Police v KK [2014] NZHC 1629 (11 July 2014)

Last Updated: 11 August 2014

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

CRI-2014-441-000016 [2014] NZHC 1629

BETWEEN	NEW ZEALAND POLICE Appellant
AND	KK Respondent

Hearing:	3 July 2014
Counsel:	R Fairbrother QC for Appellant FE Cleary for Respondent
Judgment:	11 July 2014

_{JUDGMENT OF ASHER J}

This judgment was delivered by me on Friday, 11 July 2014 at 1pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors/Counsel:

R Fairbrother QC, Napier.

Crown Solicitor, Napier.

NZ POLICE v KK [2014] NZHC 1629 [11 July 2014]

Introduction

[1] This is an appeal by the Solicitor-General against a decision of Judge Adeane granting KK permanent suppression of name.

[2] KK had pleaded guilty to a charge of indecent assault on the first victim, and two charges of assault of a child relating to the first victim and also a second victim. The two assault charges carried with them the maximum penalty of two years’ imprisonment at the relevant time. The maximum penalty today is 10 years’ imprisonment.

[3] The offending occurred between 1984 and 1990 when KK was living with the two victims as their stepfather. The first victim recalls that while living at the home of her mother and KK, KK would regularly come and lie next to her in bed. While lying with her he would put his hand over her body and feel her breasts and vaginal area on top of her clothing. On occasions he touched her vaginal area underneath her clothing. She was between eight and 10 years old at the time. She also recalls numerous beatings at the hands of KK when she was between eight and 14 years old. On one occasion KK used a leather strap to smack her hands and when she would not cry struck her with the strap on her legs and body, and around her neck, causing her major discomfort and pain.

[4] The second victim is the younger brother of the first victim. He recalls an occasion when he was eight years old disobeying KK on a minor matter. He was sent to his room. KK came in and picked him off the floor and threw him against the wall, and hit him numerous times with his hand over his whole body. He then took off his jandal and hit him numerous times around his head and body. This caused him major discomfort and pain.

[5] KK provided Judge Adeane with affidavit evidence that shortly after his offending he faced up to what he had done and took all steps he possibly could to redress any harm that he had caused. He undertook counselling which was initially with the victim. He then moved to another city and continued with the counselling. He deposed that:

I thought I should report myself to the Police, but took the advice of my counsellor that was not a constructive step. I now wish I had because this matter would have been addressed at the time and be part of our shared history.

[6] After the relationship with the victims’ mother ended and the counselling finished, KK proceeded to re-qualify himself. At the time of the offending he had been doing unskilled work as a freezing worker. After the counselling he completed a law degree and commenced working in the legal profession. He established himself as a widely respected law office manager. He has a good standing in his community. There are many testimonials filed in his support, including a testimonial from KK’s stepdaughter from his current relationship who has lived with KK since she was 11.

[7] There is also affidavit material which indicates that KK has already given up his law office job because of his convictions. He is now working in a more modest position in another office of good professional standing. It is accepted by the Crown that he will lose that job should his name be published. His current partner states that she will not be able to live with him should his name be published. She has great concerns about the effect this will have on her family, in particular her mother.

[8] KK sought suppression of name on the grounds of extreme hardship to himself. It was on this basis that suppression was granted.

[9] Mr Fairbrother QC for KK and Ms Cleary for the Crown disagreed as to the correct approach to this appeal. In order to set out the differences between them it is necessary to trace the procedural history.

Procedural history

[10] KK appeared initially on a greater variety of charges in the District Court. After some discussion and the withdrawal of some charges KK pleaded guilty to the one count of indecent assault and two counts of assault. He was sentenced on 10

September 2013 by Judge Down. KK had sought a discharge without conviction. This was declined and ultimately he was sentenced to nine months’ home detention. There had been interim suppression until that point.

[11] Judge Down stated that there was no basis upon which to continue that suppression and declined to make any further suppression order. He did, however, make an order that the names of the two victims were suppressed. The interim suppression order was in any event treated as extended to allow an appeal. That appeal was heard by Heath J on 23 October 2013.¹ Ultimately the appeal against sentence was withdrawn and dismissed. A question then arose as to the ongoing suppression of KK’s name.

