R v Gebhardt
[2022] NZHC 1914
•3 August 2022
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CRI-2019-009-011852
[2022] NZHC 1914
THE QUEEN v
NIKLAS GEBHARDT
Hearing: 3 August 2022 Appearances:
M N Zarifeh and A M Harvey for the Crown A M McCormick for the Defendant
M van Beynen in person on behalf of Stuff Media
Judgment:
3 August 2022
ORAL JUDGMENT OF DOOGUE J
(Suppression)
Introduction
[1] Mr Gebhardt was sentenced this morning to five years’ imprisonment on a charge of manslaughter arising from a fatal driving incident on 5 November 2019 in which his son, Lachlan, was killed.
[2] There is an order for interim suppression of particular details relating to the proceeding, namely the fact that Mr Gebhardt previously faced a charge of murder that has since been dismissed and the circumstances by which he came to be charged with that offence. This order will lapse today unless ordered otherwise.
R v NIKLAS GEBHARDT [2022] NZHC 1914 [3 August 2022]
Procedural history
[3] Mr Gebhardt made his first appearance in the High Court on 3 July 2020 on charges of manslaughter and dangerous driving causing death. He retained interim name suppression until he advised he did not intend to pursue its continuation on 10 July 2020.
[4] On 30 October 2020, Mr Gebhardt voluntarily went to the Kaiapoi Police Station and requested an interview. In that interview he said he had deliberately tried to kill his son using his Mazda motor vehicle.
[5] As a result, and following a case review hearing on 27 November 2020, Mander J recorded in a minute that the Crown had filed notice withdrawing the charges of manslaughter and dangerous driving causing death, substituting them with a charge of murder. He also recorded that counsel were agreed that because of the mental health concerns and Mr Gebhardt’s psychiatric condition, and the potential challenge to the admissibility of a statement made by him to police on which the murder charge was based, it was appropriate that the fact of the murder charge having been laid was suppressed. An order was made prohibiting publication of that fact.
[6] On 19 March 2021, Mr Gebhardt formally entered a not guilty plea to the charge of murder. The order prohibiting publication of the fact Mr Gebhardt faced a murder charge pending the outcome of the challenge to the admissibility of his statement to the police was made. Mander J explained that until the evidence on which the Crown relied to prove the charge was found to be admissible, the fact he was facing a murder charge should not be in the public domain. He made this finding on “the particular circumstances of the case and the possible prejudice that may arise should the trial only proceed on the basis of the alternative manslaughter charge”.1
[7] A pretrial hearing concerning the admissibility of the police interview was determined by Dunningham J. In her ruling on 9 July 2021, the Judge admitted the police interview in its entirety.2 The Judge found Mr Gebhardt’s complex grief
1 R v Gebhardt HC Christchurch CRI-2019-009-11852, 19 March 2021.
2 R v Gebhardt [2021] NZHC 1728.
diagnosis could provide an explanation for why he would choose to lie, bringing into question the actual reliability of his statement, but was not a circumstance which in itself adversely affected the reliability of the statement by, for example, affecting his memory or ability to distinguish truth from lies. The Judge considered whether the admission was in fact false was something the jury could determine.
[8] On 13 July 2021, Dunningham J recorded that Crown counsel submitted that suppression be revisited given the result of the pretrial decision. Given the possibility of the decision being appealed, the Judge determined it was appropriate the order remain in place in the interim. Mr Gebhardt did in fact appeal that decision.
[9] In a minute dated 16 July 2021, Mander J determined that, in light of Mr Gebhardt having applied for leave to appeal to the Court of Appeal and having sought an adjournment to the trial on that basis, it was in the best interests of justice that the trial should be adjourned. The existing suppression order was continued until the determination of the appeal by the Court of Appeal.
[10] On 29 September last year, the Court of Appeal issued its decision allowing the appeal.3 The Court considered the circumstances in which the confession was made by Mr Gebhardt indicated a real and substantial risk that the confession was not reliable. The Court considered the confession and the circumstances surrounding it indicated that Mr Gebhardt was making statements designed to get him arrested and incarcerated, and that his motive to do so was to promptly conclude the legal process. He was not, in fact, seeking to lay out the facts of the offending to the best of his recollection.
