NOTE: INTERIM ORDER PROHIBITING PUBLICATION OF THE APPELLANT’S NAME, ADDRESS, OCCUPATION OR IDENTIFYING
PARTICULARS UNTIL 5:00 PM 27 JUNE 2024 PURSUANT TO S 291 OF THE CRIMINAL PROCEDURE ACT 2011.	
NOTE: DISTRICT COURT ORDER PROHIBITING PUBLICATION OF NAME, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS OF WITNESS PROHIBITED BY S 202 OF THE CRIMINAL PROCEDURE ACT 2011 REMAINS IN FORCE. SEE
http://www.legislation.govt.nz/act/public/2011/0081/latest/DLM3360349.html	
NOTE: PUBLICATION OF NAMES, ADDRESSES, OCCUPATIONS OR IDENTIFYING PARTICULARS OF COMPLAINANTS PROHIBITED BY S 203 OF THE CRIMINAL PROCEDURE ACT 2011. SEE
http://www.legislation.govt.nz/act/public/2011/0081/latest/DLM3360350.html	
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE	
CRI-2024-485-15
[2024] NZHC 1374	

BETWEEN	MARTIN DITLHABI
Appellant	
AND	THE KING
Respondent	

Hearing:	11 April 2024	
Appearances:	V C Nisbet and S W O Campbell for Appellant R De Silva and N L Jamieson for Respondent	
Judgment:	29 May 2024	

JUDGMENT OF McQUEEN J

[1]	Mr Ditlhabi appeals the decision in the District Court declining his application for permanent name suppression.1

1	R v Ditlhabi [2024] NZDC 1537.

DITLHABI v R [2024] NZHC 1374 [29 May 2024]

[2]	For the reasons set out below, I decline the appeal.

[3]	Before giving my reasons for declining the appeal, I note three matters.

[4]	First, I express the hope that only responsible commentary on this case will be published. There is no place for any repetition of the racist and threatening commentary directed to Mr Ditlhabi that occurred on social media in 2020.

[5]	Second, to preserve Mr Ditlhabi’s appeal rights, I direct that interim name suppression will continue for a further 20 working days from the date of this judgment to permit his counsel to take instructions and, if required, file an appeal. In the event no appeal is filed within the period required pursuant to s 291 of the Criminal Procedure Act 2011 (the Act), the interim order will lapse.

[6]	Third, I direct that this judgment is provided to the Department of Corrections to draw to the Department’s attention the need for ongoing mental health care and support for Mr Ditlhabi.

Background

[7]	On about 18 October 2020, an individual named Ms Madeleine Petersen- Hodge posted on the social media outlet Instagram a post about “Wellington Musicians” who were sexually assaulting woman. The “Wellington Musicians” referred to a group of three men, one of whom was Mr Ditlhabi. A livestream on Instagram  also occurred the same day,  held by Ms Petersen-Hodge and another,   Mr Joshua Cooper-Taepa. This generated a significant amount of interest with young women, who sent Ms Petersen-Hodge their experiences with the “Wellington Musicians”, which was then also shared to Instagram.

[8]	As a result of being named as one of the “Wellington Musicians”, people started sending Mr Ditlhabi abusive messages to his Instagram and Facebook accounts. His flat, in which he lived in with two other individuals also being accused of sexual offending as part of the “Wellington Musicians”, was broken into and vandalised.

[9]	The social media posts attracted attention from the media and sexual violence advocates. A public meeting was organised by Police on 20 October 2020, the purpose of which was to prevent further discussion about allegations on social media. Following the meeting, Police received a large number of complaints against the “Wellington Musicians”. Police launched an investigation, which was named Operation Emerald. Following the public meeting, posts on social media regarding the case largely ceased.

[10]	Following the social media posts, people in the community were being falsely accused of being one of the ‘Wellington Musicians’. On 27 October 2020 Police issued a statement asking people to avoid sharing identifying information on social media and to come to Police if they had concerns.

[11]	On 21 December 2020, Mr Ditlhabi was charged with eight offences. The jury trial for these charges took place in October 2022. The jury returned hung verdicts on the four charges of sexual violation by rape and returned not guilty verdicts on the remaining four charges.

[12]	A retrial took place in November 2023. Mr Ditlhabi faced two charges of sexual violation by rape, with two complainants. The jury found Mr Ditlhabi guilty of one charge of sexual violation by rape in relation to events occurring on 26 January 2020. There was significantly less media interest in this retrial compared to the first trial.

