R v B
[2008] NZCA 130
•27 May 2008
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NOTE: PUBLICATION OF NAMES OR IDENTIFYING PARTICULARS OF COMPLAINANTS PROHIBITED BY S 139 CRIMINAL JUSTICE ACT 1985.
INTERIM ORDER PROHIBITING PUBLICATION OF THE JUDGMENT IN NEWS MEDIA OR ON INTERNET OR OTHER PUBLICLY ACCESSIBLE DATABASE UNTIL FINAL DISPOSITION OF THE LAST TRIAL. PUBLICATION IN LAW REPORT OR LAW DIGEST PERMITTED. INTERIM ORDER PROHIBITING ANY PUBLICATION OF THE APPELLANT'S NAME UNTIL THE COMMENCEMENT OF THE LAST TRIAL.
PUBLICATION OF ANY REPORT IDENTIFYING THE APPELLANT AS A DEFENDANT IN RELATION TO CHARGES OTHER THAN THOSE WHICH ARE THE SUBJECT OF THE LAST TRIAL IS FORBIDDEN UNTIL VERDICT IN THAT TRIAL.
IN THE COURT OF APPEAL OF NEW ZEALAND
CA459/06 [2008] NZCA 130
THE QUEEN
v
B (CA459/06)
Hearing: 14 April 2008
Court: William Young P, Robertson and Baragwanath JJ Counsel: Appellant appears in person
F E Guy Kidd, C A Griffin and K Laurenson for Crown
Judgment: 27 May 2008 at 3pm
JUDGMENT OF THE COURT
R V B (CA459/06) CA459/06 27 May 2008
A The appeal is allowed.
BInterim order prohibiting publication of the judgment in news media or on internet or other publicly accessible database until final disposition of the last trial. Publication in law report or law digest permitted.
CInterim order prohibiting any publication of the appellant’s name until the commencement of the last trial.
DOrder prohibiting publication of any report identifying the appellant as a defendant in relation to charges other than those which are the subject of the last trial until verdict in that trial.
E Liberty to apply to vary this order is reserved.
REASONS
Baragwanath J [1] William Young P and Robertson J [69]
BARAGWANATH J
Table of Contents
Para No
Open justice and the right to a fair trial [1] Procedural background [4] The facts [6] The charges [6]
Counts 1 and 2 – Sexual violation by rape [6] Count 3 – Sexual violation by rape [7] Counts 4 and 5 – Doing an indecent act
and indecent assault [8]
Count 6 – Sexual violation by unlawful sexual connection [9]
The severance decision [10] The defence applications under ss 138 and 140 [15] The judgment of the District Court [17] The judgments of the High Court [18] The legislation [20] Perspective [21]
The Bill of Rights interests: freedom of expression; fair trial;
presumption of innocence [21] The leading case: R v Liddell [23] Importance of stage of proceedings [25]
Crown argument: the interests of open justice and freedom of
expression [31]
(i) Hearing in open court [31] (ii) The risk of breach of a court order [33] (ii) The possibility of further evidence or further complainants [34] (iv) The ability of jurors to handle inadmissible information [35]
Defence argument: the interests of a fair trial, the presumption of
innocence, human dignity and privacy [37]
(i) Accused’s right to a fair trial [37] (ii) Presumption of innocence [41] (iii) Human dignity and privacy [43]
Variable interests [44] Discussion [45] This case [64]
Open justice and the right to a fair trial
[1] This Court granted special leave to appeal on the following question: whether a decision of the District Court to refuse to prohibit the publication of the name of the appellant was, in the circumstances of the case, plainly wrong. The issue is how to reconcile important competing values, including those commonly described as open justice and an accused’s right to a fair trial, in deciding whether publication of the appellant’s name and particulars of other charges against him should be forbidden during the period prior to trial.
[2] On the facts of this case the answer is clear. The right to a fair trial trumps all else. The reasons for severance – to avoid injustice because admission of evidence on other counts would be unfairly prejudicial to the accused and thus to a fair trial – apply equally to the prohibition of publication of name and of particulars of the other charges. The interests of open justice can be met by postponing publication.
[3] But because statements in earlier cases as to the general importance of open justice have led an experienced Judge into error in this case, this judgment seeks to place that topic in perspective. The courts have found with what is now called evidence of propensity that it is unhelpful simply to list separate categories of cases where such evidence is admitted or excluded. There is the same problem in the present context. Here the Judge felt himself bound by the emphatic language of this Court in R v Proctor [1997] 1 NZLR 295, as to the importance of open justice, to deny suppression of the appellant’s name. While the simple response in [2] gives an answer to the question identified in the judgment giving leave to appeal, it is a categorical answer. A more substantial response is that, for the reasons that follow, although often the answer to an application to withhold publication will be reasonably straightforward, a more discriminating approach is required than can be stated in a simple formula. There is need for careful identification of the parties whose interests are at stake and the recognition and evaluation of a number of competing factors. Among them are the desirability that justice be open, the presumption of innocence, the need to maintain confidence in the courts, and the overriding requirement that the trial be fair.
