C v Police HC Rotorua CRI 2008-463-8

[2008] NZHC 104

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CRI 2008-463-000008

C

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         8 February 2008

Appearances: J P Temm for  Appellant

F Pilditch for  Respondent
W Akel for  TVNZ and TV3

Judgment:      12 February 2008 at 2:00PM

(RESERVED) JUDGMENT OF ANDREWS J

This judgment was delivered by me on

12 February 2008 at  2:00pm

pursuant to r 540(4) of the High Court Rules.

………………………………………..

Registrar/Deputy Registrar

Date:   ………………………………

Solicitors:           Gordon Pilditch, PO Box 740, Rotorua

Simpson Grierson, Private Bag 92518, Wellesley Street, Auckland

Counsel:            J P Temm, PO Box 1124, Rotorua

C V NZ POLICE HC ROT CRI 2008-463-000008  12 February 2008

Introduction

[1]      C    appeals  against  a  ruling  given  by  District  Court  Judge Thorburn on 21 December 2007, that the evidence of two witnesses adduced at the depositions hearing of those charged in respect of the death of Nia Glassie, is that evidence is set out in the transcripts of interviews with the Police on 23 July 2007, would not be subject to a prohibition on publication.

[2]      In the course of the depositions hearing counsel for Mr C  , supported by counsel for his co-accused, applied for an order that all evidence adduced at the hearing be suppressed.  The Judge dismissed that application in a ruling given on 17

December 2007.

[3]      Mr C   appealed against the Judge’s ruling.  The appeal was dismissed in a judgment delivered by Heath J, on 21 December 2007.    Heath J’s judgment was drawn on substantially in argument before me.  It is not necessary to repeat what His Honour said.  However, this judgment also draws on the principles as set out in the judgment, and must be read in the context of that judgment.

[4]      In a Minute issued on 21 December 2007, Heath J invited counsel for the accused to make submissions to the Judge at the conclusion of the hearing, as to specific orders for suppression of evidence on their trial grounds.  Counsel for Mr C   then applied to the Judge for orders prohibiting publication of some, or all, of the evidence of particular witnesses.  In his ruling given on 21 December 2007 the Judge prohibited publication of certain evidence.  He ruled that there would be no prohibition on publication of the evidence of two witnesses.   It is against that particular ruling that Mr C   now appeals.

[5]      It is relevant to record that the two interviews were recorded on videotape. The Judge declined media access to the videotapes.   No issue is taken with that order, which remains in effect.  It is also relevant to record that no issue is taken with the Judge’s ruling that there be no publication of the further evidence of the two witnesses, as set out in the transcripts of their further interviews on 1 August 2007.

Arguments on appeal

[6]      On appeal, Mr  Temm argued that there should be no  publication  of  the witnesses’ evidence.  In particular, he submitted that it was likely that there would be challenges to the admissibility of the evidence of both witnesses on the grounds that it was not probative as to the cause of Nia Glassie’s death.  Mr Temm submitted that the Judge had noted these admissibility issues, but had not taken them into account. In particular, he submitted, the Judge had failed to take into account the admissibility issues, and their potential impact on a fair trial for the accused, when balancing the competing considerations of fair trial and open justice.

[7]      Mr Akel appeared on behalf of TVNZ and TV3, as he had done before Heath J.    There  was  no  objection  to  his  appearing  at  the  present  hearing.    He submitted that it could not “for one moment” be contended that the Judge had failed to take fair trial rights into account.  The Judge noted as much at [8]:

Having heard from counsel and considered the principles in respect to the importance of open and public proceedings, against the protection of individual rights to ensure fairness of trial, I have concluded as follows, …

[8]      Mr Akel also submitted that the Judge’s noting of possible “admissibility issues” referred not to any issue having been raised  as to the admissibility (on grounds of lack of relevance, or lack of probative value) of the evidence of the two witnesses, but rather to the possibility of challenges to “out of Court statements” made by one accused about another, which tended to be corroborative of what the witnesses said.   Further, Mr Akel submitted that the Courts would not suppress evidence from a depositions hearing on the grounds that it was “arguably inadmissible”.  That would lead, he said, to a de facto general regime of suppression coming into play.

