DP v R [2015] NZCA 476; [2016] 2 NZLR 306 (8 October 2015)

Last Updated: 31 January 2018

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ORDER PERMANENTLY PROHIBITING PUBLICATION OF APPELLANT'S NAME AND ANY VISUAL OR PHOTOGRAPHIC IMAGE OR ANY OTHER DETAILS LIKELY TO LEAD TO HIS IDENTIFICATION.

IN THE COURT OF APPEAL OF NEW ZEALAND

CA418/2015 [2015] NZCA 476

BETWEEN	DP (CA418/2015) Appellant
AND	THE QUEEN Respondent

Hearing:	27 August 2015
Court:	Harrison, Wild and Miller JJ
Counsel:	M N Pecotic and J-A Kincade for Appellant A Markham for Respondent G T Goatley for media interests
Judgment:	8 October 2015 at 10.30 am

_{JUDGMENT OF THE COURT}

A The appeal is allowed.

B The order made in the High Court is quashed. In substitution an order is made permanently prohibiting publication of DP’s name and any visual or photographic image or any other details likely to lead to his identification.

REASONS OF THE COURT

_{(Given by Harrison J)}

DP (CA418/2015) v R [2015] NZCA 476 [8 October 2015]

Introduction

[1] In June 2014 the appellant, DP, stabbed a shopkeeper to death in the course of a failed daylight robbery. DP was then 13 years of age. He was charged with murder but was found guilty of manslaughter following a trial before Lang J and a jury in the High Court at Auckland. His accomplice, who was then aged 12 years, was acquitted on a charge of manslaughter. DP was convicted and sentenced to six

years imprisonment with a minimum term of three years and three months.¹

[2] Lang J ordered interim suppression of DP’s name pending trial² but, following trial, declined his application for permanent suppression.³ The Judge was not satisfied that DP would be likely to suffer extreme hardship if his name was published or, even if he had met that criterion, that he should exercise his residual

discretion to order suppression. He did, nevertheless, suppress from publication any visual or photographic image which might lead to DP’s identification.

[3] DP’s appeal against Lang J’s decision is opposed by the Crown and the mainstream news media.

Background

[4] We gratefully adopt Lang J’s succinct summary of the relevant facts as follows:

[5] The murder charge was laid following an attempted robbery of the Railside Dairy in Henderson on the morning of 10 June 2014. On that date DP, who was then 13 years of age, went to the dairy with RP. RP was

12 years of age at this time. DP entered the dairy carrying a knife, either in his pocket or in a sports bag. RP remained by the door of the dairy carrying a

steel pole.

[6] CCTV camera footage shows that DP then entered into a discussion with the dairy owner, Mr Kumar. The nature of the discussion was not revealed at trial, but it related presumably to DP seeking money from Mr Kumar. There was no apparent aggression by either DP or RP towards Mr Kumar during this period.

[7] Matters changed significantly when Mr Kumar’s wife entered the dairy from the rear of the premises holding a cellphone in the air for DP and

¹ _{R v DP [2015] NZHC 1796.}

² _{R v P [2014] NZHC 1445.}

³ R v DP [2015] NZHC 1765.

RP to see. At that point DP immediately produced a knife and adopted an extremely aggressive stance towards her. When her husband began to come out from behind the counter, DP transferred his attention to him. During the ensuing skirmish, DP stabbed Mr Kumar in the neck with the knife. This led very quickly to his death. DP fled from the scene very shortly after he had inflicted the fatal wound. RP had backed out through the door of the dairy once DP began to brandish the knife at Mr Kumar's wife, and he was not seen again inside the shop after that point.

[8] At trial the Crown case against DP relied solely upon s 168 of the Crimes Act 1961. This required it to prove that DP intended to inflict grievous bodily harm on Mr Kumar for the purpose of carrying out the robbery or facilitating his flight from the dairy. The jury’s verdict means that it did not accept the Crown's argument that DP intended to cause Mr Kumar grievous bodily harm when he stabbed him in the neck.

Statutory provisions

[5] The Court’s power to suppress publication of the name of a person convicted of an offence is governed by s 200 of the Criminal Procedure Act 2011 (the CPA), 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

...