[12] Heath J noted that the victim was entitled to automatic suppression of name under s 203 of the Criminal Procedure Act 2011 and that an oral waiver was insufficient. He determined that until the Court had a proper application from the female complainant for publication of her name, the statutory suppression of KK’s

name must continue in force. He therefore made an order:²

... suppressing the name of [KK] to ensure the publication of his name or identifying particulars does not lead to the identification of the female complainant.

In those circumstances, a suppression order, in respect of [KK’s] identity, is

justified by virtue of s 200(1) and (2)(f) of the Act.

He also stated:³

If I had had to consider separately whether [KK] was entitled to an order for suppression, I would have declined such an application. The Act is now clear that the fact that a defendant is well-known does not mean, of itself, that publication of his or her name will result in extreme hardship. Extreme hardship is required before an order for suppression can be made, in the absence of other circumstances of the type to which s 200 refers.

(footnotes omitted)

[13] The New Zealand Police then in February 2014 applied in the District Court under s 203(4)(a)(ii) of the Criminal Procedure Act 2011 for name suppression to be lifted. A statement was attached from the first victim in which she set out her desire

_{for name suppression to be lifted and the rationale behind that decision.}

¹ _{KK v Police [2013] NZHC 2786}

² _{At [13] and [14].}

³ At [15].

[14] KK filed a notice of opposition to that application for an order lifting the name suppression. He consented to the making of the order lifting the suppression of the first victim’s name, but applied for an order permanently suppressing his name.

[15] The matter then came before Judge Adeane in the District Court at Napier. The Crown argued that an application for name suppression should not be heard as suppression had been declined in the District Court on 10 September 2013. It was argued that the original order had not been appealed or the appeal had been abandoned, and accordingly there was no jurisdiction to grant the application.

[16] Judge Adeane did not deal with jurisdiction at all and does not appear to have been aware that there was a real point being taken. Ms Cleary for the Crown conceded that the issue arose in a busy court day and the jurisdiction point may well have not been made as clear as it might have been. However, the issue was raised again in the appeal hearing before me.

Analysis of the jurisdiction issue

[17] If indeed the suppression application had already been dealt with on its merits and a suppression order declined or any appeal against that order dismissed, then the principles of res judicata would have applied to the suppression order, and a further appeal rather than a fresh application was appropriate. I do not consider that to be an accurate analysis of the position.

[18] Clearly in the District Court before Judge Down the primary issue was discharge without conviction. It appears to have been accepted that if there was a discharge without conviction there would also be name suppression. When Judge Down refused the discharge of KK he stated:⁴

I think Mr Fairbrother QC is correct when he says that that application for name suppression really stands or falls with the application under s 106 of the Sentencing Act for a discharge without conviction .... I have therefore come to the conclusion that there is no basis upon which to continue your name suppression and from this time forward your name will be in the public domain.

⁴ R v [KK] DC Napier CRI-2013-020-000239, 10 September 2013 at [35].

[19] However, his name was not placed in the public domain and it could not have been, given the prohibition on publishing details that could lead to identification of a complainant.⁵ When the matter came before Heath J he noted that in fact there was already suppression in force in relation to KK’s name, because of the automatic suppression of the name of the victim. The publication of KK’s name would lead to identifying particulars of the victim. His Honour held that in those circumstances a suppression order in respect of KK’s identity was justified.⁶ His Honour therefore made an order suppressing KK’s name and identifying particulars of KK to ensure that the first victim was not identified. His Honour stated that if her application was successful KK’s name suppression would automatically lapse.

[20] Given that there had been no specific appeal in respect of name suppression from Judge Down, Heath J’s decision must be seen as the High Court exercising its inherent jurisdiction to grant interim suppression of name. There was no opposition to his order. The Crown has not challenged it. The effect of Heath J’s decision was to make an order that superseded Judge Down’s decision and imposed a suppression of name regime until the matter next came before the District Court.

