S v The the Queen

[2022] NZHC 2203

ORDER PROHIBITING PUBLICATION OF NAME, ADDRESS OR IDENTIFYING PARTICULARS OF APPLICANT UNTIL THE FINAL DISPOSITION OF CHARGE.

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2022-092-4306

[2022] NZHC 2203

BETWEEN

S

Applicant

AND

THE QUEEN

Respondent

Hearing:	25 August 2022
Appearances:	J Murdoch and S Morgan for Applicant C Howard for Respondent
Judgment:	1 September 2022

JUDGMENT OF LANG J

[on application for interim name suppression]

This judgment was delivered by me on 1 September 2022 at 3.30 pm.

Registrar/Deputy Registrar Date……………

S v R [2022] NZHC 2203 [1 September 2022]

[1]        Mr S is charged with the murder of his infant daughter. His trial is scheduled to commence in this Court on 12 February 2024.

[2]        Mr S has applied for an order under s 200 of the Criminal Procedure Act 2011 (the Act) suppressing his name and identifying particulars from publication. He contends that publication of his name is likely to cause extreme hardship to his parents, who live in a small village in Independent Samoa. He also contends that publication will jeopardise his fair trial rights.

Jurisdiction

[3]        Suppression in this context is governed by s 200 of the Act, which relevantly provides as follows:

200     Court may suppress identity of defendant

(1)A court may make an order forbidding publication of the name, address, or occupation of a person who is charged with, or convicted or acquitted of, an offence.

(2)The court may make an order under subsection (1) only if the court is satisfied that publication would be likely to—

(a)cause extreme hardship to the person charged with, or convicted of, or acquitted of the offence, or any person connected with that person; or

(b)cast suspicion on another person that may cause undue hardship to that person; or

(c)cause undue hardship to any victim of the offence; or

(d)create a real risk of prejudice to a fair trial; or

(e)endanger the safety of any person; or

(f)lead to the identification of another person whose name is suppressed by order or by law; or

(g)prejudice the maintenance of the law, including the prevention, investigation, and detection of offences; or

(h)prejudice the security or defence of New Zealand.

…

[4]        It is now well established that an application for suppression must be determined on a two-stage basis.1 First, the Court must determine whether any of the threshold requirements set out in s 200(2) of the Act have been made out. If that is the case, the Court must go on to consider how it should exercise its discretion by balancing the identified threshold interests against the need for transparency in criminal proceedings.2

[5]        Mr S relies on s 200(2)(a), which requires him to establish that his parents will suffer extreme hardship if his name and identifying particulars are not suppressed from publication. In this context, the Court is required to make a comparison between the contended hardship and the consequences normally associated with publication of the defendant’s name. Extreme hardship requires the applicant to demonstrate “well beyond the ordinary associated consequences”.3

The application

Fair trial rights

[6]        Mr S contends that, if his name is published, those who support him in New Zealand and Samoa will no longer be able to do so. This is because of the stigma that will attach to the charge and the strictures imposed by his Samoan culture, which he says will dissuade his family and friends from providing him with vital support both in the period leading up to the trial and during the trial itself. Mr S relies on an affidavit filed by his uncle, who expresses concern that publication will prevent members of the family from visiting Mr S in prison and supporting him generally.

[7]        I discuss the issue of stigma in greater detail when considering the likely effect of publication on Mr S’s parents. I accept it is possible that members of his family and his friends may be less willing to provide him with overt support during the period leading up to the trial, if his name is published. This would obviously be unfortunate, but it will not compromise Mr S’s fair trial rights. He will still have full access to counsel and to all the other forms of protection available to a defendant who faces

1      Fagan v Serious Fraud Office [2013] NZCA 367 at [9].

2      R v Liddell [1995] 1 NZLR 538 (CA) at 546.

3      Robertson v Police [2015] NZCA 7 at [48].

criminal charges. These include the presumption of innocence and the right to a fair hearing by an independent and impartial court.4 I therefore do not accept that publication of his name will jeopardise his fair trial rights.

Mr S’s parents

[8]        Mr S’s parents live in a village on the island of X, [redacted] in Independent Samoa. Mr S’s parents work on a plantation owned by his father’s family.

[9]        In a statement provided in support of the present application, Mr S’s mother says that the village is governed by the village chiefs. When a person from the village is charged with a crime it is the responsibility of all persons living in the village to report the alleged offending to the village chiefs immediately. When the village chiefs learn of criminal wrongdoing, they meet with the Paramount Chief to decide the punishment to be meted out to the family of the alleged offender.

[10]      Mr S’s mother says she and her husband can expect to receive the harshest penalty available because their son has been charged with the murder of his own child. This may take the form of a monetary penalty or a requirement that they hand over livestock. She also says it is probable that they will be evicted from their home and that other villagers will attack the family and set fire to their house. She is concerned that she and her husband will be told to leave the village and never return.

[11]      Mr S’s mother says that, to date, the fact that her son has been charged with the murder of his child is not known in the village. She believes this is in large part due to the interim order for suppression of Mr S’s name that has been in force since Mr S was initially charged. She has no doubt, however, that once her son’s name is published news about the charge will find its way to the village immediately. This will result in the village chiefs meeting shortly thereafter to determine what punishment Mr S’s parents should receive.

