R v N HC Auckland CRI-2006-092-01919

[2007] NZHC 1720

INTERIM ORDER PROHIBITING PUBLICATION OF NAMES OR IDENTIFYING PARTICULARS OF THE ACCUSED

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2006-092-01919

THE QUEEN

v

N AND F

Hearing:         17 April 2007

Appearances: Mr R Burns for Crown

Mr J Rowan QC for Ms N

Mr E Paul for Mr F

Mr W Akel for Media Organisations

Ruling:           20 April 2007 at 10 am

RULING (NO 1) OF LANG J

[on application for continued suppression of name and media applications]

Solicitors:

Crown Solicitor, Auckland

Public Defence Service, Auckland Simpson Grierson, Auckland Counsel:

Mr J Rowan QC, Wanganui

R V N AND F HC AK CRI-2006-092-01919  20 April 2007

[1]      Ms N and Mr F are charged with murdering NN, who was three years of age at the date of his death.   Ms N is NN’s mother.   Mr F was her partner at the time of NN’s death.

[2]      The trial, which has been allocated three weeks, is scheduled to commence in this Court on Monday 23 April 2007.

[3]      Applications to cover the trial have now been received from Radio  New Zealand and from Television New Zealand (“One News” and “Current Affairs”). The Crown supports the applications, but both accused oppose them.   Ms N does so on the basis that any broadcast of the trial may prevent her from receiving a fair trial and may also detrimentally affect her children.   Mr F bases his opposition solely on the effect that the reporting of the trials is likely to have on Ms N’s children.

[4]      Before dealing with the media applications it is convenient to deal with the issue of continued name suppression for the accused during the course of the trial.

Should name suppression continue during the trial?

[5]      Ms N and Mr F presently have name suppression by virtue of orders made in the District Court.     These were made following a defended hearing before Her Honour Judge Simpson, who conducted the depositions hearing.   In concluding that name suppression should continue up until trial, the Judge said:

[1]       I  am now  considering  the  issue  of  name  suppression.      I  have listened to what everyone has had to say.     I am aware of the important presumption of innocence and I am aware of the principles explained by the Court of Appeal in the R v Liddell [1995] 1 NZLR 538 and R v M (1998) CA84/98, 24 August 1998 case and it was the High Court.

[2]       Applying these principles to the present situation Mr [F] and Ms [N] live in this community and more importantly, their children go to school in this community.    Because this is a family issue it is necessary to consider the position of all members of the family, including the children.     It is likely that  there would be a  great  deal  of  media  attention  and  possibly negative attention  in  the  school  community,  should  the  names  of  these accused be published.   For this reason I am prepared to continue the Interim Suppression Order prohibiting publication of any names until trial.

[6]      The   orders   that   were   made   in   the   District   Court   enure   until   the commencement of the trial.    For that reason, and notwithstanding the fact that the issue of continued suppression is being determined prior to the commencement of the trial for reasons of convenience, any orders that I now make will only take effect once the trial commences.

The arguments

[7]      The Crown is neutral on the issue of continued suppression of name for the accused.    The news media organisations, however, oppose any continuation of the existing orders.   They contend that the public interest, and particularly their right to freedom of expression, demands that the proceedings be open to public scrutiny in every  respect.      They  argue  that  these  principles  override  all  other  competing interests in the present case.

[8]      Mr F bases his argument solely upon the effect that publication will have on Ms N’s children, and this coincides for the most part with the approach taken by Ms N.

[9]      For Ms N, Mr Rowan has provided me with copies of letters to the Court from a  consultant  psychiatrist  who  has  been  assisting  Ms  N  over  the  last  nine months.    These make it clear that during 2006 Ms N suffered from a depressive disorder of some magnitude.     This required  her  to  undergo  counselling,  which appears to have been effective.   Although Ms N continues to harbour concerns about the prospect that the existing suppression orders may be lifted, these appear to relate principally to the effect that  publication is likely to  have upon her  11  year  old daughter.     Her daughter  will  not  be giving  evidence at  the trial,  but  Ms N  is concerned that she is at a vulnerable age, and may well be adversely affected in the long term if her mother’s name is published at this stage.

Decision

[10]     Section 138(1) of the Criminal Justice Act 1985 requires every sitting of any court dealing with any proceedings in respect of an offence to be open to the public.

As a corollary,  the  media are  free to  report  all such  proceedings  in  a  full  and unrestricted manner.

[11]     The Court is, however, permitted by s 140(1) of the Act to make an order prohibiting  the  publication  of  the  name,  address  and  occupation  of  the  person accused of any offence, or of any other person connected with the proceedings, or any particulars likely to lead to any such person’s identification.

[12]     It is essential in any democratic society to give due recognition to the related principles of openness of justice and freedom of expression.    Recognition of those principles generally leads to the result that the news media are free to publish full and unrestricted reports of court proceedings, including the name and identifying particulars of the accused and other persons connected with the proceeding.    The rationale  underlying  these  principles  is  well  understood  and  they  are  regularly applied by the courts.    They will only cede priority in circumstances where their application may affect the ability of an accused person to  receive a fair trial or where, for some other reason, the interests of justice require publication to be restricted in some way.     Only in those circumstances will the Court exercise its power under s 140(1) to prohibit publication of the name and particulars of the accused or other persons connected with the proceeding.

