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 Court must be satisfied that publication “would be likely” to result in one of the listed consequences. The word “likely” in this context means “a real and appreciable risk”4 or a “real risk that cannot be readily discounted”.5

[7]“Undue hardship” has been described as:6

… hardship that is excessive or greater than the circumstances warrant, or hardship that is disproportionate to the purpose that justifies publication. The latter will generally be the public interest in open reporting of court proceedings and the right to freedom of  expression  guaranteed  by  the  New Zealand Bill of Rights Act 1990.

[8]                 This is to be distinguished from the higher threshold faced by an applicant seeking suppression of the defendant’s name under s 200 of the Act. In that instance the applicant has to show that publication would be likely to result in extreme hardship for them.7

Discussion

[9]                 In support of the application for permanent suppression of both names the Crown filed evidence from the mother, her therapist and a medical professional. The Crown also filed evidence from the mother’s employer in support of the application for suppression of her name.

[10]              The mother suffers from mental trauma and PTSD following the hospitalisation and death of her child. This is also a case where the mother was initially questioned by police, along with the father of the child, and where it was part of the defence case that she may be responsible for some of the injuries as a result of accidents or incidents volunteered by her. This would undoubtedly have added to her levels of trauma.

[11]              The mother is unable to work and is currently on the supported living benefit with support of her employer. For the past year she has been supported by the mental

4      Wallis v Police [2015] NZHC 2904 at [22].

5      Beacon Media Group Ltd v Waititi, above n 3, at [17]. See also Huang v Serious Fraud Office

[2017] NZCA 187 at [9]–[10]; and LF v R [2022] NZHC 2547 at [44]-[46].

6      Sacred Heart College v New Zealand Police [2018] NZHC 3089 at [6]. See also Beacon Media Group Ltd v Waititi, above n 3.

7      Criminal Procedure Act, s 200(2)(a).

health team at Crisis Intervention to manage the risks of her grief and stress. She hopes to return to work but is concerned about the impact publication of her name and the baby’s name would have on her privacy and ability to do so. She wishes to disassociate herself as much as possible from the tragedy by non-publication of her name and the baby’s name. She states that publication would have “catastrophic effects on her mental health”. An ACC review supports that she needs permanent name suppression to help manage her PTSD and return to work.

[12]              I note that following media publications of the death of the baby, photos of the mother’s home were released. Due to fears for her safety, the mother required a police security alarm to sleep. She had this reinstalled for the duration of the trial. I am aware that she was very traumatised by having to come to court to give evidence and indicated that she was only prepared to do so if there was at least interim name suppression, which I granted.

[13]              The mother states also that her child’s name being released would “cause psychological harm to myself and her loved ones … taking away our right to privately grieve”. A desire to grieve privately will not alone justify permanent suppression of a deceased’s name but here it adds to the impact on the mother’s mental health.

[14]              The Crown relied on Stuff Ltd v R where the Court of Appeal upheld a decision of Cooke J permanently suppressing the names not just of a mother and baby but also of a defendant convicted of murdering his infant daughter on the basis that the mother, who would be identified were the defendant’s name released, would suffer extreme hardship. The mother had expressed concerns about the publicity surrounding sentencing and the adverse impacts of it on her situation.8

[15]              While Stuff did not oppose name suppression for the mother, they submitted that the threshold of undue hardship is not met in the case of publication of the baby’s name. Stuff said that the child’s last name is different to the mother,9 that it is an accredited media organisation capable of reporting on the matter in a responsible way

8      Stuff Ltd v R [2021] NZCA 86.

9      [REDACTED.]

and that the public has a legitimate interest in the proceeding and in publication of the baby’s name.

[16]              However, in my view, it is not an answer in this case that the mother does not share the same name as the deceased baby. Publication of either the mother’s name or of the baby’s name would add to the risk of the mother being identified. But further, the mother’s concern about publication is such that publication of either name is likely in any event to have a material impact on her mental health, regardless or not of identification. I accept that Stuff is an accredited media organisation which will report responsibly but in this case responsible reporting would not mitigate the likely consequences of publication on the mother.

[17]              Given the above factors, and particularly the effect of publication on the mother’s mental health and her ability to work, I am satisfied that publication of the names of the mother and baby would be likely to result in undue hardship to the mother. That is, there is a real and appreciable risk that she will suffer harm excessive or disproportionate to the circumstances. While trauma is a standard consequence for any mother whose child dies, I am satisfied that the facts of this case, specifically the likely impact of publication on the mother’s mental health and employment, meet the threshold of “likely to cause undue hardship”.

[18]              I also consider that suppression of both names should be granted in the Court’s discretion. The principle of open justice should yield to the interests of protecting the identity of the mother and the baby in this case. The principle of open justice is satisfied by publication of all remaining details, including publication of the defendant’s name as has occurred.

Result

[19]              For the above reasons the application for permanent name suppression for the mother and deceased baby was granted.

[20]              Publication of the names of the deceased and the deceased’s mother, and of photographs or other forms of identification, is permanently prohibited under s 202(1)

of the Criminal Procedure Act 2011. The deceased is to be referred to as Baby H and the mother as Ms F.

Hinton J