Bailey v The Queen
[2011] NZCA 480
•16 September 2011
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA599/2011 CA600/2011 CA601/2011 CA602/2011 [2011] NZCA 480 |
| BETWEEN EMILY FELICITY BAILEY |
| AND THE QUEEN |
| Hearing: 16 September 2011 |
| Court: Ellen France, Harrison and Wild JJ |
| Counsel: V Nisbet for Applicant Bailey |
| 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 of open justice. However, her Honour went on to note:[5]
... when the principle of open justice sits at odds in a particular case with an accused person’s right to a fair trial, “[t]he public’s right to receive information, the principle of open justice, the type of information in question, its public importance and interest, its likely circulation, methods of diluting its effect on the minds of potential ... jurors, the presumption of innocence, and other issues are all to be balanced against its prejudicial effect.”[6]
If having balanced these various considerations it is determined that publication of information will jeopardise the right to a fair trial “the issue ceases to be one of balancing. The principles of freedom of expression and open justice must then be departed from; not balanced against. There is no room in a civilised society to conclude that, “on balance”[,] an accused should be compelled to face an unfair trial.[7]
Winkelmann J reiterated the inviolate nature of the right to a fair trial.[8]
[5] At [12]–[13].
[6] Citing B (CA308/00) v R [2002] 1 NZLR 387 (CA) at [11].
[7] B (CA308/00) v R at [11].
[8] R v Bailey at [14].
Applying these considerations to the present case, Winkelmann J said there was little articulation by the defendants of how publication could prejudice their ability to receive a fair trial beyond “the assertion that it would”.[9] The Judge, having considered the arguments made and having reviewed the judgments in issue, identified the following material in the judgments as posing a risk to a fair trial:[10]
[P]ublication of inadmissible evidence, publication of comment by either the police or a judicial officer as to the probative effect and strength of evidence, and finally publication of anything relating to an accused’s character which is irrelevant to the subject matter of the proceeding. I add the latter category out of caution as I have not identified any such evidence in the judgments.
[9] At [18].
[10] At [22].
Winkelmann J went on to say that those risks could be eliminated by maintaining suppression in respect of such parts of the judgments as was necessary to prevent publication of the following categories of evidence:[11]
(a)Any judicial comment upon the probative effect or strength of evidence;
(b)Any record of police fears or police assessment of the strength of evidence;
(c)Narration of informant information or police beliefs based upon it;
(d)Discussion regarding the basis for seeking interception warrants under the Crimes Act; and
(e)Any inadmissible evidence.
[11] Ibid.
The parties were asked to reach agreement on the identification of the passages thereby affected.
In the judgment of 15 September 2011, the Judge declined an application for an adjournment of the hearing. Winkelmann J did give the parties some time for defence counsel to work through the judgments after the Crown submissions. (The Crown had notified the parties of the passages it had identified the previous day.)
Winkelmann J then made orders rescinding the existing suppression orders and substituting more limited suppression orders in relation to specific paragraphs of the judgments of 7 October 2009 (High Court), 15 December 2009 (High Court), 19 November 2010 (this Court) and 2 September 2011 (Supreme Court). The detail of these suppression orders is set out in Winkelmann J’s judgment of 15 September 2011.[12]
The application for leave
[12] At [8]–[12].
The application for leave was brought on the basis there is an initial question about this Court’s jurisdiction to hear the application. In terms of the proposed substantive appeal, the issues to be raised as set out in the application for leave are as follows:
a.Lack of time to prepare for the hearing on the Crown’s application for the lifting of suppression orders
b.The learned judge failed to give due weight to the sub judice rule
c.The learned judge failed to give due weight to fair trial issues given the trial will be before a jury
d.The learned judge was plain wrong
The application was opposed by the Crown.
We first discuss the jurisdiction issue and then deal with the proposed grounds of appeal.
Jurisdiction
The Court’s jurisdiction to hear the proposed appeal is founded on s 379A(1)(ba) of the Crimes Act. That subsection provides that an application for leave to appeal prior to trial may be made in relation to:
[T]he making of an order under paragraph (a) or paragraph (b) of section 138(2) or section 140 of the Criminal Justice Act 1985, or the refusal to make any such order:
Section 138(2) of the Criminal Justice Act, in turn, provides that:
Where a court is of the opinion that the interests of justice, or of public morality, or of the reputation of any victim of any alleged sexual offence or offence of extortion, or of the security or defence of New Zealand so require, it may make any one or more of the following orders:
(a)an order forbidding publication of any report or account of the whole or any part of—
(i)The evidence adduced; or
(ii)The submissions made:
(b)an order forbidding the publication of the name of any witness or witnesses, or any name or particulars likely to lead to the identification of the witness or witnesses:
(c)subject to subsection (3) of this section, an order excluding all or any persons other than the informant, any Police employee, the defendant, any counsel engaged in the proceedings, and any officer of the court from the whole or any part of the proceedings.
Because it is relevant to the argument, we also note that s 138(5) provides that:
The powers conferred by this section to make orders of any kind described in subsection (2) [of this section] are in substitution for any such powers that a court may have had under any inherent jurisdiction or any rule of law; and no court shall have power to make any order of any such kind except in accordance with this section or any other enactment.
