X (CA226/2020) v R [2020] NZCA 387

X (CA226/2020) v R [2020] NZCA 387 [3 September 2020]ORDER PROHIBITING PUBLICATION OF NAME, ADDRESS,OCCUPATION OR IDENTIFYING PARTICULARS OF APPELLANTPURSUANT TO S 200 CRIMINAL PROCEDURE ACT 2011.IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA226/2020[2020] NZCA 387BETWEEN X (CA226/2020)AppellantAND THE QUEENRespondentHearing: 25 June 2020Court: Gilbert, Ellis and Katz JJCounsel: E P Priest and P D Wilks for AppellantZ R Johnston and Z A Fuhr for RespondentJudgment: 3 September 2020 at 10 amJUDGMENT OF THE COURT[Redacted]A The application to adduce further evidence is granted.B The application for leave to bring a second appeal is granted.C The appeal is allowed.D Order prohibiting publication of name, address, occupation or identifyingparticulars of appellant pursuant to s 200 of the Criminal Procedure Act2011.____________________________________________________________________REASONS OF THE COURT(Given by Ellis J)[1] X seeks leave to bring a second appeal against a District Court decisiondeclining him name suppression after his discharge without conviction on twocommon assault charges.1 Those charges arose from X's inappropriate inebriatedbehaviour one evening at a Labour Party youth camp in February 2018, when X was20.2 In large part because of the wider political context, X's case has received, andcontinues to receive, considerable publicity.[2] X maintains (as he did in the District Court and in the High Court) that he willsuffer extreme hardship if his name is published.3Background[3] The facts are fully recounted in the lower court decisions, and it is unnecessaryto repeat them in detail here.4 The following summary will suffice.[4] X attended the Labour Party youth camp in 2018. During an evening socialfunction, he consumed a large amount of alcohol. X was not accustomed to drinking.That evening, X put his hand down the pants of another (18-year-old) young man ashe was walking past him. X put his hand inside the young man's underwear andgrabbed his penis and testicles for around a second.[5] Later, around midnight, X assembled with several others for a groupphotograph. While seated, X reached out and put his hand down the pants of a16-year-old young man who was also seated for the photograph. X's hand went ontop of the young man's underwear and reached his genitals before it was pushed away.A short time later, X again put his hand inside the front of the other's pants, but hishand was quickly pushed away.[6] X apologised to the second young man later that night. He apologised tothe first young man the next morning.1 R v [X] [2019] NZDC 24271 [District Court judgment].2 As explained later below, two other charges were dismissed, and one was withdrawn.3 Criminal Procedure Act 2011, s 200(2)(a).4 [X] v R [2020] NZHC 658 [High Court judgment] at [3]–[9].[7] Five charges of indecent assault were subsequently laid against X. Three ofthe charges involved the two young men and were founded on the incidents justdescribed. The other two charges involved two young women and arose out oftwo other incidents that allegedly occurred that same night.Proceedings in the District Court[8] X defended the charges involving the two male complainants on the basis that,although the touching occurred, it was not indecent or, at least, that X did notappreciate its indecency. He claimed that it was a "light-hearted joke in the context ofa party". He said the alleged touching of the first young woman (kissing her neck andface) was consensual or, at least, that he had an honest belief in consent. As forthe allegations concerning the second young woman (touching her breast and bottom),X said that it did not happen or, if it did, it was accidental.5[9] Part-way through the District Court trial, a resolution was reached. The Crownagreed not to offer any evidence on the two charges involving the two young women:those charges were accordingly dismissed under s 147 of the Criminal Procedure Act2011 (the CPA). The Crown was also granted leave under s 133 of the CPA to amendtwo of the remaining three charges from indecent assault to common assault.X pleaded guilty to these two amended charges, and the Crown was granted leaveunder s 146 to withdraw the fifth charge. The Crown also agreed not to oppose X'sintended application to be discharged without conviction.6The discharge without conviction[10] X was, indeed, later discharged without conviction on the two common assaultcharges to which he had pleaded guilty.7 Judge Collins assessed the overall gravity ofX's offending as "low" when compared to other criminal cases typically comingbefore the District Court:[10] Now, I have to make an assessment of the gravity of the offending.In terms of what Judges see in this Court, the gravity of the offending in itselfis low. Many people might be shocked by that, because they will clearly be5 At [12].6 At [14].7 District Court judgment, above n 1.of the view that this offending was quite offensive. However, having heardthe evidence, including the exhibits and everything else that has been written,I am not convinced that what [X] did was for sexual gratification or asthe result of any perverted motive. Yes, it was highly offensive and wouldhave been particularly so to the two victims. However, it was borne out ofdrunken stupidity. That does not excuse it, and as a matter of law, hisdrunkenness is not a mitigating factor.