HAWEA-EDWARDS v R [2021] NZCA 52

HAWEA-EDWARDS v R [2021] NZCA 52 [9 March 2021]NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION ORIDENTIFYING PARTICULARS OF APPELLANT PROHIBITED BY S 200(1)OF THE CRIMINAL PROCEDURE ACT 2011 UNTIL 30 APRIL 2021. SEE[2020] NZHC 3093.IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA734/2020[2021] NZCA 52BETWEEN ANTONIO CONAN HAWEA-EDWARDSAppellantAND THE QUEENRespondentHearing: 18 February 2021Court: Courtney, Wylie and Katz JJCounsel: H G De Groot for AppellantJ A Mara and BCL Charmley for RespondentJudgment: 9 March 2021 at 3.30 pmJUDGMENT OF THE COURTA The application for leave to bring a second appeal is granted.B The applications for leave to file further evidence are granted.C The appeal is dismissed. The existing suppression orders are to expire on30 April 2021. Thereafter the appellant's name, address, occupation andidentifying particulars can be published.____________________________________________________________________REASONS OF THE COURT(Given by Wylie J)Introduction[1] The appellant, Antonio Hawea-Edwards, seeks leave to bring a second appealagainst a decision made by Judge Sharp in the District Court at Auckland refusing togrant him permanent name suppression.1 His first appeal was allowed in part byMoore J in the High Court at Auckland.2 The Judge did not grant Mr Hawea-Edwardspermanent name suppression but he did direct that the then extant suppression ordershould continue in force until 30 April 2021.3Factual background[2] Mr Hawea-Edwards' offending occurred in the Auckland Central BusinessDistrict on the afternoon of Saturday 21 September 2019. Over a period of just undertwo hours, Mr Hawea-Edwards approached and sexually assaulted 10 separatefemales. He assaulted the victims both in shops and on streets. While he was alonewith one victim in the shop in which she worked, he attempted to forcibly enter the"employees only" area. The victims were not physically injured apart from one whoexperienced a sore back and leg; all however suffered distress and emotional harm.[3] When he was approached by the police, Mr Hawea-Edwards attempted to flee.When he was apprehended, he said he did not know his name or where he lived.He asked police: "[t]his isn't real, this is just a dream, aye?". He was not then in a fitstate to speak further with the police. The following day, while he was still in custody,he stated to the police: "How am I supposed to know what happened yesterday,I clearly wasn't right". When he was asked to provide the clothes he was wearing forevidential purposes, he asked for privacy so that he could get changed. Police officersprovided him with clothes to change into and left the cell. Mr Hawea-Edwards thenstarted to rip his T-shirt into pieces before the police realised what he was doing andseized his clothing.[4] Mr Hawea-Edwards was charged with six charges of indecent assault, two ofassault with intent to commit sexual violation, one of attempted sexual violation and1 R v Hawea-Edwards [2020] NZDC 12851 [Name suppression judgment].2 Hawea-Edwards v R [2020] NZHC 3093 [First appeal judgment].3 At [54]–[55].one of burglary. He obtained interim name suppression from Judge Sygrove in theDistrict Court at Auckland on 30 September 2019.4 This interim suppression wasextended at subsequent callovers while various reports under the Criminal Procedure(Mentally Impaired Persons) Act 2003 were obtained. One report suggested thatMr Hawea-Edwards was not then fit to stand trial, but that his condition wouldimprove with treatment and once he could no longer access illicit drugs; other reportssuggested that he was fit to stand trial. Later reports suggested that Mr Hawea-Edwards might have an insanity defence available.[5] In the event, Mr Hawea-Edwards' fitness to stand trial was not considered bya Court. Nor was any insanity defence pursued. Rather, Mr Hawea-Edwards soughta sentence indication. It was given on 24 April 2020.5 He then entered guilty pleas tothe various charges and sought permanent name suppression. On 1 July 2020, the daybefore he was due to be sentenced in the District Court, Judge Sharp declined tosuppress his name, but gave him time to consider whether he wished to challenge thedecision.6 On the following day, Mr Hawea-Edwards was sentenced to three yearsand six months' imprisonment.7 Mr Hawea-Edwards then appealed to the High Courtagainst the refusal to grant him name suppression. The appeal was heard by Moore Jand, on 23 November 2020; it was allowed but only to defer publication until30 April 2021.District Court decision[6] Judge Sharp noted that Mr