R v Gray

[2019] NZHC 431

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2017-009-007857

[2019] NZHC 431

THE QUEEN

v

HAYDEN ANTHONY GRAY

Hearing:	13 March 2019
Appearances:	D L Elsmore for the Crown E C Bulger for the Defendant
Judgment:	13 March 2019

ORAL JUDGMENT OF NATION J

[1]                  There has been interim suppression of Mr Gray’s name up to this point. Initially the request for suppression was made by the Crown but with the support of the defence, because of concerns primarily for the mother of the little boy who was injured and her family. The Court could readily accept the particular pressures they were under.

[2]                  There comes a time with these sorts of proceedings where the public interest in proceedings being held in the open, where the media can report them fairly and fully, is of paramount importance. That is reflected in the legislation so that it is normally very difficult for the suppression sought by the defence to continue after a second appearance in Court. The interim suppression in this case has continued for much longer than that and interim suppression has not been opposed by the Crown

R v GRAY [2019] NZHC 431 [13 March 2019]

when it perhaps could have been. That is in recognition of the particular pressures the defendant has been under and steps that were being taken by the defence on his behalf.

[3]                  However, some time ago, I flagged to both the Crown and the defence that, almost inevitably before trial, the interim order for suppression would have to lapse.

[4]                  Ms Bulger for Mr Gray has however made an application for the interim suppression to continue at this stage and through until the end of the trial. The basis on which that application is made is that obviously it has been a very difficult time for Mr Gray’s family up to this point. Mr Gray’s mother, who has taken a very responsible role, both in looking after her son and after other members of her family, has endeavoured to shield other members of the family from the ordeal in various way. One way she has chosen to do that has been not to tell some of the people in the family of the precise predicament Mr Gray is in. There is a particular concern for two teenage boys, the sons of Mr Gray’s sister, who are in the household where Mr Gray is living at present. They are his nephews and they do not know that Mr Gray is about to go to trial on the charges he faces.

[5]                  For interim suppression to continue, Mr Gray would have to persuade the Court that he would suffer extreme hardship if there was not suppression. Alternatively, others in his family would have to satisfy the Court that there would be undue hardship to them. Of primary importance is the principle of open justice. However, first, for interim suppression to continue, I would have to be satisfied there would be undue hardship to others in Mr Gray’s family.

[6]                  Undue hardship means hardship that is more than would normally happen in a criminal case. Unfortunately for members of defendants’ families, inevitably with any criminal proceedings, they are affected by the fact that a relative is facing that predicament but it is not them who are facing the charges. It is not Mr Gray’s nephews who are in any way connected with the charges the Crown has brought.

[7]                  Sometimes too it may be better for these ordeals to be faced up to so those people can in fact learn that the world is not going to come down around them just through publicity as to what someone else in the family might be going through.

Certainly I respect what I have been told about the way Mr Gray’s mother has been endeavouring so hard to look after probably both her son and others in her family with the situation they face.

[8]                  I am not satisfied that others in the family would suffer undue hardship in the way that would be required for interim suppression to continue. The order for interim suppression that has been made in the past now lapses.

[9]                  The media present have asked me to clarify whether or not an interim order for suppression of Carter’s name is also to lapse. The Crown acknowledge that his mother has said it would be distressing for her to see his name mentioned in the media. However, obviously the proceedings are about what happened to him. It is unrealistic to think there could be open reporting of the trial without reference to his name. I have dealt with this issue of whether or not a victim’s name should be published but in very different circumstances. The same considerations however apply. It is not a situation where Carter requires the protection of continuing suppression because unfortunately he has died. In those circumstances, the principle of open justice does mean the media have to be able to refer to his name.

[10]The interim order, insofar as it related to Carter’s name, also lapses.

Solicitors:

Raymond Donnelly & Co., Christchurch E C Bulger, Barrister, Christchurch.