R v NEW ZEALAND POLICE [2019] NZHC 2901

R v NEW ZEALAND POLICE [2019] NZHC 2901 [7 November 2019]ORDER PROHIBITING PUBLICATION OF NAME, ADDRESS,OCCUPATION OR IDENTIFYING PARTICULARS OF APPELLANT UNDERS 292 OF THE CRIMINAL PROCEDURE ACT 2011UNTIL 5 PM THURSDAY 5 DECEMBER 2019 (OR UNTIL LEAVE FOR AFURTHER APPEAL IS DETERMINED IF SOUGHT BY THEN).SEE PARAGRAPH [69] ANDhttp://www.legislation.govt.nz/act/public/2011/0081/latest/DLM3360346.htmlIN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2015-404-336[2019] NZHC 2901BETWEEN RAppellantAND NEW ZEALAND POLICERespondentHearing: 25 June 2019Appearances: D P H Jones QC for the appellantR M A McCoubrey for the respondentJudgment: 7 November 2019JUDGMENT OF PALMER JThe judgment was delivered by me on Thursday 7 November 2019 at 3.00pmRegistrar/Deputy RegistrarCounsel/Solicitors:D P H Jones QC, AucklandDominion Law, AucklandMeredith Connell, AucklandSummary[1] In October 2015, Dr R was convicted and sentenced in the District Court fortwo charges of doing an indecent act with intent to offend, by exposing his erect penisand masturbating, on two separate occasions, in full view of a female jogger on MtEden, Auckland. This followed other similar offending by Dr R. The District Courtdeclined his application for name suppression.1 Dr R was subject to disciplinarymeasures by the Health Practitioners Disciplinary Tribunal which also declined namesuppression. That decision was upheld on appeal. Consistent with the rule of law, Iconsider the merits of the application on appeal, though the result would be the sameif I considered it as the "exercise of discretion".[2] I dismiss Dr R's appeal against the District Court's refusal to grant namesuppression in relation to his criminal offending. Although he is not likely to bewithout any employment prospects at all, I accept he is likely to experience hardshipas a consequence of his offending. He will likely lose significant career options, atleast for several years, that were previously open to him. That is because it would notbe unexpected for patients to object to being treated by a doctor who has repeatedlyengaged in criminally indecent behaviour by masturbating in public. But such a likelyloss of career options for a doctor is one of the normal consequences to be expectedof such offending. The natural consequences of criminal behaviour inconsistent withprofessional obligations include professional consequences. I do not consider thatconstitutes "extreme hardship" justifying name suppression under s 200 of theCriminal Procedure Act 2011 (the Act).[3] If I am found to be wrong about that, I weigh the public interest considerationsfavouring publication against the considerations favouring suppression. In addition tothe principle of open justice and the right to freedom of expression, the offending herewas serious and the public interest includes the public's right to make an informeddecision about their choice of medical practitioner, knowing the character of thosethey entrust with their personal health and wellbeing. Against that is the hardshiplikely to be faced by Dr R, the fact that the Police do not now oppose name1 I follow the Court of Appeal's mode of anonymisation of the applicant as Dr R which is notnecessarily an initial of his. I anonymise his name in this judgment on an interim basis, only inorder to preserve his right to seek to appeal.suppression, and that the victim does not care about name suppression. I consider thepublic interest in publication outweighs the public interest in suppression, by somemargin.[4] Neither does the evidence sustain Dr R's claims that his family members wouldsuffer undue or extreme hardship or that their names should be suppressed, or that hisname should be suppressed for that reason. I dismiss the appeal. Because Dr Rindicated he would seek to appeal my unfavourable decision further, I continue hisinterim name suppression for that purpose, and for the necessary time, only. Despitethis proceeding being unduly long already, to do otherwise would deprive him of hislawful opportunity to seek leave to appeal further.What happened?Offending[5] In 2003, Dr R was convicted of offensive behaviour. He was fined $125 andhad to pay court costs. I do not have further information about this offending. Dr Rsubsequently qualified as a doctor and got a job at a hospital.[6] On 8 June 2013 Dr R stopped his car on Mt Eden Road at 8.40 am in front ofa young woman and masturbated in front of her while still in the car. He subsequentlypulled over in front of her again, further up the road, but desisted on the advice of apasser-by. He admitted the offending and, in July 2013, was given diversion. He wasapparently given interim name suppression. He informed the Medical Council of theprosecution. He received counselling and told his immediate work superiors.[7] In September 2013, Dr R then faced two charges of doing an indecent act withintent to offend around the same time as the earlier offending. Each charge related tohim exposing his erect penis and masturbating in full view of a woman jogging in theMt Eden Domain on afternoons between 1 and 8 June and on 24 August 2013. Ithappened to be the same woman on each occasion though that was thought to becoincidental. When these allegations arose, Dr R denied them. In September 2013,according to his evidence, Dr R was "stood down" or "suspended" from his job.2There was media attention, despite him having interim name suppression. He returnedto work.Dr R's circumstances[8] After losing his High Court conviction appeal, Dr R's evidence is that he wasforced to resign his job in May 2016.3 He has not worked as a doctor since. He didsome labouring work. He says he was denied a position as a medical research assistanton disclosing his criminal history, given the possibility his name suppression wouldlapse. However, he was invited to undertake further study and was awarded afellowship, subject to Human Resources approval. Dr R's evidence is that approvalwas not forthcoming because of the risk of damage to the tertiary educationinstitution's reputation should name suppression be lifted.4 He obtained a salary froma private source so that he could commence his studies.[9] Dr R's evidence is that no District Health Board (DHB) will hire him with thepotential of name suppression being dropped.5 He says that prospect greatly restrictshim in his day to day research. He says losing name suppression would mean "I wouldhave no employment prospects as a clinical doctor or as an academic employed by auniversity".6 He says that, without name suppression, he would not be employable byany DHB, which is his only option for employment as a doctor because he has not yetcompleted or applied for specialist training.7 And he says he would not be acceptedfor training in the speciality of surgery either. Effectively, he says losing namesuppression would end his career in medicine and medical research and would punishhim far beyond the gravity of the offending.[10] Mr Patrick Alley, Clinical Director of Surgery at Ormiston Hospital, providedan affidavit in support of Dr R's 2016 appeal.8 Mr Alley expressed his confidencethat, if name suppression could continue, Dr R would be able to function as an2 Affidavit of Dr R, 6 September 2016, at [7]; Affidavit of Dr R, 6 June 2019, at [4].3 Affidavit of Dr R, 6 June 2019, at [5].4 At [13].5 At [17].6 At [20].7 At [21]–[22].8 Affidavit of Patrick Alley, 5 September 2016.effective participant in the delivery of specialist surgical care.9 Mr Alley consideredthat the lifting of name suppression "would materially and adversely affect [Dr R's]chances of employment in any area of healthcare as a doctor" and Mr Alley would"confidently predict no authority would consider him for employment".10[11] Dr R says his mother would have to leave her job if his name suppression isdropped and is unlikely to get another job easily. He also says publication of hisidentity would make his wife's job untenable, her professional judgement would bequestioned, trust in her jeopardised and her job would be untenable on an emotionallevel. Before the Tribunal, Dr R produced a letter from his mother's managerexpressing the opinion her role and work would become untenable due to others'perceptions and potential loss of trust and confidence in her. He also produced beforethe Tribunal a letter from a senior manager at his wife's workplace, expressing concernthat there is a real risk publication of Dr R's convictions would limit his wife's abilityto progress in her career and suggesting her role would be become untenable and leadto questioning of her judgement.