King v Police - [2020] NZHC 1213

ORDER PROHIBITING PUBLICATION OF NAME, ADDRESS,

OCCUPATION OR IDENTIFYING PARTICULARS OF APPELLANT PURSUANT TO PARA [35] OF THIS JUDGMENT.

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE

CRI-2019-425-000033

[2020] NZHC 1213

BETWEEN
JAMES DANIEL KING

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 2 June 2020

Appearances:

C M Andersen for the Appellant C J Bernhardt for the Respondent

Judgment:

3 June 2020

JUDGMENT OF NATION J

Introduction

[1] The appellant, Mr King, was sentenced by Judge Macdonald in the District Court on three charges of being unlawfully in a yard and two charges of peeping, all laid under the Summary Offences Act 1981.1 The Judge declined to grant Mr King name suppression. Mr King appeals against that decision.

Facts

[2] Between 8 November 2018 and 27 November 2018, Mr King was found three times in an enclosed yard without reasonable excuse, namely someone else’s property.

1 Police v King [2020] NZDC 1094.

KING v POLICE [2020] NZHC 1213 [3 June 2020]

On two of these occasions he was found peering into the houses. All three victims were young females aged between 18 and 23 years old.

District Court decision

[3] On the three charges of unlawfully being within an enclosed yard, the Judge sentenced Mr King to 12 months’ supervision with conditions. Emotional harm reparation was ordered in the sum of $250 to be paid to two of the victims. Mr King was convicted and discharged on the two charges of peeping.

[4] The media made an application to take Mr King’s photo. Addressing the issue of name suppression, the Judge noted that Mr King suffers from anxiety and depression. His Honour noted the psychologist’s report raised particular concern that there may be some self-harm issues. However, these were “placed at the moderate level”.2

[5] Further, the Judge could not ignore that Mr King had been before the court on two previous occasions for similar offending. On those two previous occasions, Mr King’s name was not suppressed. The Judge considered the five new offences were “relatively minor”. While conscious of the matters raised in the psychologist’s report, his Honour did not consider name suppression was justified in the circumstances. Accordingly, the media application was granted.

Law

[6] The starting point for consideration of a suppression order is the presumption of open justice.3 The business of the courts should be conducted publicly and any departure from this general rule ought only to be “to the extent necessary to serve the ends of justice”.4 A suppression order may be made under s 200 Criminal Procedure Act 2011 (CPA).

2 At [9].
3 Robertson v Police [2015] NZCA 7; D (CA443/2015) v Police [2015] NZCA 541, (2015) 27
CRNZ 614.
4 Erceg v Erceg [2016] NZSC 135, [2017] 1 NZLR 310 at [3].

[7] In determining whether to exercise its discretion, the court is required to undertake a two-step inquiry.5 First, whether any of the threshold grounds in s 200(2) CPA…

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.

Continue reading King v Police

Details

AGLC: King v Police [2020] NZHC 1213
Case: [2020] NZHC 1213
Decision Date: 3 June 2020

CaseChat Overview and Summary

In the High Court of New Zealand, James Daniel King appealed against the District Court's decision to not grant him name suppression. The appeal arose from Mr King's sentencing on three charges of being unlawfully in a yard and two charges of peeping, all under the Summary Offences Act 1981. The District Court had declined to grant Mr King name suppression, a decision he now appealed. The legal issues before the Court were whether the District Court had correctly applied the legal test for granting name suppression, specifically under section 200 of the Criminal Procedure Act 2011.

The Court found that the appeal did not meet the threshold criteria for name suppression as set out in section 200(2) of the CPA. The threshold criteria require a real and appreciable risk that publication would endanger the safety of Mr King or cause him extreme hardship. The Court held that, while Mr King suffered from severe anxiety and depression, the evidence did not demonstrate a real and appreciable risk that publication would endanger his safety or cause extreme hardship. The psychologist's report, which was the primary evidence for the appeal, was largely based on self-reporting and lacked independent clinical diagnosis. Additionally, the Court found that the risk of suicide, while present, did not rise to the level of extreme hardship as defined by the legislation. Even if the threshold criteria had been met, the Court concluded that the risk of increased suicide did not outweigh the presumption of open justice and the public interest in knowing how the justice system deals with such offences.

The appeal was dismissed, and the suppression order remained in place until June 10, 2020, to allow for any potential application for leave to appeal to the Court of Appeal.

Orders