REYES v NEW ZEALAND CUSTOMS SERVICE [2019] NZCA 546

REYES v NEW ZEALAND CUSTOMS SERVICE [2019] NZCA 546 [11 November 2019]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA436/2019[2019] NZCA 546BETWEEN EARL STEPHEN VILLAPADO REYESAppellantAND NEW ZEALAND CUSTOMS SERVICERespondentHearing: 26 September 2019Court: Clifford, Ellis and Peters JJCounsel: R D Butler for AppellantB D Tantrum and T H Stuart for RespondentJudgment: 11 November 2019 at 10 amJUDGMENT OF THE COURTA The application for an extension of time is granted.B The application for leave to appeal is granted.C The appeal is dismissed. Name suppression will lapse on 18 November 2019.____________________________________________________________________REASONS OF THE COURT(Given by Clifford J)Introduction[1] This is an application for leave to bring a second appeal against a decision ofthe District Court declining permanent name suppression.[2] The appellant, Mr Reyes, says his second appeal raises a question relating tothe interpretation of s 200 of the Criminal Procedure Act 2011 (the CPA) of publicimportance. That is, when will adverse effects on a parent's health, associated withpublication of their child's name as a convicted sex offender, constitute extremehardship for the parent, allowing for the permanent suppression of their child's name?Background[3] In March this year, Mr Reyes pleaded guilty to a range of indecency andobjectionable publication offences, was convicted and granted bail on compassionategrounds pending his sentencing. At the same time, Mr Reyes applied for permanentsuppression of his name. Under s 200 of the CPA the Court may make such an orderwhere, amongst other things, it is satisfied that publication would be likely to causeextreme hardship to any person connected with the person seeking suppression.That application was based on the same circumstances as those for which he had beengranted bail: that is, his mother was ill and was facing imminent surgery andsubsequent treatment for cancer. In those circumstances publication would adverselyaffect his mother's already bad health, and materially adversely affect her chance ofrecovery.[4] Judge Jelas declined that application, not being satisfied that the threshold of"extreme hardship" found in s 200 was met.1[5] Mr Reyes appealed to the High Court. Whata J was not persuaded that the casehad been made out for permanent name suppression.2 He was, however, prepared togrant interim suppression for three months to assist Mr Reyes' mother recover fromimpending surgery, and subsequent treatment, for cancer. In doing so, Whata Jreserved leave for Mr Reyes to apply for permanent name suppression when thatinterim order expired.3 Mr Reyes did just that.1 New Zealand Customs Service v Reyes [2019] NZDC 6939.2 R v New Zealand Customs Service [2019] NZHC 882 at [12].3 At [15].The challenged decision[6] On 2 August 2019 Palmer J declined that application.4 In doing so the Judgereferred to the decisions of the High Court and this Court in NN v Police andRobertson v Police, which explain that what is required by s 200 is an appreciable orreal risk of a very high level of hardship; that is, severe suffering or privation.5The Judge referred to two decisions where suppression of an offender's name wassought on the basis of the adverse effects publication would have on the health ofa family member. In the first of those, NN v Police, suppression on that basis was notgranted;6 in the second, Q v New Zealand Customs, it was.7 The Judge distinguishedthose two outcomes by reference to the strength of the medical evidence put beforethe Court in Q. There, the wife of an offender convicted of indecency offendingsuffered from a rare heart condition: expert medical evidence established stress couldtrigger episodes of an irregular heart beat which could, in turn, cause her sudden death.By contrast, the evidence in NN was of a more limited nature, relating to acceptedlinks between stress and ill health more generally.[7] Although the Judge had no doubt the publication would be distressing toMr Reyes' mother, he concluded that in the circumstances Mr Reyes put beforethe Court the threshold of publication being likely to cause extreme hardship was notmet.[8] The Judge declined Mr Reyes' application accordingly.Appeal[9] Mr Reyes' application for leave was received in this Court one working dayout of time. The delay being negligible and no prejudice arising, we grantthe necessary extension.4 R v New Zealand Customs Service [2019] NZHC 1878.5 At [8]–[9]; citing NN v Police [2015] NZHC 589; and Robertson v Police [2015] NZCA 7.6 NN v Police, above n 5. The appellant in NN succeeded in obtaining a suppression order on othergrounds.7 Q v New Zealand Customs [2014] NZHC 2398.[10] Section 289(2) of the CPA provides that this Court must not give leave fora second appeal against a decision declining permanent suppression unless it issatisfied that:(a) the appeal involves a matter of general or public importance; or(b) a miscarriage of justice may have occurred, or may occur, unlessthe appeal is heard.[11] In support of Mr Reyes' application to bring this second appeal,8 Ms Butlersubmitted that leave should be granted for two reasons. First, in stating that a "directcausal link to a specifically identified consequence constituting extreme hardship" wasrequired, Palmer J had misstated the requirements of s 200.9 The correct interpretationof that provision was a matter of public importance. Likewise, the Judge had misstatedthe quality of medical evidence that would be required to support a finding of a realand appreciable risk of extreme hardship. That too was a matter of public importance.