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High Court of New Zealand Decisions |
Last Updated: 3 October 2016
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2016-092-5315 [2016] NZHC 2052
THE QUEEN
v
H
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Hearing:
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16 August 2016
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Appearances:
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E P Priest for the applicant
M K Regan for the Crown
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Judgment:
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31 August 2016
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JUDGMENT OF THOMAS J
This judgment was delivered by me on 31 August 2016 at 4pm pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Date:...............................
Solicitors:
Blackstone Chambers, Auckland. Kayes, Fletcher, Walker,
Manukau.
R v H [2016] NZHC 2052 [31 August 2016]
Introduction
[1] The defendant is charged with kidnapping, in relation to the
kidnapping and death of Ms Jindarat Prutsiripron, the victim
in this
matter.
[2] The defendant now applies for name suppression until conclusion of
the trial, on the basis that publication of her name
would cause her extreme
hardship and would also endanger her safety by endangering her health, relying
on ss 200(2)(a) and 200(2)(e)
Criminal Procedure Act 2011 (CPA)
respectively.
The allegations
[3] The victim was a 50 year old Thai woman who immigrated to New
Zealand with her family around 1989. She died after escaping
from the boot of a
moving car on 1 March 2016, on the Crown case, because of threats or fear of
violence from the defendants.
[4] There are two sets of defendants. The first set, comprising five
defendants, have all been charged with manslaughter. Those
defendants, alongside
the defendant and two others, also face charges of kidnapping.
[5] It is alleged that some of the defendants knew the victim through
drug- dealing. The other defendants, including the applicant,
according to the
Crown, are all friends and associates together in a group which they call
“Ghost Unit”.
[6] The Crown says that the defendants, including the defendant, went to the victim’s address on 15 February 2016 to kidnap the victim, but they were unable to locate her. At 2.30am that morning, a resident of the street observed people acting suspiciously on the street and called the Police. When Police arrived, they located two vehicles parked near the victim’s home address, and 5 – 6 men dressed in security uniforms, with the defendant. The men said they were security for a bar in Auckland and were waiting for their shift to change over.
[7] On 29 February 2016, the victim communicated with an
associate who wanted to buy drugs from her. At about 8.00pm,
the associate and
his girlfriend travelled to her home, and outside the address met one of the
defendants. The victim was not home.
They went to a bar to wait and returned at
9.30pm. The associate texted the victim to come outside, and she came and sat in
the backseat
of their car. Another defendant and another male opened the doors
of the associate’s car and dragged her out of the vehicle,
threatening
her.
[8] She was placed in a vehicle, and driven around and gagged and
bound. The following day, just before 7.00pm, she escaped
from the boot of a car
at an intersection. She fell onto the road while bound and gagged and later died
from her injuries.
[9] The defendant was arrested at her home address. When arrested, she
stated she was present outside the victim’s address
on the 15 February
2016, and said she had been invited there but was unsure for what
purpose. She believed it was probably
not for a lawful purpose.
[10] She said that on 29 February 2016, she was asked by two of the
defendants to wait in her car with others. She was aware that
some of the
defendants were going to the house they had visited on 15 February and thought
they intended to assault someone there.
They met up with her and the other
associates, and swapped vehicles.
[11] She says that she then drove into Auckland City where she stopped
and allowed one of the defendants to get out of the vehicle
briefly to complete
a transaction on Customs St. During this period, the defendant says she learned
the group had taken a woman
for questioning. She says that, after learning of
the death of the victim, all members of her group met to discuss what each party
had done.
[12] Ms Priest, appearing for the defendant, suggested the defendant was linked to the attempt on 15 February only. Mr Regan, for the Crown, confirmed that the defendant is being charged as a party to the kidnapping and it is alleged that she was involved both in the attempt on 15 February and the kidnapping on 29 February.
[13] The defendant has been bailed since her first appearance. She has
interim name suppression.
The application
[14] The defendant applies for name suppression under s 200(2)(a) CPA, on the basis that publication of her name would cause extreme hardship, and under s
200(2)(e), claiming it would also endanger the safety of her
health.
