DP v R

Case [2015] NZCA 476


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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…

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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.

Orders

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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