Purutanga v The the King
[2022] NZHC 2616
•11 October 2022
SUPPRESSION ORDERS EXIST: SEE [20] IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY
I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE
CRI-2020-019-6696
[2022] NZHC 2616
BETWEEN CORY PURUTANGA
Applicant
AND
THE KING
Respondent
Hearing: 7 October 2022 (further memoranda received 10 October 2022) Appearances:
K Burroughs for Applicant
J N Hamilton for Respondent
Judgment:
11 October 2022
JUDGMENT OF LANG J
[on application for name suppression]
This judgment was delivered by me on 11 October 2022 at 3.30 pm.
Registrar/Deputy Registrar Date……………
Solicitors:
Crown Solicitor, Hamilton
PURUTANGA v THE KING [2022] NZHC 2616 [11 October 2022]
[1] Mr Purutanga pleaded guilty to the murder of his partner and the mother of their four children. On 31 August 2022, Moore J sentenced Mr Purutanga to life imprisonment.1 The Judge also ordered Mr Purutanga to serve a minimum term of 17 years imprisonment before being eligible to apply for parole.
[2] Mr Purutanga now seeks name suppression. He does so on the basis that his children will suffer extreme hardship if his name is published.
Jurisdiction
[3] Suppression in this context is governed by s 200 of the Criminal Procedure Act 2011 (the Act), which relevantly provides as follows:
200 Court may suppress identity of defendant
(1) A court may make an order forbidding publication of the name, address, or occupation of a person who is charged with, or convicted or acquitted 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—
(a) cause extreme hardship to the person charged with, or convicted of, or acquitted of the offence, or any person connected with that person; or
(b) cast suspicion on another person that may cause undue hardship to that person; or
(c) cause undue hardship to any victim of the offence; or
(d) create a real risk of prejudice to a fair trial; or
(e) endanger the safety of any person; or
(f) lead to the identification of another person whose name is suppressed by order or by law; or
(g) prejudice the maintenance of the law, including the prevention, investigation, and detection of offences; or
(h) prejudice the security or defence of New Zealand.
…
1 R v P [2022] NZHC 2197.
[4] It is now well established that an application for suppression must be determined on a two-stage basis.2 First, the Court must determine whether any of the threshold requirements set out in s 200(2) or 202(2) have been made out. If that is the case, the Court must go on to consider how it should exercise its discretion by balancing the identified threshold interests against the need for transparency in criminal proceedings.3
[5] Extreme hardship is a very high threshold. It requires a degree of hardship well beyond that which normally follows as a consequence of the publication of an offender’s name.4
[6] Ms Hamilton for the Crown suggested it may also be possible to deal with the application under s 200(2)(c) of the Act, which permits the Court to make an order for suppression where publication would cause undue hardship for the victims of offending. She advanced this submission on the basis that s 2 of the Act defines “victim” as having the meaning given to it in s 4 of the Victims’ Rights Act 2002 (the VRA).
[7]Section 4 of the VRA defines “victim” as follows:
victim —
(a)means—
(i)a person against whom an offence is committed by another person; and
(ii)a person who, through, or by means of, an offence committed by another person, suffers physical injury, or loss of, or damage to, property; and
(iii)a parent or legal guardian of a child, or of a young person, who falls within subparagraph (i) or subparagraph (ii), unless that parent or guardian is charged with the commission of, or convicted or found guilty of, or pleads guilty to, the offence concerned; and
(iv)a member of the immediate family of a person who, as a result of an offence committed by another person, dies or is incapable,
2 Fagan v Serious Fraud Office [2013] NZCA 367 at [9].
3 R v Liddell [1995] 1 NZLR 538 (CA) at 546.
4 DP (CA418/2015) v R [2015] NZCA 476 at [6]; Robertson v Police [2015] NZCA 476 at [6] and
L v R [2020] NZCA 604 at [13].
unless that member is charged with the commission of, or convicted or found guilty of, or pleads guilty to, the offence concerned; and
(b)for the purposes only of sections 7 and 8, includes—
(i)a person who, through, or by means of, an offence committed by another person, suffers any form of emotional harm; and
(ii)a parent or legal guardian of a child, or of a young person, who falls within subparagraph (i), unless that parent or guardian is charged with the commission of, or convicted or found guilty of, or pleads guilty to, the offence concerned; and
(iii)a person who has experienced family violence; and
(iv)a child or young person residing with a person who falls within subparagraph (iii); and
(c)despite paragraphs (a) and (b), if an offence is committed by a person, does not include another person charged (whether as a principal or party or accessory after the fact or otherwise) with the commission of, or convicted or found guilty of, or who pleads guilty to,—
(i)that offence; or
(ii)an offence relating to the same incident or series of incidents as that crime or offence
[8]The VRA then defines “immediate family” as follows:
immediate family, in relation to a victim,—
(a)means a member of the victim's family, whanau, or other culturally recognised family group, who is in a close relationship with the victim at the time of the offence; and
(b)to avoid doubt, includes a person who is—
(i)the victim's spouse, civil union partner, or de facto partner; or
(ii)the victim's child or step-child; or
(iii)the victim's brother or sister or step-brother or step-sister; or
(iv)a parent or step-parent of the victim; or
(v)a grandparent of the victim.
