F v NEW ZEALAND POLICE [2023] NZHC 3622

F v NEW ZEALAND POLICE [2023] NZHC 3622 [12 December 2023]ORDER PROHIBITING PUBLICATION OF NAME, ADDRESS,OCCUPATION OR IDENTIFYING PARTICULARS OF APPELLANTPURSUANT TO S 200 CRIMINAL PROCEDURE ACT 2011. SEEhttp://www.legislation.govt.nz/act/public/2011/0081/latest/DLM3360346.htmlIN THE HIGH COURT OF NEW ZEALANDROTORUA REGISTRYI TE KŌTI MATUA O AOTEAROATE ROTORUA-NUI-A-KAHUMATAMOMOE ROHECRI-2023-463-000024[2023] NZHC 3622BETWEEN FAppellantAND NEW ZEALAND POLICERespondentHearing: 21 November 2023Appearances: N Franklin for the AppellantT Taana for the RespondentJudgment: 12 December 2023JUDGMENT OF HARVEY J[on appeal against refusal to grant permanent name suppression]This judgment was delivered by me on 12 December 2023 at 1.00 pm pursuant toRule 11.5 of the High Court Rules.Registrar/ Deputy RegistrarSolicitors/Counsel:N Franklin, Barrister, WhakatāneCrown Solicitor, TaurangaIntroduction[1] F pleaded guilty to exposing a young person to indecent material. He wassentenced in December 2022 to six months' community detention, 200 hourscommunity work, and reparation of $3,000. He sought permanent name suppression.In February 2023, the District Court Judge declined F's application for permanentname suppression.1[2] F now appeals that decision. He says publication would cause extremehardship to his partner, X and endanger her safety.2 F argues that the Judge erred by:(a) taking into consideration there was no suggestion of a mental healthrelapse on the part of X;(b) failing to consider that the publication would endanger X's safety;(c) concluding there was no extreme hardship caused to X; and(d) finding that the public interest outweighed the impact of publication.[3] The Police oppose the appeal. While acknowledging X's diagnosis ofpersistent depressive disorder (PDD) and its impact on her, the respondent submits itis not likely she would relapse and experience depressive symptoms to the extent thatextreme hardship would be suffered. In addition, the respondent argues that theJudge's assessment of the second stage was correct, and there is public interest inenabling the community to make an informed decision whether to allow their childrento associate with F.Decision on appeal[4] The Judge set out the legal test under s 200(2)(a) relating to extreme hardship.He considered the material found in the report of a Dr A and the affidavits of X, whois profoundly deaf. She attended a boarding school and suffered bullying as well as1 R v [F] [2023] NZDC 1245.2 X did not seek name suppression for herself. However, publication of her name in light of herrelationship to F would breach the order suppressing F's name. Additionally, this judgmentcontains sensitive details. Accordingly, her name has been anonymised in this judgment.physical violence from teachers. The Judge recorded X's "significant geneticpredisposition for anxiety, depression, ADHD and autism". He noted X had sufferedanxiety and depression symptoms when F was charged. Dr A's diagnosis was of PDDwhich was described as a "chronic and enduring type of depression".[5] The Judge emphasised that in Dr A's opinion X's PDD symptoms were in "fullremission". He noted Dr A's assessment that sufferers of PDD are at a higher risk ofexperiencing a relapse of depressive symptoms if faced with stressors, and that X'srisk of experiencing a relapse is greater than the general population, given her history.However, the Judge also highlighted that Dr A found X to have a resilient personality,that she has a good job, is receiving consistent medication, has supportive parents anda sense of connection with her local community. As a result, Dr A noted X has notengaged in self-harm for many decades. The Judge recorded Dr A's opinion that theseprotective factors may shield her from a relapse into depression.[6] After considering Dr A's report, the Judge recorded that he was not satisfiedthat there was a real and appreciable risk that publication of F's name would trigger arelapse of depressive symptoms to the extent that extreme hardship would be sufferedby X. As to the depression and anxiety suffered at the time F was charged, the Judgereasoned this is a normal reaction to a person's partner being charged with moderatelyserious sexual offending against a child. The Judge found that since F's convictionand sentence there was no suggestion of a significant relapse of X's mental health.[7] Two incidents were recounted by X where the victim's family verbally abusedher and her children. The Judge found that while unfortunate, these incidents werenot entirely unexpected following a charge of this nature and did not rise to thethreshold of extreme hardship.[8] Turning to X's assertions she would move from her small home town, theJudge held that it would be X's choice to leave. He noted that X was aware she wouldbe leaving her support system. He could not discount the possibility that she was usingthe threat of leaving to pressure the Court into granting permanent suppression. TheJudge also observed that in a small community, a number of persons must be awarethat F had been convicted and sentenced to sexual offending relating to a child, and Xhas not been caused to leave the area.[9] The Judge considered that even if extreme hardship had not been made out, hewould not have granted permanent name suppression. The public interest in knowingF's identity outweighed it and would allow others to make an informed choice as towhether to permit their children to associate with F.