[13]	One of the other men subject to the social media “firestorm” subsequently pursued defamation proceedings against Ms Petersen-Hodge and Mr Cooper-Taepa, who conducted the Instagram livestream. He obtained judgment against Mr Cooper- Taepa, and appears to have reached a settlement with Ms Petersen-Hodge, which it is said included a public apology.2

2	See Mutingwende v Cooper-Taepa [2022] NZHC 540.

The District Court decision

[14]	On 25 January 2024, Judge Hobbs sentenced Mr Ditlhabi to three years and nine months’ imprisonment.3 The Judge approached the sentencing exercise on the basis that the jury concluded that Mr Ditlhabi believed the victim was consenting but neither the jury nor the Judge considered that this was a reasonable belief in the circumstances.4 The Judge did not consider it appropriate to give any discount for remorse.5

[15]	In the same decision, the Judge declined Mr Ditlhabi’s application for permanent name suppression.6 In considering the application, the Judge identified that a two-stage enquiry was required under s 200 of the Act.7 Under the first stage of the enquiry, the Judge considered whether Mr Ditlhabi would suffer extreme hardship if his name was published. The Judge looked at the significant media interest, from both mainstream and social media, that the case had attracted. He said:

[26]	… It is apparent, as I acknowledged at the outset of this sentencing exercise, that some of the media comment has been inaccurate and inflammatory. Some of the social media comment has quite frankly been disgraceful. Some of it can be characterised as hysterical, toxic, racist and vitriolic. Not only to you, but to others who were initially said to be involved in this offending which was not borne out …

[27]	What is clear is that if one acknowledges the evidence given and the verdicts that have been handed down by way of jury verdict, then your case looks nothing like the offending that was suggested by so many in the media at the outset. Those involved with inaccurate, toxic social media coverage will unfortunately bear no responsibility for that. The hardship caused by this type of social media coverage has been acknowledged by the Court of Appeal in the case of X v R.8

…

[29] That case acknowledges, as do others, that the courts have not yet caught up to the problems of social media in terms of criminal cases. The Court needs to if they can because it is a problem and I have no doubt that you suffered hardship, perhaps extreme, prior to name suppression being put in place. That is a result of what was primarily published on social media.

3	R v Ditlhabi, above n 1, at [23].
4	At [8].
5	At [20].
6	At [35].
7	At [25].
8	The District Court judgment at [27] refers to X v R [2020] NZCA 387 and states that it provides a quote from that decision. I note that the quote is in fact from DV v R [2021] NZCA 700 at [39]–
[40] and is set out in full at [28] of this judgment.

[16]	The Judge concluded that much of the hardship had already been suffered by Mr Ditlhabi. The Judge observed that:

[30]	…Those that sought fit to engage in this appalling social media comment obviously knew who you were. Mr Nisbet submits to me that if your name is published again, then that social media comment by those who thought it appropriate originally will do it again. However, in light of the time that has passed and in light of the ultimate outcome, which is wholly different from what was originally alleged, I think it unlikely that the kind of extreme reaction that initially occurred will occur again.

[31]	One can expect mainstream media to report responsibly about the facts of your case. I accept that there may well be further social media comment, but that comment will pass, it will no doubt come with some further hardship to you. But I have to say, I think it unlikely at this stage of these proceedings that it will cause extreme hardship.

[17]	As the Judge found the extreme hardship threshold was not met, he was not required to consider the second stage of the enquiry; however, the Judge briefly turned to the second stage in case he was wrong in that conclusion. The Judge said:

[32]	There is a presumption of open reporting. In this case I think there is a strong public interest in the public knowing about what occurred, particularly in light of the inaccurate reporting in the past. It is also relevant to the exercise of my discretion that you have been convicted of this serious offence and the victim is opposed to name suppression.

[33]	Ultimately, I am not satisfied that you will suffer extreme hardship if your name is published now these proceedings having been finally determined. Even if you had satisfied me there was extreme hardship, I would not exercise my discretion to grant you name suppression because I believe the balance falls in favour of open reporting.

[18]	For these reasons, the application for permanent name suppression was declined.9 Mr Ditlhabi indicated the prospect of an appeal against the refusal to grant name suppression and so the Judge made a suppression order under s 286 of the Act such that interim name suppression for Mr Ditlhabi continues until the determination of the appeal.10

9	At [35].
10	At [36].

The appeal

[19]	Mr Ditlhabi appeals the District Court decision on the grounds of extreme hardship and the risk of endangerment to his safety if his name is published.11 Two affidavits from Mr Ditlhabi were filed in support of the application for name suppression in the District Court. Another affidavit from Mr Ditlhabi was filed for the appeal, with no objection from the Crown.

[20]	Section 283 of the Act permits an appeal against an order refusing permanent name suppression. As first appeal court, this Court must determine the appeal by confirming, varying, setting aside the decision appealed against, or making any other order it considers appropriate.12

The law as to name suppression

[21]	Name suppression is governed by s 200 of the Act. The section relevantly provides:

(1)	A court may make an order forbidding publication of the name, address, or occupation of a person who is charged with, or convicted or acquitted of, an offence.

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

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

…

(e)	endanger the safety of any person; or

…

(6) When determining whether to make an order or further order under subsection (1) that is to have effect permanently, a court must take into account any views of a victim of the offence conveyed in accordance with section 16B of the Victims’ Rights Act 2002.

