Ngaamo v Police
[2019] NZHC 3129
•29 November 2019
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2019-404-435
[2019] NZHC 3129
IN THE MATTER Of an appeal against a refusal to grant permanent name suppression BETWEEN
KOURTNEY NGAAMO
Appellant
AND
AND
NZ POLICE
First Respondent
NZME PUBLISHING LIMITED and STUFF LIMITED
Second Respondents
Hearing: 20 November 2019 Appearances:
V Curac for the Appellant
B Tantrum and B Hamilton for NZ Police R Stewart for the Second Respondent
Judgment:
29 November 2019
JUDGMENT OF POWELL J
This judgment was delivered by me on 29 November 2019 at 3 pm Registrar/Deputy Registrar
Date:
NGAAMO v NZ POLICE [2019] NZHC 3129 [29 November 2019]
[1] The appellant, Kourtney Ngaamo, has appealed against a decision of Judge P J Sinclair in the District Court at North Shore, declining to suppress the identity of her ex-husband, Puaivanu Magasiva, following Mr Magasiva’s conviction and sentence in May 2019 on a single charge of male assaults female.1
[2] Ms Ngaamo’s application arose after a similar application was made by Lizz Sadler, Mr Magasiva’s wife and the victim of the offending, was declined by Judge C M Ryan at the time Mr Magasiva was sentenced.2 Ms Sadler sought suppression of her own name under s 202(1)(b) and (2)(a) of the Criminal Procedure Act 2011 (“the Act”) as the victim of the offending on the basis that publication would cause undue hardship to her. In the event, Judge Ryan did not find publication would cause Ms Sadler or Mr Magasiva’s children undue hardship and dismissed the application.3 Had Her Honour not done so it appears Ms Sadler would have sought suppression of Mr Magasiva’s name pursuant to s 200(2)(f) of the Act on the basis the publication of his name would then have led to the identification of Ms Sadler.
[3] Tragically, within a short time of Judge Ryan’s decision Mr Magasiva was dead, and his death has been treated as suspected suicide.
[4] In the aftermath of Mr Magasiva’s death Ms Ngaamo brought the application for suppression now under appeal. Following a number of procedural steps which are not relevant to this appeal,4 the application came before Judge Sinclair. As filed the application sought suppression of Mr Magasiva’s name pursuant to s 200(2)(a) of the Act on the basis that “publication would be likely to … cause extreme hardship to [Mr Magasiva and Ms Ngaamo’s daughter] Jasmine as a ‘person connected with [Mr Magasiva]”’.
[5] Judge Sinclair was not satisfied that the publication of Mr Magasiva’s name would cause extreme hardship to Jasmine and dismissed the application.5
1 New Zealand Police v Magasiva [2019] NZDC 18838.
2 New Zealand Police v Magasiva [2019] NZDC 7734.
3 At [78].
4 Detailed in New Zealand Police v Magasiva [2019] NZDC 18838 at [4].
5 At [29]-[35].
[6]Appealing the decision Ms Ngaamo raised three matters:
(a)that a test of “undue hardship” should have been applied instead of the extreme hardship test;
(b)that insufficient weight was placed on psychological evidence outlining the effect of publication on Jasmine; and
(c)that insufficient weight was given to the “emotional and cultural effect” of publication on Jasmine.
[7] As I discussed with Ms Curac, on behalf of Ms Ngaamo, at the hearing it is clear that Judge Sinclair did not err in applying the extreme hardship test given that it was in fact the application before her. Section 200 provides the most direct route to suppress the identity of an offender if publication of the offender’s name will cause “extreme hardship” to “any person connected with that person”.6 The problem is that extreme hardship in terms of s 200(2)(a) is a high threshold to establish. The Court of Appeal defined extreme hardship as follows:7
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.
[8] It was not suggested that Judge Sinclair was wrong in concluding that the threshold of extreme hardship was not met, and indeed the lesser test of undue hardship identified was a tacit acceptance that Judge Sinclair was correct. The inevitable result is that this appeal must be dismissed. Given this position and as Ms Curac accepted, the first ground of the appeal was better considered and understood as a fresh application pursuant to s 202(2)(a) of the Act, supported by Dr Ahmed’s report and
6 Criminal Procedure Act 2011, s 200(2)(a)
7 Robertson v Police [2015] NZCA 7 at [58]-[49].
additional evidence provided by Ms Ngaamo and Jasmine’s counsellor, Averill Waters, and the parties have approached the hearing on this basis.
[9] The ultimate objective of the application for Ms Ngaamo as it has now been couched remains the suppression of Mr Magasiva’s name albeit first through the suppression of Jasmine’s name. To achieve this Ms Ngaamo must show:
(a)as a connected person to Mr Magasiva, publication of her name will cause undue hardship to Jasmine;8
(b)the Court must be satisfied that suppression of Jasmine’s name is in the interests of justice;9
(c)publication of Mr Magasiva’s name will lead to the identification of Jasmine whose name is suppressed;10 and
(d)it in the interests of justice that Mr Magasiva’s name be suppressed.11
Will publication of her name cause undue hardship to Jasmine?
