R v DP [2015] NZHC 1765 (29 July 2015)

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

Hearing:	29 July 2015
Appearances:	K Raftery and K Snelgar for the Crown M N Pecotic and J-A Kincade for DP D S Niven and P K Hamlin for RP T G Goatley for media interests
Judgment:	29 July 2015
_Reasons:	_{29 July 2015}

This judgment was delivered by me on29 July 2015 at 3.45 pm, pursuant to Rule 11.5 of the High Court Rules.

[1] Following a trial before a jury DP was acquitted on a charge of murder but convicted of manslaughter. He is due to be sentenced on 31 July 2015. His co- defendant, RP, was acquitted on a charge of manslaughter.

[2] DP and RP seek an order that their names and identifying particulars be permanently suppressed from publication. I have elected to deal with that application prior to sentencing so that the focus of the sentencing hearing will not be on the issue of suppression.

[3] The Crown and several sections of the mainstream news media oppose the application so far as it relates to DP. The latter comprise NZME Publishing Limited, Fairfax New Zealand Limited, Media Works TV Limited and Television New Zealand Limited (the media interests.)

[4] The Crown is neutral in relation to the application by RP, and counsel for the

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 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.

[9] The Crown case against RP was that he and DP had agreed to assist each other to rob the dairy using weapons to overcome any resistance they might encounter. It alleged that DP killed Mr Kumar whilst they were carrying out the plan. It also alleged that RP knew when he agreed to the plan that somebody in the shop could well be injured when they carried out the plan. As a result, the Crown alleged that RP was party to the crime of manslaughter by virtue of s 66(2) of the Crimes Act 1961. The jury’s verdict demonstrates in my view that the jury was not satisfied that RP appreciated that somebody could well get hurt in carrying out the plan to rob the dairy.

[10] Section 200 of the Criminal Procedure Act 2011 (the Act) permits the Court to make an order suppressing publication of an offender’s name and identifying details. It relevantly provides as follows:

(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) cast suspicion on another person that may cause undue hardship to that 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

(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.

[11] Section 200 requires the Court to approach an application for suppression in two stages. First, the Court must consider whether the applicant has established the existence of one or more of the qualifying factors listed in s 200(2). In this context the Court must determine whether one or more of the consequences prescribed by s

200(2) “is a real and appreciable possibility that cannot be dismissed or ignored as remote or fanciful.”¹

[12] If the Court concludes that one or more of the qualifying factors has been established, it must consider whether to exercise its discretion in favour of the applicant.²This requires the Court to weigh the competing interests of the applicant and the public. Issues such as the seriousness of the offending and the public interest

_{in ensuring that the criminal justice process is open and transparent
must be weighed}

against the interests of the offender.³The views of the victims of the offending must also be taken into account at this stage of the enquiry.

[13] In Robertson v R the Court of Appeal said that it was “clear beyond argument” that the phrase “extreme hardship” in s 200(2)(a) connotes a very high level of hardship.⁴The Court observed that the word hardship on its own meant “severe suffering or privation”. The addition of the qualifier “undue” in s 200(2)(c) indicates that something more than simple hardship is required, whilst the use of the word “extreme” in s 200(2)(a) indicates something more again.

[14] The Court of Appeal also observed that assessment of the level of hardship that publication will produce “cannot take place in a vacuum”.⁵It is “self evidently contextual”, and must entail a comparison between the contended hardship and the consequences normally associated with a defendant’s name being publicised. The contended hardship must go beyond the consequences ordinarily associated with publication.

[15] As the Crown acknowledges, RP is in a very different position to DP. His acquittal means that he is not guilty of any criminal involvement in the events that led to Mr Kumar’s death.

[16] RP was 12 years of age at the time of the incident giving rise to the charge, and he is still just 13 years of age. The evidence at trial makes it clear that he faces significant difficulties in many areas of his life, and will need substantial support from the social welfare authorities if he is to have any chance of leading a worthwhile life in the future. I consider it would be highly unfortunate if RP was required to deal with the inevitable publicity that would ensue if suppression is not granted. Given his acquittal I consider that RP would suffer extreme hardship if his

_{name was now published. For the same reasons I am satisfied that I
should exercise}

my discretion and I therefore make a permanent order suppressing his name and identifying particulars from publication.