11 The application for permanent name suppression in the District Court was advanced on the ground of extreme hardship and the notice of appeal records that the grounds for appeal are that extreme hardship is made out. Mr Campbell nonetheless made submissions addressing both this ground and that Mr Ditlhabi’s safety would be endangered, and the Crown has responded to both grounds.
12 Criminal Procedure Act 2011, s 287.

[22]	The Supreme Court has recently endorsed the two-step approach to name suppression decisions as set out by the Court of Appeal in Robertson v New Zealand Police.13 The first step is determining whether any of the threshold grounds listed in  s 200(2) have been established. As the Supreme Court confirmed, it is clear from the wording of s 200(2) that an order for suppression under the Act may not be made unless the Court is satisfied publication is likely to have one of the effects set out in that subsection.14 Applying this approach in relation to Mr Ditlhabi requires considering whether either the extreme hardship threshold under s 200(2)(a) or the endangering safety threshold under s 200(2)(e) is met.

[23]	If the Court is satisfied that a threshold requirement has been met, the second step involves consideration of whether the Court should make an order for name suppression.15 This requires weighing the competing interests of the applicant and the public, taking into account matters such as whether the applicant has been convicted, the seriousness of the offending, the views of the victims and the public interest in knowing the character of the offender.16

[24]	The Supreme Court reiterated that open justice remains a strong and important value because it is fundamental.17 It is accordingly the starting point in decisions about name suppression and is the framework within which the various factors in a particular case are to be weighed.18 The Court said that:19

… Obviously, the statutory scheme contemplates that the grounds relied on for suppression are capable of overcoming the interests in open justice. But any counter-balancing factors must still be weighed on a case-by-case basis against the principle of open justice and the underlying interests that principle serves.

13	M v R [2024] NZSC 29 at [35]–[39] citing Robertson v Police [2015] NZCA 7.
14	At [35] citing Siemer v Solicitor-General [2013] NZSC 68, [2013] 3 NZLR 441 at [174]–[175].
15	M v R, above n 13, at [36] citing Robertson v Police at [41].
16 M v R, above n 13, at [37] citing Robertson v Police at [41]. See also DV v R, above n 8, at [34] citing X v R, above n 8, at [54], where the majority recorded at n 46 that the “realities” of social media abuse can be taken into account at both stages of the suppression analysis.
17 M v R, above n 13, at [39]–[40] citing Erceg v Erceg [2016] NZSC 135, [2017] 1 NZLR 310 at [2].
18         At [44].
19         At [44].

[25]	“Hardship” has been treated in caselaw as meaning “severe suffering or privation”.20 The addition of the qualifier “undue” in s 200(2)(c) indicates something more than simple hardship is required while the word “extreme” in s 200(2)(a) indicates something more again.21 Whether the threshold of extreme hardship is met is not to be considered in a vacuum.22 It is a contextual exercise involving some comparison between the hardship contended for and the usual consequences of publication.23

[26]	The approach on appeal is commonly treated as changing between the two stages.24 An appeal against one of the threshold grounds in s 200(2) of the Act is a general appeal in accordance with the general principles of Austin, Nichols & Co Ltd.25 An appeal against the discretionary stage is an appeal on a discretionary matter.26 The Supreme Court described it in this way:27

[46] The characterisation of a decision as discretionary, rather than evaluative, has implications for the appellate standard. A discretionary decision involves the exercise of discretion (choice) by the court, and the basis for intervention by an appellate court is more limited than that for an evaluative decision, in which a court must assess relevant factors and evaluate them. An appellate court can substitute its decision if it considers the evaluation is wrong. The parties in this case approached the decision as discretionary, meaning an appeal will only be allowed where the appellant is able to demonstrate either an error of law or principle; that the court failed to take into account a relevant matter or took into account an irrelevant matter; or that the decision is plainly wrong.28

[27]	It is well-established that publicity on mainstream media would not itself be enough to amount to extreme hardship.29 But in the present case, the hardship that may

20 See Tony Deverson and Graeme Kennedy (eds) The New Zealand Oxford Dictionary (Oxford University Press, Melbourne, 2005) at 491; M v R, above n 13, at [69] citing Robertson v Police at [48].
21	M v R, above n 13, at [69] citing Robertson v Police at [48].
22	M v R, above n 13, at [70] citing Robertson v Police at [49].
23	M v R, above n 13, at [70] citing Robertson v Police at [49].
24	Although whether this is correct remains an open question: M v R, above n 13, at [47]. See also R v Police [2019] NZHC 2901.
25	Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141.
26 In M v R the Supreme Court raised the question of whether the second stage was truly discretionary rather than evaluative, concluding that as matters had transpired, it was not necessary for it to consider the question, noting that it would be better addressed in a case in which it truly arises; M v R, above n 13, at [46]–[47].
27 M v R, above n 13, at [46].
28    Applying  May v May (1982) 1 NZFLR 165 (CA) at 170. See also  Kacem v Bashir [2010]    NZSC 112, [2011] 2 NZLR 1 at [32] per Blanchard, Tipping and McGrath JJ.
29 X v R, above n 8, at [48]; and DV v R, above n 8, at [55].

arise from social media coverage is relevant. Counsel highlighted the Court of Appeal’s decisions in X v R and DV v R in this regard.30 In both those decisions, permanent name suppression was granted. Those decisions have been subsequently discussed by the Supreme Court in M v R.31 The Supreme Court delivered its judgment in M v R after the hearing of this application. I gave counsel the opportunity to file additional written submissions in relation to this decision and they did so.

