R v N
[2012] NZHC 2042
•15 August 2012
NOTE: PURSUANT TO S 200(2)(D) OF THE CRIMINAL PROCEDURE ACT
2011 PUBLICATION OF NAMES, ADDRESSES, OCCUPATIONS OR IDENTIFYING PARTICULARS OF ACCUSED IS PROHIBITED.
ORDER PROHIBITING PUBLICATION OF NAMES, ADDRESSES, OCCUPATIONS OR IDENTIFYING PARTICULARS OF VICTIM PURSUANT TO S 202 CRIMINAL PROCEDURE ACT 2011.
IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY
CRI-2012-043-000996 [2012] NZHC 2042
THE QUEEN
v
N
Hearing: 15 August 2012
Counsel: C E Clarke for Crown
K E Pascoe for Accused
Judgment: 15 August 2012
Reasons: 15 August 2012
REASONS FOR JUDGMENT OF COLLINS J
[1] Today, N has pleaded not guilty to murdering K on 15 April 2012 at Urenui. This trial is scheduled to commence in the New Plymouth High Court on
19 November 2012.
[2] N is 13 years old. He asks that I suppress publication of his name on the grounds that if he has to endure publicity during his trial he will either suffer extreme
R V N HC NWP CRI-2012-043-000996 [15 August 2012]
hardship and/or have his rights to a fair trial compromised. At the same time, two media organisations, MediaWorks and TVNZ have applied to film today’s proceedings.
Criminal Procedure Act 2011
[3] Section 200(1) and (2)(a) and (d) of the Criminal Procedure Act 2011 (the Act) provide that I cannot make a suppression order unless I am satisfied either, that extreme hardship will be caused to N if his name is published or, if publishing his name will create a risk of prejudice to his right to a fair trial.
The presumption of open Court proceedings
[4] The starting point when considering an application for name suppression must be the presumption of openness. This was the position which our courts had clearly articulated prior to the commencement of the Act. Thus, in R v Liddell Cooke P for the Court said:1
... the starting point must always be the importance in a democracy of freedom of speech, open judicial proceedings, and the right of the media to report the latter fairly and accurately as “surrogates of the public”.
[5] This approach has been followed on many occasions by the Court of Appeal.2
Suppressing the name of a youth charged with a crime
[6] A youth offender that is dealt with outside the jurisdiction of the Youth Court does not enjoy the statutory name suppression granted by s 483(3) of the Children, Young Persons and their Families Act 1989 (CYPFA).3 However, the youth of an accused is still relevant in determining whether name suppression should be granted
by me.
1 R v Liddell [1995] 1 NZLR 538 (CA) at 546.
2 See Proctor v R [1997] 1 NZLR 295 (CA), Lewis v Wilson & Horton [2000] 3 NZLR 546 (CA)
and Re Victim X [2003] 3 NZLR 220 (CA).
3 R v Fenton HC Auckland T992412, 1 February 2000 at [6].
[7] The Court of Appeal has recently refined the application of youth justice principles outside the jurisdiction of the Youth Court. In R v M the Court of Appeal stated that where a youth offender is transferred to the District Court or High Court, the rules and procedure of that Court will apply, except to the extent that recognition needs to be given to the United Nations Convention for the Rights of the Child
(UNCROC) and s 25(i) of the New Zealand Bill of Rights Act.4
[8] Therefore, in applying s 200 of the Act, regard must be had to: (1) Section 25(i) of the Bill of Rights which states:
Everyone who is charged with an offence has, in relation to the determination of the charge, the following minimum rights:
(i) The right, in the case of a child, to be dealt with in a manner that takes account of the child’s age.
(2) Article 40 2(b)(ii) of UNCROC which states:
2.To this end, and having regard to the relevant provisions of international instruments, States Parties shall, in particular, ensure that:
(b) Every child alleged as or accused of having infringed the penal law has at least the following guarantees:
(iii) To have the matter determined without delay by a competent, independent and impartial authority or judicial body in a fair hearing according to law, in the presence of legal or other appropriate assistance and, unless it is considered not to be in the best interest of the child, in particular, taking into account his or her age or situation, his or her parents or legal guardians ...
4 R v M [2011] NZCA 673 at [43].
[9] The particular circumstances and best interests of the child must be a primary consideration in considering whether to grant name suppression.5 Consideration has to be given to the particular challenges a young person may face in receiving a fair trial and any additional hardship they may suffer by virtue of their youth.