[11] After acknowledging the harm suffered by the victims (noting that it was, inpart, due to the media interest in the case), the Judge referred to various personalmitigating factors, describing X as an otherwise "impressive young man who hassucceeded, to this point, very well in life". He noted that X had sought counsellingand that his chances of further offending had been assessed by a clinical psychologistas being "very low". He described X as a "dedicated scholar" who had providedexcellent references from those who knew him, but noted that X had already lost onejob as a result of his actions. He said there was a real risk that a conviction wouldjeopardise his future employment prospects.8[12] In all the circumstances of X's case, the Judge was therefore satisfied thatthe consequences of a conviction would be out of all proportion to the gravity of hisoffending. He concluded by saying:9[X] should treat today as a challenge to not only get on with his own life butalso use his talents to contribute positively to society.[13] The substantive outcome in the District Court was, accordingly, that X wasdeemed to have been acquitted on all charges.10Name suppression[14] Turning to the issue of suppression, the Judge said:11If it was simply a matter of tossing a coin and saying, "Do I think that hisname needs to be published or not," I may well decide this matter in his favour.But there will be no order for name suppression, because the statutory test isso high.8 At [17]–[18].9 At [18].10 A discharge without conviction is deemed to be an acquittal: Sentencing Act 2002, s 106(2).The dismissal of a charge under s 147 of the Act is also deemed to be an acquittal:Criminal Procedure Act, s 147(6). The fifth charge was withdrawn.11 District Court judgment, above n 1, at [20].[15] The statutory test to which the Judge was referring here is s 200(2)(a) of theCPA, namely that the court may make a suppression order under subs (1) only if it issatisfied that publication would be likely to:cause extreme hardship to the person charged with, or convicted of, oracquitted of the offence, or any person connected with that person; [16] The Judge weighed the importance of open justice against the potential impactsthat publication would have on X, and ultimately concluded that the extreme hardshipthreshold was not met:[26] In my view, the high standard of extreme hardship has not beenreached. It is not for the Courts to dictate to the media what cases the mediachoose to cover. Both the Courts and media have their own fundamentallyimportant role to play in free and democratic societies, and I certainly do notwant to use this judgment as a platform to embark upon the wider discussionabout that.[27] I am not satisfied that this young man will be burdened or blighted forthe rest of his life as the person who was involved in the allegations at thisyouth camp.[28] As for the cultural ramifications, I am basically told that as a memberof [his] community he would be ostracised and shamed for what he hasdone. Again, that might be so for some members of the community, but itis not a submission that I really do accept. He has chosen not to tell his familyto this point and, not wanting to dwell on other cases I do not accept thatthe community would universally ostracise him or find themselves unableto forgive him for what he has done.[29] The fourth plank that Ms Priest asserts supports the test of extremehardship being met is that he has admitted to common assaults underthe Summary Offences Act [1981], but that he would always be blighted asthe young man who was involved in allegations of sexual offending. I canunderstand the submission, but it has to be balanced by the fact that that is notwhat transpired in the Court, that is not what he admitted and, because somepeople might erroneously interpret what occurred, in my view that does notadd particular weight to his application for suppression.[17] Name suppression was therefore refused, although granted in the interim,pending X's appeal to the High Court.1212 District Court judgment, above n 1, at [30].The appeal in the High Court[18] In a thorough and thoughtful judgment, Whata J assessed afresh the hardshiplikely to be caused to X if his name was published. We summarise the core of hisanalysis below.[19] Under the heading "Hardship" the Judge considered:13(a) the scale and nature of the media coverage;(b) the likely vilification of X as a sexual offender;(c) the likely impact of publication of X's name on his ability to gainemployment; and(d) the likely impact on X's family and community.[20] As to media coverage, the Judge began by noting that the larger the scale andseverity of the publication impact, the more significant the likely effect on X.He noted that the coverage had been extensive: the case had even attractedinternational attention. It was covered by both mainstream and social media.14He said:15It sensationalised what had allegedly occurred at the Labour Summer Camp.The media coverage referred to and often emphasised the allegations of sexualoffending, before and after the acquittals. This is an aggravating feature interms of the likely publication harm [X] might suffer, especially as somecoverage continues to wrongly cast [X] as a sexual offender.[21] The Judge accepted that the media coverage will likely have a significantimpact on X, his family and his community, noting that "the imprint this type ofcoverage will leave with the public could be deep and long-lasting".1613 High Court judgment, above n 4, at [64].14 At [66]–[67].15 At [67].16 At [68].[22] As to "vilification" the Judge agreed that the reputational impact on X if hisname were published is likely to be severe:17He will likely become a target, not only for legitimate criticism, but for unfairvitriol and vilification as a sexual offender. I also accept the opinion of Mr Rthat [there will likely be a cultural dimension in that it is likely that] [X] andhis community [could also become a target for] vilification.