R v M

[2024] NZHC 676

ORDER PROHIBITING PUBLICATION OF NAME, ADDRESS,

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

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

I TE KŌTI MATUA O AOTEAROA WHANGĀREI-TERENGA-PARĀOA ROHE

CRI-2021-227-1

[2024] NZHC 676

THE KING

v

M

Judgment:

(On the papers)

25 March 2024

JUDGMENT OF BREWER J

[Application for suppression of name]

This judgment was delivered by me on 25 March 2024 at 11.45 am

Registrar/Deputy Registrar

Solicitors/Counsel:

MWIS (Whangārei) for Crown

R M Mansfield KC (Auckland) for Defendant

R v M [2024] NZHC 676 [25 March 2024]

Introduction

[1]M applies for permanent name suppression.

[2]        M was found guilty of murder by a jury. The homicide occurred on 7 January 2021 when M was 14 years old. He killed an adult acquaintance by stabbing him many times.

[3]        On 25 July 2023, the Court of Appeal1 quashed M’s sentence of life imprisonment and substituted a sentence of 13 years’ imprisonment with a minimum period of imprisonment of five years and two months.

[4]        M has had interim name suppression throughout. At his sentencing he applied for the interim order to be made permanent. I postponed making my decision until after the Court of Appeal’s judgment was delivered since it would be highly relevant.

[5]        In my Minute of 6 October 2023, I pointed out that the submissions and reports going to the application were made in June or July 2022. I asked whether counsel wished to update their submissions or provide further materials. I also asked whether the victim’s family continues to oppose permanent name suppression (as was the position at sentencing).

[6]        Mr Mansfield KC2 advised that he would provide further materials going to M’s progress in the custody of Korowai Manaaki. I gave him until 1 December 2023 to do so. Nothing was received by that date, which surprised me. On 13 March 2024, I pointed out the absence. The next day I received a short memorandum.

[7]        The Crown maintains its opposition to the application. On 13 March 2024 it advised that the victim’s family continues to oppose permanent name suppression.

1      M (CA434/2022) v R [2023] NZCA 319.

2      In memoranda dated 27 October 2023 and 17 November 2023.

The law

[8]        I may make an order forbidding publication of M’s name only if I am satisfied that publication would be likely to cause him extreme hardship.3

[9]        The definition of “name” includes any particulars likely to lead to the person’s identification.4

[10]“Likely” has been held to mean “the existence of an appreciable risk”.5

[11]      A two-stage analysis is required. I must first be satisfied that publication of M’s name would be likely to cause him extreme hardship. If I am, then I must determine whether in the exercise of my discretion I should forbid publication of M’s name.

[12]As Jagose J explains:6

[8]The first stage:

… insists that the court determine on what principled basis suppression might be granted. The legislation does not impose a burden of proof but the presumption will apply unless the applicant can point to something to displace it.

The applicant “must establish one of the prerequisites. This is a threshold test, not a balancing exercise”.

[9]        The second stage must decide if “suppression [is] in the public interest”. Consistent emphasis is placed on “the importance of openness in the reporting of judicial proceedings and the right of the media to report on what happens in court fairly and accurately as ‘surrogates of the public’”. At the second stage:

… the Court must balance relevant considerations in the exercise of discretion. The open justice principle must be considered at this stage, notwithstanding that the threshold has been crossed. That is so because the ultimate question remains whether open justice should yield. The balance must “clearly favour” suppression.

[10]      Where the threshold quality is of ‘extreme hardship’, that means “severe suffering or privation”. The adjective ‘extreme’ adds to the meaning

3      Criminal Procedure Act 2011, s 200.

4      Section 194.

5      Huang v Serious Fraud Office [2017] NZCA 187 at [9].

6      R v EF & FG [2022] NZHC 1741.

of hardship or undue hardship by requiring something significantly more again. Assessing if hardship has the necessary quality:

… cannot take place in a vacuum. It is self-evidently contextual and in our view must entail a relative comparison between the contended hardship and the consequences normally associated with a defendant’s name being published. It must be something beyond the ordinary associated consequences. …

It is “a comparative standard”:

… [requiring] that the Court compare the consequences of publication in the instant case with those that normally attend prosecution. Distress, embarrassment and adverse personal and financial consequences usually attend criminal proceedings, and something out of the ordinary is needed if the applicant is to get across the threshold.