[13]     The reasons advanced in the material from the psychiatrist do not relate to Ms N’s own wellbeing or, more importantly, to her ability to conduct her defence or to receive a fair trial.   That material, on its own, would not be sufficient to justify name suppression being continued.

[14]     In  considering  the  interests  of  justice  in  the  present  case  I  have  regard principally to the factors that led to the orders for suppression being granted in the first place.   These are allied to some extent to the need to ensure a fair trial.   That issue must be viewed from the perspective of both the prosecution and the defence, and must also in my view include the interests of Ms N’s two young sons, who are being called as witnesses for the prosecution to give evidence against her at trial.

[15]     Although there is a statutory prohibition on the publication of their  own names and identifying particulars, I remain concerned regarding the effect that publication of the names and details of the accused would have on them.   The boys are being called, at the ages of eight and ten years respectively, to give evidence against their mother and her partner.    That would be a daunting prospect for any young person.

[16]     It is also reasonable to assume that the trial will receive a degree of publicity next week, particularly when the Crown opens its case at the commencement of the trial.    At that point the two boys will be attending school.     If the names of the accused are published, the boys are likely to be the object of some attention at school notwithstanding the fact that their surname is different to that of their mother and Mr F.   This is because it is safe to assume that others at their school will know of their connection with the two accused.

[17]     The  boys no  doubt  view  the  forthcoming  trial with  considerable  anxiety notwithstanding the fact that they will be giving their evidence via closed circuit television.    I consider that their concerns are likely to be exacerbated considerably if, prior to the point at which they give evidence, the names of their mother and her partner are published.     That, in my view, would create the risk of even further pressure being placed upon them in circumstances where they are already in a very difficult position.   For this reason I have come to the conclusion that the interests of justice warrant a continuation of the existing order prohibiting the names and identifying particulars of the two accused from being published until after the two boys have given their evidence.

[18]     In reaching this conclusion I have not overlooked the authorities cited to me during argument by Mr Akel.   These included In re S [2005] 1 AC 593 (HL) and Re Victim X [2003] 3 NZLR 220 (HC and CA). I do not propose to consider those cases in any detail at this time, because other counsel did not make submissions in relation to them and their effect may need to be considered again in the future. Nevertheless it seems to me, having had the opportunity to read the cases, that they can be readily distinguished from the present case. By way of example, the victim in In re S who would have benefited from a suppression order was not a witness in

any criminal proceedings.    That can be contrasted with the present case, in which the two boys will be important witnesses for the Crown (and potentially also for the defence) at trial.   And, although the victim in Re Victim X was a witness, he was 45 years of age.   That, too, is a material distinction for present purposes.

[19]     The issue that next arises is the extent to which the suppression order should continue past the point at which the boys give their evidence.    During the hearing Mr Burns suggested that the orders could be lifted as soon as the boys had given their evidence.    Although the point is finely balanced, I propose to proceed with caution.    I am conscious of the possibility that, if publication of the names of the accused is permitted immediately after the boys complete their evidence, they are still likely to be the subject of attention at their schools or in the community at a particularly  stressful point  in  their  young  lives.      This  could  lead  to  traumatic consequences for them.

[20]     I therefore consider that it is safer in the interim to proceed on the basis that the suppression orders in respect of both accused should continue until the end of the trial.    At that point the position can be reviewed again in the light of the ultimate outcome.  It will be obvious from what I have already said, however, that my present decision regarding continued suppression rests on a very narrow basis, and that that basis is unlikely to exist once the trial is at an end.

Orders

[21]     I make an order suppressing the names of the accused, together with any particulars tending to identify them, from publication until the end of the trial when the issue will be reviewed again.    I include within particulars likely to identify the accused, the names and identifying particulars of all other witnesses at the trial who are related to Ms N.

The media applications

[22]     Subject to the orders for name suppression being observed, there is no reason why the trial itself should not be broadcast on radio and television subject to the

standard conditions (as modified by the suppression orders) contained  in the In- Court Media Coverage Guidelines 2003.

[23]     In my view the accused can still receive a fair trial notwithstanding the fact that it is broadcast.   The fact that the jury may be required to decide difficult issues, or that issues may be finely balanced, does not mean that the trial should not be broadcast.   I also accept the Crown’s submission that the trial will raise matters of genuine public interest, and for that reason alone the applications have merit. Furthermore, I am satisfied that the Court’s obligations to the victims (including Ms N’s children, who must be regarded as victims) can be adequately discharged by means of the suppression orders that I have already made.

[24]     I   therefore   accept   the   Crown’s   submission,   and   that   of   the   media organisations, that the desirability of open justice and the issues of public interest that arise in a case such as the present favour the trial being broadcast subject to appropriate conditions.

Orders

[25]     I grant the media applications subject to the standard conditions, and also on the condition that any broadcast of the proceedings shall not include any material tending to identify the two accused, those witnesses who are related to them and any witnesses who by virtue of their youth are subject in any event to statutory protection

[26]     Should the orders that I have made need to be refined or clarified, I reserve leave to all parties to ask that the matter be the subject of a telephone conference before me prior to the commencement of the trial.

Lang J