An application to revoke suppression of name of Witness A

[2025] NZHC 1456

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-1989-004-716058 | T99/90

[2025] NZHC 1456

IN THE MATTER

of an application pursuant to the Criminal Procedure Act 2011 by MICHAEL

THOMAS HICKLAND WESLEY-SMITH

for the revocation of suppression of the name of Witness A

On the papers:
Counsel:	K H Cook for Applicant
Judgment:	5 June 2025

JUDGMENT OF VAN BOHEMEN J

This judgment was delivered by me on 5 June 2025 at 2:30 pm

Registrar/Deputy Registrar

……………………………..

Re an application to revoke suppression of name of Witness A [2025] NZHC 1456 [5 June 2025]

Counsel/Solicitors:

K H Cook, Christchurch

Copy to the Crown Solicitor, Auckland

[1]                  By application dated 31 October 2024, Mr Michael Wesley-Smith has applied for revocation of the suppression of the name of Benjamin Pickering, who gave evidence in the trial in 1990 of David Wayne Tamihere for the murder of Sven  Urban Höglin and Heidi Birgitta Paakkonen.

[2]                  For reasons that may relate to the time taken to retrieve the file relating to   Mr Pickering’s conviction and sentence for importing heroin and possessing heroin for the purposes of supply in October 1989, the application was not put before a judge until May 2025. I apologise to Mr Wesley-Smith for the delay, particularly because retrieval of that file was not required to decide his application.

[3]                  Even so, the file confirms that, following the entry of guilty pleas to the charges of importing heroin and possessing heroin for the purposes of supply, Mr Pickering was sentenced by Thorp J to a term of imprisonment of 12 years. Thorp J also ordered that the sum of $11,000 found in Mr Pickering’s possession be forfeited to the Crown.1 Subsequently, the Court of Appeal quashed the sentence of 12 years’ imprisonment and imposed a sentence of eight years’ imprisonment.2

[4]                  In an affidavit filed in support of the application, Mr Wesley-Smith states that he is an independent journalist and has an interest in evidence given by Mr Pickering in various cases, including the trial of Mr Tamihere.  Mr Wesley-Smith notes that  Mr Pickering is dead and says the rationale for the suppression order no longer exists.

[5]                  Mr Wesley-Smith attaches to his affidavit a copy of an affidavit filed in support of  an  application  to  the  Court  of  Appeal  for  access  to  that  Court’s  file  on  Mr Pickering’s appeal against sentence and explains the matters he wishes to pursue in relation to that file. He also records that the Crown has opposed Mr Wesley-Smith being granted access to the Court of Appeal file.

[6]                  Mr  Wesley-Smith’s  application  for  revocation   of   the   suppression   of Mr Pickering’s name was served on the Crown Solicitor, but no appearance or opposition has been filed by the Crown.

1      R v Pickering HC Auckland S118/89, 27 October 1989.

2      R v Pickering CA349/89, 31 May 1990.

Background

[7]                  Mr Pickering  was  one  of  three  prison  inmates  who  gave  evidence  at  Mr Tamihere’s  trial of conversations they had in prison with Mr Tamihere,  while  Mr Tamihere  was  remanded  in  custody,  about  the  deaths  of  Mr Höglin  and   Ms Paakkonen.

[8]                  The names of the three witnesses, who were identified as Witnesses A,  B  and C, were suppressed by Tompkins J in an order made on 20 November 1990. Although no reasons were given for the order, it was understood the names were suppressed to protect the witnesses from retribution in the prison community for giving evidence for the Crown.3

[9]Mr Pickering was Witness A. He died in 2021.

[10] It has been accepted that the suppression order was made under s 138 or s 140 of the Criminal Justice Act 1985, which has since been repealed.4 However, the Court of Appeal has confirmed the High Court has the jurisdiction to review or vary the order under s 208 of the Criminal Procedure Act 2011.5 In reaching that conclusion, the Court had regard to s 21 of the Interpretation Act 1999, which has also since been repealed. However, s 35 of the Legislation Act 2019, which replaced the Interpretation Act, operates to similar effect and provides:

35Powers exercised under repealed or amended legislation have continuing effect

Anything done in the exercise of a power under repealed or amended legislation, and that is in effect immediately before that repeal or amendment, continues to have effect as if it had been exercised under any other legislation—

(1)that, with or without modification, replaces, or that corresponds to, the legislation repealed or amended; and

(2)under which the power could be exercised.

3      Taylor v C [2017] NZCA 372 at [2].

4 At [23].

5      Under s 208(1)(c) of the Criminal Procedure Act 2011, a permanent suppression order may be reviewed and varied by the High Court at any time.

