R v D [2014] NZHC 2233 (16 September 2014)

Last Updated: 16 October 2014

ORDER PROHIBITING PUBLICATION OF NAME(S), ADDRES(ES), OCCUPATION(S) OR IDENTIFYING PARTICULARS OF DEFENDANT PURSUANT TO S 200 CRIMINAL PROCEDURE ACT 2011.

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2013-092-9367 [2014] NZHC 2233

THE QUEEN

v

_D

Hearing:	15 September 2014
Appearances:	W Cathcart for the Crown J J Corby for the prisoner
Judgment:	16 September 2014

JUDGMENT OF ELLIS J

_{(Name suppression and media applications)}

This judgment was delivered by me on 16 September 2014 at 9.30 am pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date:...............................

Counsel/Solicitors:

W Cathcart, Meredith Connell, Auckland

J J Corby, Barrister, Auckland

R v D [2014] NZHC 2233 [16 September 2014]

[1] D is about to be sentenced, having pleaded guilty to (inter alia) the murder of her father-in-law. It goes without saying (but I say it anyway) that her offending is of the most serious kind.

[2] An interim suppression order was made by Brewer J on 11 September 2013.¹

That order was renewed by Venning J on 30 July 2014. Media requests to access the Court file were also declined by Lang J on 24 July and 7 August 2014. All of those decisions were made on the basis of the medical evidence before the Court about D’s fragile mental state.

[3] D now seeks a permanent suppression order, on mental health grounds. She relies on a lengthy psychiatric report by Dr Mhairi Duff which concludes that publication of her name would create a significant suicide risk. I will set out Dr Duff’s views later in this judgment.

[4] D also necessarily opposes a further application by members of the accredited media to take still photographs of her during her sentencing.

The law

[5] The starting point is the principle of open justice. In considering whether or not to make an order forbidding publication of the identity of a defendant, the courts have consistently emphasised the presumption in favour of openness in reporting. In R v Liddell the Court of Appeal stated:²

... the starting point must always be the importance in a democracy of freedom of speech, open judicial proceedings, and the right of the media to report the latter fairly and accurately as ‘surrogates’ of the public.

[6] This principle of openness reflects the “public interest in knowing about all

_{aspects of the operation of the justice system.”} ³

¹ _{R v D [2013] NZHC 2373.}

² _{R v Liddell [1995] 1 NZLR 538 (CA) at 546.}

³ EPL v Police HC Auckland CRI-2010-404-76, 22 April 2010 at [37].

[7] Publication also contains an element of punishment and deterrence, and may protect the public from further offending or encourage other victims to come forward. It can also prevent suspicion falling unjustly on others.

[8] This is the context within which s 200 of the Criminal Procedure Act 2011 falls to be considered. That section relevantly provides:

(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;

...

(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.

[9] The words used in s 200(2)(a) are clearly intended to create a high threshold for the grant of name suppression. Publication of an offender's name will usually cause hardship both to the offender and their family, and it is clear that more than that is required to make out extreme hardship. “Extreme” is a higher benchmark than “undue”.

[10] As to s 200(2)(e), the decision in BL v R makes it clear that D falls within the class of persons whose safety can be considered.⁴ Whether publication of her name is likely to endanger her safety must be determined on the basis of the medical evidence before the Court. As noted in R v Suttie, however, a psychiatrically identified risk of suicide is a relevant, but not determinative factor as far as name

_{suppression is concerned.}⁵ _{In that case the Court of Appeal upheld a refusal of}

⁴ _{BL v R [2013] NZHC 2878.}

⁵ R v Suttie [2007] NZCA 201 at [32].

suppression even though the evidence was that publication would heighten an existing risk of suicide. The Court reasoned that the risk identified:⁶

...must be reasonably controllable within the prison system and the probabilities are that it will be largely alleviated once the criminal justice process is at an end.

[11] In BL, however, permanent name suppression was granted.⁷ BL had been convicted of multiple sexual offences against two young boys. He was sentenced to

12 months home detention and permanent suppression had been declined in the District Court. On appeal, Winkelmann J concluded that, due to new evidence she had received, the decision reached by the District Court Judge was plainly wrong. The new evidence took the form of a report from a psychiatrist specifically addressing “support structures” available to BL which the District Court Judge had described as sufficient to mitigate the risk of suicide. The fresh evidence cast serious doubt on this conclusion.

[12] At [8] of her judgment, Winkelmann J noted that BL had been treated by a psychologist and a psychiatrist, and continued:⁸

Both had diagnosed BL as having suffered from a major depressive episode triggered by post traumatic stress disorder, with uncontrollable flashbacks a feature of the disorder.

