Hawea-Edwards v The Queen
[2020] NZHC 3093
•23 November 2020
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-2020-404-000268
[2020] NZHC 3093
BETWEEN ANTONIO CONAN HAWEA-EDWARDS
Appellant
AND
THE QUEEN
Respondent
Hearing: 12 October 2020 Appearances:
Hunter de Groot for the Appellant
Rebekah Thompson for the Respondent Catrina Owen representing Stuff Limited
Judgment:
23 November 2020
JUDGMENT OF MOORE J
[Appeal against refusal to grant name suppression]
This judgment was delivered by me on 23 November 2020 at 3:00 pm.
Registrar/ Deputy Registrar Date:
HAWEA-EDWARDS v R [2020] NZHC 3093 [23 November 2020]
Introduction
[1] The appellant, Antonio Conan Hawea-Edwards, is a serving prisoner having been sentenced to three years and six months’ imprisonment by Judge D J Sharp in the District Court at Auckland on 2 July 2020.1
[2] The day before sentencing, Judge Sharp heard and declined Mr Hawea-Edwards’ application for permanent name suppression under s 200 of the Criminal Procedure Act 2011 (the “CPA”).2 Mr Hawea-Edwards appeals that decision.
Background
[3]Following a sentencing indication, Mr Hawea-Edwards pleaded guilty to:
(a)two charges of assault with intent to commit sexual violation;3
(b)one charge of attempting to commit sexual violation;4
(c)one charge of burglary;5 and
(d)six charges of indecent assault.6
[4] The offending arose from events in the Auckland Central Business District on the afternoon of Saturday, 21 September 2019. Within a period of just under two hours Mr Hawea-Edwards approached and sexually assaulted 10 women. With the exception of one, the complainants received no physical injuries although, unsurprisingly, their victim impact statements reveal varying degrees of distress and emotional harm.
1 R v Hawea-Edwards [2020] NZDC 12599.
2 R v Hawea-Edwards [2020] NZDC 12851.
3 Crimes Act 1961, s 129(2); maximum penalty 10 years’ imprisonment.
4 Section 129(1); maximum penalty 10 years’ imprisonment.
5 Section 231(a); maximum penalty 10 years’ imprisonment.
6 Section 135; maximum penalty seven years’ imprisonment.
[5] When approached by the Police in the immediate aftermath of the offending, Mr Hawea-Edwards attempted to flee but later claimed he said he could not recall what happened and it was all a dream. The following day it was apparent he was not in a fit state to make a statement. He commented to the Police, “How am I supposed to know what happened yesterday? I clearly wasn’t right.” When asked to provide clothing for evidential purposes, he requested privacy to change and then tore up the t-shirt he had been wearing.
[6] At the sentencing indication the Judge referred to a number of psychiatric reports which pointed to a bipolar or schizo-affective disorder, complicated and exacerbated by substance abuse. A s 27 report described Mr Hawea-Edwards as representing the stereotype of a criminal offender; physically strong, with a record of prior offending and few mitigating features or evidence of remorse. The report described a difficult childhood which limited Mr Hawea-Edwards’ insight, thus reducing the opportunities available to him. He exhibited a reduced ability to make correct life choices. It was recommended that a finite, proportionate sentence should be served in a facility which would permit Mr Hawea-Edwards to engage in appropriate rehabilitative programmes and interventions.
District Court decision
[7] The Judge referred to reports prepared by Drs Lokesh and Whiting dated 19 October 2019 and 4 March 2020 respectively. These discussed Mr Hawea- Edwards’ methamphetamine dependence disorder and bipolar affective disorder, the latter of which was being treated intermittently with mood stabilisers and anti- psychotic medication.
[8] The Judge then turned to the grounds relied on by Mr Hawea-Edwards. He considered that the s 200(2) threshold was not met on the basis of the risks with his mental condition. While Mr Hawea-Edwards’ mental health and rehabilitation issues were of concern, his conduct in relation to the index offending required a public protection response. The risk of self-harm could be contained in custody and the opportunities for rehabilitation might form part of any post-release conditions imposed
by the Parole Board. The Judge considered that hardship to Mr Hawea-Edwards’ family members fell below the very high threshold required. Submissions
Mr Hawea-Edwards
[9] Mr de Groot, for Mr Hawea-Edwards, submits that the Judge erred in finding the s 200(2) threshold test was not met. He submits that name suppression should have been granted on the alternative basis that:
(a)publication would be likely to endanger his safety by creating a real risk of suicide or marked decompensation of his mental state (s 200(2)(e) of the CPA).