(6) When determining whether to make an order or further order under subsection (1) that is to have effect permanently, a court must take into account any views of a victim of the offence conveyed in accordance with section 28 of the Victims’ Rights Act 2002.

[6] Lang J correctly identified the two-stage inquiry mandated by s 200 of the CPA.⁴ The first question is whether DP had established the jurisdictional prerequisite of proving that publication would be likely to cause him extreme

_{hardship – that is, a very high level of hardship connoting severe suffering or}

⁴ See R (CA340/2015) v R [2015] NZCA 287 at [11]; Robertson v Police [2015] NZCA 7 at [39]–

[41], [48]–[49]; Fagan v Serious Fraud Office [2013] NZCA 367 at [9]–[10].

privation, and requiring a comparison between the hardship contended by DP and the consequences normally associated with publication. We would add, by way of emphasis for DP’s appeal, that this stage of the inquiry is fact and context specific and must focus on his personal circumstances.

[7] The second question, if DP met this jurisdictional threshold, was whether after weighing the competing private and public interests the Judge was satisfied that DP’s name should be suppressed. DP’s personal circumstances are also relevant to this discretionary assessment, to be balanced against other factors such as the seriousness of his offending, the public interest in an open and transparent criminal justice process and, where relevant, the views of the victim and his family.

[8] The issue on appeal is whether, as Ms Pecotic submitted, Lang J erred at both stages of his inquiry when assessing the likely effect of publication of DP’s name given his age and personal characteristics. The Judge identified 11 factors⁵ relevant to his finding that DP had failed to discharge the burden of establishing extreme hardship. On analysis they reduce to his satisfaction that the adverse risk of publication for DP was insufficient to meet the statutory threshold.

Principles

[9] These general principles apply to all applications for name suppression made by young persons:

(a) There is a settled presumption in favour of open reporting, based on the two fundamental principles of open justice and freedom of expression⁶ and extending to all aspects of the criminal process including public identification of a person convicted of an offence.

(b) Publication of name is also an element of the penal process. Public identification takes account of an offender’s culpability, and is an

_{important component of the sentencing requirement of holding an}

⁵ _{At [27].}

⁶ Lewis v Wilson & Horton Ltd [2000] NZCA 175; [2000] 3 NZLR 546 (CA) at [43]. See most recently McIntosh v Fisk [2015] NZCA 247 at [1]; R (CA340/2015) v R, above n 4, at [10]; and JXMX (A Child) v Dartford & Gravesham ANHS Trust [2015] EWCA Civ 96 at [5]–[9].

offender accountable for the harm done to society for his or her crime.⁷

(c) In recognition of the open justice principle and to reinforce judicial consistency in exercising the power to suppress publication, s 200 of the CPA was enacted for the purpose of introducing objective and arguably more onerous criteria including the test of extreme hardship.⁸

(d) Parliament has not expressly placed a young person – that is, somebody under the age of 17 years – in an exempt or special category for the purposes of name suppression. If the Youth Court had jurisdiction to deal with DP he would have been entitled

automatically to suppression.⁹ However, where a young person is

dealt with in the High Court, normally in cases of serious offending, that Court’s rules and procedure apply.¹⁰

[10] This last statement of principle is subject to an important qualification.¹¹

When dealing with a child charged with a criminal offence, a Court must recognise the United Nations Convention on the Rights of the Child (UNCROC)¹² and s 25(i) of the New Zealand Bill of Rights Act 1990 (NZBORA). UNCROC reinforces the desirability of promoting a child’s reformation and reintegration into society, based on the assumption that he or she is capable of fulfilling a constructive role as an adult.¹³ The guarantee in 25(i) of the NZBORA, that a child charged with an offence be dealt with in a manner that takes account of his or her age, is similarly justified by

_{the desirability of promoting the child’s rehabilitation.}¹⁴ _{Thus, in all respects}

⁷ _{Sentencing Act 2002, s 7(1)(a).}

⁸ See Criminal Procedure (Reform and Modernisation) Bill 2010 (243—1) (explanatory note) at 9

(“The Bill clarifies and strengthens the law relating to the suppression of names and evidence”);

_{and RM v Police [2012] NZHC 2080 at [15] and [40]–[41].}

⁹ _{Children, Young Persons and Their Families Act 1989, ss 329 and 438.}

¹⁰ _{R v M (CA689/11) [2011] NZCA 673 at [43].}

¹¹ _{R v M (CA689/11), above n 10, at [43].}

¹² Convention on the Rights of the Child 1577 UNTS 3 (opened for signature 20 November 1989, entered into force 2 September 1990) (UNCROC). Ratified by New Zealand on 14 March 1993.

