Walmsley v The Queen - [2014] NZHC 3204

IN THE HIGH COURT OF NEW ZEALAND TIMARU REGISTRY

CRI-2014-476-000009 [2014] NZHC 3204

BETWEEN
FRANK RUSSELL WALMSLEY

Appellant

AND

THE QUEEN Respondent

Hearing: 12 December 2014 (via AVL at Wellington)

Counsel:

D I Brown for Appellant
A R McRae for Respondent

Judgment:

12 December 2014

JUDGMENT OF COLLINS J

Introduction

[1] I am dismissing Mr Walmsley’s appeal from a decision of Judge Maze in which she refused to grant orders suppressing Mr Walmsley’s name.1

[2] I am confirming Judge Maze’s decision because her Honour applied the correct legal principles, took into account only relevant matters, did not overlook any relevant matters and was plainly correct.2

Background

[3] I shall briefly summarise the police summary of facts. In doing so, I emphasise that Mr Walmsley has pleaded not guilty and elected trial by jury. He is presumed to be innocent. Name suppression decisions do not involve issues of guilt

1 R v Walmsley DC Timaru CRI-2014-076-704, 13 October 2014.
2 May v May (1982) 1 NZFLR 165 (CA) at 170; B (CA860/10) v R [2011] NZCA 331 at [9]; Lawrence v R [2011] NZCA 272 at [11] and Rowley v Commissioner of Inland Revenue [2011] NZCA 160; [2011] NZSC 76 at [5].

or innocence. The police summary of facts is not evidence but constitutes the only information that has been presented to me about Mr Walmsley alleged offending.

[4] Mr Walmsley’s alleged offending occurred in Oamaru. He now lives with his

elderly father in Christchurch. Mrs Walmsley continues to work and live in Oamaru.

[5] Mr Walmsley is 56 years old. He describes himself as a “life coach” and an “emotional freedom techniques” counsellor.3 Mr Walmsley at one time was an approved caregiver for Child, Youth and Family Services (CYFS).

[6] Mr Walmsley is facing 85 charges that allege very serious sexual offending against five complainants.

[7] The charges against Mr Walmsley include a number which allege he raped four girls who were in their early teens. The charges against Mr Walmsley also include charges of performing indecent acts on complainants, one of whom was only
10 years old at the time of the alleged offending.

[8] The police summary of facts alleges Mr Walmsley offended against the complainants when they were in his care or in circumstances where bonds of trust had developed between Mr Walmsley and the complainants.

Basis of application

[9] Mr Walmsley sought name suppression under s 200(2)(a), (b), (d) and (e) of the Criminal Procedure Act 2011 (the Act).

[10] Those provisions enable a Court to prohibit publication of the name, address or occupation of a person charged with an offence, only if the Court is satisfied that
publication would be likely to:

3 According to the police summary of facts “emotional freedom techniques” is a form of counselling that draws on various theories of alternative medicine and thought field theory. Thought field theory involves a practitioner tapping his or her fingers on meridian points of the body to release energy blockages that cause negative…

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.

Continue reading Walmsley v The Queen

Details

AGLC: Walmsley v The Queen [2014] NZHC 3204
Case: [2014] NZHC 3204
Decision Date: 12 December 2014

CaseChat Overview and Summary

Frank Russell Walmsley has appealed against a decision of Judge Maze, who refused to grant orders suppressing his name. The decision was made in the context of Mr Walmsley facing 85 charges of serious sexual offending against five complainants. The appeal was heard by Collins J, who dismissed the appeal and confirmed Judge Maze’s decision.

The legal issues before the court were whether the publication of Mr Walmsley’s name would cause extreme hardship to him or his wife, cast suspicion on Mr Walmsley’s father, prejudice a fair trial, or endanger Mr Walmsley’s safety. The court was also required to consider whether Judge Maze applied the correct legal principles, took into account only relevant matters, did not overlook any relevant matters, and was plainly correct in her decision.

Collins J found that the arguments for name suppression were not persuasive. While Mr Walmsley would likely face some hardship if his name was published, the court found that this did not meet the threshold of extreme hardship. The court also found that the suggestion of undue hardship to Mr Walmsley’s father was overstated, and that the risk of prejudice to a fair trial or endangerment to Mr Walmsley’s safety was not established. Collins J concluded that Judge Maze applied the correct legal principles and was plainly correct in her decision to refuse name suppression.

The final orders of the court were to dismiss Mr Walmsley’s appeal against the decision of Judge Maze declining name suppression.

Orders