(b)publication would be likely to cause him extreme hardship by compromising the prospects for successful long-term management of his condition (s 200(2)(a)).
[10] As to the discretionary assessment, Mr de Groot states that the public interest of publication is reduced by the fact the offending was related to Mr Hawea-Edwards’ mental state. The fact that the offending was sexual offending is not a decisive consideration.7 In the strange circumstances of this case, publication is highly unlikely have any utility in bringing forward further complainants or shedding light on undetected offending.
The Crown
[11] Ms Thompson, for the Crown, submits that the identified risk of Mr Hawea- Edwards committing suicide can be adequately managed in a custodial setting. She notes that his present suicide ideation is a contrast to his reported mental state in prior psychiatric reports. Publication of Mr Hawea-Edwards’ name is therefore not likely to reach the threshold of endangering his safety.
7 B v R [2011] NZCA 331 at [21].
[12] Further, she submits that publication of Mr Hawea-Edwards’ name may cause hardship, but this is likely to only be temporary. As such, the high threshold of extreme hardship has not been reached.
[13] She submits that there are competing considerations in favour of publication which mean the presumption of open justice should not be displaced in this case.
Legal principles
[14] This is a first appeal.8 The determination of name suppression requires the first instance Court to undertake the well-known two stage analysis.9 First, the Court must be satisfied that publication would be likely to lead to one of the threshold grounds listed in s 200(2) of the CPA. “Would be likely” is a common-sense test; it means there is an appreciable risk of the stated outcome occurring.10
[15] Only if that threshold is passed, the Court considers the second stage, which is a discretionary assessment. The Court 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, the principle of open justice and, relatedly, the public interest in knowing the offender’s name.11
[16] An appeal against the conclusion of the first step requires an appellant to identify an error, and the appellate Court to reach its own conclusion on the merits of the appeal.12
Further evidence on appeal
[17] This Court has inherent jurisdiction to accept fresh evidence.13 It should only be admitted where the interests of justice require the admission, and the proposed evidence is adequately fresh, credible and cogent.14
8 Criminal Procedure Act 2011, s 287.
9 Robertson v Police [2015] NZCA 7 at [39]—[41].
10 Huang v Serious Fraud Office [2017] NZCA 187 at [9],
11 At [41].
12 Austin, Nichols & Co Ltd v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141 at [16].
13 R v Ratu [2013] NZHC 3085 at [20]–[24]; Standfast v R [2019] NZHC 2538 at [10].
14 Bain v R [2007] UKPC 33, (2007) 23 CRNZ 71 at [34].
[18] On 9 September 2020, Downs J unilaterally vacated the hearing of the appeal because there was no evidence before this Court addressing the question of how Mr Hawea-Edwards’ risk of self-harm might be mitigated within prison.15 He directed that further evidence from Dr Lokesh be filed. He also directed the Crown to obtain evidence on the point from the Department of Corrections (“Corrections”).
[19] That evidence has since been received. Dr Lokesh has provided a comprehensive supplementary report dated 23 September 2020, to be read in conjunction with the 3 September 2020 psychiatric report prepared for the appeal.
[20] The Crown has filed evidence from Richard Charles Symonds, the Manager of Custodial Practice at Corrections dated 28 September 2020. Mr Symonds addresses the systems and mechanisms adopted by Corrections for the management of prisoners considered to be at risk of self-harm and suicide.
[21] Considering the interests of justice and the criteria for fresh evidence on appeal, I allow this evidence to be admitted. The contents of these reports are summarised below.
Dr Lokesh - 3 and 26 September
[22] Dr Lokesh’s report stated that Mr Hawea-Edwards has a well-established diagnosis of “a somewhat brittle form of Bipolar Affective Disorder characterised by frequent lapses” and Attention Deficit Hyperactivity Disorder since 2003. His condition has been managed with a mood stabilising medication. He has also had a significant history of substance abuse, predominantly cannabis and methamphetamine. He meets the criteria for substance abuse disorder, cannabis abuse disorder and methamphetamine abuse disorder, currently in remission.
