R v MRL
[2023] NZHC 2203
•16 August 2023
NOTE: PUBLICATION OF DEFENDANT’S NAME OR ANY PARTICULARS LIKELY TO LEAD TO DEFENDANT’S IDENTIFICATION IS FORBIDDEN: S 200, CRIMINAL PROCEDURE ACT 2011. SEE
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IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY
I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE
CRI-2022-019-4775
[2023] NZHC 2203
THE KING v
MRL
Hearing: 30 November 2022 and 9 August 2023 Appearances:
R L Mann for Crown R E Webby for MRL
Date of judgment:
16 August 2023
JUDGMENT OF JAGOSE J
This judgment was delivered by me on 16 August 2023 at 3.00pm.
………………………… Registrar/Deputy Registrar
Counsel/Solicitors:
Rebekah Webby, Barrister, Tauranga Hamilton Legal, Hamilton
R v MRL [2023] NZHC 2203 [16 August 2023]
[1] MRL faces separate charges she intentionally injured and later murdered a child,1 for trial in November 2023. The child, who died on 9 April 2022, was the 26-month-old daughter of MRL’s partner, who had day-to-day care of the child since the child was three months old. MRL was 16 years old at the time her partner obtained care of the child and 18 years old at the time of the child’s death. She was charged with the child’s murder in November 2022.
[2] MRL presently has interim name suppression.2 Her application for continued name suppression — made principally on the ground of “extreme hardship”3 — initially was heard by me on 30 November 2022 and adjourned, after my preliminary indication her application (made on the basis of adverse, predominantly social media, publicity) would not succeed, to enable her “to substantiate another foundation for non-publication”.4 MRL’s application since has expanded to include her mental health. This is my judgment on that application.
[3] It is relevant, despite the parties’ compliance with my directions to enable prompt determination of the adjourned application, its hearing only resumed on 9 August 2023 during adjournment of an unrelated three-week criminal trial before me. It also is relevant the proceeding overall has “languished” and substantial work now is required to maintain MRL’s November 2023 trial (whether on the scheduled or a later date).5
[4] Given my trial commitments over these weeks, and the pendency of MRL’s trial, my reasons for this urgent judgment are more cursory than I would prefer.
Background
[5] MRL’s charges were the subject of media publicity and reporting, identifying MRL only as an 18-year-old or teenage girl or woman. A 4 November 2022 New Zealand Herald article reported she was charged with murder the previous day and distinguished her from the child’s mother, while recording the “scene” of the
1 Crimes Act 1961, ss 167 and 189(1).
2 Criminal Procedure Act 2011, s 200(4).
3 Section 200(2).
4 R v [MRL], HC Hamilton CRI-2022-019-4775, 30 November 2022 at [4].
5 R v [MRL], HC Hamilton CRI-2022-019-4775, 2 August 2023.
child’s death was “at the child’s home” inferentially in Hamilton and the “accused woman” was granted bail “to a Bay of Plenty property”.
[6] Online responses to the article included seemingly pseudonymous commentary directed against MRL:
“BAIL!!! You disgusting grotty pig! You deserve to rot in jail, why do you get to go back home to your bed .. that's just disgusting asf, sick to my stomach!”.
…
... and bloody child killers get name suppression .. yes, I’m angry, another wee one killed by the hands of those who should be protecting them .. no words can describe how I feel about the KILLER ...
…
I wouldn’t have faith [in] the justice system that chick will tell the court how terrible her childhood was and get off.
…
This girl does not deserve name suppression for what she did to this little child she deserves to be exposed for what she did prison doesn’t like child killers
…
How does a child murderer accused get friggen bail ....
The so called Justice system is pathetic ... Has been for far too many years ...
