Pelaez-Garcia v District Court at Christchurch

[2021] NZHC 3501

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2021-409-000561

[2021] NZHC 3501

UNDER

the Judicial Review Procedure Act 2016

IN THE MATTER

of an application for judicial review of a decision of the District Court in relation to an in-court media application

BETWEEN

ANDERSON PELAEZ-GARCIA

Applicant

AND

DISTRICT COURT AT CHRISTCHURCH

Defendant

Hearing:	10 December 2021
Appearances:	E Huda for Mr Pelaez-Garcia
Judgment:	17 December 2021

JUDGMENT OF DOOGUE J

[Reasons for Judgment of 10 December 2021]

This judgment was delivered by me on 17 December 2021 at 2.30 pm pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

PELAEZ-GARCIA v DISTRICT COURT AT CHRISTCHURCH [2021] NZHC 3501 [17 December 2021]

Introduction

[1]        The applicant, Mr Anderson Pelaez-Garcia, is a Colombian national residing in New Zealand. He is charged with 10 offences all relating to alleged importation of cocaine into New Zealand.

[2]        On 10 December 2021, I made an order under s 15(2)(b) of the Judicial Review Procedure Act 2016 (the Act) staying the effect of the decision of Judge Hix to grant an in-court media application (ICMA) dated 16 November 2021 by Television New Zealand Limited (TVNZ) seeking orders permitting it to film, take photographs and record sounds for news and current affairs programming.1 This decision records my reasons for making the order.

Background

[3]        On Thursday 11 November 2021, Mr Pelaez-Garcia was brought before the District  Court  at  Christchurch  in  relation   to   the   offences   specified   above. Mr Christopher Lange, barrister of Eyreton, was assigned as legal aid counsel.

[4]        On that day, the District  Court adjourned the proceeding  until  2.15 pm  on  1 December 2021 for the entry of pleas and election, and remanded Mr Pelaez-Garcia in  custody.  The  Court  also  made  an  interim  order  forbidding  publication  of Mr Pelaez-Garcia’s name until 19 November 2021.

[5]        Mr Pelaez-Garcia was remanded to Christchurch Men’s Prison (CMP) and was immediately subject to a 14-day isolation period because of the COVID-19 pandemic. During the isolation period, Mr Pelaez-Garcia was able to meet Mr Lange, but only via audio-visual link (AVL).

[6]        Mr Pelaez-Garcia speaks Spanish and very limited English. Therefore, he and Mr Lange need an interpreter’s assistance to communicate meaningfully.

1      Pelaez-Garcia v District Court at Christchurch [2021] NZHC 3401.

[7]        On Tuesday 16 November 2021, TVNZ filed and served an ICMA seeking orders permitting it to file, take photographs and record sounds for news and current affairs programming.

[8]        On Thursday 25 November 2021, Mr Lange arranged an AVL meeting with Mr Pelaez-Garcia  in  the   presence   of   an   interpreter.   During   this   meeting, Mr Pelaez-Garcia informed Mr Lange that he was concerned CMP staff were able to overhear lawyer-client conversations and therefore asked Mr Lange to arrange an in-person meeting if possible. A one-and-a-half-hour meeting, with an interpreter, at CMP was scheduled between 11.00 am and 12.30 pm on Tuesday 30 November 2021.

[9]        On 30 November 2021, Mr Pelaez-Garcia’s meeting with Mr Lange abruptly ended after approximately 10 minutes because CMP went into “lockdown”. Later that day, Mr Lange informed the District Court, by email, Mr Pelaez-Garcia opposed the ICMA because Mr Lange had been unable obtain fully informed instructions.

[10]      On Wednesday 1 December 2021, Mr Pelaez-Garcia and Mr Lange had an unscheduled 40-minute meeting in the Christchurch Courthouse custody suite, prior to Mr Pelaez-Garcia’s 2.15 pm appearance before the District Court. Luckily, an interpreter was present at the courthouse. Mr Pelaez-Garcia and Mr Lange were able to discuss the criminal process, pleas and elections. Mr Pelaez-Garcia raised concerns about the safety of his family in Colombia, especially if his image were published.

[11]      Later that day, Mr Pelaez-Garcia was brought before Judge Hix in the District Court. Mr Lange indicated the ICMA was opposed for the reasons mentioned in his email of 30 November 2021. He effectively applied for an adjournment to bring evidence to support the opposition to the ICMA. The Crown indicated they were neutral on the application.

[12]      Judge Hix gave an oral judgment granting the ICMA but forbidding publication of Mr Pelaez-Garcia’s name and those of his co-defendants until 4.00 pm on Friday  3 December 2021 so as “to enable counsel to consider their position on the ruling … delivered on the media application”.2 This decision entitled TVNZ to film and publish

2      R v Pelaez-Garcia [2021] NZDC 23754 at [15].

Mr Pelaez-Garcia’s image.  The  judgment  makes  passing  reference  to  the  fact Mr Lange had not had sufficient time to take instructions. The judgment makes no reference to the application for an adjournment but, by implication, dismissed it.

[13]      On 3 December 2021, Judge Hix extended the previously imposed name suppression deadline to 4.00 pm on Friday 10 December 2021.

Grounds for relief

[14]      Mr Pelaez-Garcia applied for judicial review of Judge Hix’s decision granting the ICMA, alleging Judge Hix erred in not allowing him adequate time and facilities to prepare, file and serve a notice of opposition to the ICMA in circumstances where he had limited opportunity to effectively “consult and instruct [his] lawyer”.3

[15]The relevant exchanges between the Court and counsel are instructive:

MR LANGE TO THE COURT:

A.And the ground that's been raised with me as regards images being taken by the media and it appears matters are being shared worldwide is that may place members of his family at risk back home.