[23] He has had at least four admissions to a psychiatric hospital and has attempted suicide twice following relapses of his Bipolar Affective Disorder in response to substance use or psychosocial stressors. Following his move back to Auckland in 2019, he lost contact with mental health services before his offending. Dr Lokesh
15 See D (CA443/2015) v Police [2015] NZCA 541, (2015) 27 CRNZ 614 at [30](g).
connects Mr Hawea-Edwards’ mental state to the offending, noting that previous health assessors had discussed the strong possibility of an insanity defence. However, Mr Hawea-Edwards entered a guilty plea.
[24] Mr Hawea-Edwards is already being managed by the forensic prison team. He will be considered a high priority for relevant psychological interventions, including an adult sex offender treatment programme before he is released to the community. If there are concerns about suicide, the usual protocol would be to shift him to an at-risk unit and/or manage him in segregation. He was in the at-risk unit due to concerns about his suicidal behaviour when he was on remand. Dr Lokesh described this as an effective short-term intervention, but emphasised that it would exacerbate Mr Hawea-Edwards’ mental health issues. Dr Lokesh said it is important that Mr Hawea-Edwards continues to receive social stimulation to enhance his recovery. Dr Lokesh also noted his concern that prison staff can take self-harm attempts less seriously where they believe prisoners are attempting to manipulate them. Dr Lokesh stated overall, managing suicidal behaviour in a custodial setting is extremely difficult. Mr Hawea-Edwards’ extremely limited social support, his low threshold to decompensate under stress and ongoing fragility despite interventions means there remains a clear risk of him attempting suicide. Dr Lokesh assessed his long-term risk of suicide as moderate, an assessment which would escalate to high if publication was permitted.
[25] While Mr Hawea-Edwards has a long history of offending, Dr Lokesh believes the index offending represents a marked deviation. Mr Hawea-Edwards struggled to come to terms with the nature of the offending. He expressed concern being labelled as a “sexually deviant offender”. He told Dr Lokesh that he was struggling to cope and repeated that he would not hesitate to commit suicide if his name was published. Mr Hawea-Edwards’ grandiose sense of self-importance, described as a defence mechanism to help him stabilise his mental state, would be impacted by publication. Dr Lokesh considered publication would risk a relapse of Mr Hawea-Edwards’ Bipolar Affective Disorder and would compromise the ongoing therapeutic interventions. The risk is complicated by the high-profile media interest in the case. It would also likely impair Mr Hawea-Edwards’ already precarious relationship with his family, making him vulnerable to depression. Mr Hawea-Edwards has very limited social contacts,
and publication would adversely affect any ability to engage in meaningful social connections.
[26] However, Dr Lokesh also referred to a number of factors in Mr Hawea- Edwards’ presentation which necessarily provide some cause for some optimism. Dr Lokesh observed that Mr Hawea-Edwards appeared to have developed reasonable insight into his mental illness and could identify that he suffered from Bipolar Affective Disorder and needed to address his condition. Recent reports from health assessors have commented on Mr Hawea-Edwards’ abstinence from illicit drug use, and he has stated that recent assessments were an “eye opener” for him. He expressed insight into the drivers, early warning signs and impact of his substance abuse of his illness. He believed that his current medication was managing his condition and expressed a willingness to comply. He expressed optimism for the future once released from custody after intense rehabilitation. He said he would like to get a job and support his daughter as a good parental role model. Dr Lokesh stated that it was clear Mr Hawea-Edwards would not go back to his previous offending patterns.
[27] In summary, Dr Lokesh stated that it is psychiatrically recommended that name suppression should continue, given Mr Hawea-Edwards’ fragile mental state.
Mr Symonds
[28] Mr Symonds deposes to the comprehensive policy adopted by Corrections for assessing, reviewing and managing prisoners who are at risk of self-harm. Corrections has two assessments tailored to address specific areas of risk:
(a)a reception risk assessment carried out after a prisoner’s initial reception into custody; and
(b)a review risk assessment carried out at specific times or in specific circumstances which could cause a prisoner’s level of risk to change.
[29] A prisoner’s at-risk status is required to be reviewed each time there is a change in circumstance. Relevantly this includes a risk alert when a prisoner receives a significant legal decision, for example an unsuccessful appeal. When Corrections is
notified of such a change, it will reassess the prisoner’s risk of self-harm. That assessment is undertaken by custodial and health staff following which the forensic team will give Corrections staff guidance on how the prisoner is best managed.
