R v CD

[2024] NZHC 52

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 s 200.3

(a)First, the Court must decide whether publication would be likely to meet the relevant threshold. The term “likely” has been held to mean a “a real and appreciable possibility”.4 Hardship is “undue” when it “is greater than that which will inevitably follow publication” and “requires a comparison between hardship the applicant claims will result from publication in the particular case and the normal consequences that follow publication”.5 In Robertson v Police the Court of Appeal stated:6

The word “hardship” on its own means “severe suffering or privation”. The addition of the qualifier ‘undue’ in s 200(2)(c) indicates that something more than hardship simple is required.

(b)Second, the Court must assess whether or not the presumption of open justice should yield to suppression. The balance must clearly favour suppression.7 The relevant considerations include:8

… the principle of open justice, the public interest in knowing the defendant’s character and identity, the right to freedom of expression, the age of the applicant, the likely impact of publication on prospects of rehabilitation, any other personal circumstances, and the interests of victims and other affected persons.

2      Lewis v Wilson & Horton Ltd [2000] 3 NZLR 546 (CA) at [41] citing R v Liddell [1995] 1 NZLR 538 (CA) at 546–547. Lewis v  Wilson &  Horton Ltd was recently  cited with  approval  in     H (CA361/2021) v R [2021] NZCA 481 at [11]–[12].

3      Fagan v Serious Fraud Office [2013] NZCA 367 at [9]; and D (CA443/2015) v Police [2015] NZCA 541, (2015) 27 CRNZ 614 at [10]–[12].

4      Stuff Ltd v R [2021] NZCA 86, (2021) 29 CRNZ 658 citing W (CA639/2016) v R [2017] NZCA

580 at [18].

5      Parker v R [2019] NZCA 350 [Parker No 1] at [10]. This statement of the legal principles was further upheld by the Court of Appeal in Parker v R [2020] NZCA 502, (2020) 29 CRNZ 536 [Parker No 2] at [15] (leave to appeal to the Supreme Court was declined in Parker v R [2021] NZSC 20).

6      Robertson v Police [2015] NZCA 7 at [48]. 7 H (CA361/2021) v R, above n 2, at [14(b)]. 8 At [14(b)].

[5]       Section 5 of the CPA and s 4 of the Victims Rights Act 2002 provide, relevantly, that “victim” means “a member of the immediate family of a person who, as a result of an offence committed by another person, dies …”. It is not disputed that the definition extends to the children of the defendant and the deceased. In DP (CA418/2015) v R, in relation to a child offender granted name suppression on the basis of “extreme” hardship, the Court of Appeal stated:9

[10] … When dealing with a child charged with a criminal offence, a Court must recognise the United Nations Convention on the Rights of the Child (UNCROC) … Thus, in all respects concerning children, including publication of name, the child's best interests shall be a primary consideration

…

[23] … To that we must add Ms Markham's proper acknowledgement that a young person is likely to suffer a greater degree of hardship than an adult because they lack the requisite maturity to deal with the attendant publicity. Once this scale is engaged, the question becomes whether and where along the spectrum the degree of likely hardship arising from name publication reaches the requisite level of extremity …

[6]The same considerations apply to child victims.10

Submissions

[7]       Ms Scott, for the defendant, submits that publication of the defendant’s name would be likely to cause undue and irreversible hardship to the children at this time. Based on an expert report by clinical psychologist Ms Rachel Booker, the trauma and difficulties they have already faced, due to violence between their parents and the alleged offending, are likely to be compounded by publication of the defendant’s name. The children’s access to social media and the reality of online visibility contributes to this hardship. The case is similar to another, R v M, where name suppression was granted to the child of a defendant’s daughter.11 The Court’s discretion should be exercised in favour of suppression. She does not accept we can rely on fair reporting by the media and social media is not required to be fair.

[8]       Ms Jamieson, for the Crown, accepts the best interests of the children are the primary consideration and younger people are likely to suffer greater degrees of

9      DP (CA418/2015) v R [2015] NZCA 476, [2016] 2 NZLR 306, at [10].

10     R v M [2018] NZHC 2212 at [21].

11     R v M, above n 10.

hardship due to their emotional maturity. And she says the Crown has considerable sympathy for the position the children are in. But Ms Jamieson submits the test for undue hardship is not met. Distress and embarrassment are usual consequences of criminal proceedings. The effects claimed by Ms Booker are speculative and the product of the violent family environment and the alleged offending, not publication of the defendant’s name. That is similar to a case where application for permanent name suppression of the children of a murder victim was declined, P v R.12 R v M is not a useful comparator because the child had serious mental health issues directly related to publication. If there are concerns for the children here, counselling could be put in place for the children before suppression is lifted.

Should interim name suppression be granted?