[11]              The Court of Appeal also held that any third party with a proper interest may invoke this Court’s jurisdiction under s 208 of the Criminal Procedure Act.6

Previous revocations of suppression

[12]              On the application of Arthur Taylor, who had also been a prison inmate and who successfully brought a private prosecution against Witness C, the suppression order in respect of Witness C was revoked by Whata J on 26 October 2017.7 The revocation order was made following Witness C’s conviction of perjury in relation to the evidence he gave at Mr Tamihere’s trial. However, Whata J ordered that Witness C’s name and identifying details should continue to be suppressed on an interim basis, pending Witness C’s appeal of his sentence.8 That appeal was dismissed on 28 September 2018.9

[13]              Also on the application of Mr Taylor, the suppression order in respect of Witness B, who died on 18 February 1995, was revoked by Woolford J on 29 March 2018, with effect from 1 May 2018.10

[14]              In considering whether to revoke the suppression order,  Whata  and Woolford JJ had regard to the decisions of the High Court and Court of Appeal in    R v Burns, where it was held that a permanent suppression order could be revoked in exceptional circumstances.11 Both Judges were satisfied that exceptional circumstances had been established to warrant the revocation of the suppression order with respect to Witnesses C and B.

[15]              Whata J referred to the significant public interest in deterring perjury and the absence of opposition from Witness C. He was also satisfied that the public interest outweighed Witness C’s interest in on-going suppression.12

6      Taylor v C, above n 3, at [24].

7      Taylor v Witness C [2017] NZHC 2615.

8 At [18].

9      Harris v Taylor [2018] NZCA 393.

10     Taylor v R [2018] NZHC 581, [2018] NZAR 398.

11     R v Burns [2002] 1 NZLR 387 (HC) at [50]–[52]; R v Burns [2002] 1 NZLR 410 (CA) at [20].

12     Taylor v Witness C, above n 7, at [13]–[15].

[16]              Woolford J observed that he was not purporting to set out a rule to the effect that name suppression would lapse after a witness died. However, he noted that the primary reasons underpinning the suppression order no longer applied to Witness B. He was also satisfied that the events that followed from the Tamihere trial, including Witness C’s convictions for perjury, took the case outside the norm, that the public interest also required a free exchange of information and opinions, and that the principle of open justice should prevail.13

[17]Witness B was Stephen Kapa. Witness C was Robert Conchie Harris.

Court of Appeal decision on reference of Mr Tamihere’s convictions

[18]              By Order in Council made on 20 April 2020, the Governor-General referred to the Court of Appeal the question of Mr Tamihere’s convictions because the discovery of Mr Höglin’s remains on  the  eastern  side  of  the  Coromandel  Peninsula  and  Mr Harris’s convictions of perjury may raise doubt about an important aspect of the Crown case and could lead the Court of Appeal to conclude that a miscarriage of justice may have occurred.

[19] In its decision issued on 9 July 2024 and reissued on 10 July 2024, the Court of Appeal found that the admission of Mr Harris’s evidence at Mr Tamihere’s trial may have affected the jury’s verdicts and accordingly amounted to a miscarriage of justice.14 However, under the proviso to s 385(1) of the Crimes Act 1960, which still applied to the proceeding despite its repeal,15 the Court was satisfied beyond reasonable doubt that Mr Tamihere murdered Mr Höglin and Ms Paakkonen and held that the miscarriage did not justify setting aside Mr Tamihere’s appeal.16

13     Taylor v R, above n 10, at [21].

14     Tamihere v R [2024] NZCA 300 at [55] and [265].

15 Section 385(1) of the Crimes Act 1960 provided that:

(1)… the Court of Appeal or the Supreme Court must allow the appeal if it is of opinion—

…

(2)that on any ground there was a miscarriage of justice; …

…
and in any other case shall dismiss the appeal:

provided that the Court of Appeal or the Supreme Court may, notwithstanding that it is of opinion that the point raised in the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred.

16     Tamihere v R, above n 14, at [262] and [266].

[20]              In its decision, the Court of Appeal took the view that all of the prison inmate evidence was unreliable and put that evidence to one side because the discovery of Mr Höglin’s remains was not consistent with the accounts given by the prison inmates about how Mr Höglin and Ms Paakkonen had been killed. It also recorded that it did not find the prison informants other than Mr Harris had been lying. It considered their evidence tended to support Mr Tamihere’s claim that he had deliberately fed them false information while in prison.17

[21]              The Court also observed that while Mr Harris and Witness B had lost name suppression, Witness A had not.18 It then stated:

… The Crown advises that Witness A is now deceased and it submits that the rationale for name suppression (to protect him from retribution in the prison community) has ended. We agree, but we doubt we have jurisdiction to revoke the order under s 208(1)(c) of the Criminal Procedure Act. The High Court may revoke the order under s 208.

Decision

[22]              Having regard to the above matters—in particular: the death of Witness A and the ending of the rationale for continued suppression of his name as found by the Court of Appeal; the revocation of suppression of the names of Witnesses B and C; the public interest in the trial of Mr Tamihere; the principle of open justice; and the absence of any opposition by the Crown, I am satisfied that extraordinary circumstances have been established that warrant the ending of the suppression of the name of Witness A. I am also satisfied that Mr Wesley-Smith has a proper interest in revocation of the suppression and may invoke this Court’s jurisdiction under s 208 of the Criminal Procedure Act.

[23]              In accordance with s 208(1)(c), of the Criminal Procedure Act, therefore, I revoke the suppression of the name of Benjamin Pickering ordered by Tompkins J on 20 November 1990 in the trial of David Wayne Tamihere.

G J van Bohemen J

17 At [191].

18 At [263].