Bangera v The the King
[2022] NZCA 451
•23 September 2022 at 11.00 am
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA299/2022 [2022] NZCA 451 |
| BETWEEN | SHEAL HERMAN BANGERA |
| AND | THE KING |
| Hearing: | 22 August 2022 |
Court: | Goddard, Brewer and Edwards JJ |
Counsel: | S D Cassidy for Appellant |
Judgment: | 23 September 2022 at 11.00 am |
JUDGMENT OF THE COURT
The appeal is dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by Brewer J)
Introduction
Mr Bangera appeals the refusal of Campbell J to grant him permanent name suppression.[1]
[1]R v Bangera [2022] NZHC 1366 [High Court judgment].
At the commencement of his judgment Campbell J sets out succinctly the background to Mr Bangera’s case and the issues the Judge had to adjudicate:
[1] Mr Sheal Bangera killed his parents and attempted to kill a family friend. As a result, Mr Bangera faced two charges of murder and a charge of attempted murder.
[2] On 23 March 2022, Fitzgerald J said she was satisfied, on the basis of expert evidence, that Mr Bangera was insane[2] at the time of the offending. Accordingly, her Honour found, under s 20 of the Criminal Procedure (Mentally Impaired Persons) Act 2003 (CP(MIP) Act), Mr Bangera not guilty of the charges on account of insanity.[3]
[3] The not guilty finding gave rise to an inquiry under s 23 of the CP(MIP) Act. That inquiry has come before me. In short, I have to determine whether Mr Bangera should be detained in hospital as a special patient or whether there is some more suitable method of dealing with him.
[4] In addition, I have to determine whether to grant an application that Mr Bangera has made for permanent name suppression.
[2]Within the meaning of s 23 of the Crimes Act 1961.
[3]R v Bangera HC Auckland CRI-2020-004-2185, 23 March 2022.
Campbell J ruled that Mr Bangera be detained in a hospital as a special patient under the Mental Health (Compulsory Assessment and Treatment) Act 1992. That ruling is accepted by Mr Bangera. However, Mr Bangera sought permanent name suppression (he had interim suppression) on the ground that publication would likely cause him extreme hardship by hindering his rehabilitation and reintegration into the community.
Campbell J held that the consequences to Mr Bangera if his name were published would constitute hardship, but not extreme hardship. The Judge also said that even if extreme hardship was likely he would not grant permanent name suppression because the circumstances, including the principle of open justice, would not “clearly favour” suppression.[4]
The appeal
[4]High Court judgment, above n 1, at [54]–[56].
The principal ground of appeal is that the Judge erred in his assessment of the gravity of the likely consequences for Mr Bangera if his name were to be published. Mr Cassidy, for Mr Bangera, submits that the likely consequences are so grave that they satisfy the test for what constitutes extreme hardship.
Mr Cassidy submits further that the Judge erred in expressing the view that if extreme hardship were established, the circumstances of Mr Bangera’s case would not “clearly favour” suppression.
The High Court judgment
Campbell J first summarised the relevant law. We respectfully adopt his summary:
[38] Suppression of a defendant’s name or identifying particulars is governed by s 200 of the Criminal Procedure Act 2011. It relevantly 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.
[39] Name suppression decisions involve a two-stage analysis.[5] First, s 200(2) provides that a Court may order suppression under s 200(1) only if satisfied that publication would be likely to:[6]
[5]Robertson v Police [2015] NZCA 7 at [39]–[41]; and Fagan v Serious Fraud Office [2013] NZCA 367 at [9].
[6]Criminal Procedure Act 2011, s 200(2).
(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
…
[40] “Likely” here means there is at least an appreciable risk (that is, one that “must not be fanciful and cannot be discounted”) that publication will have one of the consequences specified in the subsection.[7] As to “extreme” hardship or a “real risk” of prejudice, the quoted words indicate comparative standards. Accordingly, the Court of Appeal has said:[8]
They require that the court compare the consequences of publication in the instant case with those that normally attend prosecution. Distress, embarrassment and adverse personal and financial consequences usually attend criminal proceedings, and something out of the ordinary is needed if the applicant is to get across the threshold.
[41] Secondly, if the Court is satisfied that one of these threshold grounds is established, it has to determine whether in the exercise of discretion a suppression order ought to be made.[9] The ultimate question is whether, balancing relevant considerations, the principle of open justice should yield to suppression. Before a suppression order can be made, the balance must “clearly favour” suppression.[10]
[42] When determining whether to order permanent name suppression, the Court must take into account any views of a victim conveyed in accordance with s 28 of the Victims’ Rights Act 2002.[11]
[7]R v W [1998] 1 NZLR 35 (CA) at 39–40 as cited in Huang v Serious Fraud Office [2017] NZCA 187 at [9]. See also D (CA443/2015) v Police [2015] NZCA 541, (2015) 27 CRNZ 614 at [30(a)].
[8]D (CA443/2015) v Police, above n 7, at [11] (footnotes omitted).
[9]D (CA433/2015) v Police, above n 7, at [10].