[17] Ms Pecotic submits that publication of DP’s name will also cause extreme hardship to DP, and that it will lead to the identification of RP. Ms Pecotic also raises a concern that publication of DP’s name may also lead to the identification of his mother. She is apparently facing charges of her own in the criminal jurisdiction of the courts.

[18] I can deal with the two latter submissions shortly. The respective positions of DP and RP were entirely separate at trial, and I see no reason why publication of DP’s name at this point would lead to RP’s identification. Similarly, I am advised that there is also already an order in existence prohibiting publication of any link between DP and his mother. They do not share the same surname. Given those facts I do not consider that publication of DP’s name is likely to lead to the identification of his mother. Neither of these grounds has been established.

[19] The real issue is whether DP will suffer extreme hardship in the event that his identity is published.

[20] Ms Pecotic relies in this context on a further report she has obtained from Dr Valerie McGinn, a neuropsychologist who has had a great deal to do with DP in the last 12 months and who gave evidence on his behalf at trial.

[21] Dr McGinn’s 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.

[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.

[25] Dr McGinn has also provided her opinion in relation to the likely effect of

In my opinion, [DP] is a vulnerable brain injured child whose future development will be jeopardised by the publication of his name. It has been

established by the jury that he lacked murderous intent and it is only the jury that have heard the full evidence and particular circumstances of [DP] on which they based their decision. In my opinion, should [DP]’s name be made commonly known he will suffer extreme hardship. He will be judged harshly by the community when they are not privy to what really happened. As he mentioned to me at interview he will be forever known as the “Railside Dairy Killer” and this will be detrimental to his chances of rehabilitation and leading a normal life in the future. The video of Mr Kumar’s death has been widely played in the media and should [DP]’s name be published this will be aligned to him without regard to his particular circumstances and his established lack of murderous intent.

In my opinion, [DP] has some real strengths to build on for the future. He is of good underlying ability, is a good student who should be able to achieve academic success with sufficient support. He has a good work ethic and as long as his fatigue is managed has good learning capacity. In my opinion, the publishing of [DP]’s name will have extremely negative repercussions on his future education, employment, housing and social function. His chances of successful rehabilitation will be greatly lessened, in my opinion, should his identity become publicly known.

Although [DP] is currently stable in his mental health, he has the risk to act impulsively and has self harmed in the past. He gets tired and overwhelmed easily and his neuro disability does increase the risk of future poor mental health, self harm and suicide. He did make a suicide attempt at a young age and has cut his arms to self harm closer to the time of arrest. In my opinion the ongoing suppression of his name will help him to make progress, rehabilitate and be hopeful for the future.

[26] Ms Pecotic cited numerous cases in support of her submission that an order for permanent suppression should be made. Many of these provide little assistance, however, because they involve adult offenders whose personal circumstances are very different to those of DP. This stage of the enquiry is necessarily contextual and fact specific. For that reason other cases are unlikely to be of great assistance.

[27] Taking DP’s personal circumstances into account, several factors persuade me that DP will not suffer extreme hardship in terms of s 200(2)(a) of the Act if his identity is published:

(a) All offenders suffer a degree of hardship when their names are published. That fact alone is not sufficient to engage the section.

(b) Although age is a factor when considering the degree of hardship publication will create, I accept the submission for the media interests that in cases involving serious criminal offending the age of the

defendant is unlikely to be determinative.⁶There are numerous cases where the names of young offenders who have committed serious crimes have been published.⁷

(c) Although there is likely to be significant publicity on and around the sentencing date, this is likely to be of relatively short duration.

(d) I consider that the environment in which DP is currently residing is important in this context. For the next few years he will be residing in the youth justice facility where he has resided for the last twelve months. This provides him with a significant shield in respect of the publicity generated in the wider community by his offending. I am aware that during the trial the facility was able to ensure that DP did not have access to news items about the trial via any form of electronic or print media. Similar steps can be taken to ensure that he does not have access to reports of his sentencing and news articles that may follow that event.

(e) I also consider that the publication of visual images of DP is likely to cause the greatest form of hardship to him. People are likely to remember a face but not a name. It is possible to guard against this type of adverse effect by prohibiting any photographic image of DP from being published in the news media.

