R v Dixon
[2021] NZHC 628
•24 March 2021
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2020-004-007093
[2021] NZHC 628
BETWEEN THE QUEEN AND
KEITH WILLIAM DIXON
Defendant
Hearing: 24 March 2021 Counsel:
J Barry for Crown
D Taumihau for defendant
R K P Stewart for NZME Publishing Ltd, Radio New Zealand Ltd, Stuff Ltd, and Television New Zealand LtdJudgment:
24 March 2021
Reissued:
5 August 2021 (following lifting of name suppression)
ORAL JUDGMENT OF KATZ J
[Name suppression]
Solicitors: Public Defence Service, Auckland
Meredith Connell, Office of the Crown Solicitor, Auckland Copy to: Robert Stewart, Barrister, Shortland Chambers
R v A [2021] NZHC 628 [24 March 2021]
Addendum
[1] This judgment was reissued on 5 August 2021. The only changes are the removal of the previous suppression orders and the use of Mr Dixon’s full name (rather than the pseudonym “A”). This reflects the lifting of the previous suppression orders by Fitzgerald J by Minute dated 19 May 2021, following Mr Dixon’s death on 14 May 2021. There are no longer any suppression orders applying to this judgment.
Introduction
[2] The defendant, Keith William Dixon, has been charged with historic sexual offending at Dilworth School in 1973 and 1974. He faces three charges of indecently assaulting a boy under 16 years of age,1 and one charge of inducing a child to do an indecent act.2 There are three complainants.
[3] The charging documents were filed in the Auckland District Court on 26 February 2021. On 1 March 2021, Mr Dixon was granted interim name suppression under s 200 of the Criminal Procedure Act 2011 (the “CPA”) by Judge D Sharp. That interim order is now due to expire. Mr Dixon now seeks a further name suppression order.
Relevant law – name suppression
[4] Determining whether the identity of a defendant should be suppressed requires a two-stage approach:3
[40] At the first stage, the judge must consider whether he or she is satisfied that any of the threshold grounds listed in 200(2) has been established. That is to say, whether publication would be likely to lead to one of the outcomes listed in subs (2). The listed outcomes are prerequisites to a court having jurisdiction to suppress the name of a defendant. It is “only if” one of the threshold grounds has been established that the judge is able to go on to the second stage.
[41] At the second stage, the judge weighs the competing interests of the applicant and the public, taking into account such matters as whether the applicant has been convicted, the seriousness of the offending, the views of the victims and the public interest in knowing the character of the offender.
1 Crimes Act 1961, s 140(1)(a) (as at 1973-1974, the time of the alleged offending). Maximum penalty of 10 years’ imprisonment.
2 Crimes Act 1961, s 140(1)(c) (as at 1973, the time of the alleged offending). Maximum penalty of 10 years’ imprisonment.
3 Robertson v Police [2015] NZCA 7 at [40]-[41].
[5] One of the threshold grounds set out in s 200(2) is that publication would be likely to create a real risk of prejudice to a fair trial.4 That is the ground on which Mr Dixon relies. A real risk is one that might well eventuate.5 The assessment of real risk is inevitably a judgment which is specific to the facts of the particular case.6 Whether there is such a risk will depend upon an assessment of all relevant circumstances.
Would publication of Mr Dixon’s name be likely to create a real risk of prejudice to a fair trial?
Media articles regarding Mr Dixon’s previous convictions
[6] Mr Dixon has previous convictions for sexual offending against young boys, dating back to 1973 (at an unnamed Auckland school) and 1997. At least four articles are available on the internet that refer to Mr Dixon’s prior offending:
(a)A 2014 blog post on the Lauda Finem website headed “New Zealand Institutional Child Sexual Abuse, The [A] Case & The School Trustees Association – Was the “Fix” In?” That blog post links to the following two NZ Herald articles relating to Mr Dixon’s convictions.
(b)A NZ Herald article dated 6 May 2014 titled “Man jailed for historic sex offences at Auckland school”. That article states Mr Dixon’s name, his two convictions for inducing a boy aged under 16 to do an indecent act on him, at an Auckland school in 1973, and his other “prison sentence in 1997, for ‘similar offending’”. I understand that that article can also be accessed using a search string including Mr Dixon’s name and one or more other terms related to criminal offending.
(c)A second NZ Herald article dated 7 May 2014 titled “School letter made abuse victim feel ‘worthless’”.
4 Criminal Procedure Act 2011, s 200(2)(d).
5 See Simon France (ed) Adams on Criminal Law – Procedure (online looseleaf ed, Thomson Reuters) at [CPA200.02]; and R v W [2021] NZHC 172 at [16].
6 Solicitor-General v W & H Specialist Publications Ltd [2003] 3 NZLR 12, [2003] NZAR 118 (HC) at [30].
(d)A Radio NZ article dated 6 May 2014 titled “Man jailed for historical abuse” also details Mr Dixon’s two prior convictions, containing similar information to the NZ Herald articles.
