R v C HC Auckland Cri-2006-404-10505

[2008] NZHC 2082

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2006-404-010505

THE QUEEN

v

C
W
L

K
W
Y

Hearing:         24 October 2008

Appearances: B Finn for Crown

R M Mansfield for Zhang

T C Goatley for APN Judgment:         18 December 2008 at 3:30 pm

RESERVED JUDGMENT OF COURTNEY J

This judgment was delivered by Justice Courtney on 18 December 2008 at 3:30 pm

pursuant to r 540(4) of the High Court Rules

Registrar / Deputy Registrar

Date…………………….

Solicitors:           Meredith Connell, P O Box 2213, Auckland

Fax: [phone] – B Finn
Bell Gully, P O Box 4199, Auckland 1140
Fax: [phone] – A Goatley

Counsel:             R Mansfield, P O Box 2674 Shortland Street, Auckland

Fax: [phone]

R V C AND ORS HC AK CRI-2006-404-010505  18 December 2008

[1]      On 19 September 2008 I made an order suppressing all details relating to the jury in the trial of this matter.  Two jurors had been discharged earlier in the trial and that day a third juror failed to appear.  The whereabouts of the juror was unknown and  there  was  concern  about  the  future  of  the  trial,  though  ultimately  it  was completed with no further problems.

[2]      The  terms  of  the  suppression  order  were  recorded  in  my  minute  19

September 2008 namely an order “suppressing all details relating to the jury in this case, including my ruling relating to the discharge of the eleventh juror”. The juror had been discharged because she had communicated with one of the counsel in the case. The recipient of the communication brought it to the notice of the Court.   I spoke to the juror concerned in chambers in the presence of counsel before discharging her.

[3]      APN Holdings NZ Limited, which publishes the NZ Herald, has sought to have  the  suppression  order  discharged  or  varied  to  enable  it  to  publish  details relating to the reason for the discharge.   Ms Goatley, for APN, submitted that the principles of open justice require those details be available for publication. She says that there is a legitimate public interest in knowing the reasons that jurors might be discharged and, in the context of that issue, the reasons that this particular juror was discharged has obvious relevance.   She further submitted that there is no jurisdiction for this Court to maintain a  suppression  order  in  relation  to  the  details  of  that discharge.

[4]      The  Crown  does  not  object  to  the  publication  of  details  relating  to  the discharge of the eleventh juror subject only to the desirability of consistency with the forthcoming s 32B(1) and (2) Jurors’ Act 1981, which will come into force on 25

December 2008 by virtue of s 21 Jurors’ Amendment Act 2008.  This provision will preclude publication of any information that identifies or may lead to the identification of a juror or former juror.

[5]      Mr Mansfield, whilst acknowledging the need to observe the principles of open justice, urged caution in relation to the extent of detail that is permitted to be reported because of the risk that future jurors may fear the disclosure of legitimate communications they may wish to have with the Court. Other counsel filed memoranda expressing varying views.   Mr Cooke sought to have the suppression order made permanent and Mr Haigh QC was content to abide the decision of this Court. The remaining counsel neither filed memoranda nor appeared.

[6]      The power to suppress information relating to court proceedings is conferred by s 138 Criminal Justice Act 1985, which provides that:

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 [Police  employee], 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.

(4)       An order made under paragraph (a) or paragraph (b) of subsection

(2) of this section—

(a)      May be made for a limited period or permanently; and

(b)       If it is made for a limited period, may be renewed for a further period or periods by the court; and

(c)      If it is made permanently, may be reviewed by the court at any time.

(5)       The powers conferred by this section to make orders of any kind described in subsection (2) of this section are in substitution for any such powers that a court may have had under any inherent jurisdiction or any rule of law; and no court shall have power to make any order of any such kind except in accordance with this section or any other enactment.

(6)       Notwithstanding that an order is made under subsection (2)(c) of this section, the announcement of the verdict or decision of the court (including a decision to commit the defendant for trial or sentence) and the passing of sentence shall in every case take place in public; but, if the court is satisfied that exceptional circumstances so require, it may decline to state in public all or any of the facts, reasons, or other considerations that it has taken into account in reaching its decision or verdict or in determining the sentence passed by it on any defendant.

