KEATING v THE NEW ZEALAND POLICE [2018] NZHC 942

KEATING v THE NEW ZEALAND POLICE [2018] NZHC 942 [4 May 2018]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KOTI MATUA O AOTEAROATAMAKI MAKAURAU ROHECRI-2018-404-116[2018] NZHC 942BETWEEN ALFRED KEATINGAppellantAND THE NEW ZEALAND POLICERespondentHearing: 1 May 2018Appearances: G J Newell for the AppellantB D Tantrum and S T Teppett for the RespondentJudgment: 4 May 2018ORAL JUDGMENT OF POWELL JSolicitors:Kevin McDonald & AssociatesCrown Solicitor, AucklandCounsel:G J Newell, Barrister, Auckland[1] The appellant, Alfred Keating, has been charged with attempting tointentionally make an intimate visual recording.1 He has sought name suppressionpending trial on this charge. His application for continued name suppression washowever declined by His Honour Judge KJ Glubb in the District Court at Auckland.2[2] In the hearing in the District Court Mr Keating advanced a number of groundsin support of his application; that it would cause him extreme hardship through makingit difficult to obtain future employment, and would cause extreme hardship to othersincluding his partner, a close family friend, and his son and daughter. He also raisedthe possibility of reputational damage to the New Zealand Defence Force. Each ofthese arguments was rejected by Judge Glubb on the basis it did not meet the highthreshold set out in s 200(2) of the Criminal Procedure Act 2011("CPA").[3] On appeal to this Court the matters at issue have narrowed significantly. Thesole issue identified in the notice of appeal is the effect on Mr Keating's daughter,although his counsel, Mr Newell, did in passing also raise the difficulty of Mr Keatingobtaining future employment, and the possibility of health issues arising if namesuppression was not continued.Background[4] Until early this year Mr Keating held the rank of Commodore in the Royal NewZealand Navy, and as such was one of its most senior officers.[5] In July 2017, he was serving as the Senior New Zealand Defence Attaché inWashington D.C, based at the New Zealand Embassy. At the time Mr Keating heldfull diplomatic status as a New Zealand citizen, and held immunity from prosecutionin the United States.[6] On Thursday 27 July 2017, a visual recording device was located in a unisexbathroom on Level 3 of the New Zealand Embassy. The device was a small covertcamera, set to capture and record movement. It had been purposely mounted inside aheating duct unit in the bathroom, at a height and direction that captured recordings1 Crimes Act 1961, ss 216H and 72. The maximum penalty is 18 months' imprisonment.2 Police v Keating [2018] NZDC 6335.from people who arrived and used the toilet. The facility was generally only availableto those employed at the Embassy, approximately 60 persons at any given time.[7] The device was discovered at about 1.30 pm that day when it fell onto the floorof the bathroom. It was subsequently reported to Embassy staff. New Zealand Policetravelled to Washington to investigate the incident, and the device was returned to andforensically examined back in New Zealand.[8] That analysis revealed someone activating the device at about 9.00 am on 27July 2017. A total of 19 images were then captured of persons using the bathroomover a five hour period. The images were only of persons wearing clothing. A thicklayer of dust on the homemade platform the camera was mounted on indicated thedevice had been in place for many months.[9] A search warrant was executed while Mr Keating was back in New Zealand inNovember 2017. No indecent images were found but the prosecution allegesexamination of Mr Keating's personal computer showed he had installed driversoftware for the camera device on 25 July 2017, as well as other inculpatory evidence.DNA analysis was also undertaken, and it is alleged Mr Keating's matched that foundon the SD card that was in the camera.[10] The current charge was laid in March 2017, and Mr Keating subsequentlyresigned his position.The Case for Mr Keating[11] As noted, the appeal against Judge Glubb's decision is primarily on the basisthe Judge gave insufficient weight to the extreme hardship which would result for MrKeating's daughter if his name is published.