[9]      Further, Mr Akel submitted that if at some stage the witnesses’ evidence were ruled inadmissible, then the Court should fall back on the well-established principle that jurors are sensible, and listen to and act on what the Judge says to them.  They can, and do, exclude from their consideration evidence they have been told to disregard.     As  he  had  done  before  Heath  J,  Mr  Akel  referred  to  the  Law

Commission’s research on juries1.  Mr Akel also referred to the Court of Appeal’s judgment in R  v Burns (Travis) (No. 2)2, in which the Court of Appeal referred to the Law Commission’s findings.

[10]     Finally, Mr Akel submitted that much of what the two witnesses say in their statements is already publicly known.   Accordingly, publication of it would not come as a huge shock to the public.

[11]     On behalf of the Crown Mr Pilditch noted that the Crown recognises the interests both of a fair trial and of maintaining open justice.  His submissions were, therefore, to assist the Court rather than to advocate one outcome over another.

[12]     Mr Pilditch noted that the Indictment was not yet finalised.  When finalised, he anticipated that it would reflect a course of conduct – a course of physical and psychological abuse – culminating in the murder of Nia Glassie by Mr C   and his co-accused  Wiremu  C  .    On  that  basis,  he  considered  it  unlikely  that  any argument as to admissibility on the grounds of relevance or probative value would succeed.  He also noted that the Judge had characterised the witnesses’ evidence as “surely quite pivotal”.

[13]   Further, Mr Pilditch submitted that specific incidents referred to in the witnesses’ evidence will result in Counts in the Indictment.  In summary, Mr Pilditch submitted, nothing is more germane to the Crown case than the evidence of the two witnesses.

Discussion

[14]     In order for this appeal to succeed I must be satisfied that the Judge erred by failing to take into account all relevant considerations or taking into irrelevant considerations, was in error of law, or was “plainly wrong”.  Here it was contended that the Judge had failed to take into account the consideration of a possible admissibility challenge, and the implications of such a challenge for Mr C  ’ right

1   Law Commission Preliminary Paper 37 Juries in Criminal Trials (November 1999)

2   R v Burns (Travis) (No. 2) [2002] 1 NZLR 410

to a fair trial, should the witnesses’ evidence have been made public, then later ruled inadmissible.

[15]     I  am  not  satisfied  that  the  Judge  failed  to  take  a  possible  admissibility challenge into account.

[16]     First,  I  am  satisfied  that  there  is  nothing  to  suggest  that  there  was  any challenge signalled to the witnesses’ evidence as set out in their interview transcript transcripts  from  23  July  2007.      Secondly,  it  is  clear  that  such  admissibility challenges as were signalled were in relation to other statements that are, apparently, corroborative.

[17]     In his judgment the Judge noted, also, that publication of the evidence would represent publication of testimony, rather than reporting of speculation, intrigue or suggestion.  This enhanced the right of the public to know what was alleged, and on what basis.

[18]     The Judge was clearly alert to the competing considerations of the accuseds’ right to a fair trial and the publication of evidence in the public interest of ensuring transparency in the judicial process.  His conclusion was that he did not consider that the matters raised in support of the application for suppression tipped the balance so as to lead him to exercise his discretion against publication.  I am not satisfied that he was wrong in that conclusion.

[19]     In conclusion, I would repeat the note of caution sounded by Heath J, at para [32] of his judgment, as to the need  for responsible Editors to ensure that  any reporting does not occur in a sensational manner that could jeopardise a fair trial.  As he had before Heath J, Mr Temm raised justifiable concerns at the hearing before me as to the fairness of reporting to date.   As Heath J noted, if media reporting is so sensational that it reaches the point of impugning the accuseds’ ability to obtain a fair trial, the Court has the power to stay prosecution with the result that no trial would occur.

Result

[20]     For the reasons given, the appeal is dismissed.

Andrews  J