R v D - [2014] NZHC 2233

ORDER PROHIBITING PUBLICATION OF NAME(S), ADDRES(ES), OCCUPATION(S) OR IDENTIFYING PARTICULARS OF DEFENDANT PURSUANT TO S 200 CRIMINAL PROCEDURE ACT 2011.

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2013-092-9367 [2014] NZHC 2233

THE QUEEN

v

D

Hearing: 15 September 2014

Appearances:

W Cathcart for the Crown
J J Corby for the prisoner

Judgment:

16 September 2014

JUDGMENT OF ELLIS J

(Name suppression and media applications)

This judgment was delivered by me on 16 September 2014 at 9.30 am pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date:………………………….

Counsel/Solicitors:
W Cathcart, Meredith Connell, Auckland
J J Corby, Barrister, Auckland

R v D [2014] NZHC 2233 [16 September 2014]

[1] D is about to be sentenced, having pleaded guilty to (inter alia) the murder of her father-in-law. It goes without saying (but I say it anyway) that her offending is of the most serious kind.

[2] An interim suppression order was made by Brewer J on 11 September 2013.1

That order was renewed by Venning J on 30 July 2014. Media requests to access the Court file were also declined by Lang J on 24 July and 7 August 2014. All of those decisions were made on the basis of the medical evidence before the Court about D’s fragile mental state.

[3] D now seeks a permanent suppression order, on mental health grounds. She relies on a lengthy psychiatric report by Dr Mhairi Duff which concludes that publication of her name would create a significant suicide risk. I will set out Dr Duff’s views later in this judgment.

[4] D also necessarily opposes a further application by members of the accredited media to take still photographs of her during her sentencing.

The law

[5] The starting point is the principle of open justice. In considering whether or not to make an order forbidding publication of the identity of a defendant, the courts have consistently emphasised the presumption in favour of openness in reporting. In R v Liddell the Court of Appeal stated:2

… 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.

[6] This principle of openness reflects the “public interest in knowing about all

aspects of the operation of the justice system.” 3

1      R v D [2013] NZHC 2373.
2      R v Liddell [1995] 1 NZLR 538 (CA) at 546.
3      EPL v Police HC Auckland CRI-2010-404-76, 22 April 2010 at [37].

[7] Publication also contains an element of punishment and deterrence, and may protect the public from further offending or encourage other victims to come forward. It can also prevent suspicion falling unjustly on others.

[8] This is the context within which s 200 of the Criminal Procedure Act 2011 falls to be considered. That section relevantly provides:

(1) A court may make an order forbidding publication of the name, address, or occupation of a person who…

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 D

Details

AGLC: R v D [2014] NZHC 2233
Case: [2014] NZHC 2233
Decision Date: 16 September 2014

CaseChat Overview and Summary

In the case of R v D, the defendant was about to be sentenced for the murder of her father-in-law. D had pleaded guilty to the charge, and the case raised serious issues of mental health and name suppression. D sought a permanent suppression order on mental health grounds, arguing that publication of her name would create a significant suicide risk. The court had to balance the principle of open justice against the risk to D's mental health and safety. The legal issues involved the interpretation of section 200 of the Criminal Procedure Act 2011, which allows a court to forbid the publication of a defendant's name under certain conditions.

The court considered the medical evidence, which highlighted D's history of sexual abuse and post-traumatic stress disorder (PTSD). Dr. Mhairi Duff, a qualified psychiatrist, concluded that publication of D's name would create a significant suicide risk, as D had previously attempted suicide when confronted with her past trauma. The court also had to consider the views of D's victims, who were family members, and their position on the name suppression application. The court ultimately concluded that the risk of suicide and the potential for D to be confronted with her past trauma outweighed the principle of open justice. Therefore, the court granted a permanent suppression order for D's name and any matter that might serve to identify her. The court also declined applications by media organizations to take photographs of D at the sentencing.

The reasoning of the court was based on the high threshold for extreme hardship and the need to protect D's safety. The court found that the risk of suicide, coupled with the publication of D's history of sexual abuse, constituted extreme hardship. Additionally, the court was satisfied that the risk of suicide posed by publication was significant and difficult for prison authorities to manage. The court also noted that D would be in prison for a considerable time, reducing the risk of reoffending and the need for the public to be aware of her identity. The court's decision was in line with the principles of open justice and the purpose of sentencing, which aimed to provide a fair and accurate picture of the defendant's circumstances.

Orders