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W v/s The Queen


Company & Directors' Information:- I-QUEEN PRIVATE LIMITED [Active] CIN = U74999KL2017PTC048635

    CA No. 639 of 2016

    Decided On, 11 December 2017

    At, Court of Appeal of New Zealand

    By, THE HONOURABLE MR. JUSTICE BROWN
    By, THE HONOURABLE MR. JUSTICE COURTNEY & THE HONOURABLE MR. JUSTICE TOOGOOD

    For the Appellant: E.A. Hall, J.C. Hughson, Advocates. For the Respondent: K.S. Grau, Advocate.



Judgment Text

REASONS OF THE COURT

(Given by Brown J)

Introduction

[1] The appellant, W, was charged with the murder of a visiting friend. The appellant’s young son, A, was present and witnessed the incident. On 1 December 2016 Simon France J found W not guilty of murder by reason of insanity and ordered that she be detained as a special patient.[1]

[2] W’s application for permanent name suppression, made on the ground that publication would be likely to cause her extreme hardship in terms of the impact on her mental health, was declined.[2] However, an order was made prohibiting publication of the identity of A, as well as another friend of W’s whose name had been raised in connection with delusions W had suffered.

[3] W appeals against the refusal to grant her name suppression.[3] On the basis of further evidence sought to be adduced on the appeal, W again advances the ground that publication will cause her extreme hardship. Reliance is also placed on several further grounds, including that publication of W’s name would be likely to lead to the identification of her son.

The High Court judgment

[4] The Court’s ability to permanently suppress the name of a person who has been charged with an offence is found in s 200 of the Criminal Procedure Act 2011. That section provides:

200 Court may suppress identity of defendant

(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

(b) cast suspicion on another person that may cause undue hardship to that person; or

(c) cause undue hardship to any victim of the offence; or

(d) create a real risk of prejudice to a fair trial; or

(e) endanger the safety of any person; or

(f) lead to the identification of another person whose name is suppressed by order or by law; or

(g) prejudice the maintenance of the law, including the prevention, investigation, and detection of offences; or

(h) prejudice the security or defence of New Zealand.

(3) The fact that a defendant is well known does not, of itself, mean that publication of his or her name will result in extreme hardship for the purposes of subsection (2)(a).

(4) Despite subsection (2), when a person who is charged with an offence first appears before the court the court may make an interim order under subsection (1) if that person advances an arguable case that one of the grounds in subsection (2) applies.

(5) An interim order made in accordance with subsection (4) expires at the person’s next court appearance, and may only be renewed if the court is satisfied that one of the grounds in subsection (2) applies.

(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 28 of the Victims’ Rights Act 2002.

[5] In W’s case, the application for permanent name suppression was advanced on the ground in s 200(2)(a): that publication would be likely to cause extreme hardship to W. It was supported by a number of physicians who were in accord that lifting name suppression would have a negative impact on W’s immediate mental health and rehabilitation. On this issue Simon France J stated:

[51] I make the following findings in order to provide a factual framework against which to assess the statutory criteria. [W] will suffer mental health impacts if name suppression is lifted. For a period they may be severe. How long they will last is not clear, but there is no evidence to suggest it will be other than a significant set back from which she will likely recover. It will therefore be a matter that she will need to confront when the time is reached for reintegration into the community, and this will make it more difficult for her.

[6] The Judge concluded his consideration of the threshold requirement in this way:

[55] They key assessment needed is whether the significant, but likely temporary, mental health deterioration that [W] will suffer as a result of lifting name suppression amounts to extreme hardship. The idea of someone’s mental health suffering as a result of these decisions is always troubling. However, it is a sad reality that those caught in the criminal processes will often be experiencing mental health issues. Decisions such as the denial of name suppression will then often exacerbate that condition. Whether it will do so to an extent that one could say extreme hardship is likely to be caused is not easily to be predicted. Further one must factor into these assessments the reality that the effects will usually be temporary. As Mr Hirschfeld acknowledged, a test of 'extreme hardship' deliberately sets the bar high.

[56] [W] is and will continue to receive the best of medical care in a secure facility which will minimise any risk of self harm in the immediate timeframe. The loss of name suppression will be a significant setback in her mental health and she will need help to work through it. However, given that there is no evidence she will be unable to, with time, I do not consider the tests of extreme hardship is met.

