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NOTE: PUBLICATION OF NAME OR IDENTIFYING PARTICULARS OF THIRD RESPONDENT PROHIBITED BY S 140 OF THE CRIMINAL JUSTICE ACT 1985.

NOTE: ALL IDENTIFYING PARTICULARS IN RELATION TO THIRD RESPONDENT HAVE BEEN REDACTED.

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CIV-2014-409-865 [2015] NZHC 2567

BETWEEN	ANNE-MARIE FORSYTH
First Applicant

KAREN BEAUMONT Second Applicant	

AND	
DISTRICT COURT AT LOWER HUTT First Respondent

DISTRICT COURT AT CHRISTCHURCH Second Respondent

A
Third Respondent	

Hearing:	2 September 2015	

Appearances:	
N M Pender for Applicants
J Eaton QC for Respondents	

Judgment:	
20 October 2015	

JUDGMENT OF MANDER J

Introduction

[1]       The applicants, Anne-Marie Forsyth and Karen Beaumont are sisters.   As young girls in the 1970s, they were the victims of sexual abuse at the hands of the third respondent, A.  Some 20 years later, the two women complained to police.  A
was subsequently convicted of discrete acts of sexual offending against both women.

FORSYTH & ANOR v DISTRICT COURT AT LOWER HUTT & ORS [2015] NZHC 2567 [20 October 2015]

[2]       When A first appeared before the District Court in 1994 an interim order was made suppressing publication of his name.  That order remained in place throughout the  criminal  proceeding  and,  notwithstanding  A’s  subsequent  conviction  and sentence, has remained in force ever since.1

[3]       Because of the sexual nature of the charges, Ms Forsyth and Ms Beaumont’s names were the subject of automatic statutory suppression.2   However, in 2014, they applied successfully for orders lifting that suppression.3   They contend the only basis upon which the interim order was made suppressing A’s name was for the purpose of preserving   their   statutory   protection.      Having   waived   their   entitlement   to suppression, they submit there is no longer any need to preserve the order made in
A’s favour.

[4]       The sister’s seek to judicially review the decision by the District Court at Lower Hutt, alleging error on its part in granting interim name suppression to A. Further, that after the matter was transferred for the purpose of trial before the Christchurch  District  Court,  it  failed  to  review  or  discharge  the  interim  order. Finally, it is alleged that more recently the Christchurch District Court erred in finding that continuation of the suppression order was  not conditional upon the maintenance of the statutory suppression in favour of the sisters and did not automatically lapse once their own suppression was lifted.

[5]       The sisters seek an order quashing the interim suppression order or, in the alternative, a declaration that the interim order was conditional upon the sisters’ statutory protection which lapsed when their suppression was lifted.

[6]       In the usual way, the first and second respondents, being the District Courts at
Lower Hutt  and  Christchurch,  abide the decision and  were  granted leave to  be excused from attendance at the hearing.

1	Section 140(2) of the Criminal Justice Act 1985 provides that an interim suppression order which is temporarily unqualified will crystallise into a permanent order.
2	Criminal Justice Act 1985, s 139.
3	Forsyth v A DC Christchurch CRI-1994-032-158816, 1 August 2014 [Judge Kellar’s decision].
The sisters applied to lift their suppression pursuant to s 139(2A) of the Criminal Justice Act.

Background

[7]       In April 1994, the sisters made complaints to the police about A’s sexual conduct  towards  them  as  children.     The  following  month,  A  was  formally interviewed at the Lower Hutt Police Station before being charged.   He appeared before the local Court that same day.   The circumstances relating to this first appearance will be reviewed in more detail later in this judgment.  A entered no plea and was bailed.   It was at this first appearance that the interim name suppression order the subject of this proceeding was made.

[8]       The charges were transferred to the District Court at Christchurch.  A was tried in that Court in March 1995, and subsequently sentenced the following month. He was found guilty of having indecently assaulted Ms Beaumont when she was aged  14.    In  relation  to  Ms  Forsyth,  A was  found  guilty  of  three  charges  of performing an indecent act on her when she was aged 10 and of a further charge of indecent assault when she was 14.  During this period, A […] was aged between 21 and 25 years.

[9]       There is no record of the interim order made by the Lower Hutt Court ever having been revisited.  A newspaper report published during the course of the trial refers to “interim suppression of the defendant’s name [being] in force”.4   Similarly, a newspaper report detailing the outcome of the trial refers to the defendant’s name being suppressed.5    A third newspaper article reporting the outcome of sentencing refers only to “a 40-year-old Christchurch businessman…” and appears premised on an extant order suppressing A’s name.6

[10]     In April 2010, A lodged a complaint with the Privacy Commissioner.   The previous year, an employee of the police had unlawfully downloaded from the police database a copy of A’s criminal record, and provided it to A’s employer.  A copy of that record was also given to the Sensible Sentencing Group Trust (the Trust), and
details of A’s name, convictions and sentence were posted on its website.   The

4	“Accused Denies Indecency Charges” The Press (Christchurch, 22 March 1995) at 24.
5	“Jury Finds Man Guilty of 5 Counts in Sex Case” The Press (Christchurch, 23 March 1995) at
22.
6	“Man Jailed on Sex Charges 20 Years After Offences” The Press (Christchurch, 11 April 1995)
at 20.

Privacy  Commissioner  referred A’s  complaint  to  the  Director  of  Human  Rights Proceedings (the Director) who commenced a proceeding in the Human Rights Review Tribunal (HRRT) in April 2013, alleging breaches of privacy principles and of the Privacy Act 1993.

[11]     As a result of a newspaper article about A’s privacy complaint, the sisters were alerted to A’s position that he had name suppression.   Both have deposed of their understanding and belief that after the conclusion of the criminal proceeding A no longer had the benefit of name suppression.  They applied to the District Court at Christchurch for orders permitting the publication of their names.  They also sought an associated order to the effect that the interim suppression order made by the Lower Hutt District Court would lapse upon the making of the order permitting publication of their names.

[12]     Judge Kellar granted the first order permitting the publication of the sisters’ names.7     The Judge, however, declined the second order on the basis he had no jurisdiction to discharge the interim order made in the Lower Hutt Court in May
1994.

Applicable law

[13]     Publication of the sisters’ names had been prohibited by s 139 of the Criminal

Justice Act 1985 (the Act). That provision provided:

139      Prohibition  against  publication  of  names  in  specified  sexual cases

(1)        No person shall publish, in any report or account relating to any proceedings commenced in any court in respect of an offence against any of sections 128 to 142A of the Crimes Act 1961, the name of any person upon or with whom the offence has been or is alleged to have been committed, or any name or particulars likely to lead to the identification of that person, unless-

(a)	That person is of or over the age of 16 years; and

(b)	The court, by order, permits such publication.

7	Judge Kellar’s decision, above n 3.

[14]     Name suppression in respect of a person accused or convicted of an offence was governed by s 140 of the Act:

140	Court may prohibit publication of names

(1)        Except as otherwise expressly provided in any enactment, a court may make an order prohibiting the publication, in any report or account relating to any proceedings in respect of an offence, of the name, address, or occupation of the person accused or convicted of the offence, or of any other person connected with the proceedings, or any particulars likely to lead to any such person's identification.

(2)        Any such order may be made to have effect only for a limited period, whether fixed in the order or to terminate in accordance with the order; or if it is not so made, it shall have effect permanently.

(3)        If any such order is expressed to have effect until the determination of an intended appeal, and no notice of appeal or of application for leave to appeal is filed or given within the time limited or allowed by or under the relevant enactment, the order shall cease to have effect on the expiry of that time; but if such a notice is given within that time, the order shall cease to have effect on the determination of the appeal or on the occurrence or non-occurrence of any event as a result of which the proceedings or prospective proceedings are brought to an end.

(4)        The making under this section of an order having effect only for a limited period shall not prevent any court from making under this section any further order having effect either for a limited period or permanently.

[15]     After  the  Director  filed  his  proceedings  against  the  Trust  for  alleged interference with A’s privacy, the HRRT made suppression orders in relation to A’s name pending final resolution of the privacy proceeding.8

[16]     The Trust applied for judicial review of the HRRT’s orders.  Its application was struck out by the High Court.9   The Trust appealed to the Court of Appeal.  In dismissing the appeal, the Court observed there was no record of the interim suppression order made by the Lower Hutt District Court being discharged.10    The
Court of Appeal held that if the District Court made no further order in relation to the

8	Director of Human Rights Proceedings v The Sensible Sentencing Group Trust [2013] NZHRRT
14.
9	The Sensible Sentencing Group Trust v The Human Rights Review Tribunal [2013] NZHC 2720.
10	The Sensible Sentencing Group Trust v The Human Rights Review Tribunal [2014] NZCA 264 at
[29].

suppression of A’s name, then the effect of s 140(2) of the Act was that the interim

order had permanent effect.

