Parker v The Queen
[2020] NZHC 1345
•16 June 2020
ORDER PROHIBITING PUBLICATION OF NAME, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS OF CONNECTED PERSON(S) PURSUANT TO S 202 CRIMINAL PROCEDURE ACT 2011. SEE
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2018-004-000675
[2020] NZHC 1345
BETWEEN JOSEPH DENNIS PARKER
Applicant
AND
THE QUEEN
First Respondent
STUFF LIMITED
Second Respondent
Hearing: 5 June 2020 Counsel:
MR Heron QC, I Brookie and CEM Agnew-Harington for Applicant
RK Thomson for First Respondent RKP Stewart for Second Respondent
Judgment:
16 June 2020
JUDGMENT OF DOWNS J
This judgment was delivered by me on Tuesday, 16 June 2020 at 11 am.
Registrar/Deputy Registrar
Solicitors/Counsel:
Crown Law, Wellington.
MR Heron QC, Auckland.
I Brookie, Auckland.CEM Agnew-Harington, Auckland. RKP Stewart, Auckland.
PARKER v R [2020] NZHC 1345 [16 June 2020]
Table of Contents
Para No
A difficult case [1]
The story so far [6]
The defendants’ offending [16]
Apparent references to Mr Parker in the evidence [23]Principle [38]
Is there a real risk publication of Mr Parker’s name in connection with
the trial may cause him undue hardship? [44]
The Sese and Joe messages [46]
The discretionary stage of the analysis
The defendants’ modus operandi [62]
Seriousness of the offending [65]
Public interest in the charging decision and adequacy of the
Police investigation [68]
Natural justice [77]
Open justice [80]
Evaluation [82]
Result [83]
Other matters and orders [84]
A difficult case
[1] People are entitled to know what happens in the courts, including the evidence adduced in a criminal trial. This case is about whether Joseph Parker may suffer undue hardship if his name is published in connection with the 2019 trial of Tevita Fangupo, Tevita Kulu and Toni Finau. It is also about whether countervailing interests, including the public interest in the open reporting of criminal trials, outweigh Mr Parker’s possible hardship. The case is not about whether Mr Parker has committed criminal offences or helped others do so. Mr Parker has not been charged with any offence. Indeed, Mr Parker has been told he will not be. Therein lies the unusual aspect of the case—and primary difficulty.
[2] Another arises this way. As is so often true of multi-defendant drugs trials, much of the evidence comprised digital messages between the defendants, and between the defendants and others. Two messages referred to “sese and joe” (Sese and Joe) in an incriminating context: a Californian-based exchange of currency later used to buy methamphetamine. The Crown suggested at trial Mr Parker was “joe” (Joe). Mr Parker says it is now clear he cannot have been Joe, as he was in Doha, not
California. Mr Parker therefore contends the facts were not as I or the Court of Appeal apprehended, but these ‘facts’ have been publicised. So, his position is now “exponentially” worse than it was last year, and the balance favours permanent name suppression.
[3] To this, Stuff Ltd1 contends nothing has really changed, as most of the evidence remains undisturbed. It says there is a high public interest in the full reporting of trials, especially this one. It highlights the Police’s allegedly questionable charging decision in relation to Mr Parker, about which it says there should be open public debate. Stuff also questions the adequacy of the associated Police inquiry. It notes Police obtained a search warrant in relation to Mr Parker which was never executed. Stuff invites attention to other possible failings too. It contends there is legitimate public debate about whether Police have approached their task in relation to Mr Parker in a thorough and even-handed way.
[4] The Crown is neutral in relation to name suppression. It contends the allegations it voiced at trial were available on the evidence, and as with Stuff, says almost all remain undisturbed.
[5] The mix has dangers. The law offers no procedure for the conduct of mini-trials for a person prejudicially named in evidence, but not a defendant. Rather, it offers name suppression if risk of undue hardship to that person outweighs the usual interests in open justice. I must apply this framework, not some other. Mr Parker says the allegations ventilated about him at the defendants’ trial are “false”. But, his guilt or innocence is not my province. It is also awkward to complain about the unfairness of Mr Parker’s absence from trial and presuppose his trial vindication.
The story so far
[6] Mr Kulu, Mr Fangupo and Mr Finau were tried by a jury between 29 April and 27 May 2019 on a host of serious charges, including importation and supply of the Class A controlled drug, methamphetamine.2 I was the trial Judge. I later imprisoned
1 Stuff.
2 Offending of this nature is punishable by imprisonment for life.
Mr Kulu for 18 years; Mr Fangupo for 17 years; and Mr Finau, for eight and a half years.3 I ordered Mr Kulu and Mr Fangupo serve at least half of their sentences in the interests of denunciation, deterrence and public protection.
[7] On the Friday immediately before trial,4 Mr Parker sought permanent name suppression. Mr Parker apprehended he may be mentioned repeatedly in evidence. Police had investigated Mr Parker in connection with the defendants since at least 14 June 2018. On 5 December 2018, they asked to speak with Mr Parker. On 8 April 2019, he declined through Mr Heron. On 16 April 2019, Police told Mr Parker he would not be charged. On or about 22 April 2019, Mr Heron asked the Crown to provide documents that may identify Mr Parker at the forthcoming trial. On 25 April, Detective Nathan Bland—the Police officer in charge of the investigation—responded with some of the relevant paperwork, but not the Sese and Joe messages or Mr Parker’s immigration records. It is common ground the omission was unfortunate, but in no way sinister.5
[8] I heard argument on Wednesday, 1 May 2019, after first inviting the prosecutor, Ms Culliney, to outline what would be said about Mr Parker. A jury had been empanelled but the Crown had not then opened; this because several pre-trial applications unrelated to Mr Parker remained outstanding.
