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 are met. Second, if the court is satisfied one of the threshold grounds has been met, it must determine whether to exercise its discretion and forbid publication of the defendant’s details.6 The presumption of open justice is considered at this stage. To displace the presumption, the balance must clearly favour the suppression.7

[8]    The mandated two-step test must be conducted afresh. An appeal court is required to undertake its own assessment of whether the threshold test is met.8 If satisfied that the criteria at this first stage has been met, the court must then make its own determination whether suppression should be granted. The first appeal court must confirm, vary or set aside the decision appealed against or make any other order it considers appropriate.9

Submissions

[9]    Ms Andersen, counsel for Mr King, submitted there is a clear risk to the safety of Mr King should his name be published, and that risk meets the test of extreme hardship.

[10]   Ms Andersen referred to the psychological report prepared by Mr Paul Knox on 26 June 2019 (the Psychological Report) which describes Mr King’s depression and anxiety as “severe to extremely severe”. It is submitted the District Court Judge erred in finding there was only a moderate risk of self-harm.

[11]   The Psychological Report states Mr King is at moderate risk of suicide in his everyday life. It is contended publication of his name would exacerbate this. In addition, Mr King has been diagnosed with autism spectrum disorder (ASD) and has suffered childhood trauma. Ms Andersen suggested these factors increase Mr King’s risk of suicide.

5      D (CA443/2015) v Police, above n 3, at [10].

6      Fagan v Serious Fraud Office [2013] NZCA 367 at [9]; Robertson v Police, above n 3; D (CA443/2015) v Police, above n 3.

7      D (CA443/2015) v Police, above n 3, at [17].

8      Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141 at [16].

9      Criminal Procedure Act 2011, s 287.

[12]   Ms Andersen submitted the Judge erred in his assessment that Mr King did not meet any of the thresholds contained in s 200(2) CPA. It is submitted a threshold ground is met and, accordingly, the Judge erred by failing to balance Mr King’s name suppression with the competing interest of open reporting.

[13]   Counsel for the Crown, Mr Bernhardt, submitted the Court needed to be cautious in accepting evidence from medical experts where there is no objective corroboration of that evidence and the expert relies solely on self-reporting. Mr Bernhardt suggested that is the case with the Psychological Report.

[14]   Mr Bernhardt referred to judgments of the Court of Appeal where an appellant had argued the risk of suicide justified permanent name suppression.10 Mr Bernhardt’s further submissions are reflected in the judgment below.

Analysis

[15]   The starting point for assessing whether Mr King’s name ought to be suppressed is whether one of the threshold grounds in s 200(2) CPA has been met. There must be a real and appreciable risk that one of the consequences in s 200(2) will follow publication.11 Ms Andersen submits publication is likely to endanger the safety of Mr King and cause extreme hardship. These two thresholds are contained in ss 200(2)(a) and (e).

Risk to Mr King’s safety

[16]   Ms Andersen contended the risk to Mr King’s safety is due to a heightened risk of suicide. She relies solely on the Psychological Report as evidence of this risk.

[17]   In D v Police, the Court of Appeal considered, in relation to self-harm or suicide, it is not feasible to “adopt the stance that any risk is unacceptable”.12 The risk must be a real and appreciable possibility. Name suppression does not automatically

10     R v Suttie [2007] NZCA 201.

11     Beacon Media Group Ltd v Waititi [2014] NZHC 281 at [17] and JM v R [2015] NZHC 426 at [33]-[36].

12     D (CA443/2015) v Police, above n 3 at [30].

follow  where  a  risk  of  suicide  has  been  established.     It is relevant but not a determinative factor.13

[18]   The conclusions relating to the impact of publication of Mr King’s name contained in the Psychological Report were affirmed in a letter of Mr Knox dated 19 June 2019. Mr Knox stated that, if Mr King’s convictions were made public, “the notoriety and potential for negative comments would likely exacerbate his anxiety, and this, in turn, is likely to exacerbate his depressive symptoms and risk to himself.” Further, is was stated that, if publication were to interfere with Mr King’s employment, that would also “pose a risk to his wellbeing.”

[19]   The Psychological Report clearly identifies that Mr King suffers from mental health issues, including anxiety and depression, that represent a “moderate risk of suicide”. The report makes a linkage between the publication of Mr King’s name and an increased risk of depressive symptoms and “risk to himself”. However, the report does not state that the “risk to himself” would be such that suicide would be a real and appreciable risk.

[20]   The Department of Corrections pre-sentence report of 28 May 2019 identified that Mr King has the benefit of close family support. It referred to a Columbia-Suicide Severity Rating Scale form having been completed and identifying that “there was suicide ideation present in some of the answers that Mr King presented”. The probation officer reported “at this point in time, Mr King mitigates the increase in risk of harm or suicide ideation with open discussions with his wife”. His wife is fully aware of his offending, so publication of his name will not lessen that support which will be available to help him deal with any increased anxiety connected with publication.