(footnotes omitted)

[13]      M is a young person who was tried and convicted in this Court. The principle of open justice applies to the reporting of his case. When it comes to name suppression a young person is not (yet) in a special category. However, the Court has to deal with a young person in a manner that takes account of their age.7 So, when considering each stage of the analysis the young person’s best interests must be a primary consideration.8 I note in this context that the Court of Appeal has recognised the vulnerability of young people to publication of proceedings on social media.9

Experts’ reports

[14]      Dr Caleb Armstrong, a forensic psychiatrist, provided Mr Mansfield with a report dated 13 May 2022. It is largely concerned with how a lengthy prison sentence would likely affect M. He makes the common sense point that if M loses name suppression then when he is released from prison it may adversely affect his chances of gaining employment and his general social relationships. Dr Armstrong also opines that the public interest in an offender’s identity relates partially to what can be inferred by a member of the public about their character and risk. This may not be relevant to a young person because they can grow out of their criminality.

7      New Zealand Bill of Rights Act 1990, s 25(i); United Nations Convention on the Rights of the Child.

8      DP (CA418/2015) v R [2015] NZCA 476, [2016] 2 NZLR 306.

9      X (CA226/2020) v R [2020] NZCA 387 at [51]–[54].

[15]      There is also a report from Dr Ian Lambie, an experienced registered clinical psychologist. Again, it is largely aimed at the effects on M of an indeterminate sentence of imprisonment.

[16]      Dr Lambie also gives general information relating to the negative long-term consequences for children whose names are published in the context of having committed a murder. For example:

27.Being labelled is associated with higher rates of recidivism, whether as a self-fulfilling prophecy; as shaping a young person’s belief that they are unable to change because their ‘criminal’ identity is fixed; or because of more practical outcomes of being unable to secure employment, housing or prosocial relationships as a notorious, convicted ‘killer’. Young people who offend are still able to develop and mature towards a prosocial life, but not if their history is all that is known, with negative impacts on a teenager’s sense of identity, self- worth, sense of belonging and hopes of successfully rebuilding their future. In UK research following young homicide offenders across 35 years, the label of ‘murderer’ was described as ‘highly disorientating’ to them (and their families), an identity associated with ‘crippling self-stigma’ and acute psychological distress including suicidal ideation, and reinforced in prison, where their primary identity was as ‘a murderer’.

[17]      Dr Lambie does not give his opinion on how M specifically might be affected by a denial of name suppression.

The submissions

[18]Mr Mansfield refers to the decision of the Court of Appeal in DP v R:

8.43DP appealed the decision to refuse permanent name suppression to the Court of Appeal. The Court began by establishing four general principles for name suppression applications by children and youth: 10

(a)There is a settled presumption in favour of open reporting, based on the two fundamental principles of open justice and freedom of expression and extending to all aspects of the criminal process including public identification of a person convicted of an offence.

(b)Publication of name is also an element of the penal process. Public identification takes account of an offender’s culpability, and is an important component of the sentencing requirement of holding an offender accountable for the harm done to society for his or her crime.

10     DP (CA418/2015) v R [2015] NZCA 476 at [9].

(c)In recognition of the open justice principle and to reinforce judicial consistency in exercising the power to suppress publication, s 200 of the CPA was enacted for the purpose of introducing objective and arguably more onerous criteria including the test of extreme hardship.

(d)Parliament has not expressly placed a young person – that is, somebody under the age of 17 years – in an exempt or special category for the purposes of name suppression. If the Youth Court had jurisdiction to deal with DP he would have been entitled automatically to suppression. However, where a young person is dealt with in the High Court, normally in cases of serious offending, that Court’s rules and procedure apply.

[19]      However, the Court of Appeal also recognised that children “suffer a greater degree of hardship than an adult because they lack the requisite maturity to deal with the attendant publicity”.11

[20]      Mr Mansfield endorses the comments of Dr Armstrong and Dr Lambie. He submits that if M is not granted name suppression he will become a household name and would never escape the title of “murderer” which his conviction would give him. He submits that M already suffers from Post Traumatic Stress Disorder and this would be exacerbated by publication of his name and the lifelong attention it would bring.