[30] If staff determine a prisoner is at risk of self-harm, the prisoner is required to be placed on 15 minute observations and transferred to the intervention support unit (“ISU”). The ISU is a specialist unit for managing prisoners at risk of self-harm. This includes accommodation in a specially designed and equipped at-risk cell and the provision of bedding and clothing designed to prevent suicide. All at-risk prisoners are closely monitored by Corrections staff. A management plan will specify the frequency of observations which are all recorded, including any behavioural patterns. Such prisoners are held in the ISU until they are deemed no longer to be a risk to themselves. It is only at this point that they are transferred back to the mainstream population. Because a prisoner at risk of suicide is not necessarily at risk of harming others, the prisoner can mix with other prisoners in the exercise yard and in other open and common spaces.
Discussion
[31] I turn now to consider whether Mr Hawea-Edwards has met either of the statutory threshold requirements he relies on and, if so, whether this Court should exercise its discretion to prohibit publication under the stage two analysis.
Would publication be likely to endanger Mr Hawea-Edwards’ safety?
[32] The Court of Appeal has provided helpful guidance on suicidality in name suppression cases:16
“The self-harm cases
[30]It is not uncommon for applicants to seek suppression on the ground that publication will cause them to self-harm or commit suicide. A review of the principal cases is instructive. A number of points may be made:
(a)the possibility of self-harm or suicide always gives a Court cause for anxious consideration. Suicide will be a devastating and unacceptable consequence of publication and it cannot
16 D (CA443/2015) v Police, above n 15 at [30].
always be assumed that an at-risk person will behave rationally. But the Court cannot adopt the stance that any risk is unacceptable. Under s 200 it must be satisfied that the relevant subs (2) risk is likely; that is, a real and appreciable possibility;
(b)Judges know that people may experience suicidal ideation when confronted with criminal proceedings, which are immensely stressful, but very seldom, if ever, act upon it. The proceeding is normally the principal cause of stress, although publication identifies the proceeding with the defendant and may cause great anxiety at particular points in time;
(c)for these reasons a defendant who relies on a risk of self-harm or suicide attributable to publication of his or her name must normally point to something more than the usual feelings of anxiety and despair that may attend proceedings. It is usual to offer evidence that the defendant is psychologically troubled for other reasons and is particular susceptible to publicity. This may be coupled with evidence that the case will attract unusually extensive or critical media publicity;
(d)the defendant’s condition may be such that it also impinges on his or her ability to participate fully in the trial. If so, there is a fair trial risk to consider as well;
(e)anything that reinforces or mitigates other risk factors may affect the likelihood that publication will precipitate self-harm or suicide;
(f)the opinions of medical practitioners 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;
(g)there are normally ways of mitigating the risk. Where possible, medical reports prepared to assist the Courts should recommend and evaluate those options. For example, a brief period of suppression may reconcile the defendant to the inevitability of publicity after the initial shock of arrest and first appearance. Support structures can be identified and deployed. Sensitive information of a person or nature may be suppression;
(h)suppression does not follow automatically from the Court being satisfied that a relevant risk exists. The Court must further consider the second issue; whether an order ought to be made in the exercise of discretion.”
[33] Section 200(2)(e) permits suppression if publication would be likely to “endanger the safety of any person”. There can be no doubt, nor did Ms Thompson
attempt to suggest otherwise, that if there was a real risk of suicide on the part of the appellant, it would meet the statutory threshold, although that risk has more frequently been considered in terms of s 200(2)(a), that is extreme hardship.17 I agree with Mr de Groot that it is not necessary for the appellant to point to a direct causal link in order to succeed.18
[34] On the basis of Dr Lokesh’s opinion, I am satisfied that publishing Mr Hawea-Edwards’ name would increase his potential for self-harm and/or suicide, both in a custodial and community setting. However, I also note that Dr Lokesh commented that Mr Hawea-Edwards appeared to have developed reasonable insight into his mental illness, his need for medication and care, and relationship between substance abuse, offending and his past manic relapses. He also concluded that Mr Hawea-Edwards’ long-term risk of suicide is moderate and would escalate to high if he was to lose name suppression.
[35] Ms Thompson also referred to previous psychiatric reports that reveal Mr Hawea-Edwards either did not disclose any suicidal ideation or, when it was put to him, denied any thoughts of self-harm. There is no need for the risk of suicide to have been ongoing; his mental state may have changed, or he may have been reticent to talk freely about his suicide ideation previously. Nevertheless, the Court of Appeal’s words of caution in R v Suttie deserve repetition:19
“[27] The Court must be alert to the offender’s manipulating or influencing the Court process, whether calculatedly or not, in disclosing suicidal thoughts. Diagnosable psychiatric conditions are often present at sentencing and a high proportion of prisoners suffer from such conditions. Suicidal ideation is commonly present at sentencing.”
