The King v Wire Manuel Reddington
[2023] NZHC 3257
•10 November 2023
NOTE: PUBLICATION OF NAME, ADDRESS, OR IDENTIFYING PARTICULARS OF THE DECEASED’S CHILD PROHIBITED BY S 202 OF THE CRIMINAL PROCEDURE ACT 2011.
NOTE: PUBLICATION OF ALLEGED FACTS OF OFFENDING
PROHIBITED UNDER S 205 OF THE CRIMINAL PROCEDURE ACT 2011.
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CRI-2023-035-000546
[2023] NZHC 3257
THE KING v
WIRE MANUEL REDDINGTON
Hearing: 10 November 2023 Counsel:
S A H Bishop for Crown I R Hard for Defendant
Judgment:
10 November 2023
ORAL JUDGMENT OF RADICH J
[1] The defendant in this proceeding is to be tried on one charge of murder.1 He is currently held in custody on remand. He is yet to make an application for bail, and it is not understood that such an application is contemplated, at least at this time.
[2] The defendant currently has interim name suppression. It was put in place, initially, at his first appearance on 26 June 2023. Suppression of the deceased’s name
1 Crimes Act 1961, s 167.
R v REDDINGTON [2023] NZHC 3257 [10 November 2023]
was lifted by the Masterton District Court on 6 July 2023. Interim suppression of the defendant’s name was continued by an order of the High Court on 28 July 2023, in response to concerns by counsel for the defendant that he may be unfit to enter a plea to the murder charge and on the basis that the position would be reassessed once the two s 38 reports,2 now to hand, became available.3
[3] The two s 38 reports have been prepared by Dr Justin Barry-Walsh and by Paul Carlyon. Both report writers express the view that the defendant is fit to stand trial and that he is unlikely to have a defence of insanity. However, the defendant does maintain an application for the continuation of name suppression under s 200 of the Criminal Procedure Act 2011. The basis for doing so, it is said, is that publication of the defendant’s name may cause him to engage in self-harm, which, it is said, would amount to extreme hardship. And it is said, also, that the removal of name suppression at this point in time would be precipitant because counsel are having their own expert conduct a full psychiatric examination. It was clarified this morning that what is sought at this point in time is interim suppression, and at least for the continuation of that suppression until a psychiatric report (the arrangements for which are under way) can be completed – most likely in January or February next year.
[4]Section 200 of the Act 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
…
(e) endanger the safety of any person;
…
(4)Despite subsection (2), when a person who is charged with an offence first appears before the court the court may make an interim order under subsection (1) if that person advances an arguable case that one of the grounds in subsection (2) applies.
2 Ordered under s 38 of the Criminal Procedure (Mentally Impaired Persons) Act 1993.
3 R v Reddington HC Wellington CRI-2023-035-000546, 28 July 2023 (Minute of Ellis J).
(5)An interim order made in accordance with subsection (4) expires at the person’s next court appearance, and may only be renewed if the court is satisfied that one of the grounds in subsection (2) applies.
[5]Section 2200(1)(a) and (e) are the two relevant provisions in this case.
[6] There is a two-step approach in determining applications for name suppression under s 200(2).4 First, the Court must assess whether one or more of the consequences in subs (2) would be likely to follow if no suppression order is made. And, secondly, and only if that first step is passed, the Court must then determine whether in the exercise of its discretion it should make an order for name suppression.
[7] When considering ordering name suppression, the starting point must be the fundamental principle of open justice.5
The s 38 reports
Mr Carlyon’s report
[8] I look now at the s 38 reports. The first of them is Mr Carlyon’s report. It was found in that report that the defendant has diagnoses of post-traumatic stress disorder (PTSD), anxiety, borderline and anti-social personality traits. He found also that polysubstance abuse and dependence have featured prominently in the defendant’s life. He began to use methamphetamine in his early 20s and became dependent on it from the age of 24. Mr Carlyon said that the defendant reported to heavily abusing methamphetamine before his current imprisonment.