Judicial review and its application to the present case

[17]     Judicial review proceedings are not an avenue of appeal on the merits; they challenge process rather than outcome, and are invoked as part of the supervisory jurisdiction of the High Court.11    In the present case, the overarching and ultimate question requiring resolution on review is whether the process leading to the making and continuation of the interim suppression order bears scrutiny, not whether the order was right or wrong.12    In the context of the present proceeding, that includes the need to ensure the decision maker adhered to the principle of natural justice, the need for the decision making process to be founded upon a correct understanding and interpretation of the facts, the relevant law, and the taking account of all relevant considerations.13

[18]     Insofar as a right of appeal may potentially impact upon the appropriateness of judicial review, in this instance access to that right was limited to the prosecutor, the Solicitor-General and the accused.14  The complainants had no right of appeal.  In any event, judicial review is a remedy that is available notwithstanding the existence of any appeal rights, although such rights may bear on the appropriateness of review and is relevant to the exercise of the discretion to grant relief.15   Although the sisters
anticipated a challenge to this Court’s jurisdiction to entertain an application for

11         Brannigan v Sir Ronald Davison [1997] 1 NZLR 140 (PC) at 148; Lab Tests Auckland Ltd v Auckland District Health Board [2008] NZCA 385, [2009] 1 NZLR 776 at [385]; Discount Brands  Ltd  v  Northcote  Mainstreet  Inc  [2004]  3  NZLR  619  (CA)  at  [62];  Newspapers Publishers Association of New Zealand (Inc) v Family Court [1999] 2 NZLR 344 (Full HC).
12	New Zealand Federation of Commercial Fishermen Inc v Minister of Fisheries HC Wellington
CP237/95, 24 April 1997 at 3; Fraser v State Services Commission [1984] 1 NZLR 116 (CA) at
127; Newspapers Publishers Association of New Zealand (Inc) v Family Court [1999] 2 NZLR
344 (Full HC) at 346.
13         New Zealand Maori Council v Attorney-General [1987] 1 NZLR 641 (HC and CA) at 678; Mackenzie District Council v Electricity Corporation of New Zealand [1992] 3 NZLR 41 (CA) at 44; Fiordland Venison Ltd v Minister of Agriculture and Fisheries [1978] 2 NZLR 341 (CA) at 356.
14         Crimes Act 1961, ss 379, 379A(1)(ba), 383(1)(c) and (2); District Courts Act 1947, s 28E(2(B); Summary Proceedings Act 1957, s 115C.
15         Judicature Amendment Act 1972, s 4(1); Ding v Minister of Immigration (2006) 25 FRNZ 568 (HC) at [15]; New Zealand Maori Council v Attorney-General [1987] 1 NZLR 641 (HC and CA) at 678; Mackenzie District Council v Electricity Corporation of New Zealand [1992] 3 NZLR 41 (CA) at 44; Fiordland Venison Ltd v Minister of Agriculture and Fisheries [1978] 2 NZLR 341 (CA) at 356.

review on the basis of rights of appeal existing, that issue was not pursued by A.  In any event, as I have said, the sisters had no personal right of appeal.

[19]     Decisions of the District Court are amenable to review, and in New Zealand a decision  of  the  District  Court  to  grant  or  refuse  to  grant  name  suppression  is amenable  to  judicial  review;  it  will  be  the  appropriate  procedure  for  someone affected who was not a party to the application for suppression.16

[20]     The sisters have deposed to being constrained in their ability to speak about what happened to them and how A offended against them.  They wish to tell their story.  Ms Forsyth has deposed of wanting to become an advocate in this area so that other people can learn from her experience and keep themselves and their children safe.  In their view, A has by default had the undeserved benefit of name suppression premised only on the need to maintain their statutory protection which no longer exists.

[21]     The sisters have significant personal or private interests in the proceeding beyond those shared with members of the public at large.  In particular, they submit their rights of freedom of expression are infringed by the suppression order in favour of A, restricting their ability to tell their story and speak publicly.17    It is therefore clear they have standing to bring this application.

The sisters’ challenge to the suppression of A’s name

Interim suppression granted by the Lower Hutt District Court

[22]     The sisters’ challenge to the interim suppression order made by the Lower
Hutt District Court is primarily based on the submission that A had no grounds for name suppression in his own right, and the decision to grant interim suppression was

16         Auckland District Court v Attorney-General [1993] 2 NZLR 129 (CA); Tauhara Properties Ltd v Mercantile Developments Ltd [1974] 1 NZLR 584 (SC) at 592; Thomson v Attorney-General [1996] 1 NZLR 21 (CA); Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374 (HL); Lewis v Wilson & Horton Ltd [2000] 3 NZLR 546 (CA); Fairfax New Zealand Ltd  v  C  [2008] NZCA 39,  [2008] 2  NZLR 368  at  [17];  Transport Accident Investigation Commission v  Wellington  District  Court  [2008]  NZAR  595  (HC);  Newspapers Publishers Association New Zealand (Inc) v Family Court [1999] 2 NZLR 344 (Full HC).
17	Moxon v The Casino Control Authority HC Hamilton M324/99, 24 May 2000; Jefferies v
Attorney-General [2010] NZCA 38 at [108]; New Zealand Bill of Rights Act 1990, s 27(2).

made in error.   In furtherance of this principal contention the sisters identified a number  of  traditional  grounds  of  review,  which  they  submitted  gave  rise  to reviewable error for the following reasons:

(a)       it was based on a mistake of fact by the Court, which believed that an order was required to preserve the sisters’ statutory protection when this was not the case;

(b)	the Court failed to take into account relevant considerations;

(c)       the Court failed to consult with or provide them with an opportunity to be heard before making the interim order; and

(d)       the interim order was unnecessary, disproportionate and constituted an unjust limitation on the sisters’ freedom of expression in breach of s 14 of the New Zealand Bill or Rights Act.

The continuation of suppression by the Christchurch District Court

[23]     The second limb of the challenge to A’s name suppression rests on the alleged failure by the trial Court to review or discharge the interim name suppression order, and in particular the failure to do so at the conclusion of the trial in the Christchurch District Court.

[24]     Before examining the merits of these grounds, it is essential to determine the factual circumstances as accurately as possible on the available evidence and the state of the record.   This is of particular importance when regard is had to the fundamental premise upon which the sisters bring their proceeding, namely that the sole reason for A having the benefit of name suppression was the need to ensure the statutory protection of their names was maintained.

The challenge to Judge Kellar’s decision

[25]     I discuss in a discrete section below the sisters’ challenge to Judge Kellar’s decision declining to amend the Crown Book to record that the interim suppression order lapsed upon the lifting of their statutory protection.

The factual background to the making of the interim order

[26]     The  interim  order  suppressing A’s  name  was  recorded  by  the  presiding District Court Judge in a handwritten note he made on one of the informations.  The legibility of the handwritten endorsement gives rise to some conjecture.  The sisters maintain the note reads:

Interim order of suppression (non-publication) of [defendant’s] name and profession which is required to protect statutory non-publication of complainants name.

[27]     A interprets the Judge’s handwriting to read as follows:

Interim order of suppression (non-publication) of [defendant’s] name and profession which is required to protect [defendant’s] family non-publication of complainants name.

[28]     No expert handwriting evidence was called.   For myself, I am unable to discern A’s construction from the various reproductions of the information exhibited to affidavits.  However, in my view, having regard to the other available evidence, the disputed parts of the handwriting are immaterial.

[29]     Unsurprisingly, neither sister was present at A’s first Court appearance in Lower Hutt on the afternoon of 31 May 1994.  They were living in Christchurch, and their recollections of engagement with police and the Crown prosecutor regarding the issue of suppression would have been after the proceeding had been transferred to the Christchurch District Court.

[30]     The sisters rely upon the content of the handwritten record which refers to A’s name  being  suppressed  in  order  to  “protect  statutory  non-publication”  of  their names.   Ms Forsyth has deposed of her understanding that it was the police who applied for the interim order.  In support of that belief she refers to a transcript of A’s

interview with the police in the morning, before his Court appearance later that same day.

[31]     In the circumstances, it may well have been the police prosecutor who took the initiative regarding the issue of name suppression for A.  However, the passage referred to in the transcript of A’s interview is, in fact, supportive of his position that he was intending to seek name suppression in his own right, notwithstanding any concern  the  prosecution  may  have  had  that  publication  of A’s  name  may  have compromised the automatic statutory suppression of the complainants’ names.

[32]     A’s evidence is that prior to his appearance in the Lower Hutt District Court on the afternoon of 31 May, he had instructed his counsel, Ms Stephanie Dyhrberg, to seek an order suppressing his name.  At the time of his arrest, A held a senior management position with a foreign trading company, and it was important to him, for both family and business reasons, for his name to be suppressed.  He points to the reference in the Judge’s note of the interim order for suppression extending not only to his name but also to his “profession” as being consistent with this concern.

[33]     Ms  Dyhrberg’s  evidence  was  that  she  was  a  junior  litigation  solicitor employed  by a large commercial firm  which,  at that time, was  retained by the international company with which A was employed.  She was present at the time A was formally interviewed at the police station.   The interview was videoed and a transcript  produced.    At  the  conclusion  of  the  interview,  the  transcript  records Ms Dyhrberg advising A in the following terms:

D	We’ll seek interim suppression of name.  Seek a remand probably for a couple of weeks to enable you to fully instruct counsel…

[34]     That record is consistent with Ms Dyhrberg’s own evidence of a discussion she had with A about his concern that she apply for an interim order for suppression of his name.  Ms Dyhrberg has a specific recollection of A expressing concerns about the potential consequences of publication for both his family and business interests. En route from the police station to the Court, Ms Dyhrberg called one of the partners of  her  firm  to  discuss  what  was  to  happen  in  Court.    She  recalls  receiving

instructions from the partner that it was vitally important that she should make an

application for suppression of A’s name.

[35]     Ms Dyhrberg has further deposed that she did make an oral application before the presiding Judge.   She remembers the police prosecutor, as she recollects it, making her feel “a little foolish”, suggesting that she did not need to make the application because the statute required protection of the identity of complainants, and identifying A could identify the complainants, therefore interim suppression would be automatically ordered.  Ms Dyhrberg has no recollection of what the Judge actually said, other than that an interim order for the suppression of A’s name was made and her objective as counsel achieved.

The issue of suppression in the trial Court

[36]     As already observed, there is no formal record on the Christchurch District Court’s file recording the interim order being revisited.   In her first affidavit, Ms Forsyth recalls discussing the issue of name suppression with the Crown prosecutor and the officer in charge of the case after she became aware of the interim order. Such discussion clearly took place in Christchurch after the charges were transferred. Ms Forsyth deposed that it was explained to her that the order was for her benefit. However, at the time she disagreed strongly with that proposition.

[37]     Her initial evidence was that she did not recall the issue of name suppression being raised again, either with her, or in her presence when she attended the trial and the subsequent sentencing.  Her evidence is of being surprised that A had not tried to get the interim order extended.   She presumed that any suppression in A’s favour would lapse, and she was not aware of any intention that A would  have name suppression past the end of the trial.   It was her understanding that A had been identified and his convictions were public knowledge.  It was not until A’s privacy complaint that she became aware that his name had remained suppressed.

[38]     Ms Beaumont’s recollection is that A had name suppression “early on” and of being told that this was just until the trial was over, “in case he got off”.

