Lucrezia Muller v New Zealand Police
[2024] NZHC 2863
•3 October 2024
ORDER PROHIBITING PUBLICATION OF NAME(S), ADDRESS(ES) OR IDENTIFYING PARTICULARS OF APPELLANT UNTIL 5PM ON 24
OCTOBER 2024.
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2024-404-000274
[2024] NZHC 2863
LUCREZIA MULLER v
NEW ZEALAND POLICE
Hearing: 1 July 2024 Appearances:
E O’Connor on behalf of B Lawler for the Appellant G Young for the Respondent
Judgment:
3 October 2024
JUDGMENT OF WALKER J
This judgment was delivered by me on 3 October 2024 at 12 pm Registrar/Deputy Registrar
Solicitors:
B Lawler, Barrister, Auckland
G Young, Meredith Connell, Auckland
MULLER v POLICE [2024] NZHC 2863 [3 October 2024]
Introduction
[1] Following an unprovoked attack on three members of the public, Ms Muller, was found not guilty of the resulting charges by reason of insanity.1
[2] On 20 May 2024 Judge D Bell declined to grant Ms Muller permanent name suppression as she was not satisfied that publication would cause her extreme hardship.2 Although not necessary to go on to the second stage of the analysis, she determined that even if that evaluation was wrong, the public interest factors weighed against suppression.3 Ms Muller appeals the decision.
[3] The respondent opposes the appeal and contends that the Judge’s decision declining name suppression was correct.
[4] Two of the three victims were neutral about name suppression. One was unable to be contacted.4
Application for leave to adduce further evidence on appeal
[5] Ms Muller seeks leave to adduce a letter from a registered Te Whatu Ora mental health social worker on the impacts of publication of Ms Muller’s name. Ms O’Connor, counsel for Ms Muller, submits that the social worker’s express description of publication as a possible triggering event with a detrimental impact on Ms Muller’s mental health goes to its relevance since the Judge had noted an absence of medical evidence in her decision.
[6] The respondent opposes its introduction on the basis that it does not meet the threshold requirements of freshness and cogency for admission. Mr Young, for the respondent, submits that the writer does not qualify herself for the purposes of giving
1 The charges faced were injuring with intent to cause grievous bodily harm (Crimes Act 1961, s 189(1)); assault with a weapon (Crimes Act 1961, s 202C); and injures with intent to injure, (Crimes Ac 1961, s 189(2)).
2 New Zealand Police v Muller [2024] NZDC 5886. (Name suppression decision).
3 At [50]–[56].
4 Section 16B(2) of the Victims’ Rights Act 2002 provides that where a defendant seeks permanent name suppression, the prosecutor must “make all reasonable efforts” to ensure the views of the victims are ascertained, and they must inform the court of those views.
a professional opinion in the statement as she does not set out her qualifications or experience. He notes that the opinion is based on Ms Muller’s self-reporting rather than an evaluative assessment.
[7] Leave will be granted if the interests of justice favour admission of new evidence on appeal. If the evidence is both credible and fresh, it generally should be admitted.5 Mr Young’s points were well made. I accept there are significant limitations to the proposed evidence. Nonetheless, I admit it on the basis that it updates the current state of Ms Muller’s mental health wellbeing.
Background facts
[8] On 24 August 2022 Ms Muller approached the first victim from behind and slashed their neck with a small saw, then lunged at the second victim, attempting to attack them. The third victim intervened and was slashed by Ms Muller before the victim managed to tackle and disarm her.
[9] At the time of offending, Ms Muller had been discharged from an acute psychiatric unit and was not taking medication prescribed to her.
[10] On 14 June 2023 Ms Muller was found not guilty by Judge P J Sinclair by reason of insanity. A report was ordered pursuant to s 23 of Criminal Procedure (Mentally Impaired Persons) Act (CPMIP Act) to assist with disposition.6 On 20 September 2023, Judge Sinclair concluded that the most appropriate disposition available was an order under s 25(1)(a) of the CPMIP Act that Ms Muller be treated as a patient under the Mental Health (Compulsory Assessment and Treatment) Act 1992. She reasoned that Ms Muller’s history showed that in the absence of close supervision and ongoing enforcement of treatment, she would not comply with treatment, leading to deterioration of her mental health and increased risk.7 It was clear to Judge Sinclair that, provided Ms Muller’s illness was well managed and
5 Criminal Procedure Rules 2012, r 8.8, Lundy v R [2013] UKPC 28, [2014] 2 NZLR 273 at [119]; and Bain v R [2007] UKPC 33, (2007) 23 CRNZ 71 at [34].
