L v The King
[2023] NZHC 600
•23 March 2023
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] The Court of Appeal in Robertson v Police explained “extreme hardship” as follows:
The word “hardship” on its own means “severe suffering or privation”. The addition of the qualifier “undue” in s 200(2)(c) indicates that something more than hardship simple is required, while the word “extreme” in s 200(2)(d) indicates something more again.
An assessment of whether the contended hardship is “extreme” cannot take place in a vacuum. It is self-evidently contextual and in our view must entail a relative comparison between the contended hardship and the consequences normally associated with a defendant’s name being published. It must be something beyond the ordinary associated consequences.
[9] It has been questioned whether s 200(2)(e) relates to endangering the safety of a defendant, or rather of others, but in any event as the Court observed in NL (CA344/2022) v The King3 the two grounds overlap in a case like this. All counsel agreed the outcome should be the same under either subsection.
The application
[10] Ms Smith, for Ms L, submits that publication of Ms L’s name would cause her to suffer extreme hardship and (by consequence) endanger her safety, specifically by increasing her risk of self-harm and suicide.
[11] The application is supported by a report from a forensic psychiatrist, Dr Rishi Duggal, dated 25 January 2023. The report details Ms L’s history of mental illness,
2 D v New Zealand Police [2015] NZCA 541 at [30(a)]; and Stuff Ltd v R [2021] NZCA 86 at [17].
3 NL (CA344/2022) v The King [2022] NZCA 479 at [29].
including multiple suicide attempts and continued evidence of suicidal ideation. As to the effect of publication, Dr Duggal relays his opinion as follows:
143. Arriving at conclusions about the likelihood of deterioration in mental health based on change in a single variable (in this case, name suppression) is fraught with complexity. This is because stressors are not experienced by individuals within a vacuum. Rather, it is a complex interplay of an individual’s vulnerability and resilience factors and other external factors which typically determine the response to a particular stressor.
…
148.Conterbalancing the possibility that lifting of name suppression would have an unduly deleterious effect on [Ms L], however, was that she already appeared somewhat resigned to her fate such that lifting name suppression might not have a dramatic impact on her mental state. Further, she had been commenced on antidepressant medication and had previously been open to other forms of support available through the FPT. It was thus possible that her resilience to the stress that lifting name suppression could pose might improve over time.
149.I formed the view that, on balance, [Ms L’s] vulnerability factors predominated over her resilience factors at this point in time. It was thus possible that if name suppression was lifted, [Ms L’s] mental state could deteriorate with a worsening of her already severe depressive symptoms and suicidal thoughts, increasing her risk of suicide.
150.In the event that lifting of name suppression had the effect of worsening [Ms L’s] mood, it was not possible to predict the extent and duration of any such deterioration. However, any deterioration in her mental state would be attended to by the prison health service, ISPT and by the FPT.
[12] There is no affidavit evidence from Ms L. Dr Duggal records in his report that when asked about her views on name suppression, Ms L stated:4
Yes, If I’m that person, I don’t care if my name and face are published. But, I didn’t do it.
…
[13] When asked about the potential effects on her mental health of having name suppression lifted, Ms L said:5
Actually the first time, one month ago when I first came here I was worried about my name in public. But now, actually I don’t care. Everything is meaningless.
4 At 109.
5 At 110.
[14] Dr Duggal says he then checked whether Ms L would be upset if name suppression were lifted and she responded:6
Of course. For me, it is unfair that I stay in prison that I didn’t do it. I feel it is unfair that my name and face is on TV. And more than that’s my kids’ name…it’s so unfair. So one month ago in court when media took my pictures, I panic. When I came out of court, I could not breath, I felt I was going to die. They took my pictures and there were so many people in the court…it was very shocking experience. So from now on, I’m not going to the court anymore. I don’t care the trial…it’s none of my business anymore. The truth isn’t going to change. They can ask me 100…a 1000 times if I killed my kids and I’ll say 100…1000 times that I didn’t do it. It’s the truth, it’s a fact. If the judge says “show me the proof”, I’m a mother – that’s the proof. My husband is gone, I’m the only parent…that’s the proof I didn’t do it. I know I don’t have to prove my innocence, but I have the proof…I’m a mother.
Crown position
[15] For the Crown, Mr Kayes leaves for the Court the decision of whether lifting name suppression in respect of Ms L is likely to increase her risk of suicide. He notes however that should this application be granted, the Crown does not consider that the evidence filed thus far would support interim name suppression continuing until after trial. He notes Dr Duggal’s opinion that Ms L’s resilience may improve with continued treatment over time. The Crown submits that if interim suppression is granted, it should continue to a date near the end of 2023.
Media position
[16] Ms Goatley, for the Media, opposes the application on the grounds that there is insufficient evidence that publication of the defendant’s name in relation to these proceedings would cause her to suffer extreme hardship or present a risk to her safety. She notes that Ms L’s statements to Dr Duggal in the report regarding name suppression are ambivalent, and that he was uncertain what impact publication might have on her wellbeing.
Analysis
[17] I must first consider whether I am satisfied, on the evidence presented, that the threshold has been met in either ss 200(2)(a) or (e). As these grounds are, in this case,
6 At 111.
consequentially linked, I will take them together. The issue is whether publication of Ms L’s name in relation to these proceedings is likely to increase her risk of self-harm or suicide such that continued name suppression is justifiable. I note that this threshold is high and is counter-balanced against the presumption of open justice.
