T v The Queen

[2019] NZHC 66

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

I TE KŌTI MATUA O AOTEAROA NGĀMOTU ROHE

CRI-2018-443-33

CRI-2018-443-34 [2019] NZHC 66

BETWEEN

T

Appellant

AND

THE QUEEN

Respondent

Hearing:	4 February 2019
Counsel:	M S Boyd for appellant (via AVL from Greymouth) G N Milne for respondent
Judgment:	5 February 2019

RESERVED JUDGMENT OF DOBSON J

[1]                 This is an appeal from the District Court’s refusal to grant the appellant permanent name suppression.

[2]                 On 20 November 2018, the appellant was sentenced by Judge Sygrove in the District Court at New Plymouth on one charge each of arson, burglary and dishonest use of a document (a Paywave visa card). The appellant pleaded guilty to the charges and was sentenced to 12 months’ imprisonment.1 Because of the length of his remand in custody he was eligible for release within some two weeks of sentencing.

[3]                 In a ruling also delivered on 20 November 2018, Judge Sygrove declined an application for permanent name suppression.2 Interim name suppression has been maintained in reliance on the filing of the present appeal.

1      R v T [2018] NZDC 24415.

2      R v T ]2018] NZDC 24419.

T v R [2019] NZHC 66 [5 February 2019]

[4]                 The appeal is brought on the grounds that the Judge failed to take into account all relevant considerations when assessing the application for permanent name suppression, and that the Judge was plainly wrong to hold that the threshold ground of extreme hardship to the appellant had not been made out.

The appellant’s circumstances

[5]                 In 2002, when the appellant was 12 years old, his mother was murdered by his stepfather by dousing her in petrol and setting her alight in their family home. In an affidavit filed in support of his application for permanent name suppression, the appellant deposed that he was retraumatised in relation to the circumstances of his mother’s death when he unexpectedly encountered his stepfather (whom he expected still to be in prison) at a family funeral. That occurred in 2016, and since then he has been diagnosed with post-traumatic stress disorder (PTSD) and depression. He deposed that he was a voluntary client of Community Mental Health.

[6]                 The appellant takes medication for depression and anxiety and those conditions, together with the extent of nightmares about the circumstances of his mother’s murder, result in a mental health condition that renders him unfit for work. The appellant deposed that he lives in fear that his stepfather will discover where he lives. Prior to his remand in custody, the appellant had taken steps to change his name and was contemplating a further change in location to make it more difficult for his stepfather to find him. He deposed that he does not have a presence on social media because he does not want his stepfather to find out anything about him. Ms Boyd advised that she is not currently in contact with the appellant, but suggested that if these initiatives to change his name and location are being pursued, they are unlikely to have been completed.

[7]                 Although the appellant referred to having made a complaint of sexual abuse suffered at the hands of his stepfather, he does not depose to any threats of physical violence from him, nor does he expressly state that he maintains a fear of physical violence. There is no evidence that his stepfather has made any efforts to be in contact with him. The prospect of such contact does justify a concern of further pressure on the appellant’s mental state.

The statutory test

[8]                 The Court’s power to order suppression of a defendant’s name is governed by s 200 of the Criminal Procedure Act 2011, which relevantly provides:

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

…

[9]                 An application for a name suppression order involves a two-stage analysis. First, the Court has to determine whether one or more of the grounds in s 200(2) is made out.3 Only if that threshold is made out can the Court advance to the second consideration, which is a discretionary analysis of whether the competing interests of the public and the applicant are appropriately weighed in favour of the applicant’s interest in non-publication.

