RUSSELL v NEW ZEALAND POLICE [2020] NZCA 103

RUSSELL v NEW ZEALAND POLICE [2020] NZCA 103 [20 April 2020]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA636/2019[2020] NZCA 103BETWEEN PETER SPENCER RUSSELLApplicantAND NEW ZEALAND POLICERespondentCourt: French, Dobson and Moore JJCounsel: D P H Jones QC for ApplicantB F Fenton for RespondentJudgment:(On the papers)20 April 2020 at 11 amJUDGMENT OF THE COURTThe application for leave to bring a second appeal is declined.____________________________________________________________________REASONS OF THE COURT(Given by Dobson J)[1] This application for leave to bring a further appeal raises the consequences ofa young doctor's convictions for indecency. The applicant had been found guilty inSeptember 2015 of two charges of doing an indecent act with intent to offend.11 Police v Russell [2015] NZDC 16528.[2] After a protracted sequence of hearings that are described below,in November 2019 Palmer J dismissed an appeal against the District Court's refusal togrant name suppression for the applicant.2[3] The application is brought pursuant to s 289 of the Criminal Procedure Act2011. The applicant must satisfy the Court that the proposed appeal either involvesa matter of general or public importance, or that a miscarriage of justice has occurredor will occur unless the appeal is heard.[4] The respondent does not oppose the application. In a memorandum filedpursuant to r 5C of the Court of Appeal (Criminal) Rules 2001, the respondent submitsthat the proposed appeal would not involve a matter of general or public importance,but the Court might reasonably be concerned that a miscarriage may have occurred ormay occur unless the appeal is heard. The absence of opposition is material but by nomeans determinative.The offending and earlier proceedings[5] Charges arose out of two incidents in June and August 2013 in whichthe applicant exposed himself on Mount Eden and masturbated his erect penis, on bothoccasions in view of a female jogger. He had earlier admitted another incidentinvolving similar conduct that had also occurred in June 2013 and in respect of whichhe had been granted diversion. However he defended the aforementioned June chargeand the August charge and was found guilty after trial. He was sentenced inOctober 2015 to 120 hours' community work, and was ordered to pay $1,000emotional harm reparation to the victim.3 The District Court Judge declinedpermanent name suppression.4[6] In March 2016, the applicant unsuccessfully appealed to the High Court againsthis convictions.5 The Court on that occasion adjourned his appeal against the refusalto grant permanent name suppression. In August 2016, this Court declined2 R v Police [2019] NZHC 2901 [High Court Judgment].3 R v Russell [2015] NZDC 20997.4 At [28].5 R v Police [2016] NZHC 523.the applicant's application for leave to bring a second appeal against his convictions.6In October 2016 his appeal against the District Court's refusal to grant permanentname suppression was further adjourned pending completion of disciplinaryproceedings that he faced before the Health Practitioners' Disciplinary Tribunal(the Tribunal).[7] In May 2017, the Tribunal delivered a decision in which the applicant wascensured and his registration as a doctor was suspended for two years, with conditionsimposed on his resumption of practice for a period of a further two years.7Name suppression in respect of the disciplinary proceedings was declined.[8] The applicant then pursued an appeal to the High Court against the penaltyimposed by the Tribunal and its refusal to grant name suppression. In November 2017,both aspects of that appeal were dismissed.8 The applicant obtained leave to appeal tothis Court against the High Court's decision upholding the Tribunal's decision.This Court dismissed the substantive appeal, anticipating that the long-adjournedHigh Court appeal against the District Court's refusal to grant name suppression inthe criminal proceeding would be determinative in both criminal and disciplinarycontexts.9 The hearing of that appeal proceeded before Palmer J in June 2019 and hisjudgment was delivered in November 2019.[9] The ground relied on by the applicant in seeking name suppression was thatpublication would be likely to cause extreme hardship to him or persons connectedwith him.10 The applicant provided evidence of his attempts to find employment sincethe convictions.11 In essence, the applicant claimed that publication would end hiscareer in medicine and in medical research, which would punish him far beyond thegravity of the offending. Without name suppression, he stated that he would not beemployable by any DHB, which was effectively the only option to work as a doctor,because he has not applied for or completed specialist training. He took steps to obtain6 R (CA176/2016) v Police [2016] NZCA 403.7 Re Russell HPDT 889/Med17/380P, 18 May 2017 [Tribunal Decision].8 R v Professional Conduct Committee [2017] NZHC 2674.9 R (CA679/2017) v Professional Conduct Committee of the Medical Council of New Zealand[2019] NZCA 95.10 Criminal Procedure Act 2011, s 200(2)(a).11 A first affidavit was sworn in September 2016, and a second, updating, affidavit in June 2019.a position as a medical researcher but approval for funding such a position waswithheld because of the perceived risk of damage to the relevant institution'sreputation should his name suppression be lifted.