Dp (Ca418/2015) v R

JurisdictionNew Zealand
JudgeHarrison,Wild,Miller JJ
Judgment Date08 October 2015
Neutral Citation[2015] NZCA 476
Docket NumberCA418/2015
CourtCourt of Appeal
Date08 October 2015
BETWEEN
Dp (Ca418/2015)
Appellant
and
The Queen
Respondent

[2015] NZCA 476

Court:

Harrison, Wild and Miller JJ

CA418/2015

IN THE COURT OF APPEAL OF NEW ZEALAND

@@

Counsel:

M N Pecotic and J-A Kincade for Appellant

A Markham for Respondent

G T Goatley for media interests

  • 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.

JUDGMENT OF THE COURT
REASONS OF THE COURT

(Given by Harrison J)

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 trial 2 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

    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

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 factors 5 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 expression 6 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

    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

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 R 18 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...

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