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.…

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 the Queen

Details

AGLC: S v The the Queen [2022] NZHC 2203
Case: [2022] NZHC 2203
Decision Date: 1 September 2022

CaseChat Overview and Summary

S, the applicant, has applied for an order to suppress his name and identifying details from publication until his trial for the alleged murder of his infant daughter is concluded. The application was heard by Lang J in the High Court of New Zealand. S contends that publication of his name will result in extreme hardship for his parents, who live in a small village in Independent Samoa, as well as jeopardise his fair trial rights. The court had to determine whether the suppression of S’s name was warranted under section 200 of the Criminal Procedure Act 2011.

The court found that S had not demonstrated that publication of his name would jeopardise his fair trial rights. While it is possible that his supporters in New Zealand and Samoa may be less willing to provide him with overt support if his name is published, this would not compromise his access to counsel or other protections available to a defendant facing criminal charges. However, the court was satisfied that S’s parents would suffer extreme hardship if their son’s name and identifying particulars were not suppressed from publication. The court accepted the evidence provided by S’s mother and Ms Maria-Grace Corrin, who both described the severe consequences that would befall S’s parents if the village chiefs learn of the charge against him. These consequences include monetary penalties, eviction from their home, and social ostracism. The court found that such consequences would amount to extreme hardship, well beyond the ordinary associated consequences of publication.

The court weighed the identified consequences against the principle relating to the desirability of the open reporting of court proceedings. The court found that there was no particular need to publish S’s name at this stage, as 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. The court granted the application for name suppression and made an order under section 200(1) of the Criminal Procedure Act 2011 prohibiting publication of S’s name and identifying particulars until the charge has been finally determined in this Court. 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 S has adduced in support of his application may be unreliable.

Orders