The jurisdiction issue arises because the Crown says the suppression orders were not made under s 138(2). Rather, the Crown submits, they were made in the exercise of the Court’s inherent jurisdiction. On this basis, there is no jurisdiction to seek leave to appeal under s 379A(1)(ba).[13]
[13]The Solicitor-General of New Zealand v Siemer [2011] 3 NZLR 101 (HC), and see Taylor v Attorney-General [1975] 2 NZLR 675 (CA) and R v Coleman [1996] 2 NZLR 525 (CA) at 527.
Mr Hirschfeld and Mr Fairbrother, who particularly pressed this point for the applicants, submit that it is at least arguable that s 138(2) applies. Mr Hirschfeld emphasises that s 138(2) deals with evidence adduced and submissions made in Court. As the judgments in issue deal with the same evidence and submissions, s 138(2) arguably applies. He also suggests that s 138(5) supports this argument. Mr Fairbrother refers to R v B(CA459/06) and Television New Zealand Ltdv Solicitor-General[14] as illustrations of cases where pre-trial suppression issues have been dealt with on appeal.
[14]R v B (CA459/06) [2008] NZCA 130, [2009] 1 NZLR 293 and Television New Zealand Ltd v Solicitor-General [1989] 1 NZLR 1 (CA). In R v B, the Court records that the orders in issue were sought under ss 138 and 140 (at [4]). TVNZ involved an appeal by TVNZ against the grant of an interim injunction albeit in the pre-trial context.
Having heard from counsel on this point we think it appropriate to record the essence of the arguments made. However, our view is that it is not necessary for us to determine the jurisdiction point. That is because, for the reasons we now discuss, regardless of the jurisdiction issue, the proposed appeal has no merit. Accordingly this point, albeit of importance, can wait for determination in another case.
We turn then to the merits of the proposed appeal.
The proposed grounds of appeal
The first issue raised is the time frame within which this matter has been dealt with. This point was given particular emphasis by Mr Hirschfeld and Mr Fairbrother. Mr Hirschfeld’s position is that the issue of suppression has only been raised more recently. He says the applicants should have had more time to consider the material in totality and with all counsel having an opportunity to confer together. Mr Fairbrother says he simply has not had time to consider the judgments and to get instructions from Mr Iti.
The point made by Winkelmann J in declining the adjournment application on 15 September 2011 has some force here. As she held, there has been ample time for counsel to consider the judgments and counsel have had some of the judgments in issue for years. The Supreme Court decision is obviously much more recent and the issue of ongoing suppression moved on at some pace since the release of that judgment. However, apart from Mr Fairbrother, counsel have all been involved for some time. They all are, as Mr Hirschfeld appropriately accepted, familiar with the material. Even Mr Fairbrother’s involvement dates from February of this year which is not an inconsiderable period of time. In any event, the principles relating to name suppression that are involved are well established and well known to counsel. It is not a particularly difficult task to assess the material in the judgments against those principles. Accordingly, we do not see that any issues about the time frame can give rise to a successful appeal point.
The next proposed appeal ground relating to the sub judice principle was a point raised by Mr Fairbrother. His concern was that the media might be unclear as to exactly what matters were in issue at the trial. Mr Fairbrother accepts that the point has been met through the provision of an amended indictment with particulars. This proposed ground of appeal can be put to one side.
The next two proposed appeal grounds, the weight given to the applicants’ right to a fair trial and the correctness of the decision, really run together. In their submissions, counsel emphasised varying aspects. We think it fair to say the central concerns are, first, that release of the information in the judgments at this stage even with redactions will paint a negative picture of the applicants, especially because of the potential for inaccurate reporting. Secondly, there is a concern that, given the unique features of the case and the publicity to date, the media interest in the matter is unlikely to have dissipated by the time of the trial, indeed, the contrary is likely.
The Judge’s decision whether or not to maintain the existing suppression orders involved the exercise of a discretion.[15] To succeed on an appeal from such a decision, the applicants would have to show an error of law or principle; that irrelevant principles have been taken into account or relevant considerations ignored; or that the decision is plainly wrong.[16]
[15]Lawrence v R [2011] NZCA 272 and Rowley v CIR [2011] NZCA 160; leave to appeal refused Rowley v CIR [2011] NZSC 76.
[16]Kacem v Bashir [2010] NZSC 112, [2011] 2 NZLR 1 at [32] per Tipping J for Blanchard, Tipping and McGrath JJ.
There is no suggestion the Judge erred in terms of the principles she applied. That is not surprising given Winkelmann J plainly had the right to a fair trial at the forefront of her consideration. That is reflected in the Judge’s decision that there should be ongoing suppression of some of the material in the judgments.
Nor is it suggested irrelevant factors were taken into account or relevant factors ignored. That leaves the argument that the decision was plainly wrong. However, none of the concerns raised take matters beyond a fairly generalised preference for the maintenance of the status quo. We accept the balance may have been different if the trial date was closer.[17] But, even then, it is relevant that at no point have the applicants pointed to passages in the judgments prejudicial to their fair trial rights.
[17]The trial date is about five and a half months away. This is a little inside the six to eight month period identified in Gisborne Herald Co Ltd v Solicitor-General [1995] 3 NZLR 563 (CA) at 571 as the period beyond which it is hard to conceive of the effects of publication surviving.
In these circumstances when there is, as the Judge said, a public interest in publication of the material, we concluded that the proposed appeal had no merit. Accordingly, without determining the jurisdiction issue, we dismissed the application for leave to appeal.
Solicitors:
Enterprise Law, Auckland for Applicants
Crown Law Office, Wellington for Respondent