[9] I made an interim suppression order the same day. I said I would revisit the application for permanent name suppression “at a convenient point”, meaning later in the trial or shortly after it. I then made decisions about the other pre-trial applications, and the trial began.
[10] During trial, I directed the Crown identify all evidential references to Mr Parker, so he knew what had been said about him. On 22 May 2019, Ms Culliney did so in a document entitled, “Crown memorandum setting out evidential references
3 R v Fangupo [2019] NZHC 2896 (my sentencing remarks). I imposed a three-year, four-month term of imprisonment on a fourth defendant who pleaded guilty before trial.
4 26 April 2019.
5 At the hearing on 5 June 2020, Mr Heron expressly disclaimed any allegation of bad faith by anyone in relation to the case.
to interested party”. By then, all evidence had been given; so too closing addresses. Ms Culliney gave the memorandum to Mr Heron the same day.
[11] On 27 May 2019, I heard argument from Ms Culliney, Mr Heron, and Stuff’s lawyer, Mr Stewart. Stuff and the Crown opposed the application, but the latter in form only. Or, as it was put at that hearing, “opposition with a small o”.
[12] I dismissed Mr Parker’s application three days later. I gave reasons.6 In brief, I held Mr Parker may suffer undue hardship in the event of publication, but the public interest in the open reporting of criminal trials outweighed possible hardship.
[13] Mr Parker appealed to the Court of Appeal. On 1 August 2019, that Court dismissed his appeal, albeit for slightly different reasons than I gave.7
[14] Mr Parker later asked that Court to recall its judgment. He had, by then, the Sese and Joe messages and his immigration records.8 The Court of Appeal declined to recall. However, it said it was open to Mr Parker to make a fresh application to the High Court for permanent name suppression if circumstances had changed. Mr Parker has now done so. This is the application before me.
[15] I was to hear the application 8 November 2019. On that day, I granted Mr Parker an adjournment as Mr Heron expressed concern at the late provision of material. The date later fixed for hearing the application was 5 June 2020. I was told this was the first available date in my calendar, which included provision for sabbatical leave. I regret the delay. It is undesirable. However, Mr Parker’s name has been suppressed throughout by interim orders.
6 R v Fangupo [2019] NZHC 1211 (my original decision).
7 Parker v R [2019] NZCA 350.
8 These documents were referred to in the Crown’s memorandum of 22 May 2019 but did not accompany it. Mr Heron’s written submissions included criticism of the Crown’s non-disclosure. However, it is common ground: (i) Mr Parker did not request this material until after the hearing in the Court of Appeal; (ii) Mr Parker did not apply to me for an order requiring provision of this material; and (iii) the sequence constitutes a change of circumstance entitling a fresh application for name suppression. It is also common ground no one was at fault. I assumed Mr Parker had all the material; no one told me otherwise. Mr Heron assumed he knew what he needed to, as he had the Crown’s memorandum. The Crown assumed Mr Parker did not want the Sese and Joe messages or his immigration records, as he did not ask for them. Mr Heron helpfully abandoned this criticism at the hearing.
The defendants’ offending
[16] From June 2017 until January 2018, Mr Kulu, Mr Fangupo and Mr Finau imported large amounts of methamphetamine to New Zealand from California. Five packages were caught at our border. These contained 14.8 kilograms of methamphetamine. Two packages were caught at the United States border. These contained not less than 4.1 kilograms of methamphetamine. Four packages were not caught at either border. The evidence implied these contained several kilograms of methamphetamine.
[17] The defendants committed other offences within the same period. They imported a small amount of cocaine (27 grams) and possessed firearms. Mr Kulu supplied large amounts of methamphetamine and offered like supplies. Mr Finau supplied large amounts of methamphetamine too. He also conspired to supply the drug.
[18] Mr Kulu and Mr Fangupo had leading, complementary roles. Mr Kulu sourced the methamphetamine from contacts in California, who got the drug (in crystal form) from Mexico. Mr Kulu had lived in California. Mr Fangupo identified New Zealand addresses to which the drugs could be sent. Both men arranged for payment of Californian suppliers. Mr Fangupo once went to the United States with $40,000 in payment.
[19] It is not clear how much money the pair made “beyond a lot”.9 Mr Kulu was found with $215,000 cash in his apartment. Photographs on his telephone showed bundles and bundles of cash. Mr Kulu told a correspondent he had never dreamt he would count so much. Other photographs show Mr Kulu holding a rock of methamphetamine almost the size of a fist. Mr Fangupo was not found with large amounts of cash, but his own record keeping implied he hoped to make $12.9 million a year. This assessment was optimistic, but again, the only reasonable inference is that Mr Kulu and Mr Fangupo made a lot of money.
9 My sentencing remarks, above n 3, at [17].
[20] The importation offending had a pattern. All packages came from California. All were sent by post. All came to Auckland. The intercepted packages had similar consignment notes and some, a common author. All consignment notes declared clothing, most with reference to the Nike label. Most contained footwear of that brand. All packages contained clothing. The intercepted methamphetamine was packaged the same way, by Ziploc bags with distinctive colours, all wrapped as cylinders. Clingfilm was wrapped around most.
[21] The defendants met in person and spoke by telephone. They also communicated by text message and messaging applications, for example, WhatsApp, Snapchat, Viber and Wickr. Not all their messages were recovered. Those that were betrayed similarities. There were numerous references to “puha”, “Nike”, “T-shirts”, “shoes”, “addys” and “keys”. Puha is the Tongan word for box but in this context, meant methamphetamine. The term “addys” was shorthand for an address to which the drugs would be sent; “keys” code for kilograms. The defendants’ communications included digital imagery of handwritten addresses, courier or post tracking numbers and on occasions, other documents. The significance of all this is that the defendants had a system—this was a business.