[36] I accept that risk in a relatively uncontrolled non-custodial environment, but Mr Hawea-Edwards will not be eligible to be considered for release until towards the end of 2023. Thus, the two questions to be posed are:
(a)whether the risk of suicide can be adequately mitigated while Mr Hawea-Edwards is in custody; and
17 G W West v Police [2013] NZHC 943; F v R [2020] NZHC 1653; R v Dean [2020] NZHC 1964.
18 Reyes v New Zealand Customs Service [2019] NZCA 546.
19 R v Suttie [2007] NZCA 201 at [27].
(b)whether there is a real and appreciable risk of his mental health presentation and risk of suicide after his release.
[37] On the basis of Mr Symonds’ evidence, I am satisfied that while he is in prison there are adequate policies and practicable mechanisms available to ensure that Mr Hawea-Edwards’ risk of self-harm is assessed and appropriate management plans will be implemented to sufficiently reduce that risk. Risk assessments are reviewed when there is a relevant change in the prisoner’s circumstances. In Mr Hawea-Edwards’ case the lifting of name suppression would amount to a change in circumstances likely to influence a change in his level of risk. One possible formula to mitigate and/or manage such a risk is that suggested in D v Police; that is to order a brief period of suppression following the dismissal of this appeal. This would provide Mr Hawea-Edwards with a window within which to reconcile himself to the inevitability of publicity after the initial shock of losing the appeal. In my view that formula provides an attractive option in this case for several reasons. First, it would permit Corrections to undertake any necessary risk assessments at or about the time of the delivery of the judgment. Secondly, it would provide a defined period before publication during which Mr Hawea-Edwards could prepare and acclimatise himself to the inevitability of publication and, thirdly, such a delay would permit ongoing risk assessments throughout, both before and after publication.
[38] For these reasons I am not satisfied that Mr Hawea-Edwards’ safety would be endangered by publication while he is in custody.
[39] The next question is whether publication would be likely to endanger his safety once he is released back into the community. It was in this context that Dr Lokesh described the risk issues as more complex because Mr Hawea-Edwards would be outside the controlled and supervisory environment of prison. He referred to Mr Hawea-Edwards’ social isolation, low threshold to decompensate under stress and ongoing mental health issues as exacerbating this risk. However, in my view there are factors that will mitigate the risk to his safety when he is back in the community. First, by the time Mr Hawea-Edwards is released towards the end of 2023, any residual media interest will have long dissipated. Secondly, it is very likely that Mr Hawea-Edwards will have completed various courses focusing not only on
reducing the influence of factors likely to elevate his risk of suicide, such as alcohol and drug abuse, but also preparing him for release back into the community. Thirdly, Dr Lokesh’s report provides some optimism for an increasing insight by Mr Hawea-Edwards into his mental illness and the need to comply with the recommended medication regime. Fourthly, the evidence is that he plainly benefits from the therapeutic effects of the medication he is prescribed.
[40] Mr Hawea-Edwards relies on the recent judgment of this Court in F v R.20 There, the appellant had been convicted of sexual offending against a young person and sentenced to imprisonment. He applied for permanent name suppression on the basis publication would be likely to endanger his safety by exacerbating an existing suicide risk. He cited his history of suicide attempts, the most recent occurring in custody. Expert evidence supported the conclusion that F was at high risk of committing suicide and this risk would be further elevated by the publication of his name. Gault J allowed the appeal and made a permanent order suppressing F’s name.
[41] However, F is distinguishable on several grounds. First, unlike the present case, there was an absence of specific evidence of the protection measures available in prison and beyond to mitigate the risk of suicide. Secondly, the appellant’s sentence was relatively short so any protective measures could only operate within a relatively limited period. Thirdly, there was recent evidence of a suicide attempt by F in custody. And finally, I also note Gault J’s comment that he was satisfied the test was met only “by a small margin”.
[42] For these reasons I am satisfied that publication, albeit delayed for some months, would not be likely to endanger Mr Hawea-Edwards’ safety. I next turn to consider whether publication of his name would be likely to cause extreme hardship.
Would publication be likely to cause extreme hardship?