Hawea-Edwards had initially obtained interim namesuppression because of reports the Court had received from Dr Shanmukh Lokesh andDr Jeremy Whiting, both consultant psychiatrists. These reports discussedMr Hawea-Edwards' mental health, his dependence on methamphetamine and abipolar affective disorder he suffers from. A risk of suicide was signalled in bothreports.4 New Zealand Police Department of Corrections v Hawea-Edwards DC Auckland CRI-2019-004-8836, 30 September 2019 [Interim name suppression judgment].5 R v Hawea-Edwards DC Auckland CRI-2019-004-8836, 24 April 2020 [Sentence indication].6 Name suppression judgment, above n 1, at [9]–[10].7 R v Hawea-Edwards [2020] NZDC 12599 [Sentencing judgment].[7] The Judge then turned to the application for permanent name suppression.He recorded that the application was opposed by the Crown, as well as byrepresentatives of TVNZ and other media organisations.[8] The Judge considered whether the threshold of extreme hardship set out ins 200(2)(a) of the Criminal Procedure Act 2011 (the Act) was met. He acknowledgedthat Mr Hawea-Edwards' mental condition was of concern but commented that hisbehaviour had presented dangers to the public. The Judge considered that the risk ofself-harm could be contained in custody, and that opportunities for rehabilitation couldbe part of any post-release conditions imposed by the Parole Board.[9] The Judge did not consider that there was any prospect of extreme hardship toMr Hawea-Edwards' family; their circumstances did not meet the required threshold.[10] The Judge accepted that Mr Hawea-Edwards' circumstances were a matter ofconcern but he considered that the time he would spend in custody would be sufficientfor his rehabilitation to be attended to. He did not consider that the medicalinformation before him required him to permanently suppress Mr Hawea-Edwards'name and he declined to make an order to that effect.8High Court decision[11] Moore J summarised the background and then outlined the two-stage test forname suppression under s 200 of the Act.9 He allowed further evidence to be adducedon the appeal — namely a supplementary report prepared by Dr Lokesh and anaffidavit sworn by Richard Symonds, the Manager of Custodial Practice at theDepartment of Corrections.[12] The Judge considered Dr Lokesh's supplementary report and earlier reportsand accepted that Mr Hawea-Edwards suffers from a form of bipolar affective disorderand attention deficit hyperactivity disorder. He noted that Mr Hawea-Edwards'condition has been managed by a mood-stabilising medication. He also noted thatMr Hawea-Edwards meets the criteria for substance abuse disorder, cannabis abuse8 Name suppression judgment, above n 1, at [9]–[10].9 First appeal judgment, above n 2, at [14], citing Robertson v Police [2015] NZCA 7 at [39]–[41].and methamphetamine abuse disorder. He recorded Dr Lokesh's view that the indexoffending represented a marked deviation from Mr Hawea-Edwards' past offending,and his observation that Mr Hawea-Edwards has struggled to come to grips with it.The Judge noted that Mr Hawea-Edwards had told Dr Lokesh that he is struggling tocope and that he will not hesitate to commit suicide if his name is published.He recorded that, in Dr Lokesh's view, publication risks "a relapse" ofMr Hawea-Edwards' bipolar affective disorder and that it could compromise ongoingtherapeutic interventions; he noted that Dr Lokesh recommended that namesuppression should continue given Mr Hawea-Edwards' fragile mental state.[13] The Judge went on to record that Mr Hawea-Edwards was being managed bythe forensic prison team, and that he will be considered as high priority for relevantpsychological interventions, including an adult sex offender treatment programme,before he is released into the community. He referred to evidence from Mr Symondsabout the policies adopted by the Department of Corrections for assessing, reviewingand managing prisoners at risk of self-harm. He noted that if staff consider a prisonerpresents a risk of self-harm, the prisoner is required to be placed on 15 minuteobservations and transferred to an intervention support unit. That unit providesspecifically designed and equipped "at-risk cell[s]" and resident prisoners havebedding and clothing designed to prevent suicide. All at-risk prisoners are closelymonitored by Corrections staff, and the management plan for such prisoners specifiesthe frequency of observation required and requires that any behaviour patternsexhibited be recorded.