6 Section 23 of the CPMIP Act 2003 provides that if a defendant is acquitted on account of their insanity, the court must order that enquires be made to determine the most suitable method of dealing with the defendant under ss 24 or 25 of the Act.
7 New Zealand Police v Muller [2023] NZDC 21113. (Disposition decision).
treated, she would not pose a risk to herself or others. The order made was a community treatment order as Ms Muller had been living in the community for nine months already.
[11] Interim name suppression was granted and continued until the application before the District Court.
District Court name suppression decision
[12] Ms Muller advanced her application for permanent name suppression on the basis that publication would cause her extreme hardship because the resultant stress could potentially lead to her redeveloping psychotic symptoms.8 She argued that publication would make it more difficult to find adequate employment and would negatively impact on her relationship with her children. Reports from a physician and the psychiatrist’s assessment report provided under s 38 of the CPMIP Act were relied on in support of the submission that these factors are identifiable stress points risking relapse and potential withdrawal from her treatment plan.
[13] Judge Bell referred to comments in D v Police9 that, while the opinions of medical professionals warrant respect, the Court is not required to defer to them. She highlighted that she was aware that even when a medical diagnosis is clear and uncontradicted, the opinion of a medial professional might not be without issue.10
[14] Judge Bell distinguished C v R,11 a case in which this Court was satisfied that it was clear that publication would be likely to cause C to suffer extreme hardship if C suffered a relapse of his schizophrenia and/or a relapse. She noted that Ms Muller had been compliant with her pharmacological treatment to date, had accepted the diagnosis of their schizoaffective disorder and understood the consequences of their non-compliance with their treatment/medication plan.12
8 Criminal Procedure Act 2011, s 200(2)(a).
9 D (CA443/2015) v Police [2015] NZCA 541, (2015) 27 CRNZ 614.
10 New Zealand Police v Muller, above n 2, at [35].
11 C v R [2023] NZHC 3099.
12 New Zealand Police v Muller, above n 2, at [40].
[15] Judge Bell considered that the impact on the Ms Muller’s current and prospective employment is a normal consequence of the charges and would not meet the hardship threshold.13 Regarding the connection with her children, Judge Bell noted that they had been in the care of Ms Muller’s former partner, and she had no regular contact with them. For that, and related reasons, there were impediments to the relationship with the children other than publication alone.14
[16] Judge Bell recorded that she did not underestimate the stress resulting from publication but held it was an inevitable consequence of court proceedings. To reach the threshold of extreme hardship, there had to be sufficient supporting evidence to demonstrate that non-compliance (with medical treatment) was “likely” to result rather than being a mere possibility. She noted that it was difficult for the Court to assess how publication would affect Ms Muller and the Court was not well placed to assess the possibility of a relapse, so had to rely on the expert evidence provided. Judge Bell concluded that the medical evidence presented fell short of demonstrating that it is likely that publication will result in non-compliance by Ms Muller.15
[17] Having reached the conclusion that the threshold was not met, Judge Bell addressed the discretionary stage for completeness. She noted that Ms Muller was already residing in the community which meant there was a heightened interest in publication. Against this weighed protection of public safety. In the circumstances presented, Judge Bell was satisfied that that public interest in allowing publication outweighed the potential risk to public safety resulting from any (potential) relapse.16
[18]Name suppression was therefore declined.