[22] The defendants used a variety of methods for the drugs’ payment. Examples included exchanging currencies; wiring money by Western Union or Moneygram; sending large amounts of cash by post; and taking cash, in person, to the United States.10
Apparent references to Mr Parker in the evidence
[23] Police examined Mr Fangupo’s telephone. “Joseph Parker LS” was listed as a contact. The telephone contained the Viber application. “Joseph Parker LS” was listed therein as a contact too.
[24] Singaporean experts examined Mr Kulu’s telephone after he refused to provide its access code. They retrieved much data, including WhatsApp messages. Mr Kulu
10 Travelex was cited as one way in which New Zealand currency was converted to American currency.
used WhatsApp to correspond with the Californian suppliers of methamphetamine. “Tonga” was one, “Coka” another. There were several others too.
[25] On 5 October 2017, Mr Kulu and Coka exchanged messages about “the next round”. Mr Kulu said it was Coka’s “job to make sure everyone does theres”. The exchange then turned to payment, and price. Mr Kulu said he had all the money, “jus paid one of the guys I was with today to change it into US currency”. Mr Kulu added, “… we ain’t paying no 20.000U.S we paying 15U.S..which is alil over 20thousand New Zealand..cause we did our calculation and we paying yal 28000 New Zealand which is 20U.S and we selling it whole for either 70 or 80k New Zealand..”.
[26]Mr Kulu then sent this message to Coka:
Alright bro..I got u tho..have all ur money..the dude I was with that’s on my snapchat is going to change it to U.S currency..they wont question him bout all the money..cause he’s the WOB boxing champion so pple know he rich anyways so he’ll be good to change it with no hassles.
[27] Mr Parker was the world boxing champion at the time. Coka replied, “Hahaha hell yea that’s dope”. The exchange then turned to more prosaic matters, principally Mr Kulu’s interest in bodybuilding.
[28] On 20 October 2017, Mr Kulu and Mr Finau communicated by WhatsApp. Mr Kulu messaged Mr Finau, “George asked for your fika” (phone number). Mr Kulu added, George was with “Parker”, and “they need that white”. Mr Finau said, “Yeah, give it 2 him”. An experienced Police officer testified about drug codes and said “white” ordinarily meant methamphetamine, but was sometimes code for cocaine.
[29] On 28 October 2017, Mr Kulu and Mr Finau communicated by WhatsApp again. Mr Kulu asked Mr Finau to “grab some more ‘white’”. Mr Finau said he had some, but he had to “BANG THIS OUT” first. A little later, Mr Kulu asked Mr Finau how long he would be. Mr Finau replied, “10 … parker just piked up” (picked up).
[30] Mr Finau’s phone was also examined. It revealed Wickr messages between Mr Finau and “joeboxerparker” between 9 and 12 November 2017.11 Wickr messages
11 Mr Heron accepted at the earlier hearings “joeboxerparker” was Mr Parker’s Wickr address.
delete themselves after an adjustable period. The following précis presupposes Mr Parker was the correspondent using “joeboxerparker” for ease of reference only:
(a)The messages begin with Mr Parker saying he was in “town for [the next] session”. He had “300 but boys have the other so let me know when you can get”. Mr Finau asked if Mr Parker would “DROP IT OF”? The pair arranged to meet.
(b)The next day, Mr Finau wanted his “COIN”. Mr Parker said he had just finished training, but Mr Finau could come get it “anytime bro”. Mr Parker said he had $300, the “boys have [the] rest”. He assured Mr Finau, “you’ll get your cash”. Mr Parker told Mr Finau he was at his home in “Mangere east” and had “$300 for one bag”. Mr Parker said the “boys get paid next week so they’ll have $300 for the other one”, and then asked, “All good?”. Mr Finau replied in the early hours Mr Parker should remember “THE 100 FOR THE OTHER BAG … IL COME 2MORO”.
(c)On 11 November, Mr Parker asked Mr Finau if he still needed “a new contact”. Mr Parker added, “Trust me, it’s the best stuff out”. Mr Finau said he needed “2 ONE” and then asked, “HOW MUCH 4 A Q ROUND ONE”, saying he got his “FOR 1200”. Mr Parker replied, “Pound you mean? Q pound or half?”. Detective Sergeant Howard said a “round one” typically meant an ounce of methamphetamine; and the letter “Q” referred to a quarter of an ounce of that drug. Mr Finau replied, “q round one … not a pound … he SOULD knw”. Mr Parker said, “I’ll get his details and send through”. Minutes later, Mr Parker agreed Mr Finau could meet the alleged supplier, saying, “He’s a good Dude with the best stuff”. Mr Parker provided Mr Finau with the person’s Viber details.
(d)Mr Finau later asked Mr Parker, “any were I CAN GET some”? Mr Parker replied, “He has some with him”. Mr Finau then asked, “can I get 2 bags off him BRAH”? Mr Parker said he would ask and, “It’s
400 each but the best I’ve had”. Mr Finau replied, “sweet bro come get me an WELL go get it bro”. Mr Parker said, “I’m trying to get hold of him”. The messages continued into the early hours. At 1.53 am, Mr Finau said, “just out south CAN i pik up”? Mr Parker replied, “Did you message him? Sorry not enough time last night brother. Did you message him on viber?”
(e)On the evening of 12 November, Mr Finau told Mr Parker, “I got some tho ..”. Mr Parker replied, “You got some more? All good bro. I’ll drive out this week with cash”. A little later Mr Finau said, “sweet … yeah good stuf”. Mr Parker replied, “Better then last or same?”. Mr Finau said, “better … 4 ME itz BETTER lol”. Mr Parker then asked, “Can I have a taster?”. Mr Finau replied, “LOL … gota GET A bag … NXT ONE I give you a taste lol”.
