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The Government manager and the spy cam: Offender claims ‘miscarriage of justice’ in Supreme Court bid to keep name secret

A Government manager who planted a spy camera in a gym bathroom is taking his fight to keep his name secret to the country’s highest court – claiming he’s the victim of a “miscarriage of justice”.

He says judges who have heard his case so far have made errors in their decisions and “ignored” the impact being named would have on him.

In June last year the Herald revealed – after following the case since early 2018 – the man captured nearly 40,000 images of unsuspecting men and women in various states of undress.

He was originally granted a discharge without conviction and permanent name suppression.

Police appealed that result on the basis the wrong summary of facts was used at the sentencing, minimising the seriousness of the offending as an isolated incident.

The offending included four separate dates in November 2017.

One woman had told the court of “feeling sickened” at learning she was filmed naked in a “place where she had expected to be safe”.

After the High Court appeal, Justice Simon Moore deemed the consequences of a conviction would not be disproportionate.

He quashed the original sentence, entered a conviction and revoked permanent name suppression. The case was due to go back to the District Court for sentencing.

The man then took his case to the Court ofAppeal.

After reviewing the matter Justice Stephen Kos, Justice Susan Thomas and Justice David Gendall dismissed the man’s appeal, stating the High Court judge had based his decision on the correct facts.

They said Justice Moore had also taken an “orthodox and correct approach” and agreed that the man did not meet the “extreme hardship” threshold to warrant name suppression.

Furthermore, the principle of open justice clearly favoured publication, the decision said.

Before the man’s name suppression lapsed he mounted a new appeal, seeking leave to take his case to the Supreme Court.

Yesterday he filed his full application for leave.

In it his lawyer Ron Mansfield said there had been a “miscarriage of justice” and Justice Moore had made “several errors” when assessing the gravity of offending, “overlooked” the offender’s personal mitigating features and “ignored” the “stigma and additional complications” that would come with a conviction.

“In doing so, he effectively treated as irrelevant what in other cases has been held to be a significant consequence, especially for someone of the applicant’s age and stage in life,” Mansfield said in his submissions, provided to the Herald.

He said the Court of Appeal then “glossed over” the same point.

Both courts were “led astray” by looking at the case from the wrong angle – the consequence of a conviction rather than the underlying offending.

Mansfield said their assessments were: “incomplete” and “meaningless” as a result – and given their approach, they were always going to be “skewed heavily in favour of a conviction”.

His proposed Supreme Court appeal would be “a suitable vehicle” for his client to have a fair hearing.

As for name suppression, Mansfield said earlier analysis of the case by Justice Moore was “incomplete” and the Court of Appeal approach was “just as cursory”.

He claimed that in the three years since the offending the offender had “poured considerable effort” into addressing his deep personal issues.

But he was “by no means out of the woods” and had “endured a stretch of suicidal ideation”.

He was still “coming to terms” with losing his high powered role and his outlook for the future was “bleak” even if his name was never published.

“The fallout from publication – which, given the media will inevitably focus on the salacious aspects will be considerable – will only make it bleaker,” Mansfield said.

“Publication will render the recovery he has worked so hard at over the past three years virtually impossible.

“And for what? While there is always an interest in open justice in the broader sense – there is no particular interest here.”

Mansfield said the man’s offending had no connection to his role and the public interest in the case had been “overstated”.

The man’s employer had no idea he had been charged and said they would not have supported any bid for a discharge without conviction or name suppression.

Mansfield said the Supreme Court ought to appropriately assess the “relevance of his personal issues to the extent of the hardship he will suffer”.

The court is yet to decide whether the appeal will be heard and is seeking submissions from parties including the Crown and the Herald.

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