WEDGEWOOD v R [2022] NZCA 42

WEDGEWOOD v R [2022] NZCA 42 [9 March 2022]NOTE: PUBLICATION OF NAMES, ADDRESSES, OCCUPATIONS ORIDENTIFYING PARTICULARS OF COMPLAINANTS PROHIBITED BYSS 203 AND 204 OF THE CRIMINAL PROCEDURE ACT 2011.IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA163/2020[2022] NZCA 42BETWEEN ASTON-EDWARD WILLIAM ERNESTWEDGEWOODAppellantAND THE QUEENRespondentHearing: 9 November 2021Court: Brown, Mallon and Moore JJCounsel: Appellant in PersonJ E Mildenhall for RespondentA M Toohey as Counsel to AssistJudgment: 9 March 2022 at 10.30 amJUDGMENT OF THE COURTThe appeal is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Moore J)Introduction[1] Following a jury trial in November 2016, Mr Wedgewood was convicted oncharges of meeting a young person after grooming,1 supplying cannabis,2 and doingan indecent act on a male aged between 12 and 16 years.3[2] Following his sentencing, Mr Wedgewood appealed his conviction to thisCourt. While the appeal was pending, he applied to the District Court for permanentname suppression orders.[3] The District Court, while questioning its jurisdiction to hear the application,declined name suppression on 16 August 2019.4 Mr Wedgewood then appealed to theHigh Court. That appeal was dismissed on 5 March 2020.5 He now appeals to thisCourt.[4] Two primary questions arise:(a) whether this is a first or second appeal; and(b) whether final name suppression orders should be made.Facts[5] The convictions arose from events in May and June 2015. Mr Wedgewoodapproached the 13 and 14-year-old complainant boys at a Christchurch shopping mallwhere young people were known to congregate. He befriended them and providedthem with food, clothes, free accommodation and, ultimately, cannabis. He indecentlyassaulted one of the boys while he was sleeping at Mr Wedgewood's home.1 Crimes Act 1961, s 131B(1)(a)(i) and (b). Maximum penalty seven years' imprisonment.2 Misuse of Drugs Act 1975, ss 6(1)(d) and (2)(c). Maximum penalty eight years' imprisonment.3 Crimes Act 1961, s 134(3). Maximum penalty seven years' imprisonment.4 Wedgewood v R [2019] NZDC 16023 [District Court Decision].5 Wedgewood v R [2020] NZHC 406 [High Court Decision].Procedural history[6] When the two lower Courts determined Mr Wedgewood's name suppression,he had been convicted of the sexual charges and was facing forgery charges arisingout of an allegation he provided forged documents to the Court as part of thesentencing process. On these latter charges he was granted interim name suppressionto protect his fair trial rights.6[7] On 26 April 2017, Mr Wedgewood was sentenced to two years' imprisonmenton the sexual offending charges. He appealed his convictions to this Court. Theforgery charges were later withdrawn by the Crown.[8] While this Court was seized of Mr Wedgewood's conviction appeal but beforethe appeal was heard and determined,7 the District Court dismissed Mr Wedgewood'sapplication for final name suppression in respect of both the sexual and (nowwithdrawn) forgery offending.8[9] On 20 August 2019, this Court dismissed Mr Wedgewood's conviction appeal.9He has sought leave to appeal that decision to the Supreme Court.Jurisdiction[10] As noted, at the time the District Court heard the application for namesuppression, Mr Wedgewood's conviction appeal had been filed and was pendinghearing in this Court. As such, the District Court questioned whether it had jurisdictionto consider the name suppression application. Nonetheless, the Court heard anddismissed the application. Mr Wedgewood then appealed to the High Court.[11] The issue of jurisdiction was considered by Churchman J, who left the questionopen. He considered it did not require determination because, irrespective of whetherthe matter proceeded as an appeal or as a de novo application, it failed on the merits.6 Pursuant to the Criminal Procedure Act 2011, s 200(2)(d).7 W v R [2019] NZCA 367 [Court of Appeal Decision].8 District Court Decision, above n 4, at [30].9 Court of Appeal Decision, above n 7, at [30].[12] If this Court is satisfied the District Court had jurisdiction, the present appealwould be a second appeal and would thus require leave pursuant to s 289(2) of theCriminal Procedure Act 2011(the CPA). In that event, leave may not be granted unlessthe Court is satisfied that the appeal involves a matter of general or public importance,or that a miscarriage of justice may occur if leave is not granted.