NZME Publishing Limited v McMahon
[2019] NZHC 2727
•25 October 2019
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2019-404-183
[2019] NZHC 2727
Under The Criminal Procedure Act 2011 In the matter
Of an appeal by a member of the media against District Court judgment [2019]
NZCD 7932 to permanently suppress details of offending
BETWEEN
NZME PUBLISHING LIMITED
Appellant
AND
FERGUS MCMAHON
First Respondent
NEW ZEALAND POLICE
Second Respondent
Hearing: 1 October 2019 Appearances:
R K P Stewart for the Appellant
N Baier and A Prasad for the First Respondent
Judgment:
25 October 2019
Reissued in redacted form:
29 November 2019
JUDGMENT OF POWELL J
[Appeal against permanent suppression order – Redacted version]
This judgment was delivered by me on 29 November 2019 at 3 pm pursuant to R 11.5 of the High Court Rules
Registrar/Deputy Registrar Date:
Solicitors/Counsel: R K P Stewart, Auckland
N Baier, Auckland
NZME PUBLISHING LIMITED v MCMAHON [2019] NZHC 2727 [25 October 2019]
[1] The appellant, NZME Publishing Limited (“NZME”), has appealed a decision by Judge E M Aitken in the District Court at Auckland,1 permanently suppressing details of offending by the respondent, Fergus McMahon, following his sentencing on eight representative charges of burglary, two charges of theft and one of careless driving (“the New Zealand offending”).
[2] Although Mr McMahon had been unsuccessful in an earlier application to maintain name suppression, interim orders had been in force since 2017 suppressing details of the alleged offending in order to preserve Mr McMahon’s fair trial rights in relation to the burglary and theft charges.2
[3] In making an order for permanent suppression3 Judge Aitken concluded that if details of Mr McMahon’s offending was published his safety would be endangered.4 Her Honour applied s 205 of the Criminal Procedure Act 2011 (“CPA”) which relevantly provides:
205 Court may suppress evidence and submissions
(1) A court may make an order forbidding publication of any report or account of the whole or any part of the evidence adduced or the submissions made in any proceeding in respect of an offence.
(2) The court may make an order under subsection (1) only if the court is satisfied that publication would be likely to—
…
(c) endanger the safety of any person; or
…
[4] Section 205 calls for a two-stage analysis. The first stage requires a threshold determination as to whether publication is likely to result in one of the outcomes listed in subs (2). The second stage requires a discretionary decision, with the court
1 New Zealand Police v Fergus McMahon [2019] NZDC 7932 (“the District Court decision”).
2 McMahon v New Zealand Police [2017] NZHC 1698.
3 The whole or any part of the evidence adduced, or submissions made in these proceedings – including the Court’s sentencing notes, the summary of facts, prosecution and defence counsel’s written submission, the probation report and victim impact statements.” District Court decision at [39].
4 Criminal Procedure Act 2011, s 205(2)(c).
considering the balance between the public interest in publication and the interests of the defendant.
[5] Mr Stewart, for NZME, has submitted that there was an insufficient factual foundation for Judge Aitken to conclude that Mr McMahon’s safety would be endangered if the suppression order was not made, and as a result the first, or threshold part of the test in s 205 is not met. In the alternative he submits that even if the threshold was met the balancing exercise did not favour suppression. In contrast Ms Baier, for Mr McMahon, submits Judge Aitken was correct in her decision, but that even if the evidence noted by Judge Aitken was insufficient there was other material available at the time to support the conclusion reached. In Ms Baier’s submission, if the threshold was reached the balancing exercise favoured making suppression orders.
The District Court decision
[6] In the first part of her analysis Judge Aitken correctly set out the test under s 205 of the CPA, and noted, relying on R v Shailer,5 that a person’s safety may be endangered where publication of the material concerned “would cause a health condition to deteriorate further”.6
[7] The reason for Her Honour’s concern for Mr McMahon’s safety in this case was because if details of Mr McMahon’s offending, specifically burglary and theft of rabbits was known, it “would result in other members of the public or the media having easy access to past publications describing the allegations of offending that arose when Mr McMahon was living in Australia in 2005-2006” (“the Australian offending”).7 As Judge Aitken explained:
[17] As a simple internet search will disclose, there were numerous news items at the time which remain on the internet referring to conduct of the defendant harming and killing rabbits (often in some rather macabre detail) and a reference to him being charged with an offence of bestiality. What is not readily apparent from a search on the internet is that, whilst he was convicted of all charges in the District Court (with the exception of the charge of bestiality which was withdrawn) on appeal, he was subsequently found not
5 R v Shailer [2015] NZHC 2607.
6 At [18].
7 District Court decision at [16].
guilty by reason of mental illness. That finding is tantamount to an acquittal but the legal impact of that does not feature in the media articles that remain available on the internet.