[14] The Judge then turned to consider whether publication of Mr Hawea-Edwards'name would be likely to endanger his safety under s 200(2)(e). He referred to thedecision of this Court in D(CA443/2015) v Police,10 which discusses suppression ofthe names of prisoners who present as suicidal. The Judge accepted that, if there wasa real risk of suicide on Mr Hawea-Edwards' part, this would meet the statutorythreshold. He accepted Dr Lokesh's opinion in this regard and was satisfied thatpublishing Mr Hawea-Edwards' name would increase his potential for self-harmand/or suicide, both in a custodial and in a community setting. The Judge also noted10 D(CA443/2015) v Police [2015] NZCA 541, (2015) 27 CRNZ 614.comments by Dr Lokesh that Mr Hawea-Edwards has developed reasonable insightinto his mental illness, his medication and care, its relationship with substance abuse,his offending and his past manic relapses.[15] The Judge considered that the risk of suicide would present in a "relativelyuncontrolled non-custodial environment" but observed that Mr Hawea-Edwardswould not be eligible to be considered for release until late 2023. The Judge wassatisfied that the risk of suicide could be adequately mitigated whileMr Hawea-Edwards is in custody. He considered that, whilst Mr Hawea-Edwards isin custody, there are adequate policies and practicable mechanisms available to ensurethat he is assessed, that appropriate management plans will be put in place and thatthose plans will be implemented. He considered that these measures will sufficientlyreduce the risk of suicide while Mr Hawea-Edwards is in custody.[16] The Judge further found that publication is not likely to endangerMr Hawea-Edwards' safety once he is released back into the community because anymedia interest will have dissipated by the time Mr Hawea-Edwards is released, he willhave completed courses which focused on his drug and alcohol abuse and on hisintegration back into the community, he is showing insight into his mental illness, andhe will have benefited from the therapeutic effects of the medication he is prescribed.[17] For these reasons, the Judge was satisfied that publication, albeit delayed togive Mr Hawea-Edwards the opportunity to prepare himself, would not be likely toendanger Mr Hawea-Edwards' safety.[18] The Judge went on to consider whether there is likely to be extreme hardshipto Mr Hawea-Edwards under s 200(2)(a). He was not satisfied that the extremehardship threshold was met. The Judge accepted Mr Symonds' evidence that prisonauthorities will monitor and review Mr Hawea-Edwards' mental health and theongoing risk of self-harm he poses. He was satisfied that delayed publication wouldnot only permit the prison's risk management team to monitor Mr Hawea-Edwards'condition, but would also provide Mr Hawea-Edwards with a lead-in period tomentally prepare himself for publication. It would also mean that prison authoritiescan monitor him both before and after publication. The Judge noted that delayedpublication would operate in parallel with the medicinal management ofMr Hawea-Edwards' bipolar affective disorder, and noted that his compliance isimproving, as is his insight.[19] The Judge considered that these factors, as well as abstinence from illicitsubstances, will improve Mr Hawea-Edwards' prognosis, and operate to reduce,although not entirely eliminate, the risk of self-harm. The Judge accepted that there isa real possibility that Mr Hawea-Edwards will suffer adverse mental health impacts ifhis name is not suppressed, and that these impacts might be severe for a period.He held however that there was no evidence before him to suggest thatMr Hawea-Edwards is unlikely to recover from such effects, and he considered thatthey are likely to be transitory.[20] The Judge was not satisfied that the thresholds under s 200(2) were met and asa result he did not go on to consider the exercise of the discretion. He allowed theappeal but only to the extent of directing that suppression continue until 30 April2021.11Submissions[21] Mr de Groot, appearing for Mr Hawea-Edwards, submitted that there is a riskthat a miscarriage of justice may have occurred. He argued that:(a) the Judge, when considering the s 200(2)(e) risk of endangerment, erredwhen he considered whether the risks presented could be adequatelymitigated. He submitted that the correct test is whether, in all thecircumstances, the risks are real and appreciable or more than remoteor fanciful. He argued that the evidence disclosed a real andappreciable risk of self-harm or suicide by Mr Hawea-Edwards, both incustody and in the community; and(b) when the Judge considered the risk of extreme hardship unders 200(2)(a), he wrongly interposed a non-statutory "transience"11 First appeal judgment, above n 2, at [54]–[55].limitation. He submitted that the subsection does not distinguishbetween transitory and permanent hardship, and that ss 208 and 210provide the mechanism to address the resolution of qualifying risks.He submitted that the evidence discloses a risk of extreme hardship andthat there is nothing to suggest that the impacts will be transitory in anyevent.