C v Police HC Rotorua CRI 2007-463-152
[2007] NZHC 1545
•21 December 2007
This case has been anonymized
IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY
CRI 2007-463-152
BETWEEN C
Appellant
ANDNEW ZEALAND POLICE Respondent
Hearing: 21 December 2007
Counsel: J P Temm for Appellant
M Corlett and C Macklin for Respondent
W Akel for TVNZ and TV3
Judgment: 21 December 2007
(ORAL) JUDGMENT OF HEATH J
Solicitors:
Crown Solicitor, Rotorua Simpson Grierson, Auckland Counsel:
J P Temm, Rotorua
C V NEW ZEALAND POLICE HC ROT CRI 2007-463-152 21 December 2007
The appeal
[1] Mr C appeals against a judgment given by Judge Thorburn in the District Court at Rotorua on 17 December 2007. The decision was given in the course of a preliminary hearing in respect of those alleged to have been complicit in the death of Nia Glassie, a young girl aged three and a half years at the time of her death.
[2] During the course of that hearing, Mr Temm, for Mr C supported by counsel for co-accused, made an application to suppress all evidence adduced at the hearing. That application was dismissed. It is from that decision that the appeal is brought.
Jurisdiction
[3] Jurisdiction to make a wide-ranging suppression order of the type sought in this case is to be found in s 138 of the Criminal Justice Act 1985. Section 138(1) and (2) provide:
138 Power to clear Court and forbid report of proceedings
(1) Subject to the provisions of subsections (2) and (3) of this section and of any other enactment, every sitting of any court dealing with any proceedings in respect of an offence shall be open to the public.
(2) 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 member of the Police,
the defendant, any counsel engaged in the proceedings, and any officer of the court from the whole or any part of the proceedings.
Background
[4] Mr C , along with other alleged co-offenders, is accused of killing Nia Glassie. She died as a result of a subdural haemorrhage. Mr C , at the conclusion of the preliminary hearing, was committed to the High Court for trial on a charge of murder.
[5] Mr Temm brings the appeal on the grounds that the Judge gave inadequate weight to fair trial issues in reaching his decision. As a result, Mr Temm submits that the Judge’s decision must be characterised as plainly wrong. If the decision were plainly wrong, it would justify appellate intervention.
[6] The appeal was filed on 19 December 2007. The Judge made an order granting blanket suppression on an interim basis pending the decision of this Court on appeal. A conference was held yesterday on an urgent basis. I directed the appeal to be heard today because, if it were not heard promptly, the interim order pending determination of the appeal could have had the same effect as if a final order had been made.
[7] Without opposition, I gave leave for TVNZ and TV3 to intervene, as representations of the media, to oppose the appeal. Mr Akel has appeared and made submissions on their behalf.
[8] The circumstances in which Nia Glassie died have been reported extensively in the media throughout New Zealand. That reporting has occurred in the context of a vigorous public debate on the topic of child abuse generally and its causes. Understandably, the evident public dismay and horror at the nature and number of alleged child abuse cases coming before the courts, has created an emotionally charged atmosphere. Nevertheless, there is a genuine public interest in the progress of the charges arising out of her death through the court system.
[9] Ordinarily, the public interest in ensuring transparency of the judicial process (known as the open justice principle) will apply to allow publication of evidence not specifically suppressed on fair trial or other grounds by the presiding officer at a preliminary hearing. In this case it is the extent of publicity to date and what Mr Temm terms as the “extreme facts” involved, that provoked the unsuccessful application for full suppression.
The decision under appeal
[10] Judge Thorburn, in giving his decision in the District Court, was alert to the scope of his powers under s 138 of the Act. He was concerned to address the question whether it was necessary, in the interests of justice, for suppression to be ordered on the wide and unusual basis sought. The Judge took into account fair trial issues and was conscious, in particular, of the matters raised by Mr Temm concerning the impact that any reporting of the facts may have on the pool of people in Rotorua and its surrounds from which a jury would be drawn.
[11] Nevertheless, having taken into account fair trial issues, Judge Thorburn concluded that the ability to make specific suppression orders to protect fair trial issues would answer adequately any concerns of the accused. For those reasons, the Judge declined to make the order sought.
Submissions for appellant
[12] In submitting that the judge erred, Mr Temm has emphasised the widespread publication of facts to date, the emotive way in which those facts have been presented in some publications, the fact that the preliminary hearing does not represent evidence at trial and any order would not prevent the media from reporting at trial and the need to give fair trial values predominance over open justice considerations.
[13] Citing Gisborne Herald Co Ltd v Solicitor-General [1995] 3 NZLR 563 (CA), Mr Temm submitted that where, on conventional analysis, freedom of
expression and fair trial rights cannot both be fully assured, it is appropriate, in a free and democratic society, to temporarily curtail freedom of media expression so as to guarantee a fair trial.
[14] Mr Temm emphasised, in particular, the potential impact on the jury pool and the relatively small population of the Rotorua area from which jurors are drawn. He noted that not only had there been reporting of facts in the past, but there has been adverse editorial comments in at least one newspaper. Both politicians and local civic leaders had offered opinions on the issues raised.
[15] Mr Temm submitted that the ordinary administration of justice techniques to address potential unfair prejudice were insufficient in this case. Those included the ability to adjourn a trial, the ability to change a venue and the ability to sequester a jury. Also, he submitted, that a strong judicial direction before summing up would not be sufficient.