[23] The Judge also accepted that the coverage to date had adversely affected X invery real ways. He had been dismissed by his then employer when it was discoveredthat he was the subject of the allegations and — the Judge opined — similarreputational concerns would no doubt limit and imperil his future employmentprospects.18[24] So, too, did the Judge accept the likely impact on X's family and community,including X's father in particular. He referred to and accepted the expert evidence ofMr R that:19[The morality and faith of the community, and its vulnerability], combine toelevate the significance of the media coverage of the allegations [within thecommunity].[25] Overall, the Judge's assessment was that:[72] In summary, the mass media publication of the initial allegations ofsexual offending will have a significant impact on [X], even more so ifpublicity continues to mischaracterise his offending as sexual. His life willlikely be defined by these events for the foreseeable future. He will likely beidentified and vilified, wrongly, as a sexual offender, and there is a real andappreciable risk that a career in his chosen profession will be denied to him.He is still a young man and thus more vulnerable to the full force of thispublication harm. However, I do not think that there is enough evidence toshow that [X] will be ostracised [by his community or his family]. Mr R doesnot say that will happen. However, nonetheless, his whakamā will beimmense, and the burden of that whakamā will be very distressing for him.Kāore e kore, ka tino patua ia e te whakamā.[20][26] The Judge then turned to the question of whether the hardship X was likely tosuffer qualified as "extreme". He said:17 At [69].18 At [70].19 At [71].20 Without a doubt, he will be hit with shame.[73] Given this, the harm [X] is likely to suffer if his name is published is,in my view, extreme in the ordinary sense of the word. But, as stated in D, toqualify under the CPA, the claimed hardship must be something that does notusually attend a criminal prosecution and, ordinarily, the distress and otherconsequences of media reporting (including vilification and job loss) wouldnot qualify as hardship, let alone extreme hardship. There is something unfairabout making this discount in the hardship calculus in this particular case,because of the lack of correspondence between the scale and nature ofthe media coverage and the actual offending. But that point is one that mightbe made in a number of cases, and is not strong enough to warrant departurefrom the orthodox position. And when that orthodoxy is applied, I am unableto find that the publication harm to X amounts to extreme hardship. In short,much of the identified harm is a natural consequence of media coverage ofhigh profile criminal proceedings.[27] Having thus found that the extreme hardship threshold had not been met,the Judge did not strictly need to consider whether the discretion ought to be exercisedin favour of ordering name suppression. He considered that issue nevertheless, in casehis conclusion as to (the absence of) extreme hardship was later found to be wrong.21The Judge acknowledged that an outcome that is grossly disproportionate to the actualoffending is a strong factor against the presumption of open justice.22 But afterweighing all factors, he ultimately concluded that the ongoing legitimate publicinterest in the proceedings must prevail:[78] Nevertheless, I have come to the view that the ongoing legitimatepublic interest in the proceedings, together with the principle of open justice,must prevail. While X did not sexually offend, his actions still legitimatelyattract public scrutiny, including from within his own community andprospective employers. In addition, the evident political dimension tothe coverage and corresponding public interest, strongly favours transparencyto maintain confidence in the integrity and independence of the judicialprocess.[28] Anticipating the present application for leave, the Judge made a further interimsuppression order, which was to continue until this Court determines the matter.2321 See Robertson v Police [2015] NZCA 7 at [40]–[41].22 High Court judgment, above n 4, at [77].23 At [84].The application for leaveRelevant principles[29] Leave to bring a second appeal in a name suppression case must be declinedunless the Court is satisfied:24(a) that the proposed appeal involves a matter of general or publicimportance; or(b) that a miscarriage of justice may have occurred, or may occur unlessthe appeal is heard.[30] A matter of general principle or importance is one that is of broader application,beyond the circumstances of the particular case.25 Where the proposed appeal onlyinvolves the application of well-established legal principles to the particular facts,leave will not generally be appropriate.26[31] Leave will not be granted on the miscarriage ground unless the alleged errorcould reasonably have affected the outcome.27X's application for leave[32] X's application for leave to appeal states that the ground on which X'ssubstantive appeal would be advanced is (relevantly) that: The Court erred by applying a higher threshold test due to the high-profilenature of the case. The Court held that the harm [X] is likely to suffer isextreme in the ordinary sense of the word but held that due to the high-profilenature of the case, that the 'extreme hardship' is a natural consequence.The Court erred by conflating the objective test of extreme hardship and24 Criminal Procedure Act, s 289(2).25 McAllister v R [2014] NZCA 175, [2014] 2 NZLR 764 at [36], referring to L v R [2005] NZSC 69.See also Keenan v R [2005] NZSC 63 at [5].26 