[7] The online comments included an enquiry “Who murdered the 2yr old? They say an 18yr old, but what relationship did it have to the child ” soliciting the response
“it was the father’s new girlfriend”, to which the enquirer replied “omg .. she better go away for that! And not to a mental institution either ... that poor wee girl” (emojis omitted). Another person asked the responder “How do you know that?” to which the responder answered “The family said it in the comment section on another article a few days ago”. For MRL, Rebekah Webby observed:
[T]he family of the child appear to be trying to name [MRL] in the media in breach of the current suppression order, despite being aware of it. In Counsel’s submission this is a targeted campaign by the family to instigate a social media backlash against [MRL] and encourage people to take actions against her. Counsel is unable to find the “naming” posts. It appears that these may have been removed by the NZ Herald.
[8] MRL explained the child’s mother had threatened her from the start of her partner’s day-to-day care of the child. After the child’s death the threats escalated: “[s]ince April 2022, I have [been] made multiple death threats. People have been trying to find our address to come around and do a variety of things to us”. Long before MRL was charged with any offending, comments from people known to her on her Facebook page included:
[21 April 2022] You dirty murderer scum
…
[16 July 2022] And just like that you failed killer The coroner knows you killed her
…
[16 July 2022] Coroners report says you killed her bitch
You scum I will kill u and u know it bitch you are a murdering cunt
…
[17 July 2022] … dunno if anyone knows how many people Harley touched My brother n I will still kill for her
[9] After MRL was charged with the child’s murder, a relative of the child’s mother also posted media commentary of “Woman, 18 arrested for murder of two-year-old” on her own Facebook page, noting “she has been given bail and appears in court next week” and (after posting screenshots of the New Zealand Herald report) adding “She MURDERED a innocent 2 year old! Police opposed her bail!!! Why would you let her go home”, obtaining responses including “get her [address] sure some would love to visit her”.
[10]MRL’s original 11 November 2022 affidavit explained:
All of these threats have made me feel very stressed. I am very worried that someone is going to find where me and my family are living. It is incredibly intimidating that I am on 24 hour curfew at my address and they will potentially have access to know where I am.
I am mentally struggling with the weight of everything. I try not to think about things because I get very overwhelmed with the entire situation. I acknowledge that I need to see a counsellor to try and process all of these things.
I have previously had issues with anxiety and depression. I feel that I am feeling worse than when I was diagnosed with those, but I have no access to a doctor or a counsellor because of my bail conditions.
[11] After I varied her bail conditions to enable such attendances, MRL began to make some progress in managing her anxiety and depression. On the basis of his 15 December 2022 interview of MRL (informed by his access to the electronic records of her past contact with mental health services), psychiatrist Dale Harrison opined:
[MRL] is suffering from a mental disorder. International Classification of Diseases (ICD 10) – a moderate depressive episode (F32.1). This is defined as depressed mood, loss of interest and enjoyment and increased fatigability with at least four other of the following symptoms, reduced concentration and attention, reduced self-esteem and self-confidence, ideas of guilt and unworthiness, bleak and pessimistic views of the future, ideas or acts of self- harm or suicide, disturbed sleep diminished appetite. [MRL] is suffering from several of these symptoms. Reduced self-esteem and self-confidence, bleak and pessimistic views of the future, ideas of self-harm, disturbed sleep and diminished appetite.
People with a moderate episode of depression are described as usually having considerable difficulty in continuing social, work or domestic activities.
In my opinion, [MRL]’s episode of depression has been caused by her stressful situation both from the trauma of the events surrounding [the child]’s death and then the subsequent legal proceedings and the bail conditions put on her - preventing her usual routine life. In my opinion, it is likely that her symptoms could worsen in the build up to her court case with the additional stress placed on her.
[12] Dr Harrison also referred to notes taken by the mental health crisis team in relation to MRL’s 16 December 2022 arrest on an alleged bail breach. The notes appear to have recorded:
[W]hen the Police arrived [to] uplift [MRL], she became highly dysregulated kicking and screaming. Her mother also became dysregulated. [MRL] was crying and stating that she was suicidal. … [W]ithin 50 minutes of arriving at the Police station, she remained calm - lying down in her cell quietly. She was assessed by the crisis service and reported feeling frightened and unsure about her future. She had never been locked in a Police cell before. She denied any plan or intent to end her life. She described her sleep problems. She engaged well with the service. Her mood was low. Her affect was reactive. There was no observed anxiety or psychotic symptoms.
