X v The King
[2024] NZHC 983
•29 April 2024
NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS OF APPELLANT PROHIBITED BY S 200 OF THE CRIMINAL PROCEDURE ACT 2011. SEE
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2024-404-000044
[2024] NZHC 983
BETWEEN X
Applicant
AND
THE KING
Respondent
Hearing: 21 March 2024
Further memoranda dated 27 and 28 March 2024
Appearances:
D P H Jones KC for Appellant E J Hoskin for Respondent
Judgment:
29 April 2024
REASONS JUDGMENT OF ANDREW J
[Name suppression and take down orders]
This judgment was delivered by Justice Andrew on 29 April 2024 at 4.30 pm
pursuant to r 11.5 of the High Court Rules 2016 Registrar / Deputy Registrar
Date ……………………….
X v R [2024] NZHC 983 [29 April 2024]
[1] On 1 March 2024, I made orders permanently suppressing the appellant’s name. I also made take down orders requiring all articles that had been published, naming him and/or stating his occupation, to be removed.
[2]This judgment contains my reasons for those decisions.
Introduction
[3] Mr X was charged in relation to two separate incidents of committing an indecent act with intent to offend in 2013. The incidents occurred on separate days but involved the same complainant.
[4] Mr X was considered a suspect and his photo was included in the photo board because he had been charged with a similar type of incident that had occurred on 8 June 2013. He received diversion and name suppression for this incident (the diversion incident). The diversion incident was led by the prosecution as propensity evidence at Mr X’s trial.
[5] The sole issue at trial was one of identification. Mr X was found guilty of both charges.
[6] Mr X appealed his convictions unsuccessfully to this Court and was denied leave to appeal to the Court of Appeal. He sought permanent name suppression due to the real and substantial risk publication would make him unemployable. That was declined and publication was eventually allowed in April 2020.
[7] Mr X maintained his innocence and applied to the Criminal Cases Review Commission (CCRC) to review his case. After an extensive investigation, the CCRC recommended his case be referred back to the High Court. The appeal was allowed and the convictions were quashed on the basis that a clear miscarriage of justice had occurred. Acquittals have been entered.1
[8]Mr X now seeks the following orders:
1 X v R [2024] NZHC 467.
(a)Permanent suppression of his name and identifying details;
(b)A take-down order requiring all articles that have been published, naming him and/or stating his occupation, to be removed;
(c)Any electronic reports identifying Mr X to not be linked or connected to any future media coverage or articles.
[9] The Crown accepts that Mr X has met the threshold test of extreme hardship provided for by s 200(2)(a) of the Criminal Procedure Act 2011. It also accepts that it is open to the Court to conclude, as a matter of discretion, that permanent name suppression should be granted.
[10] The Crown further agrees that the take-down orders should be granted in order for the permanent name suppression order to have meaningful effect.
Relevant legal principles
[11]Subsections (1) and (2) of s 200 of the Criminal Procedure Act 2011 read:
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.
…
[12]Section 202 provides:
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.
[13] Section 200 contemplates a two-stage analysis, where the Court must first determine whether any of the threshold grounds listed in s 200(2) have been established.2 If one (or more) of the grounds is made out, the Court must undertake a
2 Robertson v Police [2015] NZCA 7 at [39]–[42].
second, discretionary analysis under s 200(1) to determine whether to grant name suppression.
Analysis and decision
Issue (a) – Name suppression
[14] Mr X contends that he has already suffered extreme hardship since publication of his name and profession in 2020. He says the media coverage was pejorative and oppressive. His affidavit details examples of the media coverage of his case.
[15] It is clear from Mr X’s affidavit that the impact of the wrongful convictions and publication have had a profound effect on his life and career. Essentially, Mr X has lost:
(a)His career as a professional in his field;
(b)A decade of career development;
(c)Multiple job opportunities in his professional field;
(d)The ability to support his growing family in his chosen field and qualified profession;
(e)His reputation and good standing in his professional field; and
(f)His life savings.
[16] I find that the threshold of extreme hardship has been made out. Extreme hardship in the form of the cumulative impact upon Mr X’s career and job opportunities, his reputation, his health, and his family, is likely to be suffered by him consequent upon publication of his name in connection with these proceedings and despite his ultimate acquittal.
