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Bailey v The Queen

Bailey v The Queen

Case [2011] NZCA 480 16 September 2011

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IN THE COURT OF APPEAL OF NEW ZEALAND

CA599/2011
CA600/2011
CA601/2011
CA602/2011
[2011] NZCA 480

BETWEEN EMILY FELICITY BAILEY
URS PETER SIGNER
RANGI KEMARA
TAME ITI
Applicants

AND THE QUEEN
Respondent

Hearing: 16 September 2011

Court: Ellen France, Harrison and Wild JJ

Counsel: V Nisbet for Applicant Bailey
C W J Stevenson for Applicant Signer
C B Hirschfeld and T B Afeaki for Applicant Kemara
R Fairbrother for Applicant Iti
A R Burns and E Finlayson-Davis for Respondent

Judgment: 16 September 2011

Reasons: 23 September 2011 at 11 am

REASONS FOR JUDGMENT

The application for leave is declined.

REASONS OF THE COURT
(Given by Ellen France J)

Introduction

The applicants face charges of participation in an organised criminal group under s 98A of the Crimes Act 1961 and other charges under the Arms Act 1983. The charges arise out of a police operation in the Urewera Ranges in 2006–2007. The applicants (and their then co-accused) raised a number of issues about the admissibility of evidence the Crown sought to call at trial. There were judgments on these issues in the High Court, this Court and in the Supreme Court.[1] Suppression orders have been in force in relation to these judgments. Those orders were largely sought by the accused for the purposes of preserving their rights to a fair trial.
[1]R v Bailey HC Auckland CRI-2007-085-7842, 7 October 2009, R v Bailey HC Auckland CRI-2007-085-7842, 15 December 2009, Hunt v R [2010] NZCA 528 and Hamed v R [2011] NZSC 101.
Once the admissibility issues were resolved (by the recent decision of the Supreme Court),[2] the Crown applied to the High Court to have the suppression orders lifted. In judgments delivered on 13 and 15 September 2011, Winkelmann J reduced the scope of the suppression orders in respect of the pre-trial judgments of the High Court, this Court and the Supreme Court.[3] The applicants sought leave to appeal against Winkelmann J’s judgments. After hearing from counsel, we delivered our judgment dismissing the application for leave. Our reasons for this decision follow.

Background

[2] Hamed v R [2011] NZSC 101.

[3]R v Bailey HC Auckland CRI-2007-085-7842, 13 and 15 September 2011. Both this Court and the Supreme Court issued minutes confirming that the High Court could deal with suppression orders affecting the judgments of those courts in these proceedings.

The background is set out in the various pre-trial judgments and need not be repeated here. For present purposes, we need only note that the applicants’ trial by jury is scheduled to take place in February 2012.[4]

The approach in the High Court

[4]The trial was to proceed before a Judge alone but after the number of defendants was reduced following the decision of the Supreme Court of 2 September 2011, an appeal against the decision to proceed before a Judge alone was allowed by consent: R v Signer [2011] NZSC 109.

Winkelmann J in her judgment of 13 September 2011 took as her starting point the principle…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Bailey v The Queen

Details

AGLC: Bailey v The Queen [2011] NZCA 480
Case: [2011] NZCA 480
Decision Date: 16 September 2011

CaseChat Overview and Summary

In the Court of Appeal of New Zealand, the applicants Emily Felicity Bailey, Urs Peter Signer, Rangi Kemara, and Tame Iti sought leave to appeal against the High Court's decision to reduce the scope of suppression orders relating to judgments in their case. The applicants faced charges of participation in an organised criminal group and other charges under the Arms Act 1983. They argued that the reduction of suppression orders would prejudice their right to a fair trial. The Court of Appeal, consisting of Ellen France, Harrison, and Wild JJ, heard the application and delivered its judgment on 16 September 2011.

The primary legal issue the Court of Appeal had to decide was whether the proposed appeal had any merit. This included determining the jurisdiction of the Court to hear the application for leave to appeal and assessing the proposed grounds of appeal. The applicants argued that the High Court did not give sufficient weight to the sub judice rule, fair trial issues, and the risk of prejudicial media coverage. They also contended that they did not have adequate time to prepare for the hearing on the Crown's application for the lifting of suppression orders.

The Court of Appeal found that, regardless of the jurisdiction issue, the proposed appeal had no merit. The Court noted that the applicants' concerns were largely speculative and did not point to specific passages in the judgments that would prejudice their fair trial rights. The Court concluded that there was a public interest in the publication of the material and that the applicants had ample time to consider the judgments and prepare for the hearing. The Court further held that the High Court had appropriately balanced the principle of open justice with the applicants' right to a fair trial.

The Court of Appeal dismissed the application for leave to appeal and declined to grant leave. The reasons for this decision were provided in the judgment delivered on 23 September 2011 at 11 am. The applicants' trial by jury was scheduled to take place in February 2012.

Orders