R v JD
[2021] NZHC 994
•5 May 2021
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 attendanceJudgment:
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 orally in open court and the reasons for my decisions.
The circumstances of the offending
[8] The facts on which the defendant’s guilty plea and conviction of manslaughter were entered are that, on Monday, 13 April 2020, the defendant and his partner, Ms K, were at home in Papatoetoe with their two children (T, born on 12 January 2020, and V, born on 28 June 2018). This was during the national Level 4 lockdown imposed as part of the government’s response to the COVID-19 pandemic. At about 6.00 pm Ms K gave the defendant a bottle with which to feed T, who was with him in the lounge. At that time, T was becoming upset and unsettled and the defendant became angry that she would not stop crying. He assaulted T, striking at least five to six blows to her head with a closed fist. He told Police that he used the base of his hand in a thumping motion, which he later described as having a force of seven to eight out of 10, similar to “jabbing” an adult in a boxing match. He said that he intended to cause T bodily harm and “damage”, that he knew at the time of the particular vulnerability of babies and that his actions would do more harm than they would to an adult using equivalent strikes. He said that after he had struck T, she “went out” and that her body was loose.
[9] Ms K and V had not been long in the shower when the defendant called out and Ms K ran to the lounge, finding him holding T. She says that T was crying but not as normal; that she was struggling to breathe, that her breathing was heavy and sounded like her chest was blocked. Her eyes started to get droopy and it looked as though she was falling asleep. Ms K called an ambulance while the defendant placed T on the ground and started to perform CPR.
[10] An ambulance arrived shortly thereafter and T was taken to Middlemore Hospital where she was declared dead at approximately 7.40 pm. A subsequent post-
mortem identified the cause of death as blunt force injuries to the head, which pathologists considered were consistent with multiple blows to the head with an eight out of 10 force and said that such an assault accounted for all of the injuries.
[11] The defendant was originally charged with murder but, with the approval of the Solicitor-General, the charge was amended to manslaughter, as a result of which the defendant promptly pleaded guilty to the lesser charge on 17 March 2021.
The grounds for the application
[12] In applying for permanent name suppression, the defendant relies on the provisions of s 200(1) of the Act, which provides that the 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. Section 200(2)(c), so far as is relevant, says that a court may make an order under subs (1) only if the court is satisfied that publication would be likely to cause undue hardship to any victim of the offence. Alternatively, under s 202(2)(f), the court may make an order under subs (1) only if the court is satisfied that the publication would be likely to lead to the identification of another person whose name is suppressed by order or by law. On this alternative basis, Ms Dyhrberg seeks and relies upon the making of orders suppressing Ms K’s and V’s names under s 202 and then argues that publication of the defendant’s name would be likely to lead to their identification.
[13] The application for permanent name suppression was opposed by the Crown and by Ms Owen and Mr Weekes on grounds which I address more fully below.
Ms K’s views
[14] Ms K’s views supporting continued name suppression for the defendant are set out in a statement she made to the Police on 16 June 2020 in which she identified four separate grounds:
(a)She had fears for the defendant’s mental health.
(b)After the defendant was charged, Ms K had been contacted by media companies through Facebook. The approaches to her included one from a journalist who initially told her he was a counsellor. She said other people had visited her home and spoken to her sister, asking if Ms K lived there. She said she found these approaches invasive and believed they would become worse if the defendant’s name was not suppressed.
(c)Ms K said she wanted to preserve T’s memory and for T to rest in peace. She did not want everyone knowing her name and what had happened to her. I apprehend this ground related to the hardship that Ms K would suffer because of her distress at the memory of T being tainted in that way.
(d)Ms K said that she was worried about what her older daughter, V, would have to face when she grows up if the defendant’s name is published. She did not want her baby growing up with everyone knowing about what had happened to T and what V’s father was charged with. She thought these matters should be private and V allowed to grow up freely.
The history of name suppression orders in this case
[15] The defendant’s name was suppressed from publication by an interim order made at the time of his first appearance in the District Court and, by consent, the order for interim suppression was continued at the time the defendant made his first appearance in this Court at a trial review hearing conducted on 10 June 2020. At that hearing, Fitzgerald J directed that a formal application for continued interim name suppression should be filed by the defendant and that the Crown should file any application for the suppression of the names of any other person connected with the case.
[16] The Crown made no application for interim suppression of Ms K’s or V’s names because the Crown Solicitor considered that the threshold for the making of such orders had not been reached. Responsibly, however, the Crown placed Ms K’s
reasons for supporting the application for interim suppression of the defendant’s name before the Court.