[9] I accept the Crown’s submission that suppression can also be considered under s 200(2)(c) because, although the issue does not appear to have been the subject of any detailed consideration, there have been cases in which the courts have proceeded on the basis that suppression under s 200(2)(c) is potentially available for children of victims of offending.5
The application for suppression
[10] On Mr Purutanga’s behalf Mr Burroughs relies on a report he has obtained from a clinical psychologist who has interviewed the applicant’s four children. They are aged between two and 14 years and currently live with members of Mr Purutanga’s family. Mr Purutanga’s surname is said to be rare, and the psychologist expresses concerns about the likely effect of publication on the children’s welfare.
[11] The psychologist notes that up until their mother’s death the children lived in an unstable environment where they were exposed to family violence and parental substance abuse. Not surprisingly, the elder three children are most affected by this. The psychologist also reports that the children’s environment in the past has been “non-affirming, neglectful and abusive as their emotional needs were not met at home”. Their significant adverse childhood experiences have now been added to by the fact that they have lost their mother and their father will be in prison for a very considerable period.
[12] The psychologist suggests that this is likely to lower the children’s physical and mental health, and their social and learning outcomes. For that reason she says it is imperative that the children are now given as many opportunities as possible to heal and build resilience. It is important that they have ongoing engagement with therapy and counselling. This will need to be normalised so the children have no barriers to it.
[13]On the issue of name suppression the psychologist observes:
46. It is considered that the lifting of name suppression will have a negative impact on the children in terms of adding to their psychological
5 Stuff Ltd v R [2021] NZCA 86 at [25] (although in this case the child was herself a direct victim of offending); R v JD [2021] NZHC 994.
burden. It will increase the number of issues the children are navigating. This may also affect their social relationships and impact their future prospects. As already discussed, their family name is not a common one and therefore does not provide any room for privacy or anonymity. This will result in the children’s greatest fear becoming real, i.e., having to discuss their traumatic childhood with strangers and be judged by people outside their circle of trust.
47. For [the oldest child] who seems to be seeking a more prosocial identity, the impact may be an increase in his vulnerability to become a gang prospect due to his new notoriety. [He] may withdraw further into himself and risk the development of mental ill health (anxiety/depression).
48. While there are people who already know about the family’s tragic story, it is possible that through natural progression the family has had and will have opportunities to move from their circles. For example [redacted] and [redacted] have already benefitted from changing schools. However, should name suppression be removed the children’s story will likely to be more in the public domain limiting their future ability to distance themselves from it. Moreover, it is considered that their future may also be impacted on their vocational choices and later adult experiences may be overshadowed by events in their childhood.
[14] The whanau of Mr Purutanga’s deceased partner are strongly opposed to name suppression being granted. They have been devastated by the loss of a daughter, sister, niece and cousin. They seek to have a voice both to honour and mourn the loss of their loved one. They believe Mr Purutanga and the members of his wider family are attempting to obtain suppression for their own purposes and that they are not truly concerned with the welfare of the children. They are concerned that suppression will lead to the children not being able to address the issues that surround and arise as a result of the death of their mother, and that these will become a source of shame for them in the future.
Decision
[15] It is not surprising that the children’s background and recent experiences have had a significant impact upon them. This is often the case in households where alcohol and drug abuse is the norm and where physical violence between parents is also a feature. The death of their mother and the fact that their father has now been convicted of murdering her will be an additional burden the children will need to bear. However, this type of consequence often follows when a parent has been convicted of serious offending. As Collins J noted in Wilson v R:6
6 Wilson v R [2018] NZHC 1778 at [33].
Sadly, it is likely that [the applicant’s] children will be victimised in some way because of their father’s offending and that they will suffer distress and anxiety. It is most unfortunate that [the applicant’s] children will be the victims of his offending. The distress and concerns that [the applicant’s] children are likely to suffer, however, fall well short of the threshold of extreme hardship set out in s 200(2)(a) of the Act.
[16] In the present case I have considerable sympathy for the position in which the children find themselves through no fault of their own. However, I do not consider the information contained in the psychologist’s report demonstrates that they are likely to suffer extreme or undue hardship if their father’s name is published. Such hardship as they have suffered to date, and may suffer once publication occurs, is the product of their family environment and the fact that their father killed their mother. Those issues will require considerable resources to address, but this flows from matters unrelated to the issue of publication of their father’s name.
[17] Furthermore, most of the publicity about Mr Purutanga’s offending has now occurred. The order for interim suppression has remained in force during this period and the children have thus far been shielded from it. There may be a brief flurry of further publicity once this judgment is delivered, but this is likely to recede very quickly. I therefore see little risk of the children suffering significant additional hardship if suppression is lifted at this point. It is also heartening to note that they are now being cared for in stable family environments.
[18] It follows that Mr Purutanga has not established the necessary threshold under either s 200(2)(a) or (c) to enable the Court making an order for suppression of his name.
Result
[19]The application is dismissed.
[20] Those who are now caring for the children will obviously need time to prepare them for the fact that their father’s name is about to be published. The existing interim
order suppressing Mr Purutanga’s name and identifying particulars from publication is therefore to remain in force until midnight on 16 October 2022.
Lang J