[12] Dr R also says his very young daughter will undoubtedly suffer greatly. Dr Rsays he is tormented most nights with nightmares about losing name suppression andhas suffered "immense trauma" from being falsely accused and convicted which couldonly worsen if he were to lose name suppression. He is on medication. He estimateshis legal fees, fines, costs and lost income arising from his criminal and disciplinaryproceedings has been over $500,000.[13] The Police have obtained the complainant's views about the potentialsuppression of Dr R's name which are:I do not care, I am over it. If he wants name suppression he can have namesuppression. He got a conviction, I do not care about his name suppression.9 At [5].10 At [6]–[7].District Court decisions and appeals[14] On 4 September 2015, in the Auckland District Court, Judge R G Ronaynefound Dr R guilty of the two charges after a judge-alone trial.11 The Judge found DrR to be an untruthful witness and rejected his evidence.12 Dr R was again stood downfrom his job. He still denies this offending.[15] On 21 October 2015, Judge Ronayne sentenced Dr R for the two charges to120 hours community work and payment of $1,000 as emotional harm reparations.13The Judge considered aggravating factors were: Dr R offended in a pre-meditated andplanned way; he offended twice; it was repetitive behaviour akin to offending whilethe subject of a sentence; it occurred in a public place where the public expects safetyand proper standards of behaviour by others; there was an effect on the victim; and theact had a moderately high level of indecency.14 The victim was shocked, deeplyoffended, disgusted and subsequently felt unsafe and frightened. In terms ofmitigating factors, the Judge took into account the support of Dr R by his friends andfamily.15 The Judge said this about name suppression:16While publication of your name will be significant for you I do not accept thatthe test of extreme hardship is met. It is a difficult test to meet and as I said atthe outcome, the impact on your employment is what might be expected. TheCourts need to be careful to avoid creating a special echelon of privilegedpersons in the community who will enjoy suppression where their lessfortunate compatriots would not. Professional status does not set you apart inany way that justifies suppression. There is a presumption in favour ofpublication and publication of name is also part of the penal process.I am assisted by comments at the High Court in Beig v New Zealand Police, adecision of Venning J refusing name suppression for a medical practitionercharged with the offence of male assaults female. Accordingly, suppressionis declined.[16] Because Dr R indicated his intention to appeal, Judge Ronayne ordered interimsuppression of Dr R's name and identifying particulars.11 New Zealand Police v R [2015] NZDC 16528.12 At [110].13 R v R [2015] NZDC 20997.14 At [15]-[20].15 At [21].16 At [27]-[28].[17] On 24 March 2016, in the Auckland High Court, Asher J dismissed Dr R'sappeal against conviction but adjourned the appeal against name suppression (andcontinued the suppression on an interim basis), pending Dr R's application for leaveto appeal to the Court of Appeal.17 Asher J said the "principle of open justice requiresthat this not be delayed".18 But, ironically, there has been a lengthy procedural historysince then. This judgment represents the substantive disposition of the namesuppression appeal proceeding in the High Court, adjourned by Asher J over three anda half years ago.[18] On 23 August 2016, the Court of Appeal declined Dr R's application for leaveto bring a second appeal against conviction.19 The Court considered the grounds ofappeal substantially reiterated those before Asher J, which the Judge had fully andproperly addressed, and nothing new was raised.20 The Court continued suppressionon an interim basis.[19] The appeal against the District Court's name suppression decision in the HighCourt was then "reactivated". On 25 October 2016, Heath J adjourned it again andcontinued the interim suppression orders. He considered it ought to be determinedafter the completion of disciplinary proceedings against Dr R before the HealthPractitioners Disciplinary Tribunal (the Tribunal):21I say that because the specialist nature of that Tribunal is likely to be able toconsider in greater context the likely impact of a direction suppressing [DrR]'s name on patients with whom he may come into contact. The consideredviews of the Tribunal would be helpful to the Court on that particular topic.Tribunal decision and appeals[20] On 18 May 2017, the Tribunal: censured Dr R; suspended his registration fortwo years; ordered him to pay costs; and imposed conditions on his resuming practice,for two further years, that he inform any potential employer of the proceedings, haveat least one other person present at all times during any interaction with a femalepatient and provide the Medical Council with six-monthly psychologists' reports17 R v New Zealand Police [2016] NZHC 523; Minute No 2 of Asher J, 14 April 2016.18 At [92].19 R (CA176/2016) v New Zealand Police [2016] NZCA 403.20 At [27].21 Minute of Heath J, 25 October 2016.regarding his progress.22 In relation to name suppression the Tribunal considered, onthe basis of the Court of Appeal's decision in Y v Attorney-General, that there is apresumption in all civil proceedings, reinforced by its own legislation,23 in favour ofopenness.24 Before departing from that, the Tribunal considered it must be satisfied,having regard to the public interest and the interests of any person, that it is desirableto suppress.25[21] The Tribunal heard evidence from two referees, Mr Stewart and ProfessorWindsor, that if the Tribunal were not to suppress Dr R's name, that would "present aserious threat to his career" and his prospects of "being able to continue his trainingand become a surgeon were vanishingly small".26 Aspects of this evidence troubledthe Tribunal.27 It considered it was not able to conclude there is no risk of reoffendingand, accordingly:28In those circumstances, the Tribunal takes the view that the members of thepublic and in particular potential users of his services in the future, are entitledto make their own judgment as to whether or not to consult the Practitioner,having regard to his offending. In the Tribunal's judgment, the only practicalway of ensuring that members of the public are able effectively to exercisesuch a right is for the Tribunal's decision to be published in full.That is the public interest involved here, as we see it.[22] Professor Windsor's response was that the public are not offered a choice ofspecialists, are not discerning users of medical professional services and it wasappropriate for the Dr R's background to be made known to potential employers andprofessional colleagues who, unlike the public, were able properly to assess itssignificance.29 Unsurprisingly, the Tribunal rejected that reasoning on the basis that,if the Tribunal approached the issue of suppression in this way, "the public would beentitled to consider that something approaching professional hubris had resulted in22 Professional Conduct Committee appointed by the Medical Council of New Zealand v R [2017]NZHPDT 889 at [143].23 Health Practitioners Competence Assurance Act 2003, s 95.24 At [114], citing Y v Attorney-General [2016] NZCA 474.25 At [106] and [114].26 At [122].27 At [123].28 At [126]–[128].29 At [129].their interests being overlooked".30 Heath J was right; the Tribunal's decision ishelpful. It said:[134] This is a case in which the common law principle of openness in theadministration of justice, reinforced by the principles of freedom of expressioncaptured in s 14 of the New Zealand Bill of Rights Act, is of particularsignificance. We take the view that members of the public are entitled to theopportunity to make their own informed judgment about whether to engagethis Practitioner.