S v The King
[2024] NZHC 1020
•30 April 2024
ORDER FOR INTERIM NAME SUPPRESSION OF THE APPLICANT AS SET OUT AT [19] OF THIS JUDGMENT. IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2022-092-4306
[2024] NZHC 1020
BETWEEN S
Applicant
AND
THE KING
Respondent
Hearing: 30 April 2024 Appearances:
C P Howard and K F R Karpik for Crown
M S Williams and A M H Cranstoun for Defendant
Judgment:
30 April 2024
JUDGMENT OF O’GORMAN J
[on application for name suppression]
This judgment was delivered by me on 30 April 2024 at 4 pm.
Registrar/Deputy Registrar
…………………………………
Solicitors/Counsel:
Kayes Fletcher Walker, Auckland Public Defence Service, Manukau
S v R [2024] NZHC 1020 [30 April 2024]
[1] On 5 March 2024, I made suppression orders under s 200(1) of the Criminal Procedure Act 2011 prohibiting publication of the applicant’s name and identifying particulars until further order of the Court.
[2] That judgment was the second time that suppression orders were made in this proceeding. The first judgment granting interim name suppression orders was made by Lang J on 1 September 2022.1 Those suppression orders were granted on the following basis:
(a)The Judge accepted uncontroverted evidence that Mr S’s parents might suffer very severe consequences if people in their village learned that he had been charged with the murder of his young child.2
(b)Weighed against the desirability of the open reporting of court proceedings, there was nothing to suggest that the public interest required his name to be published prior to the outcome of the trial being known.3
(c)The position would need to be revisited following a verdict or any other form of disposition.4
(d)The Court did not accept that Mr S’s fair trial rights were prejudiced, even if some members of his family and his friends could be less willing to provide him with overt support, given that he would have full access to counsel and all other forms of protection available to a defendant who faces criminal charges.5
[3] I revisited the issues of name suppression on 5 March 2024 because at that time the trial of Mr S, on a charge of murder and two charges of assault of a child, was drawing to a close. The immediate question was whether the suppression orders made
1 S v R [2022] NZHC 2203.
2 At [18]–[23]. This satisfied the “extreme hardship” test in Criminal Procedure Act 2011, s 200(2)(a).
3 At [27].
4 At [28].
5 At [7].
by Lang J needed to extend beyond the determination of those three charges once the jury returned its verdict.
[4] Although it is not expressly addressed in the 5 March 2024 judgment, the judgment of Lang J made orders that were expressed as expiring upon the final disposition of the murder charge. Many of the arguments before Lang J were focused on the impact that would occur prior to disposition, and the relative weighting of the factors to be considered under s 200(2) at a time when Mr S must still be presumed innocent. The Judge discussed the submissions made on behalf of Mr S that his fair trial rights might be compromised.6 Paragraph [23] refers to the risk of irreversible damage to the reputation of the defendant’s family, “regardless of whether he was acquitted at trial”. Lang J made it clear that the consequences that needed to be weighed under s 200(2) would obviously need to be revisited following the verdict or any other form of disposition.7
[5] My focus on 5 March 2024 was the automatic suppression of details of previous convictions under s 199A of the Criminal Procedure Act, and whether publication would “create a real risk of prejudice to a fair trial”. At the time, this was in the context of further charges before the District Court due to be heard later this year. I accepted that there is a public interest in serious offending of this type, and that principles of open justice apply. However, I did not consider that these objectives were unduly compromised by delaying publication of Mr S’s name and identifying particulars until determination or disposal of the remaining charges. Prior to then, fair trial rights must take priority.8 I expressly said that the appropriateness of the orders would need to be reassessed at the time of sentencing, taking into account whether the District Court charges are still pending at that time.9
[6] On 29 April 2024, the Crown filed a memorandum advising that those charges before the District Court have been withdrawn. Therefore, there are no longer any issues of fair trial rights that might be compromised, nor is there any right to automatic suppression under s 199(A) of the Criminal Procedure Act.
6 At [6]–[7].
7 At [26] and [28].
8 R v S [2024] NZHC 448 at [12].
9 At [13].
[7] Later on 29 April 2024, Mr Williams, counsel for Mr S, filed another application for orders suppressing Mr S’s identity in relation to his conviction for murder, on the grounds that publication of Mr S’s identity would cause extreme hardship to members of his family in Samoa. The application implicitly relies on the same evidence leading to Lang J granting interim name suppression on 1 September 2022.
[8] As explained above, Lang J considered the weight of competing factors under s 200(2) in a pre-trial context, when the defendant was presumed innocent. The evaluation under s 200(2) is entirely different following conviction. I must now consider the application in that different context.
