BARNES v NEW ZEALAND POLICE [2021] NZCA 16

BARNES v NEW ZEALAND POLICE [2021] NZCA 16 [16 February 2021]INTERIM SUPPRESSION OF THE APPELLANT'S NAME, ADDRESS,OCCUPATION AND IDENTIFYING PARTICULARS CONTINUES FORTEN WORKING DAYS FROM THE DATE OF THIS JUDGMENT, BUTTHEREAFTER LAPSES UNLESS RENEWED BY FURTHER ORDER.THE ORDER FOR SUPPRESSION OF THE NAME OF THE GYMNASIUMWHERE THE OFFENDING OCCURRED, MADE IN THEDISTRICT COURT, REMAINS IN FORCE.IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA593/2020[2021] NZCA 16BETWEEN PHILLIP BARNESAppellantAND NEW ZEALAND POLICERespondentHearing: 9 November 2020Court: Kόs P, Thomas and Gendall JJCounsel: R M Mansfield for AppellantB C L Charmley for RespondentR K P Stewart for NZME Publishing and RNZJudgment: 16 February 2021 at 10 amJUDGMENT OF THE COURTA The application for leave to bring a second appeal is granted.B The appeal is dismissed.C Interim suppression of the appellant's name, address, occupation andidentifying particulars continues for ten working days from the date of thisjudgment, but thereafter lapses unless renewed by further order. The orderfor suppression of the name of the gymnasium where the offending occurred,made in the District Court, remains in force.____________________________________________________________________REASONS OF THE COURT(Given by Thomas J)Table of contentsBackground [2]Procedural history [9]District Court decision [13]High Court decision [18]The appeal [20]Leave to appeal [21]The application for a discharge without conviction [29]Events prior to the hearing of the High Court appeal [44]Material filed in the High Court [47]Did the High Court err in entering a conviction rather than remittingthe case to the District Court? [52]Did the District Court's failure to consider the second SOF mean thecase should have been remitted to it? [54]Should the Court consider updating evidence? [58]Did the High Court err in its assessment of the gravity of the offending? [65]Did the High Court err in its assessment of the consequences of aconviction? [72]Did the High Court err in its proportionality assessment? [92]Name suppression [96]Result [103][1] Mr Barnes fixed a video camera in the unisex changing rooms of the gym heattended and made recordings of those using the changing rooms. When the camerawas discovered, Mr Barnes pleaded guilty to a representative charge of intentionallymaking an intimate visual recording of another person in the District Court, wasdischarged without conviction, and granted permanent name suppression.1 TheNew Zealand Police, with leave of the Solicitor-General, successfully appealed tothe High Court against the decision to discharge Mr Barnes without conviction andgrant him permanent name suppression.2 Mr Barnes now applies for leave to bring asecond appeal and appeals both decisions.31 Police v Barnes [2020] NZDC 11260 [District Court judgment].2 Police v Barnes [2020] NZHC 2682 [High Court judgment].3 Criminal Procedure Act 2011, s 303.Background[2] At the time of the offending, Mr Barnes was 62 years old and employed asthe general manager of the Accreditation Council trading as InternationalAccreditation New Zealand (the Council). The Council is an autonomous Crownentity.4 Among other statutory functions, the Council accredits medical laboratories,ensuring their conformity with international standards.[3] On four occasions in November 2017, Mr Barnes attached a small USB spycamera under the sink in two unisex changing rooms at a gymnasium he frequented.The camera was discovered, and the police became involved.[4] The police prepared a summary of facts (the first SOF), which recordedthe police's initial understanding that the offending was a single isolated event.It stated that, on 23 November 2017, Mr Barnes placed a spy camera in one changingroom. A total of 39,360 still images and 12 video files were located in the deletedfiles, showing six victims naked or in various states of undress.[5] When, following a judicial request for further information, the policeconducted further investigations, a second summary of facts was prepared (the secondSOF). The second SOF stated that the recordings occurred on 8, 20, 21 and23 November 2017. This was consistent with Mr Barnes' gym access swipe cardusage. He had placed the camera in two of the three changing rooms, near the entryto the shower and in the area used for changing and showering. The footage capturedthe area from a person's head to the lower legs.[6] The second SOF stated that there were six video recordings, five of which weredeleted but able to be recovered, as well as thousands of still images taken fromthe various videos.[7] One video file, and the only one not deleted, captured the camera being put inplace. The second video recorded the device being moved. The third and fourthvideos showed a clothed middle-aged male in the changing room. The fifth video4 Crown Entities Act 2004, s 7(1)(a).showed a female in her mid to late twenties undressing, showing her breasts andunderwear. The sixth video showed a male and female in their late-20s undressingand entering the shower. Their genitalia were captured, as was the female exiting theshower, moving in a sexual way and then dressing.[8] The still images were consistent with the video files dissected into smallerimages. There was also a series of still images depicting a middle-aged male wearingshorts, a clothed female in the changing area and another female wearing herunderwear.Procedural history[9] On 20 June 2018, Mr Barnes pleaded guilty to one charge of intentionallymaking an intimate recording of another person and accepted the first SOF.[10] On 27 March 2019, sentencing was adjourned as the District Court Judge thendealing with the case requested more information, specifically the number of imagesand recordings made.5[11] By consent, the charge was amended to a representative charge and Mr Barnespleaded guilty to that charge on the basis of the second SOF.[12] On 2 December 2019, the case came before Judge Bennett who indicated that,if Mr Barnes completed 150 hours of voluntary work, then a discharge withoutconviction would be granted.6District Court decision[13] On 19 June 2020, Judge Bennett discharged Mr Barnes without convictionunder s 106 of the Sentencing Act 2002 (the Sentencing Act).7 She also granted himname suppression.85 R v Barnes DC Auckland CRI-2018-044-686, 27 March 2019 at [4] and [8].6 As noted in the District Court judgment, above n 1, at [32].7 At [54].8 At [73].