Wedgewood v R
| Jurisdiction | New Zealand |
| Judge | Moore J |
| Judgment Date | 09 March 2022 |
| Neutral Citation | [2022] NZCA 42 |
| Docket Number | CA163/2020 |
| Court | Court of Appeal |
[2022] NZCA 42
Brown, Mallon and Moore JJ
CA163/2020
IN THE COURT OF APPEAL OF NEW ZEALAND
I TE KŌTI PĪRA O AOTEAROA
Criminal Procedure — appeal against refusal to grant name suppression — jurisdiction of a trial to grant name suppression once an appeal had been filed — functus officio — two-stage test for granting name suppression — risk to safety — extreme hardship — Criminal Procedure Act 2011
Appellant in Person
J E Mildenhall for Respondent
AM Toohey as Counsel to Assist
The appeal was dismissed.
(Given by Moore J)
Following a jury trial in November 2016, Mr Wedgewood was convicted on charges of meeting a young person after grooming, 1 supplying cannabis, 2 and doing an indecent act on a male aged between 12 and 16 years. 3
Following his sentencing, Mr Wedgewood appealed his conviction to this Court. While the appeal was pending, he applied to the District Court for permanent name suppression orders.
The District Court, while questioning its jurisdiction to hear the application, declined name suppression on 16 August 2019. 4 Mr Wedgewood then appealed to the High Court. That appeal was dismissed on 5 March 2020. 5 He now appeals to this Court.
Two primary questions arise:
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(a) whether this is a first or second appeal; and
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(b) whether final name suppression orders should be made.
The convictions arose from events in May and June 2015. Mr Wedgewood approached the 13 and 14-year-old complainant boys at a Christchurch shopping mall where young people were known to congregate. He befriended them and provided them with food, clothes, free accommodation and, ultimately, cannabis. He indecently assaulted one of the boys while he was sleeping at Mr Wedgewood's home.
When the two lower Courts determined Mr Wedgewood's name suppression, he had been convicted of the sexual charges and was facing forgery charges arising out of an allegation he provided forged documents to the Court as part of the sentencing process. On these latter charges he was granted interim name suppression to protect his fair trial rights. 6
On 26 April 2017, Mr Wedgewood was sentenced to two years' imprisonment on the sexual offending charges. He appealed his convictions to this Court. The forgery charges were later withdrawn by the Crown.
While this Court was seized of Mr Wedgewood's conviction appeal but before the appeal was heard and determined, 7 the District Court dismissed Mr Wedgewood's application for final name suppression in respect of both the sexual and (now withdrawn) forgery offending. 8
On 20 August 2019, this Court dismissed Mr Wedgewood's conviction appeal. 9 He has sought leave to appeal that decision to the Supreme Court.
As noted, at the time the District Court heard the application for name suppression, Mr Wedgewood's conviction appeal had been filed and was pending hearing in this Court. As such, the District Court questioned whether it had jurisdiction to consider the name suppression application. Nonetheless, the Court heard and dismissed the application. Mr Wedgewood then appealed to the High Court.
The issue of jurisdiction was considered by Churchman J, who left the question open. He considered it did not require determination because, irrespective of whether the matter proceeded as an appeal or as a de novo application, it failed on the merits.
If this Court is satisfied the District Court had jurisdiction, the present appeal would be a second appeal and would thus require leave pursuant to s 289(2) of the Criminal Procedure Act 2011 (the CPA). In that event, leave may not be granted unless the Court is satisfied that the appeal involves a matter of general or public importance, or that a miscarriage of justice may occur if leave is not granted.
It is “generally true” that once a Judge has delivered their decision and reasons, they are functus officio and their authority in relation to the matter is exhausted. 10 This Court has found that “when a judgment is the subject of an appeal the trial court becomes functus officio”. 11
That is the case here. The District Court became functus officio when Mr Wedgewood appealed his convictions to this Court. Finding the District Court to be functus officio necessarily means its decision is a nullity. However, the Supreme Court has affirmed this Court's decision in Siemer v Solicitor-General that the CPA does not “interfere with the High Court's inherent power to make suppression orders”. 12 That jurisdiction stands apart. When Churchman J dismissed the name suppression appeal, he expressly considered the possibility that the District Court was functus officio. He correctly recognised that if the District Court's decision was a nullity, the hearing of the appeal before the High Court was nevertheless not a nullity because the jurisdiction to determine name suppression is drawn from that Court's inherent powers. As such, the High Court's decision is at first instance.
