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)

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.
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.
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].
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.
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…

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 Bitossi v R

Details

AGLC: Bitossi v R [2014] NZCA 595
Case: [2014] NZCA 595
Decision Date: 3 December 2014

CaseChat Overview and Summary

Angelo Bitossi appeals against a decision of the High Court at Wellington dismissing his application for a suppression order in relation to the publication of his name in connection with his trial for arson. The case involves an application for suppression of publication of Bitossi's name on the basis that it would endanger his safety or the safety of his family. The appeal was heard by the Court of Appeal of New Zealand, consisting of Harrison, Stevens, and French JJ. The central legal issues were whether the trial judge correctly applied the legal test for determining whether publication would be likely to endanger safety, and whether there was sufficient evidence to support such a claim.

The Court of Appeal found that the trial judge had correctly applied the legal test under the Criminal Procedure Act 2011, which requires that a suppression order can only be made if it is satisfied that publication would be likely to endanger the safety of any person. The Court held that the trial judge was correct to require evidence of a likelihood of endangerment rather than mere speculation about potential reprisals. The only evidence provided was a text message from an associate of Bitossi, and there was no evidence of actual threats or danger from the public. The Court concluded that the appeal was unmeritorious and without substance, as the trial judge's decision was in accordance with the law and properly applied to the facts of the case.

The Court of Appeal dismissed the appeal and also dismissed an application for an interim suppression order in the Court of Appeal. The Court found that further suppression was not warranted as the appeal was unmeritorious, and final disposition of the appeal was in the public interest. The suppression order granted by the High Court lapsed, and no further interim suppression order was granted.

Orders