R v Warren
[2016] NZHC 1728
•28 July 2016
THE LIFTING OF THE INTERIM SUPPRESSION ORDERS GRANTED BY JUDGE ROLLO ON 10 MARCH 2016 WILL NOT TAKE EFFECT UNTIL
4:00 PM ON FRIDAY, 29 JULY 2016
IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY
CRI-2016-087-335 [2016] NZHC 1728
THE QUEEN
v
RHYS RICHARD NGAHIWI WARREN
Hearing: 13 July 2016 Counsel:
A J Pollett for Crown
R K P Stewart for Fairfax Media and NZME PublicationsJudgment:
28 July 2016
JUDGMENT OF BREWER J
This judgment was delivered by me on 28 July 2016 at 10:00 am pursuant to Rule 11.5 High Court Rules.
Registrar/Deputy Registrar
Solicitors:
Hollister-Jones Lellman (Tauranga) for Crown
Izard Weston (Wellington) for Fairfax Media and NZME Publications
R v WARREN [2016] NZHC 1728 [28 July 2016]
Introduction
[1] Mr Warren faces two charges of attempted murder and five charges of using a firearm against a law enforcement officer. All five complainants are police officers. All have interim name suppression (granted in the District Court on 10 March 2016) enuring to the date of trial.
[2] Fairfax New Zealand Ltd and NZME Publications Ltd (“the applicants”) apply to have the interim name suppression orders revoked.1 This judgment determines their application.
Background
[3] I do not need to go into the factual background in detail. It is sufficient to note that in the course of a Police operation, Mr Warren discharged firearms at police officers. Of the five complainants, four were wounded.
[4] The interim suppression orders were made by Judge Rollo. He did not give reasons. However, a suppression order may be reviewed and varied at any time.2 I will consider the matter afresh.
[5] My jurisdiction is conferred by s 202 of the Criminal Procedure Act 2011 which provides:
202Court may suppress identity of witnesses, victims, and connected persons
(1) A court that is hearing a proceeding in respect of an offence may make an order forbidding publication of the name, address, or occupation of any person who—
(a) is called as a witness; or
(b) is a victim of the offence; or
(c) is connected with the proceedings, or is connected with the person who is accused of, or convicted of, or acquitted of the offence.
1 They have standing to make the application pursuant to s 210 Criminal Procedure Act 2011.
2 Criminal Procedure Act 2011, s 208(3).
(2) The court may make an order under subsection (1) only if the court is satisfied that publication would be likely to—
(a) cause undue hardship to the witness, victim, or connected person; or
(b) create a real risk of prejudice to a fair trial; or
(c) endanger the safety of any person; or
(d) lead to the identification of another person whose name is suppressed by order or by law; or
(e) prejudice the maintenance of the law, including the prevention, investigation, and detection of offences; or
(f) prejudice the security or defence of New Zealand.
(3) Subsection (1) applies whether or not the court has made an order under section 200 suppressing the identity of the defendant.
(4) An order under subsection (1) suppressing the identity of a witness, victim, or connected person may not prevent publication of the name of the defendant (which may be prohibited only by an order made under section 200) or the nature of the charge.
The complainants’ situations
[6] The complainants’ situations are described in the affidavit of Detective
Sergeant Colby sworn on 14 June 2016:
Constable Mauheni
(a) Constable Mauheni received a brain injury but is now recovering at home. He has not yet returned to work:
15.Constable Mauheni has found it difficult to deal with people frequently wanting to discuss the matter with him in social situations. He is strongly of the opinion that if name suppression were revoked this will become more of a burden for him as his name and involvement would become more widely known. His view is that this would be detrimental to his emotional and mental recovery.
16.Constable Mauheni also believes that it will affect his ability to carry out his job properly and effectively in the future if his name becomes widely known within the Rotorua community as having been a victim of this incident.
Constable White
(b)Constable White received shrapnel and burn injuries to his face, as well as an injury to his right hand that required surgery. He has returned to work on light duties:
27.Constable White believes that if name suppression is discontinued it will be detrimental to his psychological recovery from the offending.
28.At this stage he and his family have been able to manage this with a degree of privacy but one of the aspects that he does find difficult to deal with is being constantly reminded of the incident by persons that want to raise it with him in non-work related situations. Some of these persons express their opinions about what happened which he also finds difficult to deal with.
29.Constable White believes that if his involvement as a victim becomes widely known within the community then he will be frequently reminded, challenged and asked about the incident and that this will be detrimental to his ongoing psychological and emotional recovery.
30.Constable White’s daughter aged nine years has not been told about the full circumstances regarding what happened to her father. Constable White believes it would be detrimental to her emotional and psychological wellbeing if she were to be exposed to persons talking about his involvement as part of her day to day activities.
Constable Flinn
(c) Constable Flinn suffered a serious injury to his left knee that required surgery to remove shrapnel and other debris. He has recently returned to work:
39.Constable Flinn believes that details of his involvement in the incident, if made public at this time, would compromise his safety at work.
