C v The King

[2023] NZHC 3099

ORDER PROHIBITING PUBLICATION OF NAME(S), ADDRESS(ES), OCCUPATION(S) OR IDENTIFYING PARTICULARS OF

APPELLANT(S)/RESPONDENT(S)/ACCUSED/DEFENDANT(S) PURSUANT TO S 200 CRIMINAL PROCEDURE ACT 2011.

SEE

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI 2023-404-000439

[2023] NZHC 3099

BETWEEN

C

Appellant

AND

THE KING

Respondent

Hearing:

30 October 2023

Appearances:

A Bloem for the Appellant

M Mortimer-Wang for the Respondent

Judgment:

2 November 2023

JUDGMENT OF TAHANA J

This judgment was delivered by me on 2 November 2023 at 4.00pm

…………………………

Registrar/Deputy Registrar

Solicitors/Counsel:

Bloem & Associates, Albany

Meredith Connell, Crown Solicitor, Auckland

C v R [2023] NZHC 3099 [2 November 2023]

Introduction

[1]    C appeals a decision of Judge P J Sinclair in the Auckland District Court declining his application for permanent name suppression.1

[2]    C pleaded not guilty by reason of insanity and was acquitted on four charges of wounding with intent to cause grievous bodily harm and two charges of assault with a weapon. C is subject to a special patient order and is currently in the Mason Clinic.

Background

[3]    On 23 June 2022, C, armed with a kitchen knife, rang the doorbell of the first complainant. When she opened the door he rushed at her, stabbing her to the upper chest. C then ran away down the road where he grabbed and tried to stab the second complainant who escaped uninjured.

[4]    C continued running and came across the third complainant. The third complainant was walking in the other direction. From behind, C stabbed her once in the back. C then again continued running.

[5]    The fourth and fifth complainants were sitting on a park bench overlooking the beach. C approached them from behind and stabbed each of them once in the back.

[6]    The sixth complainant was walking along the beach and C lunged towards the complainant as she walked near him. She ran and screamed for help. C ran away but was chased by members of the public and was disarmed and restrained.

[7]C is a 42-year-old male who has not previously appeared before the court.

Grounds of appeal

[8]    Two grounds of appeal are advanced. First, that the Judge erred in her assessment of the gravity of the consequences and should have found that publication

1      R v [C][2023] NZDC 16153.

would cause extreme hardship or danger to C’s safety. Second, that the Judge erred in finding that the circumstances of the case do not favour suppression.

Relevant law

[9]    C relies on s 200(2)(a) and (e) of the Criminal Procedure Act 2011. Section 200 provides:

1. 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

   …

(e)       endanger the safety of any person; or

…

(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.

…

(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 16B of the Victims’ Rights Act 2002.

[10]   Determining whether to order name suppression involves a two-stage enquiry. First, whether any of the thresholds in s 200(2) have been established, and second, whether in the exercise of the court’s discretion an order should be made.2 At the second stage, the principle of open justice is weighed against factors in favour of

2      D (CA443/2015) v Police [2015] NZCA 541 at [10].

suppression, and the balance must “clearly favour” suppression for an order to be made.3 The ultimate question being whether open justice should yield.4 Factors to be weighed and considered in this case include the seriousness of the offending, the public interest in knowing C’s character and identity, the public’s right to freedom of expression, the impact of publication on C’s prospects of rehabilitation, the personal circumstances of C, the interests of the victims, and the interests of other affected persons.5

Extreme hardship

[11]   Extreme hardship requires a very high level of hardship connoting severe suffering or privation.6 A defendant does not have to show that a risk of harm is more than likely to occur, but the risk of harm must be a real and appreciable possibility that cannot be dismissed or ignored as remote or fanciful.7

[12]   While the Judge acknowledged that C is likely to suffer hardship if his name is published, she did not consider that he had established “that high level of extreme hardship” would result if publication was made which the discretionary exercise requires in order to suppress.8

Potential consequences of publication

[13]   The medical  evidence  is  uncontested.  Three  reports  were  provided  by  Dr Neena Joseph, Consultant Psychiatrist,9 and one report from Dr Olivera Djokovic,

Consultant Psychiatrist.10

[14]   The medical reports disclose that C has been under the care of mental health services since 2002 (when aged 21). C suffers from schizophrenia, has experienced

3 At [12].

4 At [12].

5 At [12].

6      DP (CA418/2015) v R [2015] NZCA 476 at [6].

7      See for example Beacon Media Group Ltd v Waititi [2014] NZHC 281 at [17]; GWS v Police [2013] NZHC 943 at [9]; JM v R [2015] NZHC 426 at [35]; Q v New Zealand Customs [2014] NZHC 2398 at [54]; and Huang v Serious Fraud Office [2017] NZCA 187 at [10].