[22] Mr de Groot submitted that both ss 200(2)(a) and 200(2)(e) are engaged andthat the relevant thresholds are met to permit the exercise of the discretion. He arguedthat that discretion should be exercised in Mr Hawea-Edwards' favour to grant himpermanent name suppression.[23] Mr Mara, for the Crown, submitted:(a) the Judge correctly assessed the relevant risks, and in particular that hedid not err when he found that the risk of endangerment is sufficientlymitigated. He submitted that the matters raised for Mr Hawea-Edwardsare no more than semantics, and that it is the overall risk that falls to beassessed, taking into account relevant situational factors that mightmitigate that risk; and(b) in relation to the argument advanced in regard to s 200(2)(a), that whenthe Judge observed that the adverse effects of publication were likelyto be transitory, the Judge was doing no more than noting the absenceof evidence to the contrary, and that he did not draw a distinctionbetween momentary and prolonged extreme hardship.[24] Mr Mara argued that even if one or the other threshold requirement is met,there are a number of factors which suggest that a discretion should not be exercisedin favour of suppressing Mr Hawea-Edwards' name. He referred to the nature of theoffending, the number of victims involved and, most importantly, the presumption ofopen justice.Application for leave to bring a second appeal[25] Applications for leave to bring second appeals against name suppressiondecisions are governed by s 289 of the Act. That section provides that the secondappeals Court must not grant leave unless it is satisfied that either:(a) the appeal involves a matter of general or public importance; or(b) a miscarriage of justice may have occurred, or may occur unless theappeal is heard.[26] The test is a high one12 and this Court has observed that the language ofmiscarriage is unlikely to be relevant in the context of a leave decision in a namesuppression proceeding.13[27] Mr Hawea-Edwards relied primarily on s 289(2)(b). The Crown submitted thatneither threshold is met.[28] We consider that leave should be granted. The issues Mr Hawea-Edwardsseeks to raise are potentially of wide import. If his arguments are right, it could affectthe approach taken to name suppression applications. Further, both parties soughtleave to adduce further evidence and each consented to the other's application.That further evidence was not before the High Court. If that further evidence assistsMr Hawea-Edwards and if his arguments relying on it are correct, it may be arguablethat he has suffered a miscarriage of justice.[29] Accordingly, we grant Mr Hawea-Edwards leave to bring a second appeal.Applications to adduce further evidence[30] Mr Hawea-Edwards sought to put before us a further report prepared byDr Lokesh dated 22 January 2021. The purpose of the report was to provide an updateon Mr Hawea-Edwards' mental state following the release of the High Court judgment.12 McAllister v R [2014] NZCA 175, [2014] 2 NZLR 764.13 At [38]; and Robertson v Police, above n 9, at [55]–[57].However, it went rather further than this. Dr Lokesh sought to address disagreementshe has with the evidence given by Mr Symonds, and also to respond to mattersrecorded by the Judge in the High Court judgment. This was not his province and,with respect to Dr Lokesh, it smacks of advocacy rather than independent andimpartial expert analysis.[31] The Crown sought to adduce a further affidavit from Dawn Taylor who is theActing Chief Custodial Officer and Acting Manager of Custodial Operations of AraPoutama, Department of Corrections. She sought to provide further evidence abouthow the Department of Corrections manages prisoners at risk of self-harm whilst theyare in prison. This evidence sought to respond in part to Dr Lokesh's further evidencebut it is not fresh.[32] Each party consented to the other's application to adduce further evidence andfor that reason we have accepted it. The applications for leave to adduce furtherevidence are granted.