40.In his frontline policing role Constable Flinn regularly deals with hostile people and believes such persons may seek to use knowledge of his involvement and injury to gain a tactical or psychological advantage by resisting him or attempting to escape from him.
…
42.Constable Flinn and his wife are strongly of the view that continued name suppression will improve their ability to cope with the trauma, which they would like to be able to do with privacy.
Sergeant Marsh
(d)Sergeant Marsh received a significant injury to his right index finger that has required a series of surgical operations to remove shrapnel and infection. He has returned to work on light duties. He and his family are still dealing with the effects of the incident and his injury.
Constable Ure
(e) Constable Ure has returned to work:
48.The emotional and psychological effects of this incident are still quite raw for him, and he has found that certain events will readily trigger emotions related to what happened to him that day.
49.He thinks about what happened every day and in particular how close he and his colleagues came to losing their lives that day.
50.Constable Ure strongly believes that any media attention would be detrimental to his emotional and psychological recovery. He also believes that the effects of this would be worse if he is ‘singled out’ and not granted name suppression in line with the other victims. He believes this would increase the media focus and attention on himself.
…
53.In his normal Policing duties Constable Ure works alone and believes that if his name and involvement is known among the criminal community this will present an added risk for him whilst working.
…
55.Constable Ure is also concerned about his identity being reported in connection with other Armed Offenders Squad jobs he attends in the future, as his experience is that the media invariably have a presence at such incidents.
[7] A concern common to all complainants is that if name suppression is lifted they and their families will be subjected to intense and intrusive attention by the news media.
[8] Constable Mauheni has said that he has already been approached by a reporter, and that he referred the approach to Police National Headquarters. His sister in Invercargill was approached for comment, but declined.
[9] Constable White’s mother has been asked by a news medium to participate in a television documentary. She has indicated that she might do so if name suppression is lifted. Constable White is strongly opposed to this.
[10] Constable Flinn and his wife believe that any increase in news media attention would add to their stress and affect the process of psychological recovery they are going through as a family. They do not want their children to become subject to comments arising from publicity, and believe that publicity would cause disruption to the children’s usual activities, especially to their schooling.
[11] Sergeant Marsh, who does not live in Rotorua, has expressed the view that any attention from the media would be detrimental to the emotional recovery of himself and his family. A reporter has already visited Sergeant Marsh’s home and spoken to his wife. The resulting article caused him and his wife significant stress and distress. He does not want any further contact with the news media.
[12] I have already set out Constable Ure’s concerns about being a focus for the attention of the news media.
Issues
[13] There are, potentially, two issues for me to determine in exercising my s 202 jurisdiction:
(a) Is publication of the names of the complainants (considered individually) likely to cause undue hardship to them and/or to their families?3
(b) If so, should I exercise my discretion to lift name suppression?
Is there likely to be undue hardship?
[14] The word “undue” is a term of context. As Venning J put it in R v Ratu:4
[T]o be undue in the present case the hardship must be disproportionate to the hardship that witnesses (and victims in particular) could generally be expected to experience when having their names published as witnesses.
[15] Here, the context is that of complainants, said to be victims of violent crime, who are also serving police officers. The question is whether publication of their names is likely to cause hardship disproportionate to the hardship that victims could generally be expected to experience when having their names published.
Meaning of “likely”
[16] Justice Gilbert discussed the meaning of the term “likely” in Beacon Media
Group Limited.5 He concluded that:6
… 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.
And later:7
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.
3 In its written submissions, the Crown refers to suppression being necessary in the interests of a fair trial. This was not maintained further, nor is there evidence on it. I do not consider it as an issue.
4 R v Ratu [2013] NZHC 3085 at [39].
5 Beacon Media Group Limited v Waititi [2014] NZHC 281.
6 At [17].
7 At [21].
[17] I have looked at a number of cases where the Court has found it likely that undue hardship to a witness or victim would result from publication of their identity.8
I have also looked at cases where the Court did not find such a likelihood.9 The
decisions are all fact specific. If there is a trend, it is to the effect that a person is more likely to gain name suppression if they had little or no involvement in the offending or when it would subject applicants to further victimisation beyond that which normally accompanies publicity in criminal proceedings.
[18] I will consider first the concerns expressed by all the complainants about media scrutiny impacting on their (in four cases) recovery and on their families:
(a) Constable Mauheni is already dealing with people frequently wanting to discuss the incident with him at social occasions. He is strongly of the opinion that if his name and involvement is more widely known then this would be detrimental to his emotional and mental recovery.
(b)Constable White has a similar position, but adds that it would be detrimental to his daughter if she were to be exposed to discussion about his involvement in the incident.
(c) Constable Flinn and his wife have similar views on privacy aiding recovery. They also have concerns about their children being exposed to comments.
(d)Sergeant Marsh believes media attention would be detrimental to the emotional recovery of himself and his family.
(e) Constable Ure expresses views similar to those of the other constables.
[19] While I have every sympathy for the complainants, I cannot find that increased news media attention would be likely to cause them undue hardship. I
8 Moanaroa v R [2015] NZCA 58; R v Hemopo [2014] NZHC 2950; R v McDonald [2014] NZHC
2054; R v Needham [2014] NZHC 736; Beacon Media Group Limited v Waititi, above n 5; R v X (No 2) [2015] NZHC 1245.