[28]	I reiterate that social media raises policy issues which courts are yet to work through.32 It poses considerable challenges for judges making decisions in relation to name suppression. The majority of the Court of Appeal observed in DV v R:33
[39]	Social media may increase, perhaps substantially, the risk that publication of an offender’s name will cause that person extreme hardship, for two reasons. First, social media commentary may follow mainstream media reporting, but it relies on user-generated content to which no obligation of balance or fairness attaches. In the absence of such obligations, a court cannot assume that social media reporting will be fair or accurate. Nor can it assume that readers are likely to verify what they have been told before posting their responses. The nature of such reporting and the audience response are questions of fact.

[40]	Second, social media may facilitate harmful behaviours such as defamation, abuse, trolling, doxing and vigilantism. This tendency is in part a function of users’ anonymity. In X (CA226/2020) v R the Court referred to “cancel culture”, referring to a form of mob justice in which those deemed to have transgressed some norm are subjected to intense public shaming. Young people are vulnerable to this, partly for psychological reasons and partly because they may be forced offline to experience isolation in which they are excluded from innumerable economic and social opportunities, with long- term consequences. It may well not be reasonable to expect a person who has been unfairly vilified to respond by defending themselves in the same forums.

(footnotes omitted)

Issues on appeal

[29]	The issues on this appeal are whether the Judge correctly applied the law to the circumstances of the present case in relation to the first stage, and, if he did not, such

30  X v R; and DV v R, above n 8. The challenges posed by social media in relation to matters that are or may be before the courts have been well articulated by the Court of Appeal in X v R and DV v R and I do not repeat them here.
31 M v R, above n 13.
32 DV v R, above n 8, at [36].
33 At [39]–[40].

that a ground under s 200 is established, whether there is a basis for the Court to interfere with his exercise of the discretion in the second stage.

First stage—extreme hardship and endangerment of safety

[30]	The first question is whether there is a real and appreciable risk that publication of Mr Ditlhabi’s name will cause Mr Ditlhabi extreme hardship and/or endanger his safety.

Mr Ditlhabi’s position

[31]	Mr Ditlhabi’s affidavits describe the social media attacks in 2020 that were directed towards him following the allegations made on Instagram. Mr Ditlhabi says that the messages attached to one of his affidavits were only examples and that there were hundreds of people threatening to hurt him and calling him names. He also says that at that time he was recognised on the street and people yelled at him and called him names while driving by. He quit his job at a bakery because people were recognising him. Mr Ditlhabi says he did not know the majority of people sending messages to his social media accounts.

[32]	Mr Ditlhabi confirms that the house in which he was living at that time was broken into and spray painted, which included the word “rapist”. He also says that he is extremely scared for his safety, both in and out of prison, if his name is published. Mr Ditlhabi says when he was on bail he just stayed at home as he was so scared of going out.

[33]	Mr Ditlhabi says he has a very distinct surname and does not know anyone who shares it. He also says that he believes that Ms Petersen-Hodge, or others, will start up social media commentary again if his name is published and that he will again receive threats of assault and death, and may be attacked, as a result. He is also concerned about whether he will be able to find an address which is necessary for parole to be granted.

[34]	Mr Ditlhabi explains that he has been in the intensive care unit in prison because he has been struggling mentally and was suicidal. He says he is scared about his personal safety and his ability to deal with the stress of that if his name is published.

[35]	Counsel  for  Mr Ditlhabi,  Mr Campbell,   submits   that   publication   of   Mr Ditlhabi’s name will cause him extreme hardship and/or endanger  his  safety.  Mr Campbell relies on the following matters:

(a)	Mr Ditlhabi has a unique surname and is from Botswana, and is accordingly easily identifiable;

(b)	the impact on Mr Ditlhabi of the extreme social media abuse (including threats of harm) against Mr Ditlhabi and the invasion of his residence where his property was vandalised in 2020, as discussed in his affidavits (which exhibit copies of social media posts and photos of the vandalism) means he lives in fear of being attacked;

(c)	Mr Ditlhabi’s mental state, including suicidal ideation, resulting in his entry to the intensive care unit at Rimutaka Prison on several occasions;

(d)	his isolation and lack of support from family and friends; his youth (26 years old now and 22 years old at the time of the offending) and rehabilitative and housing prospects on parole; and

(e)	the risk of being targeted while in prison in the context of recognised understaffing in New Zealand prisons.34

[36]	Mr Campbell emphasises the very unusual factual circumstances which this case presents and submits that when assessed on a cumulative basis, they establish that there is a real and appreciable risk, if Mr Ditlhabi’s name is not suppressed, of both extreme hardship and undue risk to his safety.

