The defendant, aged in his 30s, was found not guilty of making an intimate visual recording following a judge-alone trial in May, but Judge Emma Parsons ruled the consequences of revealing the man’s identity did not meet the threshold of "extreme hardship".
However, that decision was appealed to the High Court and in a judgement released to the Otago Daily Times this week, Justice David Boldt said the circumstances at the heart of the trial carried "a very high expectation of privacy" and overturned the suppression decision.
"It would never have occurred to either of them that their casual but consensual encounter would become the subject of media attention," he said.
Despite acknowledging the publication of the defendant’s name would be unlikely to cause severe prejudice to his career, Justice Boldt also suppressed his occupation.
He was critical of the police’s decision to even charge the man, who was anonymised in court documents as "Mr L".
"Mr L was acquitted and it is clear, at least with the benefit of hindsight, that he was unlucky to be charged," Justice Boldt said.
"A more careful investigation may well have determined that a conviction was unlikely."
During last year’s trial, the court heard the pair had come into contact in February 2021 through the defendant’s work.
A chance meeting at the complainant’s workplace more than a year later resulted in the man messaging her on social media.
What followed was an "assertive evolution into sexualised discussion", the judge said.
When the pair eventually met, the woman said things immediately became physical but took an unexpected turn when she realised the defendant was filming the liaison.
Justice Boldt said having reviewed the evidence he was satisfied the complainant was aware Mr L was filming their encounter and was relaxed about his doing so.
"She gave no indication that she minded," he said.
The messages in the aftermath, the judge said, showed the woman was comfortable the video had been taken and only concerned it was not shared.
"The messages should have given the police pause before they decided to charge Mr L," Justice Boldt said.
Counsel Anne Stevens KC argued at the appeal naming her client would result in him becoming a "laughingstock and [being] viewed as an offender who just happened to ‘get off"’.
While his mental health had recently improved, she said publication could be the catalyst for a serious setback.
"I am satisfied the police, as prosecutor, fell well short of proving the charge.
"The evidence revealed a consensual sexual encounter, consensually recorded.
"But for an unfortunate charging decision, all interactions between Mr L and the complainant would have remained private. Mr L did nothing unlawful," Justice Boldt said.
"I am satisfied the intrusion into Mr L’s privacy ... would cause humiliation and distress of sufficient magnitude to represent extreme hardship."
The government employee earlier applied for costs on the basis the evidence was always insufficient and the prosecution was not proceeded with "in good faith".
Judge Parsons disagreed.
She said there was potentially enough evidence to support the charge and it was only the cross-examination of the complainant which raised doubts.