[135] It was suggested during the course of the hearing that one way ofachieving this might be to impose a condition on the Practitioner obliging himto confirm to any members of the public who asked him if he was thepractitioner in this case. The Tribunal does not regard that as a satisfactorysafeguard, as it would impose the responsibility on potential patients to askthe question.[136] We are reinforced in our view by the very nature of the Practitioner'smisconduct. His misconduct involved the most public of acts. It wasconducted in a public environment, and directed at a member of the public. Itis ironic that, having chosen to act publicly in this way, the Practitioner nowcomes before the Tribunal and asks for an order which would keep his nameout of the public arena.[137] Further, the criminal proceedings have already attracted a degree ofpublicity. The Practitioner's name has been supressed, but that publicitydescribed him as a professional man and gave details of the nature of the threeincidents, identified them as having occurred in the Mt Eden Domain. Werethe Tribunal to make the order sought by the Practitioner, the suppressionorder itself would no doubt attract publicity and of course it would becomeobvious that the Practitioner was a medical practitioner. As a result, allAuckland-based male doctors would come under suspicion.[138] Finally, in the circumstances of this particular case, having regard to thePractitioner's conviction on the charges in the second criminal proceeding,and his continued denial of guilt, the Tribunal takes the view that suppressinghis name would not assist his rehabilitation, but would stand in the way of himaccepting his misconduct and putting it behind him.[139] Mr Waalkens helpfully referred us to a number of previous Tribunaldecisions, and appeals from those decisions, which touch on the issue of namesuppression, all of which we have considered. They do not persuade us thatthe approach we propose taking to the Practitioner's application is unsound.[140] We are conscious, as Mr Waalkens pressed upon us on behalf of thePractitioner, that the publication of the Tribunal's decision including his namewill be humiliating and embarrassing for him. But that is a consequence ofhis own very public actions, and that in itself does not persuade us that it isdesirable to make the order sought. We are conscious also that thePractitioner's relatives and wider family, most particularly his wife andparents, may also suffer some personal embarrassment. Additionally, therewas some evidence – or at least an assertion – that one of his relatives may30 At [133].suffer some professional embarrassment. Those outcomes are of courseregrettable, but once again are a direct result of the Practitioner's actions.[141] This is not a case in which the Tribunal is satisfied it is desirable to makethe order sought. In the end, our judgment is that the public interest in thepublication of the Tribunal's decision, including the Practitioner's name,which will at least give members of the public the opportunity to make aninformed decision about whether or not to engage the Practitioner, outweigh,by some margin, the Practitioner's interests, and the interests of his family, insuppressing his name.[142] The Tribunal is not prepared to grant the order sought. As requested,we will make an order prohibiting the publication of any report of this decisionfor 20 working days in order to enable him to take advice, file an appeal andseek an order for interim suppression pending the disposal of that appeal.[23] Dr R appealed the Tribunal's decision on penalty and name suppression to theHigh Court. The Professional Conduct Committee which brought the charges againsthim cross-appealed on penalty. On 1 November 2017, Gordon J dismissed the cross-appeal and upheld Dr R's appeal on penalty, reducing his period of suspension to oneyear and nine months and varying the condition from any "interaction" to any"consultation" with a female patient.31[24] Gordon J rejected the appeal in relation to name suppression, holding:(a) The Tribunal's finding, that the risk of harm to Dr R's family was inthe nature of professional embarrassment, was available on theevidence and she would come to a similar conclusion.32 She held theTribunal did not make an error of law in holding the effects ofpublication on Dr R's family are a direct result of his actions.33(b) The Tribunal did fail to take into account a relevant consideration infailing to consider the complainant's views in its decision-making, but,if anything, that weighed against Dr R's application and did not affectthe outcome of the application.3431 R v A Professional Conduct Committee [2017] NZHC 2674 at [54], [63] and [68].32 At [93].33 At [96].34 At [100].(c) There was no error of law in the Tribunal's treatment of the evidenceregarding the risk of harm to Dr R's career.35(d) It was open to the Tribunal to characterise Dr R's misconduct as beingserious in nature, as it "demonstrates a lack of self-control and anattitude of sexual entitlement towards the women involved" which aretroubling characteristics in a medical practitioner.36(e) The criticism of the Tribunal's analysis of the public interest, byMr Waalkens QC on Dr R's behalf, was not justified. The publicinterest includes the public's right to make an informed decision abouttheir choice of medical practitioner. That does not mean the publicinterest will require publication in every case but that the public interestis a relevant factor that must be weighed.37 Gordon J agreed with theTribunal that Dr R's offer to tell patients of his convictions if asked wasnot a satisfactory safeguard.38(f) The concern expressed by the Tribunal, about other medicalprofessionals coming under suspicion if Dr R's name were suppressed,is less pressing where the applicant lives or practises in a populous area.But it is not irrelevant.39 And the Tribunal did not err in refusing tosuppress the location of the offending.40(g) The Tribunal applied the correct legal test, and its decision was notplainly wrong, with Gordon J concluding:41Publication of [Dr R]'s name in connection with the offending willcause humiliation and embarrassment to [Dr R] and his family. Hismother and wife may additionally suffer some embarrassment in theirprofessional lives. However, those consequences are not in my viewsufficient to overcome the strong public interest in publication. Thatpublic interest includes the interest in preserving the openness and35 At [103].36 At [109].37 At [116].38 At [117].39 At [120]–[121].40 At [122].41 At [123].integrity of disciplinary proceedings, as well as the public interest inknowing the character of those whom members of the public entrustwith their personal health and wellbeing. That public interest iselevated in cases such as the present where the medical practitionercontinues to deny his misconduct, giving rise to real questions abouthis prospects of rehabilitation.(h) Interim name suppression would continue, to enable Dr R to appeal tothe Court of Appeal.42[25] Dr R did appeal to the Court of Appeal, with leave, on a point of law about theapproach on appeal to a decision on name suppression. In its judgment of 9 April2019, the Court of Appeal dismissed the appeal.43 The Court recorded that both partiesaccepted that the decision I make in this judgment (subject to any further appeal)would be determinative of suppression both in the criminal context, on appeal fromJudge Ronayne's 2015 decision, and in the disciplinary context, in relation to theTribunal's decision.44 This was said by the Court to be because there would be nopoint in Dr R attempting to overturn the Tribunal's decision if suppression wasdeclined under the test in the criminal jurisdiction and, alternatively, if suppressionwas granted in the criminal jurisdiction, that would overtake the Tribunal's decision.45On that basis, the Court of Appeal considered the point of law to be moot, declined toanswer it, and dismissed the appeal.46Relevant lawLaw of name suppression in a criminal case[26] Name suppression is now governed by ss 200 and 202 of the CriminalProcedure Act 2011 (the Act). The leading case concerning the predecessor to s 200was the Court of Appeal's decision in Lewis v Wilson & Horton Ltd.47 It recognisedthat "the starting point must always be the importance of freedom of speech recognisedby s 14 of the New Zealand Bill of Rights Act 1990, the importance of open judicial42 At [129].43 R (CA679/2017) v A Professional Conduct Committee of the Medical Council of New Zealand[2019] NZCA 95.44 At [14].45 At [14].46 At [17].47 Lewis v Wilson & Horton Ltd [2000] 3 NZLR 546 (CA).proceedings, and the right of the media to report Court proceedings", holding therewas a presumption in favour of openness.48 The Court identified the factors to betaken into account in deciding whether the presumption should be displaced asincluding:49• whether the person whose name is suppressed is acquitted orconvicted. If acquitted, the Court may more readily apply thepower to prohibit publication ...