Dr Harrison additionally opined:
In my view if name suppression is lifted, this will have a significant impact on [MRL]’s mental state. It is likely that she will become distressed and dysregulated in a similar way as occurred following her recent arrest for
breach of bail. Her symptoms of depression are likely to become more severe. Along with this, her functioning will suffer making it more difficult for her to cope with the court process. The risk of increased severity of suicidal or self- harm thoughts will increase along with a risk of her acting on these thoughts. The need for help, support and medication will be increased.
[13]MRL’s 7 August 2023 updating affidavit added:
I am continuing to struggle with my mental health. I have serious concerns about my name being published because I have concerns about my future including getting a job, making friends, and attending courses, with everyone being aware of what I have been charged with.
I am also worried about how I would personally react. I have been feeling very depressed and have been continually pushed by people behind the scenes about this situation. I feel that my name being published would push matters just that much further.
…
While I have had name suppression, there has been little interest in me, except for the odd message above from people who know who I am. However, I am concerned that the interest will flood in once my name is published and it will add to the way that I am currently feeling about my existence.
[14] Although not seeking suppression of their own identities as connected persons,6 MRL’s parents — to whose address she is bailed on 24-hour curfew, and only in whose company she may attend appointments away from the address — are concerned, if MRL’s name suppression was not to continue, their specialised business may seriously be affected in a range of ways. They also are concerned for their and MRL’s safety at their isolated rural address. And, of course, they are concerned for MRL’s welfare.
The law
[15] The Criminal Procedure Act 2011 — in its general provisions, under a subpart to address “[p]ublic access and restrictions on reporting” — establishes:7
… proceedings are generally open to the public.8 There is a power to clear the Court but that does not, in most cases, allow for the exclusion of the media.9
…
The Court also has power to suppress names and other identifying particulars of the defendant, witnesses, victims and connected persons as well as evidence
6 Criminal Procedure Act, s 202.
7 ASG v Hayne [2017] NZSC 59, [2017] 1 NZLR 777 at [13]–[15].
8 Criminal Procedure Act, s 196.
9 Sections 197 and 198.
and submissions where the statutory thresholds are met.10 Section 200(1) states that 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”.11
[16]Section 200, with “a lengthy provenance”,12 continues:
Court may suppress identity of defendant
…
(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
(b)cast suspicion on another person that may cause undue hardship to that person; or
(c)cause undue hardship to any victim of the offence; or
(d)create a real risk of prejudice to a fair trial; or
(e)endanger the safety of any person; or
(f)lead to the identification of another person whose name is suppressed by order or by law; or
(g)prejudice the maintenance of the law, including the prevention, investigation, and detection of offences; or
(h)prejudice the security or defence of New Zealand.
(3) The fact that a defendant is well known does not, of itself, mean that publication of his or her name will result in extreme hardship for the purposes of subsection (2)(a).
(4) Despite subsection (2), when a person who is charged with an offence first appears before the court the court may make an interim order under subsection (1) if that person advances an arguable case that one of the grounds in subsection (2) applies.
(5) An interim order made in accordance with subsection (4) expires at the person’s next court appearance, and may only be renewed if the court is satisfied that one of the grounds in subsection (2) applies.
(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 16B of the Victims’ Rights Act 2002.
10 Sections 200, 202 and 205. Section 206 deals with the Registrar’s power to make and renew interim suppression orders.
11 Unless the context otherwise requires, “name” is defined to mean “the person’s name and any particulars likely to lead to the person’s identification”: s 194.