[21] I regard Heath J’s observation that if the first victim’s application for waiver of the statutory suppression was successful KK’s name suppression would automatically lapse, as an obiter remark rather than a binding order. There had been no oral argument before Heath J of the name suppression point, and his remark was an observation rather than a direction.

[22] The steps being taken by both the Crown and defence leading up to this hearing were perfectly sensible. After the hearing before Heath J, the Crown applied for an order lifting name suppression under s 203(4)(a)(ii) of the Criminal Procedure Act, and the defendant filed a notice of opposition and its own application for suppression under s 200. In my view both these applications were properly made given the background circumstances, and the District Court had jurisdiction to either grant or decline name suppression. Judge Adeane, after having heard argument on

_{the merits of the application, proceeded to grant it.}

⁵ _{Criminal Procedure Act 2011, s 203(3).}

⁶ KK v Police, above n 1, at [14].

[23] I observe the jurisdiction point was not pressed strongly by the Crown. That was appropriate. The Crown could have hardly objected before Judge Adeane to KK’s opposition to its application to lift the name suppression. It was the Crown’s application, and KK was entitled to set out his arguments in support of suppression. There was a logical inconsistency in it claiming that Judge Down’s refusal of name suppression still applied, while it sought a new order from Judge Adeane removing suppression. To be fair to the Crown, Ms Cleary accepted that KK should be able to have a hearing on the merits of suppression before Judge Adeane, and that this appeal should proceed. There were possible implications, however, as to the correct approach to the appeal.

[24] Section 200 of the Criminal Procedure Act provides:

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 convicted or acquitted of, an offence.

(2) The court may make an order under subsection (1) only if the court is satisfied that publication would be likely to—

(a) cause extreme hardship to the person charged with, or convicted of, or acquitted of the offence, or any person connected with that person; or

(b) cast suspicion on another person that may cause undue hardship 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 is suppressed by order or by law; or

(g) prejudice the maintenance of the law, including the prevention, 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 that publication of his or her name will result in extreme hardship for the purposes of subsection (2)(a).

(4) Despite subsection(2), when a person who is charged with an offence first appears before the court the court may make an interim order under subsection (1) if that person advances an arguable case that one of the grounds in subsection (2) applies.

(5) An interim order made in accordance with subsection (4) expires at the person's next court appearance, and may only be renewed if the court is satisfied that one of the grounds in subsection (2) applies.

(6) When determining whether to make an order or further order under subsection (1) that is to have effect permanently, a court must take into account any views of a victim of the offence conveyed in accordance with section 28 of the Victims' Rights Act 2002.

[25] In relation to KK, it was necessary for extreme hardship to be established. I see this as a gateway through which an applicant must pass. Where the Court is making a decision as to whether certain statutory criteria apply, with certain specified statutory consequences following if they do, the decision is not discretionary. A decision has to be made applying mandatory criteria.

[26] The Supreme Court has recognised in a different context in R v Rajamani whether extreme hardship exists is not a matter of discretion but a matter of fact requiring judicial assessment.⁷ In my view, therefore, ordinary appellate principles must apply. This was also the view of Gilbert J in Beacon Media Group Ltd v Waititi⁸ and Brown J in X v Police⁹ in relation to suppression appeals.

[27] Therefore, the question of whether the threshold test of extreme hardship is established will be determined on the basis of the principles set out in Austin, Nichols & Co Inc v Stichting Lodestar.¹⁰ If my view on the threshold question differs from that of the District Court Judge then that would mean that the decision is wrong, even if it is a conclusion on which minds might reasonably differ.¹¹

[28] To conclude on the jurisdiction point:

(a) Judge Down’s to decline name suppression, as Heath J noted, was made without jurisdiction given that it would have led to the

⁷ _{R v Rajamani [2007] NZSC 68, [2008] 1 NZLR 723 at [4]–[5].}

⁸ _{Beacon Media Group Ltd v Waititi [2014] NZHC 281 at [5].}

⁹ _{X v Police [2014] NZHC 934 at [12].}

¹⁰ _{Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141.}

¹¹ At [16].

identification of the victim, in breach of s 203 of the Criminal

Procedure Act.