[21]   The psychologist whose report was relied on in seeking publication advised, in a letter to the Court of 17 December 2019, that Mr King had attended six appointments since the psychologist first assessed Mr King and provided a report to the Court in June 2019. Thus, Mr King also has the benefit of an established relationship with his

13     BL v R [2013] NZHC 2878 at [22].

psychologist to help him deal with any heightened anxiety or depression that might result from publication of his name.

[22]   I note also that, in November 2019, Mr King wrote to each of the victims of his offending. In those letters he told the victims he was now seeing a psychologist to address and work through his issues and to ensure that nothing like this happened again. He told the victims he takes full responsibility for his actions and said “I am ready to handle the consequences of these”. At the time, the consequences included his having to appear in court on these charges. He knew publication could result from such a court appearance. He had previously been charged with minor offences in respect of which there had been publication of his name.

[23]   The psychologist said Mr King’s employment provided him with a meaningful daily routine and was the most significant protective factor against his depression. The psychologist suggested that, if publicity related to his conviction interfered with his employment, that could pose a risk to his wellbeing. There is however no evidence to suggest publication will provide a risk to his employment. His employment does not involve extensive contact with the public. Mr King has some mental health issues for which he is now receiving and must be paying for specialist help. He has been diagnosed as suffering from ASD. There is no evidence that Mr King’s employer would not be supportive of Mr King while Mr King is competent and conscientious in the work he does.

[24]   An evidential basis is required to support the proposition that the safety of a person is likely to be endangered.14 I do not consider the evidence contained in the Psychological Report has established there is a real and appreciable risk that Mr King’s safety will be endangered by publication of his name. The report is largely based on self-reporting and does not contain independent clinical diagnosis. No other evidence has been produced in support of name suppression. Further, I do not consider the increase in depression and anxiety go beyond those that would ordinarily be associated with criminal proceedings of this nature. In my view, the threshold of endangering Mr King’s safety, under s 200(2)(e) CPA, has not been met.

14     Bitossi v R [2014] NZCA 595 at [8].

Extreme hardship

[25]   I infer from Ms Andersen’s submissions that she suggests the increased risk of suicide resulting from publication meets the threshold for extreme hardship contained in s 200(2)(a) CPA.

[26]   Section 200 states the court may order suppression of the defendant’s details if satisfied “would be likely to … cause extreme hardship to the person charged with … the offence, or any person connected with that person”. That threshold is a very high level of hardship that implies severe suffering or privation.15 The assessment for this ground requires a “relative comparison between the contended hardship and the consequences normally associated with a defendant's name being published”.16

[27]   Given the threshold for endangering Mr King’s safety is not met, it follows that the high threshold for extreme hardship is also not met. As previously stated, I consider the increase in depression and anxiety which result in an increased risk of suicide do not, in these circumstances, go beyond those that would ordinarily be associated with criminal proceedings of this nature.

Stage two: discretionary assessment

[28]   For completeness, and in case I am wrong in my assessment of stage one, I will address stage two of the analysis, namely whether the court ought to exercise its discretion to forbid publication.

[29]   The question for the court is whether the risk, being increased suicide, outweighs the presumption of open justice and the public interest in knowing the operation of the justice system. Before the discretion to forbid publication of Mr King’s name can be exercised, one of the grounds in s 200 of the Act must be established.17 It follows that, if none are established, the assessment ends there.

15     Bond v R [2015] NZCA 488 at [33]; and Robertson v Police, above n 3, at [48].

16     Robertson v Police, above n 3, at [49]; D (CA443/2015) v Police, above n 3, at [6].

17     Fagan v Serious Fraud Office, above n 6, at [9].

[30]   The offending in this case targeted members of the public. Offending of the sort Mr King was guilty of is most unsettling and can create long-term increased feelings of insecurity for those whose privacy has been so significantly invaded. Where members of the public have been so affected by such offending, the public are entitled to know of how this has been dealt with through the courts. In this instance, if there is publicity, there should also be mention of the steps Mr King has conscientiously taken to deal with his personal issues to try and ensure there is no repetition of such offending in the future.

[31]   Publication might well also enable those who have close contact with Mr King to be aware of the problems he has had and support him in the steps he is taking to ensure there is no repetition of this offending.

[32]   I am not satisfied that the risk of suicide outweighs the presumption of open justice.

[33]   In summary, I am not satisfied that any of the grounds in s 200(2) have been met. I do not consider there is a real and appreciable risk to Mr King’s safety or that extreme hardship will result from publication. Further, I do not consider there is sufficient reason to displace the presumption of open justice.

Conclusion

[34]Mr King’s appeal against the refusal of name suppression is dismissed.

[35]   The suppression will however continue until 5.00 pm on 10 June 2020. That is to allow time for Mr King to file a memorandum with this Court advising of his intention to file an application for leave to appeal this decision. If such a memorandum is filed, interim suppression will continue as provided for by s 292 Criminal Procedure Act. If no such memorandum is filed, suppression will lapse at 5.00 pm on 10 June 2020.

Solicitors:

C M Andersen, Barrister, Dunedin RPB Law, Dunedin.