[13] It is "generally true" that once a Judge has delivered their decision and reasons,they are functus officio and their authority in relation to the matter is exhausted.10 ThisCourt has found that "when a judgment is the subject of an appeal the trial courtbecomes functus officio".11[14] That is the case here. The District Court became functus officio whenMr Wedgewood appealed his convictions to this Court. Finding the District Court tobe functus officio necessarily means its decision is a nullity. However, the SupremeCourt has affirmed this Court's decision in Siemer v Solicitor-General that the CPAdoes not "interfere with the High Court's inherent power to make suppressionorders".12 That jurisdiction stands apart. When Churchman J dismissed the namesuppression appeal, he expressly considered the possibility that the District Court wasfunctus officio. He correctly recognised that if the District Court's decision was anullity, the hearing of the appeal before the High Court was nevertheless not a nullitybecause the jurisdiction to determine name suppression is drawn from that Court'sinherent powers. As such, the High Court's decision is at first instance.[15] The High Court arrived at its decision by applying the same well-settledtwo-stage test that a first instance Court would employ.[16] It thus follows that the present appeal is a first appeal from the High Court.13Leave under s 289(2) of the CPA is not required. The appeal is to be determined ongeneral appeal principles. This Court must undertake its own assessment of whetherany of the statutory thresholds are made out.1410 Robin v R [2013] NZCA 330 at [76].11 West v West [2019] NZCA 225, [2019] NZAR 897 at [13].12 Siemer v Solicitor-General [2012] NZCA 188, [2012] 3 NZLR 43 at [91], affirmed in Siemer vSolicitor-General [2013] NZSC 68, [2013] 3 NZLR 441 at [113].13 Criminal Procedure Act 2011, ss 283 and 284(c).14 Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141 at [16].Legal principles — name suppression[17] In the context of name suppression, the starting point is the principle of openjustice. There exists a presumption in favour of publication.15[18] To succeed, the applicant must satisfy a two-stage test. The first step, referredto as the threshold, requires a factual assessment of the applicable grounds set outunder s 200(2) of the CPA and whether one or more of them is met. If the threshold ismet, the Court embarks on the second (or discretionary) step, which is determiningwhether name suppression should be granted. Since this step involves the exercise ofa discretion, the Court on appeal will not disturb the lower Court's decision unless itis satisfied that the Judge acted on a wrong principle, failed to take into account somerelevant matter or took account of some irrelevant matter, or was plainly wrong.16High Court decision[19] Having considered the question of jurisdiction, Churchman J summarised theposition succinctly:17 An analysis of the two-step test indicates that the appellant fails on the firststep. The appellant's contention that publication of his name would be likelyto cause extreme hardship is not satisfied here.[34] The main evidence put forward by the appellant in favour of the"extreme hardship" argument are two s 38 reports and a letter fromDr Newburn. None of these provide sufficient evidence to indicate thelikelihood of extreme hardship if publication occurs. The s 38 reportsprovided no recommendations (on the basis that the appellant appeared to bedenying his offending) and while discussing the appellant's difficulties withhis historic head injury, did not suggest that the appellant would be particularlypre-disposed or more likely to suffer hardship than the ordinary offender.[35] Furthermore, although assessment of the second step is not necessarygiven that the appellant has failed on the first, it is likely that the public interestin publication would outweigh the appellant's interest here, given the natureand type of offending.15 R v Liddell [1995] 1 NZLR 538 (CA) at 546.16 May v May (1982) 1 NZFLR 165 (CA) at 170; B v R [2011] NZCA 331 at [9]; and Lawrence v R[2011] NZCA 272 at [11].17 High Court Decision, above n 5, at [33]–[35].Appeal grounds[20] Mr Wedgewood's notice of appeal is detailed. He raises numerous grounds.His primary focus is a complaint that the High Court failed to appoint a guardianad litem to assist him in presenting his argument to that Court.[21] Ms Toohey, appointed as counsel to assist, helpfully reduced the points to whatshe described as the main tenable grounds of appeal which Mr Wedgewood wished toemphasise. There are four:(a) that due to a severe health condition and being a suicide risk,Mr Wedgewood is more likely to suffer extreme hardship (s 200(2)(a));(b) that publication may endanger Mr Wedgewood's safety, including byinducing assaults by others (s 200(2)(e));(c) that Mr Wedgewood has an outstanding conviction appeal before theSupreme Court in relation to the trial charges, and that suppressionshould continue to protect his fair trial rights (s 200(2)(d)); and(d) that due to Mr Wedgewood's incapacity, the High Court should haveappointed a guardian ad litem.