[39]     For  his  part,  A’s  understanding  was  that  his  name  had  always  been suppressed, hence his complaint to the Privacy Commissioner.  His belief that he had the benefit of suppression came from his personal attendance at his trial, conversations with his trial counsel, and the fact that no media published his name following the sentencing, or any time thereafter.  A’s evidence is that suppression orders were a feature of the case, and that a final suppression order was made suppressing both the details of the victims and also his details […].

[40]     He   recalls   that   after   being   sentenced   to   imprisonment,   his   lawyers commiserated with him and pointed out that, at least, no details would be aired in public as there was a final suppression order applying to the identity of both the victims and himself.  It is not clear, however, whether this is a reference to an order under s 140 of the Act or to the statutory effect of s 139.

[41]     At the time of making his privacy complaint, A made inquiries of his counsel regarding their recollections of how the trial Court dealt with the issue of name suppression.   Senior counsel had no recollection.   Ms Dyhrberg, however, who appeared as junior counsel at A’s trial, recalled the interim suppression order being discussed between lead counsel and the presiding Judge, and that it was continued. In evidence prepared for the proceedings before the HRRT, Ms Dyhrberg referred to her working in Wellington at the time and assisting in the preparation of A’s defence, who was living in Lower Hutt.

[42]     She recalls A being concerned about protecting his reputation, and about the impact the case, and any resulting publicity, would have on his then two teenage children and his fiancée.  She recalls appearing with lead counsel at the jury trial in Christchurch in 1995, and that at the beginning of the trial, because of media interest in the case, of there being discussion about the interim suppression order which was still in place.  Ms Dyhrberg confirms Ms Forsyth’s evidence of her, as the younger of the two sisters, being angry about A having name suppression and wanting him to be identified publicly.

[43]     Ms Forsyth swore a second affidavit in reply to Ms Dyhrberg’s recollection

of the interim suppression order being the subject of discussion between lead counsel

and the presiding Judge, and of it being continued.  She deposed to remembering that during the trial, as she previously referred in her first affidavit, of “raising a fuss about name suppression”.  The Judge then had an in-chambers discussion with the lawyers.   Ms Forsyth is sure that this was after the jury’s verdict and before sentencing.

[44]     After the chambers meeting, Ms Forsyth referred to the prosecutor saying to her words to the effect, “they have left it for him to apply for name suppression.  It’s an old lawyer’s trick, they’re buying time so that by the time his name can be published everyone has lost interest”.   The meaning of this comment is not immediately apparent, and is capable of varying interpretations.

[45]     Ms  Dyhrberg’s  recollection  of  the  discussion  between  counsel  and  the

presiding Judge […] is that interim name suppression was […] continued.

[46]     As I have previously referred, Ms Dyhrberg can recall A being concerned that name suppression be continued, primarily to protect his children and fiancée, and to protect his personal reputation and career.  This, in large measure, is consistent with Ms Beaumont’s recollection that the reason A had name suppression “early on” was that it was just until the trial was over, in the event that he may be acquitted.

[47]     Ms Dyhrberg, however, cannot recall whether such reasons were formally presented to the Court in support of the application for continuing name suppression. Her recollection is that name suppression was continued because of the statutory requirement   not   to   publish   any   details   which   would   risk   identifying   the complainants, rather than for any reason personal to A to protect A’s identity.

[48]     Ms Dyhrberg did not attend the Christchurch District Court for the sentencing hearing.  She does recall senior counsel ringing her to inform her that A had been sentenced to 12 months’ imprisonment, but does not recall any conversation about name suppression.   She is unable to assist as to whether the District Court, at the time of the imposition of sentence, made an order for permanent name suppression.

[49]     The   Christchurch   District   Court’s   file   makes   no   reference   to   name suppression.  A copy of handwritten notes, which appear to have been made by the trial Judge at the time of sentencing, was exhibited as part of Ms Forsyth’s affidavit. The notes make no reference to name suppression, and it is not clear whether they record the submissions made to the Judge by counsel, or are the Judge’s own note of the sentencing remarks he was intending to make.  Under the heading Penalty, it is recorded that “for this man [A] whose reputation is everything being found [guilty] is punishment”.

[50]     An  implication  sought  to  be  drawn  from  those  words  are  that  they  are consistent with A’s offending being intended to be public knowledge.  However, as already observed, it is not clear whether this is a remark intended to be delivered by the Judge, or the recording of a submission made to him by counsel.  Reading the handwritten notes as a whole, I am inclined to the latter interpretation, however, it does not advance the issue.

Did the Lower Hutt District Court err in granting an interim order for the
suppression of A’s name?

[51]     The sisters submitted that at the time the Lower Hutt District Court made the interim name suppression order, A had no grounds for suppression in his own right. At the hearing of the judicial review application, the likely success of an application by A to have his name suppressed was scrutinised in submissions made by the sisters’ counsel.  This involved an examination of the concerns A was expressing to his counsel, Ms Dyhrberg, should his name not be suppressed against the relevant case law.

[52]     Reference  was  made  to  the  longstanding  presumption  in  favour  of  open justice and the high threshold required to secure suppression, both pre and post- conviction, as canvassed by the Court of Appeal around this proximate time, in the leading cases of Proctor v R and R v Liddell.18   Such an approach does not, however, advance the question of whether the Court’s decision to make an interim suppression order gave rise to any reviewable error, the merits of which are not the focus.  The
validity of the interim order is to be assessed on the basis of the situation faced by

18	R v Liddell [1995] 1 NZLR 538 (CA); Proctor v R [1997] 1 NZLR 295 (CA).

the Court at the time.   Those circumstances are tolerably clear on the face of the available evidence.

[53]     After his formal interview and subsequent charging at the police station, A appeared in the District Court that same day in the company of his counsel.   It is apparent that an application for A’s name suppression was to be made on his behalf based on personal and employment grounds.  In the event, the police took the view that the subject of A’s name suppression was not an issue as between the parties. The prosecution believed that it was necessary for A’s name to be suppressed, in order that there be no risk to the complainants’ statutory protection under s 139 of the Act.

[54]     Effectively,  the  parties  were  in  agreement  that  A’s  name  should  be suppressed.   It was not therefore strictly necessary for A’s counsel at that time to present any argument in support of A’s name being suppressed on grounds independent of those which appear to have been recorded by the presiding Judge in his handwritten note on the information.

[55]     Even had the police taken a different view of the need for A’s name to be suppressed, it would have been surprising if an interim order for the suppression of his name had not been granted at that stage.  The situation would likely be the same today.  At the time of his first appearance on 31 May 1994, A was a 39 year old man with no previous convictions, other than an unrelated driving conviction, who held a senior position in an international company.  He had a partner and teenage children.

[56]     He had only that morning been taxed about very serious allegations of sexual offending involving rape and indecencies alleged to have occurred some 20 years ago.   He had come directly from the police station after formal interview, during which he had denied the allegations.  He was appearing in a list Court, on the same day of his arrest, in relation to allegations of historical offending, about which it would appear he had not yet had an opportunity to either inform his family or employer.

[57]     A’s submission that the interim order was in effect a consent order is, in my

view, accurate.   The reality of the situation as faced by A at the time is, in large

measure, reflected even today in s 200(4) of the Criminal Procedure Act 2011, which provides that when a person who is charged with an offence first appears before the Court, the Court may make an interim order forbidding publication of a person’s name if that person advances an arguable case that one of the grounds supporting suppression provided in the section applies.  This reflects the established and routine practice of the Court in such circumstances.

[58]     The fact that the presiding Judge does not appear to have referred to the merits of A’s application is readily understandable.  It was likely unnecessary for Ms Dyhrberg to advance arguments in support of an application for A’s name to be suppressed in its own right given the stance being taken by the police at the time. That, however, does not bear either on the legality of the order or its validity.

[59]     It is equally apparent the order was made explicitly on the basis that it was only to have interim effect.   The corollary of A’s submission regarding the usual practice of a list Court granting name suppression on an interim basis to a person upon their first appearance and in such circumstances without hearing argument or inquiring into the merits of suppression, is the expectation that such order would be reviewed at a later point in the proceeding.  The Court’s preparedness to grant such an order is premised on the understanding that the issue will become the subject of greater scrutiny at a more appropriate and convenient point in the trial process.

[60]     My analysis of the factual circumstances in which the interim suppression order was made largely dispenses with the grounds of review put forward in support of the sisters’ submission that the granting of the interim order was misconceived. However, I will deal with each of the identified grounds submitted as having given rise to error on the part of the Lower Hutt District Court in granting the interim order.

Mistake of fact

[61]     It is submitted the interim order was based on a mistake of fact because the Court had been lead to believe that an order was required to preserve the sisters’ statutory  protection  when  this  was  not  the  case.    However,  such  a  submission requires the situation before the Court on 31 May 1994 to be viewed through an

unrealistic retrospective lens.  The police had received complaints from two sisters that they had been sexually abused […] when they were young girls.   The sisters have submitted there was no appreciable risk that identifying A would identify them as his victims, […] and that such risk could have been managed by suppressing those details rather than A’s name.19

[62]     That submission is tacit acknowledgment, both of the need at that time to avoid the identified risk, and that an alternative course available to the police upon A’s  first  appearance  before  the  criminal  list  Court  was  to  have  the  alleged perpetrator’s name suppressed, at least, on an interim basis.   Adopting the latter course to avoid that appreciable risk was a reasonable and practical course for the prosecution to adopt at that stage of the proceeding.  Informing the presiding Judge of the need for interim suppression for that reason did not result in any mistake of fact on the part of the Court.  That was the approach being taken by the prosecution at  the  time,  as  the  means  by  which  the  risk  of  undermining  the  complainants’ statutory protection could be avoided.

[63]     Even if the decision of the District Court is viewed retrospectively on the basis of a formal waiver by the sisters of their statutory protection, obtained from Judge Kellar in August 2014, it does not follow that any reviewable error is thereby established.  While the interim order appears to be couched by reference to the need to protect the sisters’ statutory suppression, the evidence presented establishes that A was himself seeking name suppression in his own right.   It is not apparent the prosecution view presented to the presiding Judge, that suppression of A’s name was necessary to preserve the sisters’ statutory protection, would have been a necessary condition precedent to the exercise of the Courts discretion under s 140 of the Act to suppress A’s name.

