Walmsley v R [2014] NZHC 3204 (12 December 2014)

Last Updated: 16 December 2014

IN THE HIGH COURT OF NEW ZEALAND TIMARU REGISTRY

CRI-2014-476-000009 [2014] NZHC 3204

BETWEEN	FRANK RUSSELL WALMSLEY Appellant
AND	THE QUEEN Respondent

Hearing:	12 December 2014 (via AVL at Wellington)
Counsel:	D I Brown for Appellant A R McRae for Respondent
Judgment:	12 December 2014

_{JUDGMENT OF COLLINS J}

Introduction

[1] I am dismissing Mr Walmsley’s appeal from a decision of Judge Maze in which she refused to grant orders suppressing Mr Walmsley’s name.¹

[2] I am confirming Judge Maze’s decision because her Honour applied the correct legal principles, took into account only relevant matters, did not overlook any relevant matters and was plainly correct.²

Background

[3] I shall briefly summarise the police summary of facts. In doing so, I emphasise that Mr Walmsley has pleaded not guilty and elected trial by jury. He is presumed to be innocent. Name suppression decisions do not involve issues of guilt

¹ _{R v Walmsley DC Timaru CRI-2014-076-704, 13 October 2014.}

² May v May (1982) 1 NZFLR 165 (CA) at 170; B (CA860/10) v R [2011] NZCA 331 at [9]; Lawrence v R [2011] NZCA 272 at [11] and Rowley v Commissioner of Inland Revenue [2011] NZCA 160; [2011] NZSC 76 at [5].

or innocence. The police summary of facts is not evidence but constitutes the only information that has been presented to me about Mr Walmsley alleged offending.

[4] Mr Walmsley’s alleged offending occurred in Oamaru. He now lives with his

elderly father in Christchurch. Mrs Walmsley continues to work and live in Oamaru.

[5] Mr Walmsley is 56 years old. He describes himself as a “life coach” and an “emotional freedom techniques” counsellor.³ Mr Walmsley at one time was an approved caregiver for Child, Youth and Family Services (CYFS).

[6] Mr Walmsley is facing 85 charges that allege very serious sexual offending against five complainants.

[7] The charges against Mr Walmsley include a number which allege he raped four girls who were in their early teens. The charges against Mr Walmsley also include charges of performing indecent acts on complainants, one of whom was only

10 years old at the time of the alleged offending.

[8] The police summary of facts alleges Mr Walmsley offended against the complainants when they were in his care or in circumstances where bonds of trust had developed between Mr Walmsley and the complainants.

Basis of application

[9] Mr Walmsley sought name suppression under s 200(2)(a), (b), (d) and (e) of the Criminal Procedure Act 2011 (the Act).

[10] Those provisions enable a Court to prohibit publication of the name, address or occupation of a person charged with an offence, only if the Court is satisfied that

_{publication would be likely to:}

³ According to the police summary of facts “emotional freedom techniques” is a form of counselling that draws on various theories of alternative medicine and thought field theory. Thought field theory involves a practitioner tapping his or her fingers on meridian points of the body to release energy blockages that cause negative emotions.

(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

...

(d) create a real risk of prejudice to a fair trial; or

(e) endanger the safety of any person;

...

[11] The application under s 200(2)(a) of the Act is based on the following grounds:

(1) Identifying Mr Walmsley would expose him to public opprobrium.

(2) Identifying Mr Walmsley would have an extreme impact on his wife who lives in the community where the offending is alleged to have happened. It is said if she is forced to leave her place of residence she risks losing her employment and her home.

(3) Publishing Mr Walmsley’s name in connection with the charges will have a highly negative impact on his ability to continue his career if he is acquitted.

(4) Publishing Mr Walmsley’s name in connection with the charges will have a negative impact on some former clients who reside in a home for intellectually disabled people. It is submitted the anticipated reaction of those former clients of Mr Walmsley’s will cause serious issues for Mr Walmsley’s former colleagues.

[12] The application under s 200(2)(b) of the Act is based on a concern Mr Walmsley’s elderly father has the same name as Mr Walmsley and his father may be subject to suspicion, thereby compromising his health and safety.

