GUDSELL v NEW ZEALAND POLICE [2018] NZCA 298

GUDSELL v NEW ZEALAND POLICE [2018] NZCA 298 [8 August 2018]NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION ORIDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 203OF THE CRIMINAL PROCEDURE ACT 2011.IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA156/2018[2018] NZCA 298BETWEEN PHILLIP ANTHONY GUDSELLApplicantAND NEW ZEALAND POLICERespondentCourt: Asher, Brewer and Thomas JJCounsel: C G Tuck for ApplicantE J Hoskin for RespondentJudgment:(On the papers)8 August 2018 at 10 amJUDGMENT OF THE COURTA The application for leave to appeal is declined.B The High Court order for interim suppression pending determination of theappeal will now lapse.____________________________________________________________________REASONS OF THE COURT(Given by Asher J)[1] The applicant Phillip Gudsell seeks leave to bring a second appeal against arefusal to grant him interim name suppression. The Court directed this application tobe determined separately from the proposed appeal, and by way of an oral hearing.1The Crown opposes the application for leave on the basis that no matter of general orpublic importance arises, relying on s 289(2)(a) of the Criminal Procedure Act 2011.The parties have agreed that the application for leave should be determined on thepapers, without an oral hearing.Background[2] Mr Gudsell pleaded guilty to indecent assault in the District Court. He wassentenced to four months' community detention and ordered to pay emotional harmreparation of $3,000.[3] The indecent assault occurred in 2017. Mr Gudsell, who was seekingassistance at the premises of a service provider, approached the complainant who wasstanding with her back to him. She was employed by the service provider. He pressedup against her and put his groin against her buttocks. Shortly after he approached heragain in the same way, and also placed his right hand around her waist and rubbed thetop of her right thigh and pelvic area.[4] Mr Gudsell applied for permanent name suppression on the basis of extremehardship, primarily to his wife (Mrs X), under s 200(2)(a) of the CriminalProcedure Act. Mrs X swore an affidavit. She explained that she is employed as abank manager, and had previously worked as a chief executive officer of a significantcommunity organisation. Her position has been high profile and she connects to manycommunity and business organisations. She and her husband care for two children,one of whom shares Mr Gudsell's surname. She stated that the publication of herhusband's name would have "cataclysmic consequences" to her life and to the lives oftheir children. She deposed:If my husband's name was published this would cause extreme hardship tome. My business and the numerous roles that I play depend on my name andmy associations being above reproach. Because I share the same name as myhusband, together we would be tarnished beyond repair.1 Gudsell v Police CA156/2018, 1 May 2018 (Minute of Gilbert J).[5] In the course of sentencing in the District Court, Judge Harding declined theapplication for permanent name suppression.2 He commented that Mrs X's affidavitcontained "a degree of hyperbole, which is simply impossible to accept".3 Mr Gudsellappealed to the High Court and that appeal was determined by Davison J on9 March 2018.4 Davison J dismissed the appeal. He applied the two-stage approachreferred to in Robertson v Police.5 He noted that the ground of extreme hardship reliedon was extreme hardship both to Mr Gudsell and his wife, and that the application wasprincipally founded on a submission that publication would cause extreme hardship tohis wife and their two children. After reviewing the authorities and the facts he agreedwith Judge Harding's assessment of the consequences for Mrs X and their children.6He concluded in relation to extreme hardship:[24] I consider that the expected consequences of publication for Mrs Xand her children, whilst inevitably causing embarrassment and anxiety, are notsuch as to amount to extreme hardship. Here there is nothing such as a seriousstress-related medical condition, or a family member who holds a high-profileposition and has an identical name to the defendant; nor is there any potentialfor confusion associating Mr X's wife with his offending. I accordingly agreewith the Judge's assessment of the consequences for Mrs X and their children.The decision[6] Mr Tuck for the applicant was critical of Davison J's consideration of theconcept of "extreme hardship". He referred to Robertson v Police and the fact thatsomething more than undue hardship is required.7 He went on to submit:However, further clarification on this point is needed. Guided by previousauthorities, the Court in Robertson considered only one meaning of the word"hardship". Relying on the New Zealand Oxford Dictionary, the Courtdefined "hardship" in terms of "severe suffering or privation". In doing so,the Court only considered the "severe suffering" limb of this definition, anddid not consider "privation".(Footnotes omitted.)[7] He argued that clarity was required as to whether the Court:2 R v Gudsell [2018] NZDC 1856.3 At [11].4 X v Police [2018] NZHC 377.5 Robertson v Police [2015] NZCA 7 at [39]–[41].6 X v Police, above n 4, at [24].7 Robertson v Police, above n 5, at [48].[H]olds the law relating to "hardship" to refer to "severe suffering" or"[severe] privation" or some combination of the two. It is this lack ofclarity on this point which gives rise to the appeal as being a matter of generalor public importance.[8] We are unable to agree with this submission. "Extreme hardship" has a clearnatural meaning which does not require the subtle analysis that is being proposed.Davison J correctly observed that extreme hardship involves a very high threshold,requiring an applicant to show that the hardship is excessive and out of the ordinary.8It is a significantly greater level of hardship than undue hardship. Davison J relied ona number of High Court decisions consistent with this approach. We are not persuadedthat the sort of further analysis Mr Tuck urges of the phrase "extreme hardship" isrequired.[9] In our view Davison J's analysis of both the facts and the law cannot becriticised. He referred to a decision of this Court, B (CA860/10) v R, wheresuppression of name was granted under the previous legislation on the basis ofhardship to the defendant's former wife and children.9 He properly distinguished thatcase, on the basis that it involved a greater level of hardship.10[10] The clear finding, plainly correct on the material before the Court, was thatMrs X, while she would inevitably suffer embarrassment and anxiety, would not sufferextreme hardship as a consequence of publication of Mr Gudsell's name. The damagefrom publication must be seen in the light of the offending being a relatively low levelindecent assault, resulting in a mild community-based sentence.[11] There is no basis for criticising the assessment of either Judge. No point ofgeneral or public importance arises and there has been no miscarriage of justice.Result[12] The application for leave to appeal is declined.8 X v Police, above n 4, at [18].9 B (CA860/10) v R [2011] NZCA 331.10 X v Police, above n 4, at [21]–[22].[13] The High Court order for interim suppression pending determination of theappeal will now lapse.Solicitors:Crown Law Office, Wellington for Respondent