Rougeux v Police [2014] NZHC 979 (12 May 2014)

Last Updated: 18 August 2017

ORDER PROHIBITING PUBLICATION OF THE JUDGMENT AND ANY PART OF THE PROCEEDINGS (INCLUDING THE RESULT) IN NEWS MEDIA OR ON THE INTERNET OR OTHER PUBLICLY AVAILABLE DATABASE UNTIL FINAL DISPOSITION OF TRIAL [RETRIAL]. PUBLICATION IN LAW REPORT OR LAW DIGEST PERMITTED.

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

CRI 2014-425-11 [2014] NZHC 979

BETWEEN	REBECCA LEIGH ROUGEUX Appellant
AND	NEW ZEALAND POLICE Respondent

Hearing:	8 May 2014
Appearances:	K L McHugh for Appellant E Higbee for Respondent
Judgment:	12 May 2014

_{RESERVED JUDGMENT OF MANDER J}

Introduction

[1] The appellant appeals the decision of Judge Garland declining to grant a final order suppressing her name after conviction on one charge of theft by a person in a special relationship. The grounds of the appeal are that the Judge erred in his assessment that the appellant’s son would not suffer extreme hardship and was wrong not to grant final name suppression.

Factual background

[2] The appellant was the manager of a family owned retail business. As a result of concerns that money was being stolen from the premises, CCTV cameras were installed. On the same day as the installation the appellant was observed removing

_{an unknown amount of money from the till.}

ROUGEUX v NEW ZEALAND POLICE [2014] NZHC 979 [12 May 2014]

[3] When subsequently spoken to by her employer, the appellant admitted taking

$115 in cash and a block of cheese, and having taken further sums of $100 and $120 earlier in the year. It was on the basis of those admissions that the appellant entered her guilty plea and was subsequently sentenced to community work. The money the appellant admitted taking was repaid by her. She resigned her position with the business.

District Court decision

[4] Application for final name suppression was primarily based on the ground that publication of the appellant’s name would cause her 12 year old son to suffer extreme hardship. A further suggestion that her current employer would be affected should her name be published while argued before Judge Garland, was not pursued on appeal.

[5] Letters from a school counsellor, members of the appellant’s family, friends and her current employer were submitted in support of the application. The Police indicated that they did not oppose final name suppression. The victim however did, believing that in order to properly hold the appellant accountable the appellant’s name should be available for publication.

[6] Judge Garland referred to the overriding principle of open justice which is only to be displaced if one of the grounds set out in the relevant sections of the Criminal Procedure Act 2011 are made out. His Honour noted that good reasons for publication included the avoidance of possible suspicion falling on others and the promotion of denunciation and personal deterrence.

[7] His Honour rightly observed that extreme hardship is a high threshold and that a compelling reason or very special circumstance is needed in order for the statutory criteria to be established. The District Court described the test for extreme hardship as requiring a level of hardship that is excessive, devastating and out of all proportion to the public interest in the application of open justice.

[8] Judge Garland was satisfied that the appellant’s son would suffer distress and

embarrassment and that there may be adverse personal reactions from others if the

appellant’s name was published. He was not however satisfied that the high threshold had been met which displaced the principle of open justice. The application was declined.

Appellant’s argument

[9] Ms McHugh on behalf of the appellant argued that the Judge erred in his assessment that the appellant’s son would not suffer extreme hardship and failed to consider all matters relevant to the son’s position. In particular, it was submitted that the Judge only had regard to the usual “distress and embarrassment” caused to family members in such situations and did not sufficiently assess the weight of consequences to the appellant’s son as disclosed in the material provided to the Court.

[10] Ms McHugh emphasised what she submitted was the relatively minor nature of the theft in comparison to the potential consequences arising from the stress caused to the son, and that suppression was being sought not for the benefit of the appellant herself but for her 12 year old child. Ms McHugh was critical of the District Court Judge’s omission to analyse the content of the material provided to the Court and the consequences for the child in comparison to the public interest. In her submission, Judge Garland’s observation that the son would suffer distress and embarrassment and may suffer some adverse personal reactions from others did not adequately reflect the severe consequences for the family member.