[17] On 6 August 2020, Brewer J made an order granting the application for further suppression of the defendant’s name and extending the period of suppression to 12 July 2021, that being the date of the intended commencement of the defendant’s trial for murder.1 Brewer J noted in his judgment that three grounds had been advanced by the defendant for continued interim name suppression:
(a)that publication of his name would cause him extreme hardship;2
(b)that publication of his name would cause undue hardship to Ms K and to V;3 and
(c)that publication of his name would endanger his safety.4
[18] Discussing those grounds, Brewer J said that the thresholds of extreme hardship and undue hardship had been discussed in many cases and that he did not consider they were crossed in this case. The Judge did not explain his reasons any further but said he had reached a different view with respect to the third ground; namely, that publication of the defendant’s name at that point would be likely to endanger his safety.
[19] The basis for the Judge’s conclusion on the third ground was that a consultant forensic psychologist, Ms Bramhall, had reported that the defendant was seriously depressed and was experiencing strong suicidal thoughts. Ms Bramhall’s closing opinion was that continued name suppression for the defendant would allow his situation to be stabilised so that he could access mental health support services and strengthen his ability to cope with his current situation and the forthcoming legal proceedings.
1 R v D [2020] NZHC 1964 at [34].
2 Criminal Procedure Act 2011, s 200(2)(a).
3 Section 200(2)(c).
4 Section 200(2)(e).
[20] Brewer J made it clear that he considered that his order amounted to a postponement of a decision on whether or not permanent name suppression would be ordered.
[21] When the defendant was arraigned before Fitzgerald J on 17 March 2021, the Judge asked whether an order was sought for the continuation of interim name suppression for the defendant. At that time, Ms Dyhrberg indicated that she could not support continued name suppression on the mental health grounds that had been the basis for Brewer J’s decision in August 2020. The interim order for name suppression was lifted. Ms Dyhrberg frankly acknowledges that the grounds for suppression on the basis of undue hardship to Ms K and/or V were not in her contemplation at that point but I accept that, if such grounds were to be advanced on the basis of undue hardship to the victims, it was the responsibility of the Crown to raise them. Counsel for the Crown had not received further instructions from Ms K that she wished to renew an application for interim name suppression to protect her interest and, of course, the Crown’s submission that the grounds based on victims’ rights had not been made out had been accepted by Brewer J in the earlier hearing. It appears, therefore, that separate consideration of Ms K’s and V’s position was not given at the time the defendant pleaded guilty and was convicted.
[22] Immediately following the arraignment on 17 March 2021, therefore, news media organisations published the outcome. A report on Radio New Zealand’s website dated 17 March 2021 recorded that the defendant had pleaded guilty to manslaughter over the death of his three-month old daughter in April 2020. The report said that, in entering his plea, the defendant said “he was taking responsibility for his actions and he did not mean to kill his baby, [T]”. The report referred to T’s mother by surname only.
[23] A report on the Stuff website prepared by Ms Owen referred both to T’s full name and to “the baby’s mum [Ms K]”. It referred also to her oldest daughter, although it did not name her. A report on the Otago Daily Times website mentioned the defendant’s name but did not refer to either Ms K or V. The New Zealand Herald report of the same day named the defendant and T using her full name, but likewise did not refer to either Ms K or V by name.
[24] On 7 April 2021, Ms Dyhrberg made a further application for suppression of the defendant’s name on an interim basis until the scheduled sentencing date of 4 May 2021. The ground advanced was that identifying the defendant would be likely to cause undue hardship to Ms K and V and that publication would be likely to endanger their safety, with reference to their mental and psychological safety. Reliance was placed on the Court of Appeal’s judgment in Stuff Ltd v R, which had been released on 24 March 2021, a week after the defendant had pleaded guilty.5 An order suppressing the defendant’s name under s 200(2)(f) was sought in conjunction with orders suppressing Ms K’s and V’s names under s 202(2)(a).
[25] Counsel for the Crown (not Mr Rhodes, who had appeared on the earlier occasions and who has subsequently maintained responsibility for the file) did not oppose continuation of the interim name suppression until sentencing. Mr Rhodes explained at the present hearing that he was not aware of the application of 7 April 2021, being on leave, and that his colleagues in the Crown Solicitor’s office had not been aware that publication had followed the defendant’s appearance on 17 March 2021.
[26] In light of the absence of opposition by the Crown, Lang J made an interim order on 9 April 2021 for suppression of the defendant’s name pending the sentencing hearing.
