Barwick v Police - [2020] NZHC 2718

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2020-409-000140

[2020] NZHC 2718

BETWEEN
SAMUEL BARWICK

Applicant

AND

NEW ZEALAND POLICE

First Respondent

AND

STUFF LIMITED

Second Respondent

Hearing: 12 October 2020

Appearances:

K L Chalmers for the Applicant

Appearance for the First Respondent excused R K P Stewart for the Second Respondent

Judgment:

15 October 2020

JUDGMENT OF NATION J

[1] Mr Barwick faces 33 charges, mainly of burglary, in the District Court. He has elected trial by Judge alone. On 5 October 2020, his counsel in those criminal proceedings made an application to the High Court for an order requiring Stuff Ltd “to take down all evidential material, including CCTV footage, relating to the Applicants [sic] criminal case”. The application is opposed by Stuff. The Police are neutral to the application.

[2] Through an affidavit, counsel advised the Court of an item that had appeared on Stuff on 1 October 2020. It was headed “Man denies spate of burglaries at Christchurch eateries”. Under that heading was, first, an image from the CCTV record of an incident. It showed someone, likely a man, with most of his face and head covered and wearing gloves. He is shown forcing his way through a door into what

BARWICK v POLICE & STUFF [2020] NZHC 2718 [15 October 2020]

appears to be a café or similar premises. He enters the premises, opens a drawer, takes some items out, wraps them and puts them in a bin. He then removes the bin liner with the items in it.

[3] The video then records a brief statement of an apparent owner of the premises who is also shown walking within the premises. Viewers of that CCTV coverage can hear what he says about discovering the burglary. The owner says they found out about the burglary around 5.00 am, they wound back the cameras and watched him do the whole thing. The owner said the burglar sat in the communal toilet outside in the courtyard and “smashed back a bottle of Bacardi which he had taken”. He referred to the distress and costs caused by the burglary. Included in the interview was the comment “it was pretty brazen … he [broke] into four or five different businesses in this precinct …”.

[4] After that CCTV image and caption, there was a note “Christchurch’s Thai Box restaurant was one of more than 50 Christchurch restaurants and cafés targeted by late- night burglars in June and July 2020”.

[5]There is then this report:

A man has denied a raft of charges relating to a spate of burglaries at Christchurch businesses.
Samuel Barwick, 24, pleaded not guilty to 33 charges in the Christchurch District Court on Wednesday.
The charges, which included 29 of burglary, two of wilful damage, receiving stolen property and unlawfully getting into a motor vehicle, relate to break- ins at a number of commercial premises during June and July.
One of the eateries targeted was Grater Goods…

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 Barwick v Police

Details

AGLC: Barwick v Police [2020] NZHC 2718
Case: [2020] NZHC 2718
Decision Date: 15 October 2020

CaseChat Overview and Summary

In the High Court of New Zealand, Barwick v Police and Stuff Limited is a case in which Samuel Barwick, the applicant, sought an order that Stuff Ltd take down evidential material, including CCTV footage, relating to his criminal case. The legal issues that the court had to decide were whether the publication of the evidence impinges upon the applicant's fair trial rights and whether it creates circumstances where a complainant's reliability might be significantly questioned. The court held that the CCTV footage that was published is not so pervasive or dramatic as to have an impact on a potential jury pool that it would prejudice the applicant's fair trial rights in the unlikely event of his being able to change his election and proceed to a jury trial. The court also held that the CCTV footage, on its own, does not identify the applicant as the burglar. The possibility that the charges against the applicant will proceed to a trial before a jury is remote, and if this happens, the applicant's fair trial rights will be protected through the trial Judge directing that a jury must reach their verdict only on the evidence put before them at trial and must disregard anything they might have known or heard about the case previously. The application for a takedown order is denied.

The court's final orders were that the application for a takedown order be, and is hereby, dismissed. The applicant is to pay the respondents' costs of and incidental to the application, the costs to be paid on an solicitor and client basis.

Orders