[10] The Judge then turned to consider whether there would be extreme hardship toF's school-age children. He found that the impacts (likely bullying) could be managedby the school and did not justify suppression. This point was not taken on appeal. Forcompleteness, the Judge recorded that the victim's family were "totally against" anypermanent name suppression for F.Psychiatrist's report[11] X was interviewed by a specialist forensic psychiatrist. Dr A recorded thefollowing background information. X was born with profound deafness. She was sentto boarding school where she experienced physical abuse and bullying which wastraumatic. After leaving the boarding school in her early teens she was very unhappyand engaged in binge drinking from the age of 15. She also engaged in self-harm bycutting and overdosing on medication.[12] X was diagnosed with depression in 2006 and commenced antidepressantmedication. In 2007 she stopped taking the medication and experienced a relapse ofdepressive symptoms. However, she has now stopped drinking altogether and has notself-harmed for more than 20 years. Her parents are supportive. A close familymember passed away in recent years and X was able to cope without a "full-blowndepressive relapse".[13] After legal proceedings commenced, X reported experiencing panic attacks,inability to sleep, crying, and worry. She was extremely worried about the prospectof moving away from her home town. Dr A however commented that this was not ofclinical significance and most people in her situation could be expected to experiencethese symptoms. Dr A diagnosed X with persistent depressive disorder (PDD) whichhe described as "a more chronic and enduring type of depression". Dr A's assessmentbears setting out in full:Implications of [X]'s diagnosisPeople experiencing PDD are at a higher risk of experiencing a relapse ofdepressive symptoms while facing significant stressors. In the case of [X] however her risk of experiencing a relapse is greater thanthe general population because of her genetic predisposition, congenitaldeafness, suffering teasing and bullying, history of physical abuse, history ofalcohol use disorder and remaining in an emotionally abusive relationshippurely for the sake of her children.Resilient personality, on the other hand, as evidenced by her capacity tosurvive significant life events including loss of a significant other and hercapacity to function in a foreign country would be protective againstdepression. Receiving consistent treatment, having supportive parents, a senseof connection with the community where her family have been known forgenerations would also be protective in this regard. These protective factorshave contributed to [X] not engaging in any self-harm for many decades. Theymay continue to protect her against relapse of depression in the future.The protective effect of the factors outlined above can be easily lost and [X]'srisk of experiencing a depressive relapse could increase exponentially if shewas to move away from the community where she has lived for many years. Asense of rejection or being targeted in the small community has the potentialof retriggering memories of her own abuse and bullying from her childhood.Such an event, in my view, would be far greater than "the embarrassment andshame" most people would experience in similar circumstances as [X].I acknowledge it is difficult to predict if the potential negative effects from thepublication of her partner's details or rejection/negative reaction from thecommunity would necessarily overshadow the protective effects of [X]'sresilience, supportive relationship with her parents, and her strong sense ofpurpose towards her [children]. The tension between the protective factors andfactors likely to trigger relapse for [X] will need to be monitored as the caseagainst [F] unfolds in the court. It is difficult to predict at this point in time ifthe precise impact of any hardship experienced by her would reach thethreshold of "extreme" in the distant future as it is impossible to know whather circumstances will be.(Emphasis added).Submissions[14] Mr Franklin submitted that the Judge erred in finding that "there is nosuggestion of a significant relapse" and "there has been no suggestion that since F'sconviction and sentence X's mental health has significantly deteriorated".3 This is3 R v [F], above n 1, at [12] and [14].because following conviction and sentence F had the benefit of interim namesuppression. So the effects of publication could not have impacted on X then. Further,counsel contended that following the sentencing, there was no opportunity to provideupdated information on X's state. Mr Franklin argued that impact post-conviction andsentencing is irrelevant; it is the likely impact publication of the appellant's namewould have on X that was relevant. He referred to X's affidavit of her fears of thefuture if publication occurred.[15] The second ground of appeal was that the Judge failed to refer in his decisionto whether there was a danger to X's safety. Mr Franklin noted this is a discrete groundnot tied to extreme hardship. The Court in R v Shailer commented that there is a lowerthreshold than extreme hardship.4 Further psychological harm is included in thedefinition of danger to safety.