[14] The Judge relied on the first SOF. She identified the aggravating features ofthe offending as a breach of trust, victim vulnerability, victim impact and there beingmultiple victims.9 She noted that the offending appeared to have been an isolatedincident.10 As far as Mr Barnes personally was concerned, she referred in mitigationto his previous good character, despite a difficult upbringing, and that he wasextremely remorseful. She noted that personal factors had resulted in obsessivebehaviours, including an interest in pornography, but that he had taken steps torehabilitate himself, including undertaking psychotherapy. A report from hispsychotherapist identified that there had been many positive changes in Mr Barnes'behaviour.11 Although being required to undertake 150 hours of voluntary work, hehad completed 190 hours of voluntary work.12 After taking those matters into account,the Judge concluded that, overall, the offending could be assessed as moderatelyserious.13[15] The Judge accepted that the direct and indirect consequences of a convictionfor Mr Barnes were loss of employment, loss of reputation, impediment tointernational travel and effects on his family relationships.14 She considered that theywould be out of all proportion to the gravity of the offending.15 The Judge exercisedher discretion and discharged the defendant without conviction, and made an order forcosts of $500.16[16] As to name suppression, the Judge noted that Mr Barnes had initially intendedresigning from his position as general manager of the Council to avoid adversepublicity for it. However, in the week of 20 March 2020, the then chief executiveofficer (CEO) was stood down and Mr Barnes stepped up as the acting CEO, a rolethat was to continue for the duration of the COVID-19 pandemic.17 Name suppressionwas sought on the basis that publication would disrupt Mr Barnes' work and require9 At [24].10 At [27].11 At [28]–[31].12 At [32].13 At [33].14 At [45].15 At [50].16 At [54]–[55].17 The Council played a role in accrediting laboratories testing for the COVID-19 virus. Moore Jnoted Mr Barnes had said this was an essential service.him to stand down, leaving the Council, which was described as crucial to the fightagainst COVID-19, without any experienced governance. This, it was said, wouldhave severe consequences for the country.18[17] The Judge expressed herself satisfied that publication of Mr Barnes' namewould lead to extreme hardship for him and, particularly in the context of his currentemployment and the COVID-19 pandemic, the Council would likewise suffer extremehardship.19High Court decision[18] The police appealed the District Court judgment, both as to the dischargewithout conviction and as to name suppression. The appeal was on the basis that theDistrict Court Judge erred in:(a) misunderstanding the seriousness of the offending by referring tothe incorrect summary of facts;(b) concluding that Mr Barnes' employment prospects would bejeopardised by convictions;(c) concluding that the consequences of a conviction were out of allproportion to the gravity of the offending; and(d) concluding that Mr Barnes and his employer would suffer extremehardship if his name were published and failing to apply the secondstage discretionary test for name suppression.[19] Moore J allowed the appeals for the reasons discussed in detail below.18 District Court judgment, above n 1, at [58].19 At [72].The appeal[20] Mr Barnes appeals to this Court on the grounds that the High Court Judge erredin entering a conviction rather than remitting the matter back to the District Court toconsider the matter on the basis of the second SOF. Further, he erred in his descriptionof the gravity of the offending, in his assessment of the consequences of a convictionand in his proportionality assessment when he held that the consequences ofa conviction were not out of all proportion to the gravity of the offending. He alsoerred in quashing Mr Barnes' name suppression order.Leave to appeal[21] This is a second appeal brought under s 303 of the Criminal Procedure Act2011 (CPA), which relevantly provides:(2) The High Court or the Court of Appeal must not give leave fora second appeal under this subpart unless satisfied that—(a) the appeal involves a matter of general or public importance;or(b) a miscarriage of justice may have occurred, or may occurunless the appeal is heard.[22] A matter of general principle or importance is one of broader application,beyond the circumstances of the particular case.20 If an appeal involves onlythe application of well-established legal principles to the particular facts of the case,leave will not generally be granted.21[23] In Mr Mansfield's submission, for Mr Barnes, the High Court's failure to remitthe proceeding back to the District Court deprived Mr Barnes of his application beingconsidered on merit and of an appeal as of right. This was a matter of clear publicimportance, he said.20 McAllister v R [2014] NZCA 175, [2014] 2 NZLR 764 at [36]. See also Keenan v R [2005] NZSC63 at [5].21 McAllister v R, above n 20, at [36], referring to Balfour v R [2013] NZSC 149 at [2].[24] Were it not for the issue we next address, we would have agreed withthe respondent that there is no matter of general or public importance raised, andthe complaints are fact specific.[25] The appeal to the High Court was on a question of law under s 296(2) ofthe CPA. A question of law arises for s 296 purposes when there is:22(a) a misdirection of law apparent in the decision;(b) oversight of a relevant matter or consideration of an irrelevant matter;or(c) a factual finding unsupported by any evidence or an omission to drawan inference of fact which is the only reasonably possible one onthe evidence.And an error of law may also arise when a decision is plainly wrong.23[26] Although this was not addressed at the hearing, we note that the grounds ofappeal to the High Court were directed to the Judge's factual findings. They could(and should) have been expressed as questions of law within the framework discussedabove. Where a defendant appeals as of right against refusal of a discharge,the appellate court must be persuaded that the court below was wrong but reaches itsdecision by reference to its own view of the merits. In an appeal on a question of law,the court may substitute its own view of the merits only if satisfied that the lower courtjudge erred relevantly in law.24[27] In this case, the High Court Judge did not in clear terms identify any questionsof law. He stated an appeal against "a refusal to grant a discharge" requiredan evaluative judgment, and was therefore subject to normal appellate principles,22 R v Smyth [2017] NZCA 530 at [8], citing Brown v R [2015] NZCA 325, (2015) 30 FRNZ 471at [16]. R v Smyth was recently affirmed in R v Taulapapa [2018] NZCA 414 at [17].23 R v Cleaver [2020] NZCA 397 at [12]; citing R v Taulapapa, above n 22, at [17].24 R v Taulapapa, above n 22, at [18], referring to H (CA680/2011) v R [2012] NZCA 198 at [35]–[36].requiring a fresh assessment of the relevant competing factors.25 The appeal wastherefore approached on an incorrect basis.[28] And so, although not sought on this basis, we grant leave to appeal in thecircumstances.The application for a discharge without conviction[29] Before addressing the grounds of appeal, we must first briefly address the lawand then consider the application and the information that was before the District andHigh Courts.