[33] On 28 February 2021, 10 days after the hearing, we received a furthermemorandum from Mr de Groot. We have not taken this memorandum into account.The material referred to in it is not properly before us as evidence and it is equivocalin any event.Analysis[34] Relevantly, s 200 of the Act provides as follows: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 convictedor acquitted of, an offence.(2) The court may make an order under subsection (1) only if the court issatisfied that publication would be likely to—(a) cause extreme hardship to the person charged with, orconvicted of, or acquitted of the offence, or any personconnected with that person; or(e) endanger the safety of any person; [35] The starting point on any name suppression application is the presumption ofopen justice.14 It is fundamental to the common law system of civil and criminaljustice. It is a principle of constitutional importance. It means not only that judicialproceedings should be held in open Court, accessible by the public, but also that mediarepresentatives should be free to provide fair and accurate reports of what happens inCourts.15[36] The determination of a name suppression application requires a two-stageanalysis. First, the Court must be satisfied that publication is likely to lead to one ofthe threshold grounds listed in s 200(2). If that threshold is met, the Court must thengo on to the discretionary assessment required by s 200(1).16[37] The words "would be likely to" used in the introduction to s 200(2) require acommon-sense test, which can be readily understood and applied.17 It suffices if thereis an "appreciable possibility" that publication could lead to one of the identifiedconsequences.18 Adjectives such as "real", "substantial" and "serious" have also beenused.19 The risk must not be fanciful; it must be a risk which cannot be discounted.This Court has described the test as requiring "a real and appreciable possibility" thatcannot be ignored or described as remote or fanciful.20[38] Mr Hawea-Edwards relies primarily on s 200(2)(e) — that publication wouldbe likely to endanger his safety. He also relies on s 200(2)(a) — that publication wouldbe likely to cause him extreme hardship.14 R v Liddell [1995] 1 NZLR 538 (CA) at 546.15 Erceg v Erceg [2016] NZSC 135, [2017] 1 NZLR 310 at [2].16 Robertson v Police, above n 9, at [39]–[41].17 Huang v Serious Fraud Office [2017] NZCA 187 at [9].18 D(CA443/2015) v Police, above n 10, at [30](a).19 R v W [1998] 1 NZLR 35 (CA) at 7.20 Huang v Serious Fraud Office, above n 17, at [10].[39] We were concerned that Mr Hawea-Edwards might be seeking to manipulateor influence the Court process. We note that many of the earlier reports prepared bypsychiatrists, albeit for a different purpose, did not suggest that Mr Hawea-Edwardssuffered from any suicidal ideation.21 It is also clear from some of the reports thatMr Hawea-Edwards has endeavoured in the past to manipulate medical professionalsin order to access drugs and that he presents very differently to various persons.The veracity of some of his claims about his medical condition has been questionedby some of the medical assessors who have examined him over the years.[40] As the Judge noted, the Courts must be alert to offenders who seek tomanipulate the Court processes.22 We agree and note that there is an associated riskthat medical professionals relying primarily on a defendant's self-reporting can becaptured by the defendant and inadvertently misled. However the Judge was satisfied,on the basis of Dr Lokesh's opinion, that publication of Mr Hawea-Edwards' namewould increase his potential for self-harm and/or suicide, both in a custodial andcommunity setting.23 There has been no appeal against that finding and we accept itand proceed on the same basis. We also agree with the Judge that if there is a real riskof suicide on Mr Hawea-Edwards' part, that risk would meet the statutory thresholdsunder both ss 200(2)(e) and 200(2)(a).24[41] The relevant reports in relation to the effects of publication onMr Hawea-Edwards were written by Dr Lokesh. In a report dated 24 October 2019,21 Dr Raj Konan, a Consultant Psychiatrist, assessed Mr Hawea-Edwards on 22 September 2019.He reported that Mr Hawea-Edwards "did not complain of any suicidal ideation or any thoughtsof harming others". This report is referred to in a report prepared by Dr Kyros Karayianas dated28 November 2019. Dr Karayianas assessed Mr Hawea-Edwards on 28 November 2019, andrecorded that he did not at that stage have thoughts of hurting himself or others. In a report dated9 December 2019, Dr Lokesh noted that Mr Hawea-Edwards was then denying any thoughts ofself-harm or self-injurious behaviour. In a report dated 24 October 2019, Dr Lokesh recorded