R v B (CA459/06)
[2006] NZCA 521
•13 December 2006
ORDER PROHIBITING PUBLICATION OF THE JUDGMENT AND ANY PART OF THE PROCEEDINGS (INCLUDING THE RESULT) IN NEWS MEDIA OR ON INTERNET OR OTHER PUBLICLY ACCESSIBLE DATABASE UNTIL FINAL DISPOSITION OF TRIAL. PUBLICATION IN LAW REPORT OR LAW DIGEST
IN THE COURT OF APPEAL OF NEW ZEALAND
CA459/06
THE QUEEN
v
B(CA459/06)
Hearing: 13 December 2006
Court: William Young P, Robertson and Arnold JJ Counsel: Dr D L Stevens QC for the Applicant
K G Stone for the Crown
Judgment: 13 December 2006
JUDGMENT OF THE COURT
A The application for leave to appeal is granted.
BThe existing suppression orders are to remain in place pending the hearing of the appeal.
COrder prohibiting publication of the judgment and any part of the proceedings (including the result) in news media or on Internet or other publicly accessible database until final disposition of trial. Publication
in Law Report or Law Digest permitted.
R V B(CA459/06) CA CA459/06 13 December 2006
REASONS OF THE COURT
(Given by William Young P)
[1] The applicant is due to stand trial in the District Court on two separate indictments, the first containing four counts alleging threats to cause grievous bodily harm and the second alleging sexual offending against four separate complainants. The applicant’s trial on the threatening charges is scheduled to start on 12 March
2007. No trial date has yet been set for the sexual offending charges. The applicant is seeking severance of the sexual offending charges.
[2] Shortly after he committed the applicant for trial, Judge Broadmore declined an application to continue orders suppressing publication of his name in relation to all the alleged offending. The primary basis upon which that order was sought was that if an order for severance is later made, publicity now would carry the risk that the jurors trying each of the cases may be affected with knowledge of the other allegations against the applicant, a risk which is enhanced by the possibility that jurors might carry out internet searches by “Googling” the applicant.
[3] The application was declined in the District Court and a later appeal to the
High Court was dismissed. He now seeks leave to appeal on two questions:
1.Whether the District Court judge erred in his conclusion that the right to a fair trial would be protected by the assumption that jurors would follow the directions of the trial judge to disregard pre-trial publicity and not to make inquiries of their own.
2.Whether the decision of the District Court to refuse to prohibit the 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 decision of Judge Broadmore
[4] The key passage in Judge Broadmore’s judgment is as follows:
[16] I accept that the prospect of a successful application for separate trials is a factor which may be taken into account along with other factors discussed in the authorities, but I do not consider it to be determinative.
[17] I further accept that it follows that the risks to fair trials on the separate charges have to be identified and brought into account.
[18] These risks seem to me to be as follows:
1. Potential jurors at any trial may have seen reference to the defendant in connection with a charge or charges of a sexual nature as a result of recollection of newspaper items read some time previously.
2. Jurors at any trial, despite directions from the trial Judge, may use the internet, for example by way of Google search on the defendant’s name, and access previous media reports at the time of the earlier trial.
[19] Dr Stevens accepted that, in principle, suppression orders in respect of active charges could not stop jurors from Googling the name of any defendant and locating all manner of other prejudicial information about him, including details of unrelated Court cases in which he had previously been involved and in which he had been convicted. Dr Stevens’ response was that the system could do nothing about that, whereas it could do something about the risk of such activity in the respect of currently active charges by making the suppression orders.
[20] Dr Stevens also urges me that there is no burning need to lift the existing orders at the present time – there is no reason why the question should not be deferred until the severance application, as was done in M. (I note that there was no opposition from Crown counsel in M to that course.)
[21] I note that there is a distinction between the present case and Wood. In that case, an application for severance was mentioned only as a possibility. In the present case, Dr Stevens has given an explicit indication that an application will in fact be made. But, as I have already said, the fact of an application for severance is not determinative.
[22] The only matter that marks this case out from Proctor is the submission that use of the internet by jurors will thwart the purposes of any order made for separate trials. I recognise the risk of that. Nowadays that is a risk which any defendant in a jury trial will in theory face, notwithstanding instruction from the presiding judge. As I have observed, it is a risk which exists anyway, in relation to news reports of the prior convictions of the defendant.
[23] However, I do not think that makes a difference to the approach I
should adopt.
[24] I have been assisted by the detailed observations of Randerson J as to the impact of pre-trial publicity in his judgment on a range of pre-trial issues in the recent case of R v Rickards and others (Auckland HC CRI
2005-063-1122, 28/11/05). I refer in particular to paragraphs 71-74 and 94-
97. Paragraph 97 is in the following terms:
I accept Mr Stanaway’s submission that a fair trial is still possible notwithstanding the adverse publicity last year.
I agree that any adverse effects caused by the earlier publicity will have largely dissipated by the time of trial. Experience shows that, notwithstanding the trial publicity in cases which have attracted widespread media interest, jurors focus on evidence before them as the material most immediately and recently to hand for their assessment. It is not to be assumed that jurors ignore judicial directions to put to one side matters they may have heard outside the Court. Again, experience shows that jurors are responsive to judicial directions of that kind and tend to be more robust than defence counsel often assume. A strong judicial direction to the jury will be given in respect of pre-trial publicity. I am satisfied that, in the formal atmosphere of the Court, a fair trial for these accused will be possible.
[25] I do not think that the Court should make orders primarily predicated on the grounds that jurors will ignore their oaths and disregard the instructions of the Judge. The system can only operate on the basis that jurors will observe the instructions which are given to them. Randerson J’s observations are evidence of a widespread judicial perception that jurors in fact do that.
