Barwick v Police
[2020] NZHC 2718
•15 October 2020
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 Cafe in Sydenham, which was broken into early on June 11. Money from the till, an iPhone and a Bluetooth speaker were stolen.
[6]Below that, there is the invitation:
READ MORE:
* Christchurch man confronts home intruder at 3am
* The last thing hospo needed: Burglars rip off 50 Christchurch eateries in 6 weeks
* Eateries who spent time and money on delivery services crushed
[7] Following that is a picture of two people, apparently standing within their business premises, with the caption “[“…”] and [“…”], owners of Grater Goods, say a burglary in June this year added to the stress of post-lockdown business life”.
[8]There is then this report:
On July 8, a burglar used a crowbar to break through the front sliding door of the Boxed Quarter complex in St Asaph St. Thai Box owner Rene Bell earlier told Stuff the burglar got behind the counter, “ransacking” it.
He allegedly stole four Bluetooth speakers worth $200 each, a tablet used for UberEats, a restaurant tablet, several cellphones, a 1 litre bottle of Bacardi rum and some tequila.
A week later, a Madras St cafe was broken into but nothing was stolen.
About an hour later, the same offender allegedly broke through the front door of Boulevard Cafe in Worcester Bvld and took money from the till and the cashbox.
Hospitality New Zealand national business development manager Amy McLellan-Minty said at the time it was “hugely disappointing” to see hospitality operators targeted when they were already under considerable strain due to the Covid-19 pandemic.
Barwick has been denied bail and was remanded in custody until his next court appearance in December.
An appeal against the bail decision was heard in the High Court on Thursday. The judgment has been reserved.
[9]The bail appeal hearing took place on Thursday 1 October 2020.
[10] In both the application and counsel’s support memorandum, Ms Chalmers asked for an order that Stuff take down evidential material, including CCTV footage, relating to Mr Barwick’s criminal case. Counsel argued the publication of the evidence impinges upon his fair trial rights and creates circumstances where a complainant’s reliability might be significantly questioned.
[11] The submissions of Mr Stewart for Stuff in opposition to the application are reflected in the discussion that follows.
Discussion
[12] This application was made to the High Court because Ms Chalmers proceeded on the basis she had to rely on the High Court’s inherent jurisdiction to make the order sought. The proceedings are currently before the District Court. Mr Stewart pointed out the District Court has, on numerous occasions, determined it has an inherent power to order takedown pursuant to its inherent powers to protect the fair trial process.1 Stuff however did not object to the application being determined by the High Court. I proceed accordingly.
[13] The High Court has an inherent jurisdiction to make a takedown order, as Osborne J succinctly summarised:2
The High Court has inherent jurisdiction to make a take-down order.3 In considering an application for a take-down order, the Court must balance the right of the media to freedom of expression against the defendant’s fair trial rights and the proper administration of justice generally.4 The Court should not exercise its inherent jurisdiction to make such an order lightly, and should only do so in cases where there is a real risk to a person’s fair trial rights.5
[14] The owner of the Thai Box is reported describing the way a break-in occurred and certain items were taken. There is a reference to other premises having been broken into. At any trial, there will be evidence, presumably from the owners, as to what they observed of break-ins and any items that were taken.
[15] I cannot see how reference to such evidence in the Stuff articles would prejudice fair trial rights. A Judge and/or jury, in the unlikely event the trial now takes place before a jury, will hear comprehensive direct evidence as to the break-ins and any items that were taken.
[16] Ms Chalmers said at trial there will be no issue as to whether the burglaries actually occurred. As far as any trial of Mr Barwick is concerned, the issue will be
1 See R v Scott [2017] NZDC 13936, cited in R v Lyttle [2017] NZHC 2426 at [13]; R v Kelly [2018] NZDC 20404 at [8]; R v Hopper [2019] NZDC 20233 at [6]; R v Manuel [2019] NZDC 23947 at [13]; R v Scott [2019] NZDC 24410 at [5].
2 R v Morris-Bamber [2020] NZHC 2534 at [3].
3 Lyttelton v R [2015] NZCA 279, [2016] 2 NZLR 21 at [13].
4 At [36(d)].
5 Y v R [2018] NZHC 489 at [28].
whether the prosecution can prove he was the intruder. The issues will be all about identification.
[17] In the interview of the Thai Box owner there is a reference to what the CCTV footage showed. That CCTV footage will be evidence the prosecution will produce at trial. The Thai Box owner is reported expressing an opinion about what it showed. His expressions of opinion will not be evidence at trial. It will be the CCTV footage which is the evidence and it will be for the Judge or jury to decide what it shows.
[18] There is a report in the articles as to the distress and costs certain business owners were put to as a result of the burglaries. Again, such expressions will not be evidential material. Statements from business owners as to the emotional impact of the burglaries will not be evidence at trial because they will not be evidence as to what they observed of the break-ins and the alleged thefts associated with them.
[19] In the articles there are some expressions of opinion in which there is an implicit or inherent pre-judgement of what is likely to be at issue at trial. In the articles it is said the same offender was involved in the burglary of a number of eateries or cafes.
[20] Mr Barwick is facing numerous charges of burglary of similar type business premises. He has the presumption of innocence as to all charges. The prosecution will seek to prove he was the intruder who committed each of the burglaries he is charged with.
[21] With those charges before the Court, the media should not be reporting that it was the same burglar who committed a number of these burglaries. However, to the extent it could be said the articles included an expression of opinion to that effect, they did not include “evidential material” that would ultimately be produced at trial. The material thus cannot be categorised as “evidential material” of the sort Ms Chalmers says Stuff should be ordered to take down.