Procedural background
[4] The appellant was charged on an indictment containing six counts of sexual offending against four different women. While awaiting hearing of a defence application for severance and separate trials of counts of sexual offending contained in a single indictment, he applied to the District Court for orders under ss 138 and 140 of the Criminal Justice Act 1985 that there be no publication of the proceedings and that publication of his name be withheld. The District Court declined the application. An appeal against its decision was dismissed by the High Court. Subsequently severance was ordered and a direction given that there be four separate trials. Because the topic of interim orders has not been considered by this Court in any comparable case, special leave to appeal was granted. Orders withholding publication of the appellant’s name, which had been in force throughout, were continued pending this Court’s judgment.
[5] By the time of the hearing in this Court two of the cases had been disposed of: one by a discharge under s 347 of the Crimes Act 1961 and an order for permanent name suppression, and the other by a guilty plea and sentence. A third trial which commenced on 30 April 2008 was declared a mistrial and a new date has been set for 11 August 2008. The fourth had a tentative fixture for 3 June 2008. The Crown accepted that, if the decision on the present appeal were favourable to the Crown, its release shortly before the trial dates could itself risk injustice by emphasising the fact of the severed charges. We therefore ordered that interim suppression of the appellant’s name in relation to the other cases continue at least until the commencement of the last trial and that particulars of those other charges and their fate be suppressed until verdict in the final case. It followed that the appeal must be allowed in relation to the period until such verdict. But we were asked by both parties to deal with the issues of principle. Because of the practical importance of the topic we agreed to do so.
The facts
The charges
Counts 1 and 2 - Sexual violation by rape
[6] Counts 1 and 2 related to alleged sexual violation by rape of a woman, A, on the evening of 24 June 2004 and again on the morning of 25 June 2004.
Count 3 – Sexual violation by rape
[7] Count 3 alleges rape of another woman, B, on the evening of the following day 26 June 2004.
Counts 4 and 5 - Doing an indecent act and indecent assault
[8] Counts 4 and 5 allege two acts of indecency against a third woman, C, on
15 October 2004.
[9] Count 6 alleges sexual violation of a fourth woman, D, on 24 July 2005 by unlawful sexual connection.
The severance decision
[10] While the orders under ss 138 and 140 of the Criminal Justice Act preceded the severance ruling, it is convenient first to describe that ruling to see those orders in context.
[11] The Crown submitted to Judge Barry that severance should be denied on the basis that the evidence of each complainant was admissible in relation to the charges against all other complainants. It argued that there were what it termed “sufficient unifying themes created by the similarity between the complaints, similarity between the dynamics of the social settings that the allegations occurred, commonality in terms of time and place and the accused’s personality and demeanour towards each of the complainants” to render cross admissibility appropriate to each of their complaints.
[12] The defence submitted that the individual complaints were not admissible against each other; that they were unrelated in time or circumstance; that they were not interwoven or interconnected; and that to refuse severance would foist massive illegitimate prejudice on the accused to the extent that a fair trial would be impossible.
[13] In his judgment of 9 March 2007, Judge Barry determined that the evidence of the individual and collective complaints said by the Crown to reveal a striking pattern of similarity did not go beyond establishing a mere propensity and bad character. Accordingly he found the evidence of each individual complainant’s allegations to be inadmissible in respect of the charges against the other complainants. He ordered separate trials of each count or set of counts involving different complainants.
The defence applications under ss 138 and 140
[15] Interim orders were made in the District Court at an early stage forbidding publication of the appellant’s name (s 140) and the evidence and submissions (s 138). Defence counsel applied to that Court for the orders to continue on the grounds that:
(a) he intended to apply for a separate trial in relation to each charge;
(b) knowledge by any juror of the facts alleged in any other charge would create unfair prejudice;
(c) there was potential risk that jurors would either recall any news report or make an internet search which would disclose such information;
(d) existence of the charges was well known in the circles in which the appellant moved so that it was unlikely that publicity would lead to the discovery of further evidence or of other offending;
(e) the appellant was on stringent bail conditions, including a requirement to wear an electronic bracelet and confinement to his home except in daylight hours, and re-offending would be extremely unlikely.
[16] Crown counsel submitted in opposition:
(a) In Proctor this Court, in a pre-trial case, applied the principle stated by the full Court of Appeal in R v Liddell [1995] 1 NZLR 538 (at 546):
In considering whether the powers given by s 140 should be exercised, the starting point must always be the importance in a democracy of freedom of speech, open judicial proceedings, and the right of the media to report the latter fairly and accurately as ‘surrogates of the public’.
(b) The Court in Proctor cited with approval the statement of Fisher J at first instance (at 299):
This case has apparently been the subject of intensive police investigation since August 1995 but of necessity the investigations have been confined to those complainants specifically approached by the police by virtue of those inquiries they have been able to make. Their inquiries have focused on those persons with whom he is known to have had dealings. Public identification of the accused could attract a wholly different source of potential complainants.
It added (at 300):
We … consider that the prospect other persons might come forward as complainants with additional allegations of sexual abuse is a most important factor in refusing suppression prior to trial in respect of an accused person charged with offending of this kind. Not only is it appropriate that an accused be charged with any such offending and duly tried, but possible cross-examination and lines of defence aimed at discrediting the existing complainants, such as assertions of undue influence by one of them or a conspiracy among them all, may be thwarted if they do so. The community's interest in the effective prosecution of crime is then furthered.