[7] Recognising that different views could be taken of those circumstances and of the question whether the s 200(2)(a) threshold was met, Simon France J proceeded to indicate briefly why he would have exercised his discretion against suppression in any event. In his assessment, any extreme hardship would ultimately pass and the appellant would be in a similar position to any acquitted defendant. There was a significant public interest in knowing the appellant’s identity and the possible future impact on her rehabilitation was not sufficient to displace the presumption of open justice.[4]

[8] However, it is apparent that the Judge did make some specific suppression orders although the judgment does not contain any reference to them. While there was no formal record before us of the terms of those orders, it was the Crown’s understanding that the following specific permanent suppression orders were made: (a) Any reference to W’s son is prohibited. No reference to his presence at the event and no publication of his name is permitted.

(b) Suppression applies to the name of the person who featured in W’s delusions.

Grounds of appeal

[9] In addition to challenging the High Court judgment both in respect of the finding that the threshold test of extreme hardship to her was not met and the exercise of discretion, W relied on the following additional bases under s 200 of the Criminal Procedure Act as justification for the grant of an order of permanent suppression of her name: (a) Publication of her name would cause extreme hardship to people connected with her, namely her son, her parents and her former partner, B: s 200(2)(a).

(b) Publication of her name would cause undue hardship to a victim of her offence, namely her son: s 200(2)(c).

(c) Publication of her name would endanger her safety and the safety of her son, in that it would cause psychological harm to them both: s 200(2)(e).

(d) Publication of her name would lead to the identification of another person whose name as suppressed, namely her son: s 200(2)(f).

[10] In the course of argument before us, Ms Hall for W developed a further ground for the making of a name suppression order in reliance on s 25(b) of the Mental Health (Compulsory Assessment and Treatment) Act 1992.

[11] In support of the appeal, W sought leave to adduce additional evidence in the form of affidavits from both her parents, her treating psychiatrist, a psychologist treating A, and a media expert, as well as an affirmation from her former partner, B. Some of that evidence was updating in nature, while other evidence was focused on the issues raised by the new grounds for suppression advanced on the appeal.

[12] The Crown did not resist the filing of the new evidence, but submitted in response a report of a psychiatrist who had given evidence at the hearing in the High Court. Both that psychiatrist and W’s treating psychiatrist were cross-examined at the commencement of the hearing of the appeal. We consider that the evidence that has been filed meets the criteria for admissibility on appeal,[5] and accordingly we grant the application to adduce the further evidence.

[13] In any event, however, it has not proved necessary for us to rule on all of the grounds of appeal that were traversed in the course of argument because of the conclusion which we have reached in relation to the new ground advanced on appeal in reliance on s 200(2)(f) of the Criminal Procedure Act.

The protection of the identity of W’s son

The s 200(2)(f) threshold

[14] The ground for suppression in s 200(2)(f) was not relied upon before Simon France J. In contrast with the manner in which the application was presented in the High Court, we were provided with a significant volume of evidence, which we consider unnecessary to recite in detail, concerning the circumstances of A and the implications for him were he to be identified as W’s son in the absence of an order suppressing W’s name. Much of that evidence was focused on the elements of extreme hardship (s 200(2)(a)) and undue hardship (s 200(2)(c)).

[15] However, the element of undue hardship was a necessary prerequisite to the order made by Simon France J under s 202(1)(c). The threshold ground which is now relied in s 200(2)(f) does not require that the implications for A of publication of his identity be revisited. The issue is simply whether publication of the name of W would be likely to result in the order made under s 202(1)(c) being frustrated. In the context of s 200(2) 'likely' means a real and appreciable risk or possibility.[6]

[16] It was submitted by the Crown that the hardship in respect of A had been mitigated by the prevention of publication of his name and identifying particulars and the fact of his presence at the incident. Relevant to the issue of likelihood of identification, the point was emphasised that A has his father’s surname, which is different from that of W. While it was acknowledged that it may be inevitable that some people who already know A and his father could link them with W, it was submitted that that did not make this an extraordinary case that would outweigh the general principle of open justice and the open reporting of justice.[7]

[17] We recognise that the starting point for considering publication is the presumption of open justice.[8] As this Court stated in Robertson v New Zealand Police.[9]

[44] The wording of the section itself also reinforces the presumption, using the language 'only if' as well as expressions such as 'extreme' and 'undue'. The intention is clear. Publication is the norm. Suppression orders are only to be made in restricted circumstances and the threshold is high. The onus is on the applicant to satisfy the judge that suppression should be ordered.

[18] However, the ground in s 200(2)(f) reflects the fact that the identity of a person other than the appellant is already protected either by automatic statutory consequence or because a Court has been satisfied that such an order is required. The threshold requirement in s 202(2)(f) on which the Court must be satisfied is simply that there is a real and appreciable risk or possibility that publication of an offender’s name will lead to an existing suppression entitlement of another person being undermined.

