L v The King - [2023] NZHC 600

ORDER PROHIBITING PUBLICATION OF NAME, ADDRESS,

OCCUPATION OR IDENTIFYING PARTICULARS OF DEFENDANT 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-2022-092-6662

[2023] NZHC 600

BETWEEN
L

Applicant

AND

THE KING

Respondent

Hearing: 16 February 2023

Counsel:

L O Smith and C Wilkinson-Smith for Applicant G Kayes for Crown

T Goatley and K Wilson for NZME Publishing Limited, Stuff
Limited and Discovery New Zealand Limited (jointly, the Media)

Judgment:

23 March 2023

JUDGMENT OF HINTON J

(Re Application for continued interim name suppression)

This judgment was delivered by me on 23 March 2023 at 4.00 pm

Registrar/Deputy Registrar Date: ………………………….

Solicitors: Kayes Fletcher Walker, Auckland
Bell Gully, Auckland

L v R [2023] NZHC 600 [23 March 2023]

Introduction

[1] The applicant, Ms L, faces two charges of murder, in respect of which she has pleaded not guilty. Ms L is set to stand trial on 29 April 2024.

[2] Ms L was first granted name suppression by Judge Andree-Wiltens in the Manukau District Court on 30 November 2022. A further order for suppression was granted on 14 December 2022 by Fitzgerald J in the Auckland High Court, which was set to expire on 16 February 2023.

[3] Ms L then brought this application for interim name suppression to continue until the end of the trial.

Legal principles – name suppression

[4] The suppression of a defendant’s identity may be ordered in criminal matters pursuant to section 200 of the Criminal Procedure Act 2011. The relevant subsections in this case are as follows:

200 Court may suppress identity of defendant

…

(2)The court may make an order under subsection (1) only if the court is satisfied that publication would be likely to—

(a)cause extreme hardship to the person charged with, or convicted of, or acquitted of the offence, or any person connected with that person; or

…

(e) endanger the safety of any person

[5]A two-stage test applies when determining a name suppression application.

Stage one is a threshold determination. Stage two is a discretionary assessment.1

[6] First, a Court must determine whether any of the threshold grounds listed in s 200(2) have been established. That is, whether the Court is satisfied that publication would be likely to have one or more of the consequences set out in subs (2). “Likely”

1 Robertson v Police [2015] NZCA 7 at [39]–[41].

means a real and appreciable possibility.2 The listed outcomes are prerequisites; only if one of the threshold grounds has been established can the court progress to stage two.

[7] Second, if the threshold is established, then the Court must consider whether to exercise its discretion to make a suppression order. That involves weighing the competing interests of the applicant and the public. Relevant factors include whether the applicant has been convicted, the seriousness of the offending, the views of the victims, and the public interest in knowing the character of the offender.

[8]…

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 L v The King

Details

AGLC: L v The King [2023] NZHC 600
Case: [2023] NZHC 600
Decision Date: 23 March 2023

CaseChat Overview and Summary

In the High Court of New Zealand, Auckland Registry, L, the applicant, applied for an interim order of name suppression to continue until the end of her trial for two charges of murder. The Crown and several media entities opposed the application. The primary issue before the court was whether publication of L's name would likely cause her extreme hardship or endanger her safety, justifying the suppression of her identity under the Criminal Procedure Act 2011. The court held that the applicant had not met the threshold test required for suppression, as there was insufficient evidence to show that publication would likely increase the risk of self-harm or suicide. The court also found that L's ability to participate in her defence would not be prejudiced by publication. Consequently, the court declined L's application for continued interim name suppression.

In summary, the court found that the applicant had not demonstrated that publication of her name would likely cause her extreme hardship or endanger her safety, nor that it would likely prejudice her fair trial rights. The court declined the application for continued interim name suppression and did not grant any further orders for suppression. The decision reflects the high threshold for suppression and the presumption of open justice in criminal proceedings.

Orders