thathe had interviewed Mr Hawea-Edwards on 15 October 2019, and that he then denied any thoughtsof self-harm or self-injurious behaviour. Mr Hawea-Edwards did however tell Dr Lokesh that inthe past he had attempted to overdose and that he is a "man of honour". He also told Dr Lokeshthat in the event he loses his name suppression, he would probably supply all the relevantinformation to the media by himself, but he later contradicted this by stating that he would end upkilling himself. In a report dated 4 March 2020, Dr Jeremy Whiting noted that Mr Hawea-Edwardsdid not disclose any suicidal ideation. He considered however that Mr Hawea-Edwards has manyrisk factors for suicide and that his long-term risk of committing suicide would be consideredmoderate.22 First appeal judgment, above n 2, at [35], citing R v Suttie [2007] NZCA 201 at [27].23 At [34].24 At [33].he expressed the view that loss of interim name suppression would be likely to causesignificant hardship to Mr Hawea-Edwards and interfere with his future efforts to livea meaningful life. He considered that "[t]he shame, revisiting the trauma andpublication of his name would be extremely counterproductive to Mr Hawea-Edward's[sic] mental state and on-going legal predicament." After he entered his guilty pleas,Dr Lokesh prepared two additional various reports on the effect publication of hisname might have on Mr Hawea-Edwards. In the first report dated 3 September 2020,he recorded Mr Hawea-Edwards as saying that he wouldn't hesitate to commit suicideif his name was published as he was a "man of honour" and "my honour is a world tome". Dr Lokesh again expressed the view that publication of Mr Hawea-Edwards'name would be counterproductive to his mental state and "ongoing legalpredicament". He also recorded his view that Mr Hawea-Edwards has many riskfactors for suicide, and that his long-term risk of suicide is moderate; he consideredthat this risk would escalate to high if he lost his name suppression application. In hisfurther report dated 22 January 2021, Dr Lokesh advised that the High Court judgmenthas had a destabilising effect on Mr Hawea-Edwards' mental state, and that he is nowpresenting with emerging depressive symptoms despite medication. He reported thatMr Hawea-Edwards shows suicidal ideation, albeit that he avoids discussing the topicat length. He again emphasised that publication of Mr Hawea-Edwards' name wouldbe counterproductive to his recovery, and that the risk of suicide will escalate to highif his name is published. He stated:In my psychiatric opinion, [Mr Hawea-Edwards'] depressive symptoms willworsen if the name suppression is lifted, which is common for somebody withbipolar affective disorder. This would prove detrimental to his mental state,and there would be a real risk of suicide.[42] As the Judge noted, this Court has provided guidance on a defendant seekingname suppression who is assessed to be at risk of self-harm or suicide.25 Relevantly,the Court has noted as follows:26[30] It is not uncommon for applicants to seek suppression on the groundthat publication will cause them to self-harm or commit suicide. A review ofthe principal cases is instructive. A number of points may be made:25 At [32].26 D(CA443/2015) v Police, above n 10 (footnotes omitted).(a) The possibility of self-harm or suicide always gives a courtcause for anxious consideration. Suicide would be adevastating and unacceptable consequence of publication andit cannot always be assumed that an at-risk person will behaverationally. But the Court cannot adopt the stance that any riskis unacceptable. Under s 200 it must be satisfied that therelevant subs (2) risk is likely; that is, a real and appreciablepossibility.(b) Judges know that people may experience suicidal ideationwhen confronted with criminal proceedings, which areimmensely stressful, but very seldom, if ever, act upon it. Theproceeding is normally the principal cause of stress, althoughpublication identifies the proceeding with the defendant andmay cause great anxiety at particular points in time.(c) For these reasons a defendant who relies on a risk of self-harmor suicide attributable to publication of his or her name mustnormally point to something more than the usual feelings ofanxiety and despair that may attend proceedings. It is usualto offer evidence that the defendant is psychologicallytroubled for other reasons and is particularly susceptible topublicity. This may be coupled with evidence that the casewill attract unusually extensive or critical media publicity.