was, on the evidence, persistent offending. After offending against one victim, there was an even longer period of offending against the other victim. Further, on the evidence of the victims, both were warned not to tell anyone of the incidents which were taking place.
In relation to the order prohibiting publication of Mr Kealey’s name, the Judge noted that, prior to the sentencing hearing, he had indicated it would be necessary to ascertain the views of the complainants in relation to name suppression. Crown Counsel advised the Judge at the sentencing hearing that the complainants did not wish the name suppression to continue. The Judge observed that this information was not contained in the victim impact statements but in a letter to the Crown Solicitor from a Police Officer. The learned Judge then stated that, taking into account all the circumstances, including some of the evidence that was given at the trial as to the factors surrounding the laying of the complaints with the Police, he considered that it was appropriate to continue name suppression in this case.
Submissions
Mr Gresson, who appeared for the Solicitor-General, submitted that the decision to order suppression was not based on correct principles and was clearly wrong. He relied on R v Liddell [1995] 1 NZLR 538, at 547. In view of the importance of the presumption of open justice, the jurisdiction to suppress names of accused persons convicted of serious crime should be exercised with the “utmost caution”. It can only be very rarely that the interests of the offender or his family can justify an order suppressing disclosure of identity.
Mr Gresson submitted that the sentencing Judge’s approach to the communication of the complainant’s wishes to the Court was unduly technical. Section 8(2) of the Victims of Offences Act 1987 requires information about a victim to be conveyed to the Judge by the prosecutor either orally or by means of a written statement. He argued, however, that in terms of reliability there should be no reason for Courts to prefer one method to the other.
Mr Gresson further submitted that, while the victim’s views on name suppression are important, they form only one part of the overall evaluation as to whether the presumption of openness should be displaced in any particular case. Lewis v Wilson & Horton [2000] 3 NZLR 546, at 558, sets out other principles which should usually be taken into account: conviction or acquittal; seriousness of the offending; adverse impact upon prospects for rehabilitation; public interest; and personal circumstances. In relation to this case, Mr Gresson drew attention to the conviction of Mr Kealey for an extremely serious offence; the difficulty of rehabilitation for the victims; the public interest in the identity of the offender; and the lack of any extraordinary personal circumstances. He therefore argued that the factors mitigating against an order suppressing publication of the respondent’s name were overwhelming and that the order should be rescinded.
Mr Hampton, who appeared for Mr Kealey, submitted that in the circumstances of this case, non-publication was appropriate. He argued that the method by which the views of the complainants were placed before the Court was unsatisfactory and he drew attention to factors surrounding the laying of the complaints, asserting that the complainants laid the complaints to excuse the problems and failures in their lives and due to a dislike of their mother. He also stated that there are other members of the family who would be negatively affected if identified with Mr Kealey as a result of lifting the name suppression.
Our decision
We entertain no doubt that the Solicitor-General’s appeal should succeed. The principles in R v Liddell and in Lewis v Wilson and Horton must be adhered to. The presumption of open justice is to prevail in the absence of a compelling reason why the publication of an offender’s name should be prohibited.
We are unable to discern any factor in this case which would justify suppression.
The sentencing Judge acted correctly in requesting information as to the attitude of the complainants prior to sentencing. Obviously, he expected that information to be conveyed in the victim impact statements. In fact, it was provided orally by the Crown prosecutor. But that method of providing information is expressly recognised by s 8(4) of the Victims of Offences Act. Subsections (3) and (4) of s 8 read as follows:
(3) Without limiting subsection (1) or subsection (2) of this section, a sentencing Judge may direct the prosecutor to provide him or her with the information referred to in subsection (1) of this section in relation to any victim.
(4) Any information which the prosecutor is required to provide under subsection (3) of this section shall be provided either by the prosecutor orally or by means of a written statement about the victim. (Emphasis added).
The Crown prosecutor’s advice to the Court was based on a letter from the Officer in Charge. There is no reason to question its reliability. Indeed, having regard to the evidence of the complainants at trial it would be surprising if they did not support publication of Mr Kealey’s name.
If the sentencing Judge was concerned that the information had not been provided to him in the form in which he directed, it would have been preferable for him to adjourn the sentencing until the information had been presented as directed. In circumstances such as the present, the attitude of the complainants should be known to the Court. As counsel submitted, the complainants’ attitude, whether in favour of or against suppression, is not decisive. If they are opposed to suppression, that opposition will be an important consideration in determining that the presumption of open justice should prevail. If they support suppression for reasons relating to their own protection or the protection of their family, that too must weigh with the Court. But, as already mentioned, it may still not suffice to offset the public interest in publication of the offender’s name. The point is that, substantively, it is likely to be highly pertinent for the Court to know the attitude of the complainants and, providing the information is provided in accordance with the statute and there is no reason to doubt its reliability, the form or manner in which it is presented should not pose a difficulty.
Mr Hampton, who appeared for Mr Kealey, sought valiantly to proffer sufficient reasons to justify suppression to the Court. He emphasised that Mr Kealey’s wife and other members of the family could suffer if his identity is known. But it has been consistently held that this reason is generally not sufficient in itself to outweigh the presumption of open justice. That is the case here.
Nor are we able to find anything in the circumstances, elliptically referred to by the sentencing Judge, that are relevant to the question of suppression. A close reading of the transcript leaves no doubt that Mr Kealey was guilty of the offences of which he was convicted. Nothing in the evidence points to any relevant reason to look favourably on his claim to have his name suppressed.
The Solicitor-General’s application for leave to appeal is therefore granted. The appeal is allowed. The order of the Court below prohibiting publication of Mr Kealey’s name is rescinded.
Solicitors
Crown Law Office, Timaru for Solicitor-General
Timpany Walton, Timaru for Respondent
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