[22] We agree with Ms Toohey's analysis of the relevant points and now turn toconsider each.Threshold groundsExtreme hardship — s 200(2)(a) CPA[23] Ms Toohey advised that Mr Wedgewood wished to emphasise that due to asevere health condition and suicide risk he is more likely to suffer extreme hardshipthan someone else. The background to Mr Wedgewood's health and related issues iswell documented.[24] In 1997, Mr Wedgewood was the victim of an assault which caused him asignificant head injury. As a consequence, he continues to experience a range ofsymptoms which include fatigue, reduced attention span, impaired attention andfrustration. He is said to reach "cognitive overload much more readily", a state whichmanifests itself in a variety of ways including anxiety, agitation, misery and anger.Additionally, he has impaired impulse control, becoming short-tempered andresponding aggressively. Other symptoms include aversions to sound and light as wellas issues relating to thermoregulation. In respect of the last of these, to maintainmental and physical stability Mr Wedgewood requires the ambient temperature to sitwithin the range of 16 and 21 degrees Celsius, and ideally in the middle of that range.[25] However, of Mr Wedgewood's various challenges, the one which he and othershave emphasised is his difficulty in interpreting and reading the social cues of othershe interacts with. This is discussed more fully below.[26] The evidence of Mr Wedgewood's condition is found in a number ofdocuments which are before the Court. These include:(a) Two s 38 reports prepared under the Criminal Procedure (MentallyImpaired Persons) Act 2003 (CPMIP Act). These were ordered for thepurpose of determining whether Mr Wedgewood was fit to stand trialon the forgery charges. The first, dated 20 June 2018 was prepared byMs Stephanie Snelson, clinical psychologist. The second, dated 21February 2019 was prepared by Dr Gil Newburn, neuropsychiatrist.(b) A letter from Dr Newburn, dated 14 August 2019, prepared forMr Wedgewood's name suppression application.(c) Two affidavits by Mr Wedgewood dated 17 December 2020 and 14October 2021 in which he deposes as to how his mental healthpresentation is affecting him while in prison, and the threats hepresently faces and would face in the event his name was published.(d) Handwritten submissions by Mr Wedgewood dated 10 October 2021.[27] Ms Toohey submits that, arguably, the test for extreme hardship was met onDr Newburn's unchallenged opinion. She says that the factors identified byDr Newburn were not specifically taken into account by the lower Court and this issueshould be considered afresh by this Court. She also submits that in assessing thequestion of extreme hardship the Court may find the fresh evidence ofMr Wedgewood's 14 October 2021 affidavit useful. It contains his account of hissuicidal ideations and his assertion that he has attempted suicide.[28] In our view, while the two s 38 reports are useful, they need to be assessed inthe context in which they were authored. Both, necessarily, addressedMr Wedgewood's fitness to stand trial. They were not commissioned to assist theCourt on the question of name suppression. In particular, the issue of extreme hardshipfor the purposes of s 200(2)(a) of the CPA was not considered. The reports are,however, instructive because each provides independent and mutual support on thequestion of Mr Wedgewood's mental health presentation. On the basis of this material,there is little room for doubt that as a direct result of his 1997 head injury,Mr Wedgewood suffers from interpersonal difficulties and social deficits which haveled him to misunderstand others' social cues. Dr Newburn, in his report of 21 February2019, described Mr Wedgewood as frequently not getting the point of what was goingon or understanding situations where he might be at risk. As a consequence, he hasbeen the victim of a number of assaults while in prison. Dr Newburn also referred toa consistent pattern demonstrated by Mr Wedgewood of believing others werepersecuting him in some way, this being a reflection of his lack of awareness of whatwas occurring in the social environment. While both experts appeared to agree thatMr Wedgewood's cognitive function was unimpaired and that he was intelligent andarticulate, his impairment is such that he is not able to use that intelligenceappropriately.