(c) Two of the four complainants had little or no prior knowledge of the appellant and neither moved in the same circles as him. The prospect of further complaints coming forward was real.
The judgment of the District Court
[17] On 21 July 2006 Judge Broadmore gave judgment declining the application. (a) He accepted that the prospect of an order for separate trials might be
taken into account but did not regard it as determinative.
(b) He noted the risks identified by the applicant but found no distinction from Proctor apart from the submission concerning juror access to the internet. He cited the observations of Randerson J in R v Rickards HC AK CRI 2005-063-1122 28 November 2005 that in that case a fair trial was still possible despite adverse publicity; that the effects of the publicity would largely have dissipated by the time of trial; that it was to be expected that the jurors would be loyal to their oath and give effect to
strong judicial directions; and that in the formal atmosphere of the courtroom a fair trial would be possible.
(c) He considered that the principles of open justice, coupled with the possibility of further witnesses in relation to the charges, required that the existing orders should not be extended.
The judgments of the High Court
[18] On 26 September 2006 Miller J dismissed an appeal, holding that there had been no error in principle in the District Court’s judgment.
[19] Leave to appeal to this Court was declined by Gendall J on 5 December 2006 on the grounds that the application disclosed no question of law which because of its general or public importance, or for any other reason should be submitted to this Court for decision (s 144 of the Summary Proceedings Act 1957).
The legislation
[20] Sections 138 and 140 of the Criminal Justice Act state:
138 Power to clear Court and forbid report of proceedings
(1) Subject to the provisions of subsections (2) and (3) of this section and of any other enactment, every sitting of any court dealing with any proceedings in respect of an offence shall be open to the public.
(2) Where a court is of the opinion that the interests of justice, or of public morality, or of the reputation of any victim of any alleged sexual offence or offence of extortion, or of the security or defence of New Zealand so require, it may make any one or more of the following orders:
(a) An order forbidding publication of any report or account of the whole or any part of—
(i) The evidence adduced; or
(ii) The submissions made:
(b) An order forbidding the publication of the name of any witness or witnesses, or any name or particulars likely to lead to the identification of the witness or witnesses:
(c) Subject to subsection (3) of this section, an order excluding all or any persons other than the informant, any member of the Police, the defendant, any counsel engaged in the proceedings, and any officer of the court from the whole or any part of the proceedings.
(3) The power conferred by paragraph (c) of subsection (2) of this section shall not, except where the interests of security or defence so require, be exercised so as to exclude any accredited news media reporter.
140 Court may prohibit publication of names
(1)Except as otherwise expressly provided in any enactment, a court may make an order prohibiting the publication, in any report or account relating to any proceedings in respect of an offence, of the name, address, or occupation of the person accused or convicted of the offence, or of any other person connected with the proceedings, or any particulars likely to lead to any such person's identification.
…
Perspective
The Bill of Rights interests: freedom of expression; fair trial; presumption of innocence
[21] The New Zealand Bill of Rights Act 1990 states:
14 Freedom of expression
Everyone has the right to freedom of expression, including the freedom to seek, receive, and impart information and opinions of any kind in any form.
25 Minimum standards of criminal procedure
Everyone who is charged with an offence has, in relation to the determination of the charge, the following minimum rights:
(a) The right to a fair and public hearing by an independent and impartial court:
…
(c) The right to be presumed innocent until proved guilty according to law:
…
[22] But the media’s right to freedom of expression can come into conflict with the accused’s right to a fair trial. And what is the relevance of the presumption of innocence? I return to this question at [41] below.
The leading case: R v Liddell
[23] In Liddell this Court stated (at 546-547):
In considering whether the powers given by s 140 should be exercised, the starting point must always be the importance in a democracy of freedom of speech, open judicial proceedings, and the right of the media to report the latter fairly and accurately as “surrogates of the public”. These principles have been stressed by this Court in a line of cases extending from Broadcasting Corporation of New Zealand v Attorney-General [1982]
1 NZLR 120 to Auckland Area Health Board v Television New Zealand Ltd
[1992] 3 NZLR 406 where a number of the intermediate decisions are cited. The basic value of freedom to receive and impart information has been re- emphasised by s 14 of the New Zealand Bill of Rights Act 1990. And the principles just mentioned may be seen in vigorous – and, to some, even startling – operation in the Supreme Court of Canada in Edmonton Journal v Alberta (Attorney-General) (1989) 64 DLR (4th) 577 and the High Court of Australia in Nationwide News Pty Ltd v Wills (1993) 177 CLR 1; Australian Capital Television Pty Ltd v Commonwealth of Australia (1993) 177 CLR
106; and Theophanous v Herald & Weekly Times Ltd (1994) 124 ALR 1. There is no need to dwell on this theme.
Departures from the principles are necessary at times to avoid prejudice in pending trials.
[24] Liddell concerned a sexual offender who had claimed suppression post- conviction. None of the cases it cited were directly concerned with the pending trials to which the final sentence alludes. Here, by contrast, the strong public interest in open justice is met by the absolute public interest of a fair trial.
