The King v Lauren Anne Dickason
[2023] NZHC 2721
•28 September 2023
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CRI-2021-076-807
[2023] NZHC 2721
THE KING v
LAUREN ANNE DICKASON
Hearing: On the papers Appearances:
A R McRae and S M H McManus for Crown
K J Beaton KC, A M Toohey and A L Hollingworth for Defendant M van Beynen for Stuff and The Press
Date:
28 September 2023
JUDGMENT OF MANDER J
Redacted
This judgment was delivered by me on 28 September 2023 at 3.30 pm pursuant to Rule 11.5 of the High Court Rules 2016
Registrar/Deputy Registrar Date: .
R v DICKASON [2023] NZHC 2721 [28 September 2023]
[1] Mr Martin van Beynen, representing the news organisations Stuff and The Press, has applied for access to four photographs produced at Lauren Dickason’s trial. His application is also made on behalf of other media involved in covering the trial that concluded on 16 August 2023. The application is opposed by both the Crown and the defence. Recently, Ms Beaton KC has applied for an order prohibiting the publication of the photographs.1
[2] The photographs are contained in a photograph booklet (exhibit 8) produced by the Crown (photographs 2–5) at Mrs Dickason’s trial. Photographs 2–4 were taken on the morning of 15 September 2021. They show the oldest deceased child, Liané, on her first day of school in Timaru wearing her uniform. Liané is depicted together with her mother in photographs 2 and 3 (one of the twins can also be seen in photograph 1). In photograph 4, both her parents are shown on either side of Liané in what would commonly be described as a “selfie”. Photograph 5 was taken on the morning of 16 September. It shows the twins, Maya and Karla, sitting at a table together on their first day at playcentre, which was also the day of their deaths.
[3] Other photographs included in exhibit 8, showing the interior of the house where the Dickasons were staying, have been made available to media without opposition. Similarly, access to an electronic copy of the notes of evidence has been facilitated at Mr van Beynen’s request.
[4] It is accepted that the question of access to the photographs for the purpose of publication is governed by s 205 of the Criminal Procedure Act 2011. This provides, insofar as it is relevant to the present application, that publication of any part of the evidence can be forbidden if the Court is satisfied it would be likely to cause undue hardship to any victim of the offence. The Crown, representing the interests of the children’s father, Graham Dickason, and Ms Beaton, on behalf of the maternal grandparents, Wendy and Malcolm Fawkes, maintain this threshold has been met and the Court should exercise its jurisdiction to prohibit publication of these particular photographs.
1 Criminal Procedure Act 2011, s 205.
[5] A suggestion was made by the Crown that factors set out in the Senior Courts (Access to Court Documents) Rules 2017 may be engaged. These include confidentiality and privacy interests. However, because the photographs formed part of the Crown’s evidence adduced at trial and the purpose for which they are sought is for publication, I consider the issue properly falls for determination in accordance with s 205.
[6] In support of his application for access and in opposition to the application for suppression, Mr van Beynen submitted the threshold for undue hardship had not been established. While it is acknowledged that family members may prefer the photographs not to be published and their poignancy may cause some pain, it was argued, given the substance of the trial, that any resulting hardship from publication would be no greater than would be expected in the circumstances and would “not be excessive or disproportionate”. It was submitted the images sought to be published constitute “normal” family photographs and do not fall into a category of evidence that could be described as distasteful or gruesome but provide important background to the case, which was intrinsically confronting and challenging.
[7] In support of an order prohibiting publication of the photographs, the maternal grandparents relied upon information that was made available to me in the course of the trial regarding the psychological impact publication of sensitive evidence was likely to have on them. In one of my earlier rulings, I summarised that professional opinion in the following way:2
[...]
[8] In a letter addressed to the Court, dated 12 September 2023, Mr and Mrs Fawkes addressed the specific application regarding publication of these particular photographs. They state it will result in them suffering further emotional distress. They are concerned in particular of how the availability of new photographs of their grandchildren will spark further media attention and raise their levels of grief and anxiety. They describe the deleterious effect on them from the continual republication of many photographs of the girls which the media has been able to access
2 R v Dickason HC Christchurch CRI-2021-076-807, 25 July 2023.
to date and the distress this has caused them when viewing their deceased granddaughters in the media.
[9] Similarly, the Court received psychological reports regarding the state of Mr Dickason’s mental health and the impact of publication of sensitive aspects of the narrative of the deaths of his children has had upon him. [...] Mr Dickason has understandably suffered significant psychological trauma as a result of these events and advice was received that his ongoing recovery will be complicated from unnecessary publicity. In that regard, it is submitted the photographs in question are deeply personal, being among the last of the children before their deaths, and that seeing these photographs in the media will cause heightened anxiety and distress.