[13] The application under s 200(2)(d) of the Act is based on a concern that publishing Mr Walmsley’s name is likely to adversely influence prospective jurors thereby undermining Mr Walmsley’s right to a fair trial.

[14] The application under s 200(2)(e) of the Act is based on a concern that members of the complainants’ families may take retributive action against Mr Walmsley if his name is published in connection with the charges.

[15] Mr Walmsley’s appeal is based on the same grounds that were advanced before Judge Maze. In his comprehensive oral submissions, Mr Brown, counsel for Mr Walmsley, properly focused on the key grounds Mr Walmsley advances in support of name suppression.

[16] Judge Maze rejected all of the arguments made on behalf of Mr Walmsley. I

will examine her Honour’s reasons when considering each of the grounds of appeal.

[17] The parties accept that the appeal from Judge Maze involves an appeal from the exercise of her Honour’s judicial discretion and that the test applied by the Court of Appeal in May v May governs my role when considering Mr Walmsley’s appeal.⁴

As a consequence, Mr Walmsley’s appeal could only succeed if he demonstrates Judge Maze acted on a wrong principle; took into account irrelevant matters; failed to take into account relevant matters or that she was plainly wrong.

Extreme hardship

[18] I have noted on previous occasions that prior to the passing of the Act, a person who wished to have his or her name suppressed in criminal proceedings faced difficult challenges because of the presumption of openness in criminal court proceedings.⁵ This point was made in R v Liddell where Cooke P explained:⁶

... the starting point must always be the importance in a democracy of freedom of speech, open judicial proceedings, and the right of the media to report the latter fairly and accurately as “surrogates of the public”.

⁴ _{May v May, above n 2, at 170.}

⁵ _{Jefferies v New Zealand Police [2014] NZHC 2379.}

⁶ R v Liddell [1995] 1 NZLR 538 (CA) at 546.

[19] This approach has been endorsed on many occasions by the Court of Appeal.⁷

[20] It was against that background that Parliament passed s 200 of the Act, under which, an applicant for name suppression must establish extreme hardship either to himself or herself or a person connected with himself or herself before he or she could have his or her name suppressed. When passing s 200 of the Act, Parliament raised the bar to obtaining name suppression from that which previously existed so that now, an application for name suppression requires proof of a very high level of

hardship.⁸

Extreme hardship to Mr Walmsley

[21] Like Judge Maze I accept that publishing Mr Walmsley’s name will cause him hardship because of the likely public reaction to the charges he faces. There is also likely to be some financial hardship, particularly if Mrs Walmsley has to cease working and find alternative accommodation.

[22] However, in my assessment, Judge Maze correctly concluded that the information before her fell well short of the high threshold of establishing extreme hardship.

[23] Those who are charged with serious criminal offences and have their name published are often the subject of adverse public reaction and financial hardship.⁹

Hardship of this nature does not amount to “extreme hardship”.

Hardship to Mrs Walmsley

[24] Mr Walmsley’s application is on stronger grounds when he refers to the

potential hardship Mrs Walmsley may suffer.

[25] Judge Maze appreciated Mrs Walmsley lives in a small community and that she is also likely to suffer hardship if her husband’s name is published in connection

7. See Proctor v R [1997] 1 NZLR 295 (CA); Lewis v Wilson & Horton Ltd [2000] NZCA 175; [2000] 3 NZLR 546 (CA) and Re Victim X [2003] NZCA 102; [2003] 3 NZLR 220 (CA).

⁸ RM v Police [2012] NZHC 2080; Law Commission Suppressing Names and Evidence (NZLC

_{109, 2009) at [3.6].}

⁹ Lewis v Wilson & Horton Ltd, above n 7, at [42]; Proctor v R, above n 7.

with the charges. Mrs Walmsley may be stigmatised by association and she may also suffer some financial hardship if she finds it necessary to move from the community in which she lives and works.

[26] However, like Judge Maze I am far from satisfied that Mr Walmsley has established a likelihood of Mrs Walmsley suffering extreme hardship. While one can have considerable concern and sympathy for the predicament Mrs Walmsley is in, her circumstances do not meet the high threshold prescribed by s 200(2)(a) of the Act.