Q.And I suppose that's what I was getting at.  I need to have some sort  of evidential foundation that allows me to make an assessment as to the degree of risk as you say.

A. I agree. I agree Sir and I need explained that information has been conveyed to me this afternoon at the first proper meeting I have been able to have with my client with an interpreter and I accept that evidence will need to be filed and, therefore, I am asking today that there be no publication and the matter can be revisited should the media wish to have in court media coverage at the case review hearing. With my client I do require the assistance of an interpreter. It is not straightforward.

Q.       All right.

THE COURT TO MR HARVEY:

Q.       What’s the Crown position?

A.I'm (inaudible 16:26:07) Sir.   My friend’s  explained  he  needs some time to get some paperwork together. He’s explained the issues with me so I'm neutral to his application to adjourn the media request.

3      New Zealand Bill of Rights Act 1990, s 24.

Q. Mr Harvey I've got written on here that an interim order for name suppression was made on the 11th of November. It’s three weeks later now or closer and it’s supposed to have lapsed today and I think what I'm hearing is an application to extend that.

A.No, sorry, as I understood it, interim name suppression lapsed on the 19th of November at 9.00 am.

Q.       Oh okay. No name suppression’s not an issue for you?

A.       No.

MR LANGE TO THE COURT:

A.       No Sir, it’s the media –

Q.       Okay.

A. – recording of the defendant and that being published, it would be available on the internet. I understand that Columbian…

Q.       So if they publish his name… MR HARVEY TO COURT:

It’s already been published Sir. THE COURT TO MR LANGE:

Q.       Well if it’s already been published how does that…

A.       It’s his image Sir. It’s a photo of him.

Q. What I'm hearing is there's ground for seeking that his image be not published as the fear of retribution at home and I'm just trying to see where the risk is, given that his name’s already out there and if any main supplier of drugs is interested in this cartel they know him. They know his name. So what’s his image going to do?

A.Firstly exception is taken to these defendants being referred to as a  cartel.

Q.       Okay, all right. I accept that.

A.There's no evidence of said – secondly, on my instructions there is a  risk to his family if his image, a photo of him, or a recording of this court case is published. Now I need more information in relation to that to be able to present evidence to the Court as to how that risk arises in Columbia. What I'm asking for today is that the in court media coverage be declined, the ability to take photographs or video and that can be revisited at the case review hearing.

Q.       I'm inclined to grant the application.

A.       Thank you Sir.

Q.I'm noting he’s got his mask on as well.  So I've indicated that's what I'm about to do. Is there anything else you wanted to add?

A. What’s the in court? I have filed a notice by plea, plea by notice  recording not guilty pleas and electing trial by jury. The matter will go through to the same Crown case review date and I can indicate that a bail application is likely to be filed in the near future.

Q.       I'll just deliver a decision. Sorry is there something else or?

A.       No Sir.

[16]      On my reading of the transcript, it seems a miscommunication occurred between counsel and the Court. It is reasonable to conclude that Mr Lange’s thanking of the Judge indicated he thought the Judge was saying he would grant the application for adjournment when the Judge said, “I am inclined to grant the application”. My conclusion is supported by the fact Mr Lange no longer pressed the issue when he was given further opportunity, “Sorry is there something else or?”.

[17]      Despite having been alerted to the fact Mr Lange required an adjournment for, prima facie, very good reason and despite the Crown being neutral on the matter, the Judge proceeded to grant the ICMA without properly affording Mr Pelaez-Garcia his right to be fully heard.  His judgment  is  devoid  of reasons  as to  why he thought Mr Pelaez-Garcia should not be afforded the opportunity to bring evidence in support of his opposition to the IMCA.

Interim order

[18]The relevant parts of s 15 of the Act say:

15       Interim orders

(1)At any time before the final determination of an application, the court may, on the application of a party, make an interim order of the kind specified in subsection (2) if, in its opinion, it is necessary to do so to preserve the position of the applicant.

(2)The interim orders referred to in subsection (1) are interim orders—

(a)prohibiting a respondent from taking any further action that is, or would be, consequential on the exercise of the statutory power:

(b)prohibiting or staying any proceedings, civil or criminal, in connection with any matter to which the application relates:

(c)declaring that any licence that has been revoked or suspended in the exercise of the statutory power, or that will expire by the passing of time before the final determination of the application, continues and , where necessary, that it be deemed to have continued in force.

(3)       …

(4)An order under subsection (2) or (3) may—

(a)be made subject to such terms and conditions as the court thinks fit; and

(b)be expressed to continue in force until the application is finally determined or until such other date, or the happening of such other event, as the court may specify.

[19]      The order I made was necessary to preserve Mr Pelaez-Garcia’s position pending his having sufficient opportunity to file an affidavit in the District Court in support of his opposition to the ICMA. If that is done the matter can then be properly argued before that Court.

[20]      Further media applications have since been filed and will be the subject of argument at the case review on 24 February 2022. It would be efficacious if TVNZ’s application was revisited alongside those applications.

[21]      Pursuant to s 15(4)(a), I direct Mr Pelaez-Garcia to formally file any notice of opposition and affidavit in support in the District Court and to effect service no later than 17 February 2022.

[22]      The order staying the effect of Judge Hix’s order will preserve the position of Mr Pelaez-Garcia through to 2 March 2022, when it will lapse. Its sole purpose is to provide Mr Pelaez-Garcia sufficient time to file any evidence in opposition to any media application and for the matter to be properly heard.

[23]I expect counsel will then file a notice of discontinuance of this proceeding.

Doogue J

Solicitors:

Patients & Williams

Crown Solicitor’s Office, Christchurch CC:

E Huda, Christchurch