¹³ _{UNCROC, above n 12, at art 40.1.}

¹⁴ As provided for by art 14.4 of the International Covenant on Civil and Political Rights, on which s 25(i) is based: Andrew Butler and Petra Butler The New Zealand Bill of Rights Act: a commentary (2nd ed, LexisNexis, Wellington, 2015) at [23.11.1].

concerning children, including publication of name, the child’s best interests shall be a primary consideration.¹⁵ As Ms Markham acknowledged, both UNCROC and NZBORA place children in a different category from adults by recognising that they require special protection when appearing before criminal courts.

[11] While s 200 of the CPA must be given full effect, nothing within its terms precludes a Court from recognising the special importance of youth at either the jurisdictional or discretionary stages of the name suppression inquiry. When interpreting the s 25(i) NZBORA right, UNCROC’s articles should be adopted in a way which advances Parliament’s purpose. As noted, that purpose is shared by both instruments. Courts can be expected to interpret legislation consistently with

international treaties ratified by New Zealand.¹⁶ Moreover, Parliament is not to be

assumed to have intentionally legislated contrary to New Zealand’s international obligations.¹⁷ In our judgment s 200 of the CPA must thus be interpreted in a way consistent with discharging those obligations.

[12] In Churchward v R¹⁸ this Court referred to expert evidence of the type which justifies the special need for protection of young people recognised by UNCROC and s 25(i) of the NZBORA. In summary:¹⁹

(a) In terms of criminal culpability, young people suffer deficiencies in their decision making ability due to the relatively unformed nature of the adolescent character. There are age-related neurological

_{differences between young people and adults.}

¹⁵ UNCROC, above n 12, at art 3.1: Pouwhare v R [2010] NZCA 268, (2010) 24 CRNZ 868 at

_[82].

¹⁶ See New Zealand Airline Pilots’ Association Inc v Attorney-General [1997] 3 NZLR 269 (CA) at

289 (so far as wording allows, legislation should be read consistently with international obligations); and Yuen Kwok-Fung v Hong Kong Special Administrative Region of the People’s Republic of China [2001] NZCA 174; [2001] 3 NZLR 463 (CA) at [16] (basic principle of international law that “treaties must be complied with”).

17. Terranova Homes & Care Ltd v Service and Food Workers Union Nga Ringa Tota Inc [2014] NZCA 516, [2015] 2 NZLR 437 at [227]; Ye v Minister of Immigration [2009] NZSC 76, [2010]

1 NZLR 104 at [24] and [32]; Zaoui v Attorney-General [2005] NZSC 38, [2006] 1 NZLR 289; and see Ross Carter Burrows and Carter Statute Law in New Zealand (5th ed, LexisNexis, Wellington, 2015) at 272 and 512–517.

¹⁸ _{Churchward v R [2011] NZCA 531, (2011) 25 CRNZ 446.}

¹⁹ At [50]–[55] and [77]–[92].

(b) During the development process the adolescent brain is affected by psychosocial, emotional and other external influences, which we add could include where relevant family instability and alcohol and drug abuse, contributing to immature judgment.

(c) Young people are more impulsive than adults, and have less of an orientation on the future than adults.

(d) Young people have greater capacity for rehabilitation, particularly given that the character of a juvenile is not as well formed as that of an adult. The weight to be given to the rehabilitative capacity diminishes where the offending is serious. We would add, nevertheless, that the existence of serious offending does not equate with a conclusion that a child is beyond redemption.

(e) Offending by a young person is frequently a phase which passes fairly rapidly and thus a well-balanced reaction is required in order to avoid alienating the young person from society.