8      R v [C] [2023] NZDC 16153 at [30].

9      Reports dated 26 August 2022, 19 May 2023 and 2 June 2023.

10 Report dated 26 July 2023.

episodes of major depression, and likely suffers from post-traumatic-like disorder associated with the offending on 23 June 2022.

[15]   The severity of C’s schizophrenia is undisputed and is described by Dr Joseph as follows:

For more than two decades, [C] has endured severe manifestations of his schizophrenic illness including severe delusions; commanding type of auditory hallucinations (telling him to hurt himself and others); grossly disorganised and catatonic behaviours (unresponsive and periodically mute due to marked psychomotor disturbances); negative symptoms (diminished motivation and emotional expressions; anhedonia; reduced spontaneity); profound episodes of depression.

[16]   Dr Djokovic says C suffers from “a treatment resistant schizophrenia which can be described as an abnormal state of mind characterised by ongoing presence of delusional beliefs, with themes of guilt, nihilism and religiosity.”11

[17]Dr Joseph opines as to the consequences of publication on C’s mental health:

80. From the account of [C] as well as the psychiatry registrar, there is currently a high likelihood of him suffering mental health relapses and/or exacerbation of his mood symptoms in the context of the publication of his name.

…

82.As such, [C] has been concerned of becoming “quite paranoid” with referential ideas marked by negative judgements from others (that he is a “bad person” and “violent”) and persecutory fears of physical assault on him in the hospital and community and his family (60 to 80% convinced this could happen) as retribution. This is compounded by his persistent symptoms of hypervigilance regarding potential threats of dangers in his environment as evidenced in his behaviours and presentation in the hospital.

83.In addition, [C] is likely to be faced with enduring stressors due to the perceived consequences of the publications of name (“a whole lifetime of worrying” and “these effects will continue throughout my life”). Principally, his “biggest worry” is about the impact of this on the stress levels and consequently the “mental state” of his parents, especially his mother who suffers from a severe mental illness.

…

84.In terms of the long-term impact of the publication of his name, the above effects would likely significantly impede [C’s] mental health

11     Report dated 26 July 2023.

rehabilitation, risk management and community integration … In particular, he would face increasing challenges in the later parts of his rehabilitation, when he would be directly exposed to potential triggers/perceived threats in the community, but with relatively less supervision and supports.

[18]Dr Joseph concludes that:

86.In sum, it is therefore likely that [C] could suffer severe relapses of   his schizophrenic illness and/or mood symptoms (depression and anxiety), that are likely to cause him marked emotional distress and substantially high levels of hardship and suffering if his name were to be published. The negative consequences of such relapses are likely to be wide-ranging and enduring, impacting not only his illness remission, but potentially his mental health rehabilitation, risk management, community integration and personal recovery.

[19]   The medical evidence therefore indicates that the likely short-term consequences of publication comprise relapse of his schizophrenia and/or depression and anxiety, exacerbation of his mood symptoms, paranoia and persecutory fears of physical assault and enduring stressors. The long-term consequences are identified as impeded rehabilitation and community reintegration and emotional distress.

[20]   In R v MT, this Court considered that because of the notoriety of a case, the life of a patient in secure care would become very difficult and compromise the prospects of rehabilitation. The Court was satisfied that this constituted extreme hardship.12 In that case, MT had been declared unfit to stand trial and that factor reduced the legitimate public interest in knowing the identity of MT.13

[21]   Ms Bloem points to C’s concerns about retribution from within the Mason Clinic and says that this contributes to the extreme hardship that C may suffer if his name is published.

[22]   Ms Bloem also refers to negative online comments and says that these will further contribute to C’s fears of retribution and persecution. The examples of online comments provided were made on a news story at the early stages of the proceeding and before C’s acquittal. It is unclear what the social media response would be in circumstances where C has been acquitted by reason of his insanity.