[30] Section 107 of the Sentencing Act gives guidance to the Court as to when todischarge a defendant without conviction, saying:The court must not discharge an offender without conviction unless the courtis satisfied that the direct and indirect consequences of a conviction would beout of all proportion to the gravity of the offence.[31] A discharge without conviction is a two-stage test.26 In the first stage, the Courtconsiders the gravity of the offence, the direct and indirect consequences ofa conviction and whether those consequences are out of all proportion to the gravityof the offence. The Court considers the gravity of the offending in its particular factualcontext; all aggravating and mitigating factors relating to the offending and offendercome into play.27[32] The second stage involves the Court's residual discretion and is engaged onlyif the jurisdictional test is met.28[33] In support of his application to be discharged without conviction, Mr Barnesfiled an affidavit dated 15 October 2018 in the District Court. It was clearly preparedon the basis of the first SOF; for example Mr Barnes said:25 High Court judgment, above n 2, at [70].26 DC (CA47/2013) v R [2013] NZCA 255 at [31].27 At [31] and [35]; adopting Z (CA447/2012) v R [2012] NZCA 599, [2013] NZAR 142.28 At [31], citing R v Hughes [2008] NZCA 546, [2009] 3 NZLR 222 at [10]–[11]; and Z(CA447/2012) v R, above n 27, at [27].The charge relates to an incident that occurred on 23 November 2017 at [thegym]. I had placed a small USB spy camera in the changing room Thecamera was discovered by the Complainant this day [34] The impression that the offending related to a single incident only wasconfirmed when he described affixing the camera on one occasion in one changingroom, saying he intended collecting it on completion of his workout but it had beenremoved by the time he went to retrieve it.[35] Mr Barnes then discussed what he described as his "troubled childhood", hismental health struggles and the steps he had taken to rehabilitate himself. He soughta discharge without conviction on the following basis:Whilst I take full responsibility for my actions, [i]f I am to maintainemployment I need to seek to be discharged without conviction as I believethe impact on my employment and the future of my family, is out of allproportion to the gravity of the offending in this case. If I lose myemployment, given my age, I will not be able to find any other employment.I will be unemployable and in a position where I cannot support myself, or myfamily through my last working years and retirement.[36] Mr Barnes acknowledged that "a conviction" for the offence would constituteserious misconduct under the Council's Employment Code of Conduct, meaning hewould be subject to disciplinary action and potentially dismissed. He considered itunlikely that he would find professional employment again after a conviction at hisage, meaning he and his wife would have to sell the house and seek lower cost rentalaccommodation. He acknowledged his wife was employed.[37] Mr Barnes' application was supported by an affidavit sworn in 2018 froma lawyer specialising in employment law. She summarised her opinion as follows: Mr Barnes is very likely to have his employment terminated if convicted.It is highly unlikely his or any employer would allow him to remain in the rolewith a conviction, given what a conviction represents and the potential damagethat could do if it was known.Further, the reason for his dismissal would likely severely impede his chanceof being employed in a role of a similar type or on similar remuneration asany new employer would be likely to ask him to disclose his convictions. [38] The lawyer had reviewed Mr Barnes' employment agreement (in 2018 he wasemployed as the general manager of the Council). She had also viewed a recentperformance appraisal, which suggested the Council was happy with his performance.She said there was no evidence that the offending would "directly" undermine hisability to perform the job description. She noted, however, that part of the jobdescription included representing and promoting the Council at meetings, includingon the international stage. She concluded that a conviction would mean the Councilwould be likely to commence a disciplinary process because of the impact ofthe conviction on its reputation and the ability of Mr Barnes to represent and promotethe Council once his own reputation was impacted by knowledge of the offending.In her opinion, the conviction would be likely to be considered serious misconductand warrant dismissal. She quoted a decision of the Employment Court in support ofthe proposition that an employer can justifiably terminate an employee's employmentfor conduct outside the workplace without proof of any actual damage to reputation.29[39] While the lawyer's comments were directed primarily at the consequences ofa conviction, notably she said:[The Employment Relations Authority] or Court is much less likely inMr Barnes' case to grant this remedy of reinstatement because he has pleadedguilty to a criminal offence and admitted to acting unlawfully. His guilty pleaand admittance to unlawful behaviour is causally connected with the act oftermination of his employment and makes reinstatement less practical asMr Barnes is likely to be shunned by others in the workplace.[40] Two victim impact statements were provided. One from a 26-year-old womanwho spoke of feeling sickened at learning she was filmed naked in a place where shehad expected to be safe. The second was from the gym owner who discussedthe stresses of dealing with the incident.[41] The pre-sentence report recorded that Mr Barnes had no criminal history.He was not considered by the report-writer to be evasive or to blame others, althoughhe appeared to lack insight into how his offending had affected his victims. The reportrecorded Mr Barnes' description of his addictive behaviour, noting that he had stoppedabusing alcohol and was attending a psychologist who treated him for clinical29 Hallwright v Forsyth Barr Ltd [2013] NZEmpC 202, [2013] ERNZ 553.depression. His family circumstances were outlined. The report writer assessedMr Barnes to be at low risk of reoffending, given his lack of prior convictions, and atlow risk of harm to others. A community-based sentence with a rehabilitative focuswas recommended.[42] The District Court was provided with a letter dated February 2018 froma psychiatrist who had seen Mr Barnes once and diagnosed him as having moderatedepression and anxiety.