(d) (e) Anything that reinforces or mitigates other risk factors mayaffect the likelihood that publication will precipitate self-harmor suicide.(f) The opinions of medical professionals deserve respect, but acourt need not defer to them. It is unlikely to question anuncontradicted medical diagnosis of the defendant'scondition, but such opinions may assume that any risk is toomuch risk or (as in this case) urge suppression withoutadequately addressing alternative ways in which the riskmight be managed.(g) There normally are ways of managing the risk. Wherepossible, medical reports prepared to assist the Courts shouldrecommend and evaluate those options. For example, a briefperiod of suppression may reconcile the defendant to theinevitability of publicity after the initial shock of arrest andfirst appearance. Support structures can be identified anddeployed. Sensitive information of a personal nature may besuppressed.(h) Suppression does not follow automatically from the Courtbeing satisfied that a relevant risk exists. The court mustfurther consider the second issue: whether an order ought tobe made in the exercise of discretion.[43] Mr Hawea-Edwards challenges the Judge's assessment of the risk ofendangerment under s 200(2)(e) and asserts that the Judge erred when he consideredwhether the risks of endangerment could be adequately mitigated, both whileMr Hawea-Edwards is in custody and when he is released into the community in 2023.[44] In our view, the Judge did not err. As we have noted, the Judge acceptedDr Lokesh's evidence but his enquiry did not stop there. Rather, he went on toconsider the overall risk that Mr Hawea-Edwards poses, and he assessed that risk incontext, taking into account situational factors that mitigate the risk.[45] This was not an error. Section 200(2) requires that the Court be satisfied thatone or other of the identified consequences is likely to occur. If some measure can beput in place to reduce the likelihood of the consequence occurring, that is relevant asgoing to the issue of whether the threshold required by s 200(2) is made out. Such anapproach was approved in D(CA443/2015) v Police. The Court there recognised thata court considering name suppression should consider alternative ways in which anyrisk of self-harm or suicide can be managed, and noted that there are normally waysof managing the risk.27 A similar approach has been taken in other cases.28[46] The Judge approached the global risk assessment by first determining whetherthere was an appreciable risk to Mr Hawea-Edwards' safety whilst he is in custody,and then, whether there was a risk to his safety after he is released back into thecommunity.[47] The Judge was satisfied that the policies and practical mechanisms put in placeby the Department of Corrections provide adequate mitigation whilstMr Hawea-Edwards is in custody. In effect, the Judge was satisfied that whilst he isin custody, there is no real and appreciable possibility of suicide byMr Hawea-Edwards. There was no error here. The Court is entitled to assume thatthe Department of Corrections will comply with its obligations to ensure the welfareand safety of prisoners, including suicidal prisoners.2927 D(CA443/2015) v Police, above n 10, at [30](e)–[30](g).28 See for example Santos v R [2019] NZCA 252 at [24]–[26].29 MS(CA405/16) v R [2016] NZCA 544 at [11], citing for example Corrections Act 2004, s 8(1)(b).[48] Further, we consider that the Judge was correct when he found that publicationis not likely to endanger Mr Hawea-Edwards' safety when he is released from prison.We agree with the Judge that any media interest in the case is likely to have dissipatedby the time that Mr Hawea-Edwards is released from custody in late 2023. The Judgedid not err when he took into account Dr Lokesh's various observations to the effectthat Mr Hawea-Edwards is showing increased insight into his mental illness, and thathe is benefiting from medication whilst in custody as well as from his enforcedabstinence from alcohol and illicit drugs. Mr Hawea-Edwards will have theopportunity to complete courses whilst he is in custody to address both the causes ofhis offending and his dependence on alcohol and drugs. Those courses will preparehim for his release from prison. It appears from the reports made available to us thatMr Hawea-Edwards has engaged satisfactorily with the rehabilitative programmesoffered to him by the Department of Corrections. Further, we note the observationsby Judge Sharp that the Parole Board will be able to set post-release conditions forMr Hawea-Edwards.30 Those conditions could include provision for ongoingattendance at appropriate courses.