(f) Those who know DP and his family are already likely to know of his involvement in the incident that led to the charge. Those in the wider community who do not know DP and his family are unlikely to have

⁷Two of the more well known examples are Bailey Kurariki, who was sentenced to seven years imprisonment for manslaughter at the age of 14 years, and Jahche Broughton who at 15 years of age was sentenced to life imprisonment for the murder of Scottish backpacker Karen Aim: R v Rapira [2003] NZCA 217; [2003] 3 NZLR 794 and R v Broughton HC Rotorua CRI-2008-269-62, 26 March 2009. See also R v Trevithick HC Auckland CRI 2007 244 009, 19 June 2007.

(g) Many of the factors identified by Dr McGinn are the natural consequences of any form of serious criminal offending, and they cannot amount to serious hardship in terms of s 200(2). In particular, DP must now come to terms with the fact that he has been convicted of the manslaughter of the shopkeeper, and the stigma that this entails. He must also accept that the community is entitled to judge the offending for what it was.

(h) Furthermore, the Court will make its own assessment of the nature and culpability of DP’s offending at sentencing, and this will include an analysis of the reasoning that is likely to have led to the jury’s verdicts. The news media can be expected to report the Court’s sentencing remarks in a fair and balanced way. Provided this occurs, the community will have a clear understanding of the nature and culpability of DP’s offending. This should not unduly restrict or inhibit DP’s chances of rehabilitation and the ability to lead a normal life in the future.

(i) I do not consider that the publication of DP’s name (but not his photograph) is likely to significantly hinder his future development over the next three to four years at the youth justice facility. In particular, it should not hinder DP’s educational opportunities and social functioning at the facility. Residents and staff at the facility will already know of the charge that DP faced and the jury’s verdict. To date they have been able to provide a supportive and structured environment for him, and this will no doubt continue in the future.

(j) Although Dr McGinn does not go so far as to say that DP is likely to self harm if his name is published, that inference may be drawn from the final paragraph set out above at [20]. This is an issue that commonly arises when an offender is convicted on serious criminal charges. It is clearly an issue the youth justice facility will need to monitor as it has no doubt done in the past, but is not a factor to be given great weight in the present context. As the media interests point

out, the courts have declined to make suppression orders even where there is a significant risk that publication may prompt the offender to take his or her own life.⁸

(k) By the time DP is ultimately released few members of the community are likely to remember his name. Given that he is likely to be subject to strict release conditions, it should not impact on his ability to find housing at that time. Although the fact of his conviction may impact on DP’s future employment prospects, publication of his name is unlikely to have a great deal of added impact in that area. Like all prospective employees, DP will no doubt be required to disclose the existence of the conviction to future employers. They will then be able to make their own judgment as to whether or not he would make a suitable employee.

[28] For these reasons I have determined that DP has not established that jurisdiction exists to make a permanent order suppressing his name from publication.

[29] In case I am wrong regarding the issue of jurisdiction, I shall briefly consider whether it would have been appropriate to exercise my discretion in favour of suppression if jurisdiction had been found to exist.

[30] Factors counting against suppression include those listed above at [27]. In addition, there is the seriousness of the offending and the public interest requiring the names of serious offenders to be published. Mr Kumar’s family are also anxious that DP’s name be published.

[31] Factors favouring suppression include the undoubted fact that DP is likely to suffer some hardship in the event that his name is published. This may affect his

_{rehabilitation and future prospects, although the extent to which this
is likely to be}

⁸See eg Robertson v New Zealand Police, above n 2, at [16]; R v Suttie [2007] NZCA 201 at

the case is difficult to gauge given the fact that he will continue to reside at the youth justice facility for at least the next three to four years.

[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.

[33] Taking these factors into account, I would have exercised my discretion against an order for permanent suppression.

[34] The application for permanent suppression of DP’s name is declined. Subject to any appeal being filed against this decision, the order for interim name suppression will be lifted at sentencing. I make an order, however, suppressing from publication any visual or photographic image that might lead to DP’s identification. For that reason cameras will not be permitted to film DP at the sentencing hearing,

High Court of New Zealand Decisions

R v DP [2015] NZHC 1765 (29 July 2015)