[11] This view was supported by Mr Gebhardt’s behaviour in September, when he stripped naked at the Christchurch Central Police Station and asked to be imprisoned, and also by the expert evidence regarding the complex grief Mr Gebhardt has been experiencing. The Court determined the statement made by Mr Gebhardt on 30 October 2020 was not admissible at trial.
3 Gebhardt v R [2022] NZCA 54.
[12] Following the Court of Appeal’s decision, at the Crown’s request the charge was amended on 7 April 2022 by substituting the charge of murder with one of manslaughter. Mr Gebhardt was remanded on bail until his trial on 9 May 2022.
[13] During the Easter period, Mr Gebhardt was arrested for breaching his bail conditions and subsequently admitted to Hillmorton Hospital for a mental health assessment. The trial was vacated.
[14] On 3 June 2022, Mr Gebhardt entered a guilty plea to the charge of manslaughter and was discharged on the alternative lesser charge of dangerous driving causing death.
Submissions
[15] On behalf of Mr Gebhardt, Mr McCormick applies for a final order suppressing the fact that Mr Gebhardt was for a period in this proceeding charged with murder, the circumstances by which he came to be charged with murder, and the fact of, and the contents of, his police interview of 30 October 2020.
[16] Mr McCormick submitted publication of these facts would likely cause Mr Gebhardt extreme hardship pursuant to s 200(2) of the Criminal Procedure Act 2011 (the Act). He relied on the psychological trauma Mr Gebhardt has experienced since the crash, particularly the diagnosis of complicated grief made by Mr Metoui and accepted by Associate Professor Brinded. Mr Gebhardt does have a clearly documented history of psychological trauma since the crash, the episodes I have alluded to are evidence of that.
[17] Mr McCormick said the presentence report is helpful in that it says these issues must be the focus of Mr Gebhardt’s treatment. However, there is no evidence before me tendered in support of this particular application to suggest that Mr Gebhardt’s complicated grief will be exacerbated or that he will decompensate should the application for suppression of these details be declined. Mr Gebhardt has had ample opportunity for that question to be addressed by his psychological and psychiatric experts and has not availed himself of that opportunity.
[18] Mr McCormick submitted Mr Gebhardt’s situation is more acute than in the analogous case of Kinraid v R because it is founded in recognised psychological trauma he has experienced since the time of the accident.4 But that, of course, obviates the fact that the very issue I am being required to determine is devoid of evidence to the effect that there will be decompensation in Mr Gebhardt’s current diagnostic state.
[19] On behalf of the Crown, Mr Zarifeh submitted that the Crown consented to suppression of the fact Mr Gebhardt faced a murder charge on the basis the statement was going to be challenged and that if ultimately ruled inadmissible it would impact his right to a fair trial.
[20]Mr Zarifeh submitted the application should be declined for two reasons:
(a)the one I have already alluded to, namely that there was no evidence whatsoever to justify a conclusion that there will be, in fact, an exacerbation of Mr Gebhardt’s complex grief; and
(b)the fact that a murder charge was filed and later withdrawn is an important part of the proceeding and publication enables proper public scrutiny of the prosecutorial process.
Analysis
[21]Name suppression can be granted under s 200 of the Act. Section 200 provides:
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—
(a)cause extreme hardship to the person charged with, or convicted of, or acquitted of the offence, or any person connected with that person; or
4 Kinraid v R [2017] NZCA 443.
(b)cast suspicion on another person that may cause undue hardship to that person; or
(c)cause undue hardship to any victim of the offence; or
(d)create a real risk of prejudice to a fair trial; or
(e)endanger the safety of any person; or
(f)lead to the identification of another person whose name is suppressed by order or by law; or
(g)prejudice the maintenance of the law, including the prevention, investigation, and detection of offences; or
(h)prejudice the security or defence of New Zealand.
(3)The fact that a defendant is well known does not, of itself, mean that publication of his or her name will result in extreme hardship for the purposes of subsection (2)(a).
(4)Despite subsection (2), when a person who is charged with an offence first appears before the court the court may make an interim order under subsection (1) if that person advances an arguable case that one of the grounds in subsection (2) applies.
(5)An interim order made in accordance with subsection (4) expires at the person’s next court appearance, and may only be renewed if the court is satisfied that one of the grounds in subsection (2) applies.
