| NOTE: COURT OF APPEAL ORDER IN CA77/73 SUPPRESSING THE SECOND RESPONDENT’S NAME REMAINS IN FORCE UNTIL FINAL DISPOSITION OF CRIMINAL PROCEEDINGS: SEE [38]. |
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA247/2018 [2018] NZCA 363 |
| BETWEEN | NZME PUBLISHING LIMITED, STUFF LIMITED AND RADIO NEW ZEALAND LIMITED |
| AND | THE QUEEN |
| Hearing: | 20 August 2018 |
Court: | Winkelmann, Clifford and Gilbert JJ |
Counsel: | T C Goatley for Applicants |
Judgment: | 11 September 2018 at 11.30 am |
JUDGMENT OF THE COURT
AThe application for revocation of the 1973 permanent name suppression order is granted but the effect of this order is stayed until final disposition of the criminal proceedings against the second respondent in CRI-2017-004-2810 and CRI‑2017-004-2621.
BWe make no order as to costs.
____________________________________________________________________
REASONS OF THE COURT
(Given by Winkelmann J)
We are asked to exercise a power under s 208 of the Criminal Procedure Act 2011 to revoke an order this Court made in 1973 permanently suppressing Mr Mitchell’s name in connection with offending in that year.
The applicants are three media organisations (we refer to them collectively as the media). They say that because of Mr Mitchell’s reoffending there is public interest in that earlier offending so that name suppression should be revoked. Mr Mitchell responds that the existing suppression order should stand because he has ordered his life on the longstanding understanding that the name suppression is permanent, and because there is a general public interest in finality in litigation.
Facts
In 1973, shortly after his 15th birthday, Mr Mitchell raped a young girl. He was sentenced to five years’ imprisonment.[1] This Court upheld that sentence on appeal, but permanently suppressed Mr Mitchell’s name.[2] Although the Court gave no reasons for that name suppression it is common ground between the parties we should proceed on the basis that name suppression was granted because of Mr Mitchell’s youth. We agree with that proposed course as there is no suggestion that name suppression was required to protect the identity of the victim or for any other reason.
[1]R v Mitchell T52/73, 28 June 1973.
[2]R v Mitchell CA77/73, 20 August 1973.
In 1985 Mr Mitchell was convicted of rape, sodomy and indecent assault arising from offending in 1984.[3] He was again sentenced to five years’ imprisonment. Both convictions and sentence were upheld by this Court on appeal.[4]
[3]R v Mitchell T117B/84, 12 July 1985.
[4]R v Mitchell CA168/85, 12 June 1986.
Earlier this year, following a jury trial, Mr Mitchell was convicted of multiple charges against two different victims arising from offending in 1992 and 2017.[5] Evidence of the 1984 offending was admitted as propensity evidence at Mr Mitchell’s trial. Mr Mitchell does not have name suppression in respect of the 1984, 1992 or 2017 offending.
The fact of the…
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- NZME Publishing Ltd v R [2018] NZCA 363
- Case
- [2018] NZCA 363
- Decision Date
CaseChat Overview and Summary
The court had to determine whether section 208(3) of the Act, which grants a general power to review suppression orders, could be applied to name suppression orders and if so, what criteria should guide such reviews. Prior to the amendment, the High Court had jurisdiction to review certain name suppression orders under its inherent jurisdiction, but the District Court lacked this authority. The court also needed to assess the appropriate procedural pathway for challenging suppression orders, distinguishing between appeals and judicial review, and identifying the circumstances under which such orders might be revoked.
The court's reasoning was grounded in both the statutory provisions and relevant case law. It acknowledged that prior to the 2016 Amendment Act, the law was unsatisfactory, as it did not provide a clear framework for reviewing name suppression orders. Section 208(3) of the Act introduced a general power to review such orders, but the court needed to interpret this provision in light of existing case law and legislative intent. The court noted that while permanent suppression orders could be revoked, such revocations should only occur in truly exceptional circumstances. It referenced the decision in R v Burns (Travis) and Taylor v C, where the court had previously found that only in exceptional circumstances would a final suppression order be varied. The court concluded that section 208(3) should be interpreted in a manner consistent with these principles, emphasizing the importance of protecting the identity of witnesses unless compelling reasons for disclosure exist.
