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 as absolute

thresholds:

1      Fagan v Serious Fraud Office [2013] NZCA 367 at [9].

2      Robertson v Police [2015] NZCA 7.

[43]     In our view it is also not seriously arguable that the wording or scheme of the Criminal Procedure Act has displaced the presumption of open reporting identified in case law predating the enactment of s 200.   The explanatory note that accompanied the Bill at its first reading unambiguously states in relation to name suppression: “The starting point for considering publication is a presumption of open justice.”

[44]     The wording of the section itself also reinforces the presumption, using  the  language  “only  if”  as  well  as  expressions  such  as “extreme” and “undue”.  The intention is clear.   Publication is the norm.   Suppression orders are only to be made in restricted circumstances  and  the  threshold  is  high.    The  onus  is  on  the applicant to satisfy the judge that suppression should be ordered.

…

[46]      That said, we agree with Mr Lithgow that the presumption of open justice is not directly relevant to the first stage of the s 200 analysis. While the presumption underlies the fact of the existence of a threshold requirement in the section, it will only be pertinent for judges to consider the presumption in the exercise of the second stage discretion.   As outlined above, the first stage is an absolute threshold requirement; it does not involve a balancing exercise.

[6]      The  way  in  which  the  presumption  is  reflected  in  s 200(2)  was  further explained by the Court of Appeal in D(CA443/2015) v Police:3

[10]      Section 200  mandates  a  two-step  inquiry:  whether  one  of  the thresholds in subs (2) has been crossed and, if it has, whether in the exercise of discretion an order ought to be made. The first step gives the presumption statutory form; that is to say, it insists that the court determine on what principled basis suppression might be granted. The  legislation  does  not  impose  a  burden  of  proof  but  the presumption will apply unless the applicant can point to something to displace it.

[7]      The jurisdiction to make a suppression order arises only if one or more of the threshold grounds is a “likely” consequence of the anticipated publication.   The meaning of “likely” was explored in Beacon Media Group Ltd v Waititi.4    After a consideration of the meaning of that word as used in the Criminal Justice Act 1985

and the decision of the Court of Appeal in R v W,5 Gilbert J concluded:

3      D(CA443/2015) v Police [2015] NZCA 541.

4      Beacon Media Group Ltd v Waititi [2014] NZHC 281.

5      R v W [1998] 1 NZLR 35 (CA).

[17]      I conclude that the word “likely” in s 202 means more than “may” so that  a  mere  possibility  would  not  suffice.    However,  it  is  not necessary for an applicant for an order under s 202 to show that the risk of harm is such that it is more likely than not to occur.  In my view, the word “likely” in s 202 means a real risk that cannot be readily discounted.

[18]      This wider definition of “likely” in s 202 is also indicated by the section itself.  For example, under s 202(2)(d) the Court may make a suppression order if publication is likely to lead to the identification of another person whose name is suppressed by statute or court order.   The legislature cannot have intended that the Court would have no power under s 202 to make a suppression order to ensure that the object of any such statutory or court ordered prohibition is not defeated until it is satisfied that this is more likely than not to occur.  Similarly, the legislature cannot have intended that the court would  have  no  power  to  intervene  by  making  an  order  under s 202(2)(f) unless it is shown that without such an order the security or defence of New Zealand would be more likely than not to be prejudiced.

…

[21]      For the reasons given, I consider that the word “likely” in s 202 means more than a mere possibility but does not require proof that the concerns addressed by the section are more likely than not to eventuate.  The discretion of the Court to make an order under s 202 will be engaged if it is shown that the stated harm or risk of harm is a real and appreciable possibility that cannot be dismissed or ignored as being remote or fanciful.

Ground one: extreme hardship

[8]      The meaning of the phrase “extreme hardship” was addressed by the Court of

Appeal in Robertson:

[48]     As regards the level of hardship required by the phrase “extreme hardship”, we consider it clear beyond argument that it connotes a very high level of hardship.  The word “hardship” on its own means “severe suffering or privation”.  The addition of the qualifier “undue” in s 200(2)(c) indicates that something more than hardship simple is required, while the word “extreme” in s 200(2)(d) indicates something more again.

[49]      An  assessment  of  whether  the  contended  hardship  is  “extreme” 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.

[9]      Mr Munro contended that publication of the defendant’s name would cause

extreme hardship not only to the defendant himself but also to his daughter.