[10]At [12].
[11]Criminal Procedure Act, s 200(6). We add that the victim and a family member either favoured permanent name suppression or did not oppose it.
The evidence of the likely consequences for Mr Bangera if his name were published came from the report of Dr Cavney, a forensic psychiatrist.[12]
[12]Psychiatric Report of Dr James Cavney, dated 28 May 2022 [Dr Cavney’s report].
Campbell J summarised Dr Cavney’s opinions:
[44] Dr Cavney says Mr Bangera has reported significant anxiety about his name suppression being lifted and the impact this would have on his future ability to form a relationship, get married and obtain gainful employment. While these are not primary treatment goals at this time, they would be relevant toward the later stages of recovery as Mr Bangera began the move to community reintegration.
[45] Dr Cavney says it is his experience that publication issues often pose very significant challenges and anxiety for patients acquitted of murder by reason of insanity. The issues can compromise their recovery, result in sub- acute relapse or readmissions or otherwise significantly delay their community reintegration.
[46] Dr Cavney says his clinical opinion is that publication of Mr Bangera’s name will pose very real challenges to his recovery. Dr Cavney says Mr Bangera was unusually anxious about publication compared to other patients in a similar situation. However, his impression was that much of Mr Bangera’s anxiety related to a sense of shame and embarrassment about his personal health information being publicised.
In considering Dr Cavney’s opinions against the submissions of counsel, the Judge had regard to the judgment of this Court in Pond v R.[13] In that case, as the Judge said, this Court held that the mere fact of an acquittal by reason of insanity, together with inevitable fears about the consequences of publicity, do not suffice to meet the extreme hardship threshold. Each case requires individual consideration.[14]
[13]Pond v R [2019] NZCA 555, (2019) 32 FRNZ 453. Leave to appeal refused: Pond v R [2020] NZSC 37, (2020) 32 FRNZ 481.
[14]Pond v R, above n 13, at [53].
The Judge accepted Dr Cavney’s opinions as to the possible consequences for Mr Bangera if his name were published. The Judge accepted those consequences were “likely”, in terms of s 200(2). In particular, the Judge was satisfied that publication:
(a)may hinder Mr Bangera’s recovery and delay his community reintegration; and
(b)may increase the risk of relapse or readmission.
However, the Judge did not consider that these likely consequences amounted to extreme hardship:
[55] I consider that these consequences would constitute hardship to Mr Bangera. But I do not consider that the hardship would be “extreme”. That word sets a very high threshold — not even undue hardship will suffice. Whether hardship is extreme needs to be assessed contextually. Here, that context includes that, regardless of whether his name is published, Mr Bangera’s road to recovery and reintegration will be a long and difficult one and he will be at some risk of relapse or readmission. I am not satisfied that the additional hindrances and possible increased risk that Dr Cavney identifies are so significant as to amount to extreme hardship.
In commenting why, if the extreme hardship threshold had been crossed, he would not have exercised his discretion to grant permanent name suppression, the Judge relied on two factors:
(a)for Mr Bangera to reintegrate into society, he must come to terms not only with what happened but also that others will know what happened; and
(b)prospective employers or partners of Mr Bangera should be able to find out his background.
Submissions on appeal
Mr Cassidy submits that the likely consequences reported by Dr Cavney and accepted by Campbell J amount to extreme hardship. Mr Cassidy points, particularly, to the following paragraphs in Dr Cavney’s report:
[113] Having worked with many such individuals who are approaching the community reintegration phase of their recovery journey, these issues often pose very significant challenges and anxiety for the patient and can often compromise their recovery, result in subacute relapse, readmissions or otherwise lead to significant delays in their eventual reintegration.
[114] In my opinion, Mr Bangera will likely struggle with this stage and, on clinical grounds, matters arising from the publication of his name will likely pose very real challenges for him as it does for others in a similar position. On legal grounds, it is however a matter for the Court to determine whether this rises to the extent of causing Mr Bangera (or indeed others in his situation) extreme hardship pursuant to s200(2)(a) of the Criminal Procedure Act, 2011. Current precedent would suggest it does not although in my experience in other cases, the question of permanent name suppression is seldom presented to the Court to consider.
Dr Cavney’s conclusions on the issue are:
[123] The publication of Mr Bangera’s name and the details of his index offending will most certainly add to the challenges he faces as he moves through his rehabilitation and recovery toward the community reintegration phase of his treatment.
[124] Whilst this is not uncommon for forensic patients with similar offending, Mr Bangera did impress as being unusually sensitive to those issues relative to his current stage of recovery. Whether or not that could be considered by as causing extreme hardship to him in support of an application for his permanent name suppression is ultimately a matter for the Court.
Mr Cassidy points to Dr Cavney’s opinion that in the event of a future relapse there is a moderate to high risk that Mr Bangera could commit suicide. Mr Cassidy links this risk to Dr Cavney’s opinion that name publication could not only complicate recovery and reintegration but could trigger a subacute relapse.
