R v CD

Case [2024] NZHC 52 1 February 2024

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NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS OF DEFENDANT PROHIBITED BY S 201 OF THE CRIMINAL PROCEDURE ACT 2011. SEE

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CRI-2023-096-2395

[2024] NZHC 52

THE KING

v

CD

Hearing: 1 February 2024

Appearances:

N L Jamieson for the Crown

L A Scott and S W O Campbell for the Defendant

Judgment:

1 February 2024

JUDGMENT OF PALMER J

Solicitors/Counsel
Luke Cunningham & Clere, Wellington L A Scott, Barrister, Wellington

R v CD [2024] NZHC 52 [1 February 2024]

What happened?

[1]In an earlier decision in relation to this case, I summarised the facts as follows:1

[1] [The defendant] is charged with the murder of her partner of 19 years … after a history of suffering family violence by him. The Crown says there have been 22 family harm events at her address in the past three years, the majority of which involved [the defendant] as the victim. The Crown alleges that, about 2 pm on 22 September 2023, when their six-year-old was in the house, [the defendant] and her partner had an argument. He accused her of having an affair and punched her in the face. She went to the kitchen and took a knife and swung it once towards her partner, entering his chest. He went to the bedroom. She called 111. By the time the Police arrived, he was unconscious. He was declared dead at 2:58 pm.

[2] The defendant’s jury trial is scheduled to commence in the High Court in November 2024. Her name has been suppressed, initially with the Crown’s consent. Now, she seeks continued interim name suppression, until trial or resolution of the charges, under s 200 of the Criminal Procedure Act 2011 (the CPA). The application is on the grounds that publication of her name will cause undue hardship to her three relatively young children, who are also the children of the deceased. The Crown, and the whānau of the deceased, including two older children of the deceased, are opposed to continued name suppression.

Law of name suppression

[3]Section 200 of the CPA provides, relevantly:
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—

…

(c) cause undue hardship to any victim of the offence; or

…

1 R v [CD] [2023] NZHC 2930.

[4] The Court of Appeal has stated that “the starting point must always be the importance of freedom of speech recognised by s 14 of the New Zealand Bill of Rights Act 1990, the importance of open judicial proceedings, and the right of the media to report Court proceedings”.² There is a two-step approach to name suppression decisions under…

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.

Continue reading R v CD

Details

AGLC: R v CD [2024] NZHC 52
Case: [2024] NZHC 52
Decision Date: 1 February 2024

CaseChat Overview and Summary

In the matter of The King v CD, the defendant, who is charged with the murder of her partner following a history of family violence, seeks continued interim name suppression until her trial or the resolution of the charges. The Crown and the whānau of the deceased oppose the application. The legal issue before the court was whether publication of the defendant's name would be likely to cause undue hardship to her three young children, who are also the children of the deceased. The court found that the expert evidence provided by a clinical psychologist indicated that publication of the defendant's name would likely exacerbate the psychological and behavioural challenges the children were already facing due to the domestic violence and their father's death. The court also considered the potential for negative social isolation and the difficulties the children face in coping with their current situation. The court held that the hardship the children would suffer from publication of the defendant's name would be undue, greater than that which will inevitably follow publication. The court exercised its discretion in favour of suppression, noting the importance of the best interests of the children and the presumption of innocence enjoyed by the defendant.

The final orders of the court were that the defendant's name is suppressed until the beginning of her trial or resolution of the proceedings. The judge dealing with either of those events can decide on whether suppression should continue.

Orders