[13] And later, the Judge expressed her conclusion in these terms:⁹

There may be circumstances where the risk of reoffending is so great that, notwithstanding that it will result in a heightening of a high risk of suicide, name suppression will be declined. I do not consider that this is such a case. Having read all the material, it is apparent that BL's risk of reoffending is to be assessed as low. He is a man in his mid 60s who has never offended in this fashion before. His offending occurred in the immediate aftermath of a traumatic episode, and has been assessed by both (a psychologist and a psychiatrist) as being linked to the post traumatic stress disorder and depression that followed. That this was a consequence of BL's mental illness is now known and treatment can be directed to it, both through his mental health providers, and most likely, through probation-directed rehabilitation programmes. I also note that BL has been suspended from medical practice, which further addresses concerns regarding public safety.

⁶ _{At [32].}

⁷ _{BL v R, above n 4.}

⁸ _{At [8].}

⁹ At [29].

This case

Views of victims

[14] First, s 200(6) requires the Court to take into account the views of D’s victims. They are almost all members of her father-in-law’s family, and therefore D’s own, family. Their views are either assumed to be supportive of her name suppression application or are neutral on the issue.

The medical evidence

[15] As far as the psychiatric evidence is concerned, there are a number of matters that are not seriously in dispute and which can therefore be noted at the outset.

[16] First, D is, herself, the past victim of sexual abuse. The abuse occurred on numerous occasions and was perpetrated by more than one person. That abuse is well-documented and, indeed, later led to the conviction and imprisonment of one of the offenders, a family member who had also offended in a similar way against others in the family. In 2009 she was diagnosed as suffering from PTSD and a recurrent major depressive disorder. At that time her attempts at engaging in therapy were not successful.

[17] The diagnosis of PTSD was confirmed by Dr Duff, who is a highly qualified psychiatrist and the Deputy Director at the Mason Clinic. Having interviewed D on three occasions over seven hours she provided a lengthy written report. She also appeared at the hearing yesterday and was questioned by counsel and the Court. There seems little doubt that the traumatic events that led to D’s PTSD had some real part to play in her offending.

[18] Dr Duff noted (and, again, it is not in dispute) that D has previously attempted suicide on two occasions, both of which were closely associated with the matters for which she is now for sentence. The first and less serious attempt was made when she became aware that she was a “person of interest” in the Police inquiry into her father-in-law’s death. In relation to the second incident Dr Duff said:

31. In the week prior to entering a guilty plea [D] again took a significant overdose of medication. This was a very serious suicide attempt and she required intensive care support and was hospitalised for around one week. [D] was subsequently remanded in custody and was reviewed by the prison in-reach mental health team. The assessments typify the coping style [D] has demonstrated throughout her life as she had again compartmentalised her stressors and distress and presented as mentally well. She was discharged back to the care of the prison general practitioner. She is not therefore currently under any psychiatric follow up and is not taking any medication. [D] is able to accept that she ‘hides’ emotional distress in boxes and recognises that when she ‘takes the lid off’ she has catastrophic reactions. She remains relatively insightless, however, into the extent of her emotional damage and continues to ‘put up a good front’, minimising the issues. [D] has recently agreed that a re-application through ACC sensitive claims may be helpful and has stated she will make this application although she remains ambivalent about addressing her own history of abuse.

[19] In terms of the specific risks arising from the publication of D’s name Dr

Duff’s conclusions were as follows:

64. Of greater issue, however, is the considerable risk that publication of [D]’s name will result in a significantly increased risk of suicide for [D]. Despite her history of abuse [D] has survived throughout her life by dissociation or splitting off traumatic memories from the rest of her consciousness. At times when she is confronted with facing her suppressed realities [D] has shown catastrophic decompensation. She has now had two significant suicide attempts recorded. The first, on the eve of exposure through a significant interview with the police, and the second, on the eve of her arraignment when she intended to enter a guilty plea. This second suicide attempt was sufficiently serious that it resulted in a need for intensive care admission and was almost successful. Both attempts occurred in the absence of apparent warning signs or overt evidence of distress making the supports generally offered within custody to people at risk of suicide much more difficult to engage.

65. If [D] does not have name suppression granted she risks sudden confrontation by other prisoners or the media both around the time of her sentencing but also unpredictably in the future with each subsequent exposure potentially triggering her catastrophic suicidal reaction. [D]’s difficulty in coping and processing her own emotions and dealing with her guilt over her offending arises not simply from the natural guilt or remorse of any offender but specifically in relation to her lack of adaptive coping strategies, her suppression of memories and her lack of emotional flexibility arising primarily from her own history of abuse.