(7)       Every  person  commits  an  offence  and  is  liable  on  summary conviction to a fine not exceeding $1,000 who commits a breach of any order made under paragraph (a) or paragraph (b) of subsection (2) of this section or evades or attempts to evade any such order.

(8)       The breach of any order made under subsection (2)(c) of this section, or any evasion or attempted evasion of it, may be dealt with as contempt of court.

(9)       Nothing in this section shall limit the powers of the court under sections 139 and 140 of this Act to prohibit the publication of any name.

[7]      Section 138(1) represents statutory recognition of the common law principle of  open  justice  described  in  the  following  terms  by  Lord  Diplock  in  Attorney General v Leveller Magazine Limited1:

As a general rule the English system of administering justice does require that it be done in public; Scott v Scott [1913] AC417. If the way the Courts behave cannot be hidden from the public ear and eye this provides a safeguard against judicial arbitrariness or idiosyncrasy and maintains the public confidence in the administration of justice. The application of this principle of open justice has two aspects; as respects proceedings in the Court itself it requires that they should be held in open court to which the press and public are admitted and that, in criminal cases at any rate, all evidence communicated to the Court is communicated publicly. As respects the publication to a wider public of fair and accurate reports of proceedings that have taken place in court the principle requires that nothing should be done to discourage this.

[8]      However, the principle of open justice is not absolute, as Lord Diplock went on to observe:

However, since the purpose of the general rule is to serve the ends of justice it may be necessary to depart from it whether nature or circumstances of the particular proceeding are such that the application of the general rule in its entirety would frustrate or render impracticable the administration of justice or would damage some other public interest for whose protection Parliament has made some statutory derogation from the rule.   Apart from statutory exceptions, however, we were caught in the exercise of its inherent power to control the conduct of proceedings before it departs in any way from the general rule, the departure is justified to the extent and to no more than the extent that the Court reasonably believes it be necessary in order to serve the ends of justice.

[9]      In Police v O’Connor2  Thomas J considered the principle of open justice in the context of s 138:

The  ability  to  scrutinise  the  workings  of  the  courts  is  the  public’s entitlement.  In advance societies people cannot perform the judicial function themselves.  So they have delegated it to Judges, and with that delegation they have vested the Judges with the authority and considerable powers to properly perform that function.  The Judges have not been given a free reign; they speak and act on behalf of the community they serve.  In a real sense the fact that the courts are open to the public, and that proceedings may be freely reported in the media, is the method by which Judges remain answerable to the public.

Consequently, the maintenance of a system of justice, not just as a system which provides just results in individual cases, but as a system which both claims and vindicates public confidence in the judicial function itself, and its capacity to operate efficiently and justly, is of primary importance.   The public  must  all  times  be  assured  that  the  Courts  perform  their  judicial function  with  integrity  and  fairness  as  an  integral  part  of  a  free  and democratic society.   For this reason the scrutiny and supervision of the operation of the courts cannot be lightly inhibited………..

Nevertheless, the principle that justice must be administered openly and publicly is not absolute.  If  that  were  so  true  justice  would  at  times  be defeated. It is axiomatic that the principle of open justice must be balanced against the objective of doing justice.

[10]     After citing the passage from Lord Diplock’s judgment reproduced at [8]

above, Thomas J went on to say at p96 that:

For the purposes of the law in New Zealand, the occasions on whichthe rule may be abridged or excluded are set out in subs (2) of s 128. Bur I do not doubt that the phrase the “interests of justice” is to be interpreted having regard to the common law as enunciated in the cases. It can properly be construed to refer to or include the administration of justice as such, as well as any particular interest which may require protection. In line with the authorities therefore, the requirement that criminal proceedings be open to

the public can only be departed from if not to do so would frustrate the interests or administration of justice.

[11]       In R v Patterson3, decided only a few months before Police v O’Connor Penlington J, having considered the English authorities concluded that the threshold question in determining whether there should be an order prohibiting the publication of the names of certain witnesses in a criminal trial was whether there were exceptional circumstances which revealed a real risk that there administration of justice would be frustrated or rendered impracticable if the identity of  the  four witnesses was published.