• the seriousness of the offending. Where a person is convicted ofa serious crime it will only be in rare cases that name suppressionwill be ordered. Where the charge is "truly trivial", particulardamage caused by publicity may outweigh any real publicinterest;• adverse impact upon the prospects for rehabilitation of a personconvicted;• the public interest in knowing the character of the person seekingname suppression, an interest which has been acknowledged incases involving sexual offending, dishonesty, and drug use;• circumstances personal to the person appearing before the Court,his family, or those who work with him and impact upon financialand professional interests. As it is usual for distress,embarrassment and adverse personal and financial consequencesto attend criminal proceedings, some damage out of the ordinaryand disproportionate to the public interest in open justice in theparticular case is required to displace the presumption in favourof reporting.[43] The Judge must identify and weigh the interests, public and private,which are relevant in the particular case. It will be necessary to confrontthe principle of open justice and on what basis it should yield. And sincethe Judge is required by s 3 to apply the New Zealand Bill of Rights Act1990, it will be necessary for the Judge to consider whether in thecircumstances the order prohibiting publication under s 140 is areasonable limitation upon the s 14 right to receive and impart informationsuch as can be demonstrably justified in a free and democratic society (thetest provided by s 5). Given the congruence of these importantconsiderations, the balance must come down clearly in favour ofsuppression if the prima facie presumption in favour of open reporting isto be overcome.[27] The Court addressed an argument for suppression based on Mr Lewis'sstanding:5048 At [41] (citing R v Liddell [1995] 1 NZLR 538 (CA) at 546-547).49 At [42]–[43] (citations omitted).50 At [68].The standing of the appellant as "an extraordinarily successful businessman,community leader and philanthropist" was not grounds for suppressing hisname in the absence of evidence of special harm to him through publicity. Noharm to the appellant was suggested beyond the submission that his standingwould make media interest in him "undue". That is tantamount to asubmission that successful or prominent members of the community shouldreceive name suppression because there may be media interest in such people.The Court cannot enter into assessment of whether media or public interest isappropriate or "undue". The right to receive and impart information is notlimited in the present context according to qualitative and subjective standardsadopted by the Judge. It is a right to receive information "of any kind in anyform". In cases where some real harm is identified, it may be necessary forthe Judge to decide whether the harm which would be caused isdisproportionate to the public interest in open justice and the freedom toreceive information "of any kind". In such cases it may be necessary for theJudge to weigh the public interest in receiving the particular information. Butin the absence of identified harm from the publicity which clearly extendsbeyond what is normal in such cases, the presumption of public entitlement tothe information prevails. Any other approach risks creating a privilege forthose who are prominent which is not available to others in the communityand imposing censorship on information according to the Court's perceptionof its value.[28] In the report that led to the enactment of the Criminal Procedure Act 2011, theLaw Commission concluded there was a need for greater specificity of the statutorygrounds on which name suppression may be granted, to "reflect the high thresholdrequired by the leading cases, to avoid dilution of the strong presumption in favour ofopen justice, and to provide adequate protection for freedom of expression".51 TheCommission proposed the starting point should be "a strong presumption in favour ofpublication".52 It noted the personal circumstances of a defendant may carry differentweigh at different stages of a trial, noting what amounts to extreme hardship beforethe trial may not be extreme hardship after conviction.53 It recommended thediscretion to suppress be narrowed.54[29] In relation to hardship to a defendant, the Commission considered ordinaryhardship will not be enough but "one can imagine cases in which a convicted personmay suffer extreme hardship from publication of his or her name, out of all proportionto the public interest in open justice in the particular case, especially if the personsuffers from physical or mental ill health".55 It chose not to adopt a test of undue51 Law Commission Suppressing Names and Evidence (NZLC R109, 2009) at [3.6].52 At [3.26].53 At [3.27]–[3.28].54 At [3.29].55 At [3.36].hardship or significant harm out of proportion to the gravity of the alleged offence infavour of "extreme hardship", saying:[3.41] we have come to the view that extreme hardship better describesthe level of hardship that should be required to result from publication of thename of an accused before the court exercises its discretion to suppress. Itmakes it clear that suppression of the name of the accused should beexceptional. Where extreme hardship to an accused would result, the judgemay decide that the harm which would be caused is disproportionate to thepublic interest in open justice and the freedom to receive information.[3.42] However in some cases, where there is a high public interest in openjustice, even extreme hardship may not be sufficient to justify a restriction onpublication, and as the courts have indicated in the past, the circumstances thatwill result in name suppression after a conviction for a serious offence will berare.[30] Where hardship to people connected with a defendant was a factor inapplications for suppression of the name of the accused, the Commissionrecommended the test of extreme hardship should apply.56 But it recommended"undue hardship" as the test for suppression of the names of people connected with adefendant. The Commission considered whether the fact publication might have agreater impact on well-known people should affect suppression decisions, and citedLewis v Wilson & Horton Ltd in saying the fact that someone is well known "is not byitself grounds for name suppression, but nor it is an irrelevant factor".57 It consideredit will only be relevant to extreme hardship and recommended against listing it as aseparate factor, in order to avoid "a risk that this may create a special class, a situationthe courts have rightly tried to avoid".58[31] Sections 200 and 202 provide, relevantly:200 Court may suppress identity of defendant(1) A court may make an order forbidding publication of the name,address, or occupation of a person who is charged with, or convictedor acquitted of, an offence.(2) The court may make an order under subsection (1) only if the court issatisfied that publication would be likely to—56 At [3.44].57 At [3.50].58 At [3.51].(a) cause extreme hardship to the person charged with, orconvicted of, or acquitted of the offence, or any personconnected with that person; or(b) cast suspicion on another person that may cause unduehardship to that person; or(c) cause undue hardship to any victim of the offence; or(d) create a real risk of prejudice to a fair trial; or(e) endanger the safety of any person; or(f) lead to the identification of another person whose name issuppressed by order or by law; or(g) prejudice the maintenance of the law, including theprevention, investigation, and detection of offences; or(h) prejudice the security or defence of New Zealand.