[17] I also agree with the submission of Mr Jones KC that further publication in connection to the wrongful convictions, and as a result the diversion incident, in any
context will perpetrate the extreme hardship already suffered. In the normal course, the diversion incident would never have been the subject of publication. However, it would no doubt be a focus given the two convictions have been quashed. The perception Mr X had “got off” the charges because of a technical issue would be a very real possibility. That would perpetuate the prejudice and hardship he has already endured.
[18] In respect of the second stage of the application, namely my discretionary assessment, I conclude that in this case the principle of open justice should yield to the need to protect Mr X’s private interests. The following factors support this finding:
(a)Mr X’s convictions have been quashed with no order for retrial sought or made. Mr X is accordingly innocent in law;3
(b)Mr X has suffered significant and enduring hardship for years as a result of a flawed trial process;
(c)His successful appeal has coincided with a time when he has new career opportunities available to him;
(d)There is likely to be considerable public interest in this matter because of the agreed miscarriage, the fact that it is the second CCRC matter to reach determination and subsequent investigations and reviews which are intimated or underway, and are themselves likely to generate additional publicity;
(e)There may be a legitimate public interest in this matter. However, it will primarily be focused upon the fact of the miscarriage of justice and its ultimate resolution (and any subsequent fall-out). Public discourse is unlikely to be impeded in any material way by suppression of Mr X’s name and identifying details;
3 W v R [2019] NZCA 192; a relevant factor both when the Court is considering whether extreme hardship is made out, and in the exercise of the judicial discretion. See also M(CA762/2012) v R [2013] NZCA 113 for added significance when acquittal follows a decision by the Crown not to proceed with the charges. (Here it is significant that the Crown accepted justice had miscarried and that no retrial should be ordered).
(f)Mr X’s successful appeal is a significant step in righting the miscarriage of justice which befell him. It would be contrary to the interests of justice for his successful appeal to act to his personal detriment.
Issue (b) – Take down orders
[19] Mr X contends: Media reports currently exist which identify and paint him as a sexual predator. In truth, he should never have been charged, let alone convicted. In either of these situations, the diversion incident should never have been published. Take-down orders are sought to put Mr X back into the position most closely aligned to where it should have been. Permanent suppression going forward will protect him to a point. However, the continued existence of media reports identifying him will undermine the order and in fact contradict it.
[20] The Crown accepts that if the threshold for permanent name suppression is met and the discretion exercised in Mr X’s favour, then the take-down orders should also be granted in order for the permanent name suppression order to have meaningful effect.
[21] I agree. Here the facts are sufficiently unusual (a professional, charged with this particular offending) that if the facts relevant to the present appeal decision are published, it is highly likely that the information will be sufficient to link this case of miscarriage to the online reports in 2020 about Mr X’s conviction. That link can readily be made regardless of whether his name is suppressed. The only way to avoid that public link, and thereby give proper effect to any permanent name suppression order, is for the existing articles to be removed from access by the general public.
Result
[22]I make the following orders and directions:
(a)Permanent suppression of Mr X’s name and identifying details;
(b)A take down order so that all articles that have been published naming him and/or stating his occupation be removed from the internet, including the URL references set out by counsel;
(c)Any previous electronic reports identifying Mr X are not to be linked or connected to any future media coverage or articles; and
(d)Leave is granted to the parties and also to NZME and Stuff to be heard on notice in respect of any revoking or amendment to these orders.
[23] Mr Jones KC has filed a memorandum dated 28 March 2024 to which is a redacted marked-up version of the affidavit of the appellant. The redacted document is for the purposes of disclosure to any media to protect the appellant’s family, their present whereabouts, and details about his current employment.
[24] I make an order pursuant to r 5 of the Senior Courts (Access to Court Documents) Rules 2017 that the judgment, orders, documents, and the file in these proceedings may not be accessed without the permission of a Judge of this Court. The redacted version of the documents provided by counsel for the appellant will guide the Court in the exercise of any discretion to grant access in accordance with the rules.
Andrew J