[43] Mr Barnes had undertaken psychotherapy sessions since February 2018. Fourletters with date ranges between March 2019 and March 2020 detailed Mr Barnes'regular attendance at therapy sessions. They described his reliance on pornographyand alcohol, saying he had ceased using both. The psychotherapist describedMr Barnes as committed and motivated in his rehabilitative efforts and said that shehad noted positive changes in him.Events prior to the hearing of the High Court appeal[44] On 26 June 2020, The New Zealand Herald published an article entitled "Topsecret: No conviction for porn 'obsessed' govt manager who planted spy camera ingym". The article said the offender remained working for the government agency butin a more senior role and that the promotion had come after disclosure of the offending.This caused concern to the Council, which then applied to the District Court fora review and variation of the suppression order to allow it to know the identity ofthe offender, the evidence filed in support of the application for a suppression orderand discharge without conviction, and the agent, officer or employee of the Council towhom the offender was alleged to have disclosed the offending.[45] The application was supported by an affidavit of a Council board (the Board)member who had read the article and became suspicious that the offender named inthe article was Mr Barnes. He said: I am concerned that he either told the Court his employer knew ofthe offending or inferred that [the Council] supported his application fordischarge without conviction or name suppression, when to my knowledgethis was not the case I want to ensure public confidence in the public service and that we willdeal appropriately from an employment perspective with senior employeeswho may have committed serious criminal offences.[46] The District Court declined to deal with the application, given the appeal tothe High Court.Material filed in the High Court[47] On 18 September 2020, the Police, as appellant, brought the Council'sapplication to the attention of the High Court. Counsel for the Police noted thatthe Council had been advised of the appeal because, in light of the Supreme Courtdecision in ASG v Hayne, such communication would not constitute publication forthe purpose of s 200(1) of the CPA.30[48] The Police referred to the fact the Council said Mr Barnes had resigned on17 July 2020 but the submissions filed on his behalf in the appeal were predicated onthe position that he was still employed by the Council and his employment would bejeopardised if the appeal were allowed.[49] The High Court issued a Minute, observing that the evidence on behalf ofthe Council "stands in direct contrast" to the information in the submissions filed onbehalf of Mr Barnes dated 14 September 2020 that he was still working as acting CEOof the Council. The Judge requested clarification.[50] Mr Mansfield filed a response on Mr Barnes' behalf. He clarified that it hadnever been part of Mr Barnes' case that he had advised the Council of the charge orthat the Council supported a discharge without conviction. He confirmed thatMr Barnes' case had always been that, if the Council were advised of the offending,Mr Barnes would be required to resign or be dismissed. He emphasised that Mr Barneshad been asked to be the acting CEO when the previous CEO had been stood downand he did so, recognising the need for stability, particularly given the Council's rolein the response to COVID-19. He explained that, as a result of The New ZealandHerald report, Mr Barnes had in fact been identified and continuing in his role became30 ASG v Hayne [2017] NZSC 59, [2017] 1 NZLR 777 at [79]–[80].untenable. He considered he had no option other than to resign, his difficultiesexacerbated by a deterioration in his health as a result of the additional stress.[51] Mr Barnes had intended advising the High Court of his status at the time ofthe appeal hearing "whilst not relevant to the substance of the appeal". Mr Mansfieldemphasised that the appeals were on the basis of the material before the District Courtat the time of the decisions, not what had transpired since. Mr Mansfield advisedthe Court that, if Mr Barnes' current position were considered relevant, then a furtheraffidavit would be provided, which would need to be timetabled. This did not occur.Did the High Court err in entering a conviction rather than remitting the case tothe District Court?[52] There is no denying that the District Court erred in law. No matter wherethe fault lay, its decision overlooked a highly relevant matter, the second SOF, and, asa result, was plainly wrong. Moore J effectively characterised the error as such whenhe said that the District Court relied on "incorrect and incomplete" information.31Mr Barnes challenges what happened next.[53] Two issues emerged in argument before us:(a) Once it became apparent that the District Court Judge had made herdecision on the basis of the first SOF, should the High Court haveallowed the appeal but remitted the matter back to the District Court forreconsideration on the basis of the second SOF?(b) Should an appellate court assess an appeal on the basis ofthe information and facts before the first instance court or should it beable to take into account a change in circumstances?31 High Court judgment, above n 2, at [79].Did the District Court's failure to consider the second SOF mean the case should havebeen remitted to it?[54] Mr Mansfield submitted that, by determining the discharge applicationthe High Court made "in a sense, a first-instance" determination, and deprivedMr Barnes of a sentencing hearing that proceeded on the correct procedural basis witha right of appeal. As the District Court proceeded on an incorrect summary of factswhich "infiltrated everything"32 it was important to "start over".[55] It does not appear that this argument was raised directly before the High Court,which considered only the question of a change in Mr Barnes' personal circumstances.Moore J was not prepared to depart from what he described as the usual course,concluding that the offending was serious and the consequences of a conviction notdisproportionate. He allowed the appeal, entered a conviction and remitted the matterback to the District Court for sentencing.33[56] An appellate court may substitute its view of the merits where the lower courterred in law. It can then confirm the lower court's result and discharge the offender orallow the appeal and enter a conviction.34 It can also remit the matter back to the firstinstance court.35 The High Court decision to enter a conviction was available,appropriate and the usual course of events. For example, in R v Smyth this Courtallowed a Crown appeal against the grant of a discharge without conviction andconcluded:36For the reasons we have given, there was no jurisdiction to dischargeMr Smyth without conviction. Accordingly, it is appropriate that we set thatorder aside and enter a conviction The matter should be remitted tothe District Court for sentencing.