Robertson v Police, above n 21, at [33]–[35], adopting the comments in McAllister v R, above n25, at [32]–[41].27 At [61]. In Robertson, this Court noted at [56] that the definition of a "miscarriage of justice" ins 232(4) of the CPA and the guidance provided in Supreme Court leave decisions under s 13(2)(b)of the Supreme Court Act 2003 (now s 74(2)(b) of the Senior Courts Act 2016) in relation toconviction appeals are unlikely to be relevant to name suppression appeals. The Court declinedto give prescriptive guidance as to the interpretation of s 289(2)(b) on the basis that the assessmentis likely to be fact-specific and may be best left to judges in individual cases.the ordinary consequences of media reporting in a high-profile case, whichresulted in a higher threshold for [X]. The Court incorrectly converted'extreme' into 'ordinary' hardship. [33] And in terms of the threshold for leave, the application states:It is necessary in the interests of justice for the Court of Appeal to hear anddetermine this proposed appeal because this appeal involves a matter ofgeneral or public importance. It is also submitted that there will be amiscarriage of justice for the appellant if name suppression is not granted inhis case because it will have the effect of undermin[ing] his acquittals pursuantto s 147 and as a result of his discharge without conviction.Justice Whata acknowledged in his decision at [84] that "this case raisesdifficult issues about the application of orthodox principles to the facts of thiscase, and the balance between the public's right to know and an acquittedindividual's right to be left alone."It is submitted that it is a matter of public importance for this Court to considerthe complex interplay between name suppression principles and deemedacquittals, and the impact of extensive media reporting in this unique highlypoliticised case.Updating evidence[34] Ms Priest also sought leave to file further evidence in support of the applicationfor leave and the substantive appeal. That evidence was a further selection of mediaand social media reports about the case, published at the time of, or since,the High Court hearing. Ms Priest says those reports show that the interest in X's casehas not abated and that unfair "vilification" of X (albeit without publishing his name)is ongoing and is unlikely to stop.[35] We accept that this updating evidence meets the usual criteria for leave.28The evidence is cogent and fresh, and so we grant leave for it to be adduced inthe appeal.Should leave be granted?[36] Although — as we later discuss — we consider that there is an issue of generalor public importance raised by X's case, it is not one of the issues identified inthe application for leave. Accordingly, we prefer to deal with the question of leave28 Lundy v R [2013] UKPC 28, [2014] 2 NZLR 273 at [120].under the "miscarriage" ground, as articulated by Ms Priest. That requiresconsideration of the alleged error said to have been made in paragraph [73] of theHigh Court judgment.Did the Judge conflate "ordinary" with "extreme" hardship?[37] We have set out paragraph [73] at [26] above. To reiterate, the Judge thereconcluded:(a) the harm that X is likely to suffer if his name is published was"extreme" in the ordinary sense of the word;(b) but, to qualify under s 200(2)(a) of the CPA, the claimed hardship mustbe something that does not usually attend a criminal prosecution;(c) ordinarily, the distress and other consequences of media reporting(including vilification and job loss) would not qualify as hardship, letalone extreme hardship;(d) there was "something unfair about making this discount in the hardshipcalculus" in X's case because of the disproportionality between thescale and nature of the media coverage and the seriousness of X's"actual offending"; but(e) that disproportionality was not unique and was not strong enough towarrant departure from the "orthodox" position; and(f) when that orthodoxy was applied, the harm posed to X by publicationdid not amount to extreme hardship — much of the identified harm wasonly a natural consequence of media coverage of high-profile criminalproceedings.[38] Ms Johnston, for the Crown, accepted that a literal reading of this paragraphmight suggest an error. But she submitted that, though perhaps clumsily expressed,the Judge's point was simply that the normal consequences of media coverage ofhigh-profile criminal cases will not typically be sufficient to meet the high test ofextreme hardship.[39] We do not agree. For all the reasons he had given, the Judge had concludedthat the hardship that X is likely to suffer if his name is published was extreme, inthe ordinary sense of that word. But he then qualified this conclusion by discountingsome of the identified hardship as not being relevant at all: "the distress and otherconsequences of media reporting (including vilification and job loss) would not qualifyas hardship, let alone extreme hardship".29 While acknowledging that this was unfair,the Judge said it represented the "orthodox" position.[40] The correct approach is to identify all likely hardship arising from publication,as the Judge here did. But the ultimate assessment of whether the likely hardshipwould be extreme must be based on all such hardship, looked at cumulatively. It isnot "orthodox" to discount some of the identified hardship on the basis it somehowdoes "not qualify as hardship". It must all be factored into the "hardship calculus".