[15] Ms Priest submits that there is a real and appreciable
possibility that publishing the defendant’s name
will likely cause her
extreme hardship that is more than remote or fanciful. It extends to all areas
of her life, and specifically:
(a) Her physical health, as a result of her rheumatic fever;
(b) Her mental health given symptoms of depression, anxiety and stress; (c) The impact on her employment and the consequential financial impact
on her family, given she is within the 90-day trial probation period in her
current employment and will be unlikely to obtain new
employment once details of
her offending are released;
(d) The flow-on effects of issues with her health and her ability to
earn to her husband and children, and to her sister’s
family who jointly
own and live in the home;
(e) The potential for the defendant to lose all her equity in her house
if they cannot maintain mortgage payments, exacerbated
by the caveat placed on
the house by legal aid;
(f) Exclusion from school involvement for the defendant and the impact
on her daughter from bullying at school;
(g) Exclusion from Church for the defendant and her extended family;
(h) Loss of support and respect from the Tongan community,
exacerbated
by the defendant’s role as eldest child.
[16] The defendant relies on an affidavit of Dr Nicholaas Christiaan
(Niels) Van Pelt, a cardiologist at Middlemore Hospital.
The affidavit states
that the defendant had rheumatic fever as a 9 year old which caused damage to
her heart valve. It developed
a leak, which required repair of the valve in
2009. Dr Van Pelt says they are hopeful she will not require further surgery at
least
in the next ten year period. He says that extreme stress could potentially
lead to heart rhythm disturbances, and that this is more
common in people who
have mitral valve surgery. He says that it is reasonable, in his view, to try
and reduce the potential health
implications, if suppression was
reasonable.
[17] In relation to the exercise of the Court’s discretion, the
defendant has no previous convictions and has never been
arrested before. She is
29 years old. She is supported by her husband, who has no involvement in the
proceedings and works and owns
a home.
[18] Counsel submits that she is charged as a minor player in the
proceedings, and is the only female defendant. She maintains
that the public
interest in knowing about the offending has been met by the extensive media
coverage, and will not be added to by
naming the defendant.
[19] Counsel emphasises that the defendant has pleaded not guilty, and is
entitled to the presumption of innocence. Counsel submits
that the stigma of
being involved in such a high profile trial would likely remain with her the
rest of her life.
[20] Affidavits from the defendant and her partner are offered in support
of the suppression application.
[21] The Crown opposes the application on the basis that name suppression is neither necessary nor appropriate. In Mr Regan’s submission, the medical evidence does not reach the standard of establishing there is an appreciable risk to the defendant’s health by publication. He points out that it does not appear she has been
materially affected by being charged and any adverse consequences are simply
speculative rather than probable.
Law
[22] Name suppression is governed by s 200 of the CPA which
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
(b) cast 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.
...
[23] Decisions to grant, or not grant, name suppression, involve
a two-stage process of evaluation. The two stage analysis
requires the Judge to
assess the jurisdiction to proceed, in terms of whether one of the threshold
grounds has been made out under
s 200(2), and then to exercise his or her
discretion as to whether suppression should be granted.1
[24] The first question, of whether the threshold is made out, is a
question of
whether the result is “likely to occur”. In Beacon Media Group
v Waititi, in the
similarly worded s 202, Gilbert J held that the phrase “would be
likely to” meant
more than may, so that a mere
possibility would not be sufficient.2 There needed to be “a
real risk that cannot be readily discounted”. Other Judges have described
the necessary test as,
consistently with the case law pre-CPA, requiring an
“appreciable risk”.3 There has been held to be no real
distinction between these approaches.4
Threshold
[25] The defendant’s case is put on the basis of extreme hardship and
the endangerment to her personal safety, via her health
problems. At the time of
the application, the defendant was within the 90 day probation period in her
employment and the risk of
being dismissed, with the attendant financial
consequences, was emphasised in the application. The 90 day trial period has
now
passed and the defendant remains in employment. That being the case, Ms
Priest approaches the application on the basis that the
primary basis for
suppression is the defendant’s health. For that reason, I will consider
the health question first followed
by extreme hardship.
