P v The Queen

[2019] NZHC 1266

ORDER PROHIBITING PUBLICATION OF NAME, ADDRESS OR IDENTIFYING PARTICULARS OF APPLICANT UNTIL THE FINAL DISPOSITION OF TRIAL.

ORDER PROHIBITING PUBLICATION OF THE JUDGMENT AND ANY PART OF THE PROCEEDINGS (EXCEPT THE RESULT AS SET OUT IN PARA [7]) IN NEWS MEDIA OR ON THE INTERNET OR OTHER PUBLICLY AVAILABLE DATABASE UNTIL FINAL DISPOSITION OF TRIAL

PUBLICATION IN LAW REPORT OR LAW DIGEST PERMITTED.

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2019-092-3146

[2019] NZHC 1266

BETWEEN

P

Applicant

AND

CROWN

Respondent

Hearing:

6 June 2019

Counsel:

T Saseve for Applicant

Y Yelavich for Respondent

Judgment:

6 June 2019

ORAL JUDGMENT OF WHATA J

Solicitors:           Kayes Fletcher Walker, Manukau

P v CROWN [2019] NZHC 1266 [6 June 2019]

[1]                 P faces one charge of murder. He allegedly shot the victim in the context of a previous incident involving a gang called the Red Army. As noted by the Crown, the principal ground advanced is the safety of the defendant and his family. The Crown takes a neutral stance on the application.

[2]I am satisfied suppression should be continued for now.

[3]                 The relevant test for present purposes is whether publication of the defendant’s name is likely to lead to extreme hardship to the defendant or his family.1 Extreme connotes a very high level of hardship. If I am satisfied about this, I must consider whether the harm likely to be caused outweighs the public interest in open justice. 2

[4]                 P has six siblings aged between 6 and 23. He also has a one-year-old daughter. One of P’s brothers lives in Auckland with his family, including P’s father. Other family members, including P’s mother and his younger siblings, are planning to return from overseas soon.

[5]                 The Red Army are a South Auckland gang. It appears common ground that the victim was a member of the Red Army and was seen in red on the night of the shooting. According to P, there was earlier in the year, a road rage incident that involved P and members of the Red Army. There was a fight. They later found out where he lived and came to P’s address and trashed his property. There were further threats and two further incidents. P is currently housed in directed protected custody, but has overheard through his cell wall people talking about him, it appears, not knowing they were talking about P. There is also evidence that the family has already been targeted for drive-by intimidation.

[6]                 Given this background, which is not presently challenged by the Crown, I consider that there is a real risk to P’s family of serious vigilante harm if his name is published and media attention given to him and his family. Does this, however, qualify as “likely”? In truth, the probability of such an act of vigilantsim occurring is difficult to quantify, but the scale of the potential harm could well be very extreme.

1      Criminal Procedure Act 2011, s 200. See also Robertson v Police [2015] NZCA 7.

2      Robertson v Police, above n 1 at [10].

Regrettably, that type of gang revenge harm is not as rare as we would hope. I also agree that publication could excite a vigilante response. Given this, to my mind, the extreme nature of the potential harm must bear on the assessment of “likely”. I am satisfied therefore that publication of P’s name is likely to cause extreme hardship.3 I am also satisfied that, given these circumstances, the need for suppression outweighs the public interest in open justice.

[7]                 Accordingly, I extend interim suppression through to trial. The need for suppression should be reviewed then. The demands for open justice, and the separation in time between the alleged incident and trial, may alter the balance in favour of open justice. Leave is also granted to the Crown to seek to have suppression set aside if it considers a proper basis can be established for doing so.

3      The threshold would also have been reached had I applied a similar test as to whether publication is likely to endanger the safety of any person under s 200(2)(e).