KING v POLICE [2020] NZHC 1213

KING v POLICE [2020] NZHC 1213 [3 June 2020]ORDER PROHIBITING PUBLICATION OF NAME, ADDRESS,OCCUPATION OR IDENTIFYING PARTICULARS OF APPELLANTPURSUANT TO PARA [35] OF THIS JUDGMENT.IN THE HIGH COURT OF NEW ZEALANDDUNEDIN REGISTRYI TE KŌTI MATUA O AOTEAROAŌTEPOTI ROHECRI-2019-425-000033[2020] NZHC 1213BETWEEN JAMES DANIEL KINGAppellantAND NEW ZEALAND POLICERespondentHearing: 2 June 2020Appearances: C M Andersen for the AppellantC J Bernhardt for the RespondentJudgment: 3 June 2020JUDGMENT OF NATION JIntroduction[1] The appellant, Mr King, was sentenced by Judge Macdonald in the DistrictCourt on three charges of being unlawfully in a yard and two charges of peeping, alllaid under the Summary Offences Act 1981.1 The Judge declined to grant Mr Kingname suppression. Mr King appeals against that decision.Facts[2] Between 8 November 2018 and 27 November 2018, Mr King was found threetimes in an enclosed yard without reasonable excuse, namely someone else's property.1 Police v King [2020] NZDC 1094.On two of these occasions he was found peering into the houses. All three victimswere young females aged between 18 and 23 years old.District Court decision[3] On the three charges of unlawfully being within an enclosed yard, the Judgesentenced Mr King to 12 months' supervision with conditions. Emotional harmreparation was ordered in the sum of $250 to be paid to two of the victims. Mr Kingwas convicted and discharged on the two charges of peeping.[4] The media made an application to take Mr King's photo. Addressing the issueof name suppression, the Judge noted that Mr King suffers from anxiety anddepression. His Honour noted the psychologist's report raised particular concern thatthere may be some self-harm issues. However, these were "placed at the moderatelevel".2[5] Further, the Judge could not ignore that Mr King had been before the court ontwo previous occasions for similar offending. On those two previous occasions, MrKing's name was not suppressed. The Judge considered the five new offences were"relatively minor". While conscious of the matters raised in the psychologist's report,his Honour did not consider name suppression was justified in the circumstances.Accordingly, the media application was granted.Law[6] The starting point for consideration of a suppression order is the presumptionof open justice.3 The business of the courts should be conducted publicly and anydeparture from this general rule ought only to be "to the extent necessary to serve theends of justice".4 A suppression order may be made under s 200 Criminal ProcedureAct 2011 (CPA).2 At [9].3 Robertson v Police [2015] NZCA 7; D (CA443/2015) v Police [2015] NZCA 541, (2015) 27CRNZ 614.4 Erceg v Erceg [2016] NZSC 135, [2017] 1 NZLR 310 at [3].[7] In determining whether to exercise its discretion, the court is required toundertake a two-step inquiry.5 First, whether any of the threshold grounds in s 200(2)CPA are met. Second, if the court is satisfied one of the threshold grounds has beenmet, it must determine whether to exercise its discretion and forbid publication of thedefendant's details.6 The presumption of open justice is considered at this stage. Todisplace the presumption, the balance must clearly favour the suppression.7[8] The mandated two-step test must be conducted afresh. An appeal court isrequired to undertake its own assessment of whether the threshold test is met.8 Ifsatisfied that the criteria at this first stage has been met, the court must then make itsown determination whether suppression should be granted. The first appeal court mustconfirm, vary or set aside the decision appealed against or make any other order itconsiders appropriate.9Submissions[9] Ms Andersen, counsel for Mr King, submitted there is a clear risk to the safetyof Mr King should his name be published, and that risk meets the test of extremehardship.[10] Ms Andersen referred to the psychological report prepared by Mr Paul Knoxon 26 June 2019 (the Psychological Report) which describes Mr King's depressionand anxiety as "severe to extremely severe". It is submitted the District Court Judgeerred in finding there was only a moderate risk of self-harm.[11] The Psychological Report states Mr King is at moderate risk of suicide in hiseveryday life. It is contended publication of his name would exacerbate this. Inaddition, Mr King has been diagnosed with autism spectrum disorder (ASD) and hassuffered childhood trauma. Ms Andersen suggested these factors increase Mr King'srisk of suicide.5 D (CA443/2015) v Police, above n 3, at [10].6 Fagan v Serious Fraud Office [2013] NZCA 367 at [9]; Robertson v Police, above n 3; D(CA443/2015) v Police, above n 3.7 D (CA443/2015) v Police, above n 3, at [17].8 Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141 at [16].9 Criminal Procedure Act 2011, s 287.