On the issue of whether, if the extreme hardship threshold is crossed, the judicial discretion to order permanent name suppression should be exercised, Mr Cassidy submits:
(a)the likely negative effects on Mr Bangera’s rehabilitation and reintegration if his name is published tells in favour of permanent suppression; and
(b)the general right of the public to know Mr Bangera’s background is lessened by the opinions of the psychiatrists that he is at low risk of causing harm to others.
The Crown supports Campbell J’s reasoning and conclusions.
Discussion
Our task is to reach our own view on whether Mr Bangera should have permanent name suppression.[15] We must form our own view on the first stage of the analysis, having due regard to the Judge’s reasons: whether publication of Mr Bangera’s name would be likely to cause him extreme hardship. If so, we would then need to form our own view as to whether he should have permanent name suppression in light of that conclusion.
[15]See Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141 at [16].
First, we emphasise that the threshold of “extreme hardship” erected by s 200(2) of the Criminal Procedure Act 2011 is a very high one.[16] The words are simple and mean what they say. As this Court observed in Robertson v Police:[17]
[48] As regards the level of hardship required by the phrase “extreme hardship”, we consider it clear beyond argument that it connotes a very high level of hardship. The word “hardship” on its own means “severe suffering or privation”. The addition of the qualifier “undue” in s 200(2)(c) indicates that something more than hardship simple is required, while the word “extreme” in s 200(2)(d) indicates something more again.
[16]Bond v R [2015] NZCA 488 at [33].
[17]Robertson, above n 5 (footnotes omitted).
The fact that a defendant has been acquitted of a serious crime by reason of insanity does not put the defendant in a category different to other defendants. It simply means that the factors to be considered in both stages of the analysis will probably be focused on the likely effects of publication on the defendant’s mental health. As this Court said in Pond v R, each case requires individual consideration.[18]
[18]Pond v R, above n 13, at [53].
Dr Cavney’s opinions are quite generic. He says that he has worked with many individuals in Mr Bangera’s situation who are approaching the community reintegration phase of their treatment and, like them, Mr Bangera will likely struggle with this stage.[19] Publication of his name will likely pose very real challenges for him as it does for others in a similar position. Dr Cavney differentiates Mr Bangera’s situation only by saying that he “did impress as being unusually sensitive to those issues relative to his current stage of recovery”.[20] In short, if Mr Bangera’s name is published he is not likely to suffer hardship significantly beyond that of any person in his position.
[19]Dr Cavney’s report, above n 12, at [113]–[114], quoted at [14] above.
[20]At [124], quoted at [15] above.
We do not accept that Dr Cavney links publication of Mr Bangera’s name with a real risk of suicide. Indeed, he does not mention a risk of suicide at all when discussing name suppression. In an earlier part of his report, Dr Cavney says that Mr Bangera would, potentially, become suicidal without treatment for his psychotic illness.
It follows that we agree with Campbell J that the likely effects of publication on Mr Bangera amount to hardship, but not to extreme hardship.
Like Campbell J, we do not need to determine the second stage of the analysis. But, like the Judge, we will give our view.
The second stage requires a balancing of the public interest in open justice against a defendant’s private interest in remaining anonymous; or as anonymous as it is possible to be in this age of social media. The Judge is correct to say that the public interest will prevail unless the balance clearly favours suppression.
Mr Bangera is a special patient. He has, very likely, a lengthy period of treatment ahead of him before he will be eligible to move back into the community. If the consequences for him of name publication amounted to extreme hardship then he is in the best place for those consequences to be mitigated. None of the consequences identified are said to be permanent or irremediable.
Even if there were permanent name suppression, Mr Bangera would still have to deal with people in the community who know about his background. For example, people associated with the victims of his actions and people who provide community mental health services. As Campbell J said, for Mr Bangera to reintegrate into society, he must come to terms not only with what happened but also that others will know what happened.
The principle of open justice is fundamental to our constitution. That is why the balance must clearly favour suppression before it is given effect. The more serious the events dealt with by a court, the greater the interest of the public in knowing who was associated with those events. Mr Bangera killed his parents and tried to kill a family friend. He did that while he was insane and he is not morally culpable — or criminally culpable. But the public has a real interest in knowing that he committed those actions, and is being treated for his mental illness. Eventually Mr Bangera will be released into the community. His background should not be concealed from those who will have close, and even intimate, contact with him.
There is one further point to discuss. Mr Cassidy asked us to consider extending interim suppression of name if we conclude that permanent suppression of name is not warranted. He submits that if interim suppression is extended to the point where Mr Bangera is eligible for reintegration into the community then that would assist Mr Bangera with his recovery in the meantime and permanent name suppression could be finally decided against his record of treatment.
We have decided that Mr Bangera is not entitled to permanent name suppression. When he re-enters the community he will meet people who know his background. It is better that he deals with that reality now while he is in expert care and has time to prepare for his reintegration with the community. An order extending interim name suppression is not appropriate.
Result
The appeal is dismissed.
Solicitors:
Crown Law Office, Wellington for Respondent
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