[9] Mr Carlyon found that the defendant has a record of contact with mental health services. Of note is a 2012 medical health crisis assessment which came about in the context of suicidal ideation and four previous suicide attempts. Of note also is an incident that occurred in June 2022 when Mr Reddington was located in an unresponsive state and not breathing by police as a result of an overdose of an unknown substance.
4 Robertson v Police [2015] NZCA 7 at [39]–[41]; Fagan v Serious Fraud Office [2013] NZCA 367 at [9].
5 R v Liddell [1995] 1 NZLR 538, (1994) 12 CRNZ 458 (CA) at 546, 466.
[10] Mr Carlyon said that he was uncertain whether that overdose was deliberate or accidental, and found that the defendant:
… has a lifelong difficulty in reliably managing negative emotions in an appropriate and pro-social way. On occasion he has harmed others and at other times he has sought to commit suicide. His coping repertoire is limited. That vulnerability has been exacerbated by substance abuse and dependence, poor insight and mental illness (e.g., PTSD) and personality features that limits his coping ability.
[11] Mr Carlyon found that the defendant requires ongoing careful support for his mental health issues and noted that he was, as of 21 September 2023, receiving medication to assist his mood while in custody.
Dr Barry-Walsh’s report
[12] I turn to consider Dr Barry-Walsh’s report. Dr Barry-Walsh found that the defendant has a combination of problems with substance abuse, disturbance of mood, post-traumatic symptoms and that he reports having hallucinations. He found the defendant to have described a pattern of heavy use of substances, having used methamphetamine from the age, it is reported, of 21.
[13] Dr Barry-Walsh noted the defendant’s described self-reported hallucinations, the most common of which is a report of seeing his cousin who had committed suicide. He reported the defendant describing hearing birds, who he thought might be talking to him, and voices inside his head. He noted that the defendant claimed to find the hallucinations easier to manage with medication. He did say, also, that there were in his view inconsistencies in his history and presentation, including the timing and onset of voices and other experiences, and that that does, Dr Barry-Walsh said, raise questions about the veracity of some of his history.
[14] In terms of the defendant’s mental health, Dr Barry-Walsh found the defendant to have a history of contact with mental services. In particular, three things here are noted. First, that the defendant had contact with mental health services from 2012 to 2014, including admission to an in-patient unit. At that time he was identified as suicidal and had reported four previous attempts at suicide. Secondly, the defendant had contact with forensic psychiatric services when incarcerated in January 2020. At
that time he was on anti-depressant medication. When assessed, it was said that he was suffering from hallucinations, low mood, suicidal ideation, and reports of emotional dysregulation. Then, on 10 February 2022, the defendant was revived by a psychiatric nurse, and it noted that on most days he had thoughts that his life was, at that point, he said, not worth living.
[15] However, Dr Barry-Walsh noted also that on 26 June 2023, following his arrest, the defendant was assessed by a psychiatric nurse and denied having suicidal thoughts. Moreover, in his interview with the defendant, he found the defendant described a sense that he wishes he was dead because of his suffering, but has no active suicidal ideation. He did note that there had been difficulties in engaging the defendant in assessment since he has been in custody because of an apparent drive to seek increases in medication.
[16] At a review in January 2020, forensic psychiatric services said: “Salient factors at the time were hallucinations, low mood, suicidal ideation and reports of emotional dysregulation” – as I have said – “with an explosive temper and a tendency to manipulate by threats of self-harm.” More recent reviews, on 5 July 2023 and 21 July 2023, disclosed diagnoses of ADHD, anxiety and depressive order, although no other suicidal ideations.
[17] I turn now to consider whether the thresholds have been met. In assessing whether the threshold in s 200(2) is met, the Court must assess whether the publication of the defendant’s name would be “likely” to give rise to one of the outcomes in s 200(2). In that context, “likely” means “a real and appreciable possibility”.6
[18] The first ground in s 200(2) is that publication would be likely to “cause extreme hardship” to the defendant. The phrase “extreme hardship” does indicate a high threshold.7
6 Stuff Ltd v R [2021] NZCA 86, (2021) 29 CRNZ 658 at [17]; D (CA443/15) v Police [2015] NZCA
541, (2015) 27 CRNZ 614 at [30(a)]; R v W [1998] 1 NZLR 35 (CA) at 39.
