Waterhouse v R [2023] NZCA 167 (11 May 2023)

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IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA174/2023
[2023] NZCA 167

	BETWEEN	RITCHIE THOMAS WATERHOUSE Applicant
	AND	THE KING First Respondent STUFF LIMITED Second Respondent

Hearing:	2 May 2023
Court:	Gilbert, Thomas and Woolford JJ
Counsel:	S T Hartley and M L Carey for Applicant A J Pollett for First Respondent E D Nilsson for Second Respondent
Judgment:	11 May 2023 at 2.30 pm

The application for leave to bring a second appeal against the refusal of name suppression is declined.
____________________________________________________________________

[1] This is an application for leave to bring a second appeal against the refusal of name suppression for the victim of a crime and his family.

[2] Mr Waterhouse and his family have lived on a rural property in Oropi, near Tauranga since June 2016. He and his former neighbour, Mr Peter Hull, did not get along. A long history of acrimony between them resulted in trespass notices being exchanged and occasional police involvement.

[3] On 19 September 2020, Mr Waterhouse claims Mr Hull did “burn-outs” on his driveway. Mr Waterhouse went to Mr Hull’s house to confront him. There is a dispute as to precisely what happened. However, it is apparent that Mr Hull made numerous attempts to obtain assistance from the police, but they did not attend immediately. In the period before the police arrived, matters escalated to the point where Mr Hull fired shots in Mr Waterhouse’s direction with his semi-automatic .22 calibre rifle. One of these shots hit Mr Waterhouse in his shoulder while he was in his vehicle. He required surgery at Waikato Hospital to remove the bullet. Mr Hull also fired at police when they arrived sometime later.

[4] Mr Hull was subsequently charged with wounding with reckless disregard for safety (the shoulder shot), two charges of discharging a firearm with reckless disregard (one relating to Mr Waterhouse and the other to the police), and one charge of possession of cannabis. After reaching agreement with the Crown about the summary of facts, Mr Hull pleaded guilty to these charges on 7 July 2022. He was sentenced on 16 September 2022 to 12 months’ home detention.

[5] Mr Waterhouse applied for name suppression pursuant to s 202 of the Criminal Procedure Act 2011 (the Act) claiming that publication of his name would be likely to cause undue hardship to him in that it would negatively affect his mental health. He also contended that publication would be likely to cause undue hardship to his wife and daughter by negatively affecting their mental health.

[6] Mr Waterhouse supported his application with an affidavit explaining that he had been contacted by a reporter from Stuff Ltd on 11 July 2022 who advised him they intended to publish an article about the incident and invited him to comment. Mr Waterhouse replied that he did not want to be named in the article and he did not wish to comment. He immediately instructed his lawyer to apply for name suppression and he consulted his doctor to obtain a letter in support.

[7] Mr Waterhouse stated in his affidavit that it had taken some time for him to recover his physical and mental health following the incident and was concerned that publication of his name would be detrimental to his mental health. He attached a letter from his doctor dated 13 July 2022 which recorded that although Mr Waterhouse suffered significant anxiety as a result of the incident in September 2020, he had made good progress with his recovery and had been doing well. The doctor stated that Mr Waterhouse had “gone backwards in the past few weeks since the issue of name suppression has been brought up” and this “has been made even worse in the past week with relentless targeting by the media”. The doctor stated that she supported Mr Waterhouse’s application for name suppression as she felt it would “affect his mental health detrimentally otherwise”.

[8] We note that the quoted passages in the doctor’s letter are incorrect, reducing the weight that could properly be attached to it. Mr Waterhouse had been contacted only once by the media, two days before the letter was written. He cannot have “gone backwards in the past few weeks” as a result of this issue resurfacing, nor could matters have become “even worse in the past week due to relentless targeting by the media”.

[9] Judge T R Ingram declined the application for reasons set out in his reserved judgment delivered on 10 August 2022.^[1] The Judge considered that publication would not result in undue hardship for Mr Waterhouse or any members of his family. The letter from Mr Waterhouse’s doctor fell well short of establishing anything other than his self-reported anxiety about publication of his name.^[2] Any hardship was not undue, given Mr Waterhouse’s involvement in the incident, which the Judge characterised as provocation based on the summary of facts.^[3] The Judge considered that publication of Mr Waterhouse’s name would not affect his dealings with people in the district. In that respect, the Judge accepted a submission by Stuff that the “horse has bolted”.^[4] Mr Waterhouse’s wife was also implicated because she had driven Mr Waterhouse to Mr Hull’s address that night.^[5] While his daughter had no involvement, there was no evidence that she would suffer any hardship beyond that normally expected.^[6] The Judge considered the public interest weighed in favour of publication of Mr Waterhouse’s name.^[7] In summary, he concluded that Mr Waterhouse was not an innocent victim and the public interest in having his name published far outweighed the very limited effect publication would have on him or his family.^[8]