[26] As noted earlier, the Court of Appeal in Proctor attached the highest priority to publicity in sexual cases involving multiple allegations. 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. Dr Stevens rightly says that publicity during the trials may result in further complainants coming forward; but that submission overlooks the possibility that pre-trial publicity will bring forth more witnesses in relation to the present charges. It also overlooks the prospect that, consistently with his present stance, the defendant will apply for suppression orders in respect of all trials but the last.
[27] I have therefore reached the conclusion that the existing orders should not be extended, and I rule accordingly.
The judgment of Miller J
[5] A subsequent appeal to the High Court was dismissed by Miller J on
26 September 2006. In his judgment the Judge observed:
[9] The concern that separate trials could be undermined if suppression is refused is a valid one, but it cannot be determinative. It is only one factor to be weighed in the exercise of the Court’s discretion, albeit an important one. Judge Broadmore considered it, and found it insufficiently compelling. I do not think he was plainly wrong to do so. On the contrary, it is necessarily
inherent in the severance argument that his name would be suppressed not only until but also at trial, for all trials but the last. Against that, experience suggests both that jurors are capable of putting inadmissible material to one side and that the effect of adverse publicity is frequently fleeting. [B] has been committed for trial, and the indictment now alleges seven counts in respect of the five complainants. A trial will not be held until well into next year when the inevitable severance application is taken into account. ([B] is on bail.) The position is thus very different from that in Proctor, where the Court of Appeal upheld a suppression order in circumstances where the trial was only eight weeks away and, for that reason, publicity might prejudice the fair trial right. It is true, as Mr Stevens pointed out, that a juror with event or research could google [B’s] name at any time following publication and discover details of the allegations, but jurors would not learn his name until he was arraigned at trial, and at that time they would be given the usual instruction that they must not undertake research of their own. In this case, there was also the possibility that other witnesses or complainants might come forward. For the same reasons, I do not think that the Judge was required to wait until the severance applications had been disposed of. He did not overlook the fact that all that was sought was interim suppression.
[10] The final point was that the presumption of innocence required to be specifically addressed, but was not. I reject this submission. It is true that the Judge did not expressly refer to the presumption of innocence, which is a relevant consideration, when balancing the competing considerations. But he discussed Proctor v R (above), in which, as he recorded, the Court of Appeal confirmed that the principles earlier established in R v Liddell [1995] 1
NZLR 538 applied pre-trial, the only difference being that the presumption of innocence was a further factor to be taken into account. And he recorded
that he would take into account the other factors mentioned in the
authorities.
[11] The appeal is dismissed. Against the possibility that [B] will seek leave to appeal further, there will be an order suppressing publication of his name for 72 hours from delivery of this judgment. If an application for leave to appeal is filed in that time, the suppression order will continue until the application has been disposed of.
[6] An application for leave to appeal to this Court was dismissed by Gendall J
on 5 December 2006.
Evaluation
[7] The questions posed by the applicant are not entirely appropriate. The first of the questions seems to involve a question which is more evaluative than legal and the second requires some modification. But the case, as a whole, raises a difficult issue of policy.
[8] The risk of jury contamination relied on by the applicant is real enough as Dr Stevens QC was able to demonstrate in his submissions. It is common ground that the two set of charges will be dealt with separately. Implicit in this is that there is no commonality between the threatening and sexual charges. So if suppression is not continued, the jury that hears the threatening charges will probably be aware of the sex charges and the jury or juries who hear the sexual charges are likely to be aware of the other charges. There is a risk of the applicant being regarded as being a person of bad character which understandably he wishes to avoid. If severance is granted there is a similar but exacerbated risk associated with the possibility of illegitimate propensity reasoning. All of these risks are enhanced because the applicant is apparently well known in the town in which he lives, and this makes it all the more likely that jurors will resort to internet searches. A judicial direction to jurors not to “Google” the defendant may have the perverse effect of putting that idea into the mind of some jurors. If there is extensive publicity before the severance application is heard, that might tell against severance being granted. Further, the Rickards case on which Judge Broadmore relied involved a different situation, an after the fact assessment where there had been widespread breaches of earlier suppression orders.
[9] There are undoubtedly countervailing considerations. Open justice considerations are always important. As well, it is likely that sexual offending charges in relation to at least two of the complainants will have to be tried together. There is at least a possibility that further complainants may come forward. That, however, is of no particular moment in relation to publicity prior to the March trial on the threatening charges (as flushing out of further complainants would be irrelevant in relation to those charges).
[10] Cases such as Proctor v R [1997] 1 NZLR 295 (CA) and R v Liddell [1995] 1
NZLR 538 (CA) relied on by the Crown do not address the particular situation posed by the present case where there will be at least two trials and possibly more. Some judges would have been prepared to order a continuation of suppression of the applicant’s name pending at least the outcome of the severance application. Whether there is anything like a settled practice to this effect is unclear. If there is such a
practice, a departure from what Cooke P referred to Telecom South Ltd v Post Office Union (Inc) [1992] 1 NZLR 275 at 280 as a cursus curiae may amount to an error of law. There is also an apparent absence of definitive appellate guidance in relation to the considerations to be addressed when defendants face concurrent charges which are (or are likely to be) tried separately.
[11] On that basis, we propose to grant leave to appeal on the second question only. We note that this question will require modification.
Result
[12] The application for leave to appeal is granted. The existing suppression orders are to remain in place pending the hearing of the appeal.
Solicitors:
Sladden Cochran & Co, Wellington for the Applicant
Luke, Cunningham & Clere, Wellington for the Crown
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