R v Chakanyuka HC Auckland CRI 2008-092-16723

[2009] NZHC 2595

ORDER PROHIBITING PUBLICATION OF NAMES OR IDENTIFYING PARTICULARS OF THE PARTIES AND THE CHILDREN.

FURTHER SUPPRESSION ORDERS ARE AT [8] OF THIS JUDGMENT.

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2008-092-016723

THE QUEEN

v

ARTWELL CHAKANYUKA

Hearing:         16 December 2009

Appearances: A R Burns for the Crown

J C Down for the Prisoner

Judgment:      16 December 2009

JUDGMENT (NO 2) OF DUFFY J

This judgment was delivered by Justice Duffy on 16 December 2009 at 4.30 pm, pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar
Date:

Solicitors:    Meredith Connell P O Box 2213 Shortland Street Auckland 1140 for the Crown Public Defence Service P O Box 90243 Victoria Street West Auckland 1142 for the Prisoner

Copy To:    L van der Stoep (Deputy Chief Reporter, Sunday Star-Times) P O Box 1327

Auckland 1140

R V CHAKANYUKA HC AK CRI-2008-092-016723  16 December 2009

[1]      This  judgment  should  be  read  in  conjunction  with  my  judgment  of

2 December  2009,  which  sets  out  the  circumstances  which  caused  me  to  grant temporary name suppression to Mr Chakanyuka.

[2]      In accordance with the directions made in that judgment, the Crown and Mr Chakanyuka have filed memoranda which have provided me with additional information to help me to form a view on the appropriateness of name suppression in this case.

[3]      The Crown has also provided a report from the officer in charge of the case. He has visited the victim and obtained her views on name suppression.   Since Mr Chakanyuka’s last appearance in Court, his offending has come to the attention of the media and there has been some publicity about it.  Having seen the effect of this attention, the victim is now most concerned about the impact any publication of Mr Chakanyuka’s identity will have on her and her children, especially their child, who bears his surname.   The victim does not want any publication of information that would lead to her and her children being identified.

[4]      The    Crown,    in   taking   a    neutral    stance    towards    suppression    of Mr Chakanyuka’s name, has realised the strong tension this case presents between the presumption of open justice on the one hand, and the need to protect the privacy concerns of the victim and her children.  The latter concerns are grounded not only in the victim’s sensitivities, but also in the fact that the HIV virus carries a social stigma, particularly in the ethnic community to which the victim belongs.

[5]      There   is   an   additional   factor   to   be   taken   into   account.      It   seems Mr Chakanyuka may have engaged in sexual relations with other women, and they may be unaware of the risk this has entailed for their health.  Publication of his name might result in those women realising their own exposure to the HIV virus.  When it comes to determining whether or not there should be permanent suppression of Mr Chakanyuka’s  name,  the  competing  factors  to  be  weighed  in  exercising  the discretionary power to grant name suppression are open justice and protection of potential victims, on the one hand, against serious intrusion on the privacy of the victim and her children, on the other.

[6]      Neither Crown counsel nor Mr Chakanyuka’s counsel are able to act in the fullest sense that entails for the victim.  There is the potential for conflicts of interest for both counsel.

[7]      The issues the competing factors raise in this case are so important that I consider there should be counsel appointed as amicus curiae to assist the Court, both in relation to the law and relevant policy issues, as well as to bring to the Court’s attention any relevant factual matters that may help the Court to determine the potential harm that may result from the outcome it directs.

[8]      To preserve the position in the meantime, I direct that the name suppression orders, as well as the orders relating to access to the Court file, that I made in the judgment of 2 December 2009 are to remain in place until 3 February 2010.  This is the date when Mr Chakanyuka is to be sentenced.

[9]      Given the way in which the name suppression issues have developed, counsel are of the view that a half day fixture will be necessary to determine if permanent name suppression should be ordered.   Within that issue is the ancillary issue of access to the Court file.   If time is available for a half day fixture on 3 February

2010, the name suppression hearing will proceed on that day as well.   If not, the Registry is to allocate a date for the name suppression hearing at the earliest opportunity.  This is a case where there is no necessity for the sentencing and the name suppression hearings to take place on the same day.   Each hearing raises separate issues for determination.  At the same time, it is important that the question of permanent name suppression is determined at the earliest opportunity.

[10]     A copy of this judgment is to be provided to the media.  Any media entity that wants to be heard at the name suppression hearing is to notify the Registry by no later than 5.00 pm on 11 January 2010.

[11]     The  Registrar  is  to  commence  the  process  for  an  appointment  of  an amicus curiae.   This should be done forthwith, given that it is now close to the Christmas vacation.

[12]     Any submissions supporting name suppression of Mr Chakanyuka should be filed and served no later than 5.00 pm on 18 January 2010.   Any submissions opposing name suppression are to be filed and served by no later than 5.00 pm on

25 January 2010.  Any submissions in reply are to be filed and served by no later than 5.00 pm on 29 January 2010.

[13]     Leave is reserved to the parties to come back to Court on 24 hours notice on any issue arising from this judgment and the directions made therein.

Duffy J