[64]     Importantly, neither an error by the prosecution in its view that suppression of

A’s name was necessary, nor the sisters lifting suppression of their own names in

2014 leads to the conclusion that suppression of A’s name on an interim basis in May
1994, in the known circumstances disclosed in the evidence, would have been unreasonable.

19	R v W [1998] 1 NZLR 35 (CA) at 40.

Failure to account for relevant considerations

[65]     The sisters have submitted the Lower Hutt District Court failed to take into account relevant considerations. As I understand the submission, it is a criticism that the presiding Judge did not inquire into all relevant facts, and failed to apply the presumption  of  open  justice  by  considering  alternative  and  more  proportionate fetters rather than suppressing A’s name.  This is a reference to the preferable course being a less restrictive order […].

[66]     For the reasons I have already canvassed, the list Judge did not fall into error by not inquiring further upon A’s first appearance into the grounds for suppression. The Court had been advised of the prosecution’s view that name suppression was necessary to avoid any appreciable risk of the complainants’ statutory protection being undermined. The parties were at one that an interim order should be made.

[67]     It is therefore unsurprising that the list Judge did not consider it necessary to conduct any fuller hearing at that stage into the grounds or merits of suppression which the parties to the proceeding were agreed should be ordered on an interim basis.  The criticism of the list Judge, that he should have imposed a more tailored suppression order relating to the evidence, is unrealistic.  It is unlikely that the list Judge, or, indeed, the prosecution itself, would have had access to a summary of facts, or could be expected to inquire beyond the representations being made by the police prosecutor regarding the need for the suppression of the defendant’s name.

[68]     At  that  first  calling  of  the  charges,  no  evidence  in  the  form  of  written statements or depositions would have been available to be tendered to the Court from which the presiding Judge could have assessed the narrative of the alleged offending […].

Natural justice – failure to consult or hear the sisters

[69]     It is submitted on behalf of the sisters that the list Judge failed to consult with, or give them an opportunity to be heard, before making the interim suppression order.  The sisters, however, were not parties to the criminal proceeding, and there was no requirement on the Lower Hutt Court to consult with them, or to hear from

them, before making the interim suppression order at A’s first appearance in the list Court.  The alleged failure by the Court to consult or provide the complainants the opportunity to be heard is not capable of giving rise to any procedural error, at least at that stage of the criminal proceeding.

[70]     The Victims Rights Act 2002 introduced an obligation on the prosecutor to take all reasonable efforts to ensure the views of a victim on an application by an offender for permanent suppression be ascertained and informed to the Court. However, no statutory requirement has been introduced mandating that the views of victims are to be ascertained and provided to the Court in respect to an interim application for name suppression.   That was the position when A was before the Court on his first appearance on 31 May 1994, and remains the current position. While the prosecution today may take steps to liaise with complainants about name suppression, even on a first calling of the matter, failure to obtain their view will not give rise to procedural error by the Court.

[71]     Similarly, s 200(6) of the Criminal Procedure Act requires the Court, when determining whether to make a permanent suppression order, to take into account any views of a victim of the offence.   There was no similar requirement in 1995. However, the section is statutory recognition of the rights and interests of victims who may be adversely affected by permanent suppression.   When examining the approach taken by the Christchurch trial Court to A’s suppression, and which was to result in it having permanent effect, that factor should not be lost sight of.  It feeds into the sisters’ submission that they should have been consulted and heard before the suppression order became permanent.

New Zealand Bill of Rights Act 1990

[72]     The final ground put forward in support of the submission that the granting of the interim suppression was misconceived is that the order was unnecessary and disproportionate, constituting an unjustified limitation on the sisters’ freedom of expression in breach of s 14 of the New Zealand Bill of Rights Act 1990.  For the reasons which I have already reviewed, that submission is unsustainable.  The order made by the list Judge was clearly on an interim basis.  The order was explicably

worded as “interim”, and the circumstances in which it was made, only a matter of hours after A had been charged with serious allegations of sexual offending, demonstrably show the order was proportionate and represented a reasonable limit on the freedom of expression, justified in a free and democratic society.20

[73]     The interim order, while made in those terms, did not, however, expressly set an  expiry  date.    Section  140(2)  of  the Act  provided  that  an  order  prohibiting publication of the name of a defendant may be made to have effect only for a limited period, whether fixed in the order or to terminate in accordance with its terms.  The interim order made by the list Judge did not prescribe the period for which it was to have effect, nor did it identify when, given its intended interim effect, it was required to be reviewed.

[74]     As is apparent from the Court of Appeal’s decision in relation to the privacy proceeding, the failure to stipulate a period in which the order was to have effect, or to fix the point at which the interim order was to terminate, resulted in the interim order having permanent effect.  That consequence is the subject of some focus later in this judgment.   However, the intention of the Judge sitting in the Lower Hutt Court was for the order to only be an interim one, and was made for that limited purpose.  Its interim status clearly behoved the trial Court to re-examine the issue of A’s name suppression afresh at  a more convenient and appropriate point in the criminal proceeding.

Conclusion on the making of the interim order

[75]     For the reasons discussed above, the sisters have not established that the District  Court  at  Lower  Hutt  made any reviewable error in  making the interim suppression order in May 1994.

Did the Christchurch District Court have a duty to review or discharge the interim order, and did it fail to do so?

[76]     In the absence of any formal record, the evidence of how name suppression was dealt with in the Christchurch trial Court is vague.  There is no evidence of the

20	New Zealand Bill of Rights Act 1990, s 5.

interim  order  being  revisited  by  the  Christchurch  Court  until  the  trial  itself. Ms Dyhrberg's evidence is that because there was some media interest, suppression was discussed between counsel and the presiding Judge at the commencement of the trial.   That media presence is confirmed by the reports published in the local newspaper.

[77]     It appears the interim order was continued during the course of the trial. Ms Forsyth    has    deposed    of    expressing    disagreement    with    that    course notwithstanding it being explained to her, presumably by the police officer in charge of the inquiry or the Crown prosecutor, that it remained in place for her benefit.  The newspaper reports, which do not disclose A’s name, and Ms Beaumont’s evidence of being told that A would continue to have name suppression until the trial was over, “in case he got off”, are also strong indications that name suppression continued during trial.  Equally, however, it appears the only reason why the interim order was extended was because of the concern that naming A may lead to the identification of the complainants.

[78]     What happened at the conclusion of the trial, after A was found guilty of a number of the charges, or at the conclusion of A’s sentencing hearing is similarly opaque.  There are a number of possibilities.  Firstly, that the issue of continuation of A’s suppression was simply not revisited and, by dint of s 140(2) of the Act, the interim order by default had permanent effect.  Secondly, the parties to the criminal proceeding accepted that it was necessary for A’s name to continue to be suppressed in order to preserve the victims’ statutory protection, and the interim order was deliberately allowed to continue to have permanent effect.  Thirdly, the Court and the parties (or at least the Crown) were labouring under the misapprehension that the interim  order  would  lapse  at  the  conclusion  of  the  trial,  if  not  renewed,  and proceeded on the basis that name suppression would not continue.  Finally, that the interim order was deliberately lifted, however, there was limited continuation of suppression for the purpose of A being afforded the opportunity to appeal.

[79]     That this wide range of alternative scenarios are possibly available tends to highlight the apparent error of process in dealing with A’s name suppression by the trial Court at the conclusion of the proceeding.  The issue that arises is whether there

was a failure by the Court to formally address or make a decision about continued name suppression at the conclusion of A’s trial, or, at the very least, at the time of his sentencing,  and  whether  permanent  suppression  was  reasonably available in  the circumstances.   The failure to record and/or give reasons to allow the interim suppression order to effectively become permanent, and whether such failures constitute a reviewable error also requires examination.

[80]     The sisters submitted that a search of the Court records has conclusively established that no order regarding A’s name suppression was made, other than the original interim order made in the Lower Hutt Court on 31 May 1994.  As a result, s 140(2) had the effect of rendering the interim order permanent, imposing, in their submission, “blanket secrecy” when none was warranted.   They submit the Christchurch District Court was obliged under the New Zealand Bill of Rights Act to discharge the interim suppression order unless there were demonstrably justifiable reasons for leaving it intact.   In the absence of any record of that exercise having been undertaken, reviewable error is established.

[81]     The sisters argued that by allowing the interim order to have permanent effect, the Christchurch Court permitted an unwarranted limitation to be placed on their freedom of expression which breached s 14 of the New Zealand Bill of Rights Act.  Such suppression was not necessary to secure a proper objective, either at the time, in terms of preserving their statutory protection, nor, importantly, in the wake of suppression of their names being lifted, when the original reason for A’s suppression was solely for the purpose of securing protection for them.   The suppression order is not therefore a justified limitation under s 5 of that Act.

[82]     A’s submissions in respect of this issue focussed on the unsatisfactory nature of the evidence as to what actually occurred before the trial Court in Christchurch. Apart from the newspaper articles, from which it is reasonable to infer the issue was considered  by  the  Court  and  a  decision  made  to  continue  with  suppression, A submitted there was an insufficient evidential foundation to show the issue of permanent suppression was not properly addressed.  In the absence of such evidence it was submitted the sisters’ challenge was speculative and should fail for that reason.

[83]     While I have found that the issue of A’s name suppression was raised before the trial Court and that suppression appears to have continued during the period of the trial, it is the process (or lack of it) by which the Court dealt with suppression at the  conclusion  of  the  proceeding  which  is  required  to  be  the  subject  of  focus, resulting as it did in the interim order having permanent effect.

[84]     There is an absence of any formal record of any decision having been made, let alone the reasons for that decision.  This situation is aggravated by the fact that it would appear that what discussion did occur regarding suppression was dealt with privately in chambers, with only the trial Judge and counsel privy to any consideration of the issue.  It is necessary therefore to examine whether there were grounds  available  to  the  trial  Court  which  could  justify A’s  suppression  on  a permanent basis.  It is the sisters’ submission that there were no grounds to depart from the principle of open justice and the freedom to receive and impart information protected by s 14 of the New Zealand Bill of Rights Act.  In particular, that it was not necessary to suppress A’s name to protect the victims’ statutory protection which, in their submission, was the only factor that concerned the Court in the circumstances.