[12] Mr Newell submits publication of Mr Keating's name would cause hisdaughter extreme hardship in terms of s 200(2)(a) and also endanger her safety interms of s 200(2)(e). He notes that of 14,000 current New Zealand Defence Forcepersonnel, only four share the surname "Keating". Mr Newell submits she is a veryjunior service member serving with her unit, and is often subject to long periods ofisolation from her family and support networks. He argues because Mr Keatingworked at the Defence Force for 42 years, and his senior role, he is well known in theorganisation and has an in depth understanding of the risk publication will have on hisdaughter, including "possible harassment, victimisation and punitive treatment".Name Suppression - Legal Principles[13] The principles underpinning the grant of name suppression, and the rulescontained in the CPA reflect a careful balance between the primacy of facilitating afree flow of information in the public sphere, and various competing interests. Openjustice lies at the heart of our legal system and is the cornerstone principle. As theCourt of Appeal stated in R v Liddell:3... the starting point must always be the importance in a democracy of freedomof speech, open judicial proceedings, and the right of the media to report thelatter fairly and accurately as 'surrogates' of the public.[14] Section 200(4) provides that when a person who is charged with an offencefirst appears before a court, the court may make an interim name suppression order ifthat person advances an arguable case that one of the grounds in subsection (2)applies. Section 200(5) provides, however, that such an interim order will expire atthe person's next court appearance and may only be renewed if the court is satisfiedthat one of the grounds in s 200(2) applies. Section 200(2) provides:(2) The court may make an order under subsection (1) only if the court issatisfied that publication would be likely to---(a) cause extreme hardship to the person charged with, orconvicted of, or acquitted of the offence, or any personconnected with that person; or(b) cast suspicion on another person that may cause unduehardship 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 issuppressed by order or by law; or3 R v Liddell [1995] 1 NZLR 538 (CA) at 546.(g) prejudice the maintenance of the law, including theprevention, investigation, and detection of offences; or(h) prejudice the security or defence of New Zealand.[15] There is no doubt that extreme hardship for the purposes of s 200(2)(a) is ahigh threshold, given the authorities are clear that "hardship" on its own means "severesuffering or privation".4 As the Court in Robertson v Police went on to state:5The addition of the qualifier 'undue' in s 200(2)(c) indicates that somethingmore than hardship simply is required, while the word 'extreme' in s 200(2)(a)indicates something more again.An assessment of whether the contended hardship is 'extreme' cannot takeplace in a vacuum. It is self-evidently contextual and in our view must entaila relative comparison between the contended hardship and the consequencesnormally associated with a defendant's name being published. It must besomething beyond the ordinary associated consequences.[16] As Williams J found in K v Inland Revenue Department, the case law onextreme hardship demonstrates that "if a consequence is reasonably to be expected,then it is harder to argue extreme hardship since it involves a hardship that affects allor most people in such circumstances".6[17] In relation to s 200(2)(e), there is no restriction on the ways in which the safetyof individuals can be endangered – the question is whether open justice will putindividuals in danger for any reason.7[18] In determining whether a name suppression application should be granted atwo-stage analysis is followed:8(a) The jurisdiction stage: The first stage requires the judge to considerwhether he or she is satisfied that one of the threshold grounds listed ins 200(2) has been established. That is to say, whether publication would4 Robertson v Police, [2015] NZCA 7 at [48].5 At [48]-[49].6 K v Inland Revenue Department [2013] NZHC 2426, (2013) 26 NZTC 21-034 at [25].7 At [51].8 As confirmed in Fagan v Serious Fraud Office [2013] NZCA 367 at [9] and Robertson v Police[2015] NZCA 7 at [40] to [42].be likely to lead to one of the outcomes listed in subs (2). "Likely"requires showing the stated harm or risk is a real and appreciablepossibility, that cannot be dismissed as remote or fanciful.9 "Only if"one of these prerequisites in subs (2) is engaged does the court havejurisdiction to suppress the name of a defendant, and move to thesecond stage of the analysis.(b) The discretion stage: At the second stage the court must weigh thecompeting interests of the applicant and the public, taking into accountsuch matters as whether the applicant has been convicted, theseriousness of the offending, the views of the victim and the publicinterest in knowing the character of the offender.10 The interests ofopen justice fall for consideration at this stage.[19] The two-stage approach to determining name suppression applicationsnecessarily has implications for how appeals from such decisions should beapproached. In this case Judge Glubb concluded that none of the threshold groundshad been met, and only if I conclude His Honour was wrong on that issue is itnecessary to consider that the discretion stage of the analysis. 