Importance of stage of proceedings
[25] The authorities cited in Edmonton Journal bring out the distinctions among the three phases: (1) pre-trial, (2) trial and (3) post-trial. That distinction is also taken by the New Zealand Law Commission in Delivering Justice For All (NZLC R85 2004) and Access to Court Records (NZLC R93 2006). It can be pivotal. The importance of publicity in preserving the integrity of the evidentiary process, and the role of the media as surrogates for the public who are unable to
obtain information about trials by first-hand observation, are of particular application at the trial stage. Suppression at that stage is uncommon because the accused has the opportunity to place the defence contentions before the court and therefore before those present in court or who read reports of the proceedings. At trial open justice principles are likely to trump other considerations.
[26] At the pre-trial stage it is also important that the conduct of the courts be open to scrutiny, which is why justice is performed publicly then as well as at trial. The presence of the media throughout pre-trial proceedings is a significant safeguard of proper judicial standards and public confidence in the courts, to which ability to publish is a salient contributor. In bail hearings the competing public interests are reconciled by the Judge sitting in court with the media present, albeit with suppression of the proceedings in order to ensure a subsequent fair trial, and with the public excluded because of the risk that unfairly prejudicial material will affect the fairness of a later trial. Suppression applications by contrast are dealt with in open court; the interest of open justice is correspondingly enhanced.
[27] Yet pre-trial publicity may be ill-informed and perhaps unjustified, something touched on by Lord Reid in Attorney-General v Times Newspapers Ltd [1974] AC 273 at 300 in the context of permitting search of court records before trial. There is the natural justice consideration that the accused has not had an opportunity to present the defence case.
[28] At the post-trial stage, by contrast, as was stated emphatically in Liddell, it will be rare for suppression to be ordered save in cases where that is required to protect a person other than the person convicted. But at that stage the presumption of innocence has been discharged.
[29] For these and other reasons, the clash between the opposing values cannot be resolved at a general level. What is required is a careful appraisal of each of the competing values and their importance within the context of the particular facts and circumstances of the case. The procedure has become a familiar one in Bill of Rights jurisprudence.
[30] The first step is to express and analyse the competing values; the second is to evaluate them to determine what, in the particular context, is a proportionate result.
Crown argument: the interests of open justice and freedom of expression
(i) Hearing in open court
[31] Crown counsel emphasised s 138(1), which requires that justice be done in public. There may be exclusion of the public (subs (2)) but never of any accredited news media reporter (subs (3)) unless the exceptional interests of security or defence so require. The common law has long adopted a similar approach: see Scott v Scott [1913] AC 417 (HL) and Attorney-General v Leveller Magazine Ltd [1979] AC 440 (HL) at 450. So too has the European Court of Human Rights, requiring a public hearing to guard against the administration of justice in secret and with no public scrutiny and to maintain public confidence: In re S (FC) (a child) [2004] UKHL 47 at [15] per Lord Steyn.
[32] In Liddell and its predecessors this Court has endorsed similar principles.
(ii) The risk of breach of a court order
[33] Crown counsel referred to the ability of websites, especially those based overseas, to flout orders under ss 138 and 140. They submit that to make suppression orders knowing they are likely to be futile would bring the court into disrepute. The court must always apply broad common sense.
(iii) The possibility of further evidence or further complainants
[34] The Crown referred also to the ability for publicity to elicit further evidence or further complainants, thus promoting the Crown’s ability to bring offending to notice and offenders to justice. This point was made emphatically in Proctor. (See above at [16]).
(iv) The ability of jurors to handle inadmissible information
[35] The Crown cited R v Burns (Travis)(No 2) [2002] 1 NZLR 410 (CA) where the appellant, who had been convicted of a highly publicised murder, sought an order withholding disclosure of his name on the ground that he risked future trial for a separate murder which had also been highly publicised. Richardson P for this Court stated (at [11]):
… even if a prosecution were to occur and Mr Burns was brought before a jury at some time, obviously well into the future, the jury could be expected to act impartially. The clear conclusion from the research conducted for the Law Commission by Dr Young and his co-researchers suggests that the impact of pretrial publicity and of prejudicial media coverage during the trial, even in high-profile cases, is minimal (Young, Cameron & Tinsley, Juries in Criminal Trials: Part Two, vol I, ch 9, para 287 (Law Commission Preliminary Paper No 37, 1999), also cited by Lord Hope in the Privy Council’s decision in Montgomery v HM Advocate [2001] 2 WLR 779 at pp
809 – 810). In short, fair trial values affecting the possibility of a prosecution and the possibility of a risk that media publicity may be prejudicial in the
event of a prosecution, cannot be said to be significantly engaged, and certainly not so as to justify stifling freedom of expression and the role of the
media as surrogate of the public.
[36] They also relied on the statement by Dickson CJC in R v Corbett [1988]
1 SCR 670 at 692-693:
The Court should not be heard to call into question the capacity of juries to do the job assigned to them. The ramifications of any such statement could be enormous. Moreover the fundamental right to a jury has recently been underscored by s 11(f) of the [Canadian] Charter. If that right is so important, it is logically incoherent to hold that juries are incapable of following the explicit instructions of a Judge.