[21]      In terms of the second step in the name suppression inquiry, Mr Mansfield submits that M’s risk of future offending is significantly less than that of an adult and accordingly the public interest in knowing his name is less.

[22]      In his memorandum dated 14 March 2024, Mr Mansfield points out that M will be eligible for parole on 8 March 2026 when he is 19 years old. M is currently in the Youth Unit of Christchurch Men’s Correctional Facility and it is expected he will remain there until he is eligible for parole. Mr Mansfield continues to rely substantively on his 2022 submissions.

Discussion

[23]      From one point of view M’s case for name suppression is quite simple to resolve. He has committed murder and has been sentenced to a lengthy term of imprisonment, but not life imprisonment. There is little apart from his age that points

11 At [23].

to any adverse consequences to him of his name being published which is outside the normal range of consequences.

[24]      But the fact of his age, and how it should be regarded, complicates the assessment. The law has not yet developed to the point where youth carries a presumption of extreme hardship if permanent name suppression is not granted. There is, however, judicial appreciation of the likely and increased adverse consequences for a young person if their name is published in the context of a conviction for murder. The general consequences are discussed by Dr Armstrong and Dr Lambie and form the basis of Mr Mansfield’s submissions on behalf of M.

[25]      I am invited to draw an inference that the general consequences so identified will likely apply to M and thus constitute extreme hardship.

[26]      The right of the public to be informed of what happens in the criminal courts is an important aspect of our democracy. There are many statements by the higher courts attesting to the importance of this right. Nevertheless, the trend is to put the right of the public to know what is happening in the courts, particularly where the charge is murder, to one side when it comes to young people. But, I have to apply the law as it is currently.

[27]      Apart from a reference to Post Traumatic Stress disorder, I have no evidence that publishing M’s name would cause him, specifically, “severe suffering or privation”. The context is important. I accept that because of his age at the time of the offending publicity will be harder for M to deal with than it would for a mature adult. But, the reality is that a great many people already know his name in relation to the murder: including his family and friends; the family and friends of the deceased; the jury; court staff; the staff at the facilities where he has been held; his fellow inmates; and, the uncountable numbers who have read social media posts from any of the above who have named him. So, he has already spent more than three years with everyone he is in contact with knowing that he committed murder. I acknowledge that degree of notoriety, of course, is far less than would result from a public media campaign.

[28]      I do not know whether, over the period since his sentencing, M has risen on a pro-social trajectory. I do not know whether he has a particular need of protection.

[29]      I conclude that unless I am able to infer presumptively that the general consequences to which I have referred will likely accrue to M then the threshold of extreme hardship will not be crossed. I am not, as a matter of law, able to do that. The first stage threshold is not crossed.

[30]      If I were wrong in this assessment, and because of his youth and his particular circumstances, he would suffer extreme hardship if name suppression lapses, then I would exercise my discretion to grant M permanent name suppression. That would be because if a young person convicted of murder has a chance of maturing into a productive member of society, then that chance should be increased as much as reasonably possible. The right of the public to know can be outweighed by the benefit to the public of doing what is possible to prevent a young person from becoming a recidivist offender.

[31]      I have taken into account s 208 of the Criminal Procedure Act 2011, which provides:

208     Duration of suppression order and right of review

(1)A suppression order—

(a)may be made permanently, or for a limited period ending on a date specified in the order; and

(b)if it is made for a limited period, may be renewed for a further period or periods by the court; and

(c)if it is made permanently, may be revoked by the court at any time.

(2)If the term of a suppression order is not specified, it has permanent effect.

(3)A suppression order may be reviewed and varied by the court at any time.

[32]      Therefore, there is really no such thing as permanent name suppression since the court can at any time revoke or vary an order for permanent name suppression.

But that is a consideration which is relevant to the second and discretionary stage of the inquiry and that is where I have taken it into account.

Decision

[33]M’s application for permanent name suppression is dismissed.

[34]      I am confident that M will wish to appeal my decision. To give him that opportunity, I extend name suppression until 2.15 pm on 26 April 2024.

Brewer J