Ngaamo v Police

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…