[22] Furthermore, I do not consider that, to the extent there has been a brief assertion to the effect that the same burglar committed a number of these burglaries, it has the
potential to prejudice a fair trial. Mr Barwick has elected trial by Judge alone. Judges, by their training and all the experience that has qualified them to be appointed as Judges, know their determination as to whether the prosecution has proved a criminal charge beyond reasonable doubt has to be made on the basis of only relevant and admissible evidence. Judges also know their determinations must be made without sympathy for the victims of alleged criminal offending and without prejudice against the person charged. It is unlikely a Judge at trial would even be conscious of the detail that had appeared in a brief article on Stuff such as counsel complains of. That is especially so when Mr Barwick’s trial is unlikely to take place for many months.
[23] The article refers to the fact Mr Barwick is facing numerous charges and the specific nature of those charges. The article reported he had been denied bail but had appealed against that decision. The media were quite entitled to report such matters. That is quite within their role in ensuring there is open justice as to matters before the Court. It is not “evidential material” of the sort counsel says Stuff should take down.
[24] No order was made for the suppression of Mr Barwick’s name. The media were entitled to report the outcome of his applications for bail and the fact of an appeal provided they recognised and abided by the restrictions on what might be published with regard to bail as set out in the Bail Act 2000.
[25] In oral submissions, Ms Chalmers suggested there was prejudice in that the owner of the Thai Box had identified the burglar as a male. Having watched the CCTV footage which accompanied the Stuff article, I consider the potential for such an assumption to unfairly prejudice Mr Barwick at trial is exceedingly remote. It will be for the jury to decide what they make of the actual CCTV footage which the owner was relying on and whether it identifies the burglar shown on CCTV footage as a man. The person shown had their face largely covered and was wearing gloves. Ms Chalmers may seek to persuade a Judge, with all that was shown of the burglar, the way the burglar was dressed, the way the burglar moved, the burglar’s apparent physique and so on, the burglar was in fact a woman. If a Judge or jury considers that a reasonable possibility, they are most unlikely to be influenced in their assessment by the fact that, on Stuff many months before trial, the owner of the Thai Box had referred
to the burglar as a male. Again, what the Thai Box owner said to Stuff about this would not be evidence at trial.
[26] Stuff’s report, that Mr Barwick is facing numerous charges of burglary, will not prejudice Mr Barwick’s fair trial rights. As matters stand, a Judge or jury will know he is facing numerous charges of burglary. Because of common features of the alleged offending, the period over which the burglaries occurred and the claimed identification of Mr Barwick as the burglar, it is likely there will be one trial on all charges he currently faces.
[27] Ms Chalmers suggested, at some stage in the future, there could be an order for severance of his trial on certain charges so that a Judge or jury would not necessarily know the full extent of the charges brought against him. At this stage, that is entirely speculative and probably a remote possibility.
[28] It is consistent with the principle of open justice that the media be able to report, in a general way, on all the charges a defendant faces when he is the subject of criminal proceedings before the Court. That principle should not be diminished through limiting the right of the media to report on proceedings currently before the Court because of a speculative possibility that a trial might ultimately proceed on a much more limited basis.
[29] Ms Chalmers submitted that Mr Barwick’s fair trial rights might be prejudiced because, with this item still on Stuff, other people or businesses might come forward with complaints of alleged criminal activity which could lead to further charges and thus issues as to the admissibility of evidence in relation to such matters.
[30] Again, that is speculative. The potential for publicity as to the commission of a crime or the alleged commission of a crime, or the fact a defendant is facing charges as to an alleged offence is not normally a reason for suppressing publication as to such matters. Indeed, it is often a reason for permitting publication.
[31] There is pre-trial publication of evidential material whenever there has been reporting in the media of an apparent offence, for example a homicide, arson or wilful
damage of property. Such reports may be accompanied by photographs or reports of what people say they observed or experienced.
[32] There is pre-trial publication of evidential material whenever there has been reporting in the media of a criminal trial and of the evidence adduced at that trial, and subsequently a retrial. Such publication of pre-trial evidential material was common place some years ago when there was reporting of preliminary or deposition hearings. Very rarely was it suggested such publication could subsequently prejudice fair trial rights. The fact there has been earlier reporting in the media of evidence specific to the charges does not normally mean a defendant’s fair trial rights at a retrial will be prejudiced.
[33] To the extent there is a reference to what will be evidence at trial in the Stuff articles, namely the CCTV footage, it is not so pervasive or dramatic as to have an impact on a potential jury pool that it would prejudice Mr Barwick’s fair trial rights in the unlikely event of his being able to change his election and proceed to a jury trial. The CCTV coverage, on its own, does not identify Mr Barwick as the burglar.
[34] At this stage, the possibility that the charges against Mr Barwick will proceed to a trial before a jury is remote. If this happens, his 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 Judge’s strictest of directions that the jury must not make any enquiries of their own as to what is at issue at trial will also protect his fair trial rights. That direction will be reinforced through the oath jurors must now take not to make enquiries of their own and the enactment of the Contempt of Court Act 2019 which makes it an offence for a juror, during a trial period, to research information relevant to the trial.6 There will also be the frequent reminders to a jury at a trial that the Crown has the burden of proof. The defendant is presumed innocent unless and until a jury is satisfied that the prosecution has proved he is guilty of the charged offence beyond reasonable doubt.
6 Contempt of Court Act 2019, s 13(1)(a).
[35]For all these reasons, the application for a takedown order is denied.
[36] With an unsuccessful application for a takedown order, there is a risk that the making of the application could, in itself, be of public interest and, through reporting of the result, draw the public’s attention to the reports which the application relates to. I do not however consider that any such report will prejudice Mr Barwick’s fair trial rights. Ms Chalmers said she was not asking for suppression of the judgment on this application.
Solicitors:
K L Chalmers, Barrister, Christchurch R K P Stewart, Barrister, Christchurch.
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