[57] The second SOF detailed more serious offending than was described inthe first, there being four separate occasions of offending over a two-week period.That made the likelihood of a discharge without conviction significantly less likely.32 At [79].33 At [115].34 Police v Paki [2014] NZHC 3112 at [19]; and Criminal Procedure Act, s 300(1)(e).35 Criminal Procedure Act, s 300(1)(d).36 R v Smyth, above n 22, at [25]. This approach was followed, for example, in Solicitor-General vMohib [2016] NZHC 1908.We see no error in the High Court deciding to enter a conviction in thesecircumstances, particularly given the other considerations which we now address.Should the High Court have considered updating evidence?[58] The next question is whether, on appeal, the High Court should considerthe situation pertaining at the time of the first instance decision or take into accountsubsequent events.[59] Mr Mansfield said that the High Court took account of material relating toMr Barnes and the Council which came into existence after the District Court decision,and Mr Barnes did not have an adequate opportunity to respond. Remitting the issueback to the District Court would have allowed a reconsideration of all properlyavailable material.[60] This was argued before Moore J. The submission was that, in materialrespects, Mr Barnes' personal circumstances had changed and updated information inrespect of Mr Barnes' health should be before the Court. The Judge rejected thatsubmission, saying that the offending was serious, influenced in part by the level ofpremeditation. He noted that information as to Mr Barnes' mental health and ongoingrehabilitation had been before the District Court and was before him and there was nosuggestion there had been a deterioration of such a magnitude as would justifya discharge without conviction.[61] An appeal against a refusal to grant a discharge is to be treated as a compositeappeal against conviction and sentence.37 The admission of further evidence on appealis treated in the same way as for a conviction appeal (in that it must be fresh, cogentand credible).38 This Court and the High Court have granted leave to adduce furtherevidence in a number of appeals against refusals to grant a discharge. Relevantly, inYoussefi v Police, this Court granted leave for the appellant to adduce further evidenceon appeal in relation to the appellant's re-registration as a doctor.39 In Bailey v Police,37 Jackson v R [2016] NZCA 627, (2016) 28 CRNZ 144 at [6]–[16].38 Lundy v R [2013] UKPC 28, [2014] 2 NZLR 273 at [120].39 Youssefi v Police [2020] NZCA 38 at [9]–[10]. See also Prasad v R [2018] NZCA 537 at [10];Ho v R [2016] NZCA 229 at [5]–[7]; Singh v Police [2020] NZHC 368 at [3]; Pickering v Police[2020] NZHC 116 at [14]–[16]; and Hickey v Police [2013] NZHC 591 at [4]–[5].the High Court granted leave to adduce an updating affidavit explaining new factorswhich had arisen since the sentencing in the District Court: in that case, the refusal ofan entry visa to the United States because of the conviction.40 In Moana v Police,the High Court admitted updating evidence that the appellant had in fact lost his jobfollowing the entry of his conviction, which the District Court was not convincedwould occur.41[62] Similarly, the District Court is entitled to take into account a change incircumstances between the time of a sentence indication and a final decision. Indeed,this is exactly what happened in Mr Barnes' case when he relied on his change ofposition to CEO. There was some suggestion that it would not have been fair toMr Barnes had the District Court Judge changed her mind between the sentenceindication and the time she discharged him without conviction. But, if circumstanceshave changed, a Judge must be able to take that into account. The fact Mr Barnes had,in reliance on the sentence indication, undertaken rehabilitative counselling andcompleted community work would then have been relevant to sentencing inthe usual way.[63] We have considered whether the fact the appeal to the High Court was ona question of law affects that Court's ability to receive further evidence. We aresatisfied it does not. Such an appeal is not included in the provisions governing freshevidence on appeal which applies to an appeal involving conviction, sentence orcontempt.42 However, we are satisfied the High Court has an inherent jurisdictionwhere the interests of justice require the admission of fresh evidence, provided itsatisfies the principles for admission43 and it is clearly relevant to one of the identifiedquestions of law (as is the case in the civil context).44 The test was met in respect ofthe information concerning Mr Barnes and the Council which was put beforethe High Court, as will be apparent as we address the other grounds of appeal.40 Bailey v Police [2015] NZHC 3051 at [22]–[27].41 Moana v Police [2016] NZHC 3174 at [17]–[18].42 Criminal Procedure Act, s 335.43 An approach taken in R v Ratu [2013] NZHC 3085 at [24] in respect of an appeal against a decisionrefusing to make a suppression order.44 See, for example, Banora v Auckland Council [2017] NZHC 1705 at [6]; and Terrace Tower (NZ)Pty Ltd v Queenstown Lakes District Council [2001] 2 NZLR 388 (HC).[64] Furthermore, to ensure Mr Barnes was not in any way prejudiced and that wewere fully appraised of all material information, we requested a further affidavit fromMr Barnes. He was requested to, and did, file a short affidavit responding tothe information from the Council which was before the High Court and updating thisCourt on matters relevant to the assessment of the direct and indirect consequences ofa conviction on him.Did the High Court err in its assessment of the gravity of the offending?[65] Moore J held that the District Court Judge erred when assessing the gravity ofthe offending, given the Judge referred to the first SOF. This resulted in her conclusionthat the offending was an isolated event and failure to consider the premeditationinvolved.45 He referred to the gross intrusion into the privacy of the victims.He considered that the mitigating features were not significant: they concernedMr Barnes' rehabilitative efforts and demonstrations of remorse, which were to beviewed against the fact that Mr Barnes led the District Court to form a false impressionof him and the offending. He referred to the fact Mr Barnes had told the author ofthe pre-sentence report that he had never carried out similar acts in the past, a claimhe repeated in his affidavit. He viewed that as leading the District Court Judge to baseher decision on an inaccurate perception of his offending and therefore decided thatany claim of remorse must be given limited weight.46 The offending, Moore Jconcluded, was "unequivocally serious".47[66] Mr Mansfield emphasised that premeditation was inherent in the offence andsubmitted that the High Court Judge was therefore wrong to place the emphasis he didon it. We disagree. While an element of premeditation is inherent in the offence,Mr Barnes' offending involved a significant measure of premeditation. As Moore Jobserved, Mr Barnes needed to charge and install a camera (in two different changingrooms), then retrieve it and determine which recordings to keep and discard. And ofcourse, as the second SOF recorded, there were four separate incidents.4845 High Court judgment, above n 2, at [71]–[76].46 At [80].47 At [81].48 At [74].