Criminal Procedure Act 2011, s 200(2) – publication unlikely to cause “extreme hardship” – insufficient link between mental health risks and publication – expert evidence insufficient  – prison safeguards sufficient to mitigate any further harm – appeal against judge’s decision to decline order for name suppression dismissed.

Lee v R [2023] NZCA 305.

Hakyung Lee is alleged to have murdered her two children and hidden their bodies in suitcases, which were stored along with her other property in a storage garage in south Auckland.

Lee changed her name and flew to South Korea in July 2018, remaining there until 2022.

On 11 August 2022, her children’s remains were located in the suitcases. An arrest warrant was issued and the defendant in November 2022 was extradited to New Zealand.

Lee was granted name suppression at her first appearance in the District Court on 30 November 2022. A further application for name suppression, which was opposed by NZME and Stuff, was made until 16 February 2023.

Hinton J in the High Court declined name suppression on 23 March 2023.

On appeal, the Court of Appeal laid out the circumstances in which name suppression might be granted under s 200(2) of the Criminal Procedure Act 2011.

The court must consider whether the threshold has been crossed on one of the grounds under s 200(2). In this case, whether “extreme hardship” was likely to occur as a result of publication.

If the threshold is met, the court must decide whether to exercise its discretion to make a suppression order, having regard to the interests of the applicant and the public’s interest in open justice.

Counsel for Lee contended that Hinton J overlooked expert psychiatric opinion on Lee’s suicide risk if name suppression were lifted. However, the Court of Appeal agreed with the judge’s conclusion that the expert’s evidence was tentative and lacked a direct link between her mental state and publication.

The court went on to consider the principles from D (CA443/2015) v Police [2015] NZCA 541, namely the risk of self-harm or suicide from publication. However, there was insufficient evidence to show the defendant was particularly susceptible to publicity or that publication significantly increased her suicide risk.

Hinton J’s view, that Lee’s risk of any further harm was mitigated by prison safeguards, was also upheld.

As Lee failed on the first hurdle for retaining name suppression, the court was not required to consider whether the discretion to make a suppression order ought to be exercised.

The issue of Lee’s fitness to plead would be addressed separately.

Applicable principles: open justice – public interest – extreme or undue hardship–– risk of prejudicing a right to a fair trial – public safety – presumption of innocence.

Held: Appeal against judge’s decision to decline name suppression dismissed.

The judge did not err in concluding the threshold required to establish that publication would cause Lee extreme hardship or otherwise endanger her safety was not met on the evidence.

Jamie Dierick is a law clerk working for an Auckland criminal defence barrister.

Lee v R [2023] NZCA 305.