Applicable legal principles
[27] Counsel have not disagreed on the approach to be taken by the Court to the issues arising on an application for permanent suppression of the identity of a defendant. It is convenient, in the short time available to release these reasons for my decision, to rely on the succinct expression of the principles by the Court of Appeal in Stuff Ltd v R as follows:6
[14] Determining whether the identity of a defendant should be suppressed requires a two-stage approach:
[40] At the first stage, the judge must consider whether he or she is satisfied that any of the threshold grounds listed in [s] 200(2) has
5 Stuff Ltd v R [2021] NZCA 86.
6 Footnotes omitted.
been established. That is to say, whether publication would be likely to lead to one of the outcomes listed in subs (2). The listed outcomes are prerequisites to a court having jurisdiction to suppress the name of a defendant. It is “only if” one of the threshold grounds has been established that the judge is able to go on to the second stage.
[41] At the second stage, the judge weighs the competing interests of the applicant and the public, taking into account such matters as whether the applicant has been convicted, the seriousness of the offending, the views of the victims and the public interest in knowing the character of the offender.
[15] The court is required to take into account any views of a victim of the offending when determining whether to permanently suppress a defendant’s name.
Was one of the threshold requirements in s 200(2) met?
[16] The relevant s 200(2) threshold requirements in this case required that the Judge be satisfied that publication of L’s name would be likely to either:
(a)cause undue hardship to any victim of the offence;15 or
(b)lead to the identification of another person whose name is suppressed by order or by law.
[17] “[L]ikely” in this context means “a real and appreciable possibility”. Undue hardship requires something more than the hardship that would normally be expected to occur through publication. It connotes “excessive or greater hardship than the circumstances [warrant]”.
The arguments of counsel
[28] I have had the benefit of helpful submissions from Ms Dyhrberg and Ms Cross on behalf of the defendant and from Mr Rhodes on behalf of the Crown. Time does not permit me to record a full summary and I mean no disservice by stating their respective cases only briefly.
The defendant
[29] Counsel for the defendant place particular weight on the Court of Appeal’s decision in Stuff Ltd v R in which an offender had fatally injured his three-month-old daughter while his partner was in another part of the property. Although at the time of the name suppression hearing they were no longer in a relationship, and the defendant and his partner did not share the same surname, the deceased and her older sibling (also aged around two years old) did have his name included as part of their surnames, as is the case for T and V. The relationship between L and his former partner had not
been fleeting in that they had two children together and operated as a family unit, Ms Dyhrberg submitted that in this case that element is more strongly in the defendant’s favour because he and Ms K remain close. It was submitted by Ms Dyhrberg that this Court should take the same view as that taken by the Court of Appeal in Stuff Ltd. That is that the surviving child, although young, would be starting school in a couple of years and that there would be a real prospect of her link to L and the details of his offending becoming widely known in the school community, a very significant burden for a young child to bear.
[30] Ms Dyhrberg also advanced the alternative ground that publication would be likely to endanger the safety of both Ms K and V, but there is no evidence before the Court to support the view that their mental and psychological safety would be threatened by publication. Ms Dyhrberg also referred to the reasons given by Ms K for opposing publication of the defendant’s name. Confronting the difficulty that the news media have already published the defendant’s name, Ms K’s name and T’s full name, Ms Dyhrberg submits that further harm would be caused by publication of a report of the sentencing hearing, even though reports of the arraignment and guilty plea would remain available on the internet if searches were undertaken.
The Crown
[31] While acknowledging Ms K’s support for name suppression, Mr Rhodes distinguishes Stuff Ltd v R and submits that the threshold test of undue hardship is not met because:
(a)Ms K has a different surname to the defendant and there is no automatic connection between the two; anyone who knows about the connection between them will already be well aware of the circumstances.
(b)Although V shares the defendant’s last name at least as part of her name, it is unlikely that V will be affected by the association for some time, which is likely to mean that there will be less of an impact on her if and when people discover her association with the defendant later in her life.
[32] Mr Rhodes places his strongest emphasis on what he describes as the futility of making an order prohibiting future publication in light of the publicity given to the defendant’s guilty plea.
Discussion
The threshold considerations
[33] Any adult or child is likely to suffer some hardship by association as a consequence of the publication of the name of an immediate family member who has been sentenced for committing a serious crime. That is particularly likely to be the case where a death has occurred as a result of extreme violence in the home against a very young child. I acknowledge that it will be upsetting for Ms K to contemplate the continued reminder of the circumstances of T’s death on the internet and her concern to keep out of the public eye, for V’s sake, the tragic circumstances of her younger daughter’s death. I am inclined to accept the Crown’s proposition, however, that although these consequences are extremely unfortunate, the evidence in this case does not go so far as to properly characterise the hardship as excessive or greater than the circumstances warrant. I accept the submission that the circumstances in Stuff Ltd v R are different from those presented to the Court in this case. First, considerable evidence of likely hardship was provided to the Court and, second, the Crown consented or did not oppose the suppression order.