[41] It follows, we think, that there is an error of law in [73] of the High Courtjudgment. And given that the Judge was expressly of the view that the hardship herewould, in fact, be "extreme" (in the ordinary sense of the word), it is difficult not toconclude that it was an error that could reasonably have affected the outcome. We aretherefore persuaded that leave for the proposed appeal should be granted onthe "miscarriage" ground. We turn, accordingly, to consider the matter afresh.Will X suffer extreme hardship if his name is published?[42] As Whata J rightly noted, an assessment of whether the contended hardship is"extreme" cannot take place in a vacuum; it requires a relative comparison ofthe contended hardship and the typical consequences associated with a defendant'sname being published.30[43] We are also in general agreement with the Judge's identification of relevantfactors and his assessment of those factors, individually. But there are two additional29 High Court judgment, above n 4, at [73] (emphasis added).30 At [64].matters that were not separately considered by him and that, in our view, are highlyrelevant to the "hardship" inquiry. And for the reasons explained below, we considerthat those factors — when taken together with those identified by the High Court —clearly take X's case for suppression over the "extreme hardship" threshold.The uniqueness of X's name[44] We were advised by Ms Priest — and we accept — that there is no other personin New Zealand with the same name as X. This is a point not expressly addressed ineither the District Court or the High Court judgments. We regard it as highly relevantto the hardship inquiry for two, interrelated, reasons.[45] First, the uniqueness of X's name means there will be no room for doubt thathe is the person named in any mainstream media reports. It also makes him a clearand easy target on social media, a point we discuss further shortly. Potential employerswould have no difficulty, now or in the future, in making the link. In short, the harmlikely to be suffered by X — if his name is published in connection with this case —is likely to be both greater and more enduring than that suffered by most whose namesare published in relation to criminal proceedings. Harm of that order goes beyondthe ordinary consequences of publication.[46] Relatedly, X's name clearly identifies him as a member of a particularcommunity. As the High Court acknowledged, that gives rise to the spectre ofpublication harm being caused to his community, although that is only indirectlyrelevant to the question of hardship for X. But we also agree with the High Court thatthis gives rise to an appreciable risk that X would be targeted on social media not justdue to the "sexual" aspect of the charges (which, subject to what we say below, mightbe seen as a more ordinary consequence of publication), but also vilified due to hiscultural background. That, too, cannot be seen as an ordinary consequence ofpublication.Social media[47] We consider that the likely social media effects flowing from the publicationof X's name also warrant discrete discussion here. Although raised in argument onX's behalf in at least a general way, this is not a matter that was given any separateconsideration in the Courts below. Judge Collins in the District Court seems to havefocused only on publication by the mainstream media.31 In the High Court decision,social media is mentioned — in conjunction with mainstream media — in the contextof summarising counsel's submissions,32 and then once, in passing (and again pairedwith mainstream media), in the Judge's analysis.33 As well, the media extractsannexed to that judgment are confined to mainstream media and do not includeextracts from Twitter or Facebook. We think that is an important omission; we regardthe harm likely to be inflicted on X by social media as highly relevant here, for reasonswe now explain.[48] We begin by acknowledging that suppression law is predicated on theimportance of open justice. Permitting fair reporting of the criminal process —including usually the publication of defendants' names — is central to that concept.The constitutionally important relationship between the mainstream media andthe courts is governed by formal guidelines, in which the starting point is that membersof the media will be those who are subject to (or employed by an organisation that issubject to) both a code of ethics and the complaints procedure of theBroadcasting Standards Authority or the Press Council.34 These professionalconstraints, together with oversight by the courts, mean that reporting of a criminalcase — including the publication of a defendant's name — in the mainstream mediais unlikely, without more, to give rise to extreme hardship to that defendant.[49] But commentary about a case or about a defendant on social media is a verydifferent matter. There can be no reasonable expectation that such reportage will befair or accurate. And there is no realistic way of controlling its content or its spread,particularly in a high profile and politically controversial case. In our view this isa problem with which the Courts have yet fully to grapple, particularly in the context31 District Court judgment, above n 1, at [26] in particular (quoted at [16] above).32 High Court judgment, above n 4, at [50], [53] and [60].33 At [67].34 Ministry of Justice Media guide for reporting the courts and tribunals (September 2019). See inparticular the In-court media coverage guidelines 2016 at Appendix A.of suppression under s 200(2)(a), where a defendant is young and, so, especiallyvulnerable to trolling, doxing, and internet vigilantism.35[50] By way of some historical context, s 200 of the CPA has its origins in the 2009New Zealand Law Commission report entitled Suppressing Names and Evidence.36It was the Law Commission that recommended legislating relevant thresholds forsuppression, including