[43] To a considerable extent the grounds relied on by Mr de Groot under this heading have already been discussed. Mr de Groot points out that while extreme hardship presents as a substantial obstacle, it cannot be evaluated in a vacuum. It
20 F v R [2020] NZHC 1653.
requires a contextual assessment involving an analysis of the competing interests of relevant hardship and the ordinary consequences of conviction.21 He submits that even where management strategies are available, the risks cannot be “dismissed or ignored as being remote or fanciful”.22 He submits that the risk in the present case cannot be dismissed or ignored as being either remote or fanciful; the threshold is met.
[44] Mr de Groot relies on the judgment of Peters J in R v K where K had been determined fit to stand trial but was found not guilty by reason of insanity.23 The consultant forensic psychiatrist reached an almost identical conclusion to the present case, that is that K’s mental state would decompensate significantly in the event of publication. Peters J was satisfied that publication would cause extreme hardship on the basis of that report.
[45] However, for the reasons advanced by Ms Thompson, I am satisfied there are two key differences between that case and the present. The first is that K had been found not guilty by reason of insanity whereas, in the present case, Mr Hawea-Edwards pleaded guilty. Secondly, nowhere in K is there a discussion around what measures could be taken to mitigate the effect of publication on K’s mental state.
[46] In my view the latter, particularly, is a material distinction. In the absence of evidence to contradict the psychiatric report or any reasoned or principled basis not to accept its conclusions, Peters J was all but bound to accept the expert’s opinion. But that is not the case here. There is cogent and persuasive evidence from Mr Symonds that the prison authorities will monitor and review Mr Hawea-Edwards’ mental health and ongoing risk of self-harm.
[47] I am also satisfied, for the reasons discussed earlier, that delayed publication will not only permit the prison’s risk assessment team to monitor Mr Hawea-Edwards’ condition, but it will provide a lead-in period for him to mentally
21 Beacon Media Group v Waititi [2014] NZHC 281 at [21].
22 At [21].
23 R v K [2020] NZHC 2114.
prepare himself for the inevitability of publication and for the prison authorities to monitor him both before and after that event.
[48] Furthermore, as previously noted, this regime would operate in parallel with the medicinal management of Mr Hawea-Edwards’ Bipolar Affective Disorder. His compliance is improving as is his insight. These factors, combined with Dr Lokesh’s observation that abstaining from substance abuse will improve Mr Hawea-Edwards’ prognosis, and operate to reduce, although not entirely eliminate, the risk of self-harm.
[49] Simon France J faced a broadly similar situation in R v W.24 There, W, who had been found not guilty of murder by reason of insanity, applied for permanent name suppression on the basis that lifting name suppression would have a negative impact on her immediate mental health and rehabilitation. All experts agreed there would be such an impact with one commenting that should her name be published, it risked a marked deterioration in her mental state and possible suicide.
[50] Simon France J determined that while name suppression will often have an immediate detrimental effect, the applicant’s mental state was already fragile. Although the seriousness of the impact could not be predicted the Judge accepted it would adversely affect the applicant’s rehabilitation prospects. On this topic he said:
“[55] The key assessment needed is whether the significant, but likely temporary, mental health deterioration that D 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 up in the criminal process 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 easy to be predicted. Further one must factor into these assessments the reality that the effects will usually be temporary.”
[51] The Judge acknowledged that the loss of name suppression would represent a significant setback to D’s mental health but noted there was no evidence she would not be able to work through the difficulties with time. The test of extreme hardship was not made out. Comparable observations can be made in the present case. I accept
24 R v W [2016] NZHC 2923. This case was reversed on appeal for reasons not related to France J’s reasoning: W v R [2017] NZCA 580.
there is a real possibility that Mr Hawea-Edwards will suffer adverse mental health impacts if his name is not suppressed. I also accept that for a period those impacts may be severe. But there is no evidence before me to suggest that although the impacts may result in a significant setback, Mr Hawea-Edwards is unlikely to recover from them. Given the positive factors listed above I am satisfied the effects are likely to be transitory.
[52]For these reasons I am not satisfied that the extreme hardship test is made out.
Discretion assessment
[53] Given my decision on the thresholds under s 200(2) of the CPA it is unnecessary for me to consider the public interest and open justice issues. Even if I had found the threshold tests to have been made out, the balance must “clearly favour” suppression for an order to be made.25
Result
[54]The appeal is allowed.
[55]The suppression orders will expire on 30 April 2021.
Moore J
Solicitors:
Mr de Groot, Auckland Crown Solicitor, Auckland
Copy to:
Stuff Limited, Auckland
25 D (CA443/2015) v Police, above n 15 at [12].
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