[12] In opposing leave, Mr Tantrum and Mr Stuart acknowledged in oral argumentthat Palmer J's formulation of a "direct causal link to a specifically identifiedconsequence" may well, given existing authority, be an unnecessary gloss on s 200.Nevertheless there could, in their submission, be no criticism of the Judge's findingthat, as Whata J himself had anticipated, the threshold for making a grant of permanentname suppression was not met.Analysis[13] In reaching his conclusion, Palmer J reasoned:10I have no doubt publication will be distressing to Mr [Reyes'] mother. And Iaccept there is a strong relationship between physical and mental health.But in order to be satisfied the threshold is met I have to be satisfied there is areal and appreciable risk that publication of Mr [Reyes'] name will cause8 The first appeal was from Judge Jelas' decision. Whata J did not decide that appeal finally, butgranted further interim suppression reserving leave for the substantive application, in effectthe appeal, to be brought again. When the substantive question was considered by Palmer J, thatwas in effect the determination of Mr Reyes' first appeal. Hence the appeal against that decisionwas properly characterised as a second appeal.9 R v New Zealand Customs Service, above n 4, at [14].10 At [14] (emphasis added).extreme hardship to his mother, over and above the inevitably stressfulconsequences that would normally be associated with the name of such anoffender being published. That requires a direct causal link to a specificallyidentified consequence constituting extreme hardship and a real andappreciable risk that consequence will occur. The medical evidence nowbefore the Court does not satisfy me there is a real or appreciable risk thatpublication of Mr [Reyes'] name will directly cause his mother extremelysevere suffering or privation over and above the inevitable consequences ofsuch publication.[14] We have italicised the words that would appear to be the element of Palmer J'sformulation that Ms Butler challenged. We are not clear as to the origin of the words"direct/directly", nor indeed what they add to the section. The concept of causation isitself inherently difficult. As regards "specifically identified consequence",Robertson v Police has explained what is required.11 We think the better course is totake the words of the statute, as they have been interpreted to date by this Court,without additional glosses.[15] The requirement of the section is that publication would be likely to "result"in one or more of eight different outcomes. The first and third of those are wherepublication would be likely to cause:12(a) "extreme hardship to the person charged with, or convicted of, oracquitted of the offence, or any person connected with that person"; or(b) "undue hardship to any victim of the offence".[16] We do not think introducing — by necessary implication — a distinctionbetween "direct", qualifying, and "indirect", not qualifying, effects will do anythingbut confuse. The same can be said for the overlay of a qualifying requirement fora "specifically identified consequence". As the courts have said on many occasions,the threshold requirements of the section are demanding.1311 Robertson v Police, above n 5.12 Criminal Procedure Act 2011, s 200(2)(a) and (c).13 Robertson v Police, above n 5, at [48]–[49]; and Bond v R [2015] NZCA 488 at [33].[17] Having said that, we agree with the Crown that the Judge's substantiveconclusion cannot be challenged. We note first, and as Palmer J did, the verycontingent and cautionary basis upon which Whata J granted interim suppression.[18] Ms Butler pointed us to medical reports postdating Whata J's judgment.But they did not take the matter very far. One, from the surgery provider, referred toa post-operative check. It recorded Mr Reyes' mother as having some post-surgicalrequirements, but otherwise as having made an uneventful recovery. The surgical teamwas to review her position when she was ready to start further treatment. A letter fromher GP recorded, understandably, grave concerns that lifting her son's namesuppression would add to the suffering she was already experiencing. The GP opinedthat "[t]he associated stress that possible exposure [would] create [would] adverselyaffect her chances of making a complete recovery". But no further specificity wasprovided.[19] Like all the Judges who have considered the position of Mr Reyes' mother, wehave no doubt publication will cause her and her husband — as it would any parents —distress. We also accept that, based on what we understand to be their religious beliefsand cultural background, Mr Reyes' offending presents special challenges for them.But, as noted, the test under s 200 is a demanding one. It places the emphasis verymuch on the importance of an open justice system and requires a real risk of "extremehardship" to be established before the Court may consider suppression. We do notthink that either Judge Jelas or Palmer J were wrong when they concluded that had notbeen established in these circumstances.Result[20] We grant the application for an extension of time.[21] We accept the question of interpretation raised by Ms Butler was one of publicimportance. We grant leave accordingly.[22] However, we dismiss the appeal for the reasons given. Name suppression willlapse on 18 November 2019.Solicitors:Crown Solicitor, Auckland for Respondent