[31] Mr Bonnar QC acted for Mr Kulu. Mr Bonnar elicited that Police had sought to interview Mr Parker, but Mr Parker exercised his right to silence.12 Mr Bonnar also elicited that Police obtained a search warrant in relation to Mr Parker which was never executed. Mr Bonnar contested the Crown case by reference to Mr Kulu’s obvious interest in bodybuilding. He argued Mr Kulu did nothing more than import and supply steroids, bodybuilding supplements, or perhaps both. This introduces the penultimate reference to Mr Parker.
[32] On Mr Finau’s behalf, Ms Sellars QC called a witness who said he saw Mr Finau sell Mr Parker some “white pills”. Sioeli Fakafanua said this happened on one occasion in or about 2017. Mr Fakafanua said he clearly remembered what happened because he was “so starstruck”. Mr Fakafanua said this was “Joseph Parker, he’s … [the] world champion”. Mr Fakafanua did not say what the white pills were. Nor did anyone else. Mr Finau argued this evidence disclosed a reasonable possibility he, like Mr Kulu, was no more than a supplier of steroids or bodybuilding supplements.
[33] The final reference concerns the Sese and Joe messages and immigration records. On 5 and 6 July 2017 Mr Kulu corresponded with Tonga. Tonga said he was
12 Through Mr Heron.
taking out “sese and joe”. Mr Kulu told Tonga to make “them change some of the cash cause it will be better cause they will know they from New Zealand from there accent”. Mr Kulu then provided Tonga an “addy” (address) for the “3 keys” (three kilograms), with related instructions to, “use ses n joe to change more New Zealand money to buy more keys cause the guys that sent the money for the 21 wants at least 15 of those … this week”. More than 2.6 kilograms of methamphetamine was intercepted in relation to the address provided by Mr Kulu.13
[34] Sese Vimahi’s immigration records revealed he left New Zealand on 3 July and returned 8 July 2017. Mr Parker’s immigration records disclosed extensive international travel, including his departure from New Zealand on 5 July 2017 and September 2017 return. But, as with Mr Vimahi’s immigration records and the records of others, Mr Parker’s contained no detail of port of exit or entry beyond an uninterpreted flight number. So, there was evidence when Mr Parker left New Zealand and when he returned, but not where he had been.14
[35] Mr Parker did not swear an affidavit in support of his original application for permanent name suppression, or the associated appeal. He now has.15 Mr Parker acknowledges leaving New Zealand on 5 July 2017. But, Mr Parker says he flew to Doha, then London, then Manchester—where he participated in a press conference to announce a bout with Hughie Fury—then Las Vegas on 12 July 2017. It follows Mr Parker cannot have been Joe in the Sese and Joe messages, or exchanged money for the defendants in California on 5 or 6 July.
[36] Mr Parker has not adduced his passport, but the Crown accepts this sequence excludes Mr Parker as Joe. It concedes “this particular piece of evidence … is no longer sustainable in relation to that particular instance of Mr Parker exchanging New Zealand for United States dollars, in the United States” on 5 or 6 July 2017. I accept the concession. It is responsible.
13 Mr Fangupo was found not guilty of this charge (charge 4).
14 Kylie Adams, a Customs officer, gave limited evidence about flight numbers but no such evidence in relation to Mr Parker.
15 Dated 9 September 2019.
[37] The Crown referred to all this evidence in closing. It contended Mr Kulu’s world boxing champion message concerned Mr Parker and should be taken at face value. It argued Mr Finau repeatedly supplied Mr Parker methamphetamine. It said the Wickr messages between the two also implied Mr Parker offered to help Mr Finau source that drug. Finally, the Crown contended the Sese and Joe messages demonstrated Mr Parker had changed money for the defendants in California on one occasion in early July 2017.
Principle
[38] Section 202 of the Criminal Procedure Act 2011 provides for name suppression of a person “connected with the proceedings or defendant” if the Court is satisfied publication would “likely” cause that person “undue hardship”. If so, the Court must then consider the competing interests of victims and the public, and the “strong presumption” in favour of open reporting.16
[39] To this should be added the Court of Appeal’s helpful observations in this case. Likely in this context means a real or appreciable risk.17 Undue hardship requires a comparison between hardship the applicant contends will result from publication and the “normal consequences that follow publication”.18 So, a Judge who is satisfied publication is likely to cause undue hardship “is satisfied … the consequences for the applicant of publication will be disproportionate to consequences that typically result from publication”.19
[40] Undue hardship is then weighed “against the public interest in open reporting and other relevant factors”.20 The latter turns on the circumstances but can encompass:21
… seriousness of the offending, the public interest in the nature of the offending, the presumption of innocence, youth, rehabilitative prospects and any risk of self-harm are typically regarded as potentially relevant.
16 Robertson v Police [2015] NZCA 7 at [48].
17 Parker v R, above n 7, at [8].
18 At [10].
19 At [11].
20 At [11].
21 At [11].
[41] Consequently, publication may be required even though an applicant has demonstrated a real or appreciable risk of undue hardship.22 The Judge balances the respective interests. The balance “must clearly favour suppression for the principle of open justice to yield”.23
[42] The parties found only two cases in which an uncharged individual sought name suppression because of potentially incriminating evidence at a defendant’s trial. The first is R v Bhikoo.24 Mr Mobeen Bhikoo dealt cocaine. Mr Bhikoo also owned and operated a successful hairdressing company, M11. M11 argued it should have permanent name suppression because it might suffer undue hardship from publicity of its connection to Mr Bhikoo. M11 was arguably complicit in the offending. Mr Bhikoo supplied cocaine to some of its customers at its premises, during work hours. Toogood J accepted a connection existed between Mr Bhikoo and M11. However, the Judge did not accept there was a risk of undue hardship to M11’s interests. The Judge said related evidence was “highly speculative”,25 and likely hardship that which “might normally be expected as a result of Mr Bhikoo’s conviction”.26 The balancing threshold was not reached.