Endangerment to personal safety
[26] The defendant relies on her heart problems and the affidavit from
her doctor which says:
I am hopeful however that she will not require further surgery on her heart
valve at least in the next 10 year period.
At the time of the last review she was overweight, but otherwise
she appeared relatively well with good blood pressure
and no other significant
findings of any note.
We have encourage H to remain active and to control her weight.
Extreme stress could affect H in a number of ways. If this resulted in a
significant increase in blood pressure or if because of
stress she put on a
significant amount of weight, both of these factors could place more stress on
the mitral valve repair. A period
of extreme stress could therefore lead to a
worsening of the leak of the mitral valve and potentially lead to the need for
earlier
cardiac surgery.
2 Beacon Media Group Limited v Waititi [2014] NZHC 281.
3 JM v R [2015] NZHC 426.
4 Toon v NZME [2015] NZHC 1490 at [46]; Hughes v R [2015] NZHC 1501 at [18].
Extreme stress as in this case could potentially lead also to heart rhythm
disturbances. This is more common in people, who have
had mitral valve surgery
and this would be one of the concerns that I have for H.
To this end it is reasonable in my view to try and reduce the potential
health implications given her previous cardiac surgery by
keeping her name
suppressed if this was reasonable.
[27] The question, at the threshold stage, is whether there is a likely, or “real and appreciable” risk that publication of the defendant’s name would endanger her safety. A person, including a defendant,5 has their safety endangered if “publication would
cause physical or psychological harm”.6 The evidence
does not have to be
unequivocal as to the risk to the applicant,7 but the risk must be
likely or a real and appreciable possibility.8
[28] The Court of Appeal has recently summarised the principles around
courts assessing the risk of harm to a person in a name
suppression
context.9 Although these were in relation to assessing suicide risk,
many of the principles are relevant to this case, including:
(a) It is usually the proceeding not the publication of the
defendant’s
name which causes the relevant stress.10
(b) The defendant’s condition may stop full participation in a trial,
which
also gives rise to fair trial concerns.11
(c) The opinions of medical professionals deserve respect but the Court need not be deferent to them. Medical opinions may assume that any
risk is too much
risk.12
5 BL v R [2013] NZHC 2878 at [23].
6 R v Shailer [2015] NZHC 2607 at [18], citing K v Inland Revenue Department [2013] NZHC
2426.
7 Taylor v R [2015] NZCA 464 at [6].
8 D (CA443/2015) v Police [2015] NZCA 541, (2015) 27 CRNZ 614 at [30].
9 D (CA443/2015) v Police, above n 8, at [30].
10 At [30](b) and (c).
11 At [30](d).
12 At [30](f).
(d) The other available means of managing the relevant stresses – such
as suppressing just sensitive personal information, and
relevant support
structures – should be identified and the effect of those methods
considered. 13
(e) Even if a relevant risk exists, the Court must still decide whether an
order ought to be made in the exercise of discretion.14
[29] In O v R, the Court of Appeal granted name suppression to applicants charged with sexual violation and indecent assault where one offender had Type 1 diabetes and depression that, he said, would be exacerbated by the publication of his name.15
The Court said:16
While a Judge is not obliged to accept the opinion of medical professionals,
there was undisputed evidence of O's medical condition
and the risks to his
safety as well as to his ability to participate effectively in the trial if
suppression were refused. In the
absence of any opposing evidence, a Judge would
ordinarily be cautious about making his or her own assessment of the impacts of
name
publicity on an accused person's medical state.
[30] However, that differs from the current case. The applicant in O v
R had medical reports directly evaluating the impact of stress from trial
and how it would negatively affect his condition. This was
specifically linked
to the attendant publicity surrounding the trial. The medical evidence was very
clear.