[10] Mr Waterhouse exercised his right of appeal to the High Court. Robinson J dismissed the appeal for reasons set out in his judgment delivered on 9 March 2023.^[9] The Judge accepted that publication of Mr Waterhouse’s name may be stressful for him, but he was not satisfied it would be likely to cause him undue hardship.^[10] The Judge noted that Mr Waterhouse’s treatment for stress and anxiety in the period following the offending had been successful. There was no evidence to suggest that the methods he had learned to manage anxiety would not assist him to cope with any stress and anxiety that may arise from publication.^[11] Although the Judge did not consider it was necessary to go as far as the District Court had done in criticising him, he was satisfied that Mr Waterhouse was an active participant and any hardship publication might cause would not be greater than the circumstances warranted:

[45] Whether or not it is necessary to go that far for present purposes, there is no dispute that Mr Hull’s offending and Mr Waterhouse’s injuries arose out of an escalating feud between them. He had been trespassed from Mr Hull’s house, but he returned to it on the night in question. Regardless of who is to be blamed, and who should be embarrassed, Mr Waterhouse was hardly a mere bystander. He was actively involved. This means any hardship that publication might cause is less likely to be greater than the circumstances warrant.

[11] The Judge was also not satisfied on the evidence that Mr Waterhouse’s wife or daughter would suffer undue hardship.^[12]

[12] In these circumstances, the Judge considered there was no jurisdiction to make a suppression order.^[13] However, even if he was wrong about that, the Judge explained why he would not have exercised his discretion to order suppression.^[14]

[13] Leave for a second appeal must not be given unless the Court is satisfied the appeal involves a matter of general or public importance or a miscarriage of justice may occur if the appeal is not heard.^[15]

[14] Mr Waterhouse contends that a miscarriage will result if his appeal is not heard. He also argues that his proposed appeal raises issues of general significance.

[15] First, Mr Waterhouse argues that the Courts below erred in determining he and his family will not suffer undue hardship if name suppression is not granted. He says both Courts “attach[ed] dispositive weight” to the absence of evidence from mental health experts. He says this approach would effectively require an applicant in his position to provide evidence of a “clinically cognisable condition”. Mr Waterhouse says this places a gloss on s 202(2)(a) of the Act which this Court “should now strip away”.

[16] Secondly, Mr Waterhouse says the Courts below relied on the summary of facts in determining whether any likely hardship was undue. In doing so, they failed to have regard to the provenance of the summary of facts and the reasonable possibility that Mr Waterhouse was not involved in the manner described.

[17] Finally, Mr Waterhouse contends that if the High Court did undertake the second stage analysis as to whether the discretion should be exercised in favour of suppression, it failed to take into account material considerations by affording “unlimited weight” to open justice, “treating it as the starting and end point of the analysis”.

[18] For the reasons that follow, leave for a second appeal must be declined. The high threshold to justify leave for a second appeal has plainly not been met.

[19] The principles to be applied in assessing applications for name suppression are well settled. The first stage of the assessment involves a factual evaluation of whether there is a likelihood of undue hardship if name suppression is not granted. This is for the applicant to establish. Absent this being established, there is no jurisdiction to make the order and no room for the exercise of discretion at the second stage of the analysis.

[20] We do not consider any arguable error of general principle is disclosed by the High Court’s assessment, concurring with the District Court, that the evidence put forward by Mr Waterhouse fell short of establishing that publication would be likely to cause undue hardship to him or his family. The proposed appeal, which seeks to challenge this factual assessment, raises no issue of general or public importance. The High Court did not purport to set minimum criteria for the evidence required to establish undue hardship in any particular case. The “dispositive” feature of the present application was the absence of sufficient evidence to establish the likelihood of undue hardship in the circumstances of this case.

[21] It is not seriously arguable that the High Court placed inappropriate weight on the summary of facts. The facts relied on by the High Court in assessing whether any hardship would be undue, were set out at [45] of the judgment (quoted at [10] above). Those facts are common ground; they were confirmed in Mr Waterhouse’s written submissions to the High Court.

[22] Further, contrary to Mr Waterhouse’s submission, it is plain from reading the judgment that the High Court did not suggest that “unlimited weight” must be accorded to open justice such that it is the starting and end point of the second stage analysis. The High Court made no such error. The Judge stated that all circumstances favouring suppression must be weighed against the fundamental principle of open justice.^[16] This contemplates a weighing of competing considerations, none having “unlimited weight”.

[23] In summary, we reject Mr Waterhouse’s submission that his proposed appeal raises issues of general or public importance. Nor do we consider there is any risk of a miscarriage of justice. On the contrary, we consider the proposed appeal has no prospect of success.

[24] The application for leave to bring a second appeal against the refusal of name suppression is declined.

Solicitors:
Holland Beckett Law, Tauranga for Applicant
Crown Solicitor, Tauranga for First Respondent
LeeSalmonLong, Auckland for Second Respondent

Court of Appeal of New Zealand

Waterhouse v R [2023] NZCA 167 (11 May 2023)