[16] Mr Franklin submitted that it should have been assessed separately from theextreme hardship ground. He contended that the psychiatric report of Dr Ademonstrated that she has a higher risk of relapse of her PDD due to geneticpredisposition, congenital deafness, extensive past suffering teasing and bullying,history of physical abuse, history of alcohol use disorder and remaining in an abusiverelationship. He submitted that this goes not only to extreme hardship, but if Xrelapsed and harmed herself it would endanger her safety, and this should have beenconsidered under the latter ground. Counsel also noted that X has a more difficult timeengaging with psychological services due to her congenital deafness. There is also adearth of psychological services available in the area, even less so whencommunication assistance would be required.[17] Thirdly, Mr Franklin submitted that the Judge failed to give any weight to thelikely impacts on X remaining in her home town when dismissing her assertion thatshe would leave the area in the event of publication. In any event counsel submittedshe would suffer extreme hardship whether she stayed or left. Additionally, hecontended that the Judge was wrong to speculate that some people in the area mustknow about the offending and that had not caused X to leave. The appellant has had4 R v Shailer [2015] NZHC 2607.interim name suppression throughout proceedings and as such X and her family havebeen protected from the impacts of publication, with no need to relocate as a result. Itwas wrong of the Judge, in counsel's submission, to infer her stated intention wasdisingenuous as a result.[18] Counsel submitted that the Judge needed to assess Dr A's statement that X wasin "full remission" in light of the fact that publication had not occurred and considerwhether publication "would be likely to" cause her relapse in the future. Counselpointed to Dr A's assessment that X was at a greater risk of relapse than the generalpublic because of her personal characteristics, and while he found she had protectivefactors he also noted these could be easily lost.[19] Fourthly, Mr Franklin argued that the Judge incorrectly assessed the balancebetween public interest and impact of publication. He pointed to F's guilty plea andthe fact by doing so he accepted responsibility for the offending; that there was nosuggestion publication could bring further offending to light; that F is already underconditions not to associate with children and has completed 10 months of arehabilitative sentence, so publication to reduce the risk of reoffending is unnecessary;and that the offending, while inappropriate, was not the worst of its kind.[20] Counsel also noted that in terms of the appellant's circumstances, the appellanthad a difficult and abusive childhood leading to hearing impairment, which in turnaffected his educational opportunities. X also has a hearing impairment which posescommunication difficulties for the family. Counsel submitted they will be less able torespond to questions and comments about the offending and will become furtherisolated from the community. He acknowledged the victim's family is strongly againstname suppression being granted but observed that they have demonstrated an intentionto "pursue" F and his family publicly for this offending. He noted that although thevictim's family had initially not respected the suppression order they had been spokento by Police and now have been complying.[21] Finally, Mr Franklin submitted that all the hardship must be looked atcumulatively, citing X v R.55 X (CA226/2020) v R [2020] NZCA 387 at [40].[22] Mr Taane for the respondent submitted that anxiety and depression are notunusual impacts for family members of defendants being prosecuted for sexualoffending. That alone is insufficient to meet the high extreme hardship threshold.[23] In terms of X's diagnosis of PDD, counsel contended that the Judge correctlyfound that there was not a real and appreciable risk publication would cause a relapseof depressive symptoms amounting to extreme hardship. Counsel pointed to Dr A'sassessment that X has a resilient personality and family/community support systemsand relied on this support system when previously faced with distressingcircumstances. In addition, he noted Dr A's comments that any risk of deteriorationcan be effectively mitigated by X engaging in psychological treatment. Further MrTaane emphasised that according to the report X's mental health has been stable formany years and she has not engaged in self-harm or alcohol abuse for over 20 years.[24] Secondly, Mr Taane contended that the fact X would move from her home townfor fear of shame and retaliation does not met the extreme hardship threshold. As theJudge identified, if X were to leave that would be her own decision and she wouldleave behind her support.[25] As to the second stage exercise of discretion, Mr Taane submitted that althoughthe offending is at the lower end for the nature of the offending, there is still highpublic interest in offending against children. Especially so, in counsel's submission,for a conviction of sexual offending against a school-age child. He contended theJudge was correct in concluding that publication will enable the community to makean informed decision whether to allow their children to associate with the appellant.Legal principles[26] Name suppression of a defendant is governed by s 200 of the CriminalProcedure Act 2011 (CPA), which sets out, in relevant part:200 Court may suppress identity of defendant(1) A court may make an order forbidding publication of the name, address, oroccupation of a person who is charged with, or convicted or acquitted of, anoffence.