S v The King - [2024] NZHC 1020

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…

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.

Continue reading S v The King

Details

AGLC: S v The King [2024] NZHC 1020
Case: [2024] NZHC 1020
Decision Date: 30 April 2024

CaseChat Overview and Summary

In the High Court of New Zealand, Auckland Registry, the matter of S v The King involved an application for name suppression in relation to the applicant, Mr S, who had been convicted of murder and assault of a child. The case was presided over by Justice O'Gorman and heard on 30 April 2024. The applicant sought a permanent suppression order on the grounds that publication of his identity would cause extreme hardship to his family in Samoa, following the principles set out in the Criminal Procedure Act 2011. The Crown opposed the application, arguing that the public interest in open justice and the serious nature of the convictions outweighed any potential hardship to the applicant's family.

The court was required to decide whether the threshold grounds for suppression under section 200(2) of the Criminal Procedure Act had been met, and if so, whether to weigh the competing interests between the applicant and the public in favour of suppression. The court considered the established two-stage analysis, first determining if the threshold had been met, and second, weighing the interests at play. The court acknowledged the likelihood of extreme hardship to the applicant’s family but emphasised the importance of open justice and the public interest in the reporting of serious criminal proceedings, particularly sentencing.

Justice O'Gorman concluded that while the threshold for suppression had been met, the balance of competing interests favoured disclosure of the applicant's identity. The seriousness of the convictions, the public interest in open justice, and the principles of denunciation and deterrence outweighed the potential hardship to the applicant's family. Therefore, the court declined the application for permanent suppression orders, opting instead to discharge the existing suppression orders, subject to interim suppression for 20 working days if an appeal was pursued. The final orders provided for the interim suppression to lapse earlier if Mr S decided not to appeal or at a later date if an appeal was lodged within the specified period.

Orders