R v K

[2020] NZHC 2114

PERMANENT 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 AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2019-092-11229

[2020] NZHC 2114

THE QUEEN

v

K

Hearing:	On the papers
Counsel:	A F Devathasan for Crown K Allen for Defendant
Judgment:	20 August 2020

JUDGMENT OF PETERS J

This judgment was delivered by Justice Peters on 20 August 2020 at 4.15 pm pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar Date: ...................................

Solicitors:Kayes Fletcher Walker Ltd, Crown Solicitor, Manukau Public Defence Service, Manukau

R v K [2020] NZHC 2114 [20 August 2020]

Introduction

[1]                 This judgment determines K’s application of 10 July 2020 for permanent name suppression (“application”). Although initially opposed, the Crown now consents to the application.1 Both Crown and defence counsel are content I should determine the application on the papers.

Background

[2]                 I am very familiar with the criminal proceeding against K because, since March 2020, I have:

(a)determined K was mentally impaired but fit to stand trial — s 8A Criminal Procedure (Mentally Impaired Persons) Act 2003 (“CPMIP”);2

(b)found K not guilty of the charges he faced on account of his insanity at the time of the offending — s 20 CPMIP;3 and

(c)decided the most suitable method of dealing with K  — ss 24 and     25 CPMIP.4

[3]                 The background to this proceeding is in those decisions, so I need not repeat it.

Application

[4]                  The application is made pursuant to s 200(2)(a) Criminal Procedure Act 2011 (“CPA”). The relevant part of s 200 CPA provides:

200     Court may suppress identity of defendant

(1)A 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.

1      Memorandum Regarding Name Suppression Application dated 6 August 2020.

2      R v K [2020] NZHC 504 [12 March 2020].

3      R v K [2020] NZHC 1350 [16 June 2020].

4      R v K [2020] NZHC 1403 [19 June 2020].

(2)The court may make an order under subsection (1) only if the court is satisfied that publication would be likely to—

(a)cause extreme hardship to the person charged with, or convicted of, or acquitted of the offence, or any person connected with that person; or

...

(6) When determining whether to make an order or further order under subsection (1) that is to have effect permanently, a court must take into account any views of a victim of the offence conveyed in accordance with section 28 of the Victims’ Rights Act 2002.

[5]                 I record views of the nature referred to in s 200(6) CPA have not been conveyed to the Court.

Discussion

[6]                 It is necessary to undertake a two-stage enquiry, as outlined by the Court of Appeal in Fagan v Serious Fraud Office:5

(a)the Court must be satisfied that one or more of the threshold grounds in s 200(2) CPA has been established; and

(b)the Court must be satisfied that it is appropriate to exercise its discretion to grant name suppression taking into account the competing interests of the public.

[7]                 As to the first limb of the test, in the course of determining the matters to which I have already referred, I have considered the many expert reports provided to the Court. These reports canvass in detail K’s condition, his history, his somewhat chequered record of compliance with medication, and his optimum course of treatment.

[8]                 I have also received very helpful submissions from Ms Allen, counsel for K, and from Crown counsel, Ms Devathasan, in respect of the application, and Ms Allen also filed and served a report from Dr Shanmukh Lokesh, a consultant forensic

5      Fagan v Serious Fraud Office [2013] NZCA 367 at [9]. See also Robertson v Police [2015] NZCA 7 at [39]–[42].

psychiatrist, dated 3 August 2020. It was on receipt of this report that the Crown determined that it would consent to the application.

[9]                 Dr Lokesh prepared his report shortly after meeting K and familiarising himself with K’s clinical records and other material.  In [57]  to [59] of his report,  Dr Lokesh states:

57.Given [K’s] fragile mental state and his low threshold to relapse under stressful situations, as noted historically, the loss of name suppression or any publication of his name would result in an escalation of his mood symptoms. A relapse of manic symptoms secondary to the bipolar affective disorder are common features when exposed to stress and would affect [K’s] ability to engage in any meaningful rehabilitation. The nature of the stressors and his poor coping strategies would exacerbate his manic symptoms and complicate the management of his condition.

58.In my balanced view, the loss of interim suppression orders is likely to cause significant hardship to [K]. I understand that [K] has some forensic history. However, the recent charges are somewhat unusual and clearly driven by a relapse of his major mental illness. They would significantly decompensate his mental state if published. As noted, he was successful in his insanity defence, and any loss of name suppression would be considered a stigma/barrier for his future recovery.

59.Based on my assessment, [K] continues to present in a fragile mental state and is in the early stages of recovery. Although his mood symptoms are optimally treated, he is still fragile in community, and his family support is somewhat difficult.

[10]              Given Dr Lokesh’s report, I accept Ms Allen’s submission publication would cause extreme hardship to K in the sense of s 200(2)(a) CPA. This appears from the content of [57] and [58] particularly, which are self-explanatory and to which there is nothing I can usefully add.

[11]              Turning to the second limb of the test, there is a public interest in publication because it serves the principle of open justice. However, as counsel submit, the public interest in this particular matter is limited. The index offending was not the most serious of its kind and derived from K’s deteriorating mental health. In addition, and again as counsel submit, there is a countervailing public interest in fostering K’s recovery. This will require K to continue to comply with the advice of the mental health professionals treating him and, in particular, to take the medication he is

prescribed. It is clear from Dr Lokesh’s report that publication might jeopardise these objectives which, as I have said, there is a public interest in pursuing. For these reasons, I am satisfied that I should exercise my discretion to grant K permanent name suppression.

Result

[12]I make orders:

(a)for the permanent non-publication of K’s name, address, occupation and any particulars likely to lead to his identification; and

(b)prohibiting publication of any report, evidence, matter or submission referred to or identified herein; and

(c)prohibiting access to the Court file in this proceeding without the leave of a Judge of this Court.

[13]I reserve leave to apply.

Peters J