Prejudice to a fair trial
[10] The importance of guaranteeing a fair trial to youth offenders was affirmed by the Court of Appeal in R v Te Wini. In that case the Court of Appeal said that:6
... it was generally essential that children charged with an offence be dealt with in a manner which takes full account of their age, level of maturity and intellectual and emotional capacities, and that steps are taken to promote their understanding and participation in the proceedings. The Court took the view that it was not sufficient that the young accused were represented by skilled and experienced lawyers, who were seated next to the boys and within “whispering distance”. In the Courts opinion, it was highly unlikely that the applicants would, given the tense court room atmosphere and public scrutiny, have been sufficiently uninhibited to have consulted with trial counsel. Given their immaturity and disturbed emotional state, it was unlikely that they would have been able to cooperate with their lawyers and provide information for the purpose of their defence. Accordingly, there had been a violation of art 6 [the right to a fair trial].
[11] The Court of Appeal also noted the Lord Chief Justice’s practice note directing that special precautions be taken to ensure the fair trial of youth defendants.7 It states that the trial process should not expose a young defendant to avoidable intimidation, humiliation, or distress, and that all possible steps should be taken by the Court to ensure that the accused understands and can participate in the proceedings.
[12] This approach was adopted in New Zealand by Fisher J in a case where five out of the eight accused were less than 17 years of age:8
5 R v M at [47], where the Court of Appeal held that the child’s best interests were an important consideration in deciding whether to discharge the accused under s 347 for undue delay, and that delay which is unexceptional in the case of an adult requires greater scrutiny where the accused is a child.
6 At [22], referring to a decision of the European Court of Human Rights in T v United Kingdom
(2000) 30 EHRR 121.
7 At [23].
8 R v Kaukasi (Minute No 5) HC Auckland T014047, 4 July 2002 at [30].
... because of the age of some of these accused unusual measures are justified to reduce stress upon them and hence promote the kind of fairness of trial more readily achieved for an adult. As the “V” case in England illustrates, the difficulty in trials of this nature is that prolonged stress on young accused can disable them from taking any meaningful part in defending charges against them.
[13] Fisher J considered name suppression to be part of a “larger package” of procedural protections designed to minimise that stress to a youth accused and allow the accused to effectively conduct a defence. His Honour stated that:9
The important qualification is that youth will be a powerful additional reason for name suppression. The additional dimensions then to be considered are the youth of the accused, the possibility of unacceptable extra stress during the trial, and the seriousness of the charge. The younger the accused, the more powerful the reasons for suppressing the name. Where the accused is particularly young, or there is evidence that publication would significantly add to the stress placed upon the young accused, the case for suppression might be overwhelming. But the contrary may be true if the youth is approaching adulthood, there are no special reasons for suppression beyond his or her age, and the charge is a particularly serious one.
[14] The youngest accused in that case was 13 years of age. He was treated differently to the older offenders. Fisher J decided that lifting name suppression orders on the 13 year old would cause markedly greater stress on him during the trial and inhibit his ability to conduct a defence.
[15] In R v Edwardson the High Court lifted name suppression of a youth accused on the day her murder trial was due to commence. The Court held that to outweigh the presumption in favour of open justice, the risk to the fairness of the trial had to be more than speculative.10 The Court held that no evidence had been presented as to any particular pressure or stress which may be caused to the accused at trial, who was reaching adulthood, however it recognised that if there was such evidence, name
suppression would be justified.11
9 R v Rawiri HC Auckland T014047, 3 July 2002 at [23].
10 R v Edwardson (No 1) HC Rotorua CRI-2006-069-1101, 5 March 2007 at [26].
11 At [29].
[16] N’s trial must be conducted in such a way that reduces his feelings of intimidation and inhibition. N must be made fully aware of the Court processes, and the significance of evidence in order to participate meaningfully in the proceedings and conduct a defence. Name suppression is part of a larger package of tools at the Courts disposal to ensure these standards of a fair trial are met.
[17] The inevitable media scrutiny during the course of the trial and the naming of N will have an undue impact on N because of his age. He is likely to experience a greater amount of intimidation, humiliation, or distress during the trial. There is a real and significant risk that, by declining name suppression and restrictions on publicity, N’s ability to participate in the proceedings will be inhibited. In my judgement, the extreme pressures of media scrutiny during the course of N’s trial could easily result in N not receiving a trial of the standard to which he is guaranteed by the New Zealand Bill of Rights Act 1990.