[29] What also emerged, particularly from Dr Snelson's report, is thatMr Wedgewood is manipulative. She described it in this way:Reports consistently describe Mr Wedgewood as presenting in an entitled,demanding and at times verbally aggressive manner. Appointments and phonecalls have been ended [due] to his aggressive responses when he does not likethe outcome, and also due to his litigious nature, and the numerous complaintsand allegations he has laid against staff members. This presentation has beenrecorded as being narcissistic type personality dysfunction, with the provisionthat services were unable to ascertain whether this was secondary to his headinjury.[30] Mr Wedgewood's primary claim, as emerges from his affidavits and extensivewritten submissions, is that by virtue of his mental health presentation, he is morevulnerable in prison to "constant prolonged social violence stressors including nonstop(day and night) yelled threats". He claims that as a result of various internetpublications, not only has his safety been compromised but his mental condition hasdeteriorated. He says he cannot sustain any further stressors and consequential furtherbrain damage. He links at least some of the assaults to retribution caused by socialmedia publications. In his affidavit of 17 December 2020, he refers to a Google searchwhich produces two articles when his name was searched. These have since beenremoved. In his second affidavit of 14 October 2021, for which he seeks leave to fileout of time, he refers to comments on the Christchurch Press's Facebook post of16 April 2021 which describe him as a "fiddler", a child sex offender and suggest thathe should be run over.[31] Additionally, Mr Wedgewood submitted that he has suicidal ideations and hasattempted suicide, most recently on 24 October 2019 after the District Court refusedhim permanent name suppression. He says he has a Police report which covers this.18[32] On this topic, Dr Snelson referred to Mr Wedgewood having a history ofsuicidal ideation without known attempts. Dr Newburn, in his letter of 14 August2019, observed that should Mr Wedgewood's name be published it would add furthersignificant stressors which will have two consequences for him. Firstly, there will beongoing and increasing brain dysfunction which will further interfere with his capacityto recognise the relevant stimuli and respond appropriately. Secondly, it will reducehis capacity to respond to any therapeutic interventions. If he is less able to recognisethe significance of cues then, in Dr Newburn's opinion, he is less likely to make linksbetween his environment and what he is taught. It will also increase the chances thathe will respond inappropriately, particularly placing himself at risk, but also possiblyposing a risk to others.18 At the hearing, when asked whether she had seen such a report, Ms Toohey indicated that she hadnot.[33] In his affidavit of 17 December 2020, Mr Wedgewood states that he thinksabout suicide a lot and that he believes that publication of his name, in associationwith the charges, will place him at an increased risk of suicide, particularly in light ofthe unfair reporting in the media which targets him.[34] The application of the extreme hardship test in s 200(2)(a) of the CPA createsa very high threshold. The term calls for a very high level of hardship. As this Courtobserved in Robertson v Police, the addition of the qualifier "undue" in s 200(2)(c)indicates that something more than severe suffering or privation is required, while theword "extreme" in s 200(2)(a) connotes something more again.19 This Court alsoobserved:[49] An assessment of whether the contended hardship is "extreme" cannottake place in a vacuum. It is self-evidently contextual and in our view mustentail a relative comparison between the contended hardship and theconsequences normally associated with the defendant's name being published.It must be something beyond the ordinary associated consequences.(footnote omitted)[35] Ms Toohey submitted that since the Court delivered its decision inX (CA226/2020) v R,20 which was decided after Churchman J's decision, there can beno reasonable expectation that reporting on social media will be fair or accurate. Thisconsideration was particularly important in X v R, where the defendant was young andespecially vulnerable to trolling and internet vigilantism on social media platforms.21The Court found in that case that public shaming of the nature expressed by socialmedia commentators could not be said to be an ordinary consequence of publication.22After considering this and several other factors, suppression was granted on extremehardship grounds. Ms Toohey submitted the present position is analogous becausewhile Mr Wedgewood is not young, he is especially vulnerable due to his healthcondition.19 Robertson v Police [2015] NZCA 7 at [48].20 X (CA226/2020) v R [2020] NZCA 387.21 At [49].22 At [58].