11Discussion and Analysis[20] In determining whether publication of Mr Keating's name will cause hisdaughter extreme hardship, the only evidence that has been put before the Court is anaffidavit by Mr Keating, which in so far as his daughter is concerned states:The impact of publication on my daughter would also be extreme. [MrKeating's daughter] is currently serving in the NZDF [with her unit] and issubject to long periods of isolation from her family, first-hand information andsupport networks. Given that I am a senior member of the NZDF and well-known within the organisation, [Mr Keating's daughter] will be subjected toextensive questions, judgment and negative comments . [Mr Keating'sdaughter] is a very junior service member and by military law she cannotalways speak out nor act freely. I believe publication has the potential to see9 Beacon Media Group Limited v Waititi [2014] NZHC 281 at [21].10 The Court in Robertson v Police, above n 4, based these factors on Lewis v Wilson & Horton Ltd[2000] 3 NZLR 546 (CA) and s 200(6) of the CPA.11 Beacon Media Group Limited v Waititi, above n 5.[Mr Keating's daughter] being harassed, victimised and possibly a recipientof punitive treatment.Additionally, [Mr Keating's daughter] is already under considerable emotionalstress due to the terminal illness of her aunt whom [Mr Keating's daughter]has lived with since the age of 16 and sees as a mother figure. I am particularlyconcerned that [Mr Keating's daughter] will be unable to deal with the effectsof the allegation made against me due to the current emotional pressure she isunder.[21] In my view Mr Keating's assertions do not come close to meeting the highthreshold for extreme hardship. As Judge Glubb found, questioning of familymembers is an ordinary consequence of someone being charged with a criminaloffence. It is not clear the claimed hardship would be "undue", let alone "extreme",while his comment that publication "has the potential to see [his daughter] beingharassed, victimised and possibly a recipient of punitive treatment" is not onlyspeculative and lacking in detail as to why or how likely such treatment may be, butis clearly self-serving. It is equally apparent that there is absolutely no factualfoundation for any submission on behalf of Mr Keating that his daughter's safety willbe put at risk should his name be published.[22] Mr Keating's stated concerns about his daughter are in fact fundamentallycounterintuitive and not supported by the nature of the New Zealand Defence Force,with its clear chain of command and accountabilities at every level in the structuresestablished by the Defence Act 1990 and Armed Forces Discipline Act 1971. In asituation where Mr Keating's daughter is entirely innocent it is to be expected that hersuperior officers, non-commissioned officers and comrades will support her as theyare required to do, and as the traditions of the relevant service dictate.[23] In addition, the basis for the assertions made as to the effect on Mr Keating'sdaughter, and indeed his stated concern for his daughter were further undermined to asignificant degree when it became apparent at the hearing before me that he had noteven told her about the charge he faced, and the possibility of the publication of hisname.[24] The other issues raised in passing by Mr Newell can be disposed of very briefly.First, there is no evidence before the Court that publication of his name would indeedhave a significant impact on Mr Keating's employment prospects other than a bareassertion by him to that effect. Likewise, there is no medical evidence before the courtof any significant effect on Mr Keating, and indeed Mr Newell confirmed that MrKeating had not seen a doctor regarding any issues arising from the potentialpublication. Clearly neither of these matters can possibly constitute extreme hardshipfor the purposes of s 200(2)(a).[25] I accordingly conclude that Judge Glubb was quite correct in declining tocontinue name suppression, and, in particular, on the matters still in issue in thisappeal. Given the conclusion I have reached it is not necessary to turn to the seconddiscretionary stage of the analysis under s 200(2). Had it been necessary to do so I amsatisfied that the poorly particularised harm claimed by Mr Keating would not havebeen sufficient to displace the presumption of open justice, particularly given thepublic interest in this case where New Zealand's international reputation, thereputation of those at the New Zealand Embassy in Washington DC, and the reputationof the Royal New Zealand Navy and New Zealand Defence Force have been calledinto question.Decision[26] The appeal is dismissed. Publication of Mr Keating's name, occupation andidentifying particulars are accordingly now permitted._______________________________Powell J