Defence argument: the interests of a fair trial, the presumption of innocence, human dignity and privacy
(i) Accused’s right to a fair trial
[37] The appellant advanced as the primary countervailing interest the right to a fair trial. In all jurisdictions comparable to our own the various techniques of severance, prohibition of name publication and forbidding reports of proceedings are used to protect the fairness of the trial. Vital though the interest in open justice is,
there are certain necessary and limited exceptions which, in the words of Viscount
Haldane LC in Scott:
… are themselves the outcome of a yet more fundamental principle that the chief object of courts of justice must be to secure that justice is done.
[38] The prime example is the rule, which successive court decisions have established is absolute, that an accused must receive a fair trial. Section 25(a) of the New Zealand Bill of Rights Act guarantees everyone charged with an offence the right to “a fair and public hearing” before an independent and impartial court. The absolute requirement of fairness may on occasion require some limit upon the important element of openness.
[39] For that reason Parliament has directed that evidence of an accused’s propensity to act in a particular way may be led in evidence by the prosecution only if its probative value outweighs the risk that it may have an unfairly prejudicial effect (ss 40 and 43 of the Evidence Act 2006). Parliament has endorsed the common law concern about the human tendency expressed in the phrases “no smoke without fire” and “give a dog a bad name and hang him” (Dickens Our Mutual Friend Ch 13). The court is required to protect an accused person from risk that a jury might short- circuit its enquiry into what the evidence establishes, by reasoning “he’s a bad man, he’s done it before”, and for that reason must be treated as guilty. The importance of the concern is seen in judgments of this Court (see R v Healy [2007] NZCA 451), of the English Courts (see DPP v P [1991] 2 AC 447) and of the High Court of Australia (see HML v The Queen [2008] HCA 16 24 April 2008).
[40] The Evidence Act direction is often given effect by use of the Court’s powers to forbid reporting (s 138 of the Criminal Justice Act), to prohibit name publication (s 140 of the Criminal Justice Act) and to order that the accused be tried separately on different counts (s 340(3) of the Crimes Act 1961). The latter section states:
340 Joinder of counts
(1) Any number of counts for any crimes whatever may be joined in the same indictment, and shall be distinguished in the manner shown in form 4 in the Schedule 2 to this Act, or to the like effect.
(2) Where there are more counts than one in an indictment each count may be treated as a separate indictment.
(3) If the Court thinks it conducive to the ends of justice to do so it may order that the accused shall be tried upon any one or more of such counts separately.
…
(ii) Presumption of innocence
[41] The New Zealand Bill of Rights Act recognises as a minimum right under s 25(c) “the right to be presumed innocent until proved guilty according to law”. It is of interest to compare the case of bail. Although other considerations may cause bail to be declined, because of the presumption of innocence the penalty of being detained is the subject of a powerful adverse presumption both at common law (Hurnam v State of Mauritius [2006] 1 WLR 857 (PC) at [1]) and under s 7 of the Bail Act 2000. While often determinative in bail cases, in suppression applications this interest has sometimes received limited attention. In M v Police (1991) 8 CRNZ
14, Fisher J emphasised the importance that the presumption of innocence and the risk of substantial harm to an innocent person should be expressly articulated to avoid the danger that they will be overlooked. Similar arguments have been advanced by Scheer in “Publicity and the Presumption of Innocence” [1993] CLJ 37. She cites Professor Walker “Curiosities of Criminal Justice” (1975) XLVIII Police Journal at 9:
But that assumes that an acquittal leaves a person’s reputation exactly as it was before the trial, which is unlikely to be true if the newspapers have paid any attention to the case–… some people will simply assume that he got off because of slightly defective evidence, a clever story or a sympathetic jury; and since guilty men are sometimes acquitted for these reasons it is impossible to combat this cynical assumption. It is a little paradoxical that a system of trial designed to give the accused the benefit of the doubt in court is almost bound to ensure that the public does the opposite.
Scheer continues:
The primary deduction that everyone draws from the presumption of innocence is obviously that at trial the defendant gets the benefit of the doubt. Yet there are, in relation to unconvicted and acquitted persons, other deductions that can be drawn from it. It seems that common lawyers, who are the first to say that the presumption of innocence is central to their system, draw fewer deductions from it than are often drawn elsewhere. As Williams says of the common law’s treatment of unconvicted persons in The
Proof of Guilt (3ed 1963) it “is a repudiation of the philosophy behind the supposed presumption of innocence”: at 184.
[42] Munday has discussed the New Zealand cases in his essay “Name Suppression: An Adjunct to the Presumption of Innocence and to Mitigation of Sentence - 2” [1991] Crim LR 680 and 753 at 757.
(iii) Human dignity and privacy
[43] An overlapping public interest, referred to in Proctor, is that of human dignity, which has emerged as a fundamental human right and is increasingly protected by the evolving right to privacy. The latter has been recognised by Parliament in the Privacy Act 1993 and by this Court as an emerging tort: Hosking v Runting [2005] 1 NZLR 1.