[85]     In Lewis v Wilson and Horton Ltd, the Court of Appeal upheld the decision of this Court granting judicial review to a media organisation in respect of a decision by the District Court to prohibit publication of the name of the appellant.21    The High Court concluded that it was an “undeniable inference” from the absence of reasons for the suppression decision that the District Court had failed to give consideration to the right to freedom of expression recognised by s 14 of the New Zealand Bill of Rights Act.  The Court of Appeal, in upholding that decision, held that no grounds were available to the Judge which could have justified departing from the important
principle of open justice and the freedom to receive and impart information.  As a result, the suppression order had been made in error of law.

[86]     In reaching that conclusion, Elias CJ, delivering the judgment of a full Court, emphasised by reference to R v Liddell, that while the exercise of the discretion contained in s 140 of the Act was unfettered by any legislative prescription, the
starting point must always be the importance of freedom of speech recognised by

21	Lewis v Wilson & Horton Ltd [2000] 3 NZLR 546 (CA).

s 14 of the New Zealand Bill of Rights Act, and the importance of open judicial proceedings.22    Factors usually taken into account in deciding whether this prima facie presumption should be displaced in any individual case were usefully summarised as follows:23

·	whether the person whose name is suppressed is acquitted or convicted.
If acquitted, the Court may more readily apply the power to prohibit publication, although in R v Liddell the Court recognised (in adoption of R v D(G) 63 CCC (3d) 134) that the public has an interest in acquittals also;

·    the seriousness of the offending.   Where a person is convicted of a serious crime it will only be in rare cases that name suppression will be ordered.  Where the charge is “truly trivial”, particular damage caused by publicity may outweigh any real public interest (R v Liddell at 547);

·    adverse  impact  upon  the  prospects  for  rehabilitation  of  a  person convicted:  see, for example, B v B (High Court Auckland, 4/92, 6 April
1993, Blanchard J);

·    the public interest in knowing the character of the person seeking name suppression,   an  interest  which   has   been   acknowledged   in   cases involving sexual offending, dishonesty, and drug use (see, for example, R v Liddell; M v Police (1991) 8 CRNZ 14; Roberts v Police (1989) 4
CRNZ 429); and

·    circumstances personal to the person appearing before the Court, his family, or those who work with him and impact upon financial and professional interests.   As it is usual for distress, embarrassment, and adverse personal and financial consequences to attend criminal proceedings, some damage out of the ordinary and disproportionate to the public interest in open justice in the particular case is required to displace the presumption in favour of reporting.

[87]     The Court of Appeal held that a Judge must identify and weigh the interests, both public and private, which are relevant in the particular case, and that it would be necessary to confront the principle of open justice, and on what basis it should yield. As a Court is required by s 3 to apply the New Zealand Bill of Rights Act, it would necessarily have to  consider whether in  the  circumstances  the order prohibiting publication under s 140 is a reasonable limitation upon the s 14 right to receive and impart information such as can be demonstrably justified in a free and democratic society.

[88]     I have already cautioned against attempting an ex post facto determination of the merits of A being afforded name suppression in the context of his initial pre-trial appearance before the Court on 31 May 1994.  The situation, however, is very much clearer  after  A’s  conviction  and  sentence  at  the  conclusion  of  the  criminal proceeding.   It is not apparent on the evidence of any basis upon which A would have been afforded permanent suppression except other than out of a perceived need to preserve the statutory protection provided to the victims of his offending.

[89]     The  type  of  factors  referred  to  by  Ms  Dyhrberg,  upon  which  she  was intending to rely before the Lower Hutt Court, while potentially of some weight on a pre-trial basis, particularly when coupled with the presumption of innocence, cannot realistically be suggested as providing a basis by which A’s name could have been legitimately suppressed  in  its  own right  after  conviction.    Ms  Dyhrberg herself deposed of her own understanding that the only ground for name suppression when the  matter  was  before  the  trial  Court  was  for  the  purpose  of  keeping  the complainants’ statutory suppression intact.

[90]     The question  which  then  arises  is  whether that  consideration  provided  a proper basis upon which the trial Court could have suppressed A’s name.  The sisters have argued that protection of their statutory name suppression could have been achieved by a less intrusive suppression order […].   This would have sufficiently
met the objective of suppression without infringing their freedom of expression.24

[91]     Whether any suppression order was necessary for the purpose of protecting the sisters’ identities turns on the efficacy of s 139 of the Act.   That provision prohibited publication of not only the name of a person upon or with whom the offence has been or is alleged to have been committed, but any particulars likely to lead to the identification of that person.

[92]     In R v W, the Court of Appeal considered the relationship between ss 139 and

140 of the Act.25    In that case, the respondent had been found guilty of indecently assaulting  a  15  year  old  boy.    It  had  been  disclosed  in  media  reports  of  the

proceeding that the respondent was a 48 year old professional man, practicing on his own account in a named town, and that the boy had worked at his office on two occasions  after  school  in  May  1996.    The  District  Court  Judge  had  refused  to suppress publication of the respondent’s name, however, on appeal to this Court it was held that his name should be suppressed as it was likely to lead to the identification of the victim.

[93]   The High Court was concerned about the possible identification of the complainant in the particular circumstances of that case, whereas the District Court had not considered such a possibility sufficient to justify suppression.  Richardson P, who delivered the judgment on behalf of the Court of Appeal, observed as follows:26

Prohibition against publication arises by operation of the statute without the need for obtaining any order.   In practice, a trial Judge may indicate to counsel and the media in the course of proceedings in sexual cases under ss 128-142A that the statute bars publication of any name or particulars as being likely to lead to the identification of the victim. And in determining an application for a suppression order under s 140 by the defendant or any other person connected with the proceeding in respect of any offence, the Judge may have to consider whether publication would breach s 139, in which case it is a convenient practice to rule accordingly, as happened in this instance. The media then know where they stand, subject of course to any challenge to any such ruling.

[94]     In  reference  to  the  meaning  of  “likely”  in  the  context  of  s  139(1),

Richardson P held:27

Prohibition   on   publication   applies   automatically   where   the   specified condition exists.   It applies independently of any indication given to the media by the Court, or any ruling made in the course of determining an application under s 140.   The focus of s 139 is narrower than the inquiry under s 140.  The latter implicitly requires consideration of the principles of open justice, which are also explicit under s 138.  In giving an indication or ruling that s 139 applies, a Judge is not exercising a discretion but rather is recording that for s 139 not to be infringed, name suppression is required. …

It follows that there is no question of balancing of public interest in the open reporting of Court proceedings against the prospect of risk of harm to the victim.  The exclusive focus of s 139 is on the welfare of the victim.  It is the risk to the victim that is protected by the prohibition.  The statute assumes that any identification of an under-16 victim is an unacceptable risk to the welfare of the victim.  The statutory purpose is to avoid the risk of harm by barring publication.   It must be enough to attract s 139 that there is an

appreciable   risk   that   publication   of   the   material   could   lead   to   the identification of the victim.   In that context, qualifying adjectives such as “real”, “appreciable”, “substantial” and “serious” are not used to set higher or different thresholds, but rather to bring out that the risk or possibility must not be fanciful and cannot be discounted.

[95]     The case serves to illustrate two important considerations relevant to the present proceeding.   Firstly, ss 139 and 140 are quite different provisions, placing different responsibilities on the Court.   Under s 139(1) suppression is automatic. However,  s  140,  even  when  being  used  in  ancillary  support  of  the  statutory protection provided by s 139, involves the exercise of a discretion and requires a consideration of the principles of open justice.   Secondly, whether s 140 will be deployed to supplement and extend the automatic suppression provided by s 139 depends upon an assessment of whether the ambit of that provision, which extends to an appreciable risk that publication of material could lead to the identification of the victim, is insufficient in the particular circumstances of the case  to achieve the objective of providing the victims with statutory protection.

[96]     In  the  circumstances  of  the  present  case,  it  is  likely  that  s 139(1)  was sufficient by itself to provide adequate protection to the sisters without recourse to an order under s 140 suppressing A’s name.  There could be no publication in any report of either the victims’ names, or of particulars likely to lead to their identification. […].  The situation in the present case is to be contrasted with R v W, where specific details relating to the circumstances of where and when the offending took place had already been published.  Publication of the offender’s name and occupation would, in combination with those earlier details, likely lead to  the identification of the victim.  The need for an explicit order under s 140 to ensure the victim’s statutory suppression was not breached was readily apparent.

[97]     For the purposes of the application for judicial review, it is the apparent failure by the trial Court to engage in the type of balancing process required by s 140 which gives rise to the reviewable error.  There is nothing in the formal record, or on the available evidence, which indicates that the necessary analysis required before an order under s 140 could be made was undertaken.  The Court had before it what was clearly, on its face, an interim order which required reconsideration and review, particularly after the conviction of A on a number of serious charges.  The omission

to carry out that type of examination is underscored by the lack of any reasons on the

Court record for the decision to prohibit publication of A’s name.

[98]     It is not possible from the absence, not only of reasons, but of a record of any decision itself, to know the rationale or reasoning considered to support the resulting permanent suppression of A’s name, notwithstanding the presumption in favour of open justice and the right to receive and impart information recognised by s 14 of the New Zealand Bill of Rights Act.   Neither on the face of the record, nor from the external evidence filed by the respective parties, is there material which provides any reassurance that the trial Court properly addressed these considerations, including the wider public interest and, importantly, those of the victims themselves, either at the conclusion of the trial or subsequently when A was sentenced.

[99]     I am not satisfied on the available evidence the trial Court appropriately addressed and considered whether it was necessary to allow the original interim order under s 140 of the Act to have permanent effect in order to protect the names of the victims from publication.  This is particularly so having regard to the already considerable statutory protection provided by s 139.  There appears to have been a failure by the Court to identify the issue required to be addressed, namely whether the  suppression  of A’s  name  was  warranted  in  light  of  the  existing  protection available to the victims under s 139.   The Court failed to engage in a reasoned process which addressed the competing considerations that such a question gave rise to, and which were central to whether continued and permanent name suppression for A was appropriate in the circumstances.

