ORDER PROHIBITING PUBLICATION OF NAME(S), ADDRESS(ES), OCCUPATION(S) OR IDENTIFYING PARTICULARS OF
WITNESS/VICTIM/CONNECTED PERSON(S) PURSUANT TO S 202 CRIMINAL PROCEDURE ACT 2011.

ORDER PROHIBITING PUBLICATION OF NAME, ADDRESS OR IDENTIFYING PARTICULARS OF APPELLANT UNTIL FURTHER ORDER OF THE COURT	

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE	
CRI-2019-404-315
[2019] NZHC 1939	

BETWEEN	N
Appellant	
AND	THE QUEEN
Respondent	

Hearing:	6 August 2019	
Counsel:	S Green for Appellant
Y Yelavich and K E Tuialii	
Judgment:	12 August 2019	

[REDACTED] JUDGMENT OF WHATA J

This judgment was delivered by me on 12 August 20 at 3.00 pm,

Registrar/Deputy Registrar Date: ………………………….

Solicitors: Kayes Fletcher Walker Limited, Manukau

N v R [2019] NZHC 1939 [12 August 2019]

[1]	Mr N:

(a)	appeals against the decision of Judge Mabey QC refusing to grant name suppression;

(b)	applies for “take down” orders in respect of various articles; and

(c)	seeks to exclude media from the hearing of the appeal and the take down application.

[2]	I can deal with (c) briefly. Section 198 of the Criminal Procedure Act (the CPA) states:

198	Exception for members of media

(1)	An order under section 197 may not exclude members of the media except on the ground set out in section 197(2)(a)(ii) (which relates to the security or defence of New Zealand).

(2)	For the purposes of this section, member of the media means—

(a)	a person who is in the court for the purpose of reporting on the proceedings and who is either subject to or employed by an organisation that is subject to—

(i)	a code of ethics; and

(ii)	the complaints procedure of the Broadcasting Standards Authority or the Press Council; or

(b)	any other person reporting on the proceedings with the permission of the court.

[3]	While there may be inherent jurisdiction to exclude the media, nothing I have heard today suggests that I would be justified in doing so. Rather, the principle of open justice ordinarily demands the presence of the media as kaitiaki of the public interest.

[4]	As to (b), the application for take down orders, belatedly made, cannot be heard without notice first being given to the affected media outlets.1 That application is therefore adjourned, and the following directions made:

(a)	A formal application for take down orders is to be filed and served on all the affected media organisations;

(b)	The media organisations shall have 5 working days to file notices of opposition.

(c)	The matter will be set down for further case management once those notices are filed.

[5]	I turn then to the appeal.

[6]	All parts of the judgment in italics, including corresponding headings, are suppressed.

Background

[7]	The alleged facts of the offending may be stated briefly. Mr N faces one charge of murder, one charge of attempted murder and one charge of assault with a weapon. It is claimed he drove to S’s place of work with a sharp weapon. He confronted T there and stabbed her twice, to the neck and head. He then drove away and came back again. On his return he was confronted by U and V. He rammed the car into U, who was sent flying. He then drove his car at speed toward V who, by this time, was fleeing the scene. The car hit V propelling her into a parked car. T and U were seriously injured. V died almost immediately.

[8]	[Suppressed]

1	R v Tarapata [2017] NZHC 3209.

District Court judgment

[9]	Mr N sought name suppression in the District Court on the basis of risk of extreme harm to him or person related to him. Mr Guda, for the Police, also sought name suppression for T and of the workplace. Judge Mabey QC declined name suppression for Mr N because he did not accept that there was any arguable case of risk of extreme harm to Mr N or persons related to him.2 [ Suppressed ] He also declined the application for workplace suppression because the “horse [had] bolted”.3 He was told by a representative of the media that a report on the incident had been filmed at the scene and named the organisation that the victim worked for. But the Judge granted name suppression for T, as a victim of the offending.4 The Judge also granted in-court media coverage, and footage of Mr N was taken.5

[10]	As counsel indicated that there would be an appeal against the refusal to suppress, interim orders were made suppressing the name and any details that might identify Mr N.

The Appeal

[11]	Mr N raises several issues about the procedure and approach taken in the District Court to suppression and media coverage. These include:

(a)	whether the Judge was wrong to hear from a media representative about the suppression of the name of the workplace;

(b)	whether the Judge was wrong to allow media coverage without notice being given to the defendant’s counsel;

(c)	whether publication of Mr N’s name will:6

2	Police v N [2019] NZDC 12106 at [4]-[5]
3	At [7].
4	At [6].
5	At [9].
6	See D (CA443/2015) v Police [2015] NZCA 541, (2015) 27 CRNZ 614 at [10]; Robertson v Police
[2015] NZCA 7 at [44].