[8] After noting that such linkage would also be fulfilled by any inspection of victim impact statements filed in court,8 Her Honour noted:
[20] It is the impact of what is described as the unfair prejudice of the link that will be made and the revisiting and airing of his prior conduct - in respect of which he was found not guilty by reason of mental illness - on which the defence relies. Put another way, the defence argue that publication will leave the reader to draw the inference that what is alleged to have happened on the previous occasion in Australia (death, maiming and even bestiality) could well have happened on this occasion despite there being no evidence.
[21] In those circumstances, it is submitted that the defendant, who is already described as vulnerable, would very likely suffer a significant deterioration in his mental well-being such as to amount to an endangerment of his safety.
[9] Judge Aitken then noted the findings of the New South Wales District Court allowing an appeal by Mr McMahon against his Australian offending (“the NSW District Court appeal decision”). In that case Judge Berman SC concluded the undisputed psychosis under which Mr McMahon was operating at the time of his offending in Australia “was not drug induced but existed well after the use of drugs had stopped”. Although the evidence relied upon was not before the District Court in the present case, Judge Aitken considered it nonetheless provided a sufficient basis for Her Honour to conclude:9
… that this evidence does demonstrate a long-standing vulnerability for this particular defendant.
[10] Judge Aitken went on to note that whilst Mr McMahon was engaging in residential treatment at Odyssey House other residents “became aware of both his current offending and of the allegations of offending in Australia”, in respect of which Mr McMahon’s treatment case manager wrote to the Court on 9 March 2019 (“the Odyssey House letter”) and advised:10
While in Level 2 of the programme information about Mr McMahon's offending was inadvertently released to other residents. This was considered
8 At [19].
9 At [23].
10 At [24].
a serious breach of Mr McMahon's privacy. The incident had a negative impact on Mr McMahon's mental health and was a trigger for him to experience suicidal ideation. He tended to isolate himself and struggled to cope with daily tasks and functioning. With support from staff and external counselling, he was able to get through this period of high risk. An apology and corrective action was taken to prevent any further harm.
[11]Against that background Judge Aitken was of the view:
[25] I am satisfied that the allegations of offending in Australia lend themselves to considerable sensationalization by the media and public alike and that there is a very real risk that not all media outlets will make it clear that the defendant was found not guilty by reason of mental illness - in other words, that he was not legally responsible for the offending. Instead, there is a very real chance that his past behaviours and his current behaviours will become conflated and a rather prurient interest taken in this defendant with the drawing of unfounded assumptions as to the current offending for which he appeared for sentence.
[26] I am well satisfied that such attention will have an unsettling and adverse impact on the defendant. The question for the Court is whether that impact can be described as one likely to endanger his safety.
[12]Her Honour therefore concluded in relation to the threshold test:
[27] Notwithstanding the rather limited evidence before the Court, I am satisfied that the defendant can properly be described as vulnerable, given his history of mental illness, and the fact he has been in treatment for less than a year and is yet to graduate.
[28] Given the evidence of the adverse impact of publicity in the confines of a therapeutic rehabilitative community, I am satisfied that publication of the details of the defendant's offending - with its inevitable link and potential misuse of the circumstances of his conduct in Australia- would heighten his risk of suicide and will lead to a significant deterioration in his mental health. Indeed, that is what happened while he was in treatment with support available to him.
[29] Further, given the defendant suffers from drug dependency - a chronic relapsing condition - I am satisfied he would be at real risk of relapse in the face of such publicity. Such relapse would amount to a significant deterioration in his health.
[30] I am aware that the defendant can access support from his current treatment provider and that he has built up a level of support in the recovery community and the community at large. However, those people are not immune to the impacts of sensational reporting and there is, in my view, a very real chance that some of his support may fall away should these matters be publicised.
[31] There is no evidence upon which the Court can rely to conclude that there is risk that the defendant will commit suicide. However, I do not read the words "endanger the safety of any person" to set the threshold that high.
