R v C HC Hamilton CRI 2007-068-83

[2008] NZHC 711

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI 2007-068-0083

THE QUEEN

v

C

Hearing:         14 May 2008

Appearances: R G Douch for the Crown

R Laybourn for the Accused

Judgment:      16 May 2008

JUDGMENT OF KEANE J

Solicitors/Counsel:

Crown Solicitor, Hamilton

R Laybourn, Hamilton

R V C HC HAM CRI 2007-068-0083  16 May 2008

[1]      On 19 May 2008  C   is to go to trial for the attempted murder of his mother on 5 February 2007 at Taumaranui. Three applications have been made under the In-Court Media Coverage Guidelines 2003. TVNZ seeks permission to cover  the  trial  for  its  news  and  current  affairs  programmes.  TV3  seeks  like permission for 3 News, Nightline, Campbell Live, and Current Affairs. The Waikato Times seeks permission to take still photographs.

[2]      These applications are not opposed by the Crown or by Mr C   and, ordinarily, I would grant them without saying more.   The correctness of the Guidelines in law has, however, recently been questioned:  R v Sila HC CHCH CRI-

2007-009-006120, Fogarty J.   I am obliged then to say that I do not share the reservations about the Guidelines set out in that decision and to outline, very briefly, why.

[3]      First, the fundamental duty of a trial judge is, as the Sila decision says, to secure that justice is done and that can sometimes require a judge to override the ordinary principle that  a trial is public: Scott v Scott [1913] AC 417, 435-437, Viscount Haldane LC. But to do that is very exceptional. The demands of justice have to be compelling.

[4]      Secondly, inherent in the ordinary principle that trials are public is that they are open to public report. That too, as the Sila decision recognises, may only be departed from exceptionally, under ss 138-140 of the Criminal Justice Act 1985, or to secure that justice is done. Just how exceptional that is has been emphasised in more than one leading case: R v Liddell [1995] 1 NZLR 538 (CA). Freedom of information is underpinned by s 14 of the New Zealand Bill of Rights Act 1990.

[5]      Thirdly, as appears accepted also in the Sila decision, a principal purpose of the Guidelines is to assist the trial judge to decide an issue going to the justice of the trial: how far public reporting should be allowed to extend - to what extent, if at all, the media should be able to report, to photograph or to film for television. The Guidelines set out to ensure that such issues are dealt with promptly, fairly and alike against five considerations, the first two of which are the need for a fair trial and the desirability of open justice: para (2).

[6]      Fourthly, and this is where  I am obliged to part  company with  the  Sila decision, the Guidelines, I think, are entirely compatible with a trial judge’s duty to secure that justice is done. They are merely guidelines.  They make no statement of law. They are without any effect in law. They do not have legislative force: para

1(b).  They do not create rights and are not to be understood as creating expectations: para 1(c). They recognise that the trial judge has a complete discretion: para 4. To the extent that the judge considers they conflict with the demands of justice, and I do not myself see that they do, they can be set aside.  The judge’s duty to secure justice is and has to be paramount.

[7]      Finally, and here too I am obliged to part company with the Sila decision, I do not consider the photographing or filming for television of an accused person in the dock is a humiliation akin to pillory.  The essence of that old punishment was public humiliation, even public assault.  An accused person in the dock, by contrast, is presumed innocent.   The dock protects as well as secures. The presence of the public in the Courtroom is a safeguard against arbitrary trial.

[8]      An  accused  person  in  the  dock  may  well  feel  humiliated.  That  is  not sufficient of itself to exclude the public from the Courtroom. Newspaper and television coverage does amplify the public gaze to an altogether greater order. That is not sufficient to exclude the media either. A principal purpose of the Guidelines is, after all, to enable the trial Judge, the media co-operating, to prevent any possibility of pillory.

[9]      Each application is granted, unopposed, on the standard conditions, subject presently only to this. Mr C   may only be filmed or photographed in the dock when he first enters the Courtroom at the beginning of the trial, for no more than two minutes,  and  before  the  jury is  empanelled.  Should  Mr  C   elect  to  give evidence, I will consider whether that too calls for any direction.

[10]     I  confirm  also  this.  On  the  issue  of  this  decision  the  interim  order  for suppression of Mr C  ’s name is to cease. Mr C   does not oppose that

happening.

P.J. Keane  J