(3) The fact that a defendant is well known does not, of itself, mean thatpublication of his or her name will result in extreme hardship for thepurposes of subsection (2)(a).(6) When determining whether to make an order or further order undersubsection (1) that is to have effect permanently, a court must take intoaccount any views of a victim of the offence conveyed in accordancewith section 28 of the Victims' Rights Act 2002.202 Court may suppress identity of witnesses, victims, and connectedpersons(1) A court that is hearing a proceeding in respect of an offence may makean order forbidding publication of the name, address, or occupation ofany person who—(c) is connected with the person who is accused of, orconvicted of, or acquitted of the offence.(2) The court may make an order under subsection (1) only if the court issatisfied that publication would be likely to—(a) cause undue hardship to the connected person; or(b) create a real risk of prejudice to a fair trial; or(c) endanger the safety of any person; or(d) lead to the identification of another person whose name issuppressed by order or by law; or(e) prejudice the maintenance of the law, including theprevention, investigation, and detection of offences; or(f) prejudice the security or defence of New Zealand.(3) Subsection (1) applies whether or not the court has made an orderunder section 200 suppressing the identity of the defendant.(4) An order under subsection (1) suppressing the identity of a connected person may not prevent publication of the name of thedefendant (which may be prohibited only by an order made undersection 200) or the nature of the charge.[32] The substantive points made by the Court of Appeal in Lewis v Wilson &Horton Ltd still apply since enactment of the Act in 2011. But the courts havedetermined that the test in s 200(2) involves two steps:(a) First, the court must consider whether publication would be likely tolead to extreme hardship.59 "Likely" in ss 200(2) and 202(2) has beenheld to mean "a real and appreciable possibility".60 The Court ofAppeal has stated the thresholds of extreme hardship in s 200(2)(a),undue hardship in para (c) and a "real risk" of prejudice in para (d) are"comparative standards":61The adjectives indicate that these are comparative standards.They require that the court compare the consequences ofpublication in the instant case with those that normally attendprosecution. Distress, embarrassment and adverse personaland financial consequences usually attend criminalproceedings, and something out of the ordinary is needed ifthe applicant is to get across the threshold.(b) Second, the court must weigh the competing interests of the applicantand the public, "taking into account such matters as whether theapplicant has been convicted, the seriousness of the offending, theviews of the victims and the public interest in knowing the character ofthe offender".62 In cases turning on s 200(2)(a), relevant considerations59 Robertson v Police [2015] NZCA 7 at [40]-[41].60 Huang v Serious Fraud Office [2017] NZCA 187 at [10].61 D (CA443/2015) v Police [2015] NZCA 541, (2015) 27 CRNZ 614 at [11].62 Robertson v Police, above n 59, at [41].also include "the public's right to freedom of expression, the applicant'syouth and the likely impact publication will have on the applicant'sprospects of rehabilitation, any other circumstances personal to theapplicant, the interest of victims and the interests of other affectedpersons".63 The presumption is of open justice, as recognised in thelegislative history of the provision and emphasised by the Court ofAppeal, and must be considered at this stage.64 The balance must"clearly favour" suppression for it to be granted.65[33] "Extreme hardship", as used in s 200, has been characterised by the Court ofAppeal in Robertson v Police:66[48] As regards the level of hardship required by the phrase "extremehardship", we consider it clear beyond argument that it connotes a very highlevel of hardship. The work "hardship" on its own means "severe suffering orprivation". The addition of the qualifier "undue" in s 200(2)(c) indicates thatsomething more than hardship simple is required, while the word "extreme"in s 200(2)(d) [sic] indicates something more again.[49] An assessment of whether the contended hardship is "extreme" cannottake place in a vacuum. It is self-evidently contextual and in our view mustentail a relative comparison between the contended hardship and theconsequences normally associated with a defendant's name being published.It must be something beyond the ordinary associated consequences.Accordingly, it was in our view no error for Gendall J to take into account, forexample, that the hardship to Mrs Robertson's family was simply a naturalconsequence of her offending. As the Judge put it, the hardship suffered bythe family "simply [did] not fall outside the ordinary experience".[34] "Undue hardship", as used in s 202, has been held to mean "hardship that isgreater than that which will inevitably follow publication" or consequences"disproportionate to consequences that typically result from publication".67[35] In Beig v New Zealand Police, Venning J refused name suppression for amedical practitioner charged with male assaults female.68 He noted, in enacting s 200,Parliament had implicitly accepted the reasoning of previous cases in relation to the63 D (CA443/2015) v Police, above n 61, at [12].64 Robertson v Police, above n 59, at [45]-[47]; D (CA443/2015) v Police, above n 61, at [12].65 D (CA443/2015) v Police, above n 61, at [12].66 Robertson v Police, above n 59, (the reference in [48] to s 200(2)(d) should be to s 200(2)(a)).67 Sansom v R [2018] NZCA 49 at [32]; P (CA265/2019) v R [2019] NZCA 350 at [11].68 Beig v New Zealand Police [2015] NZHC 40.impact on employment of a professional person, encapsulated in the principle that"[o]ne must be careful to avoid creating a special echelon of privileged persons in thecommunity who will enjoy suppression where their less fortunate compatriots wouldnot".69Law of appeal of name suppression decisions[36] Under s 283 of the Act, Dr R has a right of appeal against the District Court'sdecision on name suppression. Under s 287, I must determine the appeal byconfirming, varying or setting aside the decision or making any other order I considerappropriate. He may have a further appeal, to the Court of Appeal, by leave. Mr Jonesadvises he will apply for leave if my decision is unfavourable to Dr R. In that case,under s 292, I may make an interim order continuing name suppression, effectively toenable the appeal to proceed.[37] It is common ground, and I accept, that an appeal against the first stage of aname suppression decision under ss 200 and 202 is conducted on the principles appliedto ordinary appeals in Austen, Nichols & Co Inc v Stichting Lodestar.70 That requiresidentification of error and the appellate court to come to its own conclusion of themerits of the application. There is no reason to think any other approach applies.