The court's final orders reflected its interpretation of the statutory provisions and the principles established in case law. It determined that an application to review a suppression order under section 208(3) could be made by the original applicant for the order, the prosecutor, or a member of the media. Judicial review was deemed appropriate for interested parties who did not have standing to appeal, such as the victim of the offence. The court emphasized that the criteria for revoking a permanent name suppression order should be applied cautiously, with a strong presumption in favor of maintaining the order unless exceptional circumstances are clearly demonstrated.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
Prior to the Act the law in relation to the ability to review permanent suppression orders was unsatisfactory. Section 138 of the Criminal Justice Act 1985 gave the courts authority to review permanent suppression orders made in respect of evidence or submissions but that statutory power of review did not extend to name suppression orders except where that order was made to protect the identity of a witness.[8] While the High Court could use its inherent jurisdiction in that latter circumstance, the District Court did not have inherent jurisdiction and so could not do the same.[9] It was against this background that the Law Commission recommended the inclusion in legislation of a power to review name suppression orders.[10] Section 208(3) of the Act therefore contains a general power to review suppression orders. It provides:208Duration of suppression order and right of review…(3)A suppression order may be reviewed and varied by the court at any time.[8]R v Burns (Travis) [2002] 1 NZLR 387 (HC) at [26]. While Chambers J accepted there was jurisdiction to review a witness suppression order under s 138, there was doubt in that case as to whether the original order was made under s 138 or 140: see [22]. [9]At [25]–[26].[10]Law Commission Suppressing Names and Evidence (NZLC R109, 2009) at [6.69]–[6.70]. Under the Act an application for review is one of the three principal ways a suppression order may be challenged, the other two being:(a)by way of appeal under s 283;(b)by way of judicial review, where the original decision was made in the District Court. Appeal will usually be the appropriate procedural pathway where the merits of the original order are challenged. Under the Act an appeal under s 283 may be brought by the original applicant for the order, the prosecutor or a member of the media.[11] Although appeal is the usual pathway to challenge the making of an order, judicial review may be appropriate for interested parties who have no standing to pursue an appeal, such as the victim of the offence. That pathway of course is not available where the suppression orders are made in the High Court as there is no ability to judicially review High Court decisions. Although the Act is silent on criteria to be applied under s 208, assistance as to the proper approach to an application to revoke permanent name suppression can be gained from case law, and from the statutory scheme. Prior to the enactment of s 208, permanent name suppression could be revoked although that seems to have occurred on only one occasion, in R v Burns (Travis).[12] In Burns media interests sought to revoke a secret witness’ permanent name suppression. As to the proper approach to such an application, this Court said:[13]The Courts will be most difficult to persuade that the name of a secret witness should be divulged in the absence of truly exceptional circumstances. [12]R v Burns (Travis) [2002] 1 NZLR 387 (CA).[13]At [24]. More recently in Taylor v C, this Court dealt with an application under s 208, again to revoke the permanent name suppression of a secret witness.[14] The applicant Mr Taylor was pursuing a private prosecution against “Witness C” for attempting to pervert the course of justice, and perjury.[15] He sought to have Witness C’s name suppression revoked because he said it would assist with his investigation and on the grounds that the principles of freedom of expression and open justice weighed strongly in favour of publication.[16] When discussing the approach to such an application, this Court said:[17][W]e are not persuaded that we should differ from the earlier decision of this Court in Burns that only in exceptional circumstances will a final suppression order be varied.[14]Taylor v C, above n 7.[15]Witness C was convicted and name suppression subsequently lapsed: see Taylor v Witness C [2018] NZHC 810.[16]Taylor v C, above n 7, at [38]–[39].[17]At [36] (footnotes omitted).