[43] The second, found by Ms Thomson for the Crown, is the recent case of R v Morgan.27 Ms Morgan and another were charged with murdering Tracey Harris. The Crown case was that Vicki Brookes paid Ms Morgan and another to kill Ms Harris. Ms Brookes was not a defendant. She sought permanent name suppression. Thomas J was not persuaded Ms Brookes may suffer undue hardship if her name were published in relation to the defendants’ trial. Applying the judgment of the Court of Appeal in Mr Parker’s case, the Judge also concluded the public interest in the open reporting of a trial for murder outweighed Ms Brookes’ possible hardship.
22 Parker v R, above n 7, at [8].
23 At [8].
24 R v Bhikoo [2017] NZHC 3098.
25 At [22].
26 At [21].
27 R v Morgan [2019] NZHC 2134.
Is there a real risk publication of Mr Parker’s name in connection with the trial may cause him undue hardship?
[44] I answered yes last year. The Court of Appeal expressed no apparent concern with my conclusion. No one suggests I should now answer differently. It is thus tempting to move immediately to the balancing test. However, to do so would not address Mr Parker’s contentions he is “exponentially” worse off than before, and associated process complaints. I begin with the Court of Appeal’s concise summary of my reasoning Mr Parker may suffer undue hardship:28
Mr Parker’s application for name suppression rested principally on the damage publication would do to his reputation and the consequent effect on both his commercial interests (which would flow on to his ability to support his young family) and his charitable work. Evidence in support of the application came from Mr Parker’s sister Elizabeth Fuavao who manages Team Parker, and David Higgins, Mr Parker’s promoter since 2012 who is responsible for arranging all his professional fights to date. Their evidence was to the effect that publication of Mr Parker’s name in relation to the trial would result in the loss of important boxing and commercial opportunities that were essentially for the continuation of his professional career. This is because of the effect on future sponsorship deals and other similar opportunities. It would be likely to affect opportunities to fight. It would be likely to affect his ability to support his family. In addition, his personal involvement in charitable work in South Auckland would likely be affected.
[45] To this must be added the post-appeal evidence adduced on behalf of Mr Parker. David Higgins, Mr Parker’s promoter, says publicity would compromise Mr Parker’s ability to secure a potential three-fight contract worth approximately
$5 million, as well as another possible three-fight contract for the same amount. Publicity may also cause Mr Parker to “lose opportunities” being negotiated with Sky TV (New Zealand), Fox Sports (Australia), and Television New Zealand. Mr Higgins emphasises the importance of Mr Parker’s reputation to his career and financial interests.29
The Sese and Joe messages
[46] Mr Heron argues the Crown’s abandonment of the Sese and Joe implication undermines its treatment of the world boxing champion reference. He says if the
28 Parker v R, above n 7, at [20].
29 Mr Parker’s manager, his sister, has also filed an updated affidavit. It adds matters of detail only which need not be recorded.
Crown had not mistakenly believed Mr Parker was Joe in the Sese and Joe messages, it could not have advanced the contention Mr Parker was going to change currency for the defendants, as Mr Kulu’s message to Coka implies. Mr Heron contends no other evidence supports the proposition Mr Parker helped fund or facilitate the defendants’ importation of methamphetamine. Mr Heron submits the prosecutor breached her ethical obligations under r 13.8.2 of the Lawyers Conduct and Client Care Rules 2008. This rule provides allegations should not be made against persons not involved in the proceeding unless they are necessary to the conduct of the litigation and reasonable steps are taken to ensure the accuracy of the allegations, and where appropriate, the protection of the privacy of those persons.
[47] Doubt attaches to whether it is open to Mr Heron to advance these submissions. They are little removed from a challenge to the safety of a conviction, when Mr Parker was not even a defendant. They also presuppose Mr Parker may comment on the admissibility of evidence in the defendants’ trial, even though Mr Heron acknowledged he had no standing to do so.
[48] I pause to observe the Crown alleged Coka, Tonga and others, including Mr Vimahi, also played a role in the defendants’ offending. It did so by reference to hundreds of messages, exhibits and photographs, all ultimately directed to proof of the defendants’ guilt. There is nothing unusual in this. In a criminal trial, all relevant evidence is admissible unless otherwise inadmissible.30 The mere fact a piece of evidence may be prejudicial to someone who is not a defendant does not make that evidence inadmissible. And, when alleged criminal offending involves a joint enterprise or conspiracy—as this trial did—hearsay statements of others are admissible providing certain rules are met.31 They were. This explains as a matter of principle why the Crown was entitled to adduce evidence probative of the defendants’ guilt even though that evidence potentially implicated others. The same happened in the Morgan case mentioned a little earlier. The Crown alleged Ms Brookes paid the defendants to kill the victim even though Ms Brookes was not on trial.
30 Evidence Act 2006, s 7.
31 Section 22A.
[49] Section 202 of the Criminal Procedure Act confines my inquiry to whether Mr Parker may suffer undue hardship in the event of publication of his name in connection with the trial, not to whether things said about him at trial ought to have been said. The distinction is not semantic. Section 202—like other provisions in relation to name suppression—is concerned with public knowledge of what happens in the courts, not with whether what happened in the courts ought to have happened. The provision is no licence for censorship.