[38] An appeal against the second stage of a name suppression decision is oftenconsidered to be an "appeal against a discretion" and therefore, following Kacem vBashir, only interfered with if the court appealed from erred in principle, failed to takeinto account a relevant consideration, took into account an irrelevant consideration orwas plainly wrong.71 The distinction is between the application of law, entailingjudgement, which should be decided afresh on appeal, and an "exercise of discretion"which, apparently, should not.72 This sort of exercise of discretion appears to be anarrower concept than the commonplace administrative law concept of exercising apower to make decisions. In Kacem v Bashir, Tipping J observed "the fact the case69 P v R HC Auckland T167/96, 17 July 1996 at 4. This was cited by the Court of Appeal on appealProctor v R [1997] 1 NZLR 295 (CA) at 299-300, though the Court of Appeal unfortunately turned"fortunate" into "unfortunate. I have dropped the "un".70 Austen, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141. See, forexample, Wilson v R [2018] NZHC 1778 at [14].71 Kacem v Bashir [2010] NZSC 112, [2011] 2 NZLR 1 at [31]-[33].72 Taipeti v R [2018] NZCA 56, [2018] 3 NZLR 308 at [45].involves a factual evaluation and value judgment does not of itself mean the decisionis discretionary" in this narrower sense.73 He also acknowledged the distinction is"not altogether easy to describe in the abstract" which is not a promising start for alegal concept.74[39] The Court of Appeal appears to have assumed recently, in P (CA265/2019) vR, that the second stage of the name suppression test in s 202 involves an exercise ofdiscretion, albeit apparently without hearing argument on the point.75 It may evenhave done the same in relation to s 200 in Taipeti v R, which cited Fagan v SeriousFraud Office and Robertson v Police.76 But in neither of those cases did the Court ofAppeal hold that the second stage of an appeal of a suppression decision is by way ofan appeal against an "exercise of discretion" in the narrower Kacem v Bashir sense.They just used the word "discretion", I consider, in the wider usual sense of a powerto make a decision.[40] The exercise of a court's discretion at the second stage of considering namesuppression is not untrammelled or arbitrary. The primary purpose of s 200, as statedby the Law Commission, was to narrow an overly broad discretion and significantlyreduce the possibility of judicial decisions depending on the subjective views of thejudge. The word "discretion" does not appear in s 200 but has been used as aconvenient shorthand by judges to distinguish the step in their reasoning which weighsthe required ground for suppression against the public interest in order to exercise thepower to suppress. The grounds for suppression themselves are now carefullyprescribed in law. The name suppression discretion is required to be exercisedconsistently with the Bill of Rights. It involves an evaluation of fact and law and areasoned application of identifiable relevant considerations while ignoring irrelevantconsiderations. It is a substantive, not a procedural decision. It is an evaluativejudgement according to prescribed standards, required to be exercised according to73 Kacem v Bashir, above n 71, at [32].74 At [32].75 P (CA265/2019) v R [2019] NZCA 350 at [2].76 Taipeti v R, above n 72, at [47], citing Fagan v Serious Fraud Offıce [2013] NZCA 367 at [9] andRobertson v Police, above n 59, at [39]–[41].law. An appeal court can judge whether or not it has been so exercised. That is whatthe appeal provision requires. So, I consider, does the rule of law.77[41] Accordingly, I do not consider there is any foundation in statute or principlefor subjecting a name suppression decision to a lower judicial review-like standard ofan appeal which tempts an appellate court, in practice, opaquely to defer to the lowercourt on the merits of the decision.78 Indeed, it is not clear to me that any decisionsshould fall within such a category, other than by reason of clear statutory words. Therehas been a recent appellate trend to narrowing the range of appeals considered to bean "exercise of discretion", such as in relation to bail decisions and professionalmisconduct.79 I consider this reasoning should also extend to decisions about namesuppression. But whether it does or not does not make a difference to my decisionhere. After all, both approaches require that, to be overturned on appeal, a decisionmust be "wrong" or "plainly wrong".80Submissions[42] Mr Jones QC, for Dr R, submits:(a) The affidavits of Dr R and Mr Alley establish that: Dr R is not a risk tothe public he comes into contact with as a doctor; he needs to beemployed by a DHB to advance professionally; he was effectivelyforced to resign as a result of his convictions and the spectre ofpublicity; the prospect of him being employed or employable in thehealth sector is remote if his identity is made public; and publication ofhis identity would undoubtedly follow suppression being lifted. Theconsequences Dr R has suffered informs an assessment of what maywell happen to him in the future.77 McCaig v A Professional Conduct Committee [2015] NZHC 3063 at [15].78 See M B Rodriguez Ferrere "The Unnecessary Confusion in New Zealand's AppellateJurisdictions" (2012) 12 Otago L R 829.79 Taipeti v R, above n 72, at [49]; Hart v Auckland Standards Committee 1 of The New Zealand LawSociety [2013] NZHC 83, [2013] 3 NZLR 103 at [12]; Sisson v Standards Committee 2Canterbury-Westland Branch [2013] NZHC 349, [2013] NZAR 416 at [15].80 McCaig v A Professional Conduct Committee, above n 77, at [11].(b) Judge Ronayne erred in finding the hardship to Dr R was not extremebecause his career would effectively be at an end which isdisproportionate to the level of offending which was not serious. Dr R"would effectively become a pariah, unemployable, unable to train as asurgeon and ineligible for academia".81(c) The Tribunal's decision on penalty provides for the safety of the publicin relation to Dr R's practice of medicine. In some ways, the Tribunal'sdecision on name suppression was contrary to the evidence before itand it was applying a lesser test than I have to apply. Gordon J'sdecision was on the basis of her application of the law of appealing anexercise of discretion. Here, the assessment of the first stage of namesuppression under s 200 is open to appeal on the principles in Austen,Nichols & Co Inc v Stichting Lodestar.82(d) Those who have more to lose by publication cannot be prejudiced bythat fact and freedom of expression and information relate more to theissues before the court as opposed to the identity of the person.(e) The complainant's views support suppression and are important.Naming and shaming Dr R will serve no useful purpose whiledestroying his professional life with consequential loss to his family.(f) Publication would cause Dr R's wife and mother to suffer hardshipwhich, if extreme, would enable Dr R's name to be suppressed or, ifundue, would enable their names and Dr R's name to be suppressedunder ss 202(2)(a), 200(2)(a) and 200(2)(f).(g) There is no reason why the court should not exercise its discretion tosuppress Dr R's name permanently.81 Supplementary submissions, 14 June 2019, at [22].82 Austen, Nichols & Co Inc v Stitchting Lodestar, above n 70.[43] In 2016 Mr McCoubrey, for the Police, filed written submissions for the HighCourt. He submitted the significant effect on Dr R's ability to practise as a surgeon isa natural consequence of a professional being convicted of these offences.83 Hesubmitted there is a presumption in favour of openness in reporting and that allowingthe appeal would be to misapply the test of extreme hardship.[44] In 2019, however, Mr McCoubrey submits, for the Police, that the length anddetail of Dr R's latest affidavit sets things out in more detail and more starkly thanbefore. He submits the issue is for the Court to determine and "in the circumstancesof this case, the respondent does not offer any submissions in opposition to permanentname suppression".84 He maintains the submission about being careful to avoidcreating a special echelon of privileged persons but submits the Police's new stancedoes not do that. Rather, Mr McCoubrey submits, the Police now do not considerDr R's career being at stake to be "an overdramatic characterisation of the evidence".He submits the Tribunal did not squarely address the "vanishingly small" prospectsthe evidence indicated Dr R has of being able to become a surgeon.85 And, he submits,the Court must take into account that the victim "does not care" whether Dr R hasname suppression. The Police now accepts "that this may well be a case which canproperly be characterised as 'a very special circumstance' or 'something quite out ofthe ordinary'".86Should Dr R's name be suppressed?What are the consequences of publication for Dr R?[45] The first step in deciding whether Dr R's name should be suppressed involvesdeciding whether publication of his name is likely to cause him extreme hardship. Iapproach this by first identifying what consequences I consider are likely and secondby considering whether they constitute extreme hardship.83 Submissions, 19 October 2016.84 Further memorandum, 20 June 2019, at [1].85 Professional Conduct Committee appointed by the Medical Council of New Zealand v R, above n22, at [122].86 Further memorandum, 20 June 2019, at [6], citing phrases used in High Court decisions.