12 ASG v Hayne, above n 7, at [29].
‘Likely’, for the purposes of s 200(2), does not mean publication’s more probable consequence, but only “the existence of an ‘appreciable risk’”.13 Also, ‘name’ means “the person’s name and any particulars likely to lead to the person’s identification”;14 and ‘publication’ means “publication in the context of any report or account relating to the proceeding”.15
[17] Name suppression does not make the name-suppressed person’s identity secret, but only prohibits publication ‘in the context of any report or account relating to the proceeding’ of anything risking their identification. By default, criminal proceedings remain held in courts open to the public, in which name-suppressed defendants nonetheless are identifiable and identified. A corollary of open justice is people involved in court proceedings necessarily will be identified:16
… a public trial is the best security for the pure, impartial and efficient administration of justice and the best means for winning public confidence in and respect for the system.
But suppression derogates from open justice in the right to freedom of expression to publish accounts and reports of court proceedings.17
[18] Reasons must be given for suppression decisions.18 A two-stage analysis is required:19
At the first stage the court considers whether the consequences in s 200(2) would likely follow publication of the person’s name. This is a threshold determination.
At the second stage, if the threshold is crossed, the court considers whether an order should be made as a matter of discretion.
[19]The first stage:20
13 Huang v Serious Fraud Office [2017] NZCA 187 at [9], citing R v W [1998] 1 NZLR 35 (CA) at 39, interpreting ss 139 and 140 of the Criminal Justice Act 1985, Beacon Media Group Ltd v Waititi [2014] NZHC 281 at [21] and Wallis v Police [2015] NZHC 2904 at [22].
14 Criminal Procedure Act, s 194.
15 Criminal Procedure Act, s 195.
16 Clark v Attorney-General (No 1) [2005] NZAR 481 (CA) at [11], citing Scott v Scott [1913] AC 417 at 463.
17 McIntosh v Fisk [2015] NZCA 247, [2015] NZAR 1189 at [1], citing JXMX (A Child) v Dartford & Gravesham NHS Trust [2015] EWCA Civ 96, [2015] 1 WLR 3647 at [5]–[12].
18 Criminal Procedure Act, s 207.
19 Ratnam v R [2020] NZCA 92 at [5]–[6], citing DP v R [2015] NZCA 465, [2016] 2 NZLR 306 at
[6].
20 D (CA443/2015) v Police [2015] NZCA 541, (2015) 27 CRNZ 614 at [10].
… insists that the court determine on what principled basis suppression might be granted.21 The legislation does not impose a burden of proof but the presumption will apply unless the applicant can point to something to displace it.22
The applicant “must establish one of the prerequisites. This is a threshold test, not a balancing exercise”.23
[20] The second stage must decide if “suppression [is] in the public interest”.24 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’”.25 At the second stage:26
… 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.
[21] Where the threshold quality is of ‘extreme hardship’, that means “severe suffering or privation”. The adjective ‘extreme’ adds to the meaning of hardship or undue hardship by requiring something significantly more again.27 Assessing if hardship has the necessary quality:28
… 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”:29
21 Robertson v Police [2015] NZCA 7 at [43]–[46].
22 R v Liddell [1995] 1 NZLR 538 (CA) at 546; and Lewis v Wilson & Horton Ltd [2000] 3 NZLR 546 (CA) at [41]–[43].
23 Sansom v R [2018] NZCA 49 at [10], citing Fagan v Serious Fraud Office [2013] NZCA 367 at [9]–[10] and Robertson v Police, above n 21, at [44]–[46].
24 At [10].
25 At [11], citing R v Liddell, above n 22, at 540, and Erceg v Erceg [2016] NZSC 135, [2017] 1 NZLR 310 at [2].
26 D (CA443/2015) v Police, above n 20, at [12], citing Lewis v Wilson & Horton Ltd, above n 22, at [43].
27 Sansom v R, above n 23, at [32], citing Robertson v Police, above n 21, at [48].
28 Robertson v Police, above n 21, at [49], citing Jeffries v Police [2014] NZHC 2379 at [24].
29 D (CA443/2015) v Police, above n 20, at [11], citing Lewis v Wilson & Horton Ltd, above n 22, at [42]; and Robertson v Police, above n 21, at [49].
… [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.
Discussion
[22] As a ‘comparative standard’, the requisite hardships must be assessed against the ‘normal’ consequences of identification not only in accounts or reports relating to court proceedings, but also in accounts or reports absent any proceeding.