Approach on Appeal
[19] Appeals against a grant or refusal to grant name suppression are a composite of a general appeal and an appeal against an exercise of discretion.17 The first stage
13 At [41].
14 At [42].
15 At [45].
16 At [56].
17 F v R [2022] NZHC 2547.
of the inquiry under s 200 of the Criminal Procedure Act 2011 is approached as a general appeal requiring an appellate court to arrive at its own assessment of whether the statutory threshold has been met.18
[20] If one of the grounds are met, the court will move to the second stage. Here the appellate jurisdiction is more limited. The appellate court will only interfere with the lower court’s decision if the lower court, in exercising its discretion, erred in law or principle, failed to take not account a relevant matter, took into account an irrelevant matter or was plainly wrong.19
Parties’ positions
[21] Ms O’Connor focuses on the risk of relapse into psychosis because of the likely impact of publication on employment, relationships and stress. She submits that the evidence of Dr Djokovic is highly probative in terms of determining the likelihood of relapse because the stressors relating to employment prospects and connection with children (now adults) have already proven to be triggers for Ms Muller. She takes issue with the way in which Judge Bell distinguished C v R and submits that Ms Muller’s greater mental stability at the time of her application for name suppression should not be determinative given the issue is the link between stress and relapse and the extent of the resultant hardship caused.
[22] Ms O’Connor emphasises that expert opinion is that Ms Muller does not present a current risk to the community which might otherwise elevate the public interest in knowing her identity. On the other hand, increasing the likelihood of relapse by publication would place the public at greater risk.
[23] Mr Young submits that that the Judge Bell’s finding that extreme hardship was not established was justified. He contends that the assessment of the risk of Ms Muller’s non-compliance with her treatment plan needs to consider her current engagement with their mental health service provider. He points to the evidence that shows Ms Muller has been living successfully in the community, is on a stable
18 Parker v R [2020] NZCA 502 at [29] citing Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141 at [16].
19 Parker v R, above n18, at [30] citing Kacem v Bashir [2010] NZSC 112, [2011] 2 NZLR 1 at [32].
treatment plan, is cognisant of the consequences of failing to take her medication and is successfully engaged with her support team. He suggests that the evidence does not show a significant risk of discontinuance of her treatment plan.
[24] Mr Young contends that, even if it is found that the extreme threshold is satisfied, Judge Bell was correct to find that the discretion should be exercised in favour of declining suppression. Although Ms Muller was found not to be morally responsible for her actions by reason of insanity, the public interest remains significant because of concerns about public safety in central Auckland (where the incident took place).
Legal Principles – name suppression
[25]Relevantly, section 200 of the Criminal Procedure Act 2011 (the Act) provides:
200 Court may suppress identity of defendant
(1)A court may make an order forbidding publication of the name, address, or occupation of a person who is charged with, or convicted or acquitted of, an offence.
(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
…
[26] Section 200 contemplates a two-stage analysis.20 Stage one is a threshold determination. The Court must be satisfied publication would likely lead to one or more of the outcomes listed in s 200(2).21 “Likely” in this context means a real risk that cannot readily be discounted or an appreciable risk that one or more of the consequences identified in s 200(2) will occur.22
20 Robertson v New Zealand Police [2015] NZCA 7 at [39].
21 At [40].
22 Huang v Serious Fraud Office [2017] NZCA 187 [9]–[10]; H (CA361/2021) v R [2021] NZCA 481 at [14], citing D (CA443/2015) v Police [2015] NZCA 541, (2015) 27 CRNZ 614 at [10]– [12].
[27] The second stage calls for a discretionary assessment (once the threshold is reached). If the Court is satisfied that one or more of the outcomes listed in s 200(2) is likely, it must consider the competing interests of the applicant and the public’s right to know. The discretionary assessment considers matters such as whether the applicant has been convicted, the seriousness of the (alleged) offending, the views of the victims and the public interest in knowing the offender.23
[28] The Court of Appeal has observed that hardship of itself connotes “severe suffering or privation”, the qualifier “undue” (in s 200(2)(c)) indicates something more, and that “extreme” hardship in s 200(2)(a) indicates something more again.24 This illustrates the point that the threshold for extreme hardship is a high one and requires something “well beyond the ordinary associated consequences of offending”.25 This is because the starting point for any assessment is the principle of open justice, which is described by the Supreme Court as being “fundamental to the common law system of civil and criminal justice.”26 This principle provides the policy underpinning the threshold requirement in s 200 and is also a primary consideration at the second stage of the analysis.
[29] The Court of Appeal in Pond v R said that the mere fact of an acquittal by reason of insanity, together with inevitable fears about the consequences of publicity do not of themselves suffice to meet the extreme hardship threshold.27
[30] More recently the Court of Appeal stated that the extent of public interest in a defendant’s identity may inform a court’s assessment of whether hardship is extreme in the particular circumstances.28 That aspect is not merely limited to the second stage of the analysis.
