Wilson v Chief Executive of Department of Corrections

[2016] NZHC 469

ORDER PROHIBITING PUBLICATION OF NAME AND IDENTIFYING DETAILS OF APPLICANT UNTIL FINAL DISPOSITION OF SUBSTANTIVE APPLICATION.

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2015-404-002878

[2016] NZHC 469

BETWEEN

CLINTON JACOB WILSON

Applicant

AND

CHIEF EXECUTIVE OF DEPARTMENT OF CORRECTIONS

Respondent

Hearing:	3 March 2016
Appearances:	J W Clearwater for Applicant D J Dufty for Respondent
Judgment:	17 March 2016

JUDGMENT OF COURTNEY J

This judgment was delivered by Justice Courtney on 17 March 2016 at 3.00 pm

pursuant to R 11.5 of the High Court Rules Registrar / Deputy Registrar

Date………………………..

WILSON v CHIEF EXECUTIVE OF DEPARTMENT OF CORRECTIONS [2016] NZHC 469 [17 March 2016]

Introduction

[1]    Clinton Wilson is the subject of an application for either a public protection order under s 8 of the Public Safety (Public Protection Orders) Act 2014 (PSA) or, alternatively, an extended supervision order pursuant to s 107F of the Parole Act 2002. The PSA application is the first of its type to be made and attracted some publicity when it was filed last year. Mr Wilson has applied for interim name suppression pending determination of the application.1

[2]    The application is advanced primarily on the ground that further publication of the applicant’s name will adversely affect Mr Wilson’s mental health and, to a lesser extent, to avoid unfair pressure and embarrassment for the victim. The latter ground has no substance given the statutory suppression order in place for the protection of the victim. The real issue relates to the effect of publicity on Mr Wilson.

[3]    The Chief Executive has taken a neutral position on the application, neither opposing nor consenting.

[4]    The New Zealand Herald, which initially opposed the application for interim name suppression, did not file submissions and did not appear to oppose the application.

Test for name suppression

[5]    Applications for public protection orders and extended supervision orders are subject to different regimes for name suppression purposes.

[6]    The Parole Act makes specific provision for name suppression in relation to applications for extended supervision orders through s 107G(10), which imports the relevant provisions of the Criminal Procedure Act 2011:

1      An “interim interim” name suppression order made by Duffy J on 16 December 2015 and continued by Thomas J on 25 January 2016 was further continued pending this decision.

Subpart 3 of the Part 5 of the Criminal Procedure Act 2011 (which relates generally to name suppression) applies, with all necessary modifications, to the hearing of an application for an extended supervision order as if the hearing were a proceeding in respect of an offence under any of ss 128 to 142A of the Crimes Act 1961.

[7]Section s 200 of the Criminal Procedure Act relevantly provides that:

(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)casts 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.

[8]    In Robertson v NZ Police the Court of Appeal reiterated the approach to be taken in considering an application under s 200(2):2

As already noted by this Court in Fagan v Serious Fraud Office, the section contemplates a two stage analysis.3 Stage one is a threshold determination. Stage two is a discretionary assessment.

At the first stage, the judge must consider whether he or she is satisfied that any of the threshold grounds listed in 200(2) has been established. That is to say, whether publication would be likely to lead to one of the outcomes listed in subs (2). The listed outcomes are prerequisites to a court having jurisdiction to suppress the name of the defendant. It is “only if” one of the threshold grounds has been established that the judge is able to go on to the second stage.

2      Robertson v NZ Police [2015] NZCA 7 at [39]–[49].

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

At the second stage, the judge weighs the competing interests of the applicant and the public, taking into account such matters as whether the applicant has been convicted, the seriousness of the offending, the views of the victims and the public interest in knowing the character of the offender.4

[9]Under this approach:5

Publication is the norm. Suppression orders are only to be made in restricted circumstances and the threshold is high. The onus is on the applicant to satisfy the Judge that suppression should be ordered.