[10]              The requisite type of harm in the specified paragraphs of s 200(2) need only be made out as a likely consequence. However, the relevant form of harm claimed in this case of causing the appellant extreme hardship requires something out of the ordinary, above and beyond the hardship that would ordinarily follow from the publication of a defendant’s name.4 “Extreme hardship” connotes a very high level of hardship.5

[11]              If an application reaches the second stage of the inquiry, the Court is required to give due acknowledgement to the importance of open justice and the recognition of the legitimate public interest in the reporting of criminal proceedings. The assessment

3      Robertson v Police [2015] NZCA 7.

4      R v Liddell [1995] 1 NZLR 538 (CA) at [48], [49].

5      Robertson v Police, above n 3, at [48].

involves an onus on the applicant to advance reasons why the presumption of open justice should not apply.6

The District Court decision

[12]              The Judge reviewed the range of concerns that had been raised on behalf of the appellant. His brief reasons focused on the extent of risk that publication of the appellant’s name would lead his stepfather to being able to locate and contact him. After reviewing the claimed grounds for extreme hardship, the Judge found that it had not been made out.

[13]              In her oral submissions, Ms Boyd focused her criticism on the Judge’s failure to have regard to the appellant’s status as a victim. She argued that he was a victim traumatised by fire as the mode of killing of his mother, that a link must exist between that source of trauma and his otherwise unexplained arson involved in the present offending, so that publication of his name would lead to the risk of hampering his mental health to an extent that made out extreme hardship to him.

Analysis

[14]              I am not satisfied that any of the grounds of challenge to the District Court Judge’s ruling can be made out. The ruling adequately canvasses each of the considerations cited by Ms Boyd as contributing to an extreme level of hardship that would be caused for the appellant. It is clear that he has been traumatised by the circumstances of his mother’s murder and the level of distress the recollection causes him is likely to be aggravated by any confrontation with his stepfather. Arguably, the healing process for his diagnosed PTSD could be impaired by any such confrontation.

[15]              However, no realistic foundation is laid for the concern that publication of the appellant’s name would cause his stepfather to seek him out, and be able to find him. There is no evidence that any such attempts have been made thus far. It seems likely that the appellant will continue with initiatives that would make it more difficult for him to be found, including a change of residential location and change of name.

6      Re Victim X [2003] 3 NZLR 220 (HC and CA) at [45].

[16]              The appellant deposed that he has initiated a complaint to the Police of sexual abuse by his stepfather, so the prospect exists of creating an incentive for his stepfather to be in contact to at least discuss this, and potentially attempt to dissuade the appellant from pursuing such complaint. In that context, the appellant will be in the hands of those Police officers dealing with his complaint. Such investigations frequently involve protective measures to limit the prospect of uninvited contact between a complainant and alleged abuser. As Ms Milne pointed out, any charges of this type would lead to his stepfather being bailed on conditions that forbid contact with the appellant. The risk that publication of his name would enable contact, and that occurring, is not a prospect that can materially advance the appellant’s claim to the likelihood of extreme hardship.

[17]              Ms Boyd criticised the Judge for not taking into account the impact on the appellant’s mental condition of his own perception of the risk that publication of his name would lead to further contact of any sort with his stepfather. That aspect of the risk of further contact was not recognised explicitly by the Judge but I am satisfied that it was one of the concerns included in the Judge’s review of the factual circumstances claimed to make out extreme hardship. In my view, the risk of exacerbating the appellant’s mental condition cannot raise a sufficient prospect of harm required to make out extreme hardship.

[18]              Ms Boyd submitted that, in terms of the appellant’s mental health, there was a link between the trauma caused by his mother’s death by being set alight by his stepfather, and the lighting of a fire at the time of the burglary on the present offending. However, she accepted there is no evidence for this, suggesting that it is a matter that will require further examination by mental health professionals. I have reviewed the November 2018 report from a clinical psychologist to which I was referred. I am satisfied that any link between the trauma caused by the circumstances of his mother’s death and the otherwise unexplained arson offending in the course of the burglary for which the appellant has now been convicted, is entirely speculative.

[19]              I am accordingly not persuaded that the likelihood of extreme hardship can be made out by the appellant and concur with the District Court Judge’s analysis of the considerations raised in favour of that threshold prospect.

[20]              Accordingly,  the  appeal is dismissed.    However, this judgment has been anonymised to protect the appellant’s right to seek leave for a further appeal.

Dobson J

Solicitors/Counsel:

Boyd Law, Greymouth for appellant

Crown Solicitor, New Plymouth for respondent