Circumstances of the defendant

[10]   The defendant has been assessed on a number of occasions by a neuropsychiatrist whose reports are relied upon in support of this application.  The traumatic brain injury to which reference is made occurred when the defendant was the victim of a motor vehicle accident in 2013.  This was described as a significant injury, with it taking up to a week to establish a regular memory thread and with brain imaging showing intraventricular haemorrhages.

[11]     The neuropsychiatrist’s report of 10 May 2016 stated:

[T]  as  a  result  of  traumatic  brain  injury  has  issues  with  cognitive  and physical function.  His behaviours have changed with increasing irritability, with these consequent on a combination of post traumatic stress disorder and symptoms of brain injury.   His capacity for addressing issues rationally is impeded, due to the reduced capacity to shift mental set and  a reduced capacity of reflection in real time.   His capacity to address other issues is also impeded markedly because of the reduced ability to process others mental states and emotional states.  He therefore continues to be provoked by previous issues from which he cannot deviate, increasing his sense of distress, isolation, and victimization.   If these issues were based upon a direct and realistic view of issues, then one could not argue for extreme harm.   However, they are based on a combination of potential community reactions and his impaired capacity to process this information in a realistic and  meaningful way.   This is associated  also with post  traumatic  stress disorder, with increasing anxiety, agitation, a further fall-off in his cognitive capacity,  and  increasingly  irritable  and  inappropriate  behaviour.    These issues will only be aggravated by further stressors, including publication of his name.

These issues are further added to by his concerns for his daughter’s health. Much of [T’s] life has been predicated on providing an appropriate level of care for his daughter.   His observation of her increasing concerns, and his ruminations and preoccupations with this, increased markedly by his reduced capacity to shift mental set, mean that he is addressing, in a way that arises out of his catastrophization, a view of her loss of function, distress, and also real risks of suicidality, which add further to his sense of failing her.  This will inevitably be associated with a worsening of his mental state, and while it is not currently an issue, if his daughter were to engage in suicidal behaviour, then it is more probable than not that [T] would deteriorate markedly, to the point where he would also become suicidal.

While not a subject of this report, it should be noted that it is more probable than not that the behaviours leading to [T] appearing before the Court arose as a result of the consequences of brain injury.

[12]     The  Crown’s  written  submissions  of  24 May 2016  drew  attention  to  the following observations of the Court of Appeal in D (CA443/2015) v Police, albeit in the context of “self-harm” cases:6

e)Anything that reinforces or mitigates other risk factors may affect the likelihood that publication will precipitate self-harm or suicide.

f)        The opinions of medical professionals deserve respect, but a court need not defer to them.  It is unlikely to question an un-contradicted medical diagnosis of the defendant’s condition, but such opinions may assume that any risk is too much risk or (as in this case) urge suppression without adequately addressing alternative ways in which the risk might be managed.

g)        There normally are ways of managing the risk.   Where possible, medical reports prepared to assist the courts should recommend and evaluate those options.  For example, a brief period of suppression may reconcile the defendant to the inevitability of publicity after the initial shock of arrest and first appearance.  Support structures can be identified and deployed.  Sensitive information of a personal nature may be suppressed.

[13]     The submission was made that the reports relied upon by the defendant did not set out ways in which the potential risks identified might be managed should there be publication of the defendant’s name.  Consequently the defendant obtained a further report from the neuropsychiatrist dated 9 June 2016 which explained that, while various of the defendant’s issues could be treated, for several reasons that could take a significant time and would be dependent upon the willingness of ACC to provide the requisite medical treatments.

Circumstances of the defendant’s daughter

[14]     The evidence relating to the defendant’s adult daughter was provided by the neuropsychiatrist referred to above at [11] (who had not primarily assessed her) and by the daughter’s consultant clinical psychologist.

[15]     The clinical psychologist’s report of 19 May 2016 noted that the defendant’s

daughter suffers from post traumatic stress disorder, chronic pain, major depressive disorder and when most unwell also exhibits symptoms of dissociation, obsessive

6      D (CA443/2015) v Police, above n 3 at [30].

compulsive disorder, suicidal ideation and psychosis.  The report recorded that her mental state had markedly changed since her father’s court appearance and stated:

It is my clinical opinion that the lifting of name suppression will definitely have a negative effect on [D’s] already fragile mental state.  I have formed this opinion because (a) [D] has limited emotional boundaries and is destabilised by her  father’s  pain  due to her mental condition (b) she is seriously worried about the effect of lifting name suppression on her reputation and career options when she returns … and (c) she is now having nightmares regarding the trial, which has triggered her PTSD symptoms in relation to the earlier trauma, increased her chronic pain and insomnia and she has been struggling this week to continue with her work and study without sleep.