[16] There are clearly challenges to the admissibility of deposition evidence, at least in respect of some of the evidence. Those issues have been addressed already in a ruling given earlier today by Judge Thorburn at the conclusion of the evidence. Some evidence has been suppressed with no opposition from the Crown because of the fair trial issues involved. The Judge declined to suppress other evidence but on an appeal against that decision being filed, made orders suppressing that evidence on an interim basis pending any appeal.
[17] The only appeal before me today is the appeal relating to the blanket suppression application. Other suppression orders made by the Judge, including the interim suppression order pending appeal arising out of today’s ruling, must stand until that appeal is determined.
Submissions for the Crown
[18] Mr Corlett, for the Crown, emphasised that fair trial concerns were adequately met by the specific orders for suppression made by the Judge and there was no good reason to make a suppression order that went further than that.
Submissions for TVNZ and TV3
[19] Mr Akel, on behalf of TVNZ and TV3, emphasised the points made by Mr Corlett. He referred to authorities which support the proposition that subject to clear fair trial issues taking predominance, open justice is the presumptive position: generally, see, R v Liddell [1995] 1 NZLR 539 (CA).
[20] Mr Akel also referred me to a decision of the Full Court of this Court in Police v Watson (High Court, Wellington, AP18/98, 30 November 1998) in which Heron and Doogue JJ held that a blanket suppression order was not justified. Their Honours noted, in respect of a case involving the death of two young people in the Marlborough Sounds, that the prospect of jurors being influenced to such a degree that they might close their mind to the evidence was remote and did not justify the orders sought.
[21] Mr Akel also referred to research undertaken by the Law Commission into the effect on juries of media issues. In particular, he referred to the report Juries in Criminal Trials, November 1999. He submitted that that reinforced the submission he made.
Analysis
[22] In analysing the competing contentions, I am subject to time constraints. I have taken into account all of the submissions made but will not be able, in the course of this decision, to go through each submission in turn. Rather, I simply analyse the case as I see it, to express my reasons with as much clarity as possible in the circumstances.
[23] Mr Temm has raised justifiable concerns, particularly by reference to an intemperate editorial which appeared in the Bay of Plenty Times on 24 November
2007 in terms that must cause concern to any person as to whether readers might be influenced against the accused in this case. However, this Court, in approaching the question of whether a suppression order should be made, must proceed on the assumption that responsible editors will ensure a fair and accurate reporting of
evidence given at a preliminary hearing. It must also work on the assumption that responsible editors will ensure a balanced account is published and take account of the possibility of sensational material adversely influencing a jury.
[24] While the general rule is that open justice considerations take primacy, the presumption of innocence is also important at the pre-trial stage: see, Proctor v R [1997] 1 NZLR 295 (CA). And, as I have already indicated, if fair trial concerns exist they will trump open justice considerations.
[25] In addressing Mr Temm’s points, the issues come down to one basic proposition – that reporting of the evidence, other than that expressly suppressed, is likely to influence a jury adversely against the accused with no realistic options being available to temper any adverse comment that may be made.
[26] There are a number of ways in which any such issues can be addressed. Although I accept, in the context of a case that has received national publicity, this option may have difficulties, there is the ability to make an order changing the venue so that particular comment within a local area can be put to one side. The most extreme remedy is for the court to stay the criminal prosecution completely on the ground that pre-trial publicity has rendered a fair trial impossible. That is a rare and extreme step but one which the courts would not hesitate to take if pre-trial publicity was such as to impugn the ability of any accused to receive a fair trial.
[27] That is an additional and important factor and one to which Mr Temm did not refer as a means of protecting the interests of accused people, presumed to be innocent, to obtain a fair trial.
[28] In approaching the appeal, I have regard to the fact that the Judge made no error of law. He took into account only relevant factors and took into account no irrelevant factors. On that basis, as Mr Temm concedes, it must be established that he was plainly wrong before any appellate Court could intervene.
[29] I am not satisfied that the Judge was plainly wrong. The Judge took into account all fair trial considerations but held ultimately that those considerations did
not justify a blanket suppression order. What the Judge did was to make express and specific suppression orders to meet fair trial concerns, leaving an ability to report the balance of the evidence in accordance with open justice and freedom of expression principles.
[30] Not only do I hold that the Judge was not plainly wrong but, while it is strictly unnecessary to do so, I also endorse his decision as a correct application of the principles set out in s 138 of the Criminal Justice Act. There was no sufficient reason in this case to make a wide suppression order, of the type sought, on “interests of justice” grounds.
[31] Having reached that point, it is necessary, particularly having regard to the editorial to which Mr Temm referred me, to make some general comments.
[32] I emphasise the need for responsible editors to ensure that any reporting does not occur in a sensational manner that could jeopardise a fair trial. It is not for this Court to seek to edit what is published. Editors must take responsibility for their own decisions. Ultimately, if media reporting were too sensational and reached the point of impugning the ability to obtain a fair trial, the Court could stay the prosecution and no trial would result.
[33] I have given this decision in a manner which will allow reporting of it in full, without any suppression. I do, however, suppress from publication anything said in the course of submissions in relation to the evidence given at the preliminary hearing other than what is referred to in this judgment and what can be reported having regard to the extant suppression orders made in the District Court.
Result
[34] For the reasons I have given, the appeal is dismissed.
P R Heath J
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