The exercise of the discretion
[34] But even if I am wrong in that and undue hardship can be made out as part of the threshold consideration, I am not persuaded to exercise my discretion in favour of suppression in light of the prior publication of the defendant’s name.
[35] There is no evidence that Ms K has suffered any further harassment of the kind she referred to in supporting the continuation of interim name suppression in August 2020, nor has she provided any evidence of harassment or adverse consequences for her of the publication of the defendant’s name in connection with his guilty plea on 17 March 2021. Ms K will doubtless experience distress at reports of the defendant’s sentencing containing references to his name, from which his association with her will
be inferred, even if her own name or that of V is not published. But the longer term effects of the continued availability of such reports on the internet will not be likely to exacerbate the hardship that she has suffered to date and will suffer in future from the availability of the earlier reports. Similar considerations apply to V’s position. Since there is no jurisdiction to order the news media organisations who published those reports lawfully to take them down, the harmful effects relied upon by Ms K would not be significantly ameliorated by an order prohibiting publication of her name or V’s in connection with the sentencing hearing, even if that were possible.
[36] For these reasons, I declined the application for suppression of the defendant’s name on either of the alternative grounds advanced by Ms Dyhrberg.
Application for in-court media coverage by the taking of photographs
[37] Having held that publication of the defendant’s name would not be prohibited, it was necessary to consider the application for permission to take photographs.
[38] Ms Owen submitted that the taking of photographs in court has become “standard procedure” and that the public had a genuine interest in coverage of the sentencing because it was a significant case. First, she said, it was one of a number of infant deaths that occurred during the Level 4 lockdown in 2020, and second because it involved the death of an infant in brutal circumstances. I accept that the combination of both features of the case is, in itself, a significant matter of public interest, but I do not regard the taking of photographs as standard procedure. Even though there is frequently no opposition to photographing or video-recording sentence hearings, each case must be considered on its merits.
[39] Ms Dyhrberg forcefully submitted that proper regard can be paid to the principles of open justice by the Court’s determination that the defendant’s name may be published and that it is not necessary in the public interest to permit the taking of photographs.
[40] I agree that while it will be distressing enough for both the defendant’s and Ms K’s families, and for Ms K in particular, to know that what is an intensely personal
tragedy is receiving further publicity, their distress is likely to be compounded by both the process and outcome of the taking of photographs during the hearing.
[41] Turning to guideline 2 of the In-Court Media Coverage Guidelines 2016, I accept that open justice is desirable and I acknowledge that the media have an important role in the reporting of trials as the eyes and ears of the public. In this case, however, I am satisfied that the Court’s obligations to the victims of the defendant’s offending, and the interests and reasonable concerns and perceptions of Ms K, outweigh the wish of the news media to support the reporting of the sentencing by the use of images of the defendant. I consider also that the taking of photographs in the knowledge that his photograph will be used by the media to publicise his sentence will add to what will undoubtedly be a stressful hearing for the defendant who is still a relatively young man grieving for the loss of his daughter.
[42] In those circumstances, I considered it would be inappropriate to grant permission for the taking of photographs and I declined the application.
Interim orders
[43] Following my indication to counsel and the news media representatives that I was declining the application for permanent name suppression, Ms Dyhrberg quite properly raised with me the prospect of an appeal against my decision, saying that she would require time to consider the matter and take the defendant’s instructions. Accordingly, I made:
(a)An interim order under s 202(2) of the Act forbidding the publication of the names of Ms K and V on the ground that publication would be likely to cause them undue hardship. That order is to remain in force until 5.00 pm on Monday, 10 May 2021 unless, before then, the defendant has filed in the Court of Appeal a notice of appeal against my decision not to grant him permanent name suppression. In the event of an appeal filed before that time, the interim order for suppression shall remain in force until the further order of either the Court of Appeal or of this Court.
(b)An interim order under s 200(2)(f) of the Act forbidding publication of the defendant’s name and address or any information likely to lead to his identification on the grounds that publication would be likely to lead to the identification of Ms K and/or V whose names are suppressed by an order under s 202 of the Act. That order likewise is to remain in force until 5.00 pm on 10 May 2021 on the same terms as the order in [43](a).
[44] Ms Dyhrberg has undertaken to notify the High Court registry and the Crown Solicitor on the filing of a notice of appeal within the time limit prescribed. I direct the Registrar of this Court to notify Ms Owen of Stuff Limited and Mr Weekes of the New Zealand Herald if he receives a copy of a notice of appeal filed within time.7
Toogood J
7 I record that the Court was notified that a notice of appeal against this judgment was filed in the Court of Appeal on 10 May 2021.
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