[50] In any event, Mr Kulu’s message—however prejudicial to Mr Parker—had self-executing relevance and probative value in the defendants’ trial. The message contained its own not readily assailable logic: the world boxing champion would not be viewed suspiciously if he had carried a lot of cash and changed some because he was “rich”. Mr Parker was the world boxing champion at the time. The defendants needed to pay for the drugs in United States currency. Financial arrangements were one of Mr Kulu’s roles. Puffery is not unheard of in the drugs world, but Mr Kulu and Coka had been discussing price of and payment for methamphetamine. Context therefore supported Mr Kulu’s observation. The message directly incriminated Mr Kulu. It also tended to undermine the defendants’ case they were importing steroids or bodybuilding supplements. There would be no need for a third party to change money on the defendants’ behalf if this is all they were doing as illegality, if any, would be modest.
[51] The message also needs to be understood in the context of other evidence allegedly connecting Mr Parker to the defendants. Mr Kulu was regularly in contact with Mr Fangupo and Mr Finau. Mr Fangupo’s telephone listed “Joseph Parker LS” as a contact. Mr Finau regularly corresponded with “joeboxerparker” about methamphetamine in the month following Mr Kulu’s message to Coka. Mr Finau was, of course, convicted of supplying methamphetamine in relation to the Wickr messages. Mr Finau also sent Mr Kulu a message on 28 October 2017 saying “parker” had just “piked up” (picked up). Again, none of this proves Mr Parker committed any criminal offence—but it was not offered to. In short, the contention Mr Parker was going to change money for the defendants was available on admissible evidence at trial.
[52] Mr Heron observes Police looked for Travelex records in relation to Mr Parker between 1 and 31 October 2017 and found none. However, Mr Kulu said the “WOB boxing champion” “is going to change it to US currency”.32 Mr Kulu did not say when. From then until mid-January the next year, the defendants imported three packages of methamphetamine weighing more than five kilograms. Moreover, the defendants used a variety of methods to change currency. Travelex was only one. For completeness, the Customs requisition document Mr Heron relies on contains the investigating officer’s opinion, “I believe the WOB boxing champion KULU is referring to is the New Zealand boxer Joseph Parker”. Obviously, this opinion was not adduced at trial.
[53] Mr Heron’s ethical complaint adds little to the analysis, especially as Mr Parker sought—and I granted—interim name suppression before trial.
[54] Mr Heron also contends the Crown should not have advanced the Sese and Joe contention, as a quick check on flight numbers (through Detective Bland, for example) would have revealed Mr Parker was in Doha. This submission re-enters the difficult territory referred to at [47]–[51]. However, I acknowledge the obvious. It is unfortunate the inquiry was not made, because an inaccurate contention was ventilated, potentially prejudicial to Mr Parker, that should have been avoided. The Crown did not refer to the Sese and Joe messages during its opening, or during the pre-trial application at which I granted Mr Parker interim name suppression. This sequence supports my impression (as trial Judge) the Crown decided late in trial to contend Mr Parker was Joe in these messages.
[55] Mr Heron contends the Police “knew” Mr Parker was not Joe. The submission is unsupported by evidence beyond Mr Parker’s affidavit in which he says he ‘understands’ Police knew this, and impossible to reconcile with Mr Heron’s concession no one was acting in bad faith. I reject it for both reasons.
32 Emphasis added. My earlier judgment referred to Mr Parker’s October 2017 travel in relation to Mr Kulu’s text message to Coka. However, now that I have the benefit of the transcript of the Crown’s (long) closing address, it is clear the Crown made no incriminating reference to that October travel.
[56] Mr Heron also submits it is possible the exchanges between “joeboxerparker” and Mr Finau concern cocaine, not methamphetamine. I decline to reach further into the trial, especially as Mr Finau was convicted of supplying methamphetamine in relation to these messages, and I sentenced on this basis.
[57] Mr Heron’s written submissions argue the various contentions about Mr Parker at trial are “false”. Clearly, the Sese and Joe implication is inaccurate, and properly abandoned. There are dangers in going further. First, Mr Parker’s guilt or innocence is not my province. Second, Mr Parker cannot complain about his absence from trial and advance submissions presupposing trial vindication. I repeat the obvious: Mr Parker has not been tried. Third, even when a defendant has been acquitted in a criminal case, rarely does this involve a declaration of innocence. Much more often it reflects the high standard of proof in criminal cases—proof beyond reasonable doubt—and the absence of defence obligation to prove anything.
[58] This leads to what I consider the real point. Mr Heron contends Mr Parker is “exponentially” worse off because the Sese and Joe implication received publicity. Several articles said the Crown “accused” a “Kiwi sportsman” of transporting cash to the United States to assist the defendants’ methamphetamine importation operation. Mr Heron argues the damage is already done even though Mr Parker was not Joe.
[59] I have read—and re-read—all of the relevant articles. None is lurid or sensationalist. Indeed, all are balanced and fair in terms of the trial evidence and arguments.33 The reporting so far recognises Mr Parker has not been charged, in turn compromising his ability to respond. The Sese and Joe implication has not received especial attention or prominence.34 Most of the reports refer to the various alleged connections between Mr Parker and the defendants. This is unsurprising. Mr Kulu’s message to Coka is somewhat striking. It was always likely to attract attention. So too the messages between “joeboxerparker” and Mr Finau. Of course, balanced reporting from this point should include the Crown’s abandonment of the Sese and Joe
33 Some of the articles refer to Police being “set” to lay charges against Mr Parker. This aspect was not the subject of trial evidence. Others refer to the search warrant as issued by the High Court. I do not regard this gremlin as significant.