(6)When determining whether to make an order or further order under subsection (1) that is to have effect permanently, a court must take into account any views of a victim of the offence conveyed in accordance with section 28 of the Victims’ Rights Act 2002.
[22] Section 200 involves a two-stage test.5 The Court must first consider whether it is satisfied that any of the grounds listed in s 200(1) have been established. Secondly, the Court must consider whether to grant suppression, weighing the competing interests of the applicant and the public (including administrative justice factors).6 The second part of the test is discretionary.
[23] As held by the Court of Appeal in Kinraid v R, s 200 relates to a particular charge or charges.7 It is possible for a defendant to have their name suppressed for
5 Robertson v Police [2015] NZCA 7.
6 Kinraid v R [2017] NZCA 443 at [46].
7 Kinraid v R, above n 4, at [47].
particular charges and not have their name suppressed for other charges. The section is not restricted to existing charges.8
[24] In this case, the question is whether Mr Gebhardt’s case meets the statutory threshold to have his identity suppressed in relation to the murder charge which was subsequently dropped. There is no application to suppress Mr Gebhardt’s identity in relation to the manslaughter charge and conviction.
[25] Mr McCormick has submitted that Mr Gebhardt should have the fact of, and contents of, his police interview where he confessed to murder suppressed on the basis of extreme hardship.
[26]Extreme hardship is a high threshold, as emphasised by the Court of Appeal in
Robertson v Police:9
… the phrase “extreme hardship” … connotes a very high level of hardship. The word “hardship” on its own means “severe suffering or privation.” The addition of the qualifier “undue” … indicates that something more than hardship simple is required, while the word “extreme” in s 200(2)(d) indicates something more again.
[27] The assessment of whether the statutory threshold has been met requires a comparison of the consequences of publication with those normally expected following a person being charged with an offence.10
[28] In Kinraid v R, the appellant had pleaded guilty to a charge of manslaughter of his two-year-old daughter. When his daughter refused to go to bed, he held her down on the bed for five to 10 minutes before leaving her. When he returned to check on his daughter later that evening he realised she was not breathing and phoned an ambulance, but shortly after its arrival she was pronounced dead. Mr Kinraid appealed the sentencing Judge’s decision to decline to suppress the fact the manslaughter charge he initially faced was, at one point, elevated to murder. That charge of murder was
8 At [49].
9 Robertson v Police, above n 5, at [48] (footnotes omitted).
10 D (CA443/2015) v Police [2015] NZCA 541, (2015) 27 CRNZ 614 at [11], citing Lewis v Wilson & Horton Ltd [2000] 3 NZLR 546 (CA) at [42]; and Robertson v Police, above n 9, at [49].
subsequently reduced again to manslaughter when the evidence upon which the Crown relied when laying the charge was held to be inadmissible.
[29] When the manslaughter charge was elevated to murder, Mr Kinraid applied for name suppression in connection with that charge. An interim order for suppression was made for fair trial reasons. Mr Kinraid then challenged the admissibility of the evidence which supported the murder charge on the basis it was privileged under s 59 of the Evidence Act 2006 as communications made to a medical practitioner or clinical psychologist. The judgment upholding that challenge was also suppressed for fair trial reasons.
[30] After pleading guilty to manslaughter, Mr Kinraid applied for permanent suppression of both the pretrial admissibility ruling and the material contained therein, and of the fact he had been charged with murder. Ellis J declined Mr Kinraid’s application for suppression of the fact he had been charged with murder but granted it as regards the material that was the subject of the admissibility judgment and the judgment itself.
[31] The Court of Appeal found s 200 applied to Mr Kinraid’s application, so the question was whether publication of the fact of the murder charge would cause Mr Kinraid or any person connected with him extreme hardship. Mr Kinraid and his new partner had filed evidence asserting that if the fact of the murder charge was made public, they, and the child they were expecting, would be caused extreme hardship. Those assertions were made in the context of his acceptance of responsibility for his daughter’s death, the difficulties he had already experienced as a result of the trial process and the potential impact publication would have on his ability to be approved as a mortgage broker. He also said that publication of the murder charge would cause people to speculate and assume the worst about him, which would be heightened because inadmissible evidence was involved.
