R v Topp - [2024] NZHC 1763

AS PER [20] OF THIS JUDGMENT, ORDER PROHIBITING PUBLICATION OF NAME, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS OF BABY H’S MOTHER AND ANY IDENTIFYING PARTICULARS OF BABY H PURSUANT TO S 202 CRIMINAL PROCEDURE ACT 2011.

SEE

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2022-009-641

[2024] NZHC 1763

THE KING

v

MICHAEL JOHN TOPP

Hearing: 29 April 2024 to 15 May 2024

Appearances:

D L Elsmore and C E Martyn for Crown

P J Shamy, S A Saunderson-Warner and D M Kirby for Defendant

Ruling:

10 May 2024

Reasons:

2 July 2024

JUDGMENT OF HINTON J

[Name Suppression]

This judgment was delivered by me on 2 July 2024 at 11:00 am.
Registrar/Deputy Registrar

……………………………………

Solicitors / Counsel:
Ms D L Elsmore and Ms C E Martyn, Raymond Donnelly & Co, Office of the Crown Solicitor, Christchurch
Mr P J Shamy, Barrister, Christchurch
Ms S A Saunderson-Warner, Barrister, Dunedin Mr D M Kirby, Barrister, Christchurch

R v TOPP [2024] NZHC 1763 [10 May 2024]

[1] Mr Topp was charged with the murder of his three-month-old daughter and other related charges. He had interim name suppression but did not seek suppression once that order expired.

[2] By memorandum dated 29 April 2024 the Crown sought an order for permanent name suppression for the deceased baby and her mother on the basis that publication of their names would result in undue hardship to the mother. Both had previously been granted interim name suppression by Mander J. The application was opposed only by Stuff and only in respect of the baby, whose name and photograph they sought to publish. The defendant and NZME did not oppose name suppression for either the mother or the baby. NZME said it respected the mother’s position.

[3] By minutes dated 1 May 2024 and 10 May 2024 I ordered permanent name suppression in respect of the mother and baby and directed that the baby be named as “Baby H”. Reasons were to follow. This judgment sets out those reasons.

The law

[4] Section 202 of the Criminal Procedure Act 2011 permits a Court to make an order permanently prohibiting publication of the name of any witness, victim or person connected with the proceedings.1 The Court may only do so if it is satisfied that publication would be likely to, inter alia, cause undue hardship to the witness, victim, or connected person.2 In this case the alleged undue hardship is to the mother.

[5] Applications under s 202 involve a two-step process.3 The Court first considers whether it is satisfied that any of the threshold grounds have been established, i.e. whether publication would cause undue hardship. At the second stage, the Court then considers whether name suppression should be granted in the Court’s discretion.

1      Criminal Procedure Act 2011, s 202(1).
2      Section 202(2).
3      Robertson v Police [2015] NZCA 7 at [39]; and Beacon Media Group Ltd v Waititi [2014] NZHC 281.

[6] At the threshold stage, the…

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.

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Details

Case: [2024] NZHC 1763
Decision Date: 2 July 2024

CaseChat Overview and Summary

Michael John Topp was charged with the murder of his three-month-old daughter and other related offences. The court was asked to consider whether the names of the deceased baby and her mother should be permanently suppressed to prevent undue hardship to the mother. The Crown sought the order, opposed by Stuff only in respect of the baby. The defendant and NZME did not oppose the suppression for either the mother or the baby.

The court considered whether the publication of the names would cause undue hardship to the mother, as required by section 202 of the Criminal Procedure Act 2011. The court had to be satisfied that publication would likely result in undue hardship, meaning hardship that is excessive or disproportionate to the purpose that justifies publication. The court found that the mother suffered from mental trauma and PTSD due to the death of her child and the circumstances of the case. She was unable to work and relied on support from her employer and a mental health team. The mother expressed concerns that publication would have catastrophic effects on her mental health and hinder her ability to return to work. The court accepted that the publication of either the mother's name or the baby's name would add to the risk of the mother being identified and would likely have a material impact on her mental health, meeting the threshold of likely to cause undue hardship.

After considering the evidence and arguments, the court concluded that suppression of both names should be granted in its discretion. The principle of open justice was deemed to be sufficiently satisfied by the publication of all remaining details, including the defendant's name. The court granted the application for permanent name suppression, prohibiting the publication of the names of the deceased and her mother, as well as any photographs or other forms of identification. The deceased is to be referred to as Baby H and the mother as Ms F.

Orders