12     R v MT [2020] NZHC 1490 at [131].

13 At [132].

[23]   The harmful effect of publicity on an offender and their prospects of rehabilitation may amount to extreme hardship.14 The Court of Appeal has previously held that online public abuse was sufficient to indicate a likely risk of extreme hardship:15

[39]      Social media may increase, perhaps substantially, the risk that publication of an offender’s name will cause that person extreme hardship, for two reasons. First, social media commentary may follow mainstream media reporting, but it relies on user-generated content to which no obligation of balance or fairness attaches. In the absence of such obligations, a court cannot assume that social media reporting will be fair or accurate. Nor can it assume that readers are likely to verify what they have been told before posting their responses. The nature of such reporting and the audience response are questions of fact.

[40]      Second, social media may facilitate harmful behaviours such as defamation, abuse, trolling, doxing and vigilantism. This tendency is in part a function of users’ anonymity. In X (CA226/2020) v R the Court referred to “cancel culture”, referring to a form of mob justice in which those deemed to have transgressed some norm are subjected to intense public shaming. …

(footnotes omitted)

[24]   In DV v R the social media posts indicated false statements had been made by the complainant and there were negative comments by other users.16 There was evidence that the offenders had experienced isolation, depression and anxiety which had been severe and ongoing. There was also evidence of the appellants withdrawing from social media and experiencing ridicule and abuse on social media.17

[25]   Ms Bloem acknowledges that within the Mason Clinic, access to the internet may be monitored but that any social media commentary would likely remain available to C when he is reintegrated into the community. C’s likely response to social media, whether available in the Mason Clinic or when he is released, has to be assessed in the context of his mental illness. While the social media comments may not be as negative as in DV v R, the issue is the likely impact on C who suffers from schizophrenia and other severe mental illness.

14     Lewis v Wilson & Horton [2000] 3 NZLR 546.

15     DV v R [2021] NZCA 700.

16     DV v R [2021] NZCA 700 at [42].

17 At [44].

[26]   Dr Joseph notes that the effects of publication may be prolonged and notes that the support available at the Mason Clinic includes therapeutic interventions, participation in violence reduction programs, and cognitive behavioural therapy (CBT) informed psychological therapy to modify his negative core beliefs. C also has the support of his family.

[27]   Dr Joseph concludes that C could suffer “severe relapses” of his schizophrenic illness and/or mood symptoms (depression and anxiety) that are “likely to cause him marked emotional distress and substantially high levels of hardship and suffering.” I understand Dr Joseph’s evidence to be that while the Mason Clinic can respond to any relapse, it cannot prevent it such that the pain and suffering from experiencing a relapse is reduced by reason of a person being within a hospital environment. Rather, the pain and suffering is potentially better able to be dealt with by reason of the rehabilitation and other resources available to the person suffering the mental illness within a hospital environment.

[28]   As noted by the Court of Appeal, the weight to be given to medical evidence is a matter for the Court:18

The opinions of medical professionals deserve respect, but a court need not defer to them. It is unlikely to question an uncontradicted medical diagnosis of the defendant’s condition, but such opinions may assume that any risk is too much risk or (as in this case) urge suppression without adequately addressing alternative ways in which the risk might be managed.

(footnote omitted)

[29]Dr Joseph’s evidence is uncontested.

[30]    Judge Sinclair accepted that publication may exacerbate or fuel C’s symptoms but that they can be managed in the secure environment of the Mason Clinic. The Judge noted that Dr Joseph was unable to provide any evidence of the extent to which the publication will cause greater exacerbation than any other factors relating to C’s offending. The Judge considered that the long-term fears and concerns expressed by C, and heeded to by Dr Joseph, are likely to be less significant than the actual offending itself.

18     D (CA443/2015) v Police [2015] NZCA 541 at [30(f)].

[31]   The legal test requires the Court to consider whether there is a real and appreciable possibility of extreme hardship as a result of publication. I do not consider that the fact that someone is already suffering hardship means that further additional hardship cannot also be experienced within a secure treatment facility. I defer to the medical evidence as to the likely effect on C’s illness and in turn what that may mean for the suffering C may endure if there is a relapse or worsening of C’s condition. I also defer to the medical evidence as to the ability of a hospital environment to remove or reduce any suffering.

