However, defence lawyer Kylie Pascoe immediately indicated her client would challenge the outcome and the judge granted interim name suppression pending the appeal.
That appeal was heard by Justice David Boldt in the High Court last month and he has recently released his decision to dismiss the appeal.
“In any event, if the [New Zealand] Rugby Union, and its sponsors, seek to present their players as objects of admiration, it would be wrong for the courts to be complicit in concealing information which may be relevant to that narrative,” Justice Boldt said in his ruling.
“[The man’s] offending is now part of his background. Prospective sponsors are entitled to know about aspects of his history which are inconsistent with any marketing campaign he may be attached to.”
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But the man can still not be identified as Pascoe signalled he may take his case to the Court of Appeal and so another interim suppression order was duly made.
‘We aren’t getting caught we all good’
The drunken events that led to the court case happened on August 5 last year around 3.30am at a New Plymouth home.
The man, his rugby mate Trent Pickering, the victim and a friend of the victim engaged in sexual activity together in a bedroom.
After this, the woman went to have a shower and was followed into the bathroom by Pickering, who previously played for the Taranaki Development team and the Southern Rugby Club’s premier squad.
The man joined them in the bathroom and also took his phone.
The three agreed to further sexual activity while in the shower and as this played out, Pickering grabbed the man’s phone and hit record.
In the video, the man grinned at the camera, waved a “hang loose” sign and then high-fived Pickering.
The woman could not see what they were doing and did not consent to the activity being recorded.
The following day, Pickering texted the man and asked him for the video.
After receiving it, Pickering posted it to a Snapchat group featuring premier rugby players from across the region, and it quickly became a talking point at a rugby party that night.
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On August 7, the woman found out about the video and messaged Pickering and the man but they both denied it existed.
Subsequent messages between the men showed they encouraged each other to continue denying it existed and to delete the video and screenshots from their phones.
When the woman pressed the men to come clean, Pickering sent derogatory messages to his co-offender about the woman.
“Yo g. We aren’t getting caught we all good. F*** that hoe.”
The man responded with “Yo” and a laughing face emoji.
But by that point, the woman had obtained a copy of the video from her friend and taken it to police.
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At sentencing, Judge Hikaka found Pickering’s culpability was higher than his co-offender’s.
The judge sentenced Pickering, 32, to eight months of home detention and ordered he pay $1500 emotional harm reparation.
‘He may have a career as a professional player’
On appeal, Pascoe argued to the High Court that Judge Hikaka was wrong to decline her client’s applications for a discharge without conviction and permanent name suppression.
She submitted he underestimated the indirect consequences of a conviction which, she said, would undoubtedly blight her client’s promising rugby career.
“Ms Pascoe notes it is unlikely the New Zealand Rugby Union or potential sponsors will want to be associated with a person known to have been involved in offending of this nature,” the decision stated.
It went on to list the teams he has played for and his rugby achievements, which can not be identified due to suppression.
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“His performances in recent years have been good enough to raise at least the possibility he may have a career as a professional player,” the decision detailed.
“His rugby CV indicates a likelihood he will be a good provincial player in years to come, and he may well be a candidate for higher honours.”
The man told the court he felt “utterly embarrassed and sick” about the incident and was “devastated” at the impact it has had on the victim, who has since left the country for a fresh start. He acknowledged the irony in his seeking to suppress his identity because of the harm he may suffer.
Olivia Boivin, for the Crown, emphasised to the High Court that nobody has come forward to say the man’s rugby career would be derailed, or even seriously affected, if his conviction was affirmed or his name was published.
“[He] has continued to be selected for age group teams in the 12 months since the offending, despite the video having circulated widely in Taranaki rugby circles.
“[He] is clearly identifiable in the video, but there is no evidence it has caused him any harm, either with his peers or with selectors. The New Zealand Rugby Players Association, at least, is fully aware of what happened.”
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Pascoe argued it was difficult to persuade anyone to go on the record to support a player in her client’s position and submitted developments since conviction had underscored that difficulty.
Rob Nichol, the CEO of the New Zealand Rugby Players Association, wrote to the court in August seeking to distance the association from its previous support of the man.
It had provided an affidavit to support his application for interim name suppression at the beginning of proceedings, in a bid to help preserve his right to a fair trial.
However, in the association’s recent communication to the court, Nichol said the affidavit was not to be used to support any further proceedings, including the appeal or application for permanent name suppression.
According to the decision, Nichol also asked “the court and the media” not to refer to the association’s role.
“With respect to Mr Nichol, the consequences of [the man’s] conviction for his future rugby prospects lie at the heart of this case, and the position of the association is accordingly of considerable importance,” Justice Boldt said in his decision.
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“No formal application has been made to suppress its role, and nor do any obvious grounds exist for doing so.”
Pascoe pointed to the association’s withdrawal of its support for her client as one example of the rugby establishment turning its back on him.
‘His career has continued to flourish’
However, Justice Boldt said he was unable to find any errors in Judge Hikaka’s approach and dismissed the appeal.
“I agree with Judge Hikaka about the need to denounce and deter offending of this kind.
“[The man’s] offending was characterised by a number of features which are all too common, especially among young men, including heavy intoxication, a toxic and dehumanising culture and contempt for a vulnerable victim.”
He said there was no evidence of “any opprobrium” being visited upon the man by his peers or within the rugby establishment.
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“His career has continued to flourish despite the video having been widely circulated in Taranaki rugby circles, with [the man] a clearly identifiable participant. There is no evidence he has suffered any selection consequences to date.”
Concerning suppression, Justice Boldt questioned even if the evidence were stronger whether disruption to a sporting career qualified as the kind of hardship for which the orders were designed.
“A professional rugby career is a singular privilege, unavailable to the vast majority of people (including the vast majority of rugby players).
“Disruption to [the man’s] rugby career, if it occurred, would not represent ‘hardship’ … let alone extreme hardship.”
Tara Shaskey joined NZME in 2022 as a news director and Open Justice reporter. She has been a reporter since 2014 and previously worked at Stuff covering crime and justice, arts and entertainment, and Māori issues.
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