[10] In September 2016, Mr Patrick Alley, a senior surgeon and clinical director ofsurgery at Ormiston Hospital in South Auckland, completed an affidavit in support ofthe applicant for the first High Court appeal. Mr Alley had assured the managementof the relevant DHB that, in his opinion, the applicant was safe to practise. He wasconfident that so long as name suppression continued, the applicant could function asan effective participant in delivering specialist surgical care. However, shouldthe applicant's name be published, Mr Alley predicted that no DHB would considerhim for employment, given the substantial reputational risk to the organisation thatwould follow.[11] The High Court also had available to it two further references that had beenprovided to the Tribunal in support of the applicant. These had been completed inMarch 2017 and were from Dr Ian Stewart, a general surgeon employed bythe Waitemata District Health Board and previous chair of surgical training onthe board of the Royal Australasian College of Surgeons, and Professor John Windsor,a professor of surgery at Auckland University. Both referees provided glowingtestimonials of the applicant's good character and high level of skills as a junior doctor.Both considered that it would be most unfortunate if the extensive investment intraining the applicant was lost. Both expressed confidence that the prospects of anyrepeat offending were negligible to non-existent, and that the outcome beforethe Tribunal ought to enable his career to continue.[12] However, both referees reinforced the applicant's own concerns that ifpublication of his name occurred there were no realistic employment opportunities forhim as a doctor.[13] The applicant also cited materials he had provided to the Tribunal about theadverse consequences for others. This included concerns that his mother's job wouldbe adversely affected and that his wife's job would become untenable. It wassuggested that knowledge of his conviction would lead others to question his wife'sjudgement.[14] The applicant also claimed adverse impacts on his young daughter whom heperceived as suffering greatly from publication of his name.[15] The complainant in the criminal proceedings advised the police that she didnot care and, from her perspective, he could have name suppression if he wanted it.She is reported as saying "I am over it [h]e got a conviction, I do not care about hisname suppression".12[16] The respondent indicated in the High Court that it did not opposethe application for name suppression. An aspect of the respondent's withdrawal of itsopposition in the High Court was the view taken that the consequences forthe applicant would be more severe than the level perceived by the Tribunal.The High Court judgment[17] Palmer J reviewed all the evidence on the extent of detriment likely to besuffered by the applicant if his name was published. The Judge reviewed the analysisundertaken by the Tribunal. The Judge was mindful that the appeal he was hearinghad been adjourned to await the outcome from the Tribunal, in part at least becausethe Tribunal was likely to be well-qualified to consider the potential impact thatsuppression of the applicant's name would have on patients to whom he might providemedical services.[18] The Tribunal was unable to conclude that there was no risk of re-offending bythe applicant. Palmer J quoted from the Tribunal's decision on this point as follows:13In those circumstances, the Tribunal takes the view that the members ofthe public and in particular potential users of his services in the future,are entitled to make their own judgment as to whether or not to consultthe Practitioner, having regard to his offending. In the Tribunal's judgment,the only practical way of ensuring that members of the public are ableeffectively to exercise such a right is for the Tribunal's decision to bepublished in full.12 High Court Judgment, above n 2, at [13].13 At [21].That is the public interest involved here, as we see it.[19] The Judge accepted the evidence that, at least for several years, publicationwould preclude the applicant being employed as a doctor treating patients. The Judgewas not persuaded that those adverse consequences would necessarily last forever.14The evidence had not established that he could never be employed as a doctorin the future and the Judge was not persuaded that the applicant would be withoutemployment prospects at all. Retraining was an option.[20] The Judge reasoned that the consequences of such convictions would bethe same for any health professional. The consequences were not materially moreserious for the applicant than they would be for any of his professional peers.15[21] The Judge was mindful of the caution expressed by Venning J in Beig v Policethat the Court needs to "be careful to avoid creating a special echelon of privilegedpersons in the community who will enjoy suppression where their less fortunatecompatriots would not".16 It could be expected that loss of career prospects wouldfollow for all doctors convicted of such offending. The Judge did not find that toconstitute extreme hardship of the sort required for name suppression under s 200 ofthe Criminal Procedure Act.17[22] Further, the Judge did not accept that the applicant's wife and mother wouldnecessarily be required to leave their jobs if his offending was publicised. He reasonedthat worthwhile employers will judge their employees' performance on the basis oftheir own actions and behaviour and not attribute to them adverse characteristics oftheir relations.18 The Judge found that the only consequence to the applicant's familywould be in the nature of embarrassment and this also did not constitute undue orextreme hardship justifying name suppression.