Narayan v Police

[2012] NZHC 81

SUPPRESSION ORDER IN RESPECT OF MATTERS OUTSIDE CONTENT OF THIS JUDGMENT: SEE PARA [22]

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2012-404-18 [2012] NZHC 81

BETWEEN  NEHA SUNANDA NARAYAN Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         7 February 2012

Counsel:         H Phillips for Appellant

Y V Yelavich for Respondent

Judgment:      8 February 2012

JUDGMENT OF HEATH J

This judgment was delivered by me on 8 February 2012 at 2.00pm pursuant to Rule 11.5 of the High

Court Rules

Registrar/Deputy Registrar

Solicitors:
Crown Solicitor, PO Box 2213, Auckland
Counsel:

H Phillips, PO Box 147277, Auckland

NARAYAN V NEW ZEALAND POLICE HC AK CRI 2012-404-18 8 February 2012

Introduction

[1]      Ms Narayan has been charged with abducting a one day old baby from a maternity ward at Middlemore Hospital, on the morning of Wednesday 3 January

2012.  She was brought before the District Court at Manukau on 5 January 2012. At that stage, Ms Narayan was represented by a duty solicitor.   She was remanded without plea until 23 January 2012.

[2]      At first call, Ms Narayan made no application for interim name suppression. Between  5  and  23  January 2012,  Ms  Narayan’s  name was  published  by media outlets, in both paper-based and electronic form.  Her name and details of the alleged offending remain accessible on a number of Internet websites: in particular those of the New Zealand Herald, Stuff and TV3.

[3]      On 23 January 2012, Ms Narayan made a belated application for suppression of her name, pending trial.  The application was heard by Judge McAuslan.  While prohibiting certain  in-Court  coverage  (taking still  photographs  and  filming),  the Judge declined to make a suppression order, primarily because Ms Narayan’s name was already in the public domain and such an order would be futile.

[4]      Ms  Narayan  appeals  against  the  Judge’s  decision  to  decline  her  name suppression application.

The appeal

[5]      On 31 January 2012, the appeal came before Toogood J.  While expressing a provisional view that there were not grounds for the appeal to succeed, the Judge identified a point on which further submissions were required.   The question was whether a prospective suppression order could be made on terms requiring historical publications of Ms Narayan’s name and identifying particulars to be removed from existing websites.  The appeal was adjourned for hearing on 7 February 2012 for that issue to be considered.

[6]      Although Toogood J adjourned the appeal to enable submissions to be made on this Court’s jurisdiction to require removal of published material on a website, Ms Phillips, for Ms Narayan, accepted, on reflection, she could not advance that point. Rather, with the assistance of additional medical information from that before Toogood J,  she  relied  on  the  need  to  minimise  health  risks  to  Ms  Narayan  by forbidding further publication of her name or identifying particulars, pending trial.

[7]      Toogood J did not adjourn the appeal on a part-heard basis.  For that reason, I have heard from counsel on all issues raised on the appeal and have not limited my consideration to the point on which Toogood J directed further submissions.  While I have  read  the  Judge’s  reasons  for  adjourning  the  appeal,  I have  undertaken  an independent assessment of the grounds advanced.

Submissions

[8]      Ms  Phillips  submitted  that  additional  evidence  had  become  available  to justify the intervention of a suppression order to protect Ms Narayan’s and her family’s wellbeing.  That material takes the form of a psychiatric report and clinical notes from the Counties Manukau District Health Board’s records, as well as a further psychiatric report dated 6 February 2012, from Dr Mendel.

[9]      While the Police do not consent to the admission of the additional evidence, the appeal cannot sensibly be considered without reference to it.   Accordingly, I make an order admitting the additional evidence on appeal.

[10]     The competing positions may be summarised as follows:

(a)      Ms Phillips submits that the additional evidence demonstrates that Ms Narayan is in an “extremely fragile” state and may be vulnerable to serious self-harm if her name were published further, pending trial. The fragility of her mental state is said to arise out of both medical and cultural considerations.  Ms Phillips submits those are sufficient reasons to justify suppression being ordered, notwithstanding the earlier publication.

