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…

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.

Continue reading R v K

Details

AGLC: R v K [2020] NZHC 2114
Case: [2020] NZHC 2114
Decision Date: 20 August 2020

CaseChat Overview and Summary

In the High Court of New Zealand, Auckland Registry, the case of R v K was heard by Justice Peters, who delivered a judgment on 20 August 2020. The defendant, K, applied for permanent name suppression pursuant to section 200 of the Criminal Procedure Act 2011. The Crown initially opposed the application but later consented. Both parties agreed that the application could be determined on the papers. The court had previously dealt with several significant issues regarding K's mental health and fitness to stand trial, culminating in a finding of not guilty due to insanity.

The primary legal issue before the court was whether K’s permanent name suppression should be granted. This required a two-stage enquiry, as outlined by the Court of Appeal in Fagan v Serious Fraud Office. Firstly, the court had to determine if one or more of the threshold grounds in section 200(2) of the CPA was met, and secondly, if it was appropriate to exercise the court's discretion to grant name suppression considering the competing public interests. The court examined various expert reports and submissions from counsel, particularly a recent report from Dr. Shanmukh Lokesh, a consultant forensic psychiatrist. Dr. Lokesh concluded that publication would cause significant hardship to K due to his fragile mental state and history of relapse under stress.

Considering the evidence, Justice Peters found that publication would indeed cause extreme hardship to K, aligning with section 200(2)(a) of the CPA. The court also acknowledged the public interest in open justice but found it to be limited given the circumstances. There was a countervailing public interest in fostering K's recovery, which publication could jeopardise. Therefore, the court exercised its discretion to grant permanent name suppression, balancing the competing interests.

In conclusion, the court issued orders for the permanent non-publication of K's name, address, occupation, and any identifying particulars. It also prohibited the publication of any related report, evidence, matter, or submission and restricted access to the court file without leave from a judge. The decision reflects the court's consideration of K's mental health and the broader public interest in both open justice and the rehabilitation of the defendant.

Orders