Although [D] will suffer exteme hardship in relation to the exacerbation of her   mental  condition,   her   PTSD,   chronic   pain,  insomnia   and   other conditions, there is also a risk of suicidality.  This arises from her suicidal indeation which is typically triggered when she feels less supported and, as [the neuropsychiatrist] has observed, would worsen as her father’s mental health condition deteriorates.  This will cause an increased risk of suicide in [D] if her father’s name is published, not just from the drop in her own mental health and the detriment to her reputation and career, but also due to her father’s condition worsening.

I conclude, therefore, as with [the neuropsychiatrist], that in my opinion, if name suppression of [T] is lifted, there is a real and substantial risk to the safety of [D] through the severe impact it would have on her mental health, particularly in her suicidality, but also the extreme hardship that it would cause [D].  I concur with [the neuropsychiatrist] that the only safe option is not to publish [T’s] name.

[16]     In addition the neuropsychiatrist’s report of 9 June 2016 commented:

I note in addition to your questions however there is another extremely important point that is not addressed.   This relates to the risks of  [T’s] daughter.  She has not been primarily assessed by the writer, although I have seen records which determine that she is severely unwell and struggles to cope with stressors arising from severe and recurrent stressors in her formative environment.   The modern scientific literature is clear that such stressors in the formative environment are associated with altered structure and function of brains in adulthood, and this will not change readily. Therefore, it is more probable than not that her capacity to cope with any additional  stressor  will  be  impaired  markedly,  and  that  the  risks  for suicidality and other changes in her must be considered significant.

Discussion

[17]     The Crown submits that the risk of suicide by the defendant is speculative and is based on the conclusion that his daughter engages in suicidal behaviour.  The point was made that his worsening symptoms do not amount to extreme hardship as

his fluctuations in health were consistent with the type of brain injury he had earlier suffered. Although I consider that publication of [T’s] name would be likely to cause hardship, indeed undue hardship, I consider that it falls short of the high threshold of extreme hardship.

[18]     However  while  I  accept  the  Crown’s  submission  that  the  likelihood  of extreme hardship is not established by reference to the defendant’s health state alone, the implications of publication for his daughter appear to be potentially profound in terms of an increased risk of suicide.   In that regard, I note the observation of Brewer J in R v Shailer, made in the context of s 200(2)(e) but in my view similarly

relevant here:7

[18]      I  accept  also  that  a  person’s  safety  is  endangered  if  publication would cause physical or psychological harm.  Suicide risks are often raised under this ground and that is the basis upon which Mr Mills advances  his  submissions.    I  accept  that  the  medical  evidence required to show that publication is likely to endanger the safety of a person does not have to be the sole cause of the risk to safety.  It is sufficient that publication would cause a health condition to deteriorate further.

[19]     I am satisfied on the basis of the medical evidence from the dual sources that were the defendant’s name to be published, there would be a real and appreciable possibility that the defendant’s daughter would commit suicide.  Consequently I am of the view that the extreme hardship ground is established in respect of the defendant’s daughter.

Ground two: endanger the safety of any person

[20]     It was not suggested for the Crown that s 200(2)(e) does not extend to a defendant.   There is certainly High Court authority to the effect that it does.   In BL v R Winkelmann J observed:8

[23]      As to s 200(2)(e), as the Judge accepted, the offender falls within the class of persons whose safety may be considered. Where there is a risk of suicide, the Court must consider the medical evidence before it. Where a risk of suicide is established, name suppression does not automatically follow; the existence of a suicide risk is a relevant, but not determinative, factor.

7      R v Shailer [2015] NZHC 2607 at [18].

8      BL v R [2013] NZHC 2878 at [23].

[21]     Similarly in R v Shailer Brewer J observed:9

[17]      I now turn to the related ground put forward by Mr Mills. That is that I can be satisfied that publication would be likely to endanger the safety of a person, namely Ms Shailer. There is case law to the effect that this provision does encompass a defendant. I agree with that authority. I consider that safety is a discrete factor which is not necessarily included within an evaluation of extreme hardship. It has a lower threshold.