(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, or convictedof, or acquitted of the offence, or any person connected with thatperson; or(e) endanger the safety of any person; or(6) When determining whether to make an order or further order undersubsection (1) that is to have effect permanently, a court must take into accountany views of a victim of the offence conveyed in accordance with section 16Bof the Victims' Rights Act 2002.[27] There is a two-stage approach. First, the Court must determine whether thethreshold test set out in ss 200(2) is met. This is a jurisdictional test. The Court mustbe satisfied that, in the context of this case, publication of the appellant's name is likelyto lead to "extreme hardship" for his partner or danger to her safety. "Likely" meansthere is a real and appreciable risk or possibility of the specified consequenceoccurring.6 "Hardship" means "severe suffering or privation"; the qualifier "undue"used in s 202(2)(a) indicates "something more" and the qualifier "extreme" ins 200(2)(a) is another degree further.7 "Extreme hardship" is a very high thresholdwhich requires something "well beyond" the ordinary consequences of publication.8[28] At the second stage, the Court exercises its discretion to determine whetherpermanent name suppression should be ordered. The relevant matters are whether theapplicant has been convicted, the seriousness of the offending, the views of the victim9and the public interest in knowing the character of the offender.10 The onus is on theapplicant to displace the principle of open justice.116 D (CA443/2015) v Police [2015] NZCA 541, at [30](a); and W v R [2017] NZCA 580 at [15].7 H (CA34/2023) v R [2023] NZCA 240 at [11].8 At [11].9 Which must be considered under s 200(6).10 Robertson v Police [2015] NZCA 7.11 H (CA34/2023) v R, above n 7.[29] Section 283 of the CPA provides a right of appeal against a decision to refuseto make a suppression order. The appellate court is entitled to come to its own opinionabout the facts and the law when assessing whether the jurisdictional test in s 200(2)is made out.12 Regarding the second stage, this is an appeal against discretion. Theappellant must establish that the judge has "acted on some wrong principle, taken intoaccount an irrelevant factor or was plainly wrong".13 If there is such an error, theappellate court considers the discretion afresh.[30] In D (CA443/2015) v Police the Court of Appeal set out some generalprinciples drawn from the case law relating to name suppression applications wherethe defendant is at risk of self-harm or suicide:14(a) The possibility of self-harm or suicide always gives a court cause for anxiousconsideration. Suicide would be a devastating and unacceptable consequenceof publication and it cannot always be assumed that an at-risk person willbehave rationally. But the court cannot adopt the stance that any risk isunacceptable. Under s 200 it must be satisfied that the relevant subs (2) risk islikely; that is, a real and appreciable possibility.(b) Judges know that people may experience suicidal ideation when confrontedwith criminal proceedings, which are immensely stressful, but very seldom, ifever, act upon it. The proceeding is normally the principal cause of stress,although publication identifies the proceeding with the defendant and maycause great anxiety at particular points in time.(c) For these reasons a defendant who relies on a risk of self-harm or suicideattributable to publication of his or her name must normally point to somethingmore than the usual feelings of anxiety and despair that may attendproceedings. It is usual to offer evidence that the defendant is psychologicallytroubled for other reasons and is particularly susceptible to publicity. This may12 Temple v Police [2023] NZHC 2436 at [16].13 Saggers v R [2012] NZCA 560 at [25].14 D (CA443/2015) v Police, above n 6, at [30], (footnotes omitted).be coupled with evidence that the case will attract unusually extensive orcritical media publicity.(d) (e) Anything that reinforces or mitigates other risk factors may affect thelikelihood that publication will precipitate self-harm or suicide.(f) The opinions of medical professionals deserve respect, but a court need notdefer to them. It is unlikely to question an uncontradicted medical diagnosisof the defendant's condition, but such opinions may assume that any risk is toomuch risk or (as in this case) urge suppression without adequately addressingalternative ways in which the risk might be managed.(g) There normally are ways of managing the risk. Where possible, medical reportsprepared to assist the courts should recommend and evaluate those options. Forexample, a brief period of suppression may reconcile the defendant to theinevitability of publicity after the initial shock of arrest and first appearance.Support structures can be identified and deployed. Sensitive information of apersonal nature may be suppressed.(h) Suppression does not follow automatically from the court being satisfied thata relevant risk exists. The court must further consider the second issue: whetheran order ought to be made in the exercise of discretion.DiscussionWas a threshold requirement met?