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Why the High Court gave terrorist permanent name suppression

11 May 2023

| Author: Jamie Dierick

Criminal Procedure Act 2011 s 200 – application for permanent name suppression – interim name suppression ordered at sentencing – application advanced at sentencing but adjourned pending further evidence – high threshold of extreme hardship or a risk to public safety favouring name suppression – open justice favouring name suppression.

R v G [2023] NZHC 1048 (Edwards J)

This case is an application for permanent name suppression after the defendant pleaded guilty to offences involving the storage and distribution of two terrorist-related materials and threats to carry out an attack. He was sentenced to two years and five months’ imprisonment (see R v G [2023] NZHC 434).

The application was advanced at sentencing but was adjourned pending receipt of further evidence directed at the impact of publication on the defendant’s rehabilitation and reintegration, and any additional risks posed to public safety. Interim suppression orders were made at the time.

In 2017, when the defendant was about 16 or 17, he became radicalised towards the extremist views and beliefs of the Islamic State (ISIS).

The defendant began exchanging messages with an individual named “Ozarikon” who was an undercover police officer. The messages involved a desire to carry out an attack against members of the public in Auckland.

After a terror attack in a New Lynn supermarket on 3 September 2021, the defendant messaged Ozarikon, saying that he felt inspired and wanted to bring forward his own plans for an attack.

A police search located 360 videos on the defendant’s Cloud account related to ISIS material, including some videos the defendant had made himself.

The court looked at s 200 of the Criminal Procedure Act 2011 to determine whether an order for permanent name suppression should be made. It first considered whether any of the threshold grounds in s 200(2) were met. Section 200(2)(a) and (e) were relied on, with the Crown submitting that s 200(2)(h), “security or defence of New Zealand” was also engaged.

The court considered factors such as the possibility of publication leading to extremist groups reaching out to take advantage of the defendant’s high level of suggestibility. Further, the publication of his name could expose the defendant to toxic social media, resulting in further alienation from society, something which was seen as a cause of the offending. The court was also concerned that publishing the defendant’s name may inspire others with similar motivations to offend in the same way.

As a result, the court held that the threshold of extreme hardship or a risk to public safety required it to permanently suppress the defendant’s name.

The court then considered whether to exercise discretion to grant name suppression. It said that “[s]omewhat unusually, this is a case where the principles of open justice favour ordering suppression”. This was because name suppression allowed for key facts of the case to be reported, which outweighed the public interest in the defendant’s name being published.

Held: Application granted, and an order permanently prohibiting publication of the defendant’s name and other identifying details was made. This order does not extend to the publication of the defendant’s diagnoses (including his FASD and intellectual disability).

R v G

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