[67] In his updating affidavit filed in this Court, Mr Barnes sought to clarify whathe has said at various times. In response to the suggestion that his explanations ofthe offending had been misleading, he said:I never said it all happened on the one day. But it all happened in one confinedperiod as later identified in the amended charge, [68] But as detailed above, Mr Barnes' affidavit evidence created the distinctimpression this was a single isolated incident only. It does not appear that there wasany effort to correct that impression following the amended charge and second SOF.There was no second affidavit. In the circumstances, we find it unsurprising thatthe High Court concluded Mr Barnes had been economical with the truth in relationto the offending, something which also occurred in relation to his employmentsituation, as we address below.[69] Mr Mansfield then pointed out that the gravity of offending includesaggravating and mitigating factors. He referred to Mr Barnes being a first-timeoffender who has enjoyed a successful career. He has had a chronic addiction topornography following an adverse medical diagnosis. Mr Mansfield suggested thatMoore J was incorrect to consider these factors of little significance. Since pleadingguilty, Mr Barnes had sought help from professionals, maintained his rehabilitativeefforts for almost two years and had made progress. He had also completed almost200 hours of community work.[70] The cases referred to by Mr Mansfield are of little assistance. Northover vPolice involved a different type of offending, being assault of a child in the context ofraising a troubled mokopuna when Mr Northover thought he was acting in the bestinterests of the child.49 There was no premeditation and there was extreme andgenuine remorse. The only similarity was in the steps to address the offending.In Mathieson v Police, the offending was also family violence, which lackedthe repetitious and premeditated nature of the present offending.50 The remorse wasgenuine and there was proactive rehabilitation at an early stage.49 Northover v Police [2020] NZHC 167.50 Mathieson v Police [2019] NZCA 406.[71] The District Court erred (apparently through no fault of the Judge) whenassessing the gravity of the offending with reference to the first SOF. That setthe foundation for the assessment of the overall gravity of the offending as the Judgeviewed it as an isolated event, paying little if any heed to premeditation. The offendingwas clearly more than "moderately serious", as the District Court concluded.51The High Court based its decision on the correct facts. It did consider mitigatingfactors, but concluded they were not significant enough to impact the gravity ofthe offending. We agree with that assessment. The offending was undoubtedlyserious.Did the High Court err in its assessment of the consequences of a conviction?[72] As to the consequences of a conviction, the High Court held the District Courterred in concluding that Mr Barnes would lose his job and that the Council's ability toperform its role in the wake of the COVID-19 pandemic would be compromised, inthe absence of evidence on these matters. The Judge noted Mr Barnes did not informthe Council and indeed took considerable steps to conceal the offending from it, inbreach of his contractual obligations.52 The recent evidence was that the Council didnot support suppression of Mr Barnes' name.53 The Judge held that the consequences,of reputational damage and damage to Mr Barnes' family relationships, financialposition and employment were consequences of the offending, not of a conviction.54[73] In Mr Mansfield's submission, Moore J was incorrect to conclude there was noevidence as to the adverse consequences on Mr Barnes' employment at the Council.55He pointed to the affidavits from Mr Barnes and the employment lawyer. A lack ofevidence from the employer as to adverse consequences on his employment is nota requirement.5651 District Court judgment, above n 1, at [33].52 High Court judgment, above n 2, at [83]–[84].53 At [85].54 At [86].55 At [82].56 Mr Mansfield cited Mathieson v Police, above n 50, at [18]. More precisely, that case held that"[e]vidence is normally required, but it is a matter for a court as to whether what is available issufficient. The difficulties of obtaining evidence from a current employer may mean judicialnotice of facts may be appropriate", citing R v Taulapapa, above n 22, at [41]–[46].[74] Mr Mansfield said Moore J drew too heavily on Mr Barnes' employmentcontract with the Council, in relation to Mr Barnes' obligation to disclose hisoffending. Mr Mansfield cited parts of the following from Mathieson v Police:57[19] We consider that it is important in the present case not to over analysethe employment contract, and whether a termination process is triggered bya charge or a conviction. What can be said is that the contract providesevidence that the employer considers an employee's engagement withthe criminal justice system as a defendant is relevant to their job. There isan obvious risk it will lead to a review of the employment. We consider it canbe fairly inferred that within this process a conviction will be seen as moresignificant than a charge. Thus, there is a real and appreciable risk thata conviction will impact on Mr Mathieson's employment status. Beyond thatwe cannot go, but in these situations, courts usually cannot say more.[75] Added to this, Mr Mansfield said that the High Court did not considera conviction would be a "black mark" on someone with a clean record,58 at Mr Barnes'age and stage in life, and did not consider Mr Barnes' future employment prospects.The latter was considered by the High Court to be a consequence of Mr Barnes'conduct; however, Mr Mansfield said, having a conviction would create issues inseeking future employment.[76] We consider Moore J took an orthodox and correct approach in distinguishingbetween the consequences of a conviction and those of the offending itself. InR v Smyth, a conviction would have created difficulties to meet a proper person testwhen Mr Smyth was renewing his skipper certificate.59 This Court held there wasa statutory duty to report the underlying conduct, and therefore the difficulties arosefrom the conduct, rather than the conviction.60 In Heynen v R, Mr Heynen's particularemployment did not distinguish between charges and convictions, thereforethe consequence of a conviction on employment was "materially reduced".61[77] We also do not consider Moore J over-analysed Mr Barnes' employmentcontract. His obligation to inform his employer of his conduct was relevant, whetheror not a conviction followed.57 Mathieson v Police, above n 50.58 DC (CA47/2013) v R, above n 26, at [44].59 R v Smyth, above n 22.60 At [21]–[22].61 Heynen v R [2018] NZCA 123 at [19].