R v H
[2021] NZHC 2793
•19 October 2021
ORDER PROHIBITING PUBLICATION OF THE DEFENDANT’S NAME AND ANY IDENTIFYING PARTICULARS PURSUANT TO S 200(2)(f) OF THE CRIMINAL PROCEDURE ACT 2011. SEE [20] OF THE JUDGMENT IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2019-012-2009
[2021] NZHC 2793
THE QUEEN v
H
Hearing: On the papers Appearances:
MR Harborow and HE Macdonald for the Crown J-A Kincade QC for the Defendant
Judgment:
19 October 2021
JUDGMENT OF FITZGERALD J
[As to permanent name suppression]
This judgment was delivered by me on 19 October 2021 at 12.30pm
Registrar/Deputy Registrar Date……………
Solicitors: Meredith Connell, Auckland To: J-A Kincade QC, Auckland
R v H [2021] NZHC 2793 [19 October 2021]
Introduction and background
[1] Ms H faced two representative charges of ill treatment of a child1 and one charge of theft.2 After a sentence indication given by Gordon J on 26 March 2021, Ms H pleaded guilty to those charges. She was sentenced by Gordon J on 13 August 2021 to a term of 11 months’ home detention.3
[2] The factual background to Ms H’s offending is fully set out in Gordon J’s sentencing notes and is not repeated here. In summary, the representative charges related to a number of incidents between 16 August 2019 and 26 August 2019. They involved Ms H giving her 15 month old son, S, a toxic concoction of either non- prescription eye drops or antidepressant medication prescribed to Ms H, or a combination of both those substances. The offending occurred in two phases: first while S was admitted to Dunedin Hospital on 16 August 2019, and second, while he was at Starship Hospital in Auckland between 18 August 2019 and 26 August 2019. The theft charge relates to Ms H stealing those same non-prescription eye drops from the pharmacy at Starship Hospital on six occasions.
[3] It is clear that Ms H has had mental health issues in the past, and after having reviewed various medical expert reports prepared prior to sentencing, Gordon J was satisfied that Ms H suffers from Factitious Disorder Imposed on Another (FDIA).4 However, in a disputed facts hearing, Gordon J concluded that the necessary causative link between the FDIA diagnosis and Ms H’s offending had not been established.5 No reduction in the starting point was therefore made on that basis.
[4] Ms H had been granted interim name suppression on 22 June 2020 until the disposition of her trial, on the basis that there would be extreme hardship to her children if her name were published. Obviously in light of Ms H’s guilty pleas, the trial did not proceed. Accordingly, at the conclusion of Ms H’s sentencing, Gordon J noted that Ms H sought permanent name suppression. A formal application had not,
1 Crimes Act 1961, s 195(1). The maximum penalty for this charge is 10 years’ imprisonment.
2 Crimes Act 1961, ss 219(1)(a) and 223(d). The maximum penalty is three months’ imprisonment.
3 R v H [2021] NZHC 2116.
4 FDIA was until recently called “Munchausen’s Syndrome by Proxy”. FDIA manifests as a caregiver falsifying the symptoms of illness in a child to fulfil psychological needs associated with the caregiver role.
5 R v H [2021] NZHC 1988.
however, been filed at that time. That application has since been filed. One of the grounds for the application is that the victim of Ms H’s offending, S, benefits from automatic statutory name suppression, and for the purposes of s 200(2)(f) of the Criminal Procedure Act 2011 (the Act), the Court may suppress the identity of a defendant if publication means that it would be likely to lead to the identification of another person whose name is suppressed by law. Other grounds of Ms H’s application are that there would be undue hardship to people connected to Ms H, namely her children (including S), extreme hardship to Ms H herself (given the effect publication would have on her mental health), and undue hardship to a person connected to her (her father, in the context of the potential impact on his family business in the event of publication of Ms H’s name).
[5] The Crown does not oppose the application for permanent name suppression, though solely on the basis of the first ground advanced in Ms H’s notice of application, namely that the victim, S, will likely be identifiable if Ms H’s name is published.