(b)Ms Yelavich, for the Police, submits that the additional evidence does not go far enough to show the type of compelling reason necessary to make a suppression order.  In any event, she contends an order would be futile because Ms Narayan’s name has already been published.

Analysis

[11]     Section 140 of the Criminal Justice Act 1985 provides a discretion for a Court to make an order suppressing the name or identifying particulars of a person charged with a crime.  The presumption is in favour of open justice and the freedom of the media to impart information to members of the public, as their surrogate.   The starting point is “the importance in a democracy of freedom of speech, open judicial

proceedings, and the right of the media to report the latter fairly and accurately”.[1]

[1] R v Liddell [1995] 1 NZLR 538 (CA) at 546

[12]     In general terms, it is necessary for “compelling reasons” to be shown to rebut that presumption.[2]    Put another way, “the balance must come down clearly in favour of suppression if the prima facie presumption in favour of open reporting is to be overcome”.[3]

[2] Re Victim X [2003] 3 NZLR 220 (CA) at para [37].

[3] Lewis v Wilson & Horton Ltd [2000] 3 NZLR 546 (CA) at 559

[13]     I do not propose to set out in detail the medical evidence that has been put before me.  It is sufficient, for a reader of this judgment to understand my reasons for decision, for me to refer to the concerns in general terms.

[14]     There is no doubt that Ms Narayan is in a distressed state and in need of care and attention. To a considerable extent, that state of affairs existed before the alleged offending; indeed, it may have led to it.  What is contentious is the extent to which that state has been exacerbated by the publication of her name in respect of the alleged offence.

[15]     There are a mix of concerns that have led to Ms Narayan’s current state of mental health, not all of which can be linked specifically to publication of her name.

.

Other aspects involve the nature of her relationships with others and cultural considerations.

[16]     While I am not unsympathetic to Ms Narayan’s plight, I do not consider that a prospective suppression order will make any material difference to her mental health condition.  One psychiatric report suggests mild risk of self-harm.  Another (more recent) report puts risk in a more elastic way but does not provide much guidance on the extent to which the risk will be heightened by further publication of her name.   In my judgment, those considerations are not sufficient to rebut the presumption of open justice; particularly in a situation in which Ms Narayan’s name is in the public domain.

[17]     An important contextual aspect of the appeal is the fact of prior reporting and the inevitability that historical information will remain on the Internet.   Anyone searching for information in relation to a well publicised abduction on 3 January

2012 will undoubtedly find a number of articles naming Ms Narayan as the person charged with the offending.  The existence of a mechanism by which her name can be readily obtained from media sources that published legally at the time militates against the intervention of a suppression order at this stage.

[18]     Although no plea has yet been made, the likelihood is that one of not guilty will be entered and trial by jury elected.  In the District Court at Manukau, a jury trial is unlikely to be held before next year.  Were it not for the intervention of the present application and appeal, it is unlikely that anything further would have been published meantime, save for her plea and election.

[19]     I express the hope that responsible media will take account of the state of Ms Narayan’s health and ensure that any future report is couched in sensitive terms. While not sufficient to justify a suppression order, there are genuine private concerns advanced by Ms Narayan.

[20]     The media’s right to publish information does not carry with it a requirement to report personal details which, while interesting to the public, are not of public

interest.  Having said that, the extent of any future publication remains a matter of editorial judgment.

Result

[21]     The appeal is dismissed.

[22]     This  judgment  may  be  reported  publicly.     However,  information  not contained in this judgment which was the subject of oral submissions at the appeal hearings before me and Toogood J are prohibited from further publication, without leave of the Court.  So too, is the content of Toogood J’s Minute of 31 January 2012 that sets out some of the information in more detail.   The Court file may not be searched, copied or inspected, without leave of a Judge on notice to both parties.

[23]     The  order  made  by  Toogood J  for  interim  suppression  of  any  further

publication of Ms Narayan’s name is discharged, consequent upon dismissal of the appeal.

Delivered at 2.00pm on 8 February 2012

P R Heath J