R v T - [2016] NZHC 1385

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

CRI 2016-043-275 [2016] NZHC 1385

THE QUEEN

v

T

Hearing: 14 June 2016

Counsel:

J M Marinovich for Crown
J Munro for Defendant

Judgment:

24 June 2016

JUDGMENT OF BROWN J

Introduction

[1] The defendant faces one charge of manslaughter, it being alleged that on or about 30 July 2015 at Waitara he caused the death of Erka Xu by an omission without lawful excuse to perform or observe a legal duty, in that being the person who had in his charge a boat, he did omit to discharge his legal duty to take reasonable precautions against and to use reasonable care to avoid endangering human life.

[2] The defendant was granted interim name suppression in the District Court. Interim name suppression was extended by Thomas J in a Minute dated
4 March 2016 pending the hearing of the present application.

R v T [2016] NZHC 1385 [24 June 2016]

[3] Two of the grounds in s 200(2) of the Criminal Procedure Act 2001 were advanced in support of the application. That section relevantly states:

200 Court may suppress identity of defendant

(1) 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.

(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

…

(e) endanger the safety of any person; or

The two stage analysis

[4] It is well established that s 200 contemplates a two stage analysis, the first stage involving a threshold determination and the second stage comprising a discretionary assessment.1 As the Court of Appeal in Robertson v Police observed:2

[40] At the first stage, the judge must consider whether he or she is satisfied that any of the threshold grounds listed in 200(2) has been established. That is to say, whether publication would be likely to lead to one of the outcomes listed in subs (2). The listed outcomes are prerequisites to a court having jurisdiction to suppress the name of a defendant. It is “only if” one of the threshold grounds has been established that the judge is able to go on to the second stage.

[41] At the second stage, the judge weighs the competing interests of the applicant and the public, taking into account such matters as whether the applicant has been convicted, the seriousness of the offending, the views of the victims and the public interest in knowing the character of the offender.

[5] In Robertson, in the context of identifying a proposed issue for the grant of leave to appeal, namely whether the starting point under s 200 is the principle of open justice, the Court discussed the nature of the s 200(2) grounds…

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 T

Details

AGLC: R v T [2016] NZHC 1385
Case: [2016] NZHC 1385
Decision Date: 24 June 2016

CaseChat Overview and Summary

The defendant has applied for an extension of interim name suppression. The defendant faces a charge of manslaughter, which allegedly arose from the death of Erka Xu. The defendant has been granted interim name suppression. The defendant submits that publication of his name would cause extreme hardship to himself and his daughter. The Crown submits that the evidence does not establish the threshold of extreme hardship. The court found that publication of the defendant's name would be likely to cause extreme hardship to his daughter, but not to the defendant. The court found that publication of the defendant's name would endanger the safety of his daughter. The court made an order suppressing the name, address and occupation of the defendant. The court made an amendment to the defendant's bail conditions, in order to address concerns about the defendant's boating activities.

Orders