[11] The appellant relied upon the Court of Appeal decision of B v R,¹ where it concluded that the District Court had not fully considered the position of family members, nor appropriately weighed the public interest in being able to identify the offender. In that case it was held that publication of the appellant’s name would cause immediate and unavoidable harm to family members if the appellant’s name was published notwithstanding their own names being suppressed. That case

_{however was decided under s 140 of the Criminal Justice Act 1985.}

¹ B (CA860/2010) v R [2011] NZCA 331.

[12] The application for suppression based upon the position of the appellant’s son rested on his personal situation. The material, which I will review shortly, disclosed that the 12 year old is vulnerable and, in particular, has been the victim of bullying.

Material submitted in support of the application

[13] A number of letters were filed in support of the suppression application in the District Court. This included material from the son’s guidance counsellor who referred to the potential for teasing should the details of his mother’s case be published. The guidance counsellor refers to the son as having suffered trauma from “losing three significant relationships, one to suicide”. No further detail is provided either from the counsellor or in any other material in expansion of this reference, although the child’s father is now domiciled in the United States and is separated from his son. The guidance counsellor refers to the possible implications of the appellant’s name not being suppressed on progress that has been achieved to date.

[14] A letter from the child’s father refers to his son having been exposed to bullying, concerns about the child’s self-esteem, and the risk of unnecessary ridicule and discrimination should his mother’s name be published. The appellant’s father wrote in support of his daughter, both in his capacity as a leader of the church to which his daughter belongs and as a parent. He expressed concern for his grandson who he confirmed had been the subject of bullying and was now receiving counselling. The appellant’s sister observed how the 12 year old had suffered from bullying at school and that this situation could be aggravated in the absence of name suppression for his mother. Two family friends further confirmed that the child has been the victim of bullying and that publication of his mother’s name may lead to what is described as unnecessary grief, embarrassment and problems for the child. It is reported that the bullying has been physical and has caused much upset and emotional trauma for the son. Their fears are that publication of the appellant’s name will provide further “fodder” for the bullies.

[15] A number of letters made reference to the uniqueness of the appellant’s surname and the likelihood of a connection being drawn between the name of the offender and her son.

The respondent’s position

[16] Mr Higbee on behalf of the Crown submitted that the Judge did not err in his approach to the issue and that his reasoning was orthodox in the circumstances. The threshold for extreme hardship as prescribed by s 200(2)(a) of the Criminal Procedure Act 2011 is a high one. While acknowledging the difficulties for the appellant’s son, it was submitted that even if disproportionate to the public interest, the hardship was not of a level which can be categorised as extreme. Reliance is placed on recent analysis of the statutory criteria by this Court concerning the threshold required to be met before a Court may consider exercising its discretion.

The statutory test

[17] Section 200 of the Criminal Procedure Act 2011 provides, as far as it is relevant to this appeal:

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

...

[18] Unlike s 140(1) of the Criminal Justice Act 1985, before a Court may exercise its discretion to make a suppression order, a statutory threshold is required to be satisfied.² It therefore follows that whether the statutory prerequisite has been established involves a matter of judicial evaluation and, in accordance with the approach directed by the Supreme Court in Austin, Nichols & Co Inc v Stichting

_Lodestar,³ _{an appeal Court is required to undertake its own assessment of whether}

² _{Fagan v Serious Fraud Office [2013] NZCA 367.}

³ Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103; [2008] 2 NZLR 141 at [16].

the threshold test is met. As was observed by Gilbert J in Beacon Media Group Ltd v

Waititi,⁴ the constraints on an appeal from the exercise of a discretion do not apply.

[19] While an appeal Court may therefore assess for itself whether the statutory criteria has been made out, obviously it is constrained by the words of the section itself and the stringent statutory test that now applies. Parliament requires a higher threshold to be reached before Courts can legitimately suppress an offender’s identity.⁵ In RM v Police, Priestley J observed that the test is a high one:

[43] ... Publication of any offender’s name will cause hardship to the offender and his or her family. Publication will excite curiosity, criticism, social ostracism, and embarrassment. But a suppression order can be made legitimately only if the damaging effects on the offender causes hardship which is extreme. The necessary extremity is contextual and will depend on the unique factual and personal circumstances surrounding each s 200 application.

[20] In order for “extreme hardship” to be established, a very high level of hardship has to be demonstrated. The consequences of publication must be beyond those normally associated with an offender’s name not being suppressed. In the circumstances of the individual case the hardship must be excessive and out of the ordinary. It must be significantly greater than “undue hardship” or simply disproportionate.⁶ Whether the statutory test is satisfied requires an assessment of fact and degree.

