[1] AB faces a manslaughter charge (jointly with BC), and four charges of assault with intent to injure. She has not previously appeared before the Court, let alone been convicted of any offence. She has interim name suppression.
[2] AB has, in relation to this Court’s determination of those charges, a minimum right “to be presumed innocent until proved guilty according to law”.1 That right, so critical to the rule of law,2 appears to have escaped the court of public opinion, at least so far as it is convened on social media. There, AB is object of and subject to sometimes anonymous or pseudonymous vituperative comment and threat, much predicated on her assumed guilt of (or at least accountability for) the charges.
[3] AB perceives such commentary presently is constrained by her name suppression order. She seeks renewed interim name suppression for herself and, by association, her parents and their businesses, on grounds of ‘extreme hardship’.3 The latter separately seek interim name suppression as being connected to AB, on the lesser ‘undue hardship’ grounds.4 By ‘interim’ is meant ‘until trial’, when considerations of open justice may have heavier import, as her counsel’s claim for “pre-trial name suppression” recognises.
Background
[4] The charges arise from downtown Auckland incidents occurring in the early mornings of Friday, 22 April 2022, and Sunday, 24 April 2022, the latter leading to CD’s death. I extend the Court’s condolences to CD’s survivors. AB, BC and CD appear to have been known to each other, and moved in common or similar social circles, including online. AB is 18 years old, as I am told is BC and was CD.
[5] Within two or three hours of the 24 April 2022 incident, AB received Facebook Messenger messages from an apparently identifiable account, saying:
You little ugly bitch and your fuck head little boyfriend. Have fun going to jail bro cause you’re definitely getting charged
And jail people love little white whack bitches like u
Hope you also know that he’s probably not going to live either. Hes in a coma and his heart has stopped twice. So if…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
R v AB [2022] NZHC 1339
Case
[2022] NZHC 1339
Decision Date
CaseChat Overview and Summary
AB has been charged with manslaughter and assault with intent to injure, and is awaiting trial. She seeks renewed interim name suppression, as does her parents and their businesses. The court was required to determine whether the requisite threshold for suppression was met, and if so, whether suppression was in the public interest. The court found that the social media commentary, while regrettably normal and ordinary, did not reach the threshold of extreme hardship. The court emphasised the importance of open justice and the right to freedom of expression, and noted that suppression does not make the defendant's identity secret, but only prohibits publication in the context of any report or account relating to the proceeding. The court also noted that the defendant's relatives and parents had already suffered fear, loss and pain from the social media commentary, but that this was not caused by publication of accounts and reports relating to the proceeding. The court declined AB’s application for renewed interim name suppression, and forbade publication of her name until the later of either expiry of the period within which to appeal the decision, or determination of any such appeal.