[36] We do not consider that the extreme hardship threshold is met in this case forthe reasons which follow.[37] First, neither of the s 38 reports nor Dr Newburn's letter establish extremehardship. While we acknowledge that Churchman J did not specifically refer to thetwo reasons supporting name suppression set out by Dr Newburn in his letter, he didexpressly consider the entirety of the evidence contained in both reports. It isimportant that in considering whether the threshold test has been met, the Courtundertakes an evaluative exercise of all of the material before it. In the present case,this includes not only the expert reports but also the evidence and other material filedby Mr Wedgewood. While, of course, the Court is assisted by the expertise ofDr Snelson and Dr Newburn, there are other considerations which may operate tomitigate the identified risks which the experts have not addressed and which arediscussed below.[38] Secondly, this is a very different case from that which confronted the Court inX (CA226/2020) v R. In that case, the extent of media coverage, both mainstream andsocial, was very extensive indeed. The case's political background meant it attractedwidespread national and international media attention. Much of what was reportedwas inaccurate and unfair. X, being the only person in New Zealand with his name,would undoubtedly be directly and personally targeted by social media commentators,leading to trolling and internet vigilantism.[39] The present case is entirely different. Mr Wedgewood's circumstances are notnotorious in the sense that his convictions have achieved any local or nationalnewsworthy prominence, whether mainstream or social. His name is neither uniquenor particularly unusual. It is also difficult to accept that there is an identifiablecausative link between the publication of Mr Wedgewood's name and convictions andassaults on Mr Wedgewood. In the prison environment where inmates necessarilyknow the nature of other inmates' convictions, there will always be some risk ofretribution or increased vulnerability, particularly where the offending is paedophilicin nature (as is the case here). That risk arises from the nature of the offending andconvictions rather than the fact of publication.[40] Thirdly, given various comments and observations in the reports, it is apparentMr Wedgewood can at times be manipulative and self-entitled. He has awell-documented tendency to exaggerate when he believes that may assist him.Limited weight must therefore be placed on aspects of his claims which seem to us, incertain material respects, to be far-fetched.[41] Fourthly, the Courts will always take seriously evidence of suicidal ideationand claims of attempted suicide. An assessment of the actual risk is notoriouslydifficult to make. Although Mr Wedgewood has advised that he has attempted toobtain a further report from Dr Newburn to specifically address the suicide risk heposes, the Court is only able to assess the relevant risk on the information presentlybefore it. There needs to be a causative connection between publication and anelevation in the relevant risk. The relevant information is all but entirely self-reported.In his affidavit of 17 December 2020, Mr Wedgewood said that he "believed" thatpublication of his name and association with the charges would place him at anincreased risk of suicide. He also refers to an attempted suicide on 24 October 2019for which he claims he had a Police report. No such report has been produced andMs Toohey told us she had not seen it. Significantly, the highest estimation of the riskof self-harm is found in Dr Snelson's report where she said that Mr Wedgewood hada history of suicidal ideation without known attempts. Thus, even if we were to acceptMr Wedgewood has suicidal thoughts and may have attempted suicide, the linkbetween that and the future risk of suicide is a good deal more tenuous.[42] Finally, the Courts are entitled to have some confidence in the ability of theprison authorities to identify, monitor and manage the risk of self-harm in theirinstitutions.23[43] For these reasons, we are not satisfied that the high threshold of extremehardship is made out.23 O'Reilly v R [2019] NZCA 254 at [4]; and MS (CA405/2016) v R [2016] NZCA 544 at [11].Endangering the safety of any person — s 200(2)(e) CPA[44] Mr Wedgewood claims that the media coverage linked to his name has led tohim being assaulted and if name suppression is lifted that risk will be elevated.Ms Toohey described it as the risk of vigilantism.