[100]   As I have foreshadowed, the lack of any reasons for making or allowing the interim name suppression to become permanent is a further error of law, recognised in Lewis v Wilson and Horton Ltd as a distinct ground of judicial review where such an omission arises in this category of case.28    The absence of reasons appears symptomatic of the way in which the trial Court appears to have approached the issue of permanent name suppression, if, indeed, the Court turned its mind to the
issue at all at the conclusion of the proceeding.  As observed by the Court of Appeal

in Lewis v Wilson and Horton Ltd, it is not an invariable rule that Courts must give

28	Lewis v Wilson and Horton Ltd [2000] 3 NZLR 546 (CA).

reasons  for  their  decisions.29        However,  the  Court  of  Appeal  held  in  the circumstances of that case, which are not dissimilar to the present:30

… that the requirements of open justice in criminal proceedings, the right to impart and receive information recognised by s 14 of the New Zealand Bill of Rights Act and the need to ensure that those whose rights were affected by the order had an effective opportunity to obtain judicial review, all made it incumbent upon the Judge to give reasons for the order prohibiting publication of the appellant's identity. The High Court was right to say that the Judge was required to give reasons. The failure to give reasons in this case was an error of law.

[101]   The type of irregularities in the conduct of the hearing in Lewis v Wilson and Horton Ltd are similarly apparent in the present case.  The proceeding was partially conducted in private, and there was no discernible basis why the offender in that case should   have   been   granted   name   suppression   based   on   his   own   personal circumstances.  The lack of reasons failed to correct irregularities in the conduct of the hearing, and it was incumbent on the Judge to take care in communicating his eventual decision regarding name suppression and to articulate his reasons in the interests  of  open  justice  to  overcome  the  risks  associated  with  conducting proceedings in chambers with only counsel and the prosecutor present.

[102]   The lack of reasons was not an error of law specifically pleaded by the sisters,  nor  was  it  the  subject  of  written  or  oral  argument.     It  is  therefore inappropriate to base a finding of error on such a ground.   However, as already observed, the absence of reasons is strongly indicative of the inadequacy of the trial Court’s approach to the issue of A’s suppression at the conclusion of the trial, and how the process of review, if undertaken at all, miscarried.

[103]   It follows therefore that the trial Court erred in failing to review the interim order at the conclusion of A’s trial, as it was obliged to do, and failed to properly consider the issue of whether A’s name suppression should become permanent.  The failure by the trial Court to engage in a proper examination of whether an order permanently suppressing A’s name, pursuant to s 140, was necessary for the purpose of protecting the identity of the victims beyond that already provided by s 139 gave
rise to reviewable error.

29	At [75]. See too R v Awatere [1982] 1 NZLR 644 (CA) at 648-649.
30	At [86].

The decision of the District Court to decline  to amend the Crown Book to record that the order suppressing the identity of A lapsed upon the lifting of the sisters’ name suppression

[104]   In  2014,  the  sisters  made  application  to  the  Christchurch  District  Court seeking an order amending the Crown Book to record that the interim order under s 140 suppressing A’s name lapsed when they successfully obtained an order from Judge Kellar permitting the publication of their names.   In their submission the interim order made by the Lower Hutt Court was conditional upon the sisters’ continued name suppression, and, in the absence of that suppression continuing, the order made under s 140 lapsed.

[105]   The argument made before Judge Kellar, and effectively repeated before me, was that s 353(6) of the Crimes Act 1961 allows for the amendment of any erroneous or defective entry in the Crown Book at any time.  Section 353(2) stipulates that the registrar will keep a book, to be called the Crown Book, as a record of certain particulars.  It was submitted on behalf of the sisters, as it was before Judge Kellar, that because the Crown Book contained no reference to the suppression of A’s name it would be “prudent” to rectify the position under s 353(6) of the Crimes Act “in light of the Court of Appeal judgment”.  Additionally, upon the making of the order permitting the sisters’ identities to be published, the Court should order the Crown Book be amended not only to show the order itself, but also to show that the interim order suppressing A’s name had lapsed, and the position clarified.

[106]   Judge Kellar declined to do so.  He observed that the Crown Book contained no “erroneous or defective entry”.   It did not record the interim order suppressing publication of A’s name, which had become permanent by operation of s 140(2) of the Act, in the absence of any associated order fixing a limited period in respect of which it was to have effect, or providing for its termination.  Judge Kellar found that because the District Court was a creature of statute which may only exercise jurisdiction conferred upon it by statute, it had no power to vary or discharge the order, which by operation of law had become final.  The inherent but limited power the  District  Court  has  to  regulate  its  own  processes  did  not  extend  to  vary  or discharge the order prohibiting publication of the identity of A.

[107]   In any event, Judge Kellar found the interim order made by the Lower Hutt Court was not conditional.  It was not expressed in those terms.  Even proceeding on the  basis  the  note  made  by  the  list  Judge  was  consistent  with  the  sisters’ interpretation of the Judge’s handwriting, and the interim order was only for the purpose of protecting the statutory non-publication of the victims’ names, Judge Kellar held such a finding did not equate to continuation of the interim order being conditional on the victims’ suppression being maintained.   Judge Kellar observed that if the Judge intended to impose such a condition, then he would have expressed the order in clear terms so the parties and the public at large were informed of the condition on which the interim order was made.

[108]   The sisters submitted that Judge Kellar erred in his finding that the interim order was not conditional.  They argued the Judge was wrong to insist on express wording, as a condition can also be imputed from circumstances and context.  They submitted that if A’s name suppression was ordered solely to preserve their anonymity, then in the absence of that reason for the order enduring, it could not have any further useful or intended function once the sisters’ suppression was lifted. The default presumption of open justice should trigger, resulting in A’s suppression automatically lapsing.

[109]   An immediate difficulty for the sisters is posed by findings I have already made on the evidence relating to the circumstances in which the interim order was made by the Lower Hutt Court.  The interim order was made effectively by consent. In the absence of the prosecution taking the approach it did at the time, A himself would have prosecuted his intended application for suppression, and indeed did so according to the evidence of his counsel at the time.  In the circumstances, as I have already assessed them, in all likelihood he would have obtained an interim order, albeit one that would have required review at a subsequent stage in the criminal proceeding.  It follows therefore that a precondition to the sisters’ argument, namely that name suppression was ordered “solely” to preserve their anonymity, does not accurately reflect the circumstances at the time the order was made.

[110]   In any event, even if proceeding on the basis the interim order was made only for the benefit of the sisters, it does not follow that the order would automatically

lapse.  The terms of the order were not expressed as being conditional.  As already mentioned, the circumstances in which the subject interim order was made, and which were supportive of A obtaining an interim order in his own right, illustrate why no such implied conditionality should be imputed.   Unless the condition is explicit, neither a defendant nor other interested parties, including the media and the wider public, would be provided with appropriate notice of the terms or basis on which the order had been made.   In the absence of such clarity or certainty, the efficacy of an order reliant on some implicit triggering circumstance for its termination is limited and unworkable.

[111]   It follows therefore that Judge Kellar did not err in his assessment of whether the interim order was conditional.   The interim order was made pursuant to an express statutory power provided under s 140 of the Act.   That statutory power provided that such an order could be made to have effect for a limited period, whether fixed in the order itself, or to terminate in accordance with the terms of the order.   The statutory power is not capable of being interpreted as allowing or providing for some implicit terminating condition to be read into the order.

[112]   Accordingly, I decline to make a declaration that the interim suppression order  was  conditional  upon  the  sisters’ statutory  protection  lapsing  when  their suppression was lifted in August 2014.

Relief: Should A’s suppression be revoked?

[113]   I have found that the sisters have established the Christchurch District Court erred in its approach to the issue of whether the interim order was to have permanent effect.  The question therefore arises whether I should grant, in the exercise of my discretion, the relief sought, namely the revocation of the suppression order which benefits A.

[114]   A   fundamental   principle   of   judicial   review   is   that   any   remedy   is discretionary.  There is a presumption that a practical and effective remedy will be provided to a claimant who has succeeded in showing a public law wrong, and there

must be a good and principled reason for the Court not to exercise its discretion to provide a remedy.31

Delay

[115]   One  potential  reason  for  refusing  a  remedy  is  where  there  has  been significant delay.   It has been observed that judicial review “should not be made available to those who sleep upon their rights”.32    Further, that “it is the essence of judicial review applications that they must be brought promptly”.33    The need for promptness will be particularly relevant where prejudice would be caused to the
respondent or a third party.   In such a situation, delay will be highly material in considering whether to grant a remedy, and potentially fatal.34

[116]   A submitted that with the delay of some 20 years before the application for judicial review of the suppression order there must be presumptive prejudice to him. A submitted  that  he  has  relied  upon  the  effect  of  the  previously  unchallenged suppression order for some two decades to rebuild his life, and that it would be inequitable after such a period of time to quash the suppression order.