34	See Wallace v Chief Executive of the Department of Corrections [2023] NZHC 2248.

The Crown’s position

[37]	The Crown’s position is that the Judge did not err in his assessment that no extreme hardship was established. The Crown also says there is no evidence to suggest that refusing name suppression would mean Mr Ditlhabi would be recognised and assaulted.

[38]	Counsel for the Crown, Ms Jamieson, accepts that there was significant social media commentary in 2020, including racist messages and death threats. She acknowledges that the fact Mr Ditlhabi is from Botswana and has a very unusual surname makes him easily identifiable. Ms Jamieson also accepts that the unlawful entry into Mr Ditlhabi’s home and consequent vandalism occurred, although she submits that it is unclear whether this was targeted at the other two occupants of the address who were also labelled as part of the “Wellington Musicians”. She further submits that Mr Ditlhabi was on bail at various points whilst awaiting trial and there were no other burglary attempts.

[39]	Ms Jamieson submits the Judge was right to say that much of the hardship has already been suffered. The social media commentary was three and a half years ago and occurred before Mr Ditlhabi was arrested. Ms Jamieson says it would be speculative to suggest that further commentary of this kind will ensue if Mr Ditlhabi’s name is published. She says that if there is further social media commentary, it is likely to have subsided by the time Mr Ditlhabi is released from prison.

Discussion

[40]	I must consider whether I am satisfied that Mr Ditlhabi faces a real and appreciable risk that without permanent name suppression, he will face extreme hardship and/or that his safety will be endangered.35 In approaching this task I have had careful regard to the Supreme Court decision in M v R and the Court of Appeal decisions in X and DV.36

35	NN v Police [2015] NZHC 589 at [21], citing R v W [1998] 1 NZLR 35 (CA).
36	M v R, above n 13; X v R, above n 8; and DV v R, above n 8.

[41]	It is convenient to address all the matters raised by counsel and discuss their relevance to the respective grounds relied on by Mr Ditlhabi, before reaching my conclusions.

[42]	There is no dispute that there was significant media attention following the social media posts in 2020 and that Mr Ditlhabi then suffered abhorrent abuse on social media. The comments made were often racist and included threats of violence against Mr Ditlhabi, some amounting to death threats. I agree with the District Court Judge that these comments would have caused Mr Ditlhabi great hardship.

[43]	It is also accepted that Mr Ditlhabi has an unusual surname and that this combined with the fact he is from Botswana means he is easily identifiable. I accept that Mr Ditlhabi found the 2020 social media abuse and vandalism of his address distressing and that he was and is scared of being recognised and threatened or assaulted. Mr Ditlhabi has deposed that he has no family living in New Zealand and that he has few friends now, and only limited contact with them. As a result, he feels vulnerable and isolated. I accept his evidence that this has affected his mental health.37 Nonetheless, the inquiry into extreme hardship is objective—I must form my own view and not adopt the subjective views of Mr Ditlhabi.38

[44]	In X, the appellant had an unusual (said to be unique) surname that made him and his membership of a particular community easily identifiable. The Court of Appeal found that this was important for two reasons. First, because it meant there would be no room for doubt that X was the person named in any mainstream media reports which would then make him an easy target on social media.39 Second, because it gave rise to an appreciable risk that he would be vilified due to his cultural background.40 The Court of Appeal concluded that the harm resulting from these factors cannot be seen as ordinary consequences of publication.41 Rather the Court concluded that they added to the likelihood that X would be targeted on social media and the likelihood of

37	I observe that no independent medical evidence has been filed in either the District Court or this Court.
38	DV v R, above n 8, at [32].
39	X v R, above n 8, at [45].
40	At [46].
41	At [45]–[46].

the targeting being extreme.42 It was in this context that the Court of Appeal considered it appropriate to address likely social media effects flowing from the publication of X’s name as a discrete matter.

[45]	The first reason identified by the Court of Appeal is certainly applicable to Mr Ditlhabi. There will be no room for doubt that he is the person who would be named in mainstream media reports. I consider that the second reason would also apply to Mr Ditlhabi, given the racist nature of some of the social media commentary in 2020. This is evidence that he has faced vilification and threats on the basis of his cultural identity.

[46]	Thus, Mr Ditlhabi’s position certainly raises initial concerns that he may suffer something beyond the ordinary consequences of offending. It is instructive, however, to consider other matters addressed in X and DV.