[13] Some recent sentences imposed in the High Court reflect the primacy given to youth in the name suppression context. In R v UGT²⁰ Whata J granted permanent name suppression to a 15 year old boy who pleaded guilty to a charge of manslaughter by stabbing his friend following a drug and alcohol fuelled dispute. The Judge concluded that suppression would serve the child’s best interests and also discharge his obligation to give principled recognition of the law’s commitment to the rights of the child in accordance with UNCROC.²¹

[14] In R v MG²² Miller J granted name suppression to a 14 year old boy who pleaded guilty to manslaughter – at the age of 12 years he had accidentally shot his cousin when scaring him. The Judge also recognised the priority to be given to

_{promoting a child’s reintegration into the community according to New Zealand’s}

²⁰ _{R v UGT HC Rotorua CRI-2011-263-73, 21 July 2011.}

²¹ _{At [12] and [16].}

²² R v MG HC Gisborne CRI-2010-016-84, 7 December 2010.

international obligations and the NZBORA. That prospect would be better secured by giving MG privacy through name suppression.²³

[15] In R v Q²⁴ Winkelmann J suppressed publication of the name of a 15 year old. He was discharged without conviction after pleading guilty to a charge of assaulting a fellow high school pupil. In concluding that publication of his name would constitute extreme hardship under s 200(2)(a) of the CPA, the Judge said this:

[42] Both your counsel and the Crown submit that the fact that the Youth Court would have automatically granted name suppression is an implicit acknowledgment of the degree of hardship a young person will suffer as opposed to an adult if your name is to be published and I accept this submission. I also take into account as I must the rights of young people under various international conventions to have their need for rehabilitation and reintegration respected through the criminal justice system.

[43] I take into account that young people lack the emotional maturity to deal with the publication of their name in connection with offending, particularly high profile offending as in this case. Name suppression also protects the young person’s prospects of rehabilitation. Young people are particularly exposed to damage through identification in criminal processes – damage that would inhibit or prevent rehabilitation. I have received a psychologist’s report in respect of you and it tells me that you are emotionally immature for a 16 year old, which the psychologist attributes to the sheltered upbringing that you have had in your family.

[16] We accept that DP’s offending was more serious than in these three cases and that the sentences imposed in R v UGT and R v MG predate s 200 of the CPA. And we also accept that, in some other cases cited by Ms Markham, High Court Judges have decided not to suppress the names of young offenders convicted of serious crimes. Nevertheless, the approaches adopted by the three High Court Judges in R v UGT, R v MG and R v Q reflect a pattern of judicial recognition of the factors acknowledged by New Zealand’s treaty obligations when determining name

_{publication issues for a young offender.}

²³ _{At [46]–[47].}

²⁴ R v Q [2014] NZHC 550.

Decision

(a) Jurisdiction

(i) High Court

[17] Lang J faced a difficult task in undertaking a predictive evaluation of the likely effects of publishing DP’s name. As he acknowledged, DP has suffered a deprived and dysfunctional childhood. Again we gratefully adopt his summary:

[21] [Expert] evidence establishes that DP had an extremely unfortunate childhood. He was exposed to alcohol and drugs prior to birth. His mother has a long history of alcohol and drug addiction. These have significantly reduced her ability to provide her children with a suitably stable home and positive influences. As a result DP was exposed to domestic violence, parental drug and alcohol abuse and criminal influences from an early age. He also began using drugs and alcohol himself at an early age.

[22] Matters were complicated further by the fact that when DP was eight years of age he suffered a severe traumatic brain injury after he was struck by a car whilst crossing the road. An injury of this type should have been the subject of lengthy and intensive therapeutic and rehabilitative treatment. Unfortunately, however, DP did not receive any treatment for his injury following his discharge from hospital. He went back to school just two weeks after the accident, and his mother then continued her pattern of moving her children from school to school on a regular basis. This resulted in the schools that DP attended being unaware of his injury and the measures required to deal with it.

[23] By the time of the current offending DP had very little to do with the school system. He had fallen into a lifestyle in which he consumed alcohol and drugs on a regular basis with adults and other persons within his social circle. During this period he also continued to be exposed to criminal influences.

[18] Dr Valerie McGinn, a neuropsychologist who was intensively involved with DP’s care over the preceding 12 months, provided a report. In summary, she confirmed that DP was vulnerable and brain damaged. His susceptibility to instinctive or impulsive reactions when he found himself in a difficult complex situation was a central factor in his offending. His neuro-disability increased his risk of future poor mental health, self-harm and suicide.