[19] On the basis of the information contained in the affidavits filed on appeal, we are entirely satisfied that the publication of W’s name would be likely to lead to the identification of A. There are several scenarios which would have that consequence including arising not only from the connection between W and A but also via associations to be made with his maternal grandparents and with his father, B. As W’s mother deposed, if people were to read W’s name in media reports or on Facebook it would not take much to link W with A, including in A’s school community and amongst the large number of people known to the family.

The discretionary assessment

[20] Having determined that the particular threshold requirement is met, it is necessary for the Court to undertake afresh the discretionary assessment which involves the balancing exercise as explained by this Court in Robertson:

[41] At the second stage, the judge weighs the competing interests of the applicant and the public, taking into account such matters 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.

(Footnote omitted.)

[21] It is at this stage that the open justice principle is considered, even though a relevant threshold has been reached. In determining whether open justice should yield to suppression, the balance must 'clearly favour' suppression for an order to be made.[10]

[22] While some of the factors to which Simon France J referred are relevant to the balancing exercise, including the legitimate public interest in knowing the identity of a person acquitted by reason of insanity and the views of the family of the victim who opposed the application in the High Court,[11] we emphasise that the context of the balancing exercise with which we are confronted is materially different from that in the High Court.

[23] The true beneficiary of the order sought under s 200 is a child who was an unwitting spectator to the killing. As his psychologist, Ms Isherwood, explained, A has yet to fully understand what then occurred. However, as his emotional and cognitive processes continue to develop, he will gradually begin to understand what he witnessed and the implications that has for his life.

[24] While travelling along the trajectory of life can be difficult for many children, Ms Isherwood explains that it will be made exponentially more difficult if A has to worry constantly that if his mother’s name is in the public arena then people will connect him to her actions. Of course it is for that reason that an order has already been made, prohibiting reference to A and his presence at the event.

[25] While other factors have weighed significantly with us, including the views of the innocent victim’s family, in our view the presumption of open justice is appropriately rebutted in the present circumstances where, absent an order under s 200(2)(f), the protection which the Court has already considered it appropriate to afford to the child would likely be defeated with potentially tragic consequences for another innocent party.

[26] For these very particular reasons we conclude that an order for permanent suppression of the name of W under s 200(2)(f) is justified. Having so concluded, we do not consider that it is necessary to traverse the submissions and evidence in support of the other grounds relied on in support of an order to the same effect.

Suppression of W’s former partner’s name

[27] There is uncertainty as to whether a suppression order had also been made in relation to W’s former partner, B. In an affidavit filed in support of the appeal, he stated his belief that the High Court had made an order that his name be permanently suppressed. However there was nothing in the Court record to confirm that.

[28] It was observed on behalf of the Crown that the practical effect of the suppression of A’s name meant that B could not be named without the risk of identifying the child. However we

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do not consider that the situation of B should be left on such an informal basis. [29] It is our view that, as with A, it was appropriate in the circumstances for an order to be made under s 202(1)(c) and (2)(d) suppressing the publication of the name, address and occupation of B. He is a person who is connected with W. Publication of his name would be likely to lead to the identification of A, whose name is suppressed. We make an order accordingly. Result [30] The application to adduce fresh evidence on appeal is granted. [31] The appeal is allowed. [32] In order to protect the identity of A, we make an order prohibiting publication of name, address, occupation or identifying particulars of W pursuant to s 200 of the Criminal Procedure Act. [33] For the same reason, we make an order prohibiting publication of the name, address, occupation and identifying particulars of connected person referred to as 'B' pursuant to s 202 of the Criminal Procedure Act. ------------------------------------------- [1] R v W [2016] NZHC 2923. [2] At [62]. [3] An interim order suppressing the appellant’s name pending determination of her appeal was made by Ks P on 15 December 2016. [4] R v W, above n 1, at [62]. [5] Lundy v R [2013] UKPC 28, [2014] 2 NZLR 273 at [120]. [6] D (CA443/2015) v Police [2015] NZCA 541, (2015) 27 CRNZ 614 at [30(a)]. [7] R v Liddell [1995] 1 NZLR 538 (CA) at 544. [8] See Criminal Procedure (Reform and Modernisation) Bill 2010 (243-1) (explanatory note) at 9. [9] Robertson v New Zealand Police [2015] NZCA 7. [10] D (CA443/2015) v Police, above n 3, at [12]. [11] Criminal Procedure Act 2011, s 200(6).
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