Variable interests
[44] In bail cases a factor of relevance under s 9(2)(b) of the Bail Act is the strength or weakness of the Crown case. The same logic must apply to suppression cases.
Discussion
[45] As stated at the outset, this case pits the right to a fair trial against the value of open justice. Because each case must turn on its own facts, no short or simple response is available. The court is required to undertake a contextualised balancing test and to create whatever mix of orders will best meet the demands of the case. There is no rule of thumb that will relieve the judge from the obligation of judging.
[46] As Cooke J observed in Broadcasting Corporation of New Zealand (see quotation at [23] above) at 127, it is customary to begin judgments about sitting in private or restricting reports with reaffirmations of the valued and firmly entrenched principles as to the importance of publicity. To secure public support for their decisions, the courts must maintain public confidence. A generally open process is vital.
[47] The appellant’s challenge to this default setting is that if his name is published there is a risk that the jury’s reasoning will be influenced against him. It is convenient at this point to mention the possible argument, later rejected (at [54]), that publication of the appellant’s name is in itself a form of penalty, and violates both his right to be presumed innocent and his privacy and human dignity.
[48] The Crown response is that it is reasonable to rely on jurors to put aside irrelevantly prejudicial material with the assistance of an appropriate direction. This is true. But only up to a point. That point is recognised by the existence of the severance procedure, and of the restrictions on propensity evidence. Both of these procedures aid the jury and their delivery of justice by pruning irrelevant evidence from the information before them. A suppression order preventing that same irrelevant information becoming available in forums other than the courtroom should be seen in the same light.
[49] The court’s primary task is to achieve in the trial process fairness to which the accused has an absolute right. A decision to exclude evidence and to sever counts to keep unfairly prejudicial material away from the jury requires control on such publicity as might undermine those precautions. The more unfairly prejudicial the evidence and the closer to the trial, the greater the importance of withholding it from the attention of potential jurors.
[50] The advent of the internet has shown there are limits to the extent to which the courts have power effectively to control the information. (See discussion at [78]- [79].) They require public support for their decisions. To secure such support, the courts must maintain public confidence that they are fair, something of which a generally open process is a vital element. The courts must therefore take care to show that the purpose of orders made under ss 40 and 43 of the Evidence Act, under ss 138 and 140 of the Criminal Justice Act, and under s 340(3) of the Crimes Act is to ensure fairness of the trial process; that such orders are made by Judges scrupulously after hearing submissions from both sides; and that an erroneous judgment will be corrected on appeal.
[51] Fairness has many facets. They include bringing offenders to justice and giving closure to victims. The courts’ willingness in proper cases to admit propensity evidence, to decline severance and to decline prohibition of identification of the accused even before trial may be seen as part of that process.
[52] The present law and practice is conveniently summarised in the Law Commission’s Report Delivering Justice for All (NZLC R85 2004), in a section entitled “Openness in the Criminal Courts” at 8.4. It records debate as to the weight to be given to the presumption of innocence and consideration of the topic by the Criminal Law Reform Commission in 1972. The Law Commission expressed concern that since Proctor, the presumption of innocence had not received sufficient recognition. It proposed that there be a general presumption that publication of name and identifying particulars be prohibited until the substance of the case is gone into by the court.
[53] But the current statute law casts the onus the other way and the proposal for change was not accepted. The position therefore remains that ss 138 and 140 do not operate unless a court orders that they shall. (It is unnecessary here to comment on what the Law Commission calls the convention that particulars of a person arrested or charged are not published before the case is called in court (at [64].))
[54] The burden of publicity is a factor to consider. There is a real likelihood of injury to the defendant’s privacy and personal dignity. But it would be simplistic to suggest that this constitutes a penalty; that penalties cannot be imposed prior to conviction, and therefore that there must be orders under ss 138 and 140 in every case. The appellant did not advance such an extreme argument and we deal with it only for completeness. Like conditions of bail or even imprisonment pending trial, that burden may have to be accepted because of countervailing considerations of greater weight.
[55] The starting point, and usually the finishing point, must be a presumption of openness, which means that cause must be shown to depart from the logic that the courts are open; the media are the eyes and ears of the community; and so the media may report what the public would have seen had they gone to court. It is essential to
be realistic: if, as is usually the case, there will be ultimate disclosure of the accused’s name, little or no purpose may be achieved by an interim order withholding publication. To do so, by imposing unnecessary secrecy, will be counter-productive. The public interest in knowing what is happening in the courts is such that orders of that kind should not be made as of course.
[56] But other issues may arise immediately and must receive attention by a busy judge or justice of the peace with little information or time to reflect. If application under ss 138 or 140 is made, it must receive due consideration. That may require an interim order, expressed to expire on an early remand date.
[57] The presumption of innocence and the adverse consequences of publication of what may be an unjustified charge are among factors to be weighed. While the starting point is openness, the primary reason for that prior to trial is to ensure that there is due process in the court. The presumption of innocence means that if there is significant reason to consider that the defendant may be unfairly prejudiced by refusal of orders under ss 138 or 140, the onus will pass to the prosecution to show why orders should not be made, again for a finite period. It is to be borne in mind that the process is dynamic; the position may change as the pre-trial processes take place.