[32] The Court accepted a degree of embarrassment, uncertainty and anxiety may be caused to Mr Kinraid and persons associated with him, and that it may lower his status in the eyes of the public. However, the Court was equally satisfied Mr Kinraid had not established extreme hardship would be caused. While it was acknowledged
there may have been something in the submission that the circumstances in which the charges were elevated favoured suppression, the Court emphasised the test remained one of extreme hardship. The Court concluded there would in any event be strong reasons to decline suppression under the discretionary stage of the test.
[33] Mr McCormick contended this case is different to Kinraid v R because the circumstances are more acute because of Mr Gebhardt’s psychological diagnosis. While this diagnosis is acknowledged, it is still unlikely to meet the threshold of extreme hardship. As in Kinraid v R, the public’s opinion of Mr Gebhardt may be lowered as a consequence of the murder charge being published, and it is likely he will suffer some emotional harm from that, but the standard of extreme hardship is very high and there is no evidence in this case to establish that it reaches that level.
[34] Even if this were to reach the level of extreme hardship, suppression must then be considered at the discretionary assessment stage.
[35] There is a strong presumption in favour of the principle of open justice. On that principle, there should be no restriction on the publication of information about a criminal case except in special circumstances.11
[36] The importance of transparency in the prosecution process, including charging decisions, is reflected in the maintenance of permanent court records and the right of the public to access such records. Rule 7.2 of the Criminal Procedure Rules 2012 requires the particulars of a charge to be recorded, as well as the dismissal or withdrawal of charges. Rule 8 of the Senior Courts (Access to Court Documents) Rules 2017 provides for a general public right to access the permanent record.
[37] Against this legislative background, transparency around how the charges against Mr Gebhardt evolved is in the interests of the due administration of justice. As identified by the Court in Kinraid, the proper administration of justice can be seen as requiring the fact that a charge has been laid, and equally the fact that it has been withdrawn, to be a matter of public record. Ensuring charging decisions are known and open to scrutiny by the media and the broader public contributes to the rule of law.
11 Re Victim X [2003] 3 NZLR 220 (CA).
[38] There is a concern that any level of release would lead to public speculation about why Mr Gebhardt was not charged with murder. However, the case law suggests that concern about public speculation militates against allowing name suppression, as lack of information can lead to more speculation. As the Court of Appeal said in R (CA340/2015) v R:12
We also take into account that the level of public interest is such that it is inevitable that the vacuum currently created by the existence of the suppression orders is being filled by rumour and speculation. This point is related to the earlier issue we addressed as to the impact upon a potential jury if name suppression is continued. But it is also relevant to consider that continued suppression is not in the interests of the administration of justice. As was said by this Court in Television New Zealand v R in connection with an earlier high profile murder trial:13
The substantial public interest in the murder and the trial is however relevant in another way. The material presented to this Court demonstrates significant media interest in and speculation about the suppressed evidence. The suppression might itself “promote distrust and discontent”. That speculation is not in the interests of the administration of justice and is itself a reason supporting the revoking of the prohibition order.
[39] In this case there is significant public interest in understanding the proceeding. I am satisfied any possibility of emotional harm that may be caused would be mitigated by the requirement that the media’s reporting is fair and accurate and clearly states the concerns around Mr Gebhardt’s mental health. Publication of the circumstances of his confession may also aid in understanding his complex grief diagnosis, and also the potential for false confessions in the context of mental impairment.
[40] While the material suppressed in Kinraid was inadmissible due to the communications being privileged, that is not applicable here.
[41] In this context, in exercising my discretion the presumption of open justice public interest in explaining the prosecutorial decisions made in the proceeding outweighs any psychological difficulties Mr Gebhardt will invariably suffer from publication.
12 R (CA340/2015) v R [2015] NZCA 287 at [35].
13 Television New Zealand v R [1996] 3 NZLR 393 (CA) at 397.
Conclusion
[42] The application for permanent suppression of details relating to the proceeding, namely the fact Mr Gebhardt was for a period in this proceeding charged with murder and the circumstances by which he came to be charged with that offence, including the confession, is declined.
[43] The order enabling publication of the details relating to the proceeding will be stayed for 10 working days to enable Mr Gebhardt to file a notice of appeal in the Court of Appeal should he choose to do so.
Doogue J
Solicitors:
Crown Solicitors, Christchurch
Brandts-Giesen McCormick, Rangiora
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