[47]	The Court of Appeal in X went on to conclude that, given social media posts at that time (even though X was not named), “there is every reason to believe that, if X’s name was now published, such comments would grow in number and in venom”.43 The Court referred to ongoing commentary in the media about X, in relation to which updating evidence had been filed.44

[48]	I observe that in DV, the victim was responsible for much of the publicity and did not consider that the Court system had sufficiently punished the appellants.45 The majority of the Court of Appeal in DV considered the victim of the offending was “anxious to name the appellants and is likely to pursue his objective assiduously.”46 The majority concluded that there was likely to be continued publicity, mostly via social media, and it was likely to be unbalanced and reasonably extensive.47 It was in this context that, considering whether future publication would cause harm, the majority of the Court was satisfied that further publication on social media was likely

42	At [59].
43	At [56].
44	At [34]–[35] and [55].
45	DV v R, above n 8, at [4].
46	At [52].
47	At [52] and [57].

to be unbalanced and reasonably extensive, resulting in extreme hardship to the appellants.48

[49]	The situation here is different. It appears that the grant of name suppression to Mr Ditlhabi at an early stage had the effect of dampening down social media commentary such that there has been a significant period now where there has been no social media commentary about the case. Given that those posting in 2020 must have known Mr Ditlhabi’s name in order to post to his accounts, it appears to me that further commentary since that time would have been possible, had those people, or others who knew his name, wished to do so. These circumstances are different to X and DV where there was updated evidence of continuing interest in the case.49

[50]	The only evidence before me as to  more  recent  social  media  interest  in  Mr Ditlhabi is the post from November 2023 by Ms Petersen-Hodge. The post, without naming Mr Ditlhabi, refers to the sentence he was given in the District Court and links it to Operation Emerald, noting that “[t]he case sprang out of Instagram posts in 2020 talking about sexual assaults in Wellington’s party scene.” That post is factual and respects the name suppression order in place. As to mainstream media coverage, two members of the accredited media attended the hearing of this appeal. It can certainly be expected that the outcome of this appeal will be reported in the mainstream media, and that such coverage will meet the relevant ethical standards.

[51]	I reiterate that the position now is that Mr Ditlhabi has been convicted of sexual violation by rape and is serving a prison sentence. He was sentenced on the basis that he had an honest belief in consent but there was not a reasonable basis for that belief.50 He was found not guilty on five other charges and a retrial was not pursued in relation to two further charges. This information, which is a matter of public record, demonstrates that the criminal justice system has operated in an entirely proper and conventional manner.

48	At [57]. Additional evidence of further social and mainstream media reports about the case since the High Court hearing was adduced on the appeal to the Court of Appeal; see [24]–[25].
49	X v R, above n 8, at [34]; and DV v R, above n 8, at [24].
50	R v Ditlhabi, above n 1, at [8].

[52]	Whether there will be any more inappropriate social media commentary  if Mr Ditlhabi’s name is published is a further question. To my mind, Ms Petersen- Hodge’s post last year suggests that she remains interested in the case and is likely to post further about the case if Mr Ditlhabi’s name is published. There is no evidence before me on which suggests that Ms Petersen-Hodge will take steps comparable to those taken by the victim in DV or in any way encourage harmful social media directed at Mr Ditlhabi. Rather, Ms Petersen-Hodge may post in a responsible manner. It is hoped that this would be the case, especially following the overall resolution of the charges faced by Mr Ditlhabi as mentioned above, together with the settlement of the defamation proceedings in which she was involved.

[53]	I note here as a general point that s 306 of the Crimes Act 1961 provides that:

(1)	Everyone is liable to imprisonment for a term not exceeding 7 years who—

(a)	threatens to kill or do grievous bodily harm to any person; or

(b)	sends or causes to be received, knowing the contents thereof, any letter or writing containing any threat to kill or do grievous bodily harm to any person.

[54]	As this Court has observed, while people are free to express their anger, freedom of speech must be viewed in the context that the law does not condone threats of this nature.51

[55]	In X, the Court of Appeal considered that there were other reasons why the public interest in X’s identity was disproportionately and illegitimately high; these included the nature of the acts giving rise to the charges laid against X, the fact of his subsequent discharge without conviction (in effect, an acquittal) and the wider political context of the case.52 The context for this is that X originally faced five charges of indecent assault arising at a Labour Party youth camp. The resolution reached with the Crown saw three charges withdrawn or dismissed, and the remaining two amended to common assault, to which X pleaded guilty. In addition, the Crown agreed not to oppose X’s intended application to be discharged without conviction. The sentencing

51	R v HC [2024] NZHC 447 at [75]–[76].
52	X v R, above n 8, at [59].

Judge found that what X did was not for sexual gratification or as a result of any perverted motive but was instead borne out of drunken stupidity.53

[56]	Similar factors arose in DV, where initial charges of attempted sexual violation, inciting attempted sexual violation, and making an intimate visual recording were withdrawn by the Crown.54 Instead, a charge of indecent assault and inciting indecent assault were laid against each of the defendants respectively. They pleaded guilty to those charges and were (on appeal to the High Court) discharged without conviction. The High Court Judge found that in the circumstances the District Court Judge had erred by describing the incident as an attempted sexual violation, and she characterised the overall gravity of the offending as low.55 The High Court also declined an application for permanent name suppression (this not having been advanced in the District Court). It was this decision that was successfully appealed to the Court of Appeal. The majority of the Court found that publicity to date had significantly overstated the seriousness of the offending and social media publicity was likely to continue to do so.56

[57]	In Mr Ditlhabi’s case, there is no disjunct between the nature of the acts giving rise to the charge laid and on which he has been convicted. Nor is there a political context giving rise to significant public interest, as in X. I do not consider that the evidence establishes that the public interest in Mr Ditlhabi’s identity is disproportionately and illegitimately high. Rather there is a legitimate public interest in the conclusion of the case where Mr Ditlhabi has been convicted of rape. Further, the Supreme Court in M v R did not preclude that an individual who has committed serious offences may expect greater inquiry and, in particular, what amounts to hardship may be proportionally linked to the crimes committed.57 This point does not assist Mr Ditlhabi as rape is undoubtedly serious offending.