[32]   If C was suffering a physical illness, such as cancer for example, a relapse of that illness within a hospital environment is likely to be better understood because the type of suffering is more obvious. In the case of mental illness, this Court is not well placed to assess the impact of a relapse on a sufferer within a treatment facility. I therefore defer to the medical evidence as to the likely hardship.

[33]   I am therefore satisfied that publication would be likely to cause C to suffer extreme hardship if he suffers a relapse of his schizophrenia and/or a relapse of depression and/or anxiety, consistent with the evidence of Dr Joseph. Further, I am satisfied that the risk is a real and appreciable possibility that I cannot dismiss or ignore as remote or fanciful.

Danger to safety

[34]   Dr Joseph considers that C has an “elevated risk” of suicide and notes C’s “significant history of suicidal ideations”  and  his  previous  attempts  at  suicide.  Dr Joseph also considers a significant risk is his tendency to avoid or delay communicating his suicidal thoughts to staff members. He has also been found to be “stockpiling medications” in recent months.19

[35]   Dr Djokovic also reports that C is at increased risk of suicide given he has had two previous attempts which occurred in an inpatient unit. He has also previously overdosed in an inpatient unit in a way that had some preparation behind it. Further,

19     Report of Dr Joseph dated 2 June 2023.

C has a history of “discontinuing recommended treatment with antipsychotic medication and absconding from acute adult inpatient units.”20

[36]   The reports also helpfully identifies the support available to C within the Mason Clinic to mitigate the risk of suicide. That support includes limiting access to means of self-harm, regular observations, medication, implementation of a safety plan, and participation in occupational and psychological therapy.

[37]   Dr Djokovic notes that being in a medium-secure unit with supervision reduces the risk of impulsive self-harm which is C’s main risk to self. Dr Djokovic notes that a medium-term risk mitigation strategy could involve increasing antidepressant medication, but considers a preferred mitigation tool is psychological interventions in the short-term before any medication changes. Random room searches are also identified as a tool to discover any preparation of means for suicide.

[38]   While accepting that the Mason Clinic is able to put in place measures to mitigate the risk of suicide, Dr Joseph does not consider that such measures are sufficient to outweigh C’s risk of suicide:

113.On balance, I am therefore of the opinion that in the context of [C’s] name being published, the mitigating effects of his protective factors against suicide are likely to be outweighed by the aggravating effects of his risk factors. Although there is the possibility of significant mitigation of his suicidal risks from his ongoing treatment in a secure therapeutic facility and by use of safety plans and psychosocial interventions in the short-term, these interventions may prove insufficient to manage his heightened risks during periods of fluctuations in his mental state, compliance with treatment, or stress levels. On this basis, I form the opinion that the publication of his name is likely to result in chronic and very high levels of hardships to him.

114.I therefore conclude that it is likely that [C’s] existing risk of suicide (which is low-moderate) would be further exacerbated by the publication of his name.

[39]   Dr Joseph’s report notes the possibility of “significant mitigation of suicidal risks” but then considers that they “may prove insufficient” to manage heightened risks during periods of fluctuations in his mental state, compliance with treatment or

20     Report of Dr Djokovic dated 26 July 2023.

stress levels. Dr Djokovic’s report notes that being in a medium-secure unit with supervision reduces the risk of self-harm.

[40]   The Court of Appeal in D (CA443/2015) v Police said that the risk of self-harm or suicide:21

[A]lways gives a court cause for anxious consideration. Suicide would be a devastating and unacceptable consequence of publication and it cannot always be assumed that an at-risk person will behave rationally. But the court cannot adopt the stance that any risk is unacceptable.

That is because “[t]here are normally ways of managing the risk.”22

[41]   The medical evidence as to risk needs to be considered alongside the effectiveness of mitigation measures taken to date. The Mason Clinic has been effective in managing C’s suicide risk, which was observed to be high at the time of admission. There is also no indication in the medical reports that any suicide risk posed from publication would be different to the risk arising at the time of the index offending. That risk has been able to be effectively mitigated.

[42]   Ms Bloem submits that it is the long-term suicide risk that cannot be mitigated. In this regard, Dr Joseph observes that in the community C would have access to many means of self-harm and would not have the support that is available in the Mason Clinic.