that the threshold for suppressing a defendant's name shouldbe one of "extreme" hardship.37[51] But in 2009, Facebook had been around for five years, Reddit for four, andTwitter for three. Instagram did not yet exist. Those platforms were even newer atthe time of the release of the Issues Paper that preceded the Law Commission's report(the response to which informed the Law Commission's recommendations) in 2008.38In the context of the proposed reforms, the Law Commission was aware of, anddiscussed the difficulties posed by, social media in terms of maintaining and respectingsuppression orders. But no consideration was (or could have been) given to theuniversality and toxicity of social media's current form.39 Nor could considerationhave been given to the even more recent phenomenon of "cancel" or "call-out" culture,in which social media is weaponised against those deemed to have transgressed thenorms of any online group (or mob). And there can be no doubt that this new cultureof public shaming has the potential to be mercilessly inflicted on young people whobecome embroiled in the criminal justice system — particularly in the context of35 According to the online Oxford English Dictionary, to "troll" in this context means: "To post adeliberately erroneous or antagonistic message on a newsgroup or similar forum with the intentionof eliciting a hostile or corrective response". The Oxford English and Spanish Dictionary defines"doxing" as to "[s]earch for and publish private or identifying information about (a particularindividual) on the internet, typically with malicious intent". In 2016, the publication Wired hassaid that "[o]f all the forms of online harassment, doxing is perhaps the most pernicious": LauraHudson and Anita Sarkeesian "5 Ways to Deflect Nasty Online Trolls" (22 December 2015) Wired<www.wired.com>. See also David M Douglas "Doxing: a conceptual analysis" (2016) 18 Ethicsand Information Technology 199.36 Law Commission Suppressing Names and Evidence (NZLC R109, 2009).37 At [3.36]–[3.42]. The Law Commission's discussion focuses on those who are convicted. It doesnot distinguish or separately consider the position of defendants who are acquitted.38 Law Commission Suppressing Names and Evidence (NZLC IP13, 2008).39 For relatively early discussions of such matters see the collection of essays in S Levmore andMC Nussbaum (eds) The Offensive Internet: Speech, Privacy and Reputation (Harvard UniversityPress, Cambridge, 2010).alleged sexual offending — however briefly, and whatever the legal outcome ofthe case.40[52] So ten or so years ago, even young defendants might reasonably be expectedto endure the "hardship" ordinarily caused by the publication of their names in themainstream media. But now, we think the potential hardship caused by the pernicious,judgemental, exponential, indelible, and often ill-informed publication on social mediaplatforms is of a quite different magnitude. Public shaming of this or any kind formsno part of our criminal justice system. It is not the object of open justice. It serves nouseful rehabilitative or other social purpose. Its object is humiliation anddegradation.41[53] As we have said, young people are particularly vulnerable in this regard.That vulnerability is no doubt psychological, but it has both practical and temporalaspects, too. The temporal aspect is simply that, by virtue of being young, the effectsof internet shaming will last for longer — potentially for the remainder of the youngperson's life. The practical aspect is that the only way a person can protect or shieldhim or herself from ongoing exposure to online shaming is to go, themselves, offline.And as Danielle Citron has noted:42When individuals go offline or assume pseudonyms to avoid bigoted cyberattacks, they miss innumerable economic and social opportunities. Theysuffer feelings of shame and isolation. Cyber mobs effectively deny peoplethe right to participate in online life as equals.[54] So we think that, in a case such as the present, it is time to recognise theserealities. In our view such recognition can play out both in the assessment of whetherhardship will, in any given case, be "extreme" and in the ultimate weighing exerciserequired in the exercise of discretion.40 See, for example, Lauren Goldman Trending Now: The Use of Social Media Websites in PublicShaming Punishments (2015) 52 American Criminal Law Review 415.41 As one commentator has pointed out (citing Jeremy Waldron The Harm in Hate Speech (HarvardUniversity Press, Cambridge, 2012)): " the harm of a social media shaming mimics the harm ofhate speech even when it does not entirely align with it. It is [the] element of degradation,experienced as humiliation, that is common to hate speech and online shaming": Emily Laidlaw"Online Shaming and the Right to Privacy" (2017) 6 Laws 3 at 12.42 Danielle K Citron "Civil Rights in Our Information Age" in The Offensive Internet, above n 40,at 31.[55] Returning now to the specifics of X's case, we were provided with, and havereviewed, a selection of the comments about it on social media. Although thecomments have not yet named or targeted X personally (because his name is presentlysuppressed), they do, we think, give a small taste of what might be expected ifsuppression were lifted. They reveal:(a) The level of interest in X's case is unnaturally high because ofthe Labour Party camp context, with many commentators using it as aplatform for wider (and vitriolic) political "debate".