[10] Section 202 of the Act, under which Ms Ngaamo now applies, relevantly provides:
202 Court may suppress identity of witnesses, victims, and connected persons
(1) A court that is hearing a proceeding in respect of an offence may make an order forbidding publication of the name, address, or occupation of any person who—
(a)is called as a witness; or
(b)is a victim of the offence; or
8 Criminal Procedure Act 2011, s 202(2)(a).
9 Fagan v Serious Fraud Office [2013] NZCA 367 at [9]; Robertson v Police [2015] NZCA 7 at [39]–[41]; Beacon Media Group Ltd v Waititi [2014] NZHC 281 at [5]; and R v Robinson [2016] NZHC 860 at [28],
10 Criminal Procedure Act 2011, s 200(2)(f).
11 D (CA443/15) v Police [2015] NZCA 541, (2015) 27 CRNZ 614 at [12]; and Lewis v Wilson & Horton Ltd [2000] 3 NZLR 546, (2000) 18 CRNZ 55 (CA) at [43].
(c)is connected with the proceedings, or is connected with the person who is accused of, or convicted of, or acquitted of the 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 undue hardship to the witness, victim, or connected person; or
(b)create a real risk of prejudice to a fair trial; or
(c)endanger the safety of any person; or
(d)lead to the identification of another person whose name is suppressed by order or by law; or
(e)prejudice the maintenance of the law, including the prevention, investigation, and detection of offences; or
(f)prejudice the security or defence of New Zealand.
(3) Subsection (1) applies whether or not the court has made an order under section 200 suppressing the identity of the defendant.
(4) An order under subsection (1) suppressing the identity of a witness, victim, or connected person may not prevent publication of the name of the defendant (which may be prohibited only by an order made under section 200) or the nature of the charge.
[11] Although Ms Curac had submitted that Judge Sinclair applied the wrong test in dismissing the original application for suppression of Mr Magasiva’s name it is apparent that the differences between s 200 and s 202 extend well beyond the test to be applied. Specifically, unlike s 200 of the Act which allows for the suppression of the defendant’s name if publication will cause extreme hardship to either the defendant or a connected party, s 202 is concerned only with the suppression of someone other than the defendant (a witness, a victim or a connected person),12 if that person can show publication of their own name will cause them undue hardship.
[12] Jasmine is therefore required to show that publication of her own name will cause her undue hardship. This was the same test applied by Judge Ryan in declining to suppress the name of the victim Ms Sadler at the sentencing of Mr Magasiva. The meaning of the word “undue” is contextual. In R v Ratu, Venning J described it as:13
12 Criminal Procedure Act 2011, s 202(4).
13 R v Ratu [2013] NZHC 3085 at [39].
… to be undue in the present case the hardship must be disproportionate to the hardship that witnesses (and victims in particular) could generally be expected to experience when having their names published as witnesses.
[13] The Court of Appeal in Sansom v R have also considered the test of undue hardship stating that undue hardship must involve hardship that is greater than that which will inevitably follow publication.14 The Court then noted the previous Court of Appeal decision in Robertson v Police:15
The word “hardship” on its own means “severe suffering or privation”.16 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.17
[14] Applicants bear the onus of demonstrating that the damage that would result from publication would be “out of the ordinary”.18 It is natural for distress, embarrassment, and potential adverse personal and financial consequences to arise from criminal proceedings.19
[15] The fundamental problem with the application as it is now brought is that absolutely no evidence has been adduced on Jasmine’s behalf that in any way suggests publication of Jasmine’s name will cause her any degree of hardship at all. As noted, Ms Ngaamo relies on three reports now before the Court; the report of Dr Ahmed, a consultant psychologist whose evidence was before Judge Sinclair, and the affidavits sworn by Ms Ngaamo and Ms Waters. All three witnesses are however focussed on the effect on Jasmine if the interim orders suppressing details of Mr Magasiva’s name are lifted. Relying on those reports, Ms Curac submitted that Jasmine would suffer undue hardship resulting from the compounding effect of what would otherwise be normal consequences of unremarkable offending by Mr Magasiva on top of the effect of Mr Magasiva’s tragic death on Jasmine.
14 Sansom v R [2018] NZCA 49 at [32].
15 Robertson v Police [2015] NZCA 7 at [48].
16 Tony Deverson and Graeme Kennedy (eds) The New Zealand Oxford Dictionary (Oxford University Press, Melbourne, 2005) at 491.