[117]   A acknowledged that there is no particular limitation period for making an application for judicial review, either under the Judicature Amendment Act 1972 or part 30 of the High Court Rules.   In the absence of such a limitation period, the New Zealand Courts have recognised that any applications that are made reasonably promptly will be entertained.35    In Hauraki Catchment Board v Andrews, the Court of Appeal  noted,  in  contrast  to  the  United  Kingdom,  that  New Zealand  has  no
limitation period applying to applications for judicial review, preferring the issue of

31         Bulk Gas Users Group v Attorney-General [1983] NZLR 129 (CA) at 136; Fraser v State Services Commission [1984] 1 NZLR 116 (CA); Thompson v Treaty of Waitangi Fisheries Commission [2005] 2 NZLR 9 (CA) at [235]; Bahamas Hotel Maintenance and Allied Workers v Bahamas Hotel Catering and Allied Workers [2011] UKPC 4, [2011] All ER (D) 288 (Feb) at [40]; Phipps v Royal Australasian College of Surgeons [2000] 2 NZLR 513 (PC) at [27]; Henderson v Director of Land Transport New Zealand  [2006] NZAR 629 (CA) at [44]; Counsel of Social Services in Christchurch/Otautahi Inc v Christchurch City Council [2009] 2 NZLR 123 (HC) at [111].
32	R v Aston University Senate, ex P Roffey [1969] 2 QB 538 (QB) at 555C; Hauraki Catchment
Board v Andrews [1987] 1 NZLR 445 (CA) at 451.
33	Wandsworth London Borough Council v A [2000] 1 WLR 1246 (CA) at 1259E.
34	Air Nelson Ltd v Minister of Transport [2008] NZCA 26, [2008] NZAR 139 at [66]; Hill v
Wellington Transport District Licensing Authority [1984] 2 NZLR 314 (CA) at 321.
35	Fraser v Robertson [1991] 3 NZLR 257 (CA).

delay to be dealt with in the discretion of the Court according to the facts of each case.36

[118]   In that case, Cooke P observed that the corollary of the “healthy extension” of the scope of judicial review generally regarded as having occurred over the last half of the twentieth century, was that the Courts have to be alert against abuses of the remedy.   While referring to two earlier decisions of the Court of Appeal where delays of nearly a year and six months had been found fatal, the Court was not prepared to disturb the exercise of discretion by the Judge who heard the case at first instance and granted a remedy after a delay of some two and a half years.  Cooke P commented that had he been the Judge at first instance, he would probably have
refused relief on this ground.37

[119]   The  sisters  submitted  that  there  was  no  legal  authority  to  support  the proposition that appropriate relief cannot be sought some 20 years after the event. They acknowledged that delay may be a factor in the exercise of the Court’s discretion.  However, they submitted A should not continue to receive a benefit to which  he was  never entitled  simply because of the passage of time.   They re- emphasised that the only discernible reason for A’s name being suppressed under
s 140 was for the benefit of his victims.38

[120]   The  sisters  rely  on  the  observations  of  the  Supreme  Court  in  Siemer  v Solicitor-General, to the effect that the rule of law requires that Court orders are not to be immunised from challenge or review, and that there should be some means by which, when an order is made in error, it can be corrected.39    The Supreme Court expressly recognised that suppression orders may at times be made inappropriately, or cease to be appropriate with changing circumstances.  Accordingly, individuals
may approach the Court seeking variation or rescission of a suppression order that

affects their rights or freedoms.   The Court acknowledged the need to ensure a

36	Hauraki Catchment Board v Andrews [1987] 1 NZLR 445 (CA).
37	At 448, citing Turner and Others v Allison and Others [1971] NZLR 833 (CA); West Coast
Province of Federated Farmers of New Zealand Inc v Birch CA25/82, 16 December 1983.
38         W v Police [1997] 2 NZLR 17 (HC) was provided as a similar example of where a Court had ordered name suppression under s 140 only for the benefit of the victim, to ensure his identity was protected according to s 139 of the Criminal Justice Act.
39	Siemer v Solicitor-General [2013] NZSC 68, [2013] 3 NZLR 441 at [178].

“meaningful opportunity” to challenge suppression orders was available to those who were not parties to the relevant proceedings.40

[121]   This submission dovetailed with the sisters’ evidence that, until A brought his privacy complaint many years later, they were not aware that A continued to have name suppression after his trial, and had proceeded on the basis that his name could be referred to publicly.  They submitted the issue of delay needed to be assessed by reference to when they became aware of the true position.  It was not a case of them having “slept” on their rights. They acted promptly after acquiring knowledge of the existence of A’s suppression, taking reasonable steps to have the issue resolved expeditiously.

Finality of decisions and the need for certainty

[122]   Related to the issue of delay is the further submission by A that granting the sisters’ discretionary relief after the elapse of such a significant period of time would undermine confidence in the criminal justice system.   A submitted the need for finality in the administration of criminal justice is well established, and to revisit a Court order some 20 years after it had been made would erode the integrity of the system.   A submitted that no credible system of justice would permit suppression orders to be revisited after the event, let alone some 20 years later.

[123]   In response, the sisters’ referred to the approach taken by the Supreme Court in Siemer v Solicitor-General, to which I have already referred, to the effect that Court orders are not immunised from challenge or review.   Persons who are not parties to the proceeding and whose rights are inappropriately affected should have
the opportunity to seek variation or rescission of the order.41    It should be noted,

however, that the Supreme Court was primarily concerned with the issue of the standing of third parties to apply for variation or rescission of a suppression order, rather than the effect of delay and the timeliness of a challenge to an existing order.

[124]   Perhaps more relevant is the sisters’ reliance on s 208(3) of the Criminal

Procedure Act 2011, which enables a suppression order to be reviewed and varied by

40	At [232].
41	At [178]-[180].

the Court “at any time”.   Section 138(4) of the Act provided a similar ability to review permanent suppression orders relating to the suppression of evidence and witnesses names “at any time”, but no similar provision existed in relation to s 140. In respect of suppression orders made under s 140 of the Act, there was no statutory right of review.

[125]   The Law Commission noted, when reviewing the rules of suppression prior to the enactment of the Criminal Procedure Act, that there appeared no apparent reason for the distinction.42   However, at least in the High Court, it may not matter. In R v Burns, this Court held there was inherent jurisdiction to review a witness name suppression order, whether the order had been made under s 138 or 140.43
Further, it has been well-recognised that a suppression order made by this Court may be  discharged  or  varied  if  the  interests  of  justice  require.44      In  the  absence  of statutory authority, the District Court does not have similar jurisdiction to discharge or review a final suppression order, hence Judge Kellar’s finding that the District Court had no jurisdiction to review the interim suppression order.

[126]   A further consideration, which may temper the need for certainty as a factor weighing against granting relief, as with the overarching consideration of delay, is the fact that both the Act and now the Criminal Procedure Act expressly allow for victims to apply to have their statutory name suppression lifted.   A consequential effect of granting such an order, which the Court is obliged to make upon satisfaction of discrete and limited statutory conditions, is identification of the offender whose name has until that point remained suppressed as a consequence of the statutory suppression of the name(s) of his or her victim(s). There is no temporal limitation on when victims may make such applications, nor, as I have observed, is the consequential  identification  of  the  offender  a  consideration  which  bears  on  the limited statutory prerequisites, upon satisfaction of which the Court is obliged to
grant the order.

42	Law Commission Suppressing Names and Evidence (NZLC R109, October 2009) at [6.69].
43	R v Burns (Travis) [2002] 1 NZLR 387 (HC and CA).
44         Re  Wellington  Newspapers  Ltd’s  Application  [1982]  1  NZLR  118  (CA);  Broadcasting Corporation of New Zealand v Attorney-General [1982] 1 NZLR 120 (CA); R v Burns (Travis) [2002] 1 NZLR 387 (HC and CA).

[127]   It may be many years after the completion of the criminal proceeding until victims of sexual offending feel sufficiently positioned, be it as a result of maturity, subsequent counselling or therapy, or simply having a different outlook on their experience, to consider statutory suppression of their name to be either no longer required, or inappropriate having regard to how they wish to personally deal with the past offending against them.  There is evidence, at least from Mrs Beaumont, that this has been her experience and that her perceived need for name suppression has changed over time, leading to her making her application to have her statutory suppression removed.

[128]   The sisters’ submission is that the present case is an example of this type of situation, notwithstanding the existence of the s 140 order specifically suppressing A’s  name.    In  the  absence  of  any perceived  need  to  ensure  their  identities  are protected under s 139, the reason for the s 140 order falls away.  They submit A is, for all practical purposes, in no different position from other offenders who, as a by- product of the statutory protection afforded to victims of sexual crime, have had their names suppressed, perhaps for lengthy periods, and who risk losing that protection when their victims, after many years, choose to take the initiative of lifting their own statutory suppression.

[129]   The issue that arises on such a scenario, and which the present situation illustrates, is whether in those circumstances the affected person, the offender, who as a result of the statutory protection of the victims’ names has also had the benefit of name  suppression,  should  be  afforded  the  opportunity to  be  heard  and  to  seek substitute suppression.  Such application would be made not upon the basis of the merits of suppression at the time of the criminal proceeding, but because of their current and potentially changed circumstances.

[130]   As  I  have  already  observed,  such  considerations  do  not  bear  upon  the statutory preconditions to the granting of an application by a victim to have his or her name suppression lifted.  However, the victim’s entitlement to have suppression of their name lifted does not affect the Courts’ residual jurisdiction to consider whether the offender’s name ought not continue to be suppressed, particularly when

regard is had to the elapse of time and the offender’s changed circumstances since the criminal proceeding.

Is there a question of repunishment?

[131]   Publication of the name of a person who has been convicted of an offence has been recognised as being a legitimate part of an offender’s punishment.  Once guilt has been admitted or proven, publication of the offender’s name will be a usual and appropriate element of holding the defendant to account.45   This principle, while not articulated by the sisters in their submissions, implicitly is supportive of their argument that A’s name should not have been suppressed upon him being found guilty at the conclusion of his trial.

[132]   Section 26(2) of the New Zealand Bill of Rights Act provides that no one who has been finally acquitted or convicted of, or pardoned for, any offence should be  tried  or  punished  for  it  again.    A  was  sentenced  in  1995  to  one  year’s imprisonment for the offences of which he was found guilty at trial.  By reason of the interim order being allowed to remain in place, the usual associated penalty which his offending would in the absence of good reason have otherwise attracted, namely publication of his name, did not occur. A submitted that, 20 years after being sentenced for his offending, to now publish his name is to punish him again for the offences in respect of which he has already been sentenced.

[133]   The  sisters  submitted  that  such  a  consequence  20  years  later  is  not repunishment because A should have had his name published upon conviction, that being  the  normal  consequence  of  him  having  been  found  guilty  at  trial.    It  is described by them as “simply a deferred” penalty.

[134]   There is no evidence, and it was not contended otherwise by the sisters, that the continuation of A’s name suppression was the result of any false representation or mala fides on A’s part at the conclusion of his trial, or at his sentencing.  It is not the sisters’ case that the 20 years of suppression which A has received the benefit of is
the result of any connivance on his part, or has resulted from him having misled the

45	M v Police (1981) 8 CRNZ 14 (HC); R v D [2014] NZHC 2233 at [7]; BL v R [2013] NZHC
2878 at [20]; S v Police HC Wellington M51/86, 26 March 1986 at 3.

Court.  He is not the source or cause of the error by the Court in allowing the interim order to have permanent effect.