66. [D] has not, to date been able to engage in therapy to address her own history of abuse and her pattern of walling off emotions and dissociation requires not direct confrontation but trauma informed therapy to safely manage. It is conceivable that [D] will engage now with a therapist to address her own abuse and if so that she will be able to reduce her risk of sudden suicidal risk in the future but at present her risk of suicide whenever facing confrontation over her own trauma and her subsequent actions is likely to remain high.

67. It is my opinion that publication of [D]’s name would endanger her safety significantly beyond the normal level any convicted prisoner may experience and that the Court may wish to consider permanent name suppression. It is noted that there are many existing deterrents to such a serious and relatively rare crime as murder and that the punishment for this offence is already extremely high. There is no indication from the current assessment that name suppression would increase the risk to the public.

[20] When questioned by Mr Cathcart, Dr Duff accepted that unless and until D

was able to get suitable treatment she did present a high risk of harm to others.

[21] In terms of the ability to manage the suicide risk in prison, Dr Duff accepted that protective procedures could, and no doubt, would be put in place immediately following D’s sentencing. As the above passages from Dr Duff ’s report make clear, however, her concern was focussed on the possibility that, at some later time, the detail of D’s offending featured again in the media or became the subject of renewed interest from her fellow prisoners. If such events caused D to be confronted with her past trauma, she could again catastrophically decompensate and attempt to take her own life. The particular concern was that because D shows no outward signs of distress even when on the brink of such catastrophic behaviour, the risk is very difficult for an already stretched forensic psychology team at the prison to predict, to perceive or to respond to.

[22] Dr Duff was adamant that there was no psychological benefit whatsoever in forcing D to confront her past trauma.

Discussion

[23] Mr Cathcart emphasised that D’s is not a case such as BL where the risk of violent reoffending is low. Dr Duff’s evidence on that issue was somewhat equivocal. But she did eventually accept, on questioning by Mr Cathcart, that because D’s past trauma appears to have been causative of her offending, and because D has, thus far, been mentally unable to confront or address that trauma, her risk of reoffending could be categorised as high.

[24] That said, however, the signal difference between this case and BL is that D is going to be in prison for a very considerable time. Although, as I write this, she is

yet to be sentenced, it seems almost certain that she will not be released from jail until she is at least in her mid-60s, some 15 years hence. It is vehemently to be hoped that she will receive considerable assistance and therapy while she is in prison.

[25] By contrast, BL was essentially back in the community at the time the question of suppression arose. There was thus a real issue about whether it was necessary that his name be known in order to protect other children from him. Moreover, and notwithstanding Mr Cathcart’s submission about the high risk of reoffending, the reality is that D has no history of violence. My own sense is that D’s past trauma triggered D’s violent offending only when coupled with a unique combination of events. That kind of unfortunate combination is, perhaps, unlikely to reoccur.

[26] The other complicating factor in D’s case is that she is a victim of sexual abuse. As I have said, there was a trial of one of the perpetrators of that abuse and he was convicted. D has a statutory entitlement to name suppression in that context, as do the other victims, who are all family members (a matter that is explicitly recognised in s 200(2)(f)).¹⁰

[27] While it might be possible for the media to report on D’s sentencing without referring to the past abuse, such reporting would necessarily present a misleading and unfair picture of D. That is because the abuse, and her psychological response to it, very much forms the context for what occurred. Without it, what she did becomes utterly inexplicable and D is reduced to a brutal and callous killer.

[28] In my view, requiring D to choose between the media painting an inaccurate and adverse picture of her and foregoing her statutory entitlement, as the victim of sexual abuse, to name suppression, neither furthers the principles of open justice nor the principles and purpose of sentencing.

[29] Although I have not found this issue without difficulty, I have concluded that

_{an order permanently suppressing D’s name is warranted. In my view grounds under}

¹⁰ I accept that s 200(2)(f) does not apply to D herself.

both s 200(2)(a) and (e) exist for that conclusion. In terms of s 200(2)(a) I consider that the risk of suicide that publication of her name would create, together with the prospect of the publication of D’s traumatic history of sexual abuse, which the law would otherwise protect, constitutes extreme hardship. Dr Duff ’s evidence also satisfies me that because of the unusual manifestation of D’s mental illness, the prison authorities may not be able to guard adequately against the suicide risk, and that risk also means that publication is likely to endanger D’s safety.

[30] Accordingly there will be an order permanently suppressing the publication of D’s name and any matter that might serve to identify her. The precise strictures which that order may place on reporting of her sentencing this afternoon by the media can be discussed further at that time, if necessary.

[31] It necessarily follows that the applications by APN Ltd, Fairfax and RNZ to take photographs of D at the sentencing are declined.

Rebecca Ellis J