[10]As to the meaning of “extreme hardship” the Court said:6

… We consider it clear beyond argument that it connotes a very high level of hardship. The word “hardship” on its own means “severe suffering or privation”.7 The addition of the qualifier “undue” in s 200(2)(c) indicates that something more than hardship simple is required, while the word “extreme” in s 200(2)(d) indicates something more again.8

An assessment of whether the contended hardship is “extreme” cannot take place in a vacuum.9 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.

[11]   In comparison, the PSA does not contain any specific provision for the name suppression of a person subject to an application for a public protection order. Section 109 allows the court to determine whether any hearing related to a public protection order or protective supervision order be held in closed or open court. This is not a solution to Mr Wilson’s desire for interim name suppression pending the substantive hearing.

[12]Section 110 provides that:

(1)The court may make an order forbidding publication of any report or account of the whole or any part of the evidence given or the submissions made in any proceeding under this Act;

4      Lewis v Wilson & Horton Ltd [2000] 3 NZLR 546 (CA), (2000) 18 CRNZ 55 at [42] and Criminal Procedure Act, s 200(6).

5 At [44].

6 At [48].

7      Tony Deverson & Graeme Kennedy (eds) The New Zealand Oxford Dictionary Oxford University Press, Melbourne, (2005) at 491.

8      R v N [2012] NZHC 2042 at [21]; Rougeux v Police [2014] NZHC 979 at [20]; Jung v Police

[2014] NZHC 949 at [17].

9      Jeffries v Police [2014] NZHC 2379 at [24].

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

(a)Cause undue hardship to any victim (within the general sense of that term and not merely as defined in s 3) of a person subject to an order under this Act or against whom such an order is sought; or

(b)Endanger the safety of any person; or

(c)Lead to the identification of a person whose name is suppressed by order or by law; or

(d)Prejudice the maintenance of the law, including the prevention, investigation and detection of offences; or

(e)Prejudice the security or defence of New Zealand.

[13]   Whilst s 110(1) could reasonably be interpreted as including the name of a person subject to an application for a public protection order, none of the categories in s 110(2) readily apply to such a suppression order.

[14]   In the absence of specific provision for name suppression in this context the issue falls to be dealt with under the Court’s inherent jurisdiction which is exercised sparingly, in recognition of the principle of open justice that prevails in all save exceptional circumstances. In Clark v Attorney-General (No 1) the Court of Appeal said that:10

the principles of open justice and the related freedom of expression create a presumption in favour of disclosure of all aspects of Court proceedings which can be overcome only in exceptional circumstances.

[15]   In the present context I think that, for practical purposes, the approach to the exercise of the inherent jurisdiction will involve the same considerations as the exercise of the power in s 200(2) of the Criminal Procedure Act.

Grounds for application

[16]   Mr Clearwater, for Mr Wilson, relied on a report by Dr Suzanne Blackwell, who has also provided a health assessment report for use at the hearing of the

10     Clark v Attorney-General (No 1) [2005] NZAR 481, (2004) PRNZ 554 at [42].

substantive application. Dr Blackwell refers to psychiatric reports prepared in March 2015. One of those, by Dr Chua of the Mason Clinic, was also placed before me.

[17]   The present application was prompted by fears that Mr Wilson conveyed to his counsel following the media reports of the Chief Executive’s application in December 2015. At that time Mr Wilson was detained in the Special Needs Unit at Paremoremo, pending determination of the substantive application.11 Following that order Mr Wilson contacted his counsel to express his fear of being targeted by other prisoners. That contact led to the present application.

[18]   Dr Blackwell’s report briefly canvasses Mr Wilson’s personal and criminal background. He is 39 years old. He was due for release in December 2015 having served a 14 year sentence for the rape and indecent assault of a 13 year old girl and the subsequent assault on the girl’s father. Those offences were committed within days of being released on parole following imprisonment on charges of aggravated robbery and other violent offences. In addition, Mr Wilson has numerous offences of various kinds pre-dating those terms of imprisonment.