Hardship to Mr Walmsley’s former colleagues

[27] The suggestion some of Mr Walmsley’s colleagues may face challenges when trying to manage some of Mr Walmsley’s former clients is not a persuasive argument and falls well short of the threshold set by s 200(2)(a) of the Act.

Undue hardship to Mr Walmsley’s father

[28] A lower threshold is required for name suppression under s 200(2)(b) of the Act. Under that subsection an application for name suppression may be granted where it is established by the applicant that publishing his or her name will cast suspicion on another person and cause that person undue hardship.

[29] “Undue hardship” requires more than hardship that would normally occur from publication of a defendant’s name. The test suggests a need to establish a real risk of greater hardship than the circumstances justify.

[30] Judge Maze explained Mr Walmsley’s father’s circumstances in the following

way:¹⁰

... His father has exactly the same name, and it is of real concern to me that someone who is not facing such charges might be, as an older man, mistaken as the person charged. But as the Crown has pointed out, if his age is able to be released then the scope for confusion will be lessened. I recognise, however, that in the civilised environment of a court hearing that may be very easily said, whereas in practical terms in the community there may well need to be some steps taken to protect the defendant’s father.

¹⁰ R v Walmsley, above n 1, at [20].

[31] In my assessment, the suggestion that suspicion will be cast on Mr Walmsley’s father is overstated. I would expect any responsible representative of the media who publishes Mr Walmsley’s name in connection with the charges would ensure no suspicion is cast on Mr Walmsley’s father by publishing the fact Mr Walmsley is 56 years old.

Prejudice to a fair trial

[32] There must be a real risk of prejudice to a fair trial before name suppression could be granted under s 200(2)(d) of the Act.

[33] The threshold of a “real risk” as a moderately high threshold reflects the view that Courts have traditionally:¹¹

(1) placed reliance on juries adhering to clear warnings about ignoring pre-trial publicity; and

(2) recognising that not all pre-trial publicity can be eliminated.

[34] Mr Brown submitted that an application for severance may be made and that if granted, the jury in the second or later trials should not know about earlier verdicts.

[35] In my assessment this submission is too speculative to carry much weight. If Mr Walmsley faces more than one trial steps can be taken to ensure his right to fair trials is not compromised. Options available may include suppressing publication of any convictions that might arise from a first trial.

[36] Mr Walmsley will be tried by a Judge and jury. It is very possible that prospective jurors will hear something about Mr Walmsley if his name is published in connection with the charges he is facing. However, the jury will be clearly and firmly instructed that any pre-trial publicity must be put from their minds when they

_{consider Mr Walmsley’s case.}

¹¹ R v B [2008] NZCA 130, [2009] 1 NZLR 293 at [77].

[37] Like Judge Maze, I am satisfied that fears about pre-trial publicity can be addressed through clear directions to the jury.

[38] Accordingly, I agree with Judge Maze’s assessment that the grounds relied

upon under s 200(2)(d) of the Act have not been established.

Risk of endangerment

[39] There must be a real risk that Mr Walmsley’s safety will be endangered if his name is published in association with the charges in order for name suppression to be granted under s 200(2)(e) of the Act. This is also a moderately high threshold.

[40] This ground of appeal was advanced on the basis that the father of some complainants threatened Mr Walmsley in May of this year, before Mr Walmsley was charged. Ms McRae advises the police dealt with that incident appropriately and will take appropriate steps to ensure Mr Walmsley is not subjected to any vigilante behaviour. The fact Mr Walmsley is now living in Christchurch is an important factor when assessing this concern.

[41] The approach which Judge Maze took in relation to this ground for name suppression was entirely orthodox and cannot be impeached.

Discretion

[42] The jurisdiction to grant name suppression is discretionary. Even if any of the statutory grounds for name suppression had been established I would have been reluctant to grant name suppression. The allegations against Mr Walmsley are particularly serious and in my view, the community has a right to know the identity of a person, such as Mr Walmsley, who has been charged with grave offending against girls. It is in the overall interests of justice that the prosecution of Mr Walmsley be conducted in an open and transparent manner with the community knowing Mr Walmsley’s identity.

Conclusion

[43] The appeal from the decision of Judge Maze declining Mr Walmsley name suppression is dismissed.

_{D B Collins J}

Solicitors:

Crown Solicitor, Timaru