[58] Much may turn on the nature and strength of the Crown case and on the timing of events. Where there is powerful evidence of similar offending, that may provide a basis for declining applications for severance, for admission of propensity evidence, and for prohibiting name publication, with the beneficial result of allowing other complainants to come forward. But where propensity evidence is excluded as more prejudicial than probative, severance is likely to be ordered and interim prohibition of name publication may well be justified despite the fact that publicity might elicit other offending. The period until trial may be a relevant factor in each case. Where there is risk to the community of further offending, name disclosure may be a factor to weigh as a condition of admission to bail.
[59] The court must be conscious of each of those with interests at stake, including the public whose confidence must be sustained, and weigh both the
techniques available to achieve justice and their timing. As other considerations emerge, most importantly risk to a fair trial, the courts will create whatever mix of orders will best meet the demands of the case and the overall public interest.
[60] It is to be emphasised:
(a) interim orders should be given an expiry date, so those interested in the matter may know when they are to be reviewed;
(b) the principles that apply to the initial stages of a case, where the accused has no opportunity to offer a defence, may well assume a very different shape when the defence is able to present its side. The reason for the distinction among the three stages of a case – pre-trial, trial and post-trial
– is that what may be unfair publicity at the first stage may be necessary at the second to permit proper reporting of the trial and be fully justified by the verdict that marks the third stage;
(c) orders under ss 138 and 140 in relation to one allegation do not mean that like complaints, which a refusal to make such orders would have brought to light, will ultimately be withheld. Normally such orders will be discharged following verdict. If resulting publicity brings further allegations to light, and the evidence is of a kind that would have been admitted under ss 40 and 43 of the Evidence Act as propensity evidence, the Court may well admit at the trial of the new allegations evidence of the earlier events. That may be so even if there was an acquittal on the earlier charges: R v Degnan [2001] 1 NZLR 280 (CA); R v Ollis [1900]
2 QB 758 (HC).
[61] Because each case must turn on its own facts, a judge considering pretrial applications for severance, for prohibition of publication of name, or for exclusion of evidence must give careful consideration to the presumption of innocence and to whether and how a fair trial can best be secured, and make such use of the repertoire of protected measures as may be appropriate.
Conclusion
[62] In summary:
(a) the starting point is open justice ([55]);
(b) the judgment under ss 138 and 140 must take account of all essential factors including the stage the case has reached ([25]-[30]);
(c) fairness of trial trumps all other considerations ([2], [37]-[40]
and [49]);
(d) prospects of severance and of exclusion of other evidence at trial are powerful pointers to an interim order prohibiting publication ([58)];
(e) the presumption of innocence and the rights of personal privacy and to human dignity ([41]-[43]) are relevant factors, as also is the apparent strength or weakness of the Crown case ([44] and [58]). But they must be weighed against the presumption of openness of the court process and the fact that in the end there will normally be identification of the accused and the counter- productive effect of unjustified secrecy ([55]). The presumptive ability of jurors to comply with directions as to the use of prejudicial evidence may be relevant ([35]);
(f) it follows that, unless there are particular factors pointing to prohibition of publication, prohibition will normally be declined.
[63] In the end what is required is a sense of justice and of proportion in relation to all facets of the case.
This case
[64] It has been noted that the Crown did not challenge on appeal the decision of Judge Barry to order that the indictment be the subject of four separate trials. The reason for that decision was that evidence of allegations in one case should not come to the knowledge of jurors in other cases, lest their judgment be impaired by material
held to be more prejudicial than probative. The severance decision was consistent with the ruling that propensity evidence might not be led from one case to another.
[65] This is not a case where fairness of the trial requires the admission of propensity evidence. Rather it required withholding of the propensity evidence from jurors. The purpose of each of these rulings was to protect the fairness of each trial.
[66] The basis of the severance decision would have been undercut had the judgment of Judge Broadmore taken effect. Viewing the matter at the date of that judgment I am satisfied that the decision was plainly wrong and that, on the assumption that trials would take place within a reasonably short time of each other, orders under ss 138 and 140 should have been made.
[67] Viewing the matter at this stage, the 3 June 2008 tentative fixture date is imminent and the 11 August 2008 fixture relatively close. There is no reason to alter the order made at the hearing in this Court on 14 April 2008.
[68] I would propose the following orders: (a) The appeal is allowed.
(b) Interim order prohibiting publication of the judgment in news media or on internet or other publicly accessible database until final disposition of the last trial. Publication in law report or law digest permitted.
(c) Interim order prohibiting any publication of the appellant’s name until the commencement of the last trial.
(d) Order prohibiting publication of any report identifying the appellant as a defendant in relation to charges other than those which are the subject of the last trial until verdict in that trial.
(e) Liberty to apply to vary this order is reserved.
WILLIAM YOUNG P AND ROBERTSON J
(Given by William Young P)
Overview
[69] The issue which confronted Judge Broadmore is reasonably common. A defendant is defending a number of charges that either will not be dealt with together or are the subject of a severance argument. Usual, but not universal, practice has been to suppress publication of the defendant’s name in the interim. A defendant facing a charge of murder and other unrelated charges might struggle to obtain name suppression on the murder charge. And sometimes the prospects of severance being granted are so speculative or theoretical as not to warrant name suppression: cf Wood v New Zealand Police HC NEL AP 2003-442-10 7 October 2003. But there being nothing unusual about the circumstances of this case, the decision to refuse interim suppression was surprising.