[43]    In declining permanent name suppression, the Judge acknowledged the long- term risk and considered it unlikely that C will be left unmonitored and unsupported in the community when he is discharged from the Mason Clinic. She also considered that by the time of his reintegration, the media interest would have dissipated.

[44]   It is difficult for the Court to assess long-term risk now, as the actual risk at the time of reintegration into the community is likely to be impacted by the treatment and support that C will receive while at the Mason Clinic, before any reintegration. I agree with the Judge that it would be unlikely that C would be left unmonitored and

21     D (CA443/2015) v Police [2015] NZCA 541 at [30(a)].

22     At [30(g)].

unsupported in the community. Further, it is unlikely that C will be released into the community if the risk of suicide from publication, or for any other reason, is such that it cannot be mitigated within the community. Further, Dr Joseph’s observations need to be observed alongside Dr Djokovic’s report which does not express the same reservations as to the effectiveness of the mitigation measures on his risk of suicide.

[45]   Counsel for C refers to the decision in BL v R23 where the High Court held that the risk of suicide could not be mitigated and could be elevated further due to publication. In that case, the offender was not in a secure facility such as the Mason Clinic, nor in prison such as was the case in R v Suttie where the Court of Appeal upheld the decision to decline to grant name suppression even though the evidence was that publication would heighten an existing risk of suicide.24 The Court of Appeal in Suttie was satisfied that the risk would be “reasonably controllable” within the prison system.25

[46]   I consider that the observations of Dr Djokovic as to the effectiveness of mitigation strategies overall, the effectiveness of mitigation strategies to date, and the likelihood that C will only be discharged into the community if his suicide risk is sufficiently mitigated and appropriate support is in place, indicate that any risk of suicide can be managed.

Discretionary assessment

[47]   I now consider the second stage of the test. The starting point is open justice and the appellant has the task of overcoming that.26

[48]   If the correct finding is that there is an unmanageable risk of suicide, such a risk would outweigh open justice (as the Crown responsibly accepts). There is no public interest in knowing the identity of an individual if there is an unmanageable risk of suicide.

23     BL v R [2013] NZHC 2878 at [31].

24     R v Suttie [2007] NZCA 201.

25 At [32].

26     R v W [2016] NZHC 2923 at [59].

[49]   The risk of extreme hardship arising from C suffering a relapse of his mental illness needs to be assessed against the public interest and the primacy of open justice.

[50]   In R v W, the Court held that there is a legitimate public interest in knowing the identity of a person acquitted by reason of insanity.27 This is especially so if the offending is serious.

[51]   Ms Bloem submits that the offending is not as serious as in the case of Bangera v R where the defendant murdered his parents and attempted to murder a family friend.28 Mr Bangera was found not guilty on account of insanity. In upholding the High Court’s decision to decline name suppression, the Court of Appeal noted that “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.”29

[52]   Here, C had a kitchen knife and stabbed four people and attempted to stab two others. While that did not result in death, the offending is nevertheless serious. The offending took place in public and innocent members of the public were injured, and more serious harm could have been caused. There is an interest in members of the public being aware of the identity and background of an individual who has been violent in public so that they are able to make their own assessment and choices if they are to have contact with C when he is released into the community.

[53]   C is likely to be in the Mason Clinic for some time, meaning that any public safety issue is unlikely to arise until he is released into the community. A relapse of C’s schizophrenia arising from paranoia (or other issue) he may experience when he returns to the community is likely to increase the risk to public safety. Dr Joseph opines that C is at risk of violence if his schizophrenia relapses.

[54]   Protection of public safety supports suppression if this reduces the risk of a relapse of C’s schizophrenia.

27     R v W [2016] NZHC 2923 at [59].

28     Bangera v R [2022] NZCA 451.

29 At [29].

[55]   The Court must take account of the views of the victims of the offending. Two of the six complainants favour publication of C’s identity. The other four take no view. While this is not determinative, it is a relevant factor to consider.

[56]   In these circumstances, I am not satisfied that the public interest in C’s name being published outweighs the potential risk to public safety if C relapses while in the community because of publication and the risk of extreme hardship to C by reason of any relapse. I am therefore satisfied that the Judge erred in declining to permanently suppress publication of C’s identity.

Result

[57]   The appeal is allowed. There will be an order for permanent suppression of C’s identity.

Tahana J