[23] The Judge also considered whether, if he was wrong in his finding thatthe applicant would not suffer extreme hardship, he would otherwise suppress14 At [46]–[47].15 At [55].16 Beig v Police [2015] NZHC 40 at [22] quoting Proctor v R [1997] 1 NZLR 295 (CA) at 299–300.17 High Court Judgment, above n 2, at [55].18 At [67].the applicant's name.19 In addition to the usual interests of open justice, the Judgeattributed weight to the public interest in potential patients of the applicant knowingof his criminal offending.20 There is a public interest in the right of potential patientsto make informed decisions about their choice of medical practitioner and knowingthe character of those they entrust with their personal health and well-being.That consideration had been cited by Gordon J in the appeal from the Tribunal'sdecision declining name suppression, and it was adopted by Palmer J.21Overall, the Judge considered that the public interest considerations would outweighthose favouring suppression, by some margin.22Analysis[24] The Judge's approach to the legal test under s 200 of the CriminalProcedure Act was entirely conventional and the weighing of competingconsiderations is not only one that was reasonably open to the Judge, but is one withwhich we agree.[25] The applicant and the medical professionals supporting the application forname suppression consistently acknowledged that any employer would need to knowof the convictions. Their approach distinguishes confidential advice to an employerfrom public disclosure of the convictions. The former is not of itself seen asan impediment to employment, whereas the latter is seen as eliminating entirely anyprospect of employment. The applicant would only be employed if he andthe employer could permanently maintain suppression of his indecency offendingfrom patients who have a legitimate interest in knowing that aspect of his character.[26] Such an approach assumes that potential employers would, for their ownpurposes, be able to rationalise the adverse prospects arising from the convictions,whereas they would not be prepared to justify such an employment decision ifthe public became aware of the convictions. This infers that prospective employersexpect members of the public to apply a different and arguably less well-informed19 At [56]–[65].20 At [3] and [63].21 R v Professional Conduct Committee, above n 8, at [115] and [124]; and see alsoTribunal Decision, above n 7, at [127]–[128].22 High Court Judgment, above n 2, at [65].approach than they would themselves to the prospects of having to deal with a healthprofessional who has convictions for indecency.[27] We do not find that a justifiable approach in weighing the extent of hardshipflowing from publication of the applicant's name. The interests of potential patientsconflict directly with such an aspiration by prospective employers and a doctor whosecareer justifiably depends on views of patients that could legitimately include viewson his own standards of conduct.[28] As noted, the consequences of publication would be the same for any doctor.Accordingly, recognising the consequences of publication as sufficient to make outextreme hardship would risk making doctors a privileged group in this context.Certainly, such consequences cannot qualify as extreme hardship in the applicant'scase.[29] Whilst maintaining its neutral stance on the application for leave,the memorandum on behalf of the respondent included two points that might count infavour of the grant of leave. First, the respondent accepted the argument raised onbehalf of the applicant that his convictions are liable in due course to come withinthe Criminal Records (Clean Slate) Act 2004. Accordingly, assuming he met thecriteria under that scheme, in October 2022 he would be deemed to not have a criminalrecord and therefore not be required to disclose his offending. Arguably the purposesof the clean slate legislation would be undermined by the publication of thoseconvictions, given their presumptively permanent effect because of the public's abilityto search for them on the internet.[30] We do not accept that the fact relevant convictions are covered by the cleanslate legislation can alter the heavy onus on an applicant for permanent namesuppression to make out extreme hardship. In the present circumstances,if the applicant cannot make out extreme hardship without this argument, then we donot see it availing him to discharge the onus. These convictions were entered inSeptember 2015 and it is only the unusually protracted sequence of other proceedingsand appeals that brings the applicant within two and a half years of the clean slatelegislation availing him.[31] The respondent also invited the Court to distinguish the adverse consequencesfor the applicant arising directly from his name being publicised from the indirectadverse consequences that would follow for any employers who now employed himand then suffered damage to their reputation because of disclosure of the convictions.We do not see that distinction between the types of harm caused by publication asmaking out extreme hardship for the applicant. It is an aspect of consequences formedical professionals that would most likely apply similarly to others. Giving weightto the distinction would endorse the attitude of prospective employers that they couldrationalise and accept the convictions, whereas they would expect patients not to.We are unable to place any weight on such an approach.[32] We are satisfied that a refusal by the Court to facilitate such an arrangementcannot be characterised as causing extreme hardship to the applicant.Outcome[33] Accordingly, we see no real risk that a miscarriage of justice may haveoccurred or may occur unless the appeal is heard. The proposed appeal also does notinvolve any matter of general or public importance.[34] The application for leave to bring a second appeal from the decisions refusingto grant permanent name suppression is declined.Solicitors:Dominion Law, Auckland for ApplicantCrown Law, Wellington for Respondent