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ORDER PERMANENTLY PROHIBITING PUBLICATION OF APPELLANT'S NAME AND ANY VISUAL OR PHOTOGRAPHIC IMAGE OR ANY OTHER DETAILS LIKELY TO LEAD TO HIS IDENTIFICATION.
IN THE COURT OF APPEAL OF NEW ZEALAND
CA418/2015 [2015] NZCA 476
BETWEEN
DP (CA418/2015)
Appellant
AND
THE QUEEN Respondent
Hearing:
27 August 2015
Court:
Harrison, Wild and Miller JJ
Counsel:
M N Pecotic and J-A Kincade for Appellant A Markham for Respondent G T Goatley for media interests
Judgment:
8 October 2015 at 10.30 am
JUDGMENT OF THE COURT
A The appeal is allowed.
B The order made in the High Court is quashed. In substitution an order is made permanently prohibiting publication of DP’s name and any visual or photographic image or any other details likely to lead to his identification.
REASONS OF THE COURT
(Given by Harrison J)
DP (CA418/2015) v R [2015] NZCA 476 [8 October 2015]
Introduction
[1] In June 2014 the appellant, DP, stabbed a shopkeeper to death in the course of a failed daylight robbery. DP was then 13 years of age. He was charged with murder but was found guilty of manslaughter following a trial before Lang J and a jury in the High Court at Auckland. His accomplice, who was then aged 12 years, was acquitted on a charge of manslaughter. DP was convicted and sentenced to six
years imprisonment with a minimum term of three years and three months.1
[2] Lang J ordered interim suppression of DP’s name pending trial2 but, following trial, declined his application for permanent suppression.3 The Judge was not satisfied that DP would be likely to suffer extreme hardship if his name was published or, even if he had met that criterion, that he should exercise his residual
discretion to order suppression. He did, nevertheless, suppress from publication any visual or photographic image which might lead to DP’s identification.
[3] DP’s appeal against Lang J’s decision is opposed by the Crown and the mainstream news media.
Background
[4] We gratefully adopt Lang J’s succinct summary of the relevant facts as follows:
[5] The murder charge was laid following an attempted robbery of the Railside Dairy in Henderson on the morning of 10 June 2014. On that date DP, who was then 13 years of age, went to the dairy with RP. RP was
12 years of age at this time. DP entered the dairy carrying a knife, either in his pocket or in a sports bag. RP remained by the door of the dairy carrying a
steel pole.
[6] CCTV camera footage shows that DP then entered into a discussion with the dairy owner, Mr Kumar. The nature of the discussion was not revealed at trial, but it related presumably to DP seeking money from Mr Kumar. There was no apparent aggression by either DP or RP towards Mr Kumar during this period.
[7] Matters changed significantly when Mr Kumar’s wife entered the dairy from the rear of the premises holding a…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
DP v R [2015] NZCA 476
Case
[2015] NZCA 476
Decision Date
CaseChat Overview and Summary
The appellant, DP, appeals against the decision of Lang J in the High Court to decline his application for permanent suppression of his name following his conviction of manslaughter for stabbing a shopkeeper to death in the course of a failed robbery. The Crown and the mainstream media oppose the appeal. The Court of Appeal allows the appeal and quashes the High Court's order in substitution making an order permanently prohibiting publication of DP's name and of any visual or photographic image or any other details likely to lead to his identification. The appeal concerns the two-stage inquiry mandated by s 200 of the Criminal Procedure Act 2011. The first question is whether DP had established the jurisdictional prerequisite of proving that publication would be likely to cause him extreme hardship – that is, a very high level of hardship connoting severe suffering or privation, and requiring a comparison between the hardship contended by DP and the consequences normally associated with publication. The second question, if DP met this jurisdictional threshold, was whether after weighing the competing private and public interests the Judge was satisfied that DP’s name should be suppressed. The Court of Appeal found that the High Court Judge failed to give primary consideration to DP’s particular characteristics when assessing whether name publication would be likely to cause him extreme hardship. In particular, the Judge failed to give sufficient weight to DP’s traumatic brain injury and its effect on his culpability and to the risk of self-harm associated with publication. The Court of Appeal found that DP would be likely to suffer extreme hardship if his name was published and quashed the High Court order in substitution making an order permanently prohibiting publication of DP’s name and of any visual or photographic image or any other details likely to lead to his identification.