(b) The level of interest has been further heightened because of the parallel(but quite unrelated) investigation into the allegations of sexualmisconduct by a staff member in the Prime Minister's Office.43(c) A considerable amount of harmful misinformation about the case,including:(i) that X is a "predator" (when that is not supported by the facts,and the expert advice is that he poses a very low reoffendingrisk);(ii) that X is a "paedophile" and that the victims were "underagechildren" (when all were over the age of consent and onlyslightly younger than A);(iii) that X "feeds [the complainants] booze n' fiddles them", anallegation that bears no resemblance to the facts;(iv) the suggestion that X's discharge without conviction was theresult of political influence ("Aunty Helen and Jacinda pullingbig strings there"), or that X's mother is a Labour Minister or asitting MP (none of which is true); and43 These were the allegations that were the subject of an investigation by Maria Dew QC.(v) the suggestion that X was discharged without convictionbecause he was "white".(d) Comments that are, quite simply, abusive — calling X variously apaedophile, a pig, a rat, "young labour camp animal" a "commiesnowflake", a pervert ("Pervy McPerv"), and a "mama's boy".(e) Comments that are threatening: "name suppression will NOT helpyou".[56] There is every reason to believe that, if X's name was now published, suchcomments would grow in number and in venom. And an important difference (interms of harm) is that they would likely then be directly linked to, or directed at, Xpersonally.[57] There is another important point. The clear view held by a number of socialmedia commentators thus far (that the decision to discharge X without conviction waswrong, the result of political interference, politically motivated, or related tothe affluence of his family or the colour of his skin) makes X a particular target for"cancelling". Cancel culture is commonly seen by its perpetrators as a way of bringingjustice to those who have escaped it: rich celebrities, corporations or privileged (oftenwhite) offenders who "get off" with a lenient sentence. So here, it is the fact of X'seffective acquittal — which, ordinarily, might be seen as indicating something positive— that is the factor likely to fuel the social media flames. Those who are disposed touse social media in this way will regard their hateful posting as justified by theirperception that X has escaped justice.44[58] We do not consider that public shaming of the nature or magnitude that is likelyto flow to X here can be said to be an ordinary consequence of publication.44 This is, in fact, what has already occurred. But as we note later, the facts, circumstances andreasoning giving rise to X's discharge without conviction are a matter of public record and are notsuppressed. They are a proper subject for informed debate. It is not necessary to know X's namein order for that debate to continue.Conclusion[59] The nature of the acts giving rise to the charges laid against X, the fact of hissubsequent discharge without conviction, and the wider political context mean thatpublic interest in his identity is disproportionately and illegitimately high. There arecharacteristics particular to X — his name and culture— that further add both tothe likelihood that he will be targeted on social media and to the likelihood ofthe targeting being extreme. The social media activity about his case to date has notbeen accurate and exhibits many of the tendencies of cancel culture, to which youngpeople, in particular, are very vulnerable. We are therefore of the view that, inthe relatively unusual circumstances of this case, the publication of X's name willcause him extreme hardship.Discretion[60] As we have said, Whata J went on to consider the question of discretion,notwithstanding his conclusion that the extreme hardship threshold had not been met.To reiterate, he reasoned:45(a) There remains a legitimate, ongoing public interest in X's namebecause of the initial allegations of sexual offending and his connectionto the Labour Party; the combined seriousness of the alleged offendingand the political dimension strongly engages the principle ofopen justice.(b) He was obliged to take the victims' views into account, and he assumedthat they wished suppression to be lifted.(c) Non-consensual touching is to be deterred.(d) X's own family and community might expect to be told about what hehad done.45 High Court judgment, above n 4, at [75]–[77].(e) X's prosecution has been thoroughly and publicly scrutinised by themainstream media: the allegations, the dismissals, the guilty pleas, andthe discharge without conviction have been fully reported, and therewas no suggestion of political interference in the process.(f) An outcome that is grossly disproportionate to the "actual offending"is a strong factor to be weighed when assessing whether thepresumption in favour of open justice is displaced.[61] The Judge concluded that the ongoing legitimate public interest in theproceedings, together with the principle of open justice, must prevail.46Discussion[62] In light of our conclusions in relation to extreme hardship, our starting point isnecessarily a little different from the High Court Judge's.47 And there are other aspectsof his reasoning with which we disagree.