34 Mr Heron is critical of the Crown’s treatment of the evidence in the Court of Appeal. Mr Barry is reported to have submitted Mr Parker was “intimately involved” in financing the operation. I accept this is overstatement. However, the Court of Appeal did not endorse the submission.
implication. Mr Stewart responsibly acknowledges as much on behalf of Stuff. Given all this, I am not persuaded Mr Parker is appreciably worse off.
[60] A possible answer to this analysis is the all too human reaction that when there is smoke, there is fire. However, this concern animated my reasoning Mr Parker faced risk of undue hardship in the event of publication; the sequence does not materially aggravate that risk.
[61] I summarise. The Court of Appeal’s pithy statement of my undue hardship conclusion still holds true; see [44]. This does not imply my uncritical acceptance of the evidence of Mr Parker’s sister or promoter. Each is also speaking in self-interest. Both assume a worst-case scenario too. However, I accept the premise of their evidence: Mr Parker may suffer greater hardship because of the potential impact of publicity on his reputation, sporting and related financial interests. Again, I do not accept Mr Parker is in an appreciably worse position than he was. While there remains some risk of trial by media (in relation to an uncharged individual), so far, the reporting has been balanced and fair. There is no reason to believe future reporting will not include the Crown’s abandonment of the Sese and Joe implication. Stuff acknowledges it should.
The discretionary stage of the analysis
The defendants’ modus operandi
[62] The Court of Appeal held a high public interest attaches to how methamphetamine enters New Zealand. This extends to “knowing who is behind [the] offending, including those who assist or enable it to occur, even if not directly involved”.35 So, evidence about the alleged financing of the importations weighed in favour of reporting Mr Parker’s name. The latter is not inherently newsworthy, but an aspect of the evidence in relation to “the modus operandi of the defendants”.36
[63] Mr Heron contends this analysis is no longer true because of the Crown’s retraction of the Sese and Joe implication. I have already rejected this argument.
35 Parker v R, above n 7, at [27].
36 At [28].
Mr Kulu’s message about the world boxing champion was admissible. It supported the implication Mr Parker was going to change money for the defendants, an implication buttressed, albeit indirectly, by other alleged connections between Mr Parker and the defendants (see [28]–[30]). The evidence also tended to rebut the defence case about bodybuilding supplements or steroids, and directly incriminated Mr Kulu.
[64] Mr Heron contends, alternatively, this analysis does not favour publication quite as strongly as before given the Crown’s abandonment of the Sese and Joe implication. I agree.
Seriousness of the offending
[65] The Court of Appeal held the seriousness of the defendants’ offending was relevant, and tended to favour publication. Mr Heron submits Mr Parker did not commit any offence, hence this factor has no purchase. He notes Mr Parker has denied helping the defendants—and on oath in an affidavit:
I have never been involved in the importation of class A drugs. I have never changed or transported money for the defendants. I have never been involved in the purchase, supply or consumption of methamphetamine. Nor was I charged by the Police in relation to the specific messages alleged to relate to me, after what appeared to be a thorough investigation. I therefore understood that I did not need to comment on those messages in order to pursue my application for name suppression.
Mr Heron invites me to place significant weight on the affidavit, as the Crown and Stuff did not wish to cross-examine Mr Parker.37
[66] I do not doubt it is open to a connected party to deny the implications arising from evidence in a defendant’s trial. However, the Criminal Procedure Act contains no provision for mini-trials in this context. This is unsurprising. Section 202 is not concerned with the connected person’s guilt or innocence; rather, undue hardship to that person. This explains the absence of cross-examination, which I would have discouraged in any event. I give the affidavit some weight, particularly given its rebuttal of the Sese and Joe implication, but not great weight. I am not concerned with
37 Evidence Act, s 92.
whether Mr Parker has committed criminal offences; rather, whether his name should be published in relation to the established offending of others.38
[67] For these reasons, I consider the Court of Appeal’s analysis of this criterion remains applicable:39
… The point of conducting criminal trials in public and the principle of open justice is that the trial can be fully reported by the media acting as proxy for the public. It is evident, for example, from this Court’s decision in Re Victim X, that restrictions on the publication of information about a trial should be kept for only “very special circumstances”. The Judge was quite right to identify the seriousness of the offending as relevant. The fact that Mr Parker was not an active participant in the trial does not detract from this factor.
Public interest in the charging decision and adequacy of the Police investigation
[68] The Court of Appeal concluded there is legitimate public interest in scrutiny of a Police decision not to charge someone who may have been involved in criminal offending. The Court considered suppression of Mr Parker’s name may stifle meaningful debate on this issue, though it did not accept my conclusion Mr Parker’s identity was conterminous with such debate.40
[69] Mr Heron contends it is now beyond doubt there is inadequate evidence for Police to charge Mr Parker with aiding or abetting the defendants’ importation of methamphetamine, as ultimately, the only evidence in this respect is Mr Kulu’s message to Coka, a message to which Mr Parker was not a party, and for which there is no direct corroboration. This may be correct. Evidence implicating Mr Parker would presumably have implicated the defendants, in turn suggesting if any evidence existed, it would have been adduced at trial. Still, I consider Mr Heron’s submission too narrow. A related concern, as articulated by Mr Stewart, is the adequacy of the Police investigation in relation to Mr Parker. Five matters arise.
[70] First, Police obtained a search warrant in relation to Mr Parker, granted by a District Court Judge. The warrant would not have been granted unless the Judge was
38 For completeness, I note Mr Parker has not engaged with the detail of the other trial evidence.
39 Parker v R, above n 7, at [44].
40 At [47].
satisfied reasonable grounds existed to suspect the commission of an offence punishable by imprisonment, and there were reasonable grounds to believe the search would find evidential material in respect of that offence in the place or thing to be searched.41 Police did not execute the warrant. Why remains unclear.42
[71] Second, documents appended to Mr Parker’s affidavit suggest Police sought associated Travelex records for the month of October 2017 only, even though Mr Kulu’s message to Coka did not say when the alleged transaction would occur. Nor is it clear whether thought was given to investigating other currency agencies (assuming others exist).