[12]     It is apparent from the English authorities and the application of ss 138 and

140 Criminal Justice Act 1985 that there is a very high threshold to be reached before a Court will be justified in suppressing information about a  trial  on  the grounds of interests of justice. Of course, the suppression of information under s 138

Criminal Justice Act 1985 must now be considered in light of s 14 Bill of Rights Act

1990 (BORA).  Any order under s 138 will, of course, constitute a limit on the s 14 right of freedom of expression and must be considered in light of s 5 which permits reasonable limits as can demonstrably be justified in a free and democratic society. Thus,  the  right  to  freedom  of  expression  is  to  be  balanced  against  those circumstances recognised in s 138 as justifying a suppression order.

[13]     In light of those principles I therefore turn to the circumstances of the present case.   The juror concerned had been discharged because of an inappropriate communication to one of the counsel involved.   The communication contained a personal reference to another counsel.  Two possible issues arise that might bring s

138(2) into play.  The first is the concern that the juror involved may be identified.

[14]     The forthcoming change to the legislation as a result of s 32B(1) and (2) Jurors’ Act 1981 shows the concern that is held about the prospect of either current or former jurors being identified.  These concerns range from the fear of interference with current jurors and retribution against former jurors through to the more general concern that prospective jurors may be deterred from serving by fears that their identity will reach the public arena. The general protection of jurors and the process

by which jurors reach their determinations is an essential aspect of the administration of justice. Actual or perceived interference with that process threatens the integrity of the jury system and exposes jurors to speculation about their conduct in the discharge of their (often onerous) duty.

[15]     In the present case the communication was made by way of an email.  The communication contained the juror’s email address.  The hard copy provided to the Court remains sealed on the Court file. However, a copy of the communication was given to each of the counsel involved.   There were several counsel and it is not possible now to be sure where those copies are, nor whether more have been made. Thus, in the absence of an order suppressing the details of the communication, there must be a real risk that the juror concerned will be identified through the media obtaining a copy of the communication.

[16]     The communication was one which, though innocent, was ill-judged  and personally embarrassing to the juror.   When spoken to in chambers the juror was visibly distressed at realising that the communication had been disclosed, even to the relatively small group of people in the courtroom.   The potential distress and embarrassment that will be caused to this juror in the event of the communication becoming public knowledge is one that I view most seriously.  Jurors are not perfect. Yet we ask them to perform a duty which, because of the nature of many criminal trials, is now very onerous, often intruding into their personal lives through the length of trials and the nature of the evidence they must sometimes hear.  A juror who is discharged because of an innocent lapse in judgment should not be exposed to public speculation.  This is not only damaging for the juror concerned but likely to create fear in the minds of potential jurors.

[17]     The   second   concern   is   the   position   of   the   counsel   named   in   the communication.  That counsel did nothing whatsoever to attract publicity.  It is most unfortunate that the nature of the communication was a personal one and likely to lead to speculation about that counsel’s personal life.  The administration of justice requires the participation of counsel who assume the sometimes heavy burden of obligations to both their clients and this Court.   Their work in court is subject to

3 [1992] 1 NZLR 47

public scrutiny through media reporting.  A barrister must willingly accept that. The practice of a criminal barrister depends almost entirely on his or her reputation and that reputation is substantially affected by the reporting of his or her performance in court. There can be no complaint about that.

[18]     However, in this case any reporting on this issue can only involve reporting of aspects of the counsel personally and the counsel’s personal life.  Nothing in the communication relates to the counsel’s professional performance. I have concerns that the interests of justice would be adversely affected by the intrusion of media reporting into the personal lives of counsel who represent accused persons in the most public manner.  The reporting of personal aspects of a barrister’s life has the potential to adversely affect his or her reputation, which is neither fair nor in the interests of justice.

[19]     For these reasons I make an order varying the suppression order recorded in my ruling 19 September 2008 so that there shall be no publication of:

•         The juror’s communication

•         The nature and content of the juror’s communication.

•Any details that might identify the juror including the juror’s age, sex, name and address (including email address).

•Any details that might identify either the counsel to whom the communication was addressed or the counsel referred to in the communication.

P Courtney J