R v C HC Ak Cri-2008-092-16723
[2010] NZHC 170
•16 February 2010
This case has been anonymized
SUPPRESSION ORDERS EXIST IN RELATION TO ASPECTS OF THIS JUDGMENT: SEE PARAGRAPH [10]
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2008-092-016723
THE QUEEN
v
C
Hearing: 24 November 2009 and 3 February 2010
Appearances: A R Burns and S C M Waalkens for the Crown
L Hughes for the Prisoner
L B Cordwell (Amicus Curiae) for the Prisoner's Wife
Judgment: 16 February 2010
JUDGMENT OF DUFFY J
[Re Application for Name Suppression]
This judgment was delivered by Justice Duffy on 16 February 2010 at 12.00 pm, pursuant to r 11.5 of the High Court Rules
Registrar/Deputy Registrar
Date:
Counsel: L B Cordwell (Amicus Curiae) P O Box 210 Shortland Street Auckland 1140 for the Prisoner’s Wife
Solicitors: Meredith Connell P O Box 2213 Shortland Street Auckland 1140 for the Crown Public Defence Service P O Box 76715 Manukau City Manukau 2241 for the Prisoner
R V C HC AK CRI-2008-092-016723 16 February 2010
[1] On 2 December 2009, I made temporary orders suprressing the name and any other identifying details of Mr C . I did so to protect the privacy of his wife (the victim) and two children (one a biological child who carries his name and the other a stepchild who has another surname). As a result of Mr C ’s criminal actions, the victim has been infected with the Human Immunodeficiancy Virus (HIV). Consequently, publication of details allowing the identification of Mr C is likely to lead to the general public also learning that the victim has HIV. Anyone who knows of her relationship with Mr C will now know she has HIV. She does not use Mr C ’s name, but the child they have together does. Through this means, acquaintances they make will come to know of the victim’s ill-health. Regarding impact of publication on the children, in addition to their father’s criminal conduct becoming public knowledge, the same publication may lead to the general public being informed of their mother’s health status. Given the stigma attached to HIV, and given that many people prefer to have knowledge of their medical condition kept private, I considered that the question of permanent name suppression for Mr C needed to be thoroughly considered.
[2] Mr Cordwell was appointed as amicus curiae. He has interviewed the victim and provided the Court with affidavit evidence supporting permanent suppression of Mr C ’s identifying details. The affidavit provides compelling evidence of the fear the victim has of public disclosure of her health condition. This is both in terms of the impact on her, and on her children. Her strong desire for suppression of any information that could lead to her identification is evident. Mr Cordwell has also provided helpful submissions which set out the grounds on which permanent suppression orders could be made.
[3] Mr C seeks the making of permanent suppression orders. He has responsibly recognised that he has no basis for seeking permanent suppression. However, he recognises the harm to his wife and children that will follow publication of his identity and so on that ground, the orders are sought. He relies on the submissions of Mr Cordwell.
[4] The Crown, which previously had adopted a neutral stance, now strongly opposes permanent suppression orders. The Crown relies on the general and well established principle of the presumption of open justice, as well as the particular public interest in this case warranting publication of Mr C ’s identifying details. There is uncontested evidence that Mr C has engaged in sexual relations with other women. The Crown is concerned that there is nothing which reliably shows Mr C to have advised those women of his HIV status, or to have practised safe sexual relations with them. Consequently, their health and safety is at risk. Furthermore, the health and safety of any of their existing or potential sexual partners is also at risk. For this reason alone, the Crown says that this is a case that warrants public identification of Mr C .
[5] There is a strong presumption in favour of openness. The grant of a suppression order is an exception to the general rule that the community is entitled to know the identity of persons coming before the courts. The court’s discretionary authority to prohibit publication is to be exercised sparingly. The Court of Appeal in R v Liddell [1995] 1 NZLR 538 said at 546:
… the starting point must always be the importance in a democracy of freedom of speech, open judicial proceedings, and the right of the media to report the latter fairly and accurately as "surrogates of the public".
The principle of openness expressed in Liddell has since been confirmed in R v Hart [2009] NZCA 592, Lewis v Wilson & Horton Ltd [2000] 3 NZLR 546 (CA), and Proctor v R [1997] 1 NZLR 295 (CA).
[6] However, those authorities are cases where the request for name suppression was sought by the offender on grounds largely which related to the offender. Here it is accepted by all concerned that the sole purpose for which name suppresison is sought is to spare the victim and her children from her HIV condition becoming known to the public.
[7] I have already referred to the need to strike a balance between the principle of open justice and ensuring that the privacy interests of innocent persons, who are involuntarily drawn into the scope of a criminal proceeding, are protected: see R v C HC Auckland CRI-2008-092-016723, 2 December 2009. Parliament
has recognised this tension and acted on balance to protect victims in relation to sexual offending. Had the victim in this case become infected through an act of sexual violation by Mr C , name suppression would have been automatic. Section 139 of the Criminal Justice Act 1985 Act provides that identifying details of an offender that can lead to the identification of a victim of a sexual violation are to be suppressed. There is no exemption for when the sexual offending is accompanied by the potential risk of spread of a sexually transmittable disease. This may be because the possibility of this occurrence was not immediately apparent when the legislation was drafted.
[8] In the present case, because a disease that can be sexually transmitted was transmitted to the victim in another fashion, she has no automatic statutory protection of her identity. The decision is discretionary. Had there been no issue regarding risk to other members of the community, I would have considered that the protection of the victim’s privacy interests and those of her children outweighed publication. Neither she nor her children should have to endure information about her medical condition entering the public domain. Ordinarily, I would see no public interest in, and strong public interests against having the medical details of an innocent victim being published. I consider there is a general expectation in the community that the details of an individual’s ill health are a private matter, which is only to be disclosed through the sufferer’s choice.
[9] The presumption of open justice recognises a general community interest in, and entitlement to know an offender’s identity. This is strengthened when suppression of information poses a risk to public safety. In such circumstances, the combination of the presumption of open justice, and the potential risk of other members of the community being infected with HIV as a result of Mr C ’s conduct must outweigh the privacy interests of the victim and her children.
[10] This has been a finely balanced decision. Mr Cordwell, the victim or Mr C may want to pursue an application for permanent name suppression to a higher Court. Time will be needed to take that step. I am going to leave the existing temporary name suppression in place until 5.00 pm on Tuesday,
23 February 2010. At that time, the temporary name suppression order will
automatically lapse. Any continuation of name suppression will depend on the applicant’s ability to persuade a higher Court to grant him name suppression. I will also extend the appointment of Mr Cordwell as amicus curiae until Tuesday,
23 February 2010, for the purpose of enabling him to take whatever action he may consider appropriate.
Duffy J
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