[31] Participating in a trial will be, by its nature, stressful. That is
particularly so in a very serious trial such as this,
which has had and will
have significant publicity. It is difficult to say that the publication of the
defendant’s name will
significantly add to that existing stress. However,
her partner’s affidavit suggests that the only way she is managing her
stress at the moment is to have her name suppressed and he describes
the significant effect that the current proceedings
are having on
her.
[32] The test requires a real and appreciable risk. In this case, the
evidence as to
endangerment of the defendant’s health is somewhat equivocal given
the generality
13 At [30](g).
14 At [30](h).
of the affidavit. In summary, the defendant has a damaged heart valve which
was repaired in 2009 and may require further surgery in
the future. Extreme
stress could increase her blood pressure or cause her to put on more weight
which could place more stress on
the valve repair and potentially lead to the
need for surgery earlier. The risk identified by the doctor is the potential for
earlier
cardiac surgery.
[33] In my assessment, the medical evidence in this case is not
particularly compelling and can be distinguished from other cases
where the
threshold has been met.17
[34] There are other means of managing the stress including ensuring
there is no further weight gain. As the doctor notes, the
defendant should
remain active and control her weight. The defendant herself has identified it
would be of benefit to engage the
services of a counsellor. The evidence does
not necessarily demonstrate that publication would be the central factor, or
even a
necessary factor, to any aggravation of the defendant’s health
issues.
[35] When all the factors are considered, I am not satisfied that the
evidence establishes a real and appreciable risk of endangerment
to the
defendant’s safety. It is, however, a fine line and for that reason, I
will continue with an assessment of the application.
Extreme hardship
[36] In Ms Priest’s submission, the defendant’s health issues
contribute to the defendant’s case that publication
of her name would
result in extreme hardship to her. This is on the basis that, if the defendant
needs heart surgery, she would
lose her job, her partner would likely lose his
job as a result of having to care for her, and that might result in the loss of
the
family home which she shares with her sister’s family.
[37] She also relies on the effect on the defendant’s ability to
engage with her
community, Church, her child’s school, and the effect on her
child.
17 See, for example Q v New Zealand Customs [2014] NZHC 2398 at [53], where the evidence was that publication would expose the applicant, who was the wife of an offender, to a risk of a serious cardiac arrhythmia which could have proved fatal. The doctor advised the Court that any decision to refuse suppression should take into account the risk of serious cardiac arrhythmia.
[38] The threshold of extreme hardship is very high. In R v N
Collins J stated:18
The term “extreme hardship” is not defined in that Act,
but should be interpreted consistently with the
high threshold that was
necessary to displace the presumption of publication at common law. This
threshold was often described
as a “compelling reason” or a
“very special circumstance”.
[39] In Robertson v Police, the Court of Appeal
said:19
... 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”. 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.
[49] An assessment of whether the contended hardship is
“extreme” cannot take place in a vacuum. 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
ordinarily associated consequences.
[40] The defendant relies on B (CA860/10) v R, a case which
predates the CPA, in which the offender was convicted of charges relating to
objectionable images of children found
on the applicant’s computer.20
The Court detailed the various family members who gave evidence that they
felt the publication of the offender’s name would
lead to difficulties in
continuing in their jobs, which relied on integrity and honesty, if connected to
the offending. The Court
of Appeal said:21
... [the Judge] appears to have proceeded on the basis that no amount of
injury to family members would be sufficient to displace
the presumption in
favour of opening reporting. We infer that he also took the view that the orders
he made in relation to individual
family members would be effective to shield
them from injury or, at least, to alleviate the consequences to them. In our
view, the
Judge erred in both respects.
Publication of Mr B's name would plainly cause incalculable hurt to
individual family members and the extended family as a group.
Apart from the
acute embarrassment it would cause on a personal level, it would undoubtedly
compromise the ability of Mrs B and her
two daughters to do their jobs. It will
inevitably cause distress to the children involved and has the potential to
seriously disrupt
their development.
18 R v N [2012] NZHC 2042 at [22].
19 Robertson v Police, above n 1, at [48] and [49].
[41] As the Court of Appeal in that case noted, it cannot be the case
that no amount of injury to family members could be sufficient
to displace the
presumption of open reporting, or under the modern CPA context, to
constitute “extreme hardship”.