23 Robertson v New Zealand Police, above n 20, at [41].
24 Tony Deverson and Graeme Kennedy (eds) The New Zealand Oxford Dictionary (Oxford University Press, Melbourne, 2005) at 491, as cited in Robertson v NZ Police, above n 20, at [48].
25 SSB v R [2017] NZHC 2590 at [10].
26 Erceg v Erceg [2016] NZSC 135, [2017] 1 NZLR 310 at [2]–[3].
27 Pond v R [2019] NZCA 555, (2019) 32 FRNZ 453 at [53]. Leave to appeal refused: Pond v R
[2020] NZSC 37, (2020) 32 FRNZ 481.
28 AO (CA473/23) v R [2023] NZCA 635 at [20].
Analysis
[31] I agree with Judge Bell that the expert evidence before her fell short of demonstrating that it was likely that publication will result in non-compliance with therapeutic intervention. This is in no way intended as criticism of the experts.
[32] Dr Djokovic is a consultant psychiatrist at the Mason Clinic and experienced in the field of forensic psychiatry. She noted Ms Muller’s diagnosis of schizophrenia and prolonged history with community mental health services since 2018. Her report dated 8 June 2023 was prepared for the purposes of s 38 of the CPMIP Act. The high-water mark of Dr Djokovic’s report was that Ms Muller’s psychotic symptoms arose against the background of her non-compliance with prescribed medication and stressors related to finding adequate employment and her access to and connection with her children. She did not make any link between those stressors and the reasons for non-compliance with medication.
[33] Dr Hansia provided a letter dated 20 December 2023 in support of ongoing name suppression. At that stage, Dr Hansia had been providing individual therapy sessions to Ms Muller as part of the Assertive Community Outreach Service. Dr Hansia considered that as at that date, Ms Muller’s mental health was stable with more than sufficient support to manage the stresses that may arise in her life. He concluded that she therefore posed extremely low risk to the community, her ex-husband, her children and herself. He expressed the view that should Ms Muller’s name not be suppressed it would be to the detriment of her progress and future goals; causing her employment prospects to become “exponentially more difficult” along with having a negative impact on her children:
By releasing her name, it will be become (sic) exponentially more difficult for [Ms Muller] to gain employment, which is one of her main goals she is working towards. Additionally, releasing her [name] will likely make it more difficult for her to find new accommodation or to return to school while serving no benefit to the public. Lastly, I have to remark that releasing Ms [Muller’s] name would also likely carry a negative impact on her children as they or their peers may come across it online or in the news and her children would be left having to deal with undue stress.
[34] While I recognise and acknowledge that the result of publication is hardship, neither of these expert views satisfy me that the requisite threshold of extreme hardship
is reached. The matters Dr Djokovic raised are described by her as “stressors” rather than “proven triggers”. She emphasised the connection between non-compliance with prescribed medication and risk, but it is implicit in her report that it is unwanted side-effects which contribute to non-compliance, rather than necessarily stressors.
[35] Ms Copley-Smith is a Te Whatu Ora registered mental health social worker working with Ms Muller at the Community Mental Health Service. She provided an updating letter dated 18 June 2024, the subject of the application for leave to adduce fresh evidence. Her letter speaks to Ms Muller’s ongoing motivation to maintain wellness and her active willingness to engage with mental health services despite no longer being a patient under the Mental Health Act. The letter states that Ms Muller was “diligent in her medication compliance and she is currently asymptomatic and functioning well,” and in terms of the impact of losing name suppression:
...I am concern (sic) that the stress of having the Name Suppression lifted, is impacting [Ms Muller] negatively. She has expressed that she is currently experiencing high levels of stress in relation to the upcoming hearing and she [is] deeply concerned about the impact that having her name publishing (sic) will have on her current employment and any future opportunities of employment.
It is my professional opinion that Ms Muller’s name being made public could be a triggering event and have a detrimental impact on her mental health.
[36] I agree with Mr Young’s submission that the opinion expressed by Ms Copley-Smith is based entirely on Ms Muller’s self-reporting and the anticipated detrimental impact on mental health is not explained. In my view, this further material does not alter the assessment.