[10] In order for the Court to have jurisdiction to suppress evidence, it needs to be satisfied that publication would be likely to cause undue hardship. That means something more than hardship that would normally attend publicity relating to a criminal proceeding.3 Something more than ordinary is required. Excessive or serious hardship greater than would otherwise be expected to arise from the publication of evidence is required to be shown as likely to be caused. That is, there is an appreciable or real risk of such an outcome which cannot readily be discounted.4 In making that assessment, care is required to distinguish between the distressing nature of the details of the trial, involving, as it did, the death of three young children and the effect on family members from the publication of evidence adduced at the trial.
[11] I am satisfied that publication of these particular photographs would be likely to cause Mr Dickason and the maternal grandparents undue hardship. They are the last photographs taken of the children in relatively close proximity to their deaths. Three of them depict Liané with her mother and, in another, with both her parents in what would otherwise be “ordinary first day at school” photographs. Because of what is now known was about to occur, the photographs, as noted by Mr van Beynen himself, have a valued degree of poignancy and personal significance for the family. While that may make them newsworthy, their wider public circulation is likely to cause considerable distress to Mr Dickason and the maternal grandparents and
3 R v R [2015] NZCA 287; Robertson v Police [2015] NZCA 7.
4 Robertson v Police, above n 3, at [48].
aggravate the distress they have suffered as a result of the appalling personal tragedy they have suffered. In the circumstances, I am satisfied undue hardship would be caused to Mr Dickason and the maternal grandparents from their publication. The statutory threshold is established.
[12] Notwithstanding that jurisdictional prerequisite having been met, there remains a strong presumption in favour of open justice which must be displaced in order for the Court to exercise its discretion to prohibit publication of evidence. It is necessary for the Court to weigh the various competing interests in deciding whether publication of the photographs should be prohibited. Mr van Beynen emphasised that the photographs were adduced as evidence in open court as part of the Crown’s case and submitted the images were relevant to Mrs Dickason’s “ability to function”, her outlook, her credibility and also her character. He argued there was public interest in the evidence and the family’s activities the day before the children died which will help it to understand the issues involved in the trial and that the individual interests of the deceased children’s family are not sufficient to overcome the public interest in open justice.
[13] As I have already noted, the starting point must always be the principle of open justice and the recognised public interest in the promotion of fair and accurate reporting of a criminal trial, which is likely best promoted by full access to evidence upon which a jury has based its verdict. Notwithstanding that being the case, it is difficult to discern how publication of these particular photographs will assist the public’s understanding of the trial. The photographs were not a central part of either the Crown or defence cases and it is not clear what can accurately or safely be gauged from the images in isolation, particularly in comparison to the detailed evidence given by a range of witnesses regarding their interactions with Mrs Dickason and the children after their arrival in this country. I accept the most notable aspect of the images is their ordinariness, which may convey something of value to the public viewing the photographs. However, again, the impressionistic worth of such an observation has to be compared with the detailed testimony of witnesses who engaged with the Dickason family at this time, and the extensive evidence of the stressors with which Mr and Mrs Dickason were dealing which were reviewed before the jury.
[14] Importantly, there are a significant number of photographs of the children and the family that are already in the public domain which have accompanied media coverage of the trial. Those images had been obtained from a number of sources, including, I understand, Mrs Dickason’s Facebook page. They include photographs taken as recently as when the family were in quarantine in Auckland after arriving from South Africa. It has been submitted to me that the publication of these photographs has caused considerable anxiety and distress to the family beyond that already suffered as a result of the children’s homicides. It is difficult to determine what additional value is to be gained from publication of these particular last photographs taken of the children which family members wish to retain as private images of their loved ones that have not to date been exposed to the public.
[15] I am mindful the photographs were adduced as evidence at trial and viewed by the jury, but it is not apparent, given the similar nature of the photographs already in the public domain, why these particular photographs will result in the public being better informed by permitting them to be published. It might be argued that, because similar photographs are already in the public domain, little harm will be caused from further images being allowed to be published. However, I consider the better view is that these are photographs taken in the last little amount of time the family remained whole, which will likely attract considerable media attention. Such publicity will cause a level of hardship to Mr Dickason, the maternal grandparents and, no doubt, other family members which in my view is not outweighed by what is likely to be a somewhat macabre interest in the photographs as a result of them being the last of the children before their deaths.
[16] In the circumstances, therefore, I am satisfied it is appropriate that their publication be prohibited. There will, therefore, be an order to that effect. This obviously means the media’s application for permission to publish these images is declined.
Solicitors:
Crown Solicitor, Christchurch
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