[78] Although the fact Mr Barnes was in a CEO role was before the District Court,it is not clear whether his employment contract as CEO was. Certainly, there was noup to date affidavit evidence from the specialist employment lawyer commenting onthe new contract as there was in 2018 when Mr Barnes was general manager.[79] In his updating affidavit filed in this Court, Mr Barnes clarified the positionregarding his CEO employment contract dated 1 June 2020. He said he did not takeadvice on the contract or whether it changed his position and he did not believe it did.He did not consider that his admitted conduct was serious misconduct as defined bythe contract.[80] We consider that view somewhat surprising. Clause 11.2 of the contractprovides:11.2 Removal from office on the basis of misconductThe Board may, in the event of serious misconduct by the ChiefExecutive and after considering the Chief Executive's explanation,remove the Chief Executive from office by giving such notice (if any)to the Chief Executive as the Board considers appropriate.11.2.1 For the purposes of this clause "serious misconduct" shallinclude, but is not limited to:(b) the commission of any offence involving dishonestyor any offence for which the offender may beproceeded against by way of indictment;(d) any situation where the Chief Executive behaves ina manner likely to bring the Chief Executive,the Board or the entity into disrepute.[81] Mr Barnes did not foresee any issues which could cause embarrassment foreither himself or the Council. He did not believe his offending behaviour was caughtby cl 11.2.1(b) because the reference to "indictment" is "how more serious offendingused to be prosecuted, but no longer applies". It is difficult to see how that positioncan be seriously argued but, in any event, in our view the matter is conclusivelycaptured by cl 11.2.1(d), which refers to behaviour likely to bring the CEO, Board orthe Council into disrepute — it is not limited to a conviction.[82] Mr Barnes confirmed that he did not advise the Council of the offending,reiterating that to do so would have resulted in his dismissal. Mr Barnes explainedthat when the Board made enquiry of him following The New Zealand Herald article,he did not consider he was required to admit or acknowledge the offending and so hereplied neither denying nor confirming it. As the rumours persisted, he felt he had nooption other than to resign.[83] Mr Barnes reiterated his position in respect of his employment, saying: my offending had nothing to do with my work or the performance of myrole. If it was not identified, then I could perform my role and I considerI could not and did not bring [the Council] into disrepute.[84] Having lost his job, Mr Barnes has lost his annual salary of $250,000 as wellas his reputation, which he said will be made all the worse if there is publicity abouthis offending. He considers himself effectively unemployable at the age of 65 if thereis a conviction and/or publicity, saying he will not be able credibly to apply for anymid-level or senior role in any organisation. He will need to considerself-employment, although questioned how realistic this is if there is publicity.[85] Mr Barnes said that his loss of salary means the family will not be able tocontinue meeting the mortgage on their home, they will be required to downsize intoa rental property and draw from any equity they derive from the sale. He said:It is not too dramatic to say, my life as I now know it, professional andpersonal, is over. I am being required to completely start again, with it seemslittle realistic option that anyone in my shoes could do so. Also with little tono understanding or recognition of my otherwise entire professional career ofpublic service and an unblemished record to date.[86] Mr Barnes also addressed the impact on his wife. She has a senior well-paidrole but, according to Mr Barnes, considers it will be untenable for her to continue init and she will be obliged to resign. This will obviously impact the family financially.He described his wife as distraught at the thought of the potential impact on her career.Notably, there was no affidavit evidence from Mr Barnes' wife in support of thesestatements.[87] The s 107 test rests on the distinction between conviction and offending:the consequences of the conviction being measured against the gravity ofthe offending. This Court, in R v Taulapapa, conducted an incomplete survey of casesin the context of considering the consequences of conviction for young people. Someof its observations are pertinent. For example, the Court noted the following:62(a) A conviction may affect a person's career, but that consequence mustnormally yield to the employer's right to know.(b) The consequence may be severe if employers are unwilling to lookbehind the conviction to consider the person's merits and that reactionis unfair to the offender in the sense that the conviction itself ought notto exclude them from the career or job concerned. Such risk may arisewhere the conviction speaks to character or records a serious offencebut does not fairly reflect the offender's character or culpability.63[88] In our view, the High Court was right in its assessment of the employmentconsequences for Mr Barnes for the following reasons:(a) The District Court overlooked the Council's right to know of this levelof offending by a senior employee. This was heightened by Mr Barnes'promotion to CEO. The District Court then overlooked (because itappears it was not provided) Mr Barnes' employment contract as CEO,which made it plain that the offending itself would have justified hisdismissal.62 R v Taulapapa, above n 22, at [42].63 DC (CA47/2013) v R, above n 26, at [44]; Brown v R [2012] NZCA 197, at [31]; and Edwards vR [2015] NZCA 583 at [18].(b) The District Court drew conclusions without evidence about the needto maintain the integrity of the Council, its role in COVID-19 andthe need for Mr Barnes to remain in the role of CEO despitethe offending.64 This implicitly involved assumptions about what wasbest for the Council.(c) The result of this approach led to the Court being in effect complicit inconcealing the offending from the Council — a matter of which it wasentitled to be informed. This was in the context of an employmentlawyer's opinion that, if the Council became aware of Mr Barnes'offending, even as general manager it would have constituted seriousmisconduct warranting dismissal. The CEO form of contract removesany doubt.