Mayer v The Queen
[2011] NZCA 36
•25 February 2011
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA829/2010 [2011] NZCA 36 |
| BETWEEN MALCOLM DUNCAN MAYER |
| AND THE QUEEN |
| Hearing: 16 February 2011 |
| Court: Stevens, Potter and Miller JJ |
| Counsel: G N Bradford and B T Lauaki for Applicant |
| Judgment: 25 February 2010 at 2.30 pm |
JUDGMENT OF THE COURT
AThe application for leave to appeal against a pre-trial ruling refusing to suppress the name of the applicant is dismissed.
BThe interim order for name suppression made by Judge Mathers on 7 December 2010 is discharged.
____________________________________________________________________
REASONS OF THE COURT
(Given by Stevens J)
Introduction
The applicant, Malcolm Mayer, seeks leave to appeal against a pre-trial ruling made by Judge Mathers in the District Court in which he was denied continued name suppression pending criminal proceedings.[1] The respondent contends that such leave should be refused, particularly as the applicant’s name is already in the public arena and no proper grounds for suppression have been made out.
Factual background
[1] R v Mayer DC Auckland CRI-2010-004-8862, 7 December 2010.
The applicant is being prosecuted by the Serious Fraud Office and has been charged with 62 counts of fraud: 26 counts of dishonestly using a document; 26 counts of obtaining by deception; and 10 counts of using forged documents. His alleged offending concerns property transactions and the related pursuit of mortgage funds. The trial is scheduled to commence on 25 July 2011.
The applicant’s case has already attracted media attention, in which he was a participant. In 2009, prior to being arrested, he spoke with a reporter from the Sunday Star Times. This led to a front page article titled “The $50m swindler: I confess”.[2] The applicant gave this interview on the advice of another person and has since argued that he was to some extent misled by that person. He has also received further media attention in the Sunday Star Times and in The National Business Review. It is in this context that the applicant seeks continued name suppression.
Procedural history
[2]Tony Wall “The $50m swindler: I confess” Sunday Star Times (New Zealand, 6 September 2009) at A1.
A lengthy history precedes this application for leave. Name suppression has remained in place throughout in order to protect the applicant’s appeal rights. In May 2010, Judge Simpson granted the applicant name suppression until the opening of the trial.[3] The Judge considered that there were factors outweighing the principle of open justice in this case, such as the applicant’s personal safety and right to a fair trial, which may be prejudiced by a large amount of adverse publicity.[4]
[3]Serious Fraud Office v Mayer DC Auckland CRI-2010-004-8862, 31 May 2010 at [15].
[4]At [5], [9].
The Serious Fraud Office appealed this decision to the High Court. Venning J allowed the appeal and found that Judge Simpson erred by taking into account an irrelevant consideration, namely that of intimidation.[5] The Judge was also wrong to make an order for name suppression when the applicant’s name, as a result of his own activity, was already in the public domain and his fair trial rights would not inevitably be prejudiced.[6] The applicant unsuccessfully sought leave to appeal to the Court of Appeal under s 144 of the Summary Proceedings Act 1957 on a question of law.[7] Special leave to appeal to this Court was also declined.[8] An application to the Supreme Court was made but subsequently withdrawn for lack of jurisdiction.
[5]Serious Fraud Office v Mayer HC Auckland CRI-2010-404-338, 19 October 2010 at [13]–[14], [24].
[6] At [17]–[21], [24].
[7] MDM v Serious Fraud Office HC Auckland CRI-2010-404-338, 28 October 2010.
[8] Mayer v Serious Fraud Office [2010] NZCA 511.
In late 2010 the applicant made a further application to the District Court for continued interim name suppression on the basis of a change of circumstances. The asserted change of circumstances was that the Serious Fraud Office intended to lead evidence of the 2009 newspaper interview, the admissibility of which was being determined under s 344A of the Crimes Act 1961. Judge Mathers described the applicant’s alleged fresh evidence as “quite stale” and denied continuing the name suppression order, stating that the point had been sufficiently decided in the High Court.[9] It is from this ruling that the applicant seeks leave to appeal.
Applicant’s submissions
[9] R v Mayer DC Auckland CRI-2010-004-8862, 7 December 2010 at [9], [12].
The applicant submits that the application involves the admissibility of evidence important to the parties, a factor pointing to the granting of leave, as per R v Leonard.[10] The evidence in question is the transcript of the 2009 interview given by the applicant to the Sunday Star-Times reporter that the Serious Fraud Office intends to lead at trial. The applicant contends that Judge Mathers failed to appreciate the distinction between suppression of the applicant’s name and suppression of the evidence until its admissibility had been determined, which she treated as one.
[10] Practice Note – R v Leonard [2007] NZCA 452, [2008] 2 NZLR 218 at [13].