[12] Ms Andersen submitted the Judge erred in his assessment that Mr King did notmeet any of the thresholds contained in s 200(2) CPA. It is submitted a thresholdground is met and, accordingly, the Judge erred by failing to balance Mr King's namesuppression with the competing interest of open reporting.[13] Counsel for the Crown, Mr Bernhardt, submitted the Court needed to becautious in accepting evidence from medical experts where there is no objectivecorroboration of that evidence and the expert relies solely on self-reporting. MrBernhardt suggested that is the case with the Psychological Report.[14] Mr Bernhardt referred to judgments of the Court of Appeal where an appellanthad argued the risk of suicide justified permanent name suppression.10 Mr Bernhardt'sfurther submissions are reflected in the judgment below.Analysis[15] The starting point for assessing whether Mr King's name ought to besuppressed is whether one of the threshold grounds in s 200(2) CPA has been met.There must be a real and appreciable risk that one of the consequences in s 200(2) willfollow publication.11 Ms Andersen submits publication is likely to endanger the safetyof Mr King and cause extreme hardship. These two thresholds are contained in ss200(2)(a) and (e).Risk to Mr King's safety[16] Ms Andersen contended the risk to Mr King's safety is due to a heightened riskof suicide. She relies solely on the Psychological Report as evidence of this risk.[17] In D v Police, the Court of Appeal considered, in relation to self-harm orsuicide, it is not feasible to "adopt the stance that any risk is unacceptable".12 The riskmust be a real and appreciable possibility. Name suppression does not automatically10 R v Suttie [2007] NZCA 201.11 Beacon Media Group Ltd v Waititi [2014] NZHC 281 at [17] and JM v R [2015] NZHC 426 at[33]-[36].12 D (CA443/2015) v Police, above n 3 at [30].follow where a risk of suicide has been established. It is relevant but not adeterminative factor.13[18] The conclusions relating to the impact of publication of Mr King's namecontained in the Psychological Report were affirmed in a letter of Mr Knox dated 19June 2019. Mr Knox stated that, if Mr King's convictions were made public, "thenotoriety and potential for negative comments would likely exacerbate his anxiety,and this, in turn, is likely to exacerbate his depressive symptoms and risk to himself."Further, is was stated that, if publication were to interfere with Mr King's employment,that would also "pose a risk to his wellbeing."[19] The Psychological Report clearly identifies that Mr King suffers from mentalhealth issues, including anxiety and depression, that represent a "moderate risk ofsuicide". The report makes a linkage between the publication of Mr King's name andan increased risk of depressive symptoms and "risk to himself". However, the reportdoes not state that the "risk to himself" would be such that suicide would be a real andappreciable risk.[20] The Department of Corrections pre-sentence report of 28 May 2019 identifiedthat Mr King has the benefit of close family support. It referred to a Columbia-SuicideSeverity Rating Scale form having been completed and identifying that "there wassuicide ideation present in some of the answers that Mr King presented". Theprobation officer reported "at this point in time, Mr King mitigates the increase in riskof harm or suicide ideation with open discussions with his wife". His wife is fullyaware of his offending, so publication of his name will not lessen that support whichwill be available to help him deal with any increased anxiety connected withpublication.[21] The psychologist whose report was relied on in seeking publication advised, ina letter to the Court of 17 December 2019, that Mr King had attended six appointmentssince the psychologist first assessed Mr King and provided a report to the Court inJune 2019. Thus, Mr King also has the benefit of an established relationship with his13 BL v R [2013] NZHC 2878 at [22].psychologist to help him deal with any heightened anxiety or depression that mightresult from publication of his name.[22] I note also that, in November 2019, Mr King wrote to each of the victims ofhis offending. In those letters he told the victims he was now seeing a psychologist toaddress and work through his issues and to ensure that nothing like this happenedagain. He told the victims he takes full responsibility for his actions and said "I amready to handle the consequences of these". At the time, the consequences includedhis having to appear in court on these charges. He knew publication could result fromsuch a court appearance. He had previously been charged with minor offences inrespect of which there had been publication of his name.