[31] As the Court of Appeal summarised in Stuff v R, "likely" in the context ofs 200(2) means a "real and appreciable possibility".15 There are two thresholds thatmust be considered: whether publication is likely to cause extreme hardship or whetherit is likely to endanger her safety. The latter threshold is, in my view, the more relevantone.15 Stuff v R [2021] NZCA 86 at [17].[32] I accept that, by a narrow margin, there is a risk to X. Although X has beenable to manage her depressive symptoms for some time, as Dr A noted, a large part ofthis is because of the support from her family and her community. There have beeninstances in the past of X engaging in self-harming behaviours and if this occurred itwould meet the definition of endangering her safety. Dr A recorded that X is moresensitive to relapse.[33] If F's name is published, it is likely she will lose the support of her community.That is an inevitable result of close association with a person who has been convictedof sexual offending against a child. When that occurs, she will have to choose whetherto remain or leave. The former would expose her to possible targeting and rejectionwhich as Dr A recorded could retrigger her childhood abuse and trauma. The latterwould cause her to lose her close proximity to her parents who are supportive and herlargest protective factor against depressive relapse. Either situation exposes X to arisk of harm. Moreover, I consider that there is a real risk X will suffer severe mentaldistress with the loss of that support, provoking a relapse into persistent depressivesymptoms which are essentially relentless. Added to the real risk of self-harm, I amsatisfied that this combination also meets the extreme hardship threshold.[34] Therefore with respect to the learned Judge, I disagree with his assessment ofthe stage one test for two principal reasons. First, I consider s 200(2)(e) to be the mostappropriate test, and the Judge did not consider it. Secondly, I differ in my assessmentof X's resilience because I find that publication is likely to threaten her existingprotective factors, whether or not she remains in her home town.Should a permanent suppression order be made?[35] The central question is "whether open justice should yield" to the case forsuppression.16 Two competing considerations are relevant the exercise of thisdiscretion. First, the principle of open justice and the notion that the community isentitled to know who amongst its members have been convicted of wrongdoing carriesweight. Although the risk of reoffending has been assessed as low, the need to inform16 D (CA443/2015) v Police, above n 6, at [12].the community so that they can make informed decisions cannot be underestimated oroveremphasised. The need for public denunciation of the offending is also relevant.[36] Even so, in B v R, the Court of Appeal observed that the fact that sexualoffending is in issue should not in itself "automatically carry a heightened case forpublicly identifying the offender" in the absence of other factors.17[37] X's mental health as F's spouse is an important consideration. There is nodispute that her condition is long-standing and one that has been subject to varioustreatment regimes. According to Dr A, there is a very real risk of psychological harmwhich will be exacerbated by publication of F's details. Publication will be permanentand likely have ongoing effects in the context of X's condition. I also note that F hasa low risk of reoffending and does not present an immediate risk to children.[38] While on the one hand it would be a perverse outcome for the appellant'soffending to be shielded from public scrutiny because of the risk to the mental healthof X, it is also evident based on the report of the professionals that there is in fact apresent risk of psychological harm and a real risk of self-harming behaviours. In short,there is no simple answer before the Court.[39] Added to that is the reality that the victim's parents and family know theidentity of the appellant. Until they were spoken to by police there are at least tworecorded instances of them confronting the appellant and X. While it is speculation,there is also the understandable possibility that the victim's parents have also disclosedthe appellant's identity to other family members or even friends, given the twoconfrontations in public places. That said, I also accept the assurance provided viacounsel that there have been no further instances of this kind.[40] Crown counsel argued that while was some empathy for the position of theappellant's spouse, the principles of open justice and the need to protect thecommunity must override that consideration. In the alternative, and as foreshadowed,F submitted that there is a real risk to X here.17 B v R [2011] NZCA 331 at [21]; reiterated by Thomas J in Q v New Zealand Customs [2014]NZHC 2398.[41] As mentioned, I accept that there is a real risk of harm to X's mental health.Added to that are the real difficulties as highlighted in oral submissions with accessingany kind of supportive services that might soften the impact of publication on her.[42] Taking all of these factors into account, it is appropriate for the Court toexercise its discretion and suppress F's name to protect X's safety.Decision[43] The appeal is allowed.[44] The appellant is entitled to permanent name suppression._____________________________Harvey J