Analysis

[21] In R v Wilson,⁷ Whata J was concerned with an issue of suppression in relation to a 17 year old offender whose mental health was in jeopardy. In that case the risk of suicide could not be excluded in the event of publication. There was a high probability of a recurrence of anxiety and depressive symptoms which the young person had previously experienced. The Court was satisfied that the offender would likely suffer significant emotional distress if her name was published.

_{Whata J however was not persuaded that publication was likely to result in the type}

⁴ _{Beacon Media Group Ltd v Waititi [2014] NZHC 281 at [9].}

⁵ _{RM v Police [2012] NZHC 2080 at [43]; K v Inland Revenue Department [2013] NZHC 2426.}

⁶ Police v Rihari HC Whangarei AP10/98, 23 July 1988; R v Wilson [2014] NZHC 32; R v N

_{[2012] NZHC 2042 at [21].}

⁷ Above n 6.

or scale of extreme emotional hardship contemplated by s 200(2)(a). As clearly noted, each case must be determined on its unique factual and personal circumstances, however the case is illustrative of the high threshold required even when the mental health of a young person is in issue.

[22] I am very mindful that the hardship said to be caused is to a 12 year old child completely removed from the offending committed by his mother. I acknowledge the apparent inherent unfairness in the consequences of the offender’s wrongdoing being visited on an innocent party. Unfortunately, and as referred to by the learned District Court Judge, this is not an uncommon situation. Ms McHugh emphasised in her oral submission that it was the particular personal circumstances of this 12 year old which she relied upon. Counsel accepted that of itself the age and innocence of an offender’s child and the likely embarrassment and distress that may be caused to such children as a result of their parent’s offending is not what she relies upon and of itself cannot discharge the statutory requirement. The issue therefore devolves to whether the appellant’s son’s personal circumstances gives rise to extreme hardship should his mother’s name not be suppressed.

[23] I have with some reluctance concluded that the material does not bring me to the position where I can be satisfied that the statutory threshold has been established. The potential consequences for the appellant’s child distil to a continuation of the teasing and bullying he has already experienced and the potential risk, should the appellant’s name be published, of impeding the progress that school counselling has so far achieved. As a result there are concerns about the child’s self-esteem and emotional wellbeing. I have however not been provided with any professional assessment.

[24] What has been expressed to the Court are the understandable concerns of the child’s family, friends and guidance counsellor which are to be respected. It would be regrettable indeed if as a result of publication the appellant’s son is subject to further teasing and bullying. I am not satisfied however that those concerns, if they indeed eventuate, are of a sufficiently extreme nature to satisfy the statutory criteria, notwithstanding that hardship may have to be borne by a 12 year old.

[25] Emphasis was placed by Ms McHugh on the nature of the offending and, in terms of its seriousness, that it sits at the lower end of the scale. Whether the effect of non-suppression is excessive in light of the offending is a question of proportionality having regard to the public interest in open reporting. Such a consideration becomes relevant in the exercise of the discretion. In this case however it does not bear on the assessment of the statutory criteria of extreme

hardship on the person said to be so affected.⁸ There may be situations where the

nature of the offending contributes to the intensity of the likely hardship said to result, but the statutory criteria does not envisage some relative comparison between the seriousness of the charge and the degree of hardship. As the test for extreme hardship has not been established the Court’s discretion is not engaged.

Conclusion

[26] In my assessment, Judge Garland was entitled to conclude that the statutory threshold had not been established, notwithstanding the personal circumstances of the appellant’s son. Insofar as it may be relevant to the issue on appeal, I am satisfied that the learned Judge did appropriately have regard to the material upon which the application was based. The Court expressly acknowledged that the appellant’s surname is rare, that her son will be readily identifiable and may be the target of further teasing and bullying behaviour at school. Judge Garland recognised that the appellant will suffer distress and embarrassment if the appellant’s name is published, but was not satisfied that the high threshold had been established. Similarly, examining the issue afresh on appeal, I have not been brought to a different conclusion.

[27] The District Court decision refusing name suppression is therefore confirmed and the appeal dismissed.

Solicitors:

AWS Legal, Invercargill

Preston Russell Law, Invercargill

⁸ Above n 6 at [27] and [28].