[22]     For the reasons explained above in the context of s 200(2)(a) with reference to the defendant’s daughter, I accept that there is a real and appreciable possibility that her safety may be endangered as a consequence of publication of the defendant’s name.

The discretionary assessment

[23]     Having found that the second threshold ground is established, I proceed to the second stage described in Robertson.10   At this point the prima facie presumption in favour of openness in reporting is specifically engaged.   As the Court of Appeal stated in R v Liddell:11

… 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”.

[24]     Mr Munro submitted that the following factors outweighed the public interest in publication:

(a)       The defendant has not been convicted of the offence, and has the presumption of innocence;

(b)       The  offending,  in  the  circumstances,  is  not  as  serious  as  other homicide offending where the deceased is young or dies from an act rather than an omission;

(c)       While the case will be of general public intrigue, it is not one which has caused widespread public concern; and

(d)       Publication of the defendant’s name is no real value added to the

public in relation to this case.

9      R v Shailer above n 7 at [17].

10     At [4] above.

11     R v Liddell [1995] 1 NZLR 538 (CA) at 546.

(e)       However, the effect of publication would be devastating and have a serious impact on the defendant and his daughter.

[25]     He also drew attention to the observation of Winkelmann J in BL v R:12

[31]     … The publication of BL’s name will cause him extreme hardship, and will endanger his safety by further heightening an existing high risk of suicide.   Those factors outweigh all other considerations, including the principle of open justice.

[26]     While I found Mr Munro’s submission persuasive, there is a countervailing

factor of significant concern.

[27]     Mr Marinovich pointed to the fact that the defendant is continuing to venture out to sea on boats.   He submitted that the evidence suggested that the defendant portrays himself as, and believes himself to be, a competent and experienced skipper. The point was made that people need to be aware of the danger he poses given his boating inabilities.

[28]    I accept that the need for the public to be aware of a potential risk in accompanying the defendant on a boat where the defendant was in charge would be a telling factor in the balancing exercise.  However I recognise that that risk should be capable of being addressed by the defendant’s bail conditions.

[29]     One condition of the defendant’s bail is that he is not to skipper a boat or take charge of a vessel.   However it appears that  that condition may be difficult to enforce.  I was informed that an incident occurred where the defendant was at sea in his own boat but maintained that, as his son was the skipper, the bail condition had been properly observed.

[30]     In  my  view  there  should  be  no  room  for  confusion  concerning  bail conditions,  particularly  so  where  their  existence  is  a  material  consideration  in relation to a name suppression application.  Consequently I invited counsel to confer with a view to amending the bail conditions to avoid any scope for ambiguity. Regrettably however Mr Munro has been unable to obtain proper instructions from

the defendant.  Indeed in a memorandum dated 22 June 2016 Mr Munro advised that

12     BL v R, above n 8 at [31].

his relationship as counsel with the defendant has fundamentally broken down and he sought leave to withdraw.  In those circumstances leave is granted, but I take the opportunity to record my appreciation to Mr Munro for his helpful submissions.

[31]     Mr Munro’s memorandum further suggested that the issue of bail and perhaps name suppression might be further reserved until such time as the defendant obtains new counsel.  However because I will shortly be absent from the Court for a period, I am reluctant to leave this application part heard.

[32]     Mr Marinovich has very constructively filed an  application to amend the defendant’s bail conditions.  The nature of the amendment he proposes is sufficient to meet the concerns which I expressed to counsel, which concerns would have impacted adversely on my decision on the defendant’s name suppression application.

[33]      In those unusual circumstances I make an amendment to the defendant’s bail

conditions to add a further condition in the following terms:

(a)       Should the defendant intend to go onto any body of water in his boat,  the  defendant  shall  contact  the  Waitara  or  New Plymouth Police and advise the Police of:

(i)       The date on which he intends to go boating;

(ii)      The name of the person who will be in charge of/or skipper of the boat on the intended day; and

(iii)     The intended route or location of his boat on the intended day.

[34]     Those amended bail conditions are sufficient to dispel the concern noted in [28] above.  In these circumstances I exercise the discretion under s 200(1) in favour of  an  order  suppressing  the  name,  address  and  occupation  of  the  defendant. However, should an application be made by the defendant to vary the amended bail conditions, leave is reserved to the Crown to apply to review the name suppression

order I have made.

Brown J