[18] Counsel have referred to D v Police, in which the Court of Appeal considered the risk of self-harm and suicide in relation to publication of a defendant’s identity. Relevantly, the Court said:7
The possibility of self-harm or suicide always gives a court cause for anxious consideration. Suicide would be a devastating and unacceptable consequence of publication and it cannot 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.
…
The opinions of medical professionals 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.
…
There normally are ways of managing 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 personal nature may be suppressed.
[19] The evidence is that Ms L has been in a state of severe mental distress and suffered periods of depression and suicidality for a number of years. She has been subject to psychiatric care on more than one occasion and is assessed by Dr Duggal as having a major depressive disorder. This is extremely concerning. However, as the Court of Appeal stated above, I cannot grant continued suppression on that basis alone. I must be convinced that there is a real and appreciable possibility of increased risk of suicide or self-harm following on from the publication of Ms L’s name, not just that there is general evidence of existing very poor mental health. While it sounds harsh, that is the relevant test.
7 D v New Zealand Police [2015] NZCA 541, at [30].
[20] Ms Smith points me to the case of C(CA123-2022) v R,8 in which the Court of Appeal considered that Ms C’s mental health and suicidality were sufficient to show that publication presented an appreciable risk to her health. Ms C materially connected her fear of publication to an increase in suicidality, worsened by the fact that her daughter was also at risk of poor mental health outcomes should publication be allowed. Evidence before the Court showed that Ms C had specific fears related to publication: its effects on her and her husband’s employment opportunities, her children’s risk of bullying at school, and any impact it may have on her ability to arrange childcare in the eventuality that she and her husband were imprisoned. This evidence showed a substantive causative link between publication and Ms C’s poor mental health and suicidality such that an appreciable risk of harm was evident to the Court.
[21] Unlike in C v R, I have not been provided with evidence showing that Ms L would likely be severely affected by the publication of her name or that her safety would be endangered.
[22] Dr Duggal’s evidence is tentative and the statements he reports by Ms L suggest a generally depressive state of mind but do not establish a real and appreciable risk under s 200(2) of the Act in relation to the specific issue of publication. I consider it material that there is no direct evidence from Ms L who, despite her considerable difficulties, appears able to express a view. Dr Duggal reports Ms L saying to him it is “unfair that [her] name and face is on TV”.9 The panic and shock she expressed to him seemed to relate more to her experience in the courtroom than to publication.
[23] I note further that Ms L is in custody and under the care of Waitemata DHB mental health services. She has been prescribed medication to lessen her depression and suicidality. I consider, as did Dr Duggal in his report, that these are protective factors mitigating the risk of harm. He states expressly that any deterioration in Ms L’s
8 C(CA123-2022) v R [2022] NZCA 566.
9 It could be inferred from this statement that Ms L believes her name has been published and I am advised it has been at least in Korea. It also seems that members of the Korean community in Auckland, with whom Ms L is familiar, are aware that she is the defendant in these proceedings. It is clear from the evidence that those close to Ms L also already know she is the defendant.
mental state would be attended to by the prison service, Intervention and Support Project Team and by the Forensic Prison Team.
[24] For these reasons, I find that the applicant has failed to meet the evidential test in either ss 200(2)(a) or (e) and the application fails. In these circumstances, I do not need to address the second stage of the two-stage test.
Fair trial
[25] In her oral reply submissions Mrs Smith raised the possibility in terms of s 200(2)(d) of the Act that publication would create a real risk of prejudice to a fair trial.
[26]She relied on Dr Duggal’s evidence at 147:
Though not necessarily directly linked to the question of ‘extreme hardship’, in the event that [Ms L’s] mental state deteriorated, her ability to participate in her medical and medico-legal assessments and judicial proceedings could be impeded.
[27] This issue was not raised on the application or in written submissions but given the right to a fair trial is important, I address the point. As the Court of Appeal said in MS v R in relation to s 200(2)(d):10
We qualify that general proposition as follows. If an applicant makes out the s200(2)(d) ground viz a real risk of prejudice to a fair trial, then the balance will clearly favour suppression. The real risk having been established, the right to a fair trial must trump other considerations to be weighed in connection with name suppression.
[28] Name suppression and fair trial rights are most commonly discussed in the context of tainting the jury pool. That is not the risk identified here. The argument by Mrs Smith is that Ms L’s ability to participate in her defence effectively, or participate in further medical examination, will be prejudiced by way of deteriorated mental health flowing from publication.
[29] In O v R, the appellant was granted name suppression on the basis that publication of his name presented a real risk of worsening his mental health, and
10 MS (CA405/2016) v R [2016] NZCA 544 at [9].
subsequently impacting his ability to manage his diabetes.11 This would in turn limit his ability to participate in his defence. The Court placed emphasis on the “undisputed medical evidence”12 provided by a clinical psychiatrist and the appellant’s general practitioner as to the detrimental effect of publication on both his mental and physical health and his consequential ability to cope with and participate effectively in the trial.
[30] Here there is only the tentative and brief statement of Dr Duggal set out at [26] above, which is clearly insufficient to demonstrate a real and appreciable risk that Ms L will be impeded in participating in medical assessments, or in her defence, as a result of publication.
Result
[31] Ms L’s application for continued interim name suppression is declined. At Ms Smith’s request, I forbid publication of Ms L’s name until the later of either the expiry of the period within which to appeal my decision, or determination of any such appeal.
Hinton J
11 O (CA680/2014) v R CA680/2014 [2014] NZCA 579 at [24] – [27].
12 At [29].