[6] Given the application was not opposed, the parties agreed that it could be dealt with on the papers.
Statutory framework
General
[7] The legal principles relating to applications for name suppression pursuant to s 200 of the Act, which are relevant to the grounds relied on in the present application, were discussed by the Court of Appeal in its recent decisions concerning the boxer Joseph Parker. The Court of Appeal’s second decision in relation to Mr Parker6 specifically endorsed that Court’s earlier discussion of the applicable legal principles.7 It is accordingly convenient to replicate here that statement of the applicable principles:8
[4] Sections 200 and 202 of the CPA allow a court to suppress the identifying details of a person charged with or convicted or acquitted of an
6 Parker v R [2020] NZCA 502.
7 At [15].
8 Parker v R [2019] NZCA 350.
offence (s 200) or of a person connected with the proceedings (s 202). Each specifies different statutory thresholds to be crossed before the court can exercise its discretion to make the order. Under s 200 the thresholds are “extreme” or “undue” hardship or a “real risk” of prejudice to a fair trial. Under s 202 the threshold is undue hardship.
[6] In D (CA443/2015) v Police this Court described a two-step approach for determining applications for suppression under s 200 that is equally applicable to applications under s 202. Under that approach the court must decide whether one of the thresholds has been crossed and, if so, whether the discretion should be exercised in favour of making an order. In respect of the thresholds this Court said:
The adjectives indicate that these are comparative standards. They require that the court compare the consequences of publication in the instant case with those that normally attend prosecution. Distress embarrassment and adverse personal and financial consequences usually attend criminal proceedings, and something out of the ordinary is needed if the applicant is to get across the threshold.
And in relation to the discretion:
At the second stage the court must balance relevant considerations in the exercise of discretion. The open justice principle must be considered at this stage, notwithstanding that the threshold has been crossed. That is so because the ultimate question remains whether open justice should yield. The balance must “clearly favour” suppression.
[7] Although the Judge found the threshold of “undue hardship” made out, it is still necessary to be clear about what meeting that threshold entailed because it is the starting point for a judge coming to exercise the discretion.
[8] Mr Heron submitted that the language of the subsection suggests that it should be rare for the discretion to be exercised against an applicant who has made out the statutory ground. Whilst this has been so in previous cases it cannot be regarded as inevitable. Publication may be required notwithstanding that the applicant has demonstrated a real or appreciable risk of undue hardship if publication were to occur. The Judge balances the respective interests and the balance must clearly favour suppression for the principle of open justice to yield.
[9] The meaning of “likely to cause … undue hardship” is not contentious. In Huang v The Serious Fraud Office this Court described it as:
… a common-sense test which is readily understood and applied. To the extent that the judicial inclination for synonyms is of assistance, in R v W this Court noted that the word “likely” encompassed varying degrees of probability depending on its statutory context … [T]he High Court has adopted slight variations or expansions of this test in name suppression cases; for example Beacon Group Media Ltd v Waititi and Wallis v New Zealand Police.
[10] “Undue hardship” is a lower threshold than that of “extreme hardship” applying to criminal defendants under s 200. In Sansom v R this Court
described it as “hardship that is greater than that which will inevitably follow publication”. This requires a comparison between hardship the applicant claims will result from publication in the particular case and the normal consequences that follow publication.
[11] Thus, a judge who is satisfied that publication is likely to cause undue hardship is satisfied that the consequences for the applicant of publication will be disproportionate to consequences that typically result from publication. In the exercise of the discretion that undue hardship is weighed against the public interest in open reporting and other relevant factors. The seriousness of the offending, the public interest in the nature of the offending, the presumption of innocence, youth, rehabilitative prospects and any risk of self-harm are typically regarded as potentially relevant. But relevance obviously depends on the circumstances of the particular case.
(Citations omitted)
Publication of an offender’s name would likely lead to identification of a person with name suppression
[8] As noted, one of the grounds for Ms H’s application is the suggestion that identification of her would likely lead to the identification of S.
