R v A - [2021] NZHC 3050

ORDER PROHIBITING PUBLICATION OF NAME(S), ADDRESS(ES), OCCUPATION(S) OR IDENTIFYING PARTICULARS OF APPLICANTS PURSUANT TO S 200 CRIMINAL PROCEDURE ACT 2011. SEE

SUPPRESSION OF CERTAIN FACTS AS PER [58] OF THE JUDGMENT. PUBLICATION OF UNREDACTED VERSION OF JUDGMENT

PROHIBITED, OTHER THAN IN LAW REPORTS OR LEGAL DIGEST

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2018-044-2222

[2021] NZHC 3050

THE QUEEN

v

A B C

Defendants

Hearing: On the papers

Appearances:

BD Tantrum for the Crown AS Bloem for A

NP Chisnall for B SM Buckley for C

Judgment:

11 November 2021

Reissued:

21 December 2021 (with redactions)

JUDGMENT OF FITZGERALD J

Solicitors: Meredith Connell, Auckland

To:A Bloem, Auckland N Chisnall, Auckland S Buckley, Auckland

R v A, B, C [2021] NZHC 3050 [11 November 2021]

Introduction

[1] In [Redacted], the [Redacted] Marae in [Redacted] (the Marae) was burned down. On 3 August 2018, A, B and C were charged with the arson of the Marae.

[2] A three week High Court jury trial was scheduled to commence on 6 September 2021. However, the trial could not proceed because of COVID-19 restrictions in the Auckland lockdown that begun on 17 August 2021 and is, at the time of this judgment, still ongoing.

[3] On 26 August 2021, the Crown notified the Court that it would seek leave to withdraw the charge of arson against each of A, B and C pursuant to s 146 of the Criminal Procedure Act 2011 (the Act). Withdrawal of a charge is not, however, a bar to any other proceeding in the same matter.1 A, B and C accordingly took the position that the charge should be dismissed pursuant to s 147 of the Act. Counsel for A, B and C engaged with counsel for the Crown, and provided the Crown with a “preview” of the defence evidence. The Crown thereafter advised that it intended to offer no evidence on the charge and would not oppose disposition pursuant to s 147 of the Act.

[4] The matter came before me in callover on 20 October 2021. Having confirmed with counsel for the Crown that the Crown did not intend to offer any evidence on the charge, I dismissed the charge against each of A, B and C pursuant to s 147 of the Act.

[5] Each of A, B and C had been granted interim name suppression (by the District Court) through to the conclusion of trial.2 Following dismissal of the charge, counsel for each of A, B and C confirmed that permanent name suppression was sought by each of their respective clients. Ms Buckley, counsel for C, also sought permanent name suppression of [Redacted] (Northpower).3

[6]The Crown does not oppose any of the applications.

1      Criminal Procedure Act 2011, s 146(2).
2      New Zealand Police v [A, B and C] [2018] NZDC 24249.
3      [Redacted].

[7] As I noted in a minute dated 20 October 2021, despite there being no opposition to the applications, I…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v A

Details

AGLC: R v A [2021] NZHC 3050
Case: [2021] NZHC 3050
Decision Date: 11 November 2021

CaseChat Overview and Summary

In this case, A, B, and C were charged with arson of a Marae in [Redacted]. Due to COVID-19 restrictions, the trial could not proceed, and the Crown decided to offer no evidence on the charge. As a result, the charge was dismissed, and the defendants sought permanent name suppression. Northpower also applied for permanent name suppression. The court had to decide whether to grant the applications for permanent name suppression under the Criminal Procedure Act 2011.

The court considered the applications under the two-step inquiry process. The first step was to determine if one or more of the threshold grounds in s 200(2) had been met. The second step, if a threshold ground was made out, was to determine whether, in the court's discretion, suppression ought to be declined. The court found that A, B, and C met the threshold grounds for permanent name suppression, primarily because publication would likely lead to the identification of another person whose name is suppressed by order or by law. The court also found that the collective effect of the matters discussed led to the conclusion that permanent name suppression ought to be granted.

However, the court declined Northpower's application for separate name suppression. The court found that there was no particular or legitimate public interest in the publication of the fact that Northpower was connected to the proceedings. Instead, the court made an order suppressing the publication of that fact.

In conclusion, the court granted A, B, and C's applications for permanent name suppression and made orders prohibiting the publication of their names and identifying details. The court declined Northpower's application for separate name suppression but made an order suppressing the publication of the fact that Northpower was connected to the proceedings.

Orders