[58]	In M v R, the Supreme Court found that the scale of interest in and commentary on the appellants in both X or DV was greater than in relation to LF, where the media

53	At [10] citing R v [X] [2019] NZDC 24271 at [10].
54	DV v R, above n 8, at [8].
55	DV v R [2021] NZHC 1077 at [33]–[39].
56	DV v R, above n 8, at [46] and [64].
57	At [68].

commentary was “victim centric” rather than about LF.58 While the 2020 social media commentary was certainly focused on Mr Ditlhabi, I consider that the scale of interest and commentary in X and DV was greater than has been established in relation to Mr Ditlhabi given the significant period of time that has ensued without substantial media commentary.

[59]	It is certainly possible that following publication of Mr Ditlhabi’s name, new social media commentary will make intemperate and  offensive  comments  about  Mr Ditlhabi in any event, this seemingly being the nature of social media.59 However, I consider that in the present circumstances, the mainstream media coverage and the availability of accurate information will ameliorate the risk of inappropriate statements being made on social media about Mr Ditlhabi. In addition, I share the view of the District Court Judge when he said:60
… in light of the time that has passed and in light of the ultimate outcome, which is wholly different from what was originally alleged, I think it unlikely that the kind of extreme reaction that initially occurred will occur again.

[60]	Mr Campbell submits that Mr Ditlhabi’s case is similar to R v HC, in which an order for name suppression was upheld on appeal.61 Mr Campbell contends that there are similar campaigns of social media threats and vigilantism (in Mr Ditlhabi’s case, by way of burglary of his address). I acknowledge that a person’s safety can be endangered without the person being a victim of physical violence.62 However, critically there was evidence of attempts at physical violence and threats of violence in that case at a level which has not been established in relation to Mr Ditlhabi. In addition, there was nationwide attention which resulted in protests across the country and a petition to Parliament that included around 110,000 signatures. Here, as mentioned, following the public meeting held by Police, Mr Ditlhabi’s arrest and interim name suppression being granted, the social media attention ceased. For these reasons, I am satisfied that R v HC can be distinguished from the present case.

58	At [84].
59	DV v R, above n 8, at [75] per Downs J.
60	R v Ditlhabi, above n 1, at [30].
61	R v HC, above n 51.
62	R v HC, above n 51, at [39].

[61]	The Supreme Court has clarified in M v R that youth principles are a primary consideration to be given powerful weight but that there is no presumption in favour of name suppression for young people.63 Mr Campbell did not make specific submissions in reliance on Mr Ditlhabi’s relative youth although he did assert that Mr Ditlhabi’s rehabilitative prospects would be undermined by publication, along with his ability to find housing in the context of parole.

[62]	I also note in this context that in DV, the Court of Appeal considered that as the appellants had no history of offending and nor was there any reason to think they would reoffend, there was no public interest in knowing the character of the appellants.64

[63]	Mr Ditlhabi is relatively young. Any previous offending and the risk of reoffending were not addressed by counsel. His rehabilitation is important, but I am not satisfied that it will be undermined by publication. Rather Mr Ditlhabi will be in the position where he will need to disclose his conviction, for example, in the employment context. This fact is more likely to impact his rehabilitation than publication.

[64]	As observed in D v Police, while the possibility of self-harm or suicide always gives a Court cause for anxious consideration the Court cannot adopt the stance that any risk is unacceptable.65 It is typical to point to something more than the usual feelings of anxiety and despair that may attend proceedings.66 I do not minimise the mental health challenges Mr Ditlhabi is facing but observe that there is no independent medical evidence before the Court addressing his position.

[65]	I consider that Corrections will continue to work with Mr Ditlhabi in this regard, including as his release on parole comes up for consideration. Mr Ditlhabi says he has little support from family and friends. As Ms Jamieson submits, at least in relation to his friends, this may reflect a desire to distance themselves from

63	At [66].
64	DV v R, above n 8, at [47].
65	D (CA443/2015) v Police [2015] NZCA 541 at [30].
66	D (CA443/2015) v Police, above n 65, at [30].

Mr Ditlhabi’s offending. I encourage Mr Ditlhabi and his counsel to consider ways in which Mr Ditlhabi may access appropriate assistance as needed.