[23] In a proceeding similar to this, in which adverse social media commentary preceded any charge, I found “the fear, loss and pain occasioned by such communications [were] unconnected to any account or report relating to [the] proceeding”.30 While acknowledging the “distressing” communications, the Court of Appeal accepted “the Court is not the arbiter of social media standards”.31 Similarly here, I do not consider MRL’s prospective identification in mainstream or social media might constitute comparative ‘extreme hardship’.
[24] The Court of Appeal also recently has affirmed “the principles that apply where suppression is sought on the basis that publication will cause the defendant to self-harm or commit suicide” as requiring “something more than the usual feelings of anxiety and despair that may attend proceedings”.32 For example, if “the defendant is psychologically troubled for other reasons and is particularly susceptible to publicity”, perhaps “coupled with evidence that the case will attract unusually extensive or critical media publicity”.33
[25] Dr Harrison is clear MRL’s depression is not ‘for other reasons’, but directly due to the instant events.34 As I previously have said, MRL’s susceptibility is likely to be “the regrettably ‘normal’ and ‘ordinary’ consequences of such ignorant, repugnant and entirely unjustified communications irrespective of any proceeding”,35 in response
30 R v [S] [2022] NZHC 1339 at [30].
31 S v R [2022] NZCA 383 at [15] and [17].
32 Lee v R [2023] NZCA 305 at [32], affirming D (CA443/2015) v Police, above n 20, at [30].
33 D (CA443/2015) v Police, above n 20, at [30(c)].
34 At [11] above.
35 R v [S], above n 30, at [30].
to the sort of hypercritical publicity that is “endemic in the medium”.36 I do not consider the communications’ threats to MRL, objectionable as they are in resort to ‘vigilante justice’, alone make it likely publication would endanger the safety of any person.
[26] The usual expectation is suppression orders substantively are dealt with at an early stage in criminal proceedings, on a defendant’s next appearance after any grant of interim suppression.37 I have explained elsewhere:38
[U]nless made “for a limited period ending on a date specified in the order” (or “renewed for a further period or periods”, inferentially to specified dates)[, then] suppression orders (including if made for an unspecified term) are “made permanently”, but nonetheless open to review and variation “at any time”.
In those circumstances, if suppression orders then are not made or renewed, there usually remains adequate time before trial for a defendant to adjust to publicity of their identity.
[27] Regrettably, given delays in addressing her application, that cannot now be the position for MRL. Ms Webby emphasises she only just has received voluminous disclosure in this previously ‘languishing’ proceeding, on which she requires MRL’s dedicated and detailed instruction, and fears any recurrence of MRL’s ‘dysregulation’ in response to loss of name suppression will put her trial preparation at risk.
[28] Given Dr Harrison’s additional opinion as to the likelihood of MRL’s dysregulation in the event of publicity,39 in MRL’s particular circumstances at this late stage of preparation for trial, I consider her identification now would be likely to create a real risk of prejudice to her fair trial. That crosses the first stage of the analysis. On the second stage, as the Court of Appeal has said, “the need to protect fair trial rights outweighs the general principle that Court proceedings should be transparent”.40 I will make a suppression order.
36 At [32].
37 Criminal Procedure Act, s 200(5).
38 R v EF [2022] NZHC 1741 at [13].
39 At [12] above.
40 S v R, above n 31, at [21].
[29] MRL’s qualification for suppression of her identity is as “a person who is charged with … an offence”.41 Different considerations may apply on her conviction or acquittal, when hardship issues “may again become relevant … and will need to be determined having regard to the evidence then available”.42 Given present uncertainty as to the dates of trial commencement or completion, I am unable to specify a date for any limited period of the suppression order. It therefore will be “made permanently”, but open to review and variation “at any time”.
Result
[30] I order publication of MRL’s name, address or occupation, as a person charged with offences, is forbidden.
—Jagose J
41 Criminal Procedure Act, s 200(1).
42 S v R, above n 31, at [14].
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