R v JD - [2021] NZHC 994

ORDER PROHIBITING PUBLICATION OF NAMES, ADDRESSES, OCCUPATIONS OR IDENTIFYING PARTICULARS OF DEFENDANT AND VICTIMS PURSUANT TO SECTIONS 200 AND 202 CRIMINAL PROCEDURE ACT 2011 UNTIL FURTHER ORDER OF THE COURT. SEE

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2020-092-4600

[2021] NZHC 994

THE QUEEN

v

JD

Hearing: 3 May 2021

Appearances:

J J Rhodes for Crown

M J Dyhrberg QC and D-M Cross for defendant
C Owen (Stuff Limited) and J Weekes (New Zealand Herald) in attendance

Judgment:

5 May 2021

JUDGMENT OF TOOGOOD J

[Reasons for oral orders – names anonymised for publication]

Solicitors/Counsel:
Crown Solicitor, Manukau Marie Dyhrberg QC, Auckland

Copy to:
Catrin Owen, Stuff Limited
John Weekes, New Zealand Herald

R v D [2021] NZHC 994 [5 May 2021]

Introduction

[1] On 17 March 2021, JD (the defendant) pleaded guilty to the manslaughter of his three-month old daughter, T. He is due to be sentenced in this Court at 9.00 am on 4 May 2021.

[2] Ms Catrin Owen, a journalist representing media organisation Stuff Limited, has applied under the In-Court Media Coverage Guidelines 2016 for permission to take photographs at the sentencing.

[3] The defendant, who has interim name suppression, has applied under s 200(1) of the Criminal Procedure Act 2011 (the Act) for permanent name suppression. For obvious reasons, the question of name suppression should be addressed first, as the outcome of that application will influence the Court’s approach to the in-court media coverage application.

[4] Following a hearing at which Mr John Weekes, representing the New Zealand Herald, and Ms Owen advanced submissions on behalf of their respective media organisations, and I heard submissions from Ms Dyhrberg QC on behalf of the defendant and Mr Rhodes on behalf of the Crown, I:

(a)dismissed the application for permanent name suppression; and

(b)declined to give permission for the taking of photographs at the sentencing hearing.

[5] Ms Dyhrberg indicated that she would take time to consider the implications of my decision, including the reasons which I said I would give in writing, and sought further interim name suppression pending the filing of a notice of appeal, if any.

[6] Without objection from the Crown, I made interim orders suppressing publication of Ms K’s, V’s and the defendant’s names. The orders shall lapse at, and cease to have effect after, 5.00 pm on Monday, 10 May 2021 unless a notice of appeal against the refusal of the permanent suppression order has been filed with the Registrar of the Court of Appeal by that time. Ms Dyhrberg undertook to notify the Registrar

of the High Court and the Crown Solicitor at the time of filing any notice of appeal. News media representatives wanting to know whether the interim order has continued in force may enquire either of the Crown Solicitor, Manukau or the High Court registry in Auckland whether a notice of appeal has been lodged.

[7] This judgment records both the nature of the orders made…

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.

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Details

Case: [2021] NZHC 994
Decision Date: 5 May 2021

CaseChat Overview and Summary

In this case, the defendant, JD, pleaded guilty to the manslaughter of his three-month-old daughter, T. The court was tasked with deciding on two key applications: the defendant's application for permanent name suppression and a media organisation's application for permission to take photographs at the sentencing hearing. The court heard submissions from counsel for the defendant, the Crown, and representatives of the media. The defendant argued for permanent name suppression on the grounds that publication would cause undue hardship to the victims and endanger their safety. The media argued for permission to take photographs to report on the sentencing, citing the public interest in the case. The court dismissed the application for permanent name suppression, finding that the threshold for undue hardship was not met and that the prior publication of the defendant's name made suppression futile. The court also declined the media's application for photography, balancing the principles of open justice against the privacy interests of the victims and the defendant. Interim orders were made to suppress the names of the victims and the defendant until further order of the court.

Orders