N v The Queen

[2019] NZHC 2181

ORDER PROHIBITING PUBLICATION OF NAME(S), ADDRESS(ES), OCCUPATION(S) OR IDENTIFYING PARTICULARS OF

WITNESS/VICTIM/CONNECTED PERSON(S) PURSUANT TO S 202 CRIMINAL PROCEDURE ACT 2011.

ORDER PROHIBITING PUBLICATION OF NAME, ADDRESS OR IDENTIFYING PARTICULARS OF APPELLANT UNTIL FURTHER ORDER OF THE COURT

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2019-404-315

[2019] NZHC 2181

BETWEEN

N

Appellant

AND

THE QUEEN

Respondent

Hearing:

6 August 2019

Counsel:

S Green for Appellant

Y Yelavich and K E Tuialii

Judgment:

4 September 2019

JUDGMENT (NO 2) OF WHATA J

This judgment was delivered by me on 4 September 2019 at 3.30 pm, pursuant to Rule 11.5 of the High Court Rules.

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

Solicitors:           Kayes Fletcher Walker Limited, Manukau

N v R [2019] NZHC 2181 [4 September 2019]

[1]    N seeks name suppression. He is charged with murder and attempted murder. A victim, T, has name suppression. In a decision dated 12 August 2019, I concluded that, save in respect of the issues I identified in relation to the potential impact of publication on N’s daughter, the principle of open justice clearly favours publication. I invited submissions on whether a report from a suitably qualified expert and/or from the Children’s Commissioner should be sought. The Crown filed detailed submissions. No submissions were filed on behalf of N. I understand however that N will appeal my first decision.

[2]    The Crown raised three main objections to obtaining reports on the child and thus ongoing suppression, namely:

(a)The daughter is only 2 and has been cared for by an Auntie, P, since birth,1 not N, and only has had only infrequent contact with N;

(b)The preponderance of authorities makes clear that only publication harm to family members of very high severity might attract suppression;2

(c)The Crown was unable to find any case in which a report of the Children’s Commissioner was furnished in support of a name suppression application.

Assessment

[3]    Given that P is the primary caregiver and N has had only infrequent contact with his daughter, who is only 2, I accept that a finding of extreme hardship to her is not reasonably available to me. Even if exposed to knowledge of N’s alleged offending, her lack of connection to N makes the prospect of threshold harm very low. A report is not needed to confirm this.

1      Extracts from a statement made by P confirm that the daughter has infrequent contact only with her parents.

2      See Hayward v Police [2019] NZHC 847 and Moors v Police [2017] NZHC 1067. Also see H v R [2019] NZHC 1115; M(CA762/2012) v R [2013] NZCA 113; GWS and SLS v Police [2013] NZHC 943; and Jayme v Ministry of Business, Innovation and Employment [2016] NZHC 165.

[4]    I wish, however, to take the opportunity to briefly address the wide-ranging submissions made by the Crown as to the scope for extreme harm to children. The potential for publication harm on young children is a matter that requires careful consideration. The evident statutory policy of the power to seek a report of the Children’s Commissioner reflects the broader policy of the law that the welfare of children is a paramount consideration, including within the criminal justice context.3

[5]    In any event, with the benefit of the Crown’s further submissions and in the absence of any contradictory submissions by N, the appeal is dismissed. The registry has however advised me that N has indicated he proposes to appeal my first decision. I assume interim suppression pending appeal will be sought. I therefore extend interim suppression for five working days (to 11 September 2019) to enable an application for ongoing interim suppression to be made.

3      See DP v R [2015] NZCA 476, [2016] 2 NZLR 306 and R v McGrath [2018] NZHC 2212.