On the contrary, it is sufficient if publication would cause a health condition to deteriorate further …
[32]For these reasons, I am satisfied that the threshold test is met.
[13] In relation to the discretionary assessment, Judge Aitken was satisfied that the real public interest being advanced was of “salacious and prurient detail that attached to the offending in Australia rather than the unusual but more bland facts that relate to this offending”.11 Her Honour considered that without the permanent order being made “the attendant media and public interest that would follow would substantially raise the risk of the respondent relapsing and reoffending”.12 Ultimately, Judge Aitken was satisfied that the risk to the respondent’s safety was disproportionate to the public interest in knowing about the details of his current offending.13
Discussion
[14] As noted, there is no dispute that s 205 requires a two-stage analysis. The first stage requires a threshold determination as to whether an applicant can prove publication is likely to result in one of the outcomes listed in subs (2). This involves a matter of judicial evaluation.14 In accordance with the approach directed by the Supreme Court, an appeal court must make its own assessment of whether the threshold test is met.15 The constraints on an appeal from the exercise of a discretion do not apply to the first issue of whether the threshold test was met.
[15] The second stage requires a discretionary decision, with the court considering the balance between the public interest in publication and the interests of the defendant. As to the second stage, both at first instance and on appeal, the court must apply the “balancing” test to determine whether or not to order suppression.
[16] Turning first to the threshold test, it is well established there must be an evidential basis for a belief that the safety of a person is likely to be endangered16 and
11 At [35].
12 At [37].
13 At [38].
14 Rougeux v Police [2014] NZHC 979.
15 Austin, Nicholls & Co Inc v Stitching Lodestar [2007] NZSC 103, [2008] 2 NZLR141.
16 Bitossi v R [2014] NZCA 595 at [8].
this includes physical or psychological harm to any person.17 It is apparent from the District Court decision that the evidence relied on by Judge Aitken comprised the NSW District Court appeal decision, a report from the Waitemata DHB Community Alcohol and Drugs Service dated 4 July 2018 (“the CADS report”) and the Odyssey House letter. As Mr Stewart has submitted, with respect to Her Honour, none of these reports in fact provide any sufficient basis for concluding Mr McMahon’s safety will be endangered for the purposes of s 205(2)(c) of the CPA.
[17] I turn first to the conclusions of Judge Berman SC in the NSW District Court appeal decision. I note at the outset that the psychiatric assessment undertaken by a Dr Allnut, relied on by Judge Berman SC in that case, was not available in either the District Court or this Court and, indeed, it is not entirely clear whether in fact a full copy of the NSW District Court appeal decision was available to Judge Aitken. Quite apart from the age of Dr Allnut’s report (2005) the extracts reproduced in the judgment do nothing more than note the nature of Mr McMahon’s medical condition at that time and its cause. In that case there was no dispute that Mr McMahon was psychotic at the time of his offending in Australia, with the one issue being whether he “had a disease of the mind which meant that his consumption of drugs triggered the psychosis, whether the psychosis was due only to the consumption of drugs.18
[18] Although Judge Berman SC concluded the former, the judgment nonetheless highlights the central role that drug abuse played in the Australian offending.19 [sentence redacted]. In any event neither the extracts from Dr Allnut’s psychiatric report relied on by Judge Berman SC, nor the reasoning of Judge Berman SC disclose any ongoing vulnerability on the part of Mr McMahon, nor that there were any safety issues arising as a result of his offending being known. In particular there is no record that details of Mr McMahon’s name or offending were suppressed in that case. In such circumstances it is difficult to see how the NSW District Court appeal decision could provide a foundation for suppression of publication of the details of Mr McMahon’s New Zealand offending on the basis that it would cause Mr McMahon’s “health condition to deteriorate further”.
17 R v Shailer [2015] NZHC 2607 at [18]; K v Inland Revenue Department [2013] NZHC 2426, (2013) 26 NZTC 21-034 at [51].
18 NSW District Court appeal decision at [45].
19 See paragraph [26] below.
[19] The CADS report likewise sheds no light on this critical issue. This report was prepared with a view defining Mr McMahon’s suitability for admission into the Alcohol and Other Drug Treatment (“AODT”) Court programme as well as providing recommendations for residential treatment. In the event Mr McMahon was not admitted to the AODT Court, but was admitted to Odyssey House for what appears to have been lengthy residential treatment, with his treatment being monitored by Judge Aitken, and sentencing delayed for a period, while that treatment was underway.
