Back Home 5 News 5 Teenage rapist will be named – but not for now

Teenage rapist will be named – but not for now

3 May 2024

| Author: Andrea Hilton

Permanent name suppression – child – disability – autism – mental health – social media – sexual offending – connected person – Criminal Procedure Act 2011 ss 196, 200-204, 210,283 – undue hardship – New Zealand Bill of Rights Act 1990 ss14, 25 – Oranga Tamariki Act 1989 s 283 – United Nations Convention on the Rights of the Child art 1,3, 16, 40 –United Nations Convention on the Rights of Persons with Disabilities art 7 –International Covenant on Civil and Political Rights art 14 – Roberston v New Zealand Police [2015] NZCA 7 – Siemer v Solicitor General [2013] NZSC 638 – H v R [2019] NZSC 69

M v K, LF v R [2024] NZSC 29

 

Dismissal of LF’s direct appeal to the Supreme Court against High Court refusal to grant permanent name suppression and M’s appeal to Supreme Court from Court of Appeal decision declining M’s application for LF’s name to be permanently suppressed to prevent M (a person with permanent name suppression) being identified.

LF was brought before the Youth Court for sexual offences committed when he was aged 14-17. There were 10 offences, made up of three for rape, three for sexual violation, two for indecent assault and two for sexual conduct with a person under 16 years of age. LF did not deny the Youth Court charges and received automatic name suppression.

The charges committed when LF was 17 were transferred to the District Court and LF pleaded guilty. The Crown applied under s 283(o) of the Oranga Tamariki Act to have LF sentenced on all charges in the District Court. The District Court declined LF’s application for permanent name suppression under s 200(2) (a) and (e).

The High Court dismissed LF’s appeal. The Court of Appeal declined LF’s application for a second appeal. The Supreme Court granted LF leave to appeal direct and LF added s 200(2) (f) to his appeal to the Supreme Court

Although M was not connected to LF’s offending, the High Court accepted M came within the definition of a connected person under the Act. M applied for permanent name suppression to the High Court on the grounds that publication of his/her name would cause undue hardship. The High Court declined M’s application. The Court of Appeal granted M suppression on the ground that M would be caused undue hardship if their name were not suppressed. Despite acknowledging that the suppression of M’s name may not be effective, the Court of Appeal declined M’s application to suppress LF’s name to protect M under s 200 (2) (f). M appealed the dismissal of their application to suppress LF’s name to the Supreme Court.

 

Applicable principles: Defendant name suppression by s 200 only – name suppression is a two-step test – s 200(2) provides threshold to satisfy – second stage balancing exercise – defendant’s interests must outweigh public interest – open justice presumption relevant in second stage – seriousness of offending relevant – victims’ views important –extreme hardship greater than hardship – extreme hardship determined in specific context – youth principles given “powerful weight” – no presumption of suppression for youth – youth principles broader than employment prospect s–interests of the disabled child primary consideration – importance of principle of open justice – rehabilitation and reintegration of children relevant – prioritise interests of connected person over defendant– defendant identification important part of accountability.

 

Held: After taking into account the risk to LF’s mental health, negative and social and media commentary, risk of vigilantism, employment and social prospects and LF’s youth and autism, the court decided the extreme hardship threshold was not met. Neither was the threshold of s 200(2) (e). Vigilante action had occurred, but the individuals concerned already knew who LF was. Publication of references to mental health issues beyond those made in the judgment which is publicly available are prohibited. Publication of LF’s name, address, occupation and identifying particulars is prohibited until 5pm on 14 June 2024.

The court assumed the jurisdictional threshold was met to determine M’s application for LF’s name to be suppressed under s 200(2) (f) without deciding. However, the second step was to determine whether the required balancing exercise favoured suppression of LF’s name. The court agreed with the Court of Appeal’s decision and reasoning that on balance suppression of LF’s name was not correct.

A statutory provision would be required to make youth principles a governing presumption for name suppression under the Criminal Procedure Act.

The court queried whether name suppression decisions would be better classified as evaluative rather than discretionary although the issue “was immaterial to the case”, suggesting that an evaluative classification would broaden the scope for appeal.

 

After 14 years as general counsel for a local authority, Andrea Hilton is now a sole practitioner practising local government law

M v KIng20240501-Mv K, LF v K [2024] NZSC-29

Subscribe to

LawNews

The weekly online publication is full of journalistic articles written for those in the legal profession. With interviews, thought pieces, case notes and analysis of current legal events, LawNews is a key source of news and insights for anyone working within or alongside the legal field.

Sign in or
become a Member
to join the discussion.

0 Comments

Submit a Comment

Your email address will not be published. Required fields are marked *

Latest Articles

Loading...