[70] Despite the surprising nature of the decision, the case was not an obvious candidate for a second appeal because it involved the exercise of a discretion and Judge Broadmore referred to all the relevant considerations in his judgment. That said, it is not desirable that the way in which so standard a situation is addressed should vary depending on the judge’s personal position as to the balance between open justice and fair trial considerations. That is why leave to appeal was granted, despite difficulty and debate about identifying the question of law.
[71] The judgment granting leave to appeal identified this question:
Whether the decision of the District Court to refuse to prohibit publication of the name of the applicant until such time as an application for severance could be heard and determined was, in the circumstances of the case, plainly wrong.
The arguments at the hearing of the appeal were confined to this point. Broader issues associated with name suppression are of only peripheral significance to the resolution of the appeal and we prefer to leave them for discussion in a case in which they are more material.
The approach in the District Court and High Court
[72] Judge Broadmore was required to balance: (a) on the Crown side, the importance of open justice and the possibility that other complainants might come forward (itself seen as a significant issue in R v Proctor [1997] 1 NZLR 295 (CA)) as against (b) on the appellant’s side, the risk of jury contamination. In his judgment refusing suppression, Judge Broadmore concluded in this way:
I consider that the principles of open justice, with their specific application in sexual cases as identified in Proctor, are sufficient to outweigh the defendant’s interest in continued suppression of his name and details of the alleged offending, despite the prospect of separate trials and despite the possibility that jurors will disregard all that they are told and conduct their own internet searches.
[73] Both Judge Broadmore and Miller J on appeal in the High Court emphasised the nature of the trial process. They both referred to R v Rickards HC AK CRI-
2005-063-1122 28 November 2005 in which Randerson J declined to stay criminal proceedings despite very extensive and prejudicial publicity about some of the defendants. We note in passing that the later decision, R v Rickards HC AK CRI-
2005-063-1122 25 May 2006 is also material in this regard. Juries are routinely directed to determine cases solely on the basis of the evidence and to ignore extraneous material. And judges believe that such directions are usually complied with.
Evaluation
[74] The question upon which leave was granted specifically related to the period until the “application for severance could be heard and determined”. As it turned out, the application for severance was granted. Its purpose and effect would have been undermined if there had already been publication of the name of the appellant.
[75] It is also important to recognise that at least part of the reason for severance was that the various incidents were separate. The District Court Judge who granted severance held that these incidents were not of sufficient probative value to the others to justify cross-admissibility given the risk of prejudice to the appellant.
[76] Although there can be no immutable rule in circumstances such as this, fair trial rights will usually mean a postponement of the public's ability to know the identity of a person until the issue of severance has been determined. Where severance has been granted, further postponement of publicity is appropriate to the extent necessary to protect the defendant’s fair trial entitlements.
[77] Judges are reluctant to allow prejudicial publicity to stultify the criminal process. Where there has been such publicity, judges usually rely on appropriate judicial directions to limit the risk that the defendant will actually be prejudiced. This willingness to go on with the trial is not premised on the assumption that all risks of prejudice can be eliminated with appropriate directions. Rather it is based on a pragmatic assessment that the possibility of prejudice to a defendant associated with such publicity does not outweigh the public interest in criminal cases being tried.
[78] Jury research has established that jurors often make their own inquiries despite judicial directions not to do so. Internet inquiries, perhaps just in the form of “googling” the defendant, must be commonplace. This means that publicity about a defendant can no longer be assumed to be of only transitory significance. In the course of preparing this judgment, we took the opportunity to “google” the appellant. This revealed a previous conviction for entirely unrelated offending. No doubt without the current name suppression, references to all the charges laid against him would have also surfaced. This means that in the absence of interim name suppression there would have been a very substantial risk (indeed likelihood) that some jurors would have learnt that he was facing (or had faced) allegations of other sexual offending. Associated with this is a possibility that such knowledge might illegitimately enter into the decision-making process: cf R v McLean (2001)
19 CRNZ 362 (CA).
[79] A specific direction to jurors not to “google” the defendant may put the possibility of doing so into the mind of a juror who might not otherwise have thought of it. There may be scope for debate as to whether it is best for a judge to square up to the detail of the prejudicial material or to deal with the topic with generalities. The reality is that there is no simple and fool-proof way for a trial judge to address the
availability on the internet of prejudicial material about the defendant. Rickards is significant for what should be done where there has been prejudicial pretrial publicity, not whether such publicity should be permitted.
[80] Not granting interim name suppression in this case thus risked undermining the fairness of the trial process. In this context, where all that is at stake is postponing publication, fair trial rights must trump open justice considerations (including those associated with the possibility that other complainants might come forward). On this narrow basis there was a palpable error in Judge Broadmore’s decision on interim suppression. For this reason we would allow the appeal.
Solicitors:
Crown Law Office, Wellington
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