[20] Thus while the CADS report does identify Mr McMahon’s “risk to self” as high and noted “two occasions (May 2014 and May 2016) of suicidal behaviour with serious intent and plan to end his life” this was “in the context of [alcohol and other drug] dependence exacerbating low mood and anxiety and reported chronic suicidal ideation”. Although the CADS report also notes that both occasions were associated with “despair over life circumstances in the context of legal issues” the report provides no details as to what the “legal issues” encompass and whether such issues include the publication of the details of Mr McMahon’s offending. The CADS report however to makes it clear that the alcohol and drug dependence is the predominant cause of Mr McMahon’s risk of self-harm, as the report writers noted:
He has experienced episodes of serious mental health consequences on at least two occasions due to dependent use of methamphetamine and has a history of driving while intoxicated with AOD. He reported a history of childhood abuse and neglect, witnessing domestic violence and early onset of AOD dependence. These factors place Mr McMahon at increased risk of harm to himself when intoxicated with AOD.
(Emphasis added)
[21]This point was reiterated in the summary to the report which provided:
Mr McMahon presents as poly-substance dependent characterised by early onset of dependence with a family history of AOD dependence and mental illness. His reported history of neglect and abuse in childhood may have contributed to vulnerability to anxiety and depression and thereby to AOD dependence. He has suffered significant but time-limited episodes of mental illness consequent of AOD dependence which have directly contributed to his current and past offending. Notwithstanding his history of AOD dependence, he has maintained employment within a demanding career since early adulthood. He appears to have engaged beneficially in AOD and other mental health treatment in the past and has reportedly achieved lengthy periods of abstinence from AOD.
Mr McMahon is currently engaged in residential AOD treatment. He presented as highly motivated to maintain long term abstinence from AOD with realistic insight into the necessary commitment to treatment demanded by this goal. His pattern of recidivist AOD dependence suggests he would benefit from the robust structure provided by the AODT Court.
(Emphasis added)
[22] Two points arise from this. First, the identified risk to Mr McMahon was linked to his alcohol and other drug dependency in respect of which he has now received a further year of treatment. Secondly, there is nothing in the CADS report to suggest that publication of the detail of Mr McMahon’s New Zealand offending would increase the risk to Mr McMahon. On the contrary the CADS report notes a number of extant “protective factors” all of which appear to remain relevant:
Mr McMahon demonstrated the following protective factors, strengths and coping strategies for managing his risk of harm to self or others, reoffending or AOD use:
•Motivated to engage in intensive AOD treatment and application to the AODT Court;
•Currently in residential treatment at [Odyssey House];
•Motivated to engage in [Narcotics Anonymous];
•History of positive engagement with AOD and other mental health treatment;
•Supportive family (parents) and friends in the community.
•History of long term employment.
[23] Similarly, while the Odyssey House letter did note a link between suicidal ideation and Mr McMahon’s offending following the release of information about “his offending” to other residents at Odyssey House at a time when these protective factors are likely to have been in place, contrary to Judge Aitken’s analysis it is not clear at what stage of the treatment this occurred. Specifically, the Odyssey House letter notes it occurred at Level 2 of the programme and at the time of the Odyssey House letter Mr McMahon had by then reached Level 4, at which point such protective factors are likely to have been reinforced and strengthened. Likewise, it is not clear whether this was one of the two incidents identified in the CADS report nor which offending, the Australian, New Zealand or both, had been disclosed.
[24] Taken together I am accordingly not satisfied that there was a sufficient foundation for Judge Aitken to conclude that the threshold test under s 205 had been reached. As counsel have both accepted, that is not the end of the analysis as there is in fact other evidence, not specifically considered by Judge Aitken which is properly now considered in determining whether the threshold has been met.
[25] The first of these were the reports prepared under s 38 of the Criminal Procedure (Mentally Impaired Persons) Act in February and April 2018. These consisted of a psychiatric assessment of Mr McMahon by Dr Lillian Ng, followed by an assessment by a clinical psychologist, Sanjeeta Sharma, and a further psychiatric comment by Dr Jeremy Skipworth.
[26] None of the s 38 reports assist Mr McMahon, focussed as they are on whether Mr McMahon was legally insane at the time of the New Zealand offending some 18 months ago, and prior to the completion of his rehabilitation.