[46] What are the consequences here? I accept that publication of Dr R's namewould mean there is a real and appreciable chance he will not be employed, for severalyears, as a doctor treating patients. I have no reason to doubt Mr Alley's,Mr Stewart's, Professor Windsor and Dr R's evidence about this. I do not considersuch a reaction would be unjustified in the short term, contrary to the tone of theirevidence. It would reflect the sentiment expressed by Gordon J that the offending"demonstrates a lack of self-control and an attitude of sexual entitlement towards thewomen involved" which are troubling characteristics in a medical practitioner.87 Andit would not be unexpected for patients to object to being treated by a doctor who hasrepeatedly engaged in criminal offending by behaving indecently. That may alsoextend, in the short term, to Dr R's prospects of obtaining a role in an academicinstitution involving treatment of patients or teaching of students.[47] I am not confident that consequence would necessarily last forever. As Dr Racknowledges, if he does not reoffend over 10 or 20 years a DHB may be prepared toreassess the situation.88 He says he would still need to apply for specialist trainingwhich would be "unusual" at his age. But that does not establish that he can never beemployed as a doctor again. Furthermore, I do not consider Dr R is likely to be withoutany employment prospects at all. He could retrain for employment in a sphere thatwould not be so impacted by his convictions. Neither do I accept Dr R's suggestionthat no academic institution would accept him. Despite his convictions he has beensuccessful in enrolling in, and obtaining funding for, further studies. Dr R's assertionsdo not demonstrate he would necessarily be unable to obtain a job in medical research,without a teaching component, which would be less affected by offending of the sorthe has committed. New Zealand's academic and research institutions are more robustthan that.[48] Overall, I consider Dr R is likely to experience hardship as a consequence ofhis offending. He is not likely to lose all his career options, but he is likely to losesignificant career options, at least for several years, that were open to him before hisoffending. Is that "extreme hardship" for the purposes of the Act?87 R v A Professional Conduct Committee, above n 31, at [109].88 Affidavit of Dr R, 6 June 2019, at [25].Is Dr R likely to suffer extreme hardship from publication?[49] This raises the question of whether the consequences I should take intoaccount are those that anyone would be likely to suffer or those that only someone inthe applicant's particular professional group would be likely to suffer.[50] There are cases in which the risk of a serious health effect due to namepublication has been found to constitute extreme hardship, as the Law Commissionenvisaged. In Q v Customs, there was expert evidence of a rare heart condition inwhich stress triggered episodes of irregular heartbeat which could cause suddendeath.89 Such circumstances are not the product of social or professional groupings.[51] But what of consequences that are only likely for a certain professional group?A doctor who has spent years qualifying to practise medicine might well subjectivelyconsider it an extreme hardship to be effectively prevented from doing so, as Dr Rargues here. Relative to their life and career before, such a step may be extreme andfeel like a disproportionate punishment. But others, who lack such qualifications, maywell not regard it as any hardship to be prevented from doing something they are notqualified to do anyway. So name publication can have varying effects on offenders,depending on their circumstances. Are all such effects to be assessed as "hardship" interms of s 200?[52] Parliament stated in s 200(3) that "the fact that a defendant is well known doesnot, of itself, mean that publication of his or her name will result in extreme hardship".I take that to indicate Parliament's purpose is not to enable name suppression forconsequences of criminal offending that derive only from being well known, asrecommended by the Law Commission in its report.90 The Court of Appeal inRobertson stated extreme hardship must be "something beyond the ordinary associatedconsequences".9189 Q v New Zealand Customs [2014] NZHC 2398. In R v New Zealand Customs Service at [2019]NZHC 1878 at [14], I held that required a direct causal link to a specifically identified consequenceconstituting extreme hardship and a real and appreciable risk that consequence will occur.90 Law Commission, above n 51, at [3.50].91 Robertson v Police, above n 59, at [49].[53] Parliament's purpose in enacting s 200 was to set an objective standard of"extreme hardship". I consider there is a good argument that does not include hardshipwhich depends on which social or professional group the offender belongs to. That isan available implication of the legislative context of s 200(3). Another way of puttingit is that, for a doctor, a likely loss of career options is one of the normal consequencesto be expected of offending such as Dr R's. As the Court of Appeal has determined,normal associated consequences of offending are not "extreme hardship" for thepurposes of s 200.[54] This interpretation of the meaning of "extreme hardship" is assisted byapplication of s 14 of the New Zealand Bill of Rights Act 1990 (Bill of Rights).Section 14 provides "[e]veryone has the right to freedom of expression, including thefreedom to seek, receive, and impart information and opinions of any kind in anyform". This right is subject "only to such reasonable limits prescribed by law as canbe demonstrably justified in a free and democratic society", under s 5 of the Bill ofRights. It reinforces the presumption of open justice that underlies s 200. I considerthat an interpretation of "extreme hardship" that varies with the social or professionalgroup to which the offender belongs is not a reasonable limit that can be demonstrablyjustified in a free and democratic society. Rather, it would be an example of thecreation of a "a special echelon of privileged person in the community who will enjoysuppression where their less fortunate compatriots would not", against which the Courtof Appeal has warned.92 That must be partly on the basis of upholding the dimensionof the rule of law that emphasises equality before the law. As Lord Bingham said,"[t]here should not be one law for the rich and another for the poor".93[55] Accordingly, I consider that Dr R's likely loss of significant career options,when such options would normally be expected to be lost to such a professional knownto have committed such offences, does not constitute "extreme hardship" of the sortrequired for name suppression under s 200.92 Proctor v R [1997] 1 NZLR 295 (CA) at 299-300 citing P v R HC Auckland T167/96, 17 July1996 at 4. See also Lewis v Wilson & Horton Ltd, above n 47, at [68].93 Tom Bingham The Rule of Law (Allen Lane, London, 2010) at 55.Otherwise, should I suppress Dr R's name?[56] If I am correct that Dr R is not likely to suffer extreme hardship under s 200,my decision-making ends there. However, in case I am found to be wrong in thatconclusion on appeal, I now consider whether I would otherwise suppress Dr R'sname.[57] First, as the Court of Appeal made clear in Robertson and D (CA443/2015), thepresumption is of open justice. The competing interests in favour of name suppressionmust be sufficient to outweigh the value of open justice. The Supreme Court hasdescribed open justice as "fundamental to the common law system of civil andcriminal justice", "a principle of constitutional importance" and "an almost pricelessinheritance", departure from which must only be to the extent necessary to serve theends of justice.94 In a passage recently quoted by both Downs J and the Court ofAppeal in a recent name suppression case, Lord Steyn in the House of Lords said:95A criminal trial is a public event. The principle of open justice puts, as hasoften been said, the Judge and all who participate in the trial under intensescrutiny. The glare of contemporaneous publicity ensures that trials areproperly conducted. It is a valuable check on the criminal process. Moreover,the public interest may be as much involved in the circumstances of aremarkable acquittal as in a surprising conviction. Informed public debate isnecessary about all such matters. Full contemporaneous reporting of criminaltrials in progress promotes public confidence in the administration of justice.It promotes the values of the rule of law.