[23] The psychologist said Mr King's employment provided him with a meaningfuldaily routine and was the most significant protective factor against his depression. Thepsychologist suggested that, if publicity related to his conviction interfered with hisemployment, that could pose a risk to his wellbeing. There is however no evidence tosuggest publication will provide a risk to his employment. His employment does notinvolve extensive contact with the public. Mr King has some mental health issues forwhich he is now receiving and must be paying for specialist help. He has beendiagnosed as suffering from ASD. There is no evidence that Mr King's employerwould not be supportive of Mr King while Mr King is competent and conscientious inthe work he does.[24] An evidential basis is required to support the proposition that the safety of aperson is likely to be endangered.14 I do not consider the evidence contained in thePsychological Report has established there is a real and appreciable risk that Mr King'ssafety will be endangered by publication of his name. The report is largely based onself-reporting and does not contain independent clinical diagnosis. No other evidencehas been produced in support of name suppression. Further, I do not consider theincrease in depression and anxiety go beyond those that would ordinarily be associatedwith criminal proceedings of this nature. In my view, the threshold of endangering MrKing's safety, under s 200(2)(e) CPA, has not been met.14 Bitossi v R [2014] NZCA 595 at [8].Extreme hardship[25] I infer from Ms Andersen's submissions that she suggests the increased risk ofsuicide resulting from publication meets the threshold for extreme hardship containedin s 200(2)(a) CPA.[26] Section 200 states the court may order suppression of the defendant's details ifsatisfied "would be likely to cause extreme hardship to the person charged with the offence, or any person connected with that person". That threshold is a very highlevel of hardship that implies severe suffering or privation.15 The assessment for thisground requires a "relative comparison between the contended hardship and theconsequences normally associated with a defendant's name being published".16[27] Given the threshold for endangering Mr King's safety is not met, it followsthat the high threshold for extreme hardship is also not met. As previously stated, Iconsider the increase in depression and anxiety which result in an increased risk ofsuicide do not, in these circumstances, go beyond those that would ordinarily beassociated with criminal proceedings of this nature.Stage two: discretionary assessment[28] For completeness, and in case I am wrong in my assessment of stage one, I willaddress stage two of the analysis, namely whether the court ought to exercise itsdiscretion to forbid publication.[29] The question for the court is whether the risk, being increased suicide,outweighs the presumption of open justice and the public interest in knowing theoperation of the justice system. Before the discretion to forbid publication of MrKing's name can be exercised, one of the grounds in s 200 of the Act must beestablished.17 It follows that, if none are established, the assessment ends there.15 Bond v R [2015] NZCA 488 at [33]; and Robertson v Police, above n 3, at [48].16 Robertson v Police, above n 3, at [49]; D (CA443/2015) v Police, above n 3, at [6].17 Fagan v Serious Fraud Office, above n 6, at [9].[30] The offending in this case targeted members of the public. Offending of thesort Mr King was guilty of is most unsettling and can create long-term increasedfeelings of insecurity for those whose privacy has been so significantly invaded.Where members of the public have been so affected by such offending, the public areentitled to know of how this has been dealt with through the courts. In this instance,if there is publicity, there should also be mention of the steps Mr King hasconscientiously taken to deal with his personal issues to try and ensure there is norepetition of such offending in the future.[31] Publication might well also enable those who have close contact with Mr Kingto be aware of the problems he has had and support him in the steps he is taking toensure there is no repetition of this offending.[32] I am not satisfied that the risk of suicide outweighs the presumption of openjustice.[33] In summary, I am not satisfied that any of the grounds in s 200(2) have beenmet. I do not consider there is a real and appreciable risk to Mr King's safety or thatextreme hardship will result from publication. Further, I do not consider there issufficient reason to displace the presumption of open justice.Conclusion[34] Mr King's appeal against the refusal of name suppression is dismissed.[35] The suppression will however continue until 5.00 pm on 10 June 2020. Thatis to allow time for Mr King to file a memorandum with this Court advising of hisintention to file an application for leave to appeal this decision. If such a memorandumis filed, interim suppression will continue as provided for by s 292 Criminal ProcedureAct. If no such memorandum is filed, suppression will lapse at 5.00 pm on 10 June2020.Solicitors:C M Andersen, Barrister, DunedinRPB Law, Dunedin.