[Part [26], and all of [27] and [28] redacted]
[29] Taken together the s 38 reports confirm the centrality of substance abuse in Mr McMahon’s condition rather than any evidence of mental issues per se. Given Mr McMahon has now received considerable and ongoing treatment for these issues it is impossible to conclude, in the absence of a comprehensive and up to date assessment to the contrary and following the completion of his rehabilitation, that there is any real and appreciable risk to Mr McMahon’s safety if the details of the New Zealand offending are published.
[30] The final report currently available is from Mr McMahon’s general practitioner, [name redacted]. This was not a comprehensive report but rather a short letter to Ms Baier in anticipation of the appeal hearing. [The general practitioner] advised:
I am fully aware of the conviction and sentence served by Fergus for events in 2016. I was his GP at the time and continue to be so. He has completed a full rehabilitation program through Odyssey house for methamphetamine addiction, is providing ongoing support to residents and is currently studying certification in health and wellbeing with a special interest in mental health through Open Polychech which will enable him to be a drug and addictions
counsellor in the future. He has surpassed expectations in his recovery and has a very promising future in helping people who are needing recovery help.
His learning of the Associate Press' attempts to remove name suppression through the High Court has led to a return of suicidal thoughts. He attempted suicide in 2014 with a serious overdose and attempted to jump from a building in 2018. I have grave concerns for what may happen to his immediate risk and his future in recovery if his name suppression is overturned.
(Emphasis added)
[31] The obvious problem with [the general practitioner’s] advice is that he is focused on the damage to Mr McMahon if name suppression is removed. As noted above, Mr McMahon has in fact not had name suppression since 2017, and [the general practitioner] in fact provides no details at all as to what he thinks may occur if details of Mr McMahon’s offending was published.
[32] I therefore conclude that, even taking into account the additional medical evidence available, Mr McMahon has not met the threshold under s 205(2)(c) of the CPA, and as a result the appeal must be allowed.
[33] In view of my conclusions in the first part of the test it is not necessary to consider the exercise of the discretion and I do not do so. Two further points however should be made noting that an important part of the exercise of the discretion by Judge Aitken was what she categorised as the “real public interest [in this case] being advanced here [is] an interest in the more salacious and prurient detail that attached to the offending in Australia rather than the unusual but more bland facts that relate to [the New Zealand] offending”. First, as Mr Stewart pointed out:
The Court cannot enter into assessment of whether media or public interest is appropriate or "undue". The right to receive and impart information is not limited in the present context according to qualitative and subjective standards adopted by the Judge. It is a right to receive information "of any kind in any form". In cases where some real harm is identified, it may be necessary for the Judge to decide whether the harm which would be caused is disproportionate to the public interest in open justice and the freedom to receive information "of any kind". In such cases it may be necessary for the Judge to weigh the public interest in receiving the particular information. But in the absence of identified harm from the publicity which clearly extends beyond what is normal in such cases, the presumption of public entitlement to the information prevails. Any other approach risks creating a privilege for those who are prominent which is not available to others in the community and imposing censorship on information according to the Court's perception of its value.
[34] Leaving such considerations aside there is in any event a very obvious and genuine public interest in this story. As Judge Paul noted at the time name suppression was declined in the District Court:20
[3] Counsel have been somewhat silent about public interest and the media's right to fairly report proceedings. There must be a significant public interest where a person targets pet animals for their own particular interests. Clearly, there is media interest in this alleged offending. Oftentimes, offending comes before the Court that is of significant interest to the media, may well be distasteful but defendants, on that basis alone, cannot be justified in having orders continue in their favour.
[4] I am satisfied that the balance squarely comes down in favour of the public interest in the proper and fair reporting of these proceedings and the application for continued name suppression is refused.
Decision
[35] The appeal is allowed. As discussed with counsel at the hearing and noting that Mr McMahon is currently completing treatment for his alcohol and other drug issues it is appropriate to give him the chance to discuss the implications of this judgment with his treatment providers. The District Court orders with regard to suppression in the District Court proceedings will therefore not lapse until 3 p.m. on 22 November 2019.
[36] Following receipt of submissions an addendum to this judgment was issued outlining the basis for the various redactions incorporated in this version of the judgment.21
Powell J
20 New Zealand Police v McMahon DC Auckland CRI-2017-090-00239, 7 July 2017 (Minute)
21 NZME Publishing Ltd v McMahon & Anor [2019] NZHC
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