N v The Queen - [2019] NZHC 1939

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 1939

BETWEEN
N

Appellant

AND

THE QUEEN

Respondent

Hearing: 6 August 2019

Counsel:

S Green for Appellant

Y Yelavich and K E Tuialii

Judgment:

12 August 2019

[REDACTED] JUDGMENT OF WHATA J

This judgment was delivered by me on 12 August 20 at 3.00 pm,

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

Solicitors: Kayes Fletcher Walker Limited, Manukau

N v R [2019] NZHC 1939 [12 August 2019]

[1]Mr N:

(a)appeals against the decision of Judge Mabey QC refusing to grant name suppression;

(b)applies for “take down” orders in respect of various articles; and

(c)seeks to exclude media from the hearing of the appeal and the take down application.

[2] I can deal with (c) briefly. Section 198 of the Criminal Procedure Act (the CPA) states:

198 Exception for members of media

(1)An order under section 197 may not exclude members of the media except on the ground set out in section 197(2)(a)(ii) (which relates to the security or defence of New Zealand).

(2)For the purposes of this section, member of the media means—

(a)a person who is in the court for the purpose of reporting on the proceedings and who is either subject to or employed by an organisation that is subject to—

(i)a code of ethics; and

(ii)the complaints procedure of the Broadcasting Standards Authority or the Press Council; or

(b)any other person reporting on the proceedings with the permission of the court.

[3] While there may be inherent jurisdiction to exclude the media, nothing I have heard today suggests that I would be justified in doing so. Rather, the principle of open justice ordinarily demands the presence of the media as kaitiaki of the public interest.

[4] As to (b), the application for take down orders, belatedly made, cannot be heard without notice first being given to the affected media outlets.1 That application is therefore adjourned, and the following directions made:

(a)A formal application for take down orders is to be filed and served on all the affected media organisations;

(b)The media organisations shall have 5 working days to file notices of opposition.

(c)The matter will be set down for further case management once those notices are filed.

[5]I turn then to the appeal.

[6] All parts of the judgment in italics, including corresponding headings, are suppressed.

Background

[7] The alleged facts of the offending may be stated briefly. Mr N faces one charge of murder, one charge of attempted murder and one charge of assault with a weapon. It is claimed he drove to S’s place of work with a sharp weapon. He confronted T there and stabbed her twice, to the neck and head. He then drove away and came…

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 N v The Queen

Details

AGLC: N v The Queen [2019] NZHC 1939
Case: [2019] NZHC 1939
Decision Date: 12 August 2019

CaseChat Overview and Summary

In this case, Mr N appeals against the decision of the District Court to refuse to grant name suppression. He also seeks to have various articles removed and requests that the media be excluded from the hearing of the appeal and the application for the removal of articles. The High Court of New Zealand Auckland Registry was required to decide whether there were procedural errors made by the District Court in the granting of name suppression and media coverage, and whether the publication of Mr N's name would cause extreme hardship to his young daughter, her caregiver, and members of her family, and/or prejudice a fair trial. The court found that the alleged procedural errors did not materially affect Mr N's appeal. In terms of hardship to his daughter, the court found that it was difficult to gauge the impact of publication on her but believed it necessary to take a precautionary approach and continue to suppress Mr N's name pending a report from a suitably qualified person as to the potential harm she might experience from the publication of her father's name. The court found that there was no fair trial issue raised by the media attention given to this trial. The court found that the principle of open justice clearly favours publication, but for the concerns about the potential impact of publication on Mr N's three-year-old daughter, it would not suppress Mr N's name. However, as the court was presently unclear as to the nature of the potential harm to her, it invited submissions from counsel about obtaining a report from a suitably qualified person on that potential harm and/or a report from the Children’s Commissioner. Submissions were to be filed within five working days, and interim name suppression would continue pending resolution of this aspect.

The court ordered that interim name suppression would continue pending resolution of the aspect relating to the potential impact of publication on Mr N's three-year-old daughter. It invited submissions from counsel about obtaining a report from a suitably qualified person on that potential harm and/or a report from the Children’s Commissioner. Submissions were to be filed within five working days.

Orders