(b) Heath J ordered name suppression for KK when the matter came before him on appeal. That is best treated as an interim order. He envisaged that there would be a Crown application to dispense with that suppression should the first victim provide a written waiver of her entitlement to suppression.

(c) The Crown in due course applied to have KK’s suppression removed

and provided the written waiver.

(d) KK, as he was entitled to do, cross-applied for a suppression order.

(e) Thus, there were two applications before Judge Adeane, an application to remove suppression, and a cross-application to make a suppression order, and he determined those applications by granting the cross application for suppression, despite the first victim’s waiver.

[29] It is now necessary to consider the merits of the application.

The positions of the parties

[30] Mr Fairbrother put forward two key arguments in support of the application for suppression:

(a) KK would lose his job if his name was published, and he was unlikely to get another.

(b) KK’s partner would leave him if his name was published.

[31] In a related point he also argued that KK had effectively started a new life following the offending and it would be extreme hardship to take away the benefit of all that he had accomplished.

[32] In response the Crown submitted that there was nothing “extreme” in the prospective loss of job and partner. The various factors relied on did not amount to extreme hardship. Emphasis was placed on the first victim’s wish that KK’s name be published.

The decision granting suppression

[33] Judge Adeane noted that the charges related to historic offending dating back some 25 years. He referred to the first victim’s permission to have her name disclosed. The difficult question was the cross-application by KK. He recorded that KK had no previous convictions, a stable marriage relationship, and worked in a law office where he was trusted. He saw the situation as being that his reputation, and the reformation that had preceded it, would be destroyed if his name was published. He referred to a suggestion that his partner’s health was vulnerable, and could be adversely affected by publication. He noted that KK had shown an ability to reform himself. He adopted the view that “the balance favours him”.

[34] Judge Adeane referred to the requirement under s 200 that KK show extreme hardship in the event of publication, and he noted that Judge Down and Heath J had both not favoured name suppression. He saw the matter (in my view correctly as I have set out) as having been sent back to him with certain comments from those Judges. He noted, however, that the very detailed information that was now before him was not before either of those Courts. He concluded:¹²

Given the historic nature of the matter, in my view, it justifies an order for suppression of publication of the defendant’s name on a permanent basis.

[35] I record that although the Crown submits to the contrary, it is clear that he turned his mind to the necessity for an applicant to prove extreme hardship.

Analysis of the name suppression issues

[36] Mr Fairbrother put KK’s extreme hardship on the basis that following his

acceptance of his wrongdoing and the attendance of counselling, he had a “legitimate expectation” that he had done everything to address the harm he had caused. He did

¹² R v [KK] DC Napier CRI-2013-020-239, 11 April 2014 at [3].

not seek to hide what he had done. At that point he was in his 20s and he proceeded to forge a new life, good character and the respect in which he is held in his community.

[37] I do not consider it necessary to try and refine the words “extreme hardship”. It is clear from the statute itself that extreme hardship is something more severe than undue hardship, as it applies the two phrases to different circumstances. Extreme hardship is a very high threshold to cross, and will require circumstances considerably beyond those which ordinarily apply to a historic sex offender.

[38] As I have set out, there is no doubt that KK is not exaggerating when he says he will lose his present job should his name be published. I also accept that it is highly unlikely that he will be able to get another equivalent job in a professional office should his name be published.

[39] I also accept that although subjective issues as to what partners will do in the future can never be forecast with certainty, his partner sincerely intends to leave him should his name be published. Publication is likely, therefore, to take away from his career and his family life.

[40] While these are powerful factors imposing hardship on KK should his name be published, they do not on their own amount to extreme hardship.¹³

[41] I accept the Crown submission that the issue of KK’s continued employment as a lawyer is best dealt with by the Law Society and it is not for the Court to assume the role of the gatekeeper in that respect. The fact that the KK is a lawyer does not and cannot mean that he is treated differently from any other member of the public.