[19] It is relevant that when sentencing DP on the day following his decision on name suppression, the Judge in his assessment of culpability found that the offending

was a third party’s idea. DP was initially an unwilling participant.²⁵ The Judge was satisfied DP’s reactions were in fact impulsive and instinctive with little thought of the consequences;²⁶ and that the impact of his traumatic brain injury was a significant factor in the jury’s decision to convict him of manslaughter rather than murder.²⁷

[20] When sentencing DP Lang J also said this about his prospects for rehabilitation:

[36] The material before me makes it clear that you have done well during your year at the youth justice facility. You are attending school regularly. You are playing sports and at long last you are leading what seems to be a normal life. You are currently away from drugs and alcohol and you are away from criminal associates who may be a negative influence on you. I consider that it is going to be essential for you to remain in that type of environment for some time in order to give you and society the best possible chance that you will not come out of prison and re-offend again in the future.

[37] Ultimately of course the decision about your date of release will be one for the prison and parole authorities. They will no doubt make that decision cautiously. One of the most important factors, as Dr McGinn points out in her most recent report, is that you are going to need to have a transition into the community. That transition is going to have to be very carefully managed. Ordinarily a young offender is released into the support network provided by his or her wider family. For obvious reasons that support network may not be available to you. So it is likely that the State will be required to ensure that a suitable support network is placed around you when you are released. I consider, however, that the need to keep you in an environment where you can continue to develop and where you can be kept away from drugs, alcohol and negative influences is essential if you are to have a chance of leading a worthwhile life in the community in the future. For that reason I propose to impose a minimum term of imprisonment of three years and three months. By my reckoning that will still enable the prison and parole authorities to consider your situation before you turn

17 years of age.

[21] Lang J’s comments convey his satisfaction that the nature and effect of DP’s brain injury was a significant factor in the jury’s verdict and thus in his culpability; and also that DP was making positive progress towards rehabilitation. He was living in an affirmative environment. He was taking advantage of the opportunities afforded to him for the first time to lead a normal life. He was free of the adverse

_{influences to which he had been subjected for so long. Significantly, he was}

²⁵ _{At [14].}

²⁶ _{At [16].}

²⁷ At [31].

showing insight into his risk factors, did not get drawn into physical conflict and was not a disciplinary problem.

[22] Lang J took these personal factors into account in the jurisdictional stage of the name suppression inquiry in finding that (a) DP will be sheltered from the adverse effects of any publicity while he remains for the next three years at least in a youth justice facility;²⁸ (b) publication of his name is unlikely to affect his rehabilitative progress in that period;²⁹ (c) those who know DP and his family are likely to know his involvement in Mr Kumar’s death;³⁰ (d) DP’s risk of self-harm

_{associated with publication was not decisive;}³¹ _{and (e) publication would not have an}

unduly adverse effect on DP when he is released.³²

(ii) Conclusion

[23] In our judgment Lang J failed to give primary consideration to DP’s particular characteristics when assessing whether name publication would be likely to cause him extreme hardship. Our starting point is the Judge’s acceptance that all offenders suffer a degree of hardship when their names are published.³³ To that we must add Ms Markham’s proper acknowledgement that a young person is likely to suffer a greater degree of hardship than an adult because they lack the requisite

maturity to deal with the attendant publicity. Once this scale is engaged, the question becomes whether and where along the spectrum the degree of likely hardship arising from name publication reaches the requisite level of extremity. While the effect for a child who has not suffered the same deprivation as DP might not meet that threshold, we are satisfied that his circumstances qualify.

[24] We differ from the Judge in four material respects. First, as explained by Dr McGinn, DP’s brain injury, coupled with all the environmental and familial disadvantages of his upbringing, places him in a special category of vulnerability.

_{He does not possess the mechanisms for dealing with the added burden of name}

²⁸ _{At [27](d).}

²⁹ _{At [27](i).}

³⁰ _{At [27](f).}

³¹ _{At [27](j).}

³² _{At [27](k).}

³³ At [27](a).

publication. His real risk is that others in the youth justice facility will in fact learn of the particular and highly publicised circumstances of his offending – even living with the fear of the risk is likely to cause him hardship.

[25] We do not share the Judge’s confidence that DP’s confinement in the youth justice facility will adequately shelter him from that risk. The consequences of publication for DP’s progress towards rehabilitation will necessarily be adverse. We agree with Ms Pecotic that the Judge placed undue emphasis on the likely effects of publication when DP is released from custody, some years away. We think that the predictive evaluation has to be more immediate.