Legal principles
[9] In Robertson v New Zealand Police, the Court of Appeal set a two-stage analysis in respect of applications under s 200(2) of the Criminal Procedure Act:10
[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.
[10] The starting point in any assessment remains the principle of open justice.11 However, this is most relevant at the second stage of the Court’s analysis if the threshold requirement is met.12 Suppression orders are only to be made in limited circumstances and the threshold is high.13
10 Robertson v New Zealand Police [2015] NZCA 7 (footnote omitted).
11 At [43].
12 At [46].
13 R v Kempson [2019] NZHC 166 at [19].
[11] At the second stage, the Court must weigh the competing interests of the applicant and the public, taking into account matters such 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 offence.14 This discretion should be exercised sparingly, with caution in cases involving serious offences, and with due regard to the presumption in favour of publication, open justice, and free speech.
Application and opposition
[12] At Mr S’s sentencing hearing on 30 April 2024, Mr Williams confirmed that Mr S is seeking a permanent suppression order pursuant to s 200 of the Criminal Procedure Act on the same grounds considered by Lang J. He says the effect publication could have on Mr S’s parents and family in Samoa reaches the threshold of “extreme hardship” in s 200(2)(a). Mr Williams accepted that fair trial reasons are no longer relevant.
[13] Mr Williams requested the application be dealt with at a separate hearing, due to only receiving instructions on Monday, 29 April 2024. Mr Williams could not confirm whether, or the extent to which, knowledge of the offending might have reached residents in Samoa due to the media’s reporting of the trial process in compliance with previous suppression orders. He was therefore not sure whether any further affidavit evidence would be filed in support of the application to update the Court. However, I informed Mr Williams that I was not prepared to adjourn the application or give further time for filing more evidence. Instead, I would give Mr S the benefit of considering his application assuming that the full height of the previously considered affidavit evidence endures, not taking into consideration the possibility that information might already have filtered back to the relevant community in Samoa — a potentially inevitable consequence when there is coverage of sentencing of offending of this very serious nature.
[14] Crown opposed the application. It highlighted the application was made very late, the day before sentencing, without any supporting evidence. It submitted there are no grounds for continuing the existing interim suppression order, which should
14 D (CA443/2015) v Police [2015] NZCA 541, (2015) 27 CRNZ 614 at [12].
come to an end on its own terms now that fair trial rights are no longer an issue. Any application for new suppression orders on different grounds should be made separately with supporting evidence — that basis does not currently exist for granting permanent or interim orders today. The orders sought are inappropriate because there is an increased public interest following Mr S’s convictions for his very serious offending.
Analysis
[15] On the basis that the evidence in support of the first application for suppression is also relied on in support of the present application, I accept that the analysis of Lang J presumptively still applies, namely that extreme hardship would be likely caused to Mr S or any person connected with him in terms of s 200(2)(a).
[16] However, the desirability of open reporting of court proceedings is much more important around the time of sentencing following a conviction. There is no longer any risk of hardship despite innocence or acquittal. Furthermore, the sentencing purposes of denouncing the conduct, promoting a sense of responsibility, deterring Mr S and others from committing similar offending and protecting the community, would be undermined if suppression was maintained even following a conviction. The threshold for making suppression orders after a conviction has been entered is high.
[17] Weighing the competing interests of Mr S’s family and the public, and taking into account that Mr S has been convicted of very serious offending, I do not consider that this is an appropriate case for the discretion to be exercised. There is a strong presumption in favour of publication, open justice, and free speech. That is not displaced by reputational and cultural consequences of serious offending.
Result
[18] Accordingly, I decline the application for permanent suppression orders. To the contrary, for the above reasons my decision is that the existing suppression orders should now be discharged, but this must be subject to para [19] below.
[19] If a court refuses to make suppression orders as sought by an applicant, s 286 of the Criminal Procedure Act requires interim name suppression for 20 working days, if an appeal is being pursued under s 285. Mr Williams indicated he needs to take instructions on whether this decision will be appealed. Accordingly, I make interim orders continuing suppression for the next 20 working days. If Mr S informs the Court before the 20 working days lapse that he does not intend to appeal this judgment, the order for name suppression will lapse at that earlier date. If an appeal is not pursued within that time, the order for name suppression will otherwise lapse at 5 pm on 28 May 2024. If a notice of appeal is filed within that period, interim name suppression will remain in force until the appeal is finally determined.15
O’Gorman J
15 Criminal Procedure Act 2011, s 286(3)(b).