[49] Accordingly, we do not consider that Moore J erred in his approach toss 200(2)(e) or 200(2)(a). Nor do we consider that he erred when he deferredpublication. Deferral of publication was recognised by this Court in D(CA443/2015)v Police as a way of managing the risk of suicide or self-harm.31 We agree withMoore J that it was appropriate to defer publication in Mr Hawea-Edwards' case togive him the opportunity to reconcile himself to the inevitability of publicity after theinitial shock of losing his appeal.[50] Mr Hawea-Edwards also challenged the Judge's observation that any hardshipunder s 200(2)(a) would be transitory, and he argued that the Act does not distinguishbetween transitory and permanent hardship.[51] We do not consider that Mr Hawea-Edwards' argument accurately records whatthe Judge decided or that the Judge erred in this regard. The Judge did not distinguishbetween transitory and permanent hardship. Rather, he held that there was cogent and30 Name suppression judgment, above n 1, at [7].31 See D(CA443/2015) v Police, above n 10, at [32](f).persuasive evidence from Mr Symonds that whilst Mr Hawea-Edwards is in custody,the prison authorities will monitor and review his mental health and such ongoing riskof self-harm as he presents. The Judge went on to record that he was satisfied thatdelayed publication would not only permit the prison's risk assessment team tomonitor Mr Hawea-Edwards' condition, but that it would provide a lead-in period forMr Hawea-Edwards to mentally prepare himself for the inevitability of thepublication, and for the prison authorities to monitor him both before and after thatevent. The Judge said that this regime would operate in parallel with the medicinalmanagement of Mr Hawea-Edwards' bipolar affective disorder. The Judge formed theview, on the evidence before him, that Mr Hawea-Edwards' prognosis would improveand that that would reduce, albeit not entirely eliminate, the risk of self-harm that heposes.32 The Judge cited R v W in this regard.33[52] The Judge accepted that there was a real possibility that Mr Hawea-Edwardswill suffer adverse mental health impacts if his name is not suppressed. He alsoaccepted that for a period those impacts may be severe. He went on to observe thatthere was however no evidence before him to suggest that, although the initial impactsmay result in a significant setback, Mr Hawea-Edwards is unlikely to recover fromthem. For that reason he expressed the view that given the various positive factorsidentified, the effects on Mr Hawea-Edwards were likely to be transitory.[53] As already noted, the test for extreme hardship under s 200(2)(a) is high.Dr Lokesh's reports suggest that Mr Hawea-Edwards' depressive symptoms willworsen if his name is published, but there is no evidence to suggest thatMr Hawea-Edwards will not recover from the effects associated with publication.If there is short-term hardship, but no long-term hardship, then that goes to thequestion of whether or not the high threshold put in place by the subsection is met.The subsection looks to the future — the likelihood of extreme hardship if publicationis not suppressed. The duration of any anticipated hardship is a relevant factor which32 First appeal judgment, above n 2, at [46]–[51].33 R v W [2016] NZHC 2923, where the High Court acknowledged that the loss of name suppressionfor the appellant in that case represented a significant setback to her mental health, but noted thatthere was no evidence that she would not be able to work through the difficulties with time. TheJudge considered that the test of extreme hardship was not made out, at [56]. This case wasreversed on appeal for other reasons. See W v R [2017] NZCA 580.in some cases will need to be considered. We do not consider that ss 208 and 210,both referred to for Mr Hawea-Edwards, have any bearing on this issue and we cannotsee that there was any error in the Judge's assessment of the matter. We agree withthe Judge that the threshold for extreme hardship under s 200(2)(a) was not made outbecause any adverse effects of publication are likely to be short-lived.[54] Our view of the matter makes it unnecessary for us to go on and consider theexercise of the discretion under s 200(1).Result[55] The application for leave to bring a second appeal is granted.[56] The applications for leave to file further evidence are granted.[57] The appeal is dismissed. The existing suppression orders are to expire on30 April 2021. Thereafter, Mr Hawea-Edwards' name, address, occupation andidentifying particulars can be published.Solicitors:Crown Law Office, Wellington for Respondent