4      New Zealand Bill of Rights Act 1990, s 25.

[12]      The concerns that Mr S’s mother has expressed are echoed by another witness, Ms Maria-Grace Corrin. She grew up in another village in Samoa and therefore has personal knowledge of village cultural protocol in that country. Ms Corrin says she was bestowed the Paramount Chiefly Title (Matai) of Tuala in her village. This is one of ten Paramount Titles (Matai) in the Chiefly Tribes structure of Samoa. She now acts as an interpreter for the courts and lawyers in New Zealand.

[13]      Ms Corrin has provided a report confirming the cultural protocol described by Mr S’s mother. The report states:

[T] is the name of the village in the [redacted] Island of X in Samoa.

[T] is [S’s] home village where his family resides.

It has its paramount Chief, Orators, the lesser in status chiefs (Matai), the untitled men and women and including the youth and the children.

[A] is the mother of [S]. I have taken her statement which is attached to my affidavit, so I understand her claims.

Her village [T] follows the Samoan strict way of life and discipline to whoever brings shame to the village’s name.

The procedure I have outlined would apply when publication reaches her village.

During the meeting, one of the Orators will be dispatched to [A]’s house and summon her and her husband to the Chiefs Meeting to explain what happens to her son [S] and to explain and confirm about this matter along with the disciplinary measures placed on the family.

The Chiefs will give out to [A] and her husband the penalty as to how many pigs or cattle or boxes of tin fish or boxes of corned beef to hand over to the village and specify the time that these items must arrive at the meeting house.

Once the penalty is received then the Village Chief might have already decided during their meeting that of evicting [A] and her family from the village may have been made.

The Orator or a group of Orators will come to [A]’s house and instruct them to leave the village now or by sunrise the following morning.

This kind of penalty brings a deep hurt and serious hardship to [A] and her family. It is something out of their control.

The villagers will now have [access] to the fruits of the plantation and all their possessions of pigs, cattle, chickens, vegetables, and even if they manage to take some of these belongings, time is not on their side.

They don’t know either of where to go as if they fear that if they go to another village, they will also ban from there as no village wants to bring a bad name to their village.

As the family is poor, they can’t afford to buy land to rebuild their life and livelihood, a house on [sic].

At this stage the only people that know of [……] charges are his mother and father, not even his siblings know. However, if name suppression was not granted or lost, it would only be a matter of hours before the village chiefs would be notified of these charges against [……], and the village’s name would be made public.

Once the name of the village was made public, the Chiefs in the village would begin action against [……] family residing in the village. With the advent of electronic media, the village grapevine would spread the news faster than ever before.

The village members are now living all over the world and very little remains secret for long.

[14]      Ms Corrin also believes the publication of Mr S’s name will lead to social consequences for his wife’s family in Samoa and for members of the family living in New Zealand. These include Mr S’s two sons.

[15]      The likely effects on members of Mr S’s family who live in New Zealand are also described in the affidavit filed by Mr S’s uncle. He believes stigma will attach to these members of the family and that they are also likely to be the subject of financial penalties if Mr S’s name is published.

Decision

[16]      I have a concern as to whether a suppression order will have the desired effect, at least in the medium to long term. It is obvious from the number of people who attended the hearing that a significant number of people in New Zealand now know Mr S has been charged with the murder of his child. These include members of the Samoan community living in Auckland. The village in which Mr S’s parents live may well be isolated but Ms Corrin’s evidence confirms that at least some people in the village now have access to electronic media. It seems likely that news of the charge will filter back to the village at some stage during the period leading up to the trial.

[17]      This concern is, however, met to some degree by the fact that the interim order for suppression appears to have had its desired effect to date. Ms Murdoch also advised me during the hearing that all the persons present in the courtroom were supporters of Mr S and have no interest in leaking news of the charge back to his village in Samoa.

[18]      Furthermore, I have no doubt that, if the village chiefs were permitted to mete out the type of penalties Mr S’s mother and Ms Corrin describe, it would amount to extreme hardship for Mr S’s parents. Such consequences would plainly fall well outside those that would normally follow publication of the fact that a person has been charged with criminal offending.

[19]      The Crown has not adduced evidence to challenge the evidence provided in support of the application. However, Mr Howard points to several factors that he contends should leave the Court in doubt as to whether there is an appreciable risk that the consequences described in the applicant’s evidence may happen.

[20]      First, Mr Howard points out that none of the witnesses has provided an example of a situation in which the village chiefs have meted out punishment to the family of a person who lives overseas and is charged with offending allegedly committed overseas. The only example Mr S’s mother has provided relates to a case in which a villager drove whilst intoxicated and killed a female member of a village. This prompted the village chiefs to order the offender’s family to pay a monetary penalty of approximately $2,400 and to hand over a large number of pigs and cattle. The family were also evicted from the village.