7 Robertson v Police [2015] NZCA 7, at [48].
[19] The Court of Appeal in D(CA443/2015) v Police made the following points in the context of an application for name suppression on the grounds that publication would cause self-harm or suicide:8
(1)The possibility of self-harm or suicide always gives a court cause for anxious consideration. Suicide would be a devastating and unacceptable consequence of publication and it cannot always be assumed that an at-risk person will behave rationally. But the court cannot adopt the stance that any risk is unacceptable. Under s 200 it must be satisfied that the relevant subs (2) risk is likely; that is, a real and appreciable possibility.
(2)Judges know that people may experience suicidal ideation when confronted with criminal proceedings, which are immensely stressful, but very seldom, if ever, act upon it. The proceeding is normally the principal cause of stress, although publication identifies the proceeding with the defendant and may cause great anxiety at particular points in time.
(3)For these reasons a defendant who relies on a risk of self-harm or suicide attributable to publication of his or her name must normally point to something more than the usual feelings of anxiety and despair that may attend proceedings. It is usual to offer evidence that the defendant is psychologically troubled for other reasons and is particularly susceptible to publicity. This may be coupled with evidence that the case will attract unusually extensive or critical media publicity.
(4)The defendant's condition may be such that it also impinges on his or her ability to participate fully in the trial. If so, there is a fair trial risk to consider as well.
(5)Anything that reinforces or mitigates other risk factors may affect the likelihood that publication will precipitate self-harm or suicide.
(6)The opinions of medical professionals deserve respect, but a court need not defer to them. It is unlikely to question an uncontradicted medical diagnosis of the defendant's condition, but such opinions may assume that any risk is too much risk or (as in this case) urge suppression without adequately addressing alternative ways in which the risk might be managed.
(7)There normally are ways of managing the risk. Where possible, medical reports prepared to assist the courts should recommend and evaluate those options. For example, a brief period of suppression may reconcile the defendant to the inevitability of publicity after the initial shock of arrest and first appearance. Support structures can be identified and deployed. Sensitive information of a personal nature may be suppressed.
8 D(CA443/2015) v Police, above n 6 at [30] (footnotes omitted).
(8)Suppression does not follow automatically from the court being satisfied that a relevant risk exists. The court must further consider the second issue: whether an order ought to be made in the exercise of discretion.
[20] Counsel for the defendant has submitted that publication would be likely to cause the defendant to engage in acts of self-harm and that this does amount to extreme hardship in terms of s 200(2)(a). References were made to the prospect of it being a trigger or a catalyst for the suicide risk. It is said the s 38 reports, while stopping short of finding the defendant unfit to plead, did reveal a very troubled past interspersed with periods of extreme trauma and mental instability. It is said that the defendant is a very vulnerable person who could experience extreme hardship through the publication of his name. It is said that self-harm can “fairly and arguably be seen as a possibility with a person of such low mood who has such a long history of poor mental health”.
[21] I agree with submissions for counsel for the Crown that, while the defendant’s mental health issues are severe and of concern, they do not meet the high threshold, the high standard, required under s 200(a).
[22] While both s 38 reports do set out that the defendant has a history of poor mental health and of suicidal ideation, neither report provides evidence that the defendant is currently at risk of suicide.
[23] Moreover, there is at this point no specific evidence about the likely effect of publication on the defendant’s mental health. Counsel for the defence says that these are not matters that can be seen in a vacuum and that the defendant has had suicidal episodes and that a pause should be put in place until the assessment, expected in January or February next year, can be completed.
[24] For either s 200(2)(a) or (e) – which are both relevant here – to be made out also, either the publication must cause the defendant extreme hardship or the publication must endanger his safety.
[25] The Court of Appeal addressed a similar situation to those in question here, in the recent decision Waaka v R.9 In that case, the Court did not find that either threshold (in ss 200(2)(a) or (e)) had been met, despite a report opining, in that case, that the defendant had an escalating risk of suicide and that publication of her name was an “obvious stressor that might prompt” such an action and despite, in that case, an affidavit provided by the defendant that publication of her name would “send her mental health on a downward spiral”.
