Jr v Police

[2012] NZHC 3091

NOTE:  PUBLICATION OF NAMES, ADDRESSES, OCCUPATIONS, OR IDENTIFYING PARTICULARS, OF APPELLANT PROHIBITED BY S

200(4) OF THE CRIMINAL PROCEUDRE ACT 2011.

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI-2012-485-000093 [2012] NZHC 3091

BETWEEN  JR Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         20 November 2012

Counsel:         G R Fulton for Appellant

A J Ewing for Respondent

Judgment:      20 November 2012

Reasons:        20 November 2012

In accordance with r 11.5 I direct the Registrar to endorse this judgment with the delivery date of 3.00 pm on the 20th day of November 2012.

REASONS FOR JUDGMENT OF COLLINS J

Introduction

[1]      Mr R faces two aggravated burglary charges.   One charge relates to events said to have occurred on 24 August 2012.  The second charge relates to events that

are alleged to have occurred on 23 October 2012.[1]

JR V NEW ZEALAND POLICE HC WN CRI-2012-485-000093 [20 November 2012]

[1] Mr R also faces one charge of failing to answer bail and one charge of being found in an enclosed yard. There is a suggestion that Mr R is facing yet another charge. However, the exact status of that charge was not able to be determined before the hearing of this appeal.

[2]      In a decision dated 29 October 2012[2] Judge Moss granted Mr R name suppression  in  relation to  the 23  October 2012 aggravated burglary charge,  but declined to grant name suppression in relation to the 24 August 2012 aggravated burglary charge.

[2] New Zealand Police v R DC Lower Hutt CRI-2012-032-2616, 29 October 2011.

[3]      Mr R appeals the latter decision on the grounds that the Judge’s reasoning was erroneous and because a failure to grant him name suppression in relation to both sets of charges creates a real risk of prejudice to his right to a fair trial.

District Court decision

[4]      Judge Moss:

(1)accepted  there  were  similarities  between  the  alleged  aggravated burglary charges.

(2)granted interim name suppression under s 200(2)(d) of the Criminal Procedure Act 2011  (the Act) in  relation to the 23 October 2012 aggravated burglary charge.  Her Honour accepted that if she did not suppress Mr R’s name in relation to that charge there was a risk of compromising his right to a fair trial in relation to the 24 August 2012 charge.

(3)       declined to grant Mr R interim name suppression in relation to the

24 August  2012  aggravated  burglary  charge  (and  the  charges  of failing to answer bail and being in an enclosed yard).   Her Honour reasoned  that,  as  Mr  R  had  already  appeared  in  Court  on  those charges, she could not be satisfied there was a risk of prejudice to Mr R’s  right  to  a  fair  trial  in  relation  to  the  23  October  2012 aggravated   burglary   trial   if   she   declined   to   grant   him   name suppression in relation to the 24 August 2012 aggravated burglary

trial.

Grounds of appeal

[5]      Mr Fulton, who has recently been appointed to represent Mr R, respectfully

submitted that Judge Moss’ reasoning was flawed.  He points out:

(1)       Mr R has now been committed for trial in relation to the 24 August

2012 aggravated burglary charge.

(2)       If  the  two  sets  of  aggravated  burglaries  are  not  joined  then  the

24 August 2012 aggravated burglary trial is likely to take place before the 23 October 2012 aggravated burglary trial.

(3)Any publicity in relation to the 24 August 2012 aggravated burglary trial is likely to adversely affect Mr R’s right to a fair trial in relation to the 23 October 2012 aggravated burglary trial.

Crown’s position

[6]      Ms Ewing appeared for the Crown.  She submitted that there was a very real likelihood of the aggravated burglary trials being joined.  Once joinder occurs there would be no risk of prejudice to Mr R’s fair trial rights if there happened to be pre- trial publicity about the 24 August 2012 aggravated burglary charge.

Legal principles

[7]      Name suppression appeals are conducted by way of rehearing.[3]    In Austin, Nichols & Co Inc v Stichting Lodestar[4] the Supreme Court held that when the High Court conducts an appeal from a decision of a lower court by way of rehearing the High Court must reach its own views on the merits of the case and reach its own

[3] Summary Proceedings Act 1957, s 119C.