[37] Each case necessarily turns on its own particular facts. Nonetheless, I turn to the cases relied on by Ms O’Connor as a cross-check.
[38] In C v R, C had been acquitted of six violent charges by reason of insanity.29 He was an inpatient at a secure treatment facility with a form of severe treatment resistant schizophrenia. At the time of the decision, he was subject to a special patient order at the Mason Clinic. Tahana J allowed his appeal against a District Court
29 C v R, above n 11.
decision declining name suppression, on the basis of expert opinion which pointed to likely relapse of schizophrenia and/or depression and anxiety, exacerbation of mood symptoms, paranoia and persecutory fears of assault and enduring stressors. Comparatively, C’s treatment pathway was longer that Ms Muller’s, indicative of less mental health stability. Additionally, the expert evidence relied on in that case was much more strongly predictive of a relapse such that the specific impacts of publication of name would likely impede his mental health rehabilitation, risk management and community integration.
[39] In AO v R, the appellant had killed his mother.30 He was found to be insane and detained as a special patient in a hospital. He was at the early stages of a long treatment process. He had sought name suppression on the grounds that publication would cause extreme hardship to him, undue hardship to his family and endanger his safety. It was declined by the High Court.31
[40] The Court of Appeal allowed the appeal. It noted that a detailed and unusually urgent case for suppression had been presented in an expert report from a consultant psychiatrist and a very high risk of suicide had been identified. The prospect was of media reporting triggering an adjustment to reality before the appellant was clinically ready for it, with the likely consequence of a relapse in psychosis and a significantly increased risk of suicide.32 (The expert’s subsequent report referred to publication “potentially” increasing suicide risk.) The Court of Appeal’s reasoning is encapsulated in the following paragraph:
[26] This case is distinguishable from both Pond and Bangera, in which suppression was declined for applicants who had killed or attempted to kill and been found not guilty by reason of insanity. In both of those cases the applicant’s condition allowed them to understand the consequences of publicity and express opinions about it; [AO] is more vulnerable because he is not yet in that position. In Pond, the degree of hardship faced by the appellant was uncertain and the application was based in part on harm to the victim, who opposed suppression. In Bangera, expert evidence about the effects of publication was quite generic and it did not link publication to a real risk of suicide.33
30 AO v R, above n 28.
31 R v [AO] [2023] NZHC 1893.
32 AO v R, above n 28, at [8].
33 Footnotes omitted.
[41] The Court also suggested that the public interest in the very serious offending was mitigated because the appellant was not morally responsible for actions and there was no public interest in knowing his character. The Court considered that this could change at the point where he eventually returns to the community, to the extent that he still presents a risk.34
[42] Neither case undermines the conclusion I have reached based on the material before this Court. I am not persuaded the Ms Muller is likely to experience extreme hardship should her name be published.
[43] Like Judge Bell, I do not need to determine the second stage of the analysis given my conclusion on the first stage. I will do so out of deference to the submissions of counsel.
[44] Public interest in publication prevails unless the balance clearly favours suppression because the principle of open justice is fundamental.35 Ms Muller’s offending occurred in circumstances in which she was not criminally culpable. But that does not mean that the public does not have a real interest in knowing that she committed those actions, and is being treated for mental illness, the treatment of which means she is at low risk of reoffending. As the Court of Appeal said in Bangera, her background should not be concealed from those who will have close, and even intimate contact with her.36 Additionally, the fact that Ms Muller already resides in the community distinguishes her from the appellant in AO v R.
[45] Had the threshold for permanent suppression been reached, I would nonetheless exercise my discretion in favour of declining name suppression for the same reasons as did Judge Bell. No error having been identified on the Judge’s part, the appeal cannot succeed.
Result
[46]I dismiss the appeal.
34 AO v R, above n 28, at [21].
35 Bangera v R [2022] NZCA 451 at [29].
36 At [29].
[47] This judgment does not take effect until three weeks from the date of the issue of this judgment (i.e. until 24 October 2024) such that interim suppression remains in place until 5pm on 24 October 2024. This is to provide time for Ms Muller to come to terms with the outcome and her mental health team to prepare and discuss the appropriate supports to be put in place.
............................................................
Walker J
0
6
0