17 R v N [2012] NZHC 2042 at [21]; Rougeux v Police [2014] NZHC 979 at [20]; and Jung v Police [2014] NZHC 949 at [17]. See also Law Commission Suppressing Names and Evidence (NZLC R109, 2009) at [3.6].
18 D (CA443/15) v Police [2015] NZCA 541 at [11].
19 At [11].
[16] For such a submission to succeed the application would have to be made under s 200(2)(a) of the Act as it was before Judge Sinclair. As noted however, it is clear that even the compounding effect identified by Ms Curac is insufficient to amount to extreme hardship for the purposes of s 200(2)(a). In so far as the present application is concerned the effect on Jasmine of the publication of Mr Magasiva’s name is not relevant for the purposes of s 202(2)(a). Instead, as noted, the focus is on the effect that publication of Jasmine’s name will have on Jasmine and none of the evidence adduced on behalf of Ms Ngaamo in fact raises any issue that any publication of Jasmine’s name will cause her any hardship at all, let alone undue hardship and therefore the evidence filed on behalf of Ms Ngaamo does not support the application as it has proceeded.
[17] Moreover, as Mr Stewart noted in his submissions for Stuff NZ Limited and NZME Publishing Limited, it is by no means clear that there is any real possibility that Jasmine’s name will in fact be published. There is no obvious reason for Jasmine’s name to be published given that she was not personally involved in the offending committed by Mr Magasiva.
[18] In the absence of any factual foundation whatsoever for the amended application it is clear there is and can be no basis for any order suppressing Jasmine’s name. As a result her application must be dismissed.
[19] Given my conclusion it is not necessary to consider the other steps noted at [9] above that Ms Ngaamo sought to satisfy in order to secure the ongoing suppression of Mr Magasiva’s name. It is clear however that Ms Ngaamo would have faced significant hurdles at each of the remaining steps, noting in particular:
(a)The fact that any suppression of Jasmine’s name was a device to obtain the permanent suppression of Mr Magasiva’s name would have been a relevant matter in determining whether it was in the interests of justice to exercise the discretion to suppress Jasmine’s name.
(b)The evidence was not strong to support the assertion that the publication of Mr Magasiva’s name would lead to the identification of
Jasmine in terms of s 200(2)(f) of the Act, given the lack of any reason to publish Jasmine’s name.
(c)Even if the threshold pursuant to s 200(2)(f) of the Act was able to be met there were strong arguments against suppression including:
(i)the need for open and fair reporting to ensure that Jasmine was not misled over the nature of Mr Magasiva’s offending for which he had, through pleading guilty, accepted responsibility; and
(ii)the particularly powerful and compelling views expressed by Ms Sadler in her victim impact statement, which would have been taken into account pursuant to s 200(6) of the Act. As noted, Ms Sadler had originally supported Mr Magasiva’s application for name suppression at sentencing, but now considered this to have been a mistake. Instead Ms Sadler advised the Court:
When permanent name suppression was initially not granted my husband was incredibly worried about losing his career. He knew I would support him but this did not prove enough so I was preparing to apply for name suppression to the High Court. I pursued this to protect my husband's career and particularly because he was still drinking and I was terrified his anger would return. Now it is very evident that if I had told the truth in the first place and not been silenced then, Pua may have gotten the help that he needed and I could have had a voice. The lies and pressure to maintain his image has placed me under immense stress and placed me at further risk of his violence.
The night of my husband's passing, his drinking and anger had returned - it ended with me in hospital and him taking his life. The trauma from these events and losing my husband is going to be with me for the rest of my life. If I didn't have to keep silent then I could have begun the process of working through my grief, trauma, and anxiety. I think domestic violence is something people are afraid to talk about, certainly I was as I hid this our whole relationship - endless excuses and lies has taken a toll on my mental wellbeing. Only when a stranger found me after the assault last year did I go to the police. I blamed myself because he blamed me and I did everything in my power to protect and lie for him but now I have a chance
to be heard and speak my truth. I am also speaking for my daughter, Laylah who lived with us full time and has been a witness to my husband's ongoing violence- I need to have a voice for her to show her that this is not ok.
As a victim in this continuous cycle of silence I do not wish for name suppression because this would silence me again, but now by those who wish to protect him and the system allowing them to do this. I do not want anyone to be hurt and do not want to dishonour Pua’s memory, but I also do not want to be revictimized by being forced to hold the truth alone in silence. I'm still healing from this offending behaviour and his death which occurred after a night of anger and further assault. This is my pain, this is my truth and I need to have the ability to speak freely in order to get through this – I cannot do this in silence. I ask please that the silence end.
Decision
[20] The appeal is dismissed, as is the application for suppression of Jasmine’s name pursuant to s 202(2)(a) of the Criminal Procedure Act 2011.
[21] By consent the current suppression orders in respect of Mr Magasiva will lapse by 18 December 2019.
Powell J
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