[26] Second, the Judge rejected a submission based on DP’s risk of self-harm. He recognised its existence but did not consider it required great weight in the context of DP’s application, observing that the youth justice facility will need to monitor it. He accepted a submission from Ms Goatley that Courts have declined to suppress an offender’s name even where there is a significant risk that publication may prompt the offender to take his life, citing Robertson and Suttie in support.³⁴

[27] However, Robertson does not stand as authority for that submission; this Court simply noted the High Court Judge’s finding that there was no evidence of a significant risk of suicide. Here that level of risk is established for DP and is not ameliorated by the care available during his detention. And in Suttie this Court held that a risk of suicide was not uncommon at sentencing, finding such a risk in that case to be reasonably controllable within the prison system.³⁵ However, Suttie

confirms only that risk of suicide is not “a determining consideration”.³⁶ While that

is no doubt correct, risk of suicide is certainly a relevant consideration³⁷ and justified particular weight for a young and vulnerable offender.

[28] Third, within the hardship scale we refer to an important finding made by the

Judge. He ordered suppression of publication of any visual or photographic image

_{which might lead to DP’s identification on the ground that publication would cause}

³⁴ _{At [28](j), citing Robertson, above n 4, at [16] and R v Suttie [2007] NZCA 201 at [32].}

³⁵ _{At [32].}

³⁶ _{At [32].}

³⁷ See [T] v R [2015] NZCA 464 at [9]; and R v McDonald CA84/98, 24 August 1998 at 5–6.

him extreme hardship.³⁸ His rationale was that people are more likely to remember a face than a name.

[29] The Judge’s finding necessarily implies his acceptance that identification of DP by facial recognition would cause him extreme hardship. Once that factor is acknowledged, it is difficult to justify a principled distinction between the nature of the recognition, whether facial or by name. Ms Markham accepted that it gives rise to an incongruity. Moreover, as Ms Pecotic pointed out, internet search engines are such that a person’s name can be entered and images as well as data relating to that person can be downloaded within seconds – and vice versa. It follows that an order for partial suppression would be ineffective on its own. In our judgment all means of identification will require suppression.

[30] Fourth, we also depart from the Judge on his longer range predictive assessment. On the assumption that he is correct that while DP remains in the youth care facility he will be sheltered from the adverse effects of any publicity, DP must live with the knowledge that on release he will be exposed to the adverse affects of publicity. The Judge himself recognised that when DP undertakes his transition into the community he will not enjoy the support network normally available from his family and friends. The extent to which the state can provide that assistance is problematic.

[31] We must work on the same premise recognised by the Judge that DP has reasonable prospects of rehabilitation and reintegration back into society. In our judgment, also of a predictive nature and based upon inferences we must draw from available evidence, those prospects are likely to be severely compromised by name publication and associated publicity on his release. DP and the public generally will be reminded of serious offending which occurred at a time when he was open to suggestive and compulsive behaviour and in a state of developmental immaturity. Publicity will not allow him to move forward as he attempts to adjust to life in the community.

[32] In this respect, when answering a submission that DP was likely to suffer undue hardship from publicity on his release, the Judge referred to two cases where the names of young offenders who had committed serious crimes were published. One, which he described as being well known, was that of Bailey Kurariki.³⁹ He was sentenced to seven years imprisonment for manslaughter committed as part of a joint enterprise with older offenders when he was aged 12 years.

[33] We are aware of the constant attention given to Mr Kurariki by some elements of the media following his release from imprisonment on parole. Frequent references have been made to his status as the country’s youngest convicted killer and the circumstances of his offending have been constantly revisited, without any reasoned distinctions being drawn in his participation in the victim’s death. The same practice of placing young people in a special and highly publicised category has not apparently been adopted for adult prisoners released on parole. As Ms Pecotic noted, the media has given little if any publicity to Mr Kurariki’s older co-offenders who were convicted of murder.

[34] Ms Goatley sought to pre-empt the adverse inference available from the publicity given to Mr Kurariki by observing that serious offending by young people is now less rare than it was in 2001, with the inference that the media interest in publication of DP’s name will be less intense and more responsible than it was for Mr Kurariki. We cannot be so sanguine and, if Ms Goatley is correct, her submission tends to beg the question of why the media has opposed DP’s application.

