R v K

[2024] NZHC 135

ORDER PROHIBITING PUBLICATION OF NAME, ADDRESS,

OCCUPATION OR IDENTIFYING PARTICULARS OF DEFENDANT PURSUANT TO S 200 CRIMINAL PROCEDURE ACT 2011.

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CRI-2022-085-0938

[2024] NZHC 135

THE KING

v

K

Hearing:

10 July 2023 and on the papers

Counsel:

W J Tupua for Crown

P H Mitchell for Defendant

Judgment:

9 February 2024

JUDGMENT OF ELLIS J

[1]                  Mr K faced one charge of being an accessory after the fact to wounding with intent to cause grievous bodily harm arising out of an incident that occurred in Wellington on 23 April 2022.1 The two principal offenders have since pleaded guilty and been sentence to imprisonment.

[2]                  On 10 July 2023, I indicated that if Mr K pleaded guilty to that charge, I would discharge him without conviction. He immediately did plead guilty, and I did discharge him without conviction.

1      Pursuant to the Crimes Act 1961, ss 71(1) and 312.

R v K [2024] NZHC 135 [9 February 2024]

[3]                  Central to the discharge decision was Mr K’s age at the time of the relevant events, his previous good character, his compliance with restrictive bail conditions and his rehabilitative prospects.

[4]                  Prior to the indication and the guilty plea Mr K had been granted name suppression. Following the discharge, he sought for that suppression order to be made permanent. Counsel agreed that I could deal with that matter effectively on the papers.

[5]                  Regrettably, it has taken me some time to attend to that and I do so now, in this judgment.

Discussion

[6]                  It does not inexorably follow from a discharge without conviction that a suppression order should be made; one of the threshold requirements in s 200(2) of the Criminal Procedure Act 2011 must still be met.2 That said, there are cases in which permanent suppression orders have (on their own facts) been made following a discharge.3 And sometimes, some of the factors that led the Court to conclude that the direct and indirect consequences of conviction would be all proportion to the gravity of the offending will also have a bearing on the question of extreme hardship under  s 200(2)(a) of the Criminal Procedure Act. I find that to be the case here.

[7]                  Put briefly, the offending to which Mr K was an accessory was serious and relatively high profile. It has received a fair amount of media attention. Mr K’s part in it was (as the discharge suggests) relatively minor or peripheral. The publication of his name in connection with that offending has the potential to do his rehabilitative and future employment prospects significant harm. That potential for harm is potentially further magnified because of his age. In my view this case is virtually indistinguishable from the case of Mr S, in R v S, where permanent suppression was ordered on the grounds of extreme hardship.4 I consider that is the right result here.

2      W v Police [2019] NZHC 1165 at [11]; and Allied Press Ltd v Police [2017] NZHC 2773, [2017] NZAR 1655 at [35]. See also the comments of the Supreme Court in ASG v Hayne [2017] NZSC 59, [2017] 1 NZLR 777 at [84]–[86].

3      For example, in W v Police, above n 2; and R v S [2022] NZHC 2944.

4      R v S, above n 3.

[8]                  In what I assess to be the unlikely event of further offending by Mr K the question of revocation could, of course, be considered.5 But at this juncture I make a final order suppressing Mr K’s identity in connection with the offending.

Rebecca Ellis J

Solicitors:
LCC, Wellington

5      Even permanent suppression orders can be revoked at any time: Criminal Procedure Act 2011,   s 208(1)(c).