[19]   Prior to his history of offending as a teenager and adult Mr Wilson had experienced a dysfunctional and, in some respects, distressing childhood. He had lost both his parents at a relatively young age. The report provided for the purposes of the name suppression application does not suggest any intellectual or cognitive disability and no evidence of formal thought disorder or psychotic process. It does, however, record Mr Wilson’s report of hearing voices from time to time telling him to harm himself or kill himself. This resulted in the involvement of the Regional Forensic Service, with Mr Wilson being trialled on anti-psychotic medication since March 2015.

[20]   In March 2015 Dr Chua of the Mason Clinic provided a report advising of Mr Wilson’s claim of depressive symptoms, including depressed mood, intermittent passive suicidal ideations and auditory hallucinations. Pending a diagnosis Mr Wilson was prescribed anti-psychotic medication.

11     Minute of Brewer J, 7 December 2015.

[21]   Dr Blackwell also referred to a report by psychiatrist Dr James Gardiner in March 2015 who was uncertain as to whether Mr Wilson had a psychotic disorder. He noted that there were some aspects of dissimulation to his presentation. Despite the anti-psychotic medication Mr Wilson continued to report hearing voices, though by June 2015 he reported them as reduced in frequency. Dr Gardiner continued to find aspects of Mr Wilson’s presentation puzzling with the presence of “abnormal illness behaviour” that was seen to be aimed at soliciting nurture and caring from others.

[22]   In his interviews with Dr Blackwell Mr Wilson reported that these voices continued. Dr Blackwell has, as a result of her assessment, identified the possibility of Mr Wilson producing “psychotic” symptoms “for secondary gain” but also the possibility that they represent responses that may be interpreted in the context of his Maori cultural beliefs of his past offending being responsible for the premature deaths of his family members.

[23]   On the basis of her assessment Dr Blackwell reports Mr Wilson displaying a “dominant shame presentation” noted in previous psychological reports. This sense of shame goes to the core of Mr Wilson’s views of himself and results in emotional dysregulation. Mr Wilson reported becoming very distressed when proceedings about this case (which did not name him) were reported on television, causing urges to self- harm. He reported increasing fear that other prison inmates would know that he was the subject of a public protection order application. He feels lethargic, weak and depressed and considers self-harm or suicide. Dr Blackwell concludes that the sense of shame felt by Mr Wilson would be intensified if publication of his name occurred and could contribute to significant mental health problems including depression and suicide.

Decision

[24]   Notwithstanding Mr Clearwater’s submission, I do not accept that there is any objective risk of Mr Wilson being targeted and attacked by other prisoners. The existence of the substantive application, including Mr Wilson’s name were the subject of publicity last year and no adverse consequences followed. Moreover, Mr Clearwater acknowledges that the Special Needs Unit in which Mr Wilson is detained

provides competent care. The prospects of violence against Mr Wilson by other prisoners in these circumstances seems extremely remote. For the same reason it can be expected that the staff will be alert to the risk of self-harm.

[25]   The thrust of the application really is the risk to Mr Wilson’s mental health. On the basis of Dr Blackwell’s report I must accept that Mr Wilson is experiencing a significant emotional response to the prospect of the application and its attendant publicity. Although there is some doubt as to the genuineness of the symptoms being reported, the fact that they are being reported, in itself, shows a level of distress associated with the application being publicised. I must take into account Dr Blackwell’s view that that it is possible that Mr Wilson’s symptoms are genuine manifestations of cultural beliefs. I am also conscious that much more extensive evidence than was before me will be taken into account when the substantive application is heard, including a further psychiatric report being obtained for Mr Wilson.

[26]   In these circumstances I consider that the right balance is struck by granting the interim application. The application is to be heard on 16 May 2016. The fact of the application is already in the public arena and no further information is available to be reported. To that extent, therefore, the public interest in this matter and the principle of open justice is only affected to a very slight extent. On the other hand, if Mr Wilson is significantly affected by further publicity then the period leading up to the hearing could produce serious adverse consequences.

[27]   The application for interim name suppression is granted. There is to be no publication of Mr Wilson’s name and identifying details until further order of the Court. The matter should be reconsidered by the Judge hearing the substantive appeal.

P Courtney J