[21]      Mr Howard accepts that such consequences may be understandable when a crime is perpetrated by one member of the village on another. However, he submits the evidence does not confirm the village chiefs would take the same view of alleged offending that has taken place not only outside the immediate community but in another country. Furthermore, he points out that Mr S ceased living in the village approximately four years ago. His only remaining link with the village appears to be the fact that his parents live there.

[22]      I acknowledge that the evidence in support of the application does not provide examples of situations in which the village chiefs have exacted penalties for alleged offending committed overseas. However, Mr S’s mother and Ms Corrin are unequivocal in their views about the likely consequences of publication so far as Mr S’s parents are concerned. Furthermore, four years is not a particularly long time for Mr S to have been living away from his village. The fact that his parents still live there also means he must still be regarded as having a strong link with it.

[23]      I am left in a position where I have uncontroverted evidence that Mr S’s parents will suffer very severe consequences if people in their village learn of the fact that he has been charged with the murder of his young child. These are arguably more severe than was the case in B v R, in which the Court of Appeal extended an interim suppression order until disposition of the charge.5 In that case the appellant was of Sudanese descent. The Court received evidence that publication of the fact that he had been charged with sexual offending would result in a real risk of irreversible damage to the reputation of his family. This was so regardless of whether he was acquitted at trial. In addition, social acceptance of members of his family in New Zealand would be lost and the stigma of the charge was likely to last for generations to come.

[24]      In that case, as in the present, counsel for the Crown had submitted it was likely that the evidence for the appellant was exaggerated. The Court rejected this submission for the following reasons:

[54]      However, there was no evidence called to counter Mr Yor’s conclusions. His background suggests he can speak knowledgeably about the subject matter he addressed. We consider his evidence establishes that publication of Mr B’s name would cause “extreme hardship” to members of Mr B’s family, within the contemplation of s 200(2)(a) of the Act. The collective impact on them is sufficient to meet what this Court in Robertson v Police acknowledged was the necessary “very high level of hardship” needed to satisfy the statute. As was also said in Robertson, the assessment of whether the degree of hardship is sufficiently strong:

… cannot take place in a vacuum. It is self-evidently contextual and in our view must entail a relative comparison between the contended hardship and the consequences normally associated with a defendant’s name being published. It must be something beyond the ordinary associated consequences.

5      B v R [2019] NZCA 673.

(Footnote omitted).

[55]      We consider Mr Yor’s evidence is also sufficient to remove the concern the Judge expressed about the speculative nature of the evidence of hardship as addressed only in the evidence of the affected family members. While we think the Judge was right not to order suppression on the basis of the potential impact on Mr B, Mr Yor’s evidence explains the context that means the consequences of publication would indeed be well beyond what is ordinary for members of Mr B’s family. The Court cannot be blind to cultural beliefs and practices which mean the result of publication might be more severe in some societal groups than in others. The need to take such matters into account has previously been acknowledged by this Court in Beshara v R.⁶ This does not mean that there are different statutory tests for different people; rather, the acknowledgement of difference is the inevitable result of carrying out a contextual analysis of what constitutes extreme hardship.

[25]      In the absence of evidence to the contrary I am left in the same position as the Court of Appeal found itself in B v R. Mr S has established there is an appreciable risk that his parents will suffer extreme consequences if his name is published in connection with the charge he faces.

[26]      This means it is necessary to weigh the identified consequences against the principle relating to the desirability of the open reporting of court proceedings. In B v R the Court of Appeal addressed this issue as follows:

[57]      Once the requirement of s 200(2)(a) is satisfied, the issue then is whether the court in its discretion considers there should be an order for name suppression. That stage was not reached by the Judge because of his conclusion that the statutory test was not met. At the discretionary stage it is necessary to weigh the competing interests of the defendant and the public interest. Here the position is being addressed prior to the trial, where the presumption of innocence is an important consideration, although not dispositive. But there is nothing particular about the circumstances of this case that makes publication of Mr B’s name necessary or desirable at this point. There is no suggestion that in the absence of publication suspicion might fall on others. Nor is there any suggestion that without publication other offending might go undetected. Those involved in these events were known to each other and socialised in the same circles, and it might be expected that any other potential complainants would have come forward prior to now. Mr B has no relevant previous convictions. It may also be noted that as a result of the allegations Mr B has sold his pharmacy and his licence has been cancelled. The overall circumstances, including Mr B’s intention to defend the charges, mitigate the risk of further offending.

[58]      The interests of open justice can and should again be considered once the outcome of the trial is known.

6      Beshara v R [2018] NZCA 66 at [7].

[27]      I take the same approach. At this stage there is no particular need to publish Mr S’s name as distinct from the circumstances of the alleged offending. There is nothing to suggest the public interest requires his name to be published. The likely consequences of publication plainly outweigh the public interest in his identity being made known through publication.

[28]      The position will obviously need to be revisited following verdict or any other form of disposition. In addition, the Crown has leave to ask for the issue of suppression to be revisited if it comes into possession of material suggesting the evidence that Mr S has adduced in support of his application may be unreliable.

Result

[29]      The application for name suppression is granted.   I make an order under       s 200(1) of the Criminal Procedure Act 2011 prohibiting publication of Mr S’s name and identifying particulars until the charge has been finally determined in this Court.

Lang J