[72] Third, Police sought to interview Mr Parker. He declined to be questioned, as he was entitled to do. But only a week later, Police told Mr Parker he would not be charged. I agree with Mr Stewart the timing is curious.
[73] Fourth, at the original hearing on 1 May 2019, Mr Heron said he had “quite a dialogue” with Police about the scope of their investigation in relation to Mr Parker. Mr Heron said there had been no suggestion Mr Parker changed money for the defendants. This raises the possibility of no real Police inquiry on this aspect.43
[74] Fifth, I do not read the Court of Appeal’s judgment on this topic as confined to the charging decision in relation to alleged financing. It is not clear what inquiries Police made, if any, to establish the identity of the Wickr correspondent using “joeboxerparker”. As observed, Mr Finau was convicted of repeatedly supplying methamphetamine in relation to these messages.
[75] In short, while the Police inquiry in relation to the defendants was plainly thorough given the evidence adduced at trial, doubt attaches to whether the same is true of the inquiry of Mr Parker. I accept Mr Stewart’s submission the public interest in relation to the charging decision extends to the adequacy of the antecedent
41 Search and Surveillance Act 2012, s 6.
42 Mr Parker appended a Police jobsheet to his affidavit which suggests the warrant was not executed because he was out of the country. However, many search warrants are executed in the absence of a possible suspect for obvious reasons.
43 I do not overlook Police do not need to tell someone the scope of their interest (for good reason).
investigation, out of concern neither has been approached in a thorough, even-handed fashion. I share this concern as trial Judge.
[76]This aspect favours publication, and strongly.
Natural justice
[77] Mr Heron submits the Crown’s misadventure in relation to the Sese and Joe messages is illustrative of the dangers in this area: seemingly incriminating evidence evaporates once the connected person is given an opportunity to answer the allegations, but by then, the damage is done. The allegations have been reported— and taken as true.
[78] I accept misadventure in relation to the Sese and Joe messages favours suppression. The contention Mr Parker changed money in California was inaccurate. It would not have been difficult for the Crown to identify where Mr Parker was. Had it done so, it would have quickly appreciated Mr Parker could not be Joe.
[79] However, I do not consider this aspect or the underlying matter of Mr Parker’s trial absence decisive. Section 202 recognises the potential disadvantage of a non-party through a lower standard; a criminal defendant must satisfy the court he or she faces real risk of extreme hardship.44 This is a very high standard. Mr Parker has now been given everything underlying the “Crown’s memorandum setting out evidential references to interested party”, as well as the complete exhibit booklets and Crown’s closing address. Any breach of natural justice has been addressed. And, I have already concluded Mr Parker is not appreciably worse off because of the Sese and Joe implication.
Open justice
[80] Mr Heron contends it is not in the interests of open justice for Mr Parker to be associated with “false” allegations arising from trial. He emphasises Mr Parker’s denial, on oath. I have already addressed the Sese and Joe error. Beyond this, there
44 Criminal Procedure Act, s 200(2)(a).
are dangers in describing evidence or associated implications as “false” for reasons already explained. These I do not repeat.
[81] Mr Stewart emphasises the importance of open justice, a principle described by the Supreme Court as “fundamental to the common law system of civil and criminal justice”, and by the same Court, as one of “constitutional importance”.45 Mr Stewart contends the principle favours publication. I agree.
Evaluation
[82] As will be apparent, some aspects favour suppression, including of course, risk of undue hardship. Most favour publication. In my earlier judgment, I concluded suppression of Mr Parker’s name may, in all the circumstances, contribute to the long-term, incremental erosion of public confidence in the administration of criminal justice by placing disproportionate weight on immediate hardship.46 I remain of this view. Taken together, I consider decisive the seriousness of the defendants’ offending; Mr Parker’s alleged connection to that offending; the public interest in the charging decision and Police investigation; and the fundamental public interest in open justice. Or, as Lord Steyn said in Re S:47
A criminal trial is a public event. The principle of open justice puts, as has often been said, the Judge and all who participate in the trial under intense scrutiny. The glare of contemporaneous publicity ensures that trials are properly conducted. It is a valuable check on the criminal process. Moreover, the public interest may be as much involved in the circumstances of a remarkable acquittal as in a surprising conviction. Informed public debate is necessary about all such matters. Full contemporaneous reporting of criminal trials in progress promotes public confidence in the administration of justice. It promotes the values of the rule of law.
Result
[83]The application is dismissed.
45 Erceg v Erceg [2016] NZSC 135; [2017] 1 NZLR 310 at [2].
46 My original decision, above n 6, at [56].
47 Re S [2004] UKHL 47, [2005] 1 AC 593 at [30].
Other matters and orders
[84] The Registrar is to give this judgment to the lawyers for the defendants: Mr Bonnar QC, Mr Mansfield, Ms Sellars QC and Ms Pecotic.
[85] I acknowledge Mr Parker may again appeal. I suppress the judgment until 5 pm, Monday 15 June 2020 (including the result), to allow Mr Heron an opportunity to take instructions. Mr Heron must identify by then whether an appeal is to be filed. If an appeal is to be filed:
(a)I will make an interim suppression order under s 286(1) of the Criminal Procedure Act, as required by the Act.
(b)I am inclined to publish a redacted version of the judgment given the public interest in the case. For this reason, a draft redacted judgment is released with this one. Further (or different) proposed redactions are also to be identified by 5 pm, Monday 15 June 2020.
……………………………..
Downs J