[9]       The expert evidence of Ms Booker is that the defendant’s children are at risk of psychological and behavioural challenges as a result of the domestic violence between the defendant and the deceased during their childhoods. The additional trauma of their father’s death as a result of intimate partner violence, and the potential criminal penalty for their mother, increases their risk of psychological difficulties. Ms Booker’s opinion is that publication of the defendant’s name, as the children’s only living parent, puts the children “at risk of significant social impacts”. Children of domestic homicide have been found to suffer risks of ostracism from their communities, bullying by peers, and judgement by other adults and the general public. In Ms Booker’s opinion, identification of the defendant in the media is likely to affect the way in which the children perceive both their mother and their father. Research suggests the defendant, as a Māori woman accused of homicide in a domestic context, is more likely to be portrayed negatively in the media. Ms Booker states:

In conclusion, it is my professional opinion that removing name suppression from [the defendant] will place her children at higher risk of psychological and behavioural issues, increase their risk of discrimination, affect their social affiliations and sense of community belonging, as well as potentially impact future prospects. The circumstances already place them at risk of harm and removing [the defendant’s] name suppression exacerbates that harm.

12     P v R [2022] NZHC 2616 at [15]–[18].

[10]     The defendant’s evidence is that the children are struggling with the loss of their father and the possibility of her going to prison, are displaying anger and symptoms of trauma and anxiety, are beginning to isolate themselves, and have difficulty coping. She is worried that will all get worse if her name is published. She has been threatened herself and she worries they will be too.

[11]     The evidence, particularly Ms Booker’s expert opinion, is appreciably more than speculation. As the Court of Appeal stated in X v R:13

[52]     … the potential hardship caused by the pernicious, judgemental, exponential, indelible, and often ill-informed publication on social media platforms is of a quite different magnitude. Public shaming of this or any kind forms no part of our criminal justice system. It is not the object of open justice. It serves no useful rehabilitative or other social purpose. Its object is humiliation and degradation.

[53]  As we have said, young people are particularly vulnerable in this regard. That vulnerability is no doubt psychological, but it has both practical and temporal aspects, too. The temporal aspect is simply that, by — potentially for the remainder of the young person's life. The practical aspect is that the only way a person can protect or shield him or herself from ongoing exposure to online shaming is to go, themselves, offline. And as Danielle Citron has noted:

When individuals go offline or assume pseudonyms to avoid bigoted cyber attacks, they miss innumerable economic and social opportunities. They suffer feelings of shame and isolation. Cyber mobs effectively deny people the right to participate in online life as equals.

[54]  So we think that, in a case such as the present, it is time to recognise these realities. In our view such recognition can play out both in the assessment of whether hardship will, in any given case, be “extreme” and in the ultimate weighing exercise required in the exercise of discretion.

[12]     The evidence here satisfies me that there is a real and appreciable risk that the defendant’s children will suffer from exacerbated psychological and behaviour issues, particularly anxiety, and be subject to negative social isolation. While, of course, there they suffer from such issues already due to the offending, I accept that publication of the defendant’s name will materially exacerbate the effects. The Court of Appeal has held that publication of a parent’s name is likely to identify their child even if they do not share the same name.14 The vulnerability of children of these ages means that I

13     X v R [2020] NZCA 387, (2020) 30 CRNZ 296.

14     Stuff Ltd v R, above n 4, at [20].

am satisfied it is likely the hardship they will suffer will be undue — greater than that which will inevitably follow publication.

[13]     That is particularly so at this stage of the proceedings, before their mother’s trial and six months after their father’s death. The evidence suggests that publication of the defendant’s name while the children are still experiencing and dealing with this trauma has the potential to throw their life trajectory off course, as in R v M.15 I do not consider the case if P v R is particularly helpful for the Crown because it relates to an application for permanent name suppression after conviction and sentence of the offender.16 Before conviction, the applicant had been granted interim name suppression.17 That is the application here. As the Court of Appeal has said, it is less onerous to displace the presumption of openness pre-trial than after conviction, due to the presumption of innocence (as well as the need to avoid the risk of prejudice to a fair trial).18

[14]     I consider the Court’s discretion should be exercised accordingly. While the alleged offending is clearly serious, the defendant is presumed innocent and has yet to be tried. Publication of her name at this stage is likely to cause the children undue hardship. There is no suggestion the defendant is a threat to the public or that there are other victims, so the public interest in knowing her identity is lesser than it would be otherwise. As Ellis J noted in another case known as R v M, it is very rare when, having found one of the s 200(2) thresholds are met, the Court does not exercise its discretion in favour of suppression when the defendant is still entitled to the presumption of innocence.19 The views of the deceased’s whānau are understandable but are not determinative and do not override the best interests of the children. Neither does the presumption in favour of open justice, which is displaced here until the trial.

15     R v M, above n 10, at [23].

16     P v R, above n 12, at [1]–[2].

17     See R v P [2022] NZHC 2197 at fn 1.

18     M (CA762/2012) v R [2013] NZCA 113 at [29].

19     R v M [2021] NZHC 2201 at [18].

Result

[15]     I suppress the defendant’s name 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.

Palmer J