[26] I consider the evidence in that case to go further towards meeting one of the thresholds in s 200(2)(a) or (e) than the evidence before me. Furthermore, as has been said in cases that share characteristics with this case, the controlled prison environment will assist in managing any detrimental impact from publication on the defendant’s mental health.10
[27] Accordingly, in the evidence before me I do not find the thresholds in s 202 have been met and I do not believe it to be in order for there to be any further delay in this decision being made. I do not, because of the findings I have made, proceed to step 2, as I have discussed already.
[28] Finally, in relation to the defendant’s application, I refer to s 200(6) of the Criminal Procedure Act which provides that when determining whether to make an order or a further order under subs (1) that is to have effect permanently, the Court must take into account any views of the victim of the offence conveyed in accordance with s 16B of the Victims’ Rights Act 2002. I acknowledge here that the application was not, as explained this morning, to have effect permanently, so I mention, in a broad sense, s 16B of that Act which provides that the Court is to make reasonable endeavours to ensure that the views of victims on the application are ascertained and must inform the Court of any views ascertained.
[29] Those views have been ascertained in this case and do not support the application for suppression. The victim in this case being, in terms of s 4 of the Act,
9 Waaka v R [2023] NZCA 289.
10 R v Shailer [2015] NZHC 2607 at [20].
a member of the immediate family of a person who, as the result of an offence committed by another person, dies.
[30] I turn now to an application which has been made on behalf of the Crown for an order for suppression (or potentially continued suppression) of the alleged facts of the offending, and an order for final suppression of the name and identifying particulars of the deceased’s teenage son who, just for the purposes of this decision, I call X.
[31] The application is made under s 202 insofar as it relates to the publication of the name of X and an order may be made under that section if the Court is satisfied that publication would be likely to cause undue hardship to, in this case, the victim who, given s 4 of the Victims’ Rights Act that I have mentioned, fits the definition of victim. Secondly, under s 205 of that Act, the Court may suppress any report or account of the whole or any part of the evidence adduced and the submissions made in any proceeding.
[32] There is some question about whether an order that was made suppressing the alleged facts at the defendant’s first appearance for a separate charge has remained in place. I am proceeding, for present purposes, on the basis that it has. The Crown does accept that suppression of the facts could not continue once the trial has commenced, as the public interest may well outweigh other interests, but notes that by that point X and his family would have had an opportunity to process the events in question and to seek any assistance that is needed at that point in time. The Crown does seek an exception to the order to allow the family of the deceased to be informed of the facts of the offending and for them to advise any person from whom they are seeking mental health assistance on a confidential basis on those facts.
[33] The family, counsel for the Crown advises, has not been fully informed of the facts to date due to the police understanding that the facts were suppressed. And, as is submitted by the Crown, X and his family do need to be fully informed of the facts to allow them to process and to grieve and to recover.
[34] Both applications are advanced on the basis that publication would cause X undue hardship and would greatly exacerbate his risk of harm. The Crown understands that there have been attempts at self-harm since the death of X’s father.
[35] I am satisfied, having looked at the application, and there being no opposition by counsel for the defendant and by reference to information that has been lodged with the Court through job sheets about the victim’s views, that the grounds in s 202 are made out (that is to say, s 202(2)(a) and (c)) and that the grounds in s 205 are made out also (that is to say, s 205(2)(a) and (c)) – in both cases referring to causing undue hardship to any victim and to endangering the safety of any person.
[36]Accordingly, I grant orders:
(1)for continued interim suppression of the alleged facts of the offending, with the exception that the family of the deceased, as victims of the offending, are to be advised of the facts of the offending and are permitted to advise any person from whom they are seeking mental health assistance on a confidential basis, of those facts; and
(2)for final suppression of the name and identifying particulars of the deceased’s teenage son.
[37] As I have said, for reasons given earlier, I do not grant continued suppression of the name of the defendant and the current suppression orders will lapse.
[38] The defendant is remanded in custody until trial. I observe that the next event is a further disclosure teleconference at 9 am on 22 March 2024.
Radich J
Solicitors/Counsel:
Crown Solicitor, Wellington for Crown I R Hard, Wairarapa for Defendant
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