[66]	Mr Campbell submits that there is a concern of physical harm to Mr Ditlhabi while he is in prison and when he is released from prison. I am not persuaded by    Mr Campbell’s submission that Mr Ditlhabi is a prisoner at a high risk of being targeted while incarcerated despite his argument that the reality is that New Zealand prisons are woefully understaffed and that I should take this into account in assessing whether Mr Ditlhabi is in danger.67 The Court of Appeal in MS v R observed:68
The courts proceed on the basis that the Department of Corrections will comply with its statutory obligations to ensure the safe custody and welfare of prisoners,69 absent evidence that it is failing to do so.

[67]	There is no evidence before the Court that Corrections’ measures are inadequate. Rather, it is apparent from Mr Ditlhabi’s evidence that he has been placed in the intensive care unit at the prison on several occasions, indicating instead that appropriate steps have been taken in response to issues arising. As for his situation when he is released from prison, I accept Ms Jamieson’s submission that if name suppression was declined, Mr Ditlhabi would still be in custody and if there was further social media commentary immediately after suppression lapses, it is likely to have subsided by the time Mr Ditlhabi is released on parole. I am not satisfied that the evidence before me establishes a real and appreciable risk of physical harm.

Conclusion—is extreme hardship established?

[68]	My task is to assess, on a cumulative basis, whether all likely hardship arising from publication is extreme.70 As explained earlier, it must be compared with the typical consequences associated with a defendant’s name being published.71

67	Wallace v Chief Executive of the Department of Corrections, above n 34.
68	MS (CA405/2016) v R [2016] NZCA 544 at [11] affirmed in O’Reilly v R [2019] NZCA 254 at [4].
69	See for example s 8(1)(b) of the Corrections Act 2004.
70	X v R, above n 8, at [40].
71	M v R, above n 13, at [70] citing Robertson v Police at [49].

[69]	After careful consideration of all the circumstances in this case, I conclude that there is not a real and appreciable risk that publication of Mr Ditlhabi’s name will cause him extreme hardship.

[70]	Mr Ditlhabi’s very distinctive name and that he is from Botswana make him easily identifiable. I expect that there will be some mainstream and social media coverage of the case following publication of his name. I also accept that he has little support in New Zealand from family or friends. These factors will combine to cause him distress and embarrassment that amount to hardship. Ultimately, however, I do not consider that these factors on their own are sufficient to establish that he will suffer extreme hardship following publication. As discussed above, I do not consider that this case has any of the additional factors established in either X and DV that persuaded the Court of Appeal (or a majority of it) a permanent order for name suppression was justified.

Conclusion—is endangerment of Mr Ditlhabi’s safety established?

[71]	There is often substantial overlap between the grounds of extreme hardship and endangerment to safety.72

[72]	For the reasons set out above I am not satisfied that the risk of endangerment to Mr Ditlhabi’s safety is established.

Second stage—exercise of discretion

[73]	Strictly, I do not need to address the second question, having found that neither extreme hardship nor endangerment of safety are made out. In case I am wrong in that conclusion, I turn to consider whether there is a proper basis for me to disturb the Judge’s conclusion as to the application of the discretion.

[74]	Here, as the Judge also found there was no extreme hardship, he only briefly considered the exercise of his discretion. In concluding that he would not have exercised the discretion in favour of Mr Ditlhabi, the Judge reiterated the importance

72	For example, suppression on the ground that publication would threaten a person’s physical health may be granted under either: D (CA443/2015) v Police, above n 65, at [8].

of open justice. He considered that there is a strong public interest in the public knowing about what occurred, given the inaccurate reporting in the past. The Judge also noted that there is a conviction for a serious offence and that the victim is opposed to name suppression.

[75]	I am satisfied that the principle of open justice should prevail in this case. I agree with the Judge that this conclusion is supported by the legitimate public interest in the public knowing the outcome in this case, the seriousness of the offending and the victim’s opposition to name suppression.73 The offending arose in a context of significant public concern about sexual offending against young women. Accurate reporting of the outcome is important to promote confidence in the criminal justice system. In these circumstances, and where accusations were also initially made about others, I consider that the public interest favours the publication of Mr Ditlhabi’s name.

[76]	Accordingly, I do not consider that Mr Ditlhabi has been able to demonstrate either that the District Court judge made an error of law or principle, failed to take into account a relevant matter or took into account an irrelevant matter, or that his decision was plainly wrong.

Result

[77]	The appeal is dismissed.

[78]	To preserve Mr Ditlhabi’s appeal rights, I direct that interim name suppression will continue for a further 20 working days from the date of this judgment to permit his counsel to take instructions and, if required, file an appeal. In the event no appeal is filed within the period required pursuant to s 291 of the Criminal Procedure Act 2011, the interim order will lapse.

73	See Criminal Procedure Act 2011, s 200(6); and Victims’ Rights Act 2002, s 16B.

[79]	I direct that this judgment is provided to the Department of Corrections to draw to the Department’s attention the need for ongoing mental health care and support for Mr Ditlhabi.

McQueen J

Solicitors:
Campbell Legal, Wellington for Appellant Crown Solicitor, Wellington for Respondent