R v N

Case [2012] NZHC 2042 15 August 2012

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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…

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 N

Details

AGLC: R v N [2012] NZHC 2042
Case: [2012] NZHC 2042
Decision Date: 15 August 2012

CaseChat Overview and Summary

N has pleaded not guilty to the murder of K, and the matter is set for trial in the New Plymouth High Court. The Court must decide whether to suppress the publication of N's name and identifying features during the trial, given his age and the potential impact on his right to a fair trial. The court also had to decide whether to allow two media organisations, MediaWorks and TVNZ, to film today's proceedings.

In deciding the issue of name suppression, the court considered the principles of open justice, the youth of the accused, and the best interests of the child. The court held that the presumption of open Court proceedings must be balanced against the need to protect the rights of the child. In this case, the court determined that there was a significant risk that N's ability to participate in the proceedings and conduct a defence would be inhibited if his name and identifying features were published. The court found that N's age and the nature of the crime made it likely that he would experience a greater amount of intimidation, humiliation, or distress during the trial. Therefore, the court granted orders prohibiting publication of N's name and identifying features until the verdict is delivered.

The court also considered N's alternative claim that lifting name suppression is likely to cause him extreme hardship. The court found that while a high level of hardship must be established to meet the threshold of "extreme hardship," the risk of compromising N's right to a fair trial was sufficient to justify the suppression order. The court noted that upon the verdict being reached, the reasons for granting name suppression would need to be revisited.

Finally, the court declined the applications from media sources to film today's proceedings, given the decision to suppress the publication of N's name and identifying features.

Orders