Essentially the applicant seeks to have this evidence suppressed. He gives two reasons: to avoid juror contamination from any pre-trial publicity, thus preserving fair trial rights, and to ensure that if the evidence is ruled as inadmissible then it will not remain within the public domain. The applicant submits that the publicity to date is “inextricably linked” to him. Continued suppression is thus required to preserve his fair trial rights.
In oral argument, Mr Bradford for the applicant accepted that there was no proper basis to suppress the name of the applicant applying traditional principles. Nevertheless Mr Bradford developed an argument that name suppression should be extended because to do so was the only possible way in which to preserve the fair trial rights of the applicant pending the hearing of a pre-trial application to exclude the evidence. Mr Bradford cited the case of Proctor v R.[11] There, name suppression prior to trial was extended in the face of the existence of a newspaper report referring to a purported admission and agreement by the accused to undertake psychiatric counselling, and containing an allegedly inaccurate summary of facts.
[11] Proctor v R [1997] 1 NZLR 295 (CA).
When pressed as to the grounds upon which the evidence of the transcript of the applicant’s statement to the reporter would be objected to, Mr Bradford advised that, as presently instructed no reliance could be placed on any inducement or undertaking by the reporter that the statements of the applicant would not be published.
Respondent’s submissions
The respondent opposes the application for leave to appeal. The respondent argues that leave to appeal should be refused as the application:
(a)challenges the exercise of a judicial discretion; and
(b)the proposed appeal is entirely without merit.
Both of these are factors for refusing a pre-trial appeal identified in R v Leonard.[12] The respondent refers to the fact that the applicant’s attempt to seek name suppression had been “exhaustively traversed” in various courts. Moreover, Judge Mathers had properly exercised her discretion in refusing suppression. The applicant is really trying to re-litigate the same issue that had been exhaustively dealt with in the District Court and in higher jurisdictions. Thus this latest application for name suppression amounts to an abuse of process.
[12] At [14].
In addition, the respondent submits that the applicant’s main focus is to suppress further publication of the 2009 interview. The applicant is trying to achieve the impossible: the suppression of information already in the public domain. Finally, the respondent submits that firm jury directions can negate prejudice (as suggested by Venning J) and will address the concern surrounding the applicant’s fair trial rights. The Court’s intervention by suppressing the applicant’s name is unwarranted.
Discussion
The first point is that, applying the well-known principles, the applicant cannot make out a case for continued name suppression. We agree that Mr Bradford’s concession was properly made. The power to grant name suppression under s 140 of the Criminal Justice Act 1985 involves exercising a discretionary judgment and the starting point is always one of open justice and freedom of expression.[13] This may, however, be outweighed by factors particular to the case.
[13] R v Liddell [1995] 1 NZLR 538 (CA) at 546.
Before Judge Mathers, the change of circumstances alleged by the applicant as warranting suppression was the fact that the Serious Fraud Office intends to lead as evidence a transcript of the 2009 interview. This could prejudice the applicant’s fair trial rights by reviving the sensationalism of that article if his name was reported. The Judge was well aware that this was the basis relied upon.
The applicant’s attempt to use the challenge to the transcript of the 2009 interview as the basis for name suppression immediately gives rise to what is the nature of the challenge to such evidence. In the absence of any argument as to lack of voluntariness or improper inducement, no cogent reason was put to us in argument as the basis upon which the evidence might be excluded under provisions of the Evidence Act 2006. Certainly at this stage, we are aware of no clear basis for exclusion that would warrant suppressing the name of the applicant. The circumstances in Proctor were entirely different. There, a clearer basis for challenge existed and the article was not solely the result of the accused’s own interview with the reporter. Information published in the article came from parties other than the accused.
We accept that a person’s right to a fair trial may be an important aspect to consider when an application for name suppression is made.[14] Yet, as Mr Bradford accepted, steps can be taken to mitigate any prejudice if the “sensationalism” of that article is revived, such as appropriate directions issued to the jury. The fact is that the applicant’s name is already in the public domain, an action to which he was an active and seemingly willing participant. Nothing that we could do now can change the fact that the article based on the 2009 interview has been reported in the Sunday Star-Times.
[14] See Liddell, at 547.
We are not satisfied that Judge Mathers was plainly wrong in declining the applicant’s request for name suppression, nor did she give insufficient weight to his right to a fair trial. Any such matters can be addressed at the trial, once the result of the pre-trial ruling on the application under s 344A of the Crimes Act is known. None of the other factors favouring leave to appeal as discussed in R v Leonard[15] apply to the circumstances of this case.
Result
[15] At [13].
The application for leave to appeal is refused.
There being no basis for ongoing suppression of the applicant’s name, the interim suppression order made by Judge Mathers on 7 December 2010 is discharged.
Solicitors:
Crown Law Office, Wellington for Respondent
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