[63] First, we consider that the Judge paid insufficient regard to the fact that X wasa young, first time "offender". New Zealand law has long since recognised thedesirability of taking a more compassionate approach to young, first time offenders.Exactly one hundred years ago, for example, the enactment of the Offenders ProbationAct 1920 authorised the courts to prohibit the publication of the name of "any personaccused of an offence within the meaning of this Act [who] has not previously beenconvicted of any offence".48 As the Hon Sir Francis Bell — the Attorney-General —said during the second reading of the Bill:49There is a provision that the Court may require the Press not to publish thename of a person who is a first offender; so that the man or boy—most of thesecases are those of youths—will be subject to these restrictions without theactual restraint of the person,50 and without any publicity being given to thefact that he is a person who has been convicted of crime.46 At [78].47 Although we acknowledge that the Judge was proceeding on the hypothetical basis that he waswrong on the threshold question.48 Offenders Probation Act 1920, s 9.49 (13 October 1920) 188 NZPD 529–530.50 This is a reference to the wider object of the Act, which was also compassionate. It extended thediscretion of sentencing judges to release offenders on probation, rather than sentencing them toAnd, of course, the prohibition of the Court must be obeyed. That only appliesto the case of first offenders; if he commits another offence the Court has nopower to prohibit the publication. All these provisions are beneficial if usedwith due discretion by the Courts; and as I have said, we can only empowerthe Courts to be merciful, and trust them not to show mercy where vigorousrepression is required.[64] Secondly, it seems that no real weight was given to the fact that X had, for allrelevant intents and purposes, been acquitted. In that regard, too, the New Zealandapproach has, historically, been something of an outlier. Indeed, between 1975 and1976 there was a brief period where the publication of the name of an accused person(or any identifying particulars) was prohibited:51 unless and until that person [was] found guilty of the offence with whichhe [was] charged, or of any other offence of which he [was] liable to beconvicted in the proceedings, and a conviction [was] entered against him bythe Court.[65] These factors—X's youth, his lack of previous involvement in the criminaljustice process and the fact of his effective acquittal—all, individually, favoursuppression. As well, those factors speak strongly to X's prospects of rehabilitation.And, in turn, those prospects then also weigh strongly in favour of suppression.[66] We are unable to agree with the High Court that there is any compellingpublic interest in knowing X's identity. In reality, the public interest lies elsewhere:in the events themselves, the circumstances in which they occurred, and in the criminalprocess that led to X's discharge without conviction. All those matters have been, andcan continue to be, fully ventilated by the media.imprisonment (previously this power had extended to only first time offenders). It also introducedthe option of "discharge without sentence" under s 18, which was deemed to be an acquittal. TheAct was later repealed by the Criminal Justice Act 1954 and was replaced by a general discretionto order name suppression.51 The prohibition found form in s 45B (introduced by s 17 of the Criminal Justice Amendment Act1975) of the Criminal Justice Act 1954. Section 45B had been enacted on the basis of the 1972recommendation of one of the members of the Criminal Law Reform Committee, Ms PatriciaWebb, who had said: it is my view that, in the absence of very strong reasons to the contrary, it ought not to bepermissible, in any report of criminal proceedings ending in an acquittal, to disclose theidentity of the person charged: Criminal Law Reform Committee The Suppression of Nameof Accused – Statement of Views by Ms Patricia Webb (September 1972) at 2.Section 45B was repealed immediately following the 1975 general election: Criminal JusticeAmendment Act 1976, s 2(1).[67] While we acknowledge that it will often be important that, for protectivereasons, members of the public and future employers are able — by virtue ofpublication — to be aware of a person's past sexual offending, we say again that Xhas been deemed to be acquitted of the charges (which were reduced from indecentassault to common assault). Even more importantly, he is assessed as posing a verylow risk of reoffending. The District Court Judge would, we think, have orderedsuppression had he thought it was open to him. And, as the Judge in the High Courtnoted, his "offending was plainly an aberration and he is a fine young man fullydeserving of a career in his chosen profession".52 We do not consider that permittingpublication of his name will assist in achieving any legitimate social objective. As wehave already said, open justice is not and should not be concerned with publicshaming.[68] Lastly, we consider that the Judge's suggestion that defamation may be theanswer to misreporting here is unrealistic. Putting to one side the point that X isunlikely to have the wherewithal to bring such proceedings, the real potential formisreporting and for harm here arises not from the fourth estate but from social media:it may not even be possible to identify the perpetrators of misinformation.[69] We conclude that the Court's discretion should be exercised in favour ofsuppression here.Result[70] The application for leave to adduce further evidence is granted.[71] The application for leave to bring a second appeal is granted.[72] The appeal is allowed.[73] We make a permanent order prohibiting publication of the name, address,occupation or identifying particulars of the appellant pursuant to s 200 of the CriminalProcedure Act 2011.52 High Court judgment, above n 4, at [81].Solicitors:Crown Law Office, Wellington for RespondentAddendum[74] In order to comply with the suppression orders imposed by this Court, theversion of this judgment published and made publicly available on the JudicialDecisions Online website has been modified in part.