[9] The Crown accepts that publication of Ms H’s name will likely lead to the identity of S. I must nevertheless form my own view on whether this threshold test for granting name suppression of Ms H’s name pursuant to s 200(2)(f) has been met. The concept of “likely to” in s 200(2) has been held to require that there is an appreciable risk that one of the specified consequences will occur.9 Whether there is an appreciable risk is a fact-specific enquiry. If I agree with Ms H and the Crown’s assessment, the issue then becomes the exercise of the residual discretion under s 200.
[10] In this context, counsel for Ms H refers to R v MVD, in which Thomas J suggested that once the threshold test in s 200(2)(f) is made out, it will be a rare case in which the court does not exercise its discretion to make a suppression order.10
[11] As can been seen at [8] of the above extract from the Court of Appeal’s decision in Parker v R, however, more recent authority suggests that the exercise of the discretion under s 200 against continuing suppression of a defendant’s name on the
9 See generally, Simon France (ed) Adams on Criminal Law — Procedure (online ed, Thomson Reuters) at [CPA200.03] and the authorities referred to therein.
10 R v MVD [2016] NZHC 333 at [56].
basis of s 200(2)(f) is not confined to rare cases. In Solicitor-General v Antolik,
Duffy J referred to R v MVD and stated:11
[60] I agree that the court should be alert to the ramifications of publishing the names and identifying particulars of a defendant or an offender in circumstances where publication would lead to the identification of another person to whom suppression has been granted under s 202(2). However, the court should also be alert to ensure that it does not, as a matter of course, place too much weight on this factor. Ultimately the weighting to be given to all relevant factors in s 200(2) and the principle of open justice will hinge on the circumstances of the particular case. If the concerns reflected in s 200(2)(f) were generally allowed to trump factors favouring publication, the outcome would be inconsistent with the explicit statement in s 202(4) that a name suppression order in respect of a connected person “may not prevent publication of the name of the defendant”, which I read to also include an offender. Further, such an outcome would enable defendants to achieve name suppression for themselves through someone connected with them obtaining suppression first by demonstrating undue hardship under s 202(2)(a), which would drive a coach and four through the principle of open justice. The presence of both s 200(2)(f) and s 202(2)(a) suggests to me that the legislature sought to provide the greatest flexibility for the courts to respond to a variety of individual circumstances by allowing for outcomes that on occasion gave defendants suppression because connected persons met the lower test for suppression in s 202(2)(a) but on other occasions led to the suppression given to those persons being diminished.
(Citations omitted)
[12] The Court of Appeal dismissed an application for leave to appeal against Duffy J’s decision, stating:12
[19] … The interests of third parties will be relevant to the discretionary assessment if the qualifying ground is s 200(2)(f). But those interests are not determinative of the assessment as a matter of course. As Duffy J said, care must be taken as to the weight to be attributed to those interests in any particular case. It is possible that public interest in publication will prevail, as Duffy J considered it did in this instance.
[13] While those decisions concerned a case where the person who might be identified enjoyed name suppression pursuant to s 202 rather than s 204 of the Act, the principles stated are equally applicable to s 204. Accordingly, the exercise of discretion under s 200(1) will arguably be more complex when the threshold which has been met for suppression is s 200(2)(f). In such cases, the court must weigh three sets of competing interests: the defendant’s interests in avoiding publication; the
11 Solicitor-General v Antolik [2016] NZHC 2643.
12 A (CA605/2016) v R [2017] NZCA 49 at [19].
broader public interest in open reporting; and the interests of the connected person or third party (or in this case, the young victim) whose name suppression may be rendered ineffective by publication of the defendant’s identity.
[14]With that background in mind, I turn now to my analysis of the issues arising.