[58] In New Zealand, in a statement approved by the Court of Appeal in the samecase, Downs J said name suppression in a particular case "may, in all thesecircumstances, contribute to the incremental erosion of public confidence in theadministration of criminal justice through disproportionate weight on immediateconsequences instead of a long-term view".96 I consider that applies here.[59] Second, the principle of open justice is reinforced by the right to freedom ofexpression guaranteed by the Bill of Rights, as outlined and analysed briefly above.As the Court of Appeal observed in Lewis v Wilson & Horton Ltd, the Bill of Rights94 Erceg v Erceg [Publication restrictions] [2016] NZSC 135, [2017] 1 NZLR 310 at [2]-[3].95 R v Fangupo [2019] NZHC 1211 at [53] and P (CA265/2019) v R, above n 75, at [42] citing Re S[2004] UKHL 47, [2005] 1 AC 583 at [30].96 R v Fangupo, above n 95, at [56], quoted and approved by the Court of Appeal in P (CA265/2019)v R, above n 75, at [51]-[52].directly constrains a court's decision-making, because s 3(a) binds the judicial branchof government.97 In order to uphold the right to freedom of expression, a court isrequired not to suppress a name unless doing so constitutes a reasonable limitprescribed by law as can be demonstrably justified in a free and democratic society.As will be apparent from the analysis above, I do not consider a consequence specificonly to a social or professional group to which the offender belongs is a reasonablelimit on the right to freedom of expression that can be demonstrably justified in a freeand democratic society. Neither is it consistent with the rule of law. The courts'concern not to create a special echelon of privilege does not mean professionals arepunished more for indecent offending of this nature. It means the naturalconsequences of criminal behaviour inconsistent with professional obligations includeprofessional consequences.[60] Third, I consider the nature of Dr R's offending. It does not involve violence.But it involved two instances of doing an indecent act with intent to offend, in a publicplace. And it is not alleged offending that has yet to be proven. Although Dr Rcontinues to deny it, the offending has been proven beyond reasonable doubt andtested on appeal. His continued denials do not sit well with his prospects ofrehabilitation, as Gordon J observed.98 Before this offending, Dr R had been convictedof offensive behaviour in 2003 and had been given diversion for very similar offendingto this, in the same time period and at the same general location.[61] As Judge Ronayne said in his sentencing remarks, the offending wasaggravated by being pre-meditated, occurring twice, being a repetition of other similaroffending, involving a moderately high level of indecency and having an effect on thevictim who was shocked, deeply offended, disgusted and felt unsafe and frightened.The Tribunal noted the irony that "having chosen to act publicly in this way, [Dr R]now asks for an order which would keep his name out of the public arena".99 I donot accept Mr Jones' submission it is not serious offending. I agree with Gordon J thatit can be characterised as serious.100 That militates in favour of publication.97 Lewis v Wilson & Horton Ltd, above n 47, at [43].98 R v A Professional Conduct Committee, above n 31, at [123].99 Professional Conduct Committee appointed by the Medical Council of New Zealand v R, above n22, at [136].100 R v A Professional Conduct Committee, above n 31, at [109].[62] Fourth, I consider the views of the victim. Understandably, given the lengthof this proceeding, she is "over it". She does not care about name suppression. I donot consider the victim's views favour either suppression or publication.[63] Fifth, the interests of future possible patients of Dr R are a relevantconsideration. As I observed above, it would not be unexpected for patients to objectto being treated by a doctor who has repeatedly engaged in criminal offending bybehaving indecently by masturbating in public. This is one reason why Dr R'semployment prospects are likely to be impacted. But potential patients might objecteven more to being treated by such a doctor without knowing of that history and havingthe opportunity to decline his treatment. The Tribunal considered potential users ofDr R's services in the future are entitled to make their own judgements as to whetheror not to consult him, having regard to his offending.101 As Gordon J stated, the publicinterest includes the public's right to make an informed decision about their choice ofmedical practitioner and in knowing the character of those they entrust with theirpersonal health and wellbeing.102 I agree. This consideration militates in favour ofpublication. The prospect of public lack of confidence in a medical professional is nota reason to suppress information that would give rise to that lack of confidence.[64] Sixth, I have fully considered the submissions on behalf of Dr R and the Police.But although the parties agree that name suppression should be made permanent, I donot. I am obliged to apply the law as I see it, not as the parties agree it to be, betweenthemselves.[65] Overall, I would consider the public interest considerations favouringpublication would outweigh those favouring suppression, by some margin. I considerthere is nothing wrong, or plainly wrong, in Judge Ronayne's decision in October 2015to decline Dr R's application for name suppression. Furthermore, like Gordon J inrelation to the Tribunal's refusal of name suppression in the professional disciplinarycontext, I would make the same decision.101 Professional Conduct Committee appointed by the Medical Council of New Zealand v R, above n22, at [127].102 R v A Professional Conduct Committee, above n 31, at [115] and [124].Should family members' names, and Dr R's name therefore, be suppressed?[66] The other set of issues is whether:(a) the names of Dr R's wife and mother should be suppressed, unders 202(2)(a), because publication would be likely to cause them unduehardship;(b) if so, Dr R's name should be suppressed, under s 200(2)(f), becausepublication would be likely to lead to identification of his wife andmother; and(c) Dr R's name should be suppressed, under s 200(2)(a), becausepublication would be likely to cause his wife and mother extremehardship.[67] I do not consider the evidence sustains the claims that Dr R's mother and wifewould necessarily be required to leave their jobs if his offending becomes known. Anyworthwhile workplace will judge an employee's performance on the basis of their ownactions and behaviour, not those of a son or spouse. To do otherwise would beirrational and likely to found a claim for unjustified dismissal. Absent employerrequirements, any decision to leave their employment is theirs. Like the Tribunal andGordon J, I consider the effects of publication of Dr R's name on family are in thenature of embarrassment. That is a natural consequence of his offending. It does notconstitute undue hardship or extreme hardship justifying suppression of their names.Accordingly, neither ss 200(2)(a) nor (f) is a basis for suppressing Dr R's name.Result[68] I dismiss Dr R's appeal of Judge Ronayne's decision to decline his applicationfor name suppression.[69] Because Dr R has indicated that he will seek leave to appeal an unfavourabledecision, I reluctantly continue his name suppression on an interim basis for thatpurpose only. Despite this proceeding being unduly long already, to do otherwisewould to deprive him of the opportunity to appeal to which he is entitled. I continuesuppression of his name until the deadline expires for filing a notice for applicationfor leave to appeal this judgment under s 291 of the Act, at 5 pm Thursday 5December 2019. If such an application is made, s 291(3) extends interim suppressionuntil it is determined.Palmer J