9 R v Joshi [2015] NZHC 2523; St Peter’s College v R [2016] NZHC 925.
have to look at the concerns they express and compare them with the consequences which normally attach to complainants who find themselves caught up in events which attract the interest of the news media. Those consequences include heightened recognition of their involvement. That will encourage people who would not otherwise know of it to speak to them or to family members about it.
[20] It is important to note that news media attention in this case would not be relentless or hostile. The complainants did their duty on behalf of the public in a very dangerous situation. Four of them were wounded. I cannot imagine that this will not be recognised by the news media.
[21] I must also make the point that the concerns of the complainants are expressed in general terms. There are no medical or psychological reports which would give substance to their concerns. I accept that their concerns are genuinely held, but to establish that there is a likelihood of hardship which is disproportionate to the hardship which complainants could generally be expected to experience, more is needed.
[22] Further, the pre-trial orders currently in place would lapse on the first day of the trial. The complainants will give their evidence and be associated with it. There is no suggestion that name suppression is justified on a permanent basis. This reinforces the point I make in the preceding paragraph that specific evidence to give substance to concerns is needed if interim suppression is to be granted.
[23] The cases granting name suppression to victims on the sole basis that media scrutiny would cause undue hardship are exceptional. In McDonald, the Judge was of the view that media attention was largely due to the unrelated rape and murder of a third victim. That meant the two surviving victims faced media attention disproportionate to the public interest in the offending involving them. In R v Needham, the victims provided victim impact statements detailing the harm the offending had caused them. One victim reported feeling exposed, untrusting of men, helpless, alone and that her relationship with her sister had been adversely affected. The other victim said she felt humiliated, had suffered extreme stress and found it
difficult to trust friends, work colleagues and customers. Publication was likely to exacerbate that harm and increase the humiliation.
[24] I turn now to consider the second ground of concern shared by three of the complainants, namely that publication of their names would compromise their ongoing ability to perform their duties as police officers. Mr Colby deposes that:
(a) “Constable Mauheni believes that [publication] will affect his ability to carry out his job properly and effectively in the future if his name becomes widely known within the Rotorua community as having been a victim of this incident.”
(b)“Constable Flinn believes that details of his involvement in the incident, if made public at this time, would compromise his safety at work. In his frontline policing role Constable Flinn regularly deals with hostile people and believes such people may seek to use knowledge of his involvement and injury to gain a tactical or psychological advantage by resisting him or attempting to escape from him.”
(c) “Constable Ure works alone and believes that if his name and involvement is known among the criminal community this will present an added risk to him whilst working.”
[25] Again, these complainants have my sympathy. They perform hard, thankless, and at times dangerous jobs on behalf of the public. There is a segment of the community which regards the Police as the enemy, and I accept that members of that segment would be prone to exploiting perceived weaknesses of individual police officers.
[26] However, the concerns expressed by the complainants are general ones. There is no evidence which would allow me to give them weight beyond the weight identified by common sense. And I have referred to that above.
[27] Further, the complainants are members of a uniformed and disciplined force. They are not on their own. They should not be returned to frontline duty until they are fully fit for that duty – mentally as well as physically. And, if their concerns remain real then those are operational matters, and steps should be taken to address them. That is part of the duty of their superiors.
[28] It follows that although I do not dismiss the complainants’ concerns, on the generally expressed basis on which they come before me, I do not find that they raise a likelihood of undue hardship.
[29] I have also considered how my discretion should be exercised if I had reached the opposite view.
[30] I identify two particular factors. First, there is legitimate public interest in these proceedings. I bear in mind Gilbert J’s point in Beacon Media where he distinguished that case from the usual run of cases where the applicant is in some way involved in the events giving rise to the trial or the trial itself. The Judge held that in those cases the public interest in publication may be greater. Here, the complainants were directly involved in the incident giving rise to the charges. Further, the Police play a critical role, on behalf of the general public, in preserving law and order. In serving the public, Police are often exposed to a high risk of personal harm. When Police are injured in the line of duty, the public interest in the open reporting of the court proceedings is legitimately high. There is public interest in knowing the identities of the people who do Police work in the name of the public.
[31] Second, if there is an undue aspect to the hardship that would follow publication, it concerns the ongoing ability of the complainants to perform Police duties. If name suppression were allowed on that basis it would raise an unfortunate presumption that every time a police officer is injured in the line of duty the s 102 discretion ought to be exercised in favour of suppression. This is difficult to reconcile with the presumption of open justice and the requirement that hardship be disproportionate to the public interest in open reporting of court proceedings. I would exercise my discretion to lift name suppression.
Decision
[32] I grant the application. Bearing in mind the protection potentially conferred by s 286 of the Criminal Procedure Act 2011, I direct that the lifting of the interim suppression orders granted by Judge Rollo on 10 March 2016 will not take effect
until 4:00 pm on Friday, 29 July 2016.
Brewer J
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