[35] In summary, we are satisfied that publication of DP’s name is likely to cause him extreme hardship.

(b) Discretion

[36] It is thus necessary for us to consider whether Lang J erred in finding that the discretionary factors favoured publication. He gave particular weight to the factors against suppression – the seriousness of the offending, the public interest in knowing

the names of serious offenders and the victim’s family’s anxiety. The contrary factor favouring suppression was the risk that DP was likely to suffer some hardship, affecting his rehabilitation and future prospects.

[37] We are also satisfied that the Judge erred in principle in this assessment. Our starting point is that DP is likely to suffer extreme hardship from publication of his name. The balancing exercise requires that DP’s best interests should be a primary consideration. On this issue the Judge said:

[32] I acknowledge the rights conferred on children by the United Nations Convention on the Rights of the Child (UNCROC), to which New Zealand is a signatory. Articles 37 and 40 of the treaty require all signatories to ensure that children are dealt with in the criminal justice system in a manner that is appropriate to their age and their developmental needs. That requirement has already largely been complied with by the steps taken to protect DP’s interests prior to and during the trial. I do not see the treaty obligations as requiring suppression to be ordered in respect of youth offenders when that would not ordinarily be the case under the general law of this country.

[38] The UNCROC principles mandated a different approach. As we have said, DP’s best interests required priority. Moreover, the treaty and statutory rights conferred on a child do not end with completion of the trial. As we have noted, the UNCROC articles and s 25(i) place particular emphasis on promoting a child’s reformation and reintegration back into society. While we agree with the Judge that New Zealand’s treaty obligations do not of themselves require an order for suppression for young offenders, we are satisfied that they must play a central part in the discretionary analysis in a case such as this.

[39] We acknowledge of course two important counter balancing factors. One is the public interest in open reporting which Ms Goatley emphasised. However, as Ms Pecotic countered, this case has been fully reported, both throughout the trial process and afterwards. There is, as she submitted, a difference between something being of interest to the public and being in the public interest. The public do not need to know DP’s name; there is no need for public protection. His personal circumstances including his deprived upbringing and his brain injury and the effect of his offending have been fully traversed in the media. It is this type of information

which is in the public interest, not the name of the young person whose offending is a reflection of the numerous disadvantages he has suffered.

[40] The other counter balancing factor is that DP’s offending was very serious. The degree of an offender’s culpability, which Ms Goatley emphasised, has particular relevance here. While DP unlawfully took another person’s life with all its tragic consequences, this finding by the Judge when imposing sentence is relevant:

[24] Dr McGinn is of the opinion that at the time of the offending DP was extremely tired, and his ability to function mentally was affected by this fact. It was also affected by the fact that he had consumed synthetic cannabis on the evening before the offending. She considers that these factors, coupled with the after effects of his brain injury, left him vulnerable to acting instinctively or impulsively once he encountered a complex situation such as that which arose when the shopkeeper’s wife emerged with the phone. Dr McGinn considers that DP is likely to have become overwhelmed by the complexity of the situation at that point, and that thereafter he lashed out instinctively and impulsively. The jury's verdict appears to support this view of events.

[41] The nature of DP’s culpability was a function of his age, physical and neurological disability and fatigue. There is no discrete need, apart from the imposition of a term of imprisonment, to hold DP further accountable to society for the harm his offending has caused by publishing his name. While the views of Mr Kumar’s family are understandable, they do not carry decisive weight in this context. We acknowledge their total sense of loss. But we are not satisfied that publication of DP’s name will materially assist through the grieving process.

[42] When the balancing exercise is undertaken from the correct legal foundation and on the jurisdictional premise that DP is likely to suffer extreme hardship if his name is published, we are satisfied that his name should be suppressed. Society’s interest in promoting DP’s reintegration and rehabilitation outweighs any interest in knowing his name.

Result

[43] The order made in the High Court declining DP’s application for permanent suppression of name is quashed. In its place we substitute an order permanently

prohibiting publication of DP’s name and of any visual or photographic image or any other details likely to lead to his identification.

Solicitors:

Crown Law Office, Wellington for Respondent