[4] Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141.

independent assessment of the merits of the appellant’s position in order to truly

conduct an appeal by way of rehearing.   However, in May v May[5]  the Court of

[5] May v May (1982) 1 NZFLR 165 (CA).

Appeal held that in relation to appeals for name suppression an appeal should only

be allowed if the District Court Judge made an error of principle, failed to consider all relevant matters, took into account irrelevant matters, or came to a conclusion that was plainly wrong.  The approach taken by the Court of Appeal in May v May was endorsed by the Supreme Court in Rowley v Commissioner of Inland Revenue.[6]

Thus, this appeal is to be determined on the basis of the May v May standards.

[6] Rowley v Commissioner of Inland Revenue [2011] NZSC 76 at [4]-[5].

[8]      The starting point when considering an application for name suppression is the presumption of openness.   The Court of Appeal had  clearly articulated this presumption prior to the commencement of the Act.[7]   In R v Liddell Cooke P for the

Court of Appeal said:[8]

...  the  starting point  must  always  be  the  importance  in  a  democracy of freedom of speech, open judicial proceedings, and the right of the media to report the latter fairly and accurately as “surrogates of the public”.

[7] Proctor v R [1997] 1 NZLR 295 (CA), Lewis v Wilson & Horton [2000] 3 NZLR 546 (CA) and

Re Victim X [2003] 3 NZLR 220 (CA).

[8] R v Liddell [1995] 1 NZLR 538 (CA) at 546.

[9]      Section  200(1)  and  (2)(d)  of  the  Act  enables  a  Court  to  prohibit  the publication of the name and identifying features of a defendant when the Court is satisfied that publication would “create a real risk of prejudice to a fair trial”.

[10]     There are two thresholds contained in s 200(4) and (5) of the Act that are relevant to the Court’s power to prohibit publication of the identity of a defendant in the circumstances of this case:

(1)Under s 200(4), when a person who is charged with an offence first appears before the Court the Court may make an interim order suppressing the publication of the name and identifying features of the defendant if the defendant “advances an arguable case” that publication of his or her identity would create a real risk of prejudice to a fair trial;

(2)      Under s 200(5), when an interim order has been made under s 200(4)

it lapses when the defendant next appears in Court and may only be

renewed if the Court “is satisfied” that publication of the identity of

the accused would create a real risk of prejudice to a fair trial.

Analysis

[11]     Judge  Moss  was  entirely  correct  when  she  recognised  that  different thresholds applied to the two sets of charges which she had to consider.  Her Honour recognised that the clear effect of s 200(4) and (5) of the Act involved different considerations, namely whether Mr R had advanced an “arguable case” in relation to the 23 October 2012 aggravated burglary charge as opposed to being “satisfied” of the need to prohibit publication of Mr R’s identity in relation to the 24 August 2012 aggravated burglary charge.

[12]     However, in my judgement, Judge Moss erred when she concluded that she was not satisfied that there was a risk of prejudice to Mr R’s right to a fair trial in relation to the 23 October 2012 aggravated burglary trial if she declined to grant name suppression in relation to the 24 August 2012 aggravated burglary trial.  My reasons for reaching this conclusion are:

(1)Whilst there may very well be a joinder of the two trials at some point in the future, at this juncture, there are two separate trials and the Court must proceed on that basis.

(2)Any publicity in relation to the 24 August 2012 aggravated burglary trial is likely to create a real risk of prejudice to the 23 October 2012 aggravated burglary trial.

[13]     Ms Ewing very properly and helpfully acknowledged that, in the absence of joinder of the two trials, this Court should proceed on the basis that there was no reason for differentiating between the two trials when considering whether or not to grant name suppression.

Conclusion

[14]     The appeal is allowed.  Mr R is granted interim name suppression in relation to the charge of aggravated burglary said to have occurred on 24 August 2012 and the charges of failing to answer bail and of being found in an enclosed yard.

[15]     These interim orders remain in force until any application to join the trials is determined at which point the issue of suppressing publication of the identity of

Mr R can be reconsidered.

D B Collins J

Solicitors:

Crown Solicitor, Wellington for Respondent