Analysis
[15] As a preliminary point, I record that I have sought and taken into account S’s father’s views on Ms H’s application for permanent name suppression, as I am required to do pursuant to s 200(6) of the Act (S’s father falling within the definition of a “victim” for the purposes of the Victims’ Rights Act 2002). S’s father opposes the application, on the basis he does not consider there is a strong likelihood of S being identified were Ms H’s name to be published, and that S is too young to be aware of such issues in any event. S’s father views the application for permanent name suppression as primarily for the benefit of Ms H herself, not S. 13
[16] The starting point is that S enjoys automatic statutory suppression pursuant to s 204(1) of the Act. The fact there is automatic statutory suppression of S’s identity in this case, subject to any court order otherwise, reinforces Parliament’s intention that in the ordinary course, suppression of a young complainant or victim’s identity in connection with offending against them is of significant importance. I would suggest that in the ordinary course, this may particularly be so when the complainant (now victim) is very closely related to the offender, and in this case, by the mother/son relationship. That relationship will give rise to another layer of sensitivities, over and above the young person’s age and role in the proceedings.
[17] In all of the circumstances, I am satisfied that publication of Ms H’s name would likely lead to the identification of S.
13 I note that the father of one of Ms H’s other children, currently 12 years old, supports the application for permanent name suppression, given his concerns at publication of Ms H’s name on his daughter’s mental state. I note that Ms H and her 12 year old daughter do not share the same name.
[18] I acknowledge that S and Ms H do not share the same surname. I am also aware that S’s father, who now has custody of S (and two of Ms H’s other children of whom he is also the biological father) has recently moved from [Redacted] to [Redacted]. Nevertheless, and as the Crown submits, publication of Ms H’s name would inevitably lead to some of the community identifying S (particularly in [Redacted], [Redacted] and [Redacted], where Ms H is known by some to be S’s mother). In this context, I note S’s father’s view is that because he, S, and his other children have moved to [Redacted] and Ms H and S do not share the same surname, there is no strong likelihood of S being linked to Ms H if her name were published. However, the test I must employ is not whether there is a strong likelihood of identification, but whether identification is “likely” (in the sense of there being an appreciable risk). There is no requirement that the stated consequence is “more likely than not”14 to occur. Ultimately, I am clear in my view that the relevant threshold is met.
[19] The matter does not end there, however. While the threshold for permanent suppression of Ms H’s name pursuant to s 200(f) is made out, as discussed earlier, I must still exercise my discretion as to whether permanent name suppression nevertheless ought not to be granted. Again, I am clear in my view that the discretion ought to be exercised in favour of name suppression of Ms H’s identity. I say this for the following reasons:
(a)First, and as noted earlier, S enjoys automatic statutory name suppression, subject to any court order otherwise. This highlights the importance of suppression in relation to young persons connected with criminal offending.
(b)Second, the offending in this case is particularly unusual, and could be conveyed in the media (and particularly in social media) as somewhat scandalous. It involves a mother knowingly and deliberately administering a toxic concoction to her own young child, partially in a hospital environment.
14 Huang v Serious Fraud Office [2017] NZCA 187 at [9]-[10].
(c)The preceding point leads to a third point, namely that because of the particular nature of Mrs H’s offending, the matter has and may continue in the future to generate media attention, or at the very least, social media attention.
(d)Fourth, and particularly in connection with social media, there is a concern as to how S may be referred to and commented on were his identity to become known as the victim of Ms H’s offending. The Court of Appeal in X v R emphasised that the court cannot rely on the responsibilities and professional duties which attach to mainstream media in the context of those publishing on social media.15
(e)Fifth, I take on board S’s father’s comment that at three years old, S is too young to understand what Ms H did to him and to be upset at the connection between him and his mother being publicly known. That may well be the case now, but I am conscious of what the position may be in the future, particularly as S advances into, for instance, his early teenage years. Knowledge amongst his peers, for example, of what his mother did to him when he was a young child could potentially be deployed against him in a cruel and upsetting way.
(f)Finally, while publication of an offender’s name is the ordinary course, the public interest in this matter is not necessarily because it is Ms H herself who has offended, but rather the nature of the offending. In addition, there is no suggestion there are potential further complainants amongst the public: that would often mean that publication was warranted, because it might lead to those complainants coming forward.
[20] For all these reasons, I make an order permanently suppressing Ms H’s name and identifying details.
15 X v R [2020] NZCA 387 at [49].
[21] Given this outcome, it is not necessary for me to address the further grounds advanced in Ms H’s application for permanent name suppression.
Fitzgerald J