[18] The right to a fair trial is often expressed in absolute terms. Our Supreme Court has described this right as “non-derogable” (although the subsidiary rights that ensure a fair trial are not considered in the same category).12 In Brown v
Stott, Lord Steyn stated that:13
Secondly, once it has been determined that the guarantee of a fair trial has been breached, it is never possible to justify such breach by reference to the public interest or on any other ground. This is to be contrasted with cases where a trial has been affected by irregularities not amounting to a denial of a fair trial ... however it is a grave conclusion that a defendant has not had the substance of a fair trial. It means that the administration of justice has entirely failed.
[19] There is a discernible risk that allowing publication of N’s name will compromise the fairness of his impending trial. This concern is sufficient to displace the presumption in favour of publication. Accordingly, I grant orders prohibiting publication of N’s name and identifying features until the verdict is delivered. This
order is made pursuant to s 200(2)(d) of the Act.
12 Condon v R [2006] NZSC 62 at [77].
13 Brown v Stott [2003] 1 AC 681 (PC) at 708.
[20] Although I am granting orders under s 200(2)(d) of the Act, in the interests of completeness I will make some comments about N’s alternative claim that lifting name suppression is likely to cause him extreme hardship.
[21] A very high level of hardship must be established before the threshold of “extreme hardship” is met. The hardship must be greater than “undue hardship” referred to in s 200(2)(b) and (c) of the Act.
[22] The term “extreme hardship” is not defined in that Act, but should be interpreted consistently with the high threshold that was necessary to displace the presumption of publication at common law. This threshold was often described as a “compelling reason” or a “very special circumstance” which required exceptional hardship to the accused.14
[23] The phrase “extreme hardship” appears in other legislation. Thus:
(1)A limited licence may be granted pursuant to s 105(2)(a) of the Land Transport Act 1998 to a person who has been disqualified and who establishes “extreme hardship” in order to qualify for a limited licence.
(2)A court may elect not to confiscate a motor vehicle pursuant to s 129(4) of the Sentencing Act 2002 if confiscation would result in “extreme hardship” to the offender.
[24] The learned authors of Adams on Criminal Law explain:15
Decisions on whether the very stringent standard of extreme hardship is met will depend on an objective assessment of the circumstances of the offence (including its seriousness) and of the defendant in each case. In determining whether or not the threshold is reached, it may be helpful to consider whether the hardship to the defendant arising from publication would be out
14 Re Victim X [2003] 3 NZLR 220 (CA) at [45].
15 Sir Bruce Robertson (ed) Adams on Criminal Law (online looseleaf ed, Brookers) at
[CPA200.02(1)].
of all proportion to the public interest in the application of the open justice principle.
[25] Counsel for N submits that, taking into account the UNCROC and the respect that should be paid to N’s privacy, publication of his name in this instance would cause extreme hardship to N.
[26] I could be persuaded that undermining an accused’s fair trial rights prima facie causes that person extreme hardship. However, as I have determined that in this case N’s rights to a fair trial are likely to be compromised if his name and identifying features are published, I need not take the additional step of also saying that he would suffer extreme hardship if his name and identifying features are allowed to be published.
[27] In my judgement, a distinction can be drawn between pre-verdict name suppression that is granted in order to protect N’s right to a fair trial, and suppression following a verdict. An application for name suppression after verdict would need to satisfy the higher threshold of “extreme hardship”.16
Conclusion
[28] For these reasons, the existing orders suppressing publication of N’s name and identifying features will continue. This also necessitates that the name of the victim also not be published at this time. Publishing the name of the victim would, in the circumstances of this case, invariably leads to N being identified as the person accused of her murder. However, upon the verdict being reached the reasons for granting name suppression will need to be revisited. Once the trial is completed, there may cease to be sound reasons for continuing to grant suppression of N’s name
and identifying features.
16 For example, in R v Trevithick HC Auckland CRI-2007-244-000009, 19 June 2007, name suppression was lifted at sentencing for a young person convicted of murder. Due to the seriousness of the crime in that case and the extent of community concern, the public were deemed to have a proper interest in knowing the identity of the offenders convicted of offences of that nature.
Media applications
[29] In light of the decision made today concerning name suppression, there is no
merit in allowing the applications from media sources to film today’s proceeding.
[30] For these reasons, the applications for media coverage are declined.
D B Collins J
Solicitors:
Crown Solicitor, New Plymouth
Nicholsons, New Plymouth for Accused
16