The High Court arrived at its decision by applying the same well-settled two-stage test that a first instance Court would employ.
It thus follows that the present appeal is a first appeal from the High Court. 13 Leave under s 289(2) of the CPA is not required. The appeal is to be determined on general appeal principles. This Court must undertake its own assessment of whether any of the statutory thresholds are made out. 14
In the context of name suppression, the starting point is the principle of open justice. There exists a presumption in favour of publication. 15
To succeed, the applicant must satisfy a two-stage test. The first step, referred to as the threshold, requires a factual assessment of the applicable grounds set out under s 200(2) of the CPA and whether one or more of them is met. If the threshold is met, the Court embarks on the second (or discretionary) step, which is determining whether name suppression should be granted. Since this step involves the exercise of a discretion, the Court on appeal will not disturb the lower Court's decision unless it is satisfied that the Judge acted on a wrong principle, failed to take into account some relevant matter or took account of some irrelevant matter, or was plainly wrong. 16
Having considered the question of jurisdiction, Churchman J summarised the position succinctly: 17
… An analysis of the two-step test indicates that the appellant fails on the first step. The appellant's contention that publication of his name would be likely to cause extreme hardship is not satisfied here.
[34] The main evidence put forward by the appellant in favour of the “extreme hardship” argument are two s 38 reports and a letter from Dr Newburn. None of these provide sufficient evidence to indicate the likelihood of extreme hardship if publication occurs. The s 38 reports provided no recommendations (on the basis that the appellant appeared to be denying his offending) and while discussing the appellant's difficulties with his historic head injury, did not suggest that the appellant would be particularly pre-disposed or more likely to suffer hardship than the ordinary offender.
[35] Furthermore, although assessment of the second step is not necessary given that the appellant has failed on the first, it is likely that the public interest in publication would outweigh the appellant's interest here, given the nature and type of offending.
Mr Wedgewood's notice of appeal is detailed. He raises numerous grounds. His primary focus is a complaint that the High Court failed to appoint a guardian ad litem to assist him in presenting his argument to that Court.
Ms Toohey, appointed as counsel to assist, helpfully reduced the points to what she described as the main tenable grounds of appeal which Mr Wedgewood wished to emphasise. There are four:
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(a) that due to a severe health condition and being a suicide risk, Mr Wedgewood is more likely to suffer extreme hardship (s 200(2)(a));
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(b) that publication may endanger Mr Wedgewood's safety, including by inducing assaults by others (s 200(2)(e));
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(c) that Mr Wedgewood has an outstanding conviction appeal before the Supreme Court in relation to the trial charges, and that suppression should continue to protect his fair trial rights (s 200(2)(d)); and
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(d) that due to Mr Wedgewood's incapacity, the High Court should have appointed a guardian ad litem.
We agree with Ms Toohey's analysis of the relevant points and now turn to consider each.
Ms Toohey advised that Mr Wedgewood wished to emphasise that due to a severe health condition and suicide risk he is more likely to suffer extreme hardship than someone else. The background to Mr Wedgewood's health and related issues is well documented.
In 1997, Mr Wedgewood was the victim of an assault which caused him a significant head injury. As a consequence, he continues to experience a range of symptoms which include fatigue, reduced attention span, impaired attention and frustration. He is said to reach “cognitive overload much more readily”, a state which manifests itself in a variety of ways including anxiety, agitation, misery and anger. Additionally, he has impaired impulse control, becoming short-tempered and responding aggressively. Other symptoms include aversions to sound and light as well as issues relating to thermoregulation. In respect of the last of these, to maintain mental and physical stability Mr Wedgewood requires the ambient...
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