Quigley v R [2024] NZCA 322 (17 July 2024)

Last Updated: 22 July 2024

IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA

CA135/2024 [2024] NZCA 322

	BETWEEN	LACHLAN WILLIAM QUIGLEY Applicant
	AND	THE KING Respondent

Court:	Palmer, Brewer and Downs JJ
Counsel:	S J Zindel and A N Sacheun for Appellant B So for Respondent
Judgment: (On the papers)	17 July 2024 at 11am

JUDGMENT OF THE COURT

The application for leave to bring a second appeal is declined.
__________________________________________________________________

REASONS OF THE COURT

(Given by Downs J)

• [1] Lachlan Quigley pleaded guilty to charges of sexual connection with a young person, making an objectionable publication, knowingly distributing such a publication, possession of an objectionable publication, and supplying alcohol to a minor. Mr Quigley was sentenced to a term of 11 months’ home detention.^[1]
• [2] Mr Quigley sought permanent name suppression on the basis publication of his name was likely to cause him, and/or his father, extreme hardship.^[2] Judge J E Rielly concluded otherwise and dismissed the application.^[3] Mr Quigley appealed to the High Court. Like Judge Rielly, Churchman J concluded the statutory threshold of a likelihood of extreme hardship was not met in relation to either Mr Quigley or his father.^[4]
• [3] Mr Quigley seeks leave for a second appeal to this Court.
• [4] Leave may not be granted unless the Court is satisfied the appeal involves a matter of general or public importance or a miscarriage of justice may have occurred, or may occur, unless the appeal is heard.^[5]
• [5] Counsel for Mr Quigley contend the proposed appeal involves a matter of general or public importance, namely the correct interpretation of the terms “hardship” and “extreme hardship”.
• [6] We disagree. Unsurprisingly, the case law, including the recent decision of the Supreme Court in M (SC13/2023) v R,^[6] establishes that these terms mean what they say.^[7]
• [7] Mr Zindel also contends Mr Quigley may suffer a miscarriage of justice unless the proposed appeal is heard because Judge Reilly and Churchman J were wrong to find the statutory threshold of a likelihood of extreme hardship was not met in relation to either Mr Quigley or his father.
• [8] We disagree for two reasons. First, the apprehended harm is speculative. In saying that, we do not doubt Mr Quigley and his father believe they will suffer (extreme) harm from publication of Mr Quigley’s name. But this does not make the apprehended harm any less speculative. Second, Mr Quigley confronts a concurrent determination, essentially of fact, that the threshold is not met. We see no prospect of that (concurrent) determination being successfully revisited given the speculative nature of the concerns about harm.
• [9] Perhaps anticipating this reasoning, Mr Zindel wishes to argue this places Mr Quigley and his father in an intolerable “Catch-22” situation, as it is not reasonable to expect either to identify independent evidence concerning the likelihood of extreme hardship. The answer to this contention is that name suppression is not available unless the identified threshold is met, and nothing in the record meets that threshold. This is not to conclude independent evidence is necessarily required in this context; no such rule exists. Rather, it is to emphasise the threshold is simply not met.

Result

• [10] The application for leave to bring a second appeal is declined.

Solicitors:
Zindels, Nelson for Applicant
Te Tari Ture o te Karauna | Crown Law Office, Wellington for Respondent

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^[1] R v Quigley [2023] NZDC 27518.

^[2] Criminal Procedure Act 2011, s 200(2)(a).

^[3] R v Quigley [2023] NZDC 28382.

^[4] Quigley v R [2024] NZHC 481. Consequently, neither Churchman J nor Judge Rielly addressed discretionary considerations, including the presumption of open justice, which arise only when one of the statutory thresholds for suppression is established.

^[5] Criminal Procedure Act, s 289(2).

^[6] M (SC13/2023) v R [2024] NZSC 29 at [69]–[70].

^[7] See for example Robertson v Police [2015] NZCA 7 at [48]–[49].