[89] In short, it was not for Mr Barnes or the District Court to decide to withholdthe fact of offending of this nature from the Council, given Mr Barnes' position inthe Council and his contractual obligations. Furthermore, it was not for Mr Barnes orthe District Court to decide in effect that it was in the Council's best interests that heremain as an employee, despite his offending.[90] The updating information before us focuses on Mr Barnes' position now thathe has resigned from the Council. We do not doubt that a conviction (and loss of namesuppression) will have adverse consequences on his future employment (andself-employment) prospects. His bleak prospects are evident. That is the consequenceof his offending. And, as serious offending, it is a matter that should not be hidden bythe lack of a conviction.[91] Mr Barnes' wife has a good job and, while she will undoubtedly faceembarrassment from Mr Barnes' conviction and any consequential publicity, we arenot persuaded she will be forced to resign from her position. And, as we haveobserved, there is no evidence from her to that effect.64 Although the District Court Judge simply listed "[l]oss of employment" in her identification ofthe consequences of a conviction, these considerations clearly formed part of her reasoning, as herdiscussion of the consequences reveals: see District Court judgment, above n 1, at [45].Did the High Court err in its proportionality assessment?[92] The High Court Judge held that the proportionality assessment favouredconviction. He considered and distinguished cases to which he was referred, notingin particular that none related to a mature professional man. He said:65[94] In any event, I have real reservations because a discharge withoutconviction will inevitably mean any prospective employer will be deniedknowledge of his offending. Any role Mr Barnes will apply for willnecessarily be a senior one carrying a high level of responsibility. Anyprospective employer will owe duties to its clients, staff and colleagues. Theycannot discharge those duties if they are left in the dark.[95] Given the seriousness and nature of the offending, to keep that secretfrom those considering engaging Mr Barnes is simply wrong and unfair. Theyhave a right to know of the offending.[93] After emphasising that offending of a sexual nature does not fall into a separatecategory for discharge purposes, Moore J observed that it is always taken seriously,even when at a low level, and that there is a clear public interest in this type ofoffending being discouraged.[94] Relying on his submission that the offending was less grave and theconsequences more serious than as assessed by Moore J, in Mr Mansfield'ssubmission, the latter outweighed the former.[95] We agree with Moore J that the proportionality assessment favoured convictionand still does, despite Mr Barnes having lost his job. None of the recent cases, wherecourts discharged defendants due to the consequences of a conviction on their careers,assist Mr Barnes.66 Mr Barnes' seniority in his professional career and the seriousnessof the offending distinguish them. There was no error in the proportionalityassessment, which is not changed by the fact Mr Barnes has now resigned.65 High Court judgment, above n 2.66 At [88]–[93], referencing R v Taulapapa above n 22; Puriri v Police [2018] NZHC 1682;Worthington v R [2020] NZHC 377; Hammond v Police [2019] NZHC 2452; and Doak v R [2020]NZHC 1521.Name suppression[96] Name suppression requires a two-stage test. The first is the threshold test unders 200(2) of the CPA. Mr Barnes relies on s 200(2)(a): that publication would causehim extreme hardship. The threshold for extreme hardship is "very high".67 Any suchhardship must go beyond the "ordinary associated consequences" of a defendant'sname being published.68[97] The second stage is a discretionary assessment. The open justice principle isconsidered at this stage and should yield only when the balance "clearly favour[s]"suppression.69[98] Mr Mansfield conceded in the High Court, as he did before us, that the issue isinextricably connected to the determination of the conviction appeal.[99] Moore J held that the District Court erred in finding that the threshold ofextreme hardship was made out and in failing to address the discretionary step.70He observed that adverse effects on a person's career, while unfortunate, arethe natural and ordinary consequences of a conviction and that the courts must "becareful to avoid creating a special echelon of privileged persons in the community whowill enjoy suppression where their less fortunate compatriots would not".71He referred to the fact that the primary ground advanced in support of namesuppression on which the District Court appeared to have relied was the assumptionthat the Court should obscure the offending for the Council's reputational sake.Of course, by this stage it was apparent that the Council did not seek namesuppression, nor support the continued suppression of Mr Barnes' name.[100] Moore J was of the view that knowledge of the fact a high-ranking publicservant had committed this type of offending was clearly in the public interest.He acknowledged the publication would be embarrassing and distressing for67 Robertson v Police [2015] NZCA 7 at [48].68 At [49].69 D (CA443/2015) v Police [2015] NZCA 541, (2015) 27 CRNZ 614 at [12], citing Lewis v Wilson& Horton Ltd [2000] 3 NZLR 546 (CA) at [43].70 High Court judgment, above n 2, at [101].71 At [101], quoting P v R HC Auckland T167/96, 17 July 1996 at 4.Mr Barnes and his family but noted that is not the test. He also took into account thatthe one of the victims' views before him strongly favoured publication. He quashedthe order for permanent name suppression.[101] NZME Publishing Ltd and RNZ were granted leave by this Court to appearand be heard on the issue of name suppression. Their submissions endorsed thosemade on behalf of the respondent in relation to name suppression and, in particular,that the issue of Mr Barnes' employment with the Council is now moot.[102] Mr Barnes does not meet the extreme hardship threshold. The adverseconsequences of his job loss and adverse consequences for his job prospects flow fromthe offending, not the publication of his name. And, even though the second stage ofthe test is not engaged, the principle of open justice clearly favours publication inthe circumstances.Result[103] Leave to appeal is granted.[104] The appeal is dismissed.[105] Interim suppression of the appellant's name, address, occupation andidentifying particulars continues for ten working days from the date of this judgment,but thereafter lapses unless renewed by further order. The order for suppression of thename of the gymnasium where the offending occurred, made in the District Court,remains in force.72Solicitors:Crown Law Office, Wellington for Respondent72 District Court judgment, above n 1, at [73].