The Court of Appeal has dismissed an appeal seeking to suppress the identity of a man who has twice been found insane after killing two people more than 20 years apart.
However, his lawyer has indicated he has been instructed to file an appeal to the Supreme Court, meaning his identity remains secret for now.
RNZ earlier revealed the man, who was made a special patient under the Mental Health Act after his first killing, was recently found not guilty of murder by reason of insanity for a second time after killing someone he believed was possessed.
RNZ has been unable to publish details regarding either killings due to appeals against name suppression. The appeal was heard in the Court of Appeal in August before president Justice French, Justice Campbell and Justice Collins.
The man and the victim's family earlier lost a bid for name suppression in the High Court. In declining suppression, Justice Grau said while the decision had been "very difficult", public interest must prevail.
"There is rightly a high degree of public interest in learning of the circumstances in which a person who has been released into the community under the supervision of mental health services has gone on to kill again," she said.
The man appealed the ruling to the Court of Appeal. The Crown and RNZ opposed the man's appeal.
On Wednesday, the Court of Appeal dismissed the man's application and said the fact the man had killed again whilst suffering from mental illness was a matter of "overwhelming public interest".
The Court of Appeal said tikanga may assist courts in determining whether or not an applicant had demonstrated they would suffer extreme hardship or whether a victim had established they would suffer undue hardship if name suppression was declined, and in assessing the extent of that hardship.
But, even in assessing the hardship through a tikanga lens, the Court was not persuaded that that hardship outweighed the "strong public interest in open justice in this case".
The Court agreed with Justice Grau that there was an "overwhelming interest" in giving supremacy to the principles of open justice.
The Court said while the media had been able to convey a lot of information about the man's actions without naming him or the person he killed, further inquiries and the inquest into the person's death would be "hampered" if it was not possible for authorities to openly identify him.
The public also had a right to know about the man's "distressing history of violence", in order that they are aware of the risks he may pose if he was ever released into the community again.
The Court added that the family of the person killed more than two decades ago had a "unique interest" in knowing, and being free to discuss, that the man had killed again.
"These factors overwhelmingly lead us to conclude that the hardship suffered by the whānau does not outweigh the principle of open justice in this case."
Failure to consider tikanga alleged
During the Court of Appeal hearing the man's lawyer Jamie Waugh said the appeal was brought on the ground that the High Court failed to appropriately consider aspects of tikanga that were raised in the victim impact statements.
He submitted that in doing so, the High Court had incorrectly assessed the nature and extent of hardship that would be suffered by the victim's whānau and incorrectly refused name suppression.
Evidence was provided by a tikanga expert who submitted that a suppression order should remain until such a time as the man was to be released.
Waugh argued the court should uphold the appeal and either permanently suppress both the man and victim's names and any identifying details, or order continued interim name suppression until such a time as the man was to be released.
He submitted any legitimate public interest could be met through "careful reporting", despite suppression orders being in place - which he said had already occurred, and referenced several RNZ articles.
From a tikanga perspective publication would be more appropriate if and when he was released, he said.
Waugh asked what was being achieved through publication of the names at this stage.
"What are we actually achievig through publication at this point? We know the risk to this whānau… it seems to me there is very little to be gained via justice through publication and lots to be lost by this whānau."
Tikanga doesn't outweigh open justice - Crown
Speaking in relation to tikanga on behalf of the Crown, Natalie Coates said the expert's evidence confirming publication could cause hardship had already been accepted by Justice Grau. The new evidence did not shift the balance away from open justice, she said.
There were several reasons for this, Coates said the evidence before the High Court did speak to the impact on the whānau which Justice Grau grappled with in ruling against name suppression.
Coates also said there was no evidence that tikanga supported permanent suppression or secrecy.
She said tikanga was "an ingredient in the analysis, but not a controlling one".
"Tikanga doesn't justify a departure from open justice."
Deputy Solicitor-General Madeleine Laracy said the Crown submitted RNZ had shown "great interest" in the case and its audience was national.
She said there was no information reported to link the man's two killings.
"That is where we say the public interest in this is acute," she said.
"The public interest in this case is in understanding the detail of those prior failures and seeing them in the context of what is happening here."
Laracy said there was an inquiry ongoing by Health New Zealand and there would be an inquest. The autonomy of "other fact-finding processes" was important.
She said due to the suppression orders the whānau of the first victim could not be told what had happened, which she argued was "quite a restriction for the court to sanction".
Laracy accepted that linking both cases would result in reporting of details from both homicides which were "brutal and awful".
The Crown said the appeal should be dismissed.
Robert Stewart KC on behalf of RNZ said Justice Grau had considered the hardship for the whānau in her consideration of the victim impact statements.
Stewart KC said permanent suppression would make it "extremely difficult" not only for the media to report on any inquiries, but also for those inquiries to feel they can explore things in a way that the public can understand what they have done and why they have done it.
"We are looking at the wider public interest and wider circumstances of the events, what caused them, and what is going to happen as a result in terms of further inquiries that are obviously going to take place and the concern the judge had was; how are those matters going to be properly reported if there is going to be suppression of the appellant and the victim in this case?"
He said Justice Grau got it right when she said all those levels of hardship did not outweigh the importance and the interests in the presumption of openness, open reporting and people's right to freedom of expression.
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