Stuff Ltd v R
| Jurisdiction | New Zealand |
| Judge | Katz J |
| Judgment Date | 24 March 2021 |
| Neutral Citation | [2021] NZCA 86 |
| Court | Court of Appeal |
| Docket Number | CA699/2020 |
| Date | 24 March 2021 |
[2021] NZCA 86
Courtney, Wylie and Katz JJ
CA699/2020
IN THE COURT OF APPEAL OF NEW ZEALAND
I TE KŌTI PĪRA O AOTEAROA
Criminal Procedure — appeal against a permanent name suppression order — the appellant was a national media organisation — the case concerned a father who had fatally injured his child — suppression was given to protect the victims who had name suppression — reasons for the suppression were given orally and then recorded in a subsequent Court Minute — requirement to give reasons — threshold requirements for name suppression — consideration of the term “likely to cause undue hardship” — Criminal Procedure Act 2011
RKP Stewart for Appellant
Z R Hamill for First Respondent
E A Hall and R E O'Hagan for Second Respondent
The appeal is dismissed.
(Given by Katz J)
On 13 November 2018, L was caring for his infant daughter in a sleepout while his partner rested in the main house. While he was alone with his daughter, he fatally injured her. At the time, L was facing a number of family violence charges in respect of assaults on his partner and another child.
Following a sentencing indication, L pleaded guilty to all charges. He was convicted and sentenced to four years and five months' imprisonment.
Prior to conviction, L was granted interim name suppression in respect of all charges, to protect his fair trial rights. At sentencing, Cooke J made a permanent name suppression order. Stuff Ltd appeals the decision to grant L permanent name suppression but does not challenge the name suppression orders made in favour of the victims. 1 Both the Crown and L oppose the appeal.
Name suppression was granted in the High Court to ensure L's fair trial rights in relation to separate District Court charges. 2 Suppression continued in the High Court prior to sentencing by agreement between the parties. 3 This was to enable issues in relation to the victim and family to be addressed, rather than to preserve fair trial rights, given that L had already entered guilty pleas to the charges. 4
On 3 November 2020, Cooke J issued a minute in response to media applications, including from Stuff, seeking to film, take photos and record sound at the sentencing. The Judge declined the applications, explaining his reasoning as follows: 5
The primary reason for this is a concern for the mother of the three-month-old victim. The mother is also a victim, and she has suppression. She has
expressed concern about the publicity surrounding this sentencing, and the adverse impacts of it on her situation. In my view those particular circumstances mean that there should be no film, sound or photographic coverage of the sentencing. The need for open justice is still satisfied by the remaining means of reporting.
The reasons for declining the applications were suppressed. 6
At sentencing on 5 November 2020, Cooke J made an order permanently suppressing L's name. No written reasons were given at the time.
On 3 December 2020, Stuff filed an appeal against the permanent suppression order. Cooke J then issued a minute, on 18 December 2020, setting out the relevant background and stating that his reason for suppressing L's name was to protect the identities of the victims — namely, L's deceased child, former partner and L's surviving child. 7
Mr Stewart, counsel for Stuff, submitted that the Judge had erred in failing to give reasons for making on order permanently suppressing L's name.
Section 207 of the Criminal Procedure Act 2011 requires the court to give reasons for making, varying or revoking a suppression order, absent exceptional circumstances. In Lewis v Wilson & Horton Ltd, Elias CJ explained that it is important for Judges to provide reasons for their decisions: 8
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(a) to promote openness in the administration of justice; 9
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(b) to provide a means for the lawfulness of what is done to be assessed by a court exercising supervisory jurisdiction; 10 and
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(c) to provide a discipline for the Judge, which is the best protection against wrong or arbitrary decisions and inconsistent delivery of justice. 11
Here, Cooke J did not give written reasons for his decision to suppress L's name at the time the suppression order was made. In his subsequent minute of 18 December 2020, however, the Judge recounts (when referring to the sentencing hearing) that: 12
[14] I then indicated that I had decided to suppress the identity of the victims, being [L's partner], the deceased child and their other child. I further advised that I would also suppress the identity of the defendant and that the reason for suppressing his identity was to protect the identity of the victims, and to prevent their identity being disclosed.
[15] I did not record those suppression orders in writing other than recording that such orders had been made under ss 200 and 202 on the banner of the sentencing notes. But the matters described … above took place in open court, including my decisions on suppression and the reasons for them.
The Judge therefore gave oral reasons for the suppression order at the time it was made. These were later confirmed in writing, after the appeal had been filed, in the Judge's minute of 18 December 2020. There has therefore been no breach of the requirement to give reasons. Nevertheless, the process followed fell short of best practice. Ideally, the Judge's name suppression decision (including the reasons for his decision) should have been transcribed and provided to both counsel and the media in writing shortly after the sentencing hearing. No prejudice has arisen, however, from the failure to do so, particularly given that the Judge later provided a detailed minute setting out the background to the suppression issue.
The substantive issue in this appeal is whether the Judge erred in permanently suppressing L's name.
Determining whether the identity of a defendant should be suppressed requires a two-stage approach: 13
[40] At the first stage, the judge must consider whether he or she is satisfied that any of the threshold grounds listed in [s] 200(2) has been established. That is to say, whether publication would be likely to lead to one of the outcomes listed in subs (2). The listed outcomes are prerequisites to a court having jurisdiction to suppress the name of a defendant. It is “only if” one of the threshold grounds has been established that the judge is able to go on to the second stage.
[41] At the second stage, the judge weighs the competing interests of the applicant and the public, taking into account such matters as whether the applicant has been convicted, the seriousness of the offending, the views of the victims and the public interest in knowing the character of the offender.
(Footnote omitted.)
The court is required to take into account any views of a victim of the offending when determining whether to permanently suppress a defendant's name. 14
The relevant s 200(2) threshold requirements in this case required that the Judge be satisfied that publication of L's name would be likely to either:
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(a) cause undue hardship to any victim of the offence; 15 or
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(b) lead to the identification of another person whose name is suppressed by order or by law. 16
“[L]ikely” in this context means “a real and appreciable possibility”. 17 Undue hardship requires something more than the hardship that would normally be expected
Stuff submitted that neither threshold requirement set...
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