(i)	cause extreme hardship to his young daughter, her caregiver and members of her family; and/or

(ii)	[Suppressed]

(iii)	[Suppressed]

(iv)	prejudice a fair trial; and if one or more of the above grounds is established,

(v)	suppression is justified having regard to the seriousness of the alleged offending and the public interest in open justice.

[12]	The alleged procedural errors may be dealt with briefly. Ms Green claims the media representative had no standing to be heard. That is plainly wrong. Section 210 of the CPA states:

210	Standing of members of media

(1)	This section applies to—

(a)	a person who is reporting on the proceedings and who is either subject to or employed by an organisation that is subject to—

(i)	a code of ethics; and

(ii)	the complaints procedures of the Broadcasting Standards Authority or the Press Council; and

(iii)	any other person reporting on the proceedings with the permission of the court.

(2)	A person to whom this section applies has standing to initiate, and be heard in relation to, any application for a suppression order, and any application to renew, vary, or revoke a suppression order.

[13]	Moreover, I see no material unfairness to Mr N. The fact that filming that had taken place was plainly relevant to the suppression determination.

[14]	The second issue may give rise to procedural error, but there is insufficient information before me about what happened and whether notice had been given. In any event, it has no direct bearing on the outcome of the appeal, so I put it to one side.

Hardship to daughter

[15]	Dealing with the hardship claims, s 200 of the CPA provides for suppression based on hardship. Relevantly, s 200 states:

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)	...

[16]	Mr N must show that there is an appreciable risk of extreme hardship to his daughter.7 Ms Green claims this will arise because she is only three and is presently separated from both parents. She says she visits a local creche and will be known as Mr N’s daughter. [Suppressed]

Evaluation

[17]	It is difficult to gauge the impact of publication of Mr N’s name on his daughter. [Suppressed] I am conscious that her wellbeing is a paramount consideration.8 I therefore believe it is necessary to take a precautionary approach. I propose to continue to suppress Mr N’s name pending a report from a suitably qualified person as to the potential harm (including in light of any protective factors) she might experience from the publication of her father’s name. It may also be appropriate to refer this matter to the Children’s Commissioner, pursuant to s12(1)(g)

7	Above n 6.
8	DP v R [2015] NZCA 476, [2016] 2 NZLR 306 at [38]. While that dealt with a youth offender, the reasoning has equal if not greater force in relation to children not subject to charge.

of the Children’s Commissioner Act 2003. As this was not a matter canvassed with counsel, I will invite submissions on this course.

[18]	[Suppressed]

[Suppressed]

[19]	[Suppressed]

Fair trial

[20]	Ms Green submits that the media attention already given to this trial raises fair trial issues and exemplifies why ongoing suppression of Mr N’s name and the take down orders are necessary. She refers to media publications which she says are incendiary in the way they express sympathy for the victims and antipathy for the defendant. A schedule of these references is attached.

[21]	Ms Green’s complaints relate to the following statements made in that material:

“A second woman received serious injuries.”

“Initial enquiries were a woman was stabbed by a man.” There was a man “appearing in a boiler suit”.
“It was crazy, the car was reversing and shooting forward”

The alleged offender is said to be “selfish” and that he “rammed” the deceased and her colleague.

[22]	I do not agree that any of the references are such as to raise fair trial considerations. But, in any event, the proper relief, if there is a genuine concern about publication, is to have them taken down. As noted this will be the subject of argument at a later stage.

[23]	[Suppressed]

Justified?

[24]	Save in respect of the issues identified by me in relation to the potential impact of publication on the daughter, the principle of open justice clearly favours publication.

Outcome

[25]	But for my concerns about the potential impact of publication of Mr N’s identity on his three-year-old daughter, I would not suppress Mr N’s name. However, as I am presently unclear as to the nature of the potential harm to her, I invite submissions from counsel about obtaining a report from a suitably qualified person on that potential harm and or a report from the Children’s Commissioner. Submissions are to be filed within five working days. Interim name suppression will continue pending resolution of this aspect.

SCHEDULE OF MEDIA ARTICLES

1	Mangere Bridge homicide enquiry: man in Court charged with attempted murder, Stuff dated 21 June 2019.

2	Good Samaritan killed in Mangere Bridge incident was mother – of – two. Sagaia Kaisala, Stuff 26 June 2019.

3	Mangere Bridge assault: homicide enquiry launched after woman hit by vehicle dies, Stuff 20 June 2019.