[45] To a considerable extent, the evidence supporting this aspect of the appeal hasbeen discussed. We are not satisfied that there is a sufficient link between the fact ofpublication and any subsequent assault. Mr Wedgewood's affidavits are devoid of thenecessary detail on this question. For example, there is no evidence as to whoassaulted him, when and in what circumstances, what was said at the time, whetherany reason was given for the assault, whether any reference was made to anythingpublished, whether the assault was reported and, if so, what measures were put in placeto mitigate future risk. Without information of that sort it is difficult to make aproperly informed judgement on the question of risk arising from publication.[46] To some extent that observation is borne out by Mr Wedgewood's ownevidence where the highest he places the link between the assaults and publication isthat he believes there is a connection. We think it far more likely that the assaults onMr Wedgewood were a most unfortunate consequence of his inability to read riskysituations in the highly charged and volatile prison environment.[47] In our view, the evidence falls well short of satisfying the statutory test.Fair trial rights — s 200(2)(d) CPA[48] Mr Wedgewood's final statutory ground is that publication will create a realrisk of prejudicing his right to a fair trial on the sexual charges in the event the appealis allowed. This issue was not considered by the lower Court.[49] We agree with Ms Mildenhall, for the Crown, that there is very little prospectof Mr Wedgewood succeeding on his application to the Supreme Court for leave for asecond conviction appeal and, even less, that any such appeal would succeed.[50] It is also notable that Mr Wedgewood did not initially have name suppressionon these charges. He was granted interim name suppression solely to protect his fairtrial rights on the forgery charges which have since been withdrawn.[51] In any event, on the basis of the evidence presently before us and the limitednature of publication to date, we do not regard the risk of prejudicingMr Wedgewood's fair trial rights on those charges to be real or appreciable.Discretion[52] None of the statutory grounds relied on by Mr Wedgewood are made out. Buteven if they were, there are strong public policy considerations which, in our view,would operate in favour of publication.[53] The observations of Judge Neave in the District Court on this point are apt anddeserve repetition:24[20] Given the convictions, I would have thought his is exactly the kind ofcase where there ought to be publicity so that those who are dealing with himknow exactly who they are dealing with. There is no evidence of any activitieswhich he is currently carrying out which will be adversely affected bypublication. There is no evidence of anybody with whom he might be dealingto show that his reputation is such that it would be irrevocably damaged bypublication. The general rule is that publicity will follow a conviction.Litigation guardian[54] Mr Wedgewood's final ground of appeal is that a litigation guardian was notappointed to assist him in the High Court. He claims that this was a breach of the HighCourt Rules 2016 and was wholly unjust because he is incapable of conducting hisown affairs. This ground can be dealt with in short order.[55] Both Ms Toohey and Ms Mildenhall agree that the High Court had nojurisdiction to appoint a litigation guardian. That is because these are criminalproceedings. The High Court Rules allow for guardian ad litem to be appointed incivil litigation in certain circumstances.2524 District Court Decision, above n 4.25 High Court Rules 2016, rr 4.29, 4.30, 4.35.[56] Where there may be concerns that a defendant is unable, by reason of mentalincapacity, to properly participate in the criminal process, the CPMIP Act provides foran evaluative process. The provisions in the Act were engaged and utilised in thiscase. The two reports reveal that Mr Wedgewood does not suffer from cognitivedeficits. Indeed, as noted, it is apparent that he is both intelligent and articulate. Thehandwritten material which he presented to the Court and his oral submissions to usare consistent with those assessments.[57] We also note Ms Toohey was appointed to assist the Court and in doing so shespent some time with Mr Wedgewood preparing for this hearing. We are satisfied thatshe advanced all the arguable points which were available to Mr Wedgewood on hisappeal and competently presented these in a full and comprehensive fashion.Result[58] The appeal is dismissed.Solicitors:Crown Law Office, Wellington for Respondent