Bitossi v R

[2014] NZCA 595

IN THE COURT OF APPEAL OF NEW ZEALAND

CA699/2014
[2014] NZCA 595

BETWEEN	ANGELO DOMINIC BITOSSI Appellant
AND	THE QUEEN Respondent

Hearing:	3 December 2014
Court:	Harrison, Stevens and French JJ
Counsel:	D A Ewen for Appellant S C Carter and H K Goodhew for Respondent
Judgment:	3 December 2014

ORAL JUDGMENT OF THE COURT

AThe appeal is dismissed.

BThe application for an interim suppression order in this Court is dismissed.

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REASONS OF THE COURT

(Given by Harrison J)

1. Angelo Bitossi is presently on trial in the High Court at Wellington on a charge of arson.  It is alleged that he burned down a storage building in Kilbirnie in April 2014.  Within the building were a number of units containing personal possessions of individual tenants.  There was widespread damage to the building estimated at over $3 million in value.  Also the possessions of unit tenants were destroyed or damaged. 

2. At the commencement of trial Mr Bitossi applied to the trial Judge, Simon France J, for an order suppressing his name.  The ground for Mr Bitossi’s application was that publication of his unusual surname would be likely to endanger the safety of himself, his partner or his family.  In relation to himself he relied on the existence of text messages sent to him from an associate in April 2014.  In relation to his partner and family, he relied on his unusual surname. 

3. On 28 November Simon France J dismissed Mr Bitossi’s application for continued suppression of publication,[1]  but subsequently granted interim suppression until this Court determined an appeal or until verdict – whichever comes first – following advice from Mr Bitossi’s counsel, Mr Ewen, of an intention to appeal.[2]  Given the public interest in the case and its public importance, we granted an urgent fixture to hear the appeal this morning.  When the appeal was called Mr Ewen sought an adjournment which we declined. 

   [1]R v B [2014] NZHC 3011.

   [2]R v B HC Wellington CRI-2014-085-4184, 1 December 2014 (Minute of Simon France J (Name Suppression)) at [1].

4. In support of Mr Bitossi’s appeal Mr Ewen based his argument on two strands.  First, he relied on text messages sent to Mr Bitossi by his associate in April 2014.  Second, and perhaps more importantly, he relied on the drawing of an inference from the fact that, given the large number of individuals who were adversely affected by the fire in the way that they were with loss of their possessions, there must be a likelihood that one or more of the victims will seek to exact a reprisal.  He submitted that the sheer number of victims heightens the risk of reprisal. 

5. Mr Ewen submitted that the Judge applied an incorrect test when dismissing Mr Bitossi’s application for suppression of name.  Among other things the Judge said this:[3]

   Victims will see that society’s normal way of determining people’s responsibility for offending, and holding them accountable if responsibility is proved, as underway.  There is no evidential basis to suppose a victim or anyone else will take reprisal action against B’s family.  I consider there is no evidential basis to suggest there is any risk, and I do not consider the likely high profile of the trial will affect things.   

   [3]R v B, above n 1, at [5].

6. Mr Ewen submitted that Simon France J was wrong to cast the test in terms of a risk of harm.  He said the Judge should have asked instead whether there was a risk of endangerment.[4] 

   [4]Mr Ewen submitted that this required the court to consider whether there was a “risk of a risk” to safety.

7. Mr Ewen’s argument is contrary to the plain terms of the Criminal Procedure Act 2011.  The presumption of open justice applies subject to limited exceptions.[5]  Of particular importance is the requirement under s 200(2)(e) that a court may make an order for suppression only if it is satisfied publication would be likely to endanger the safety of any person.  In our judgment Simon France J did not err.  The question of endangerment must be considered in its factual context. 

   [5]Criminal Procedure Act 2011, s 196.

8. We agree with Ms Carter for the Crown that speculation about how a victim or victims might react to publication of Mr Bitossi’s name falls well short of satisfying the test.  We are satisfied that the Judge was correct to require an evidential basis for proof of likelihood of endangerment.  In this case the only evidence was, as we have noted, from an associate of Mr Bitossi who knows his identity in any event.  There was no evidence, as Ms Carter emphasised, of threats or danger from any member of the public since the texts were sent in April 2014. 

9. For these brief reasons the appeal is dismissed.  The order made in the High Court now lapses. 

Postscript

1. At the conclusion of delivery of judgment Mr Ewen applied for a further interim suppression order in this Court until 5 pm today to enable Mr Bitossi to apply to a single judge of the Supreme Court for an order granting leave to appeal.  He recognised that the Court has a discretion to grant this order.  He said it should be exercised on the ground that publication of Mr Bitossi’s name in accordance with our judgment may cause irreparable damage and there was, as he had emphasised in support of the substantive appeal, an endangerment to safety. 

2. We are not satisfied that we should exercise our discretion in Mr Bitossi’s favour.  As will be plain from our substantive judgment, we regard his appeal as unmeritorious and without substance.  We are not satisfied that an application to the Supreme Court would satisfy the criteria for granting leave.  We are satisfied that final disposition of the appeal is in the public interest and that no further benefit would be served by extending a period of suppression.  

3. The application for an interim suppression order in this Court is dismissed. 

Solicitors:
Crown Law Office, Wellington for Respondent