[135] Publication of A’s name, rightly or wrongly, did not form part of his “punishment” at the time he was dealt with by the Court.  The sisters’ submission that the penalty is a “deferred one” is tacit acknowledgment that A, “having been finally” convicted and sentenced for his offending, would again be punished for the same  offences  20  years  after  the  imposition  of  his  sentence  if  his  name  was published.     That  result  may  arguably  represent  a  breach  of  s  26(2)  of  the New Zealand Bill of Rights Act.  Against that, the sisters rely upon the breach of their right of freedom of expression caused, at the very least, by an error of process, resulting in an interim order having permanent effect, and thereby curtailing their right to speak of the circumstances of A’s offending against them.

[136]   Whether the subsequent lifting of an offender’s name suppression at some later point in time after an offender’s sentencing, be it as a result of the quashing of a s 140 order, or as a consequence of the lifting of a victim’s statutory suppression, may constitute a repunishment of an offender, or whether such effect can be justified, will depend upon the circumstances of the individual case.   That issue will likely turn on the circumstances of the initial suppression, the reason for its potential lifting, and the time that has elapsed since the offender’s sentencing.  The extent to which over that period there has been reliance upon that suppression, the consequences for the individual having regard to that reliance, and the life the person has developed for himself or herself while suppression has been in place may also be relevant considerations.

[137]   A further factor will be the declared or communicated basis or rationale for the suppression and, importantly, whether the offender was on notice that the suppression could lapse or be reviewed at some time in the future.  However, even where the offender is on notice that his or her suppression may be reviewed should application be made by a victim to lift their statutory protection at some point in the future, the greater the period of time since the offender’s conviction and sentence, and the greater the dependence over that period on the suppression by the offender to successfully re-engage in society and be successfully rehabilitated, the less weight

that factor may carry.  It will be a question of degree and balance in the individual case.

Decision on relief

[138]   In the present case, the sisters have successfully obtained an order from the District Court lifting their statutory name suppression.  I have found the trial Court erred in its approach to the issue of the continuation of the interim order suppressing A’s  name,  resulting  in  it  having  permanent  effect.    The  remedy  sought  is  the quashing of that suppression order so that the sisters’ right to freedom of expression, particularly in terms of their right to impart information to others, is no longer qualified when speaking about the offending upon them.  To be weighed against that is whether after the elapse of such a long period of time and the potential effect on A, having regard to his present circumstances, it would be inequitable to do so.

[139]   There are a range of considerations that bear on whether it is appropriate to grant the relief sought.  Such circumstances will vary in the individual case.  In the present case the factors supporting the grant of relief can be summarised as follows:

(a)       The sisters were offended against by A.  They have a right to tell their story, which necessarily would involve a narrative referring to the […] nature of the offending.   In the absence of being able to identify A, reference to that circumstance could cast suspicion on other […].

(b)       The principle of open justice applies and there must be exceptional reasons before a departure from free reporting is warranted.

(c)       The sisters have a constitutional right under s 14 of the New Zealand Bill of Rights Act to freedom of expression and, in particular,  to impart information.

(d)       Had the interim suppression order not been continued, they would have been free to speak openly about these events.   The only discernible reason for the continuation of the order post-conviction

was for their benefit in supplementation and support of the statutory suppression of their names. That suppression has now been lifted.

(e)       A,  at  least  after  his  conviction  and  sentence,  had  no  right  to suppression.   He has, in error, for some 20 years had the benefit of suppression to which he was not otherwise entitled.

(f)       The delay in bringing the claim, it is submitted, is through no fault of the sisters.   Their evidence was that they were labouring under the misapprehension that A did not have permanent name suppression.

[140]   To be weighed against those considerations are the factors identified by A which support his submission that the Court should exercise its discretion against granting relief:

(a)       While A may have been the unintended beneficiary of a suppression order,   expressed  to  be  interim,  and  which   crystallised  into  a permanent order by “default”, that was through no wrongdoing or fault on his part.  That he was the unintended beneficiary of such an order should not count against the merits of him being effectively afforded permanent suppression having regard to his present circumstances.

(b)       Since the conclusion of the criminal proceeding, A has rebuilt his life on the basis of the anonymity that he understood had been provided to him  as  a  result  of  the  Court-sanctioned  suppression  of  his  name. There is no indication that his belief was other than genuine, as illustrated by the steps which he took to take a privacy complaint when his name was published on the Trust’s website.

(c)       The sisters’ position is that they had never understood A’s name to have been suppressed, and therefore were free to identify him.  Until the publicity relating to his privacy complaint which resulted from the record of his convictions being unlawfully obtained and disseminated,

there is no evidence of the sisters having sought to speak publicly about the offending against them, or to have sought to exercise their right of expression in respect of the offending by A.  The degree of infringement on their right of expression, it is submitted, needs to be considered against the fact that for 20 years post A’s conviction it was never asserted, nor caused them apparent difficulty.

(d)       Had A’s name been published in 1994, at the time of the trial or at its conclusion, there may have been some publicity, but it would have abated.  The short newspaper articles that were published at the time are illustrative of the extent of the type of coverage his convictions for sexual offending would have attracted, limited as they were to a regional newspaper.  This would have allowed A to eventually have moved on with his life, notwithstanding the publication of his name. The  issue  of  his  name  suppression  has  now  become  a  matter  of national news and the centre of some considerable media attention.  It follows that the consequences of the publication of his name today will likely be much more severe for A than they would have been if his name had been published in 1994.

(e)       A has served his sentence and has not reoffended.  It is indisputable that he is a constructive member of society with an adult family which stands beside him.   The wider public interest in his name being published some 20 years after his trial is not readily discernible.

[141]   In  weighing  the  competing  factors  which  bear  on  the  issue  of  relief,  I consider the most influential factor is the length of time that has elapsed since A was formally dealt with by the criminal justice system.  A further factor is that, while the Court had the ability to permit publication of the name of a victim who was of or over the age of 16 under s 139(1)(b) of the Act, it would not be for another seven years after A’s trial, with the passage of the Victims Rights Act in 2002, that victims were  provided  with  what  was  effectively  a  statutory  right  to  have  their  name

suppression  lifted.46        The  future  contingency  of  the  victims  invoking  their entitlement to have their name suppression lifted would not have been apparent to A as it would now, or at least ought to be, to a defendant today.

[142]   The granting of relief to the sisters to remove the suppression has to be

considered against A’s situation in 2015, not as it was at the conclusion of his trial in

1995.   The circumstances of the present case are that A, over the course of the intervening 20 years, has re-established himself and moved on with his life.  He did so in reliance on what appeared, at least to him, to be the judicially sanctioned final suppression of his name, and has constructively developed his personal, vocational and business life.  He has not reoffended during that period.  There is no evidence to suggest that he is other than a rehabilitated person.

[143]   I do not overlook the fact that the sisters have had to live, over the last 40 years, with the experience and effect of A’s offending on them when they were children in the 1970s.   The serious ongoing impact of such offending on victims, even as mature adults, cannot be underestimated.  As I have found, the sisters have grounds to feel aggrieved over the flawed process by which the trial Court dealt with the issue of A’s name suppression.   They have taken the step, to which they are entitled, to have their name suppression lifted, allowing them to speak as victims of child sexual abuse.  They remain restricted, however, in not being able to publicly identify their offender, which, as I have already discussed, creates consequential difficulties of speaking publicly about […] the offending […].

[144]   On balance, I do not consider the limitation placed on the victims’ ability to provide the full narrative of their offending overcomes what, in my view, would be the inequitable result of A having to bear the consequences of the public scrutiny, opprobrium and likely vilification, which, if visited upon him at all, should have occurred some two decades ago, at the time he was convicted and sentenced by the trial Court.  For him to be now subject to those consequences after a period of some
20 years, when he was entitled to consider the prosecution had long been finalised,

the criminal justice process at an end, and his punishment complete, would not

46	The Victims Rights Act 2002 inserted new sub-ss (1AA) and (1A) into s 139 of the Criminal
Justice Act 1985.

constitute an equitable remedy in the circumstances of this case.  It follows that by declining to quash the existing suppression order, the sisters’ rights of expression remain infringed.  I consider, however, that in the circumstances, the continuation of that limitation is one which, after assessment of the various competing factors, I consider myself obliged to conclude is justified.

[145]   When viewing the issue through the alternative lens of the current statutory test for suppression now provided by s 200 of the Criminal Procedure Act, the same conclusion is reached.   I am satisfied that after the elapse of 20 years, publication would be likely to cause extreme hardship to A.  He has provided evidence that the recent publication on the internet of his name and potential further publicity, likely to be at a national level, has created significant financial and personal difficulties.  A has already lost a salaried position as a result of publicity, and there are ongoing consequences for his business and personal life.   Both he and his partner have incurred health difficulties which they understand to be stress induced, and they consider themselves increasingly isolated from their local community.   These are consequences which are commonly associated with being convicted for sexual offending and would not ordinarily justify name suppression.   However, for such repercussions to be visited upon a person for the first time some two decades after the criminal justice process has ended is, to my knowledge, unprecedented.

[146]   These consequences for A, coming such a long time after the completion of the criminal proceeding, would, in my view, be quite out of the ordinary.  The effects of denying him continued suppression after his legitimate reliance on that position over such a long period would be disproportionate in the circumstances.  Neither the particular identified interests of the victims, nor the wider public interest generally in open  reporting  requires  the  Court’s  discretion  to  be  exercised  in  favour  of publication.  To make an order now, after the elapse of such a long period since the completion of the criminal justice process, would, in my view, result in disproportionately  punitive  consequences  to  A,  and  arguably  constitute repunishment.

[147]   Accordingly, in the exercise of my discretion, I decline the pleaded relief to quash the suppression order.

Costs

[148]   I have found there was reviewable error on the part of the Christchurch trial Court in its  approach  to  the issue of whether A’s  name should  be permanently suppressed.  However, for the reasons canvassed, I do not consider it appropriate to quash the suppression order.  Both parties can claim some success in the litigation, and I would be inclined to allow costs to lie where they fall.  If the parties do wish to be heard on costs, they are to exchange and file memoranda (not more than four pages) in the ordinary way.

Solicitors:
Franks Ogilvie, Wellington
Jonathon Eaton QC, Christchurch