[42] The Courts have consistently emphasised the presumption in favour of openness and reporting. The starting point must always be the importance in a democracy of open judicial proceedings and the right of the media to report such proceedings fairly and accurately as “surrogates” of the public.¹⁴ The principle of

_{openness reflects the “public interest in knowing about all aspects of the operation of}

¹³ _{BL v R [2013] NZHC 2878 at [22].}

¹⁴ R v Liddell [1995] 1 NZLR 538 (CA) at 546.

the justice system”.¹⁵ Publication also may protect the public from further offending or encourage other victims to come forward.¹⁶

[43] Extreme hardship in the context of name suppression is not considered in a vacuum. It must be seen in the context not only of the hardship that the defendant claims will be suffered, but also in a context of the seriousness of the offending and the impact on victims. Here indecent assault carries a maximum sentence of 14 years’ imprisonment and Judge Down, in a decision that has not been challenged, considered that a starting point for the offending, assessing its culpability, was two

and a half years’ imprisonment with an end sentence of 10 months’ home detention.¹⁷

The culpability of the offending indicated by this penalty is a relevant factor to be weighed, and I do so.

[44] I note the first victim’s view that she has waived the protection of her name under s 203(4) and that she wishes to see KK’s name published. Under s 200(6) this is a matter that the Court must take into account, and on appeal I do take it into account. It deserves considerable weight given the victim’s suffering. However, it is not determinative of the outcome.

[45] In most cases where a person is convicted of an offence that is inevitably regarded by right thinking New Zealanders as abhorrent and a serious breach of trust, the consequence will be a loss of a job and severe damage to existing family relationships. This is an inevitable consequence of persons who are dealing with a defendant on a basis of trust, discovering that the defendant is not the person they thought he or she was, and who is indeed a person who has in the past committed a breach of trust and hurt vulnerable people.

[46] It will always be the case that where the offending has been historic and there has been no offending since that there is an increase in hardship, but this alone is insufficient to warrant more suppression. The fact that the offending was historic and took place 25 years ago would again not of itself be sufficient to cross the

_{threshold of extreme hardship.}

¹⁵ _{EPL v Police HC Auckland CRI-2010-404-76, 22 April 2010 at [37].}

¹⁶ _{Proctor v R [1997] 1 NZLR 195 (CA) at 300.}

¹⁷ R v [KK], above n 4, at [28].

[47] For these reasons, the factors considered so far are in my view insufficient to put KK through the extreme hardship gateway. Nevertheless, I propose to dismiss the appeal and uphold the District Court decision. This is because there is an unusual factor in this case which adds further to the hardship and makes it extreme. It is a factor that was not referred to by Judge Down or Heath J in their dicta on suppression as it was set out in a later affidavit that was before Judge Adeane. It is that shortly after the offending, KK’s wrongdoing was discovered or revealed, and KK had to face his victims and the fact of the offending back then in the early 1990s. The possibility of there being complaints to the Police arose in the course of meetings. KK went through counselling and the counsellor recommended against complaints being made to the Police.

[48] Thus, unlike many historic sex cases where the offender has not recognised the offending for many years, this offending was in fact revealed after it occurred, and the defendant accepted it and the consequences of what he had done. Indeed, he deposed on affidavit that he thought he should report the offending to the Police but that the counsellor advised against that as that was not a constructive step. This happened over 20 years ago. Short of him inviting the Police to prosecute him, contrary to the advice of the counsellor, there was nothing more he could have done to atone for his offending.

[49] It was then, having accepted his wrongdoing and gone through a process of counselling, that KK commenced the next phase of his life. As an unskilled person he proceeded to put himself through law school, obtain a law degree and forge a career for himself in the profession. In those circumstances it would be a very extreme punishment to publish his name and destroy the life that he has created for himself since his acceptance of wrongdoing.

[50] This is a case, therefore, where there is a particular factor, namely KK being confronted by and accepting his offending shortly after it had taken place, and then over approximately the next 20 years forging himself a new career and a new relationship. This, combined with the severe consequences now of publication, means that there would be extreme hardship if KK’s name was not suppressed. The

hardship to KK arising from the publication would be out of all proportion to the public interest in the application of the principle of open justice.

[51] It follows therefore that I consider that Judge Adeane made the correct decision when he found there to be extreme hardship. He has not made an error in exercising his discretion to order suppression of KK’s name.

Result

[52] The appeal is dismissed.

...................................

Asher J