However, s 200(2)(a) of the CPA
specifically requires that the Court make an order for suppression only if
publication would likely
cause extreme hardship to a person connected with the
defendant. That is a high standard and requires something more than general
financial harm.
[42] I accept Mr Regan’s submission in this regard. The
application is speculative, relying, as it does, on
the stress leading to the
need for surgery, the loss of her partner’s job and therefore, the loss of
the home. There is no
evidence, for example, from the defendant’s sister
as to her ability to assist with care and finances. I am not satisfied that
the
evidence meets the test of extreme hardship.
[43] The defendant then relies on the effect on her daughter, who is in
primary school. In her affidavit, she discusses how her
child has been the
subject of bullying for unrelated reasons and that she is afraid her daughter
will be teased and ostracised if
her name is published.
[44] In R v Bond, a decision also made in the pre-trial phase,
Mander J said:22
Distress and embarrassment to innocent relatives of the defendant are
regrettable but of themselves do not constitute extreme hardship,
being the
ordinary and predictable consequences of an open system of justice.
[45] The fact that news of this crime might affect the defendant’s young daughter at school is certainly regrettable, but not evidence of any “extreme hardship”. The same analysis applies to the defendant’s concerns that she will be cut out of engaging with her community if news of her charge is published, including volunteering at her daughter’s school and exclusion from her church. These are also the natural consequences stemming from the open system of justice. As Mander J also noted in R v Bond, the threshold for extreme hardship is no less demanding when dealing
with pre-trial suppression.23
22 R v Bond [2015] NZHC 1916.
[46] A multiplicity of factors affecting an individual can be considered
in the round to determine whether there would be a risk
of extreme hardship to
any individual.24 However, even looking at these factors altogether,
in my view there is insufficient basis to make out a case for extreme hardship,
bearing in mind the high standard. Although publication of the defendant’s
name is likely to create difficulties for her and
her family, in my assessment
it is not “extreme hardship”.
Discretion
[47] If the threshold had been met, I would then be required to balance
the risk against the principles of open justice. The
ultimate question at the
discretion stage of the analysis has been described as “whether open
justice should yield” by
the Court of Appeal, who said that the balance
must “clearly favour” suppression.25 In H v R,
Duffy J said:26
The discretion to prohibit publication should be exercised sparingly; only as
an exception to the general rule that the community
is entitled to know the
identity of people coming before the courts; and in cases involving serious
offences with the utmost caution.
[48] In D (CA443/2015), the Court of Appeal stated that in the
case of a (relatively minor) assault on a police officer the open justice
principle will
“normally” require that the defendant’s name be
published.27 In that case, the High Court Judge fund that there
was a real risk of the defendant committing suicide as a result of publication,
but that did not outweigh the public interest and principle of open
justice.
[49] The offending in this case is highly serious. The kidnapping was serious with fatal consequences. The case has attracted a significant amount of attention and there is a public interest in knowing the identity of those connected with the case. It is
with the utmost caution that publication should be prohibited in such
cases.
24 Toon v NZME [2015] NZHC 1490 at [68]
25 D (CA443/2015) v Police, above n 8, at [12], citing Lewis v Wilson & Horton Ltd [2000] 3
NZLR 546 (CA).
26 H v R [2015] NZHC 1501 at [21], citing with approval Bruce Robertson (ed) Adams on Criminal
Law (online looseleaf ed, Westlaw) at [CPA200.01].
27 D (CA443/2015) v Police [2015] NZCA 541.
[50] I have weighed up all the factors relied on by the defendant
including the presumption of innocence. However, in my assessment,
even had
the first stage threshold been reached, I would have concluded that the
principles of open justice outweigh the risks.
Result
[51] For the reasons given, the application is dismissed. Pursuant to s
286 of the
Criminal Procedure Act, I continue the interim suppression given Ms
Priest’s
indication of the likelihood of an
appeal.
Thomas J
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