[7] Evidence of Mr Dixon’s prior convictions is not currently admissible at his trial. Rather, the Crown would need to file an application to admit those convictions as propensity evidence. The Crown has indicated that it is likely to file such an application. Mr Barry advised that this is likely to occur prior to the case review hearing, which is scheduled for April or May 2021.
The parties’ submissions
[8] Mr Taumihau submitted that Mr Dixon’s fair trial rights would be prejudiced by publication of his name, as an internet search of his name would direct the searcher to the articles detailing Mr Dixon’s prior convictions. There is a real risk, he submitted, that this inadmissible and highly prejudicial information could come to the attention of jurors.
[9] The Crown and Mr Stewart (counsel for media entities) submitted, on the other hand, that there is no real risk that Mr Dixon’s fair trial rights would be prejudiced by publication of his name. The relevant articles date back to 2014 and are unlikely to be remembered by jurors. Further, s 199A of the CPA would prohibit any further publication of Mr Dixon’s prior convictions, although the existing articles would remain online absent a take down order. (It appeared to be common ground at the hearing that a take down order would likely be impractical and would not achieve the desired outcome, for various reasons). If any inadmissible material did come to the attention of jurors, the Crown and Mr Stewart submitted, any unfair prejudice could be mitigated by firm directions from the trial judge.
Discussion
[10] All three counsel referred in their submissions to the 2017 decision of Downs J in R v W.7 In that case a defendant charged with murder was serving a sentence of life imprisonment for a different murder. An internet search for W’s name (and the keywords “New Zealand” and/or “crime”) returned 12 results, including news articles
7 R v W [2017] NZHC 2532.
reporting on the murder and Mr W’s applications for parole.8 Downs J recognised that the passage of time made it unlikely that potential jurors would remember the murder.9 However, the continued reporting of Mr W’s parole process meant that the passage of time had little effect, especially when considering that Mr W remained in prison.10 Consequently, this potential prejudice before trial met the threshold under s 200(2)(d).11
[11] The Crown and Mr Stewart submitted that R v W is distinguishable from Mr Dixon’s case because R v W involved a murder and further, publicity around W’s parole process had kept his offending in the public eye, which is not the case here. In this case there has been seven years since any reporting of the offending.
[12] I accept that the lack of recent publicity is a relevant consideration, but it is not a determinative one. Given the modern media landscape, including the ability to readily access historic media articles via internet searches, the passage of time carries less weight than it may have in earlier times when accessing historic media articles was obviously much more difficult.
[13] Another suppression decision (delivered by Lang J in 2018) that also considered the impact on fair trial rights of publicity associated with prior convictions is also (somewhat confusingly) called R v W.12 That case related to an offender colloquially referred to as “the Beast of Blenheim”. Lang J observed that: 13
There can be little doubt the very fact that Mr W is now standing trial on further sexual charges will receive widespread publicity in the news media. Even if this does not refer to his previous convictions, I have no doubt that members of the public to whom that information is disseminated will immediately associate it with his earlier convictions as well as more recent events.
[14] Lang J found that if name suppression was not granted, publicity in the news media about the defendant’s previous convictions for similar offending would
8 At [12].
9 At [14].
10 At [14].
11 At [15].
12 R v W [2018] NZHC 2611.
13 At [5].
inevitably come to the attention of prospective jurors. Although the effect of unfair publicity could be mitigated by judicial directions requiring jurors to ignore any publicity in the news media, the Court found that there was a wider risk that publicity might prompt persons who knew the jurors to engage those jurors in discussions not only about the case but also about Mr W’s past history, thus imparting unfairly prejudicial information upon them before they had an opportunity to withdraw from the discussion.14 Suppression was held to be the only realistic way to prevent that from occurring.15 There is considerable force in those observations.
[15] The allegations of sexual offending at Dilworth School by multiple defendants has attracted considerable publicity. It is inevitable, in my view, that if Mr Dixon’s name were published numerous internet searches would be conducted of his name. Indeed, in a recent extremely high-profile murder case it was reported that over 100,000 internet searches of the defendant’s name were conducted in New Zealand in the days following his arrest (in circumstances where overseas media had published his name). I accept Mr Stewart’s submission that that case was much more high profile than this one. Nevertheless, it does illustrate the modern tendency of the public to search the names of defendants in a high profile cases.
[16] In my view there can be little doubt that a significant number of people would conduct internet searches for Mr Dixon’s name. It is likely that many of those people would find information regarding Mr Dixon’s previous convictions online. All or most of these internet searchers would not be aware of the prohibition on republication contained in s 199A of the CPA. Although the mainstream media can be trusted to comply with that prohibition there is, in my view, a real risk that members of the general public would not. The information regarding Mr Dixon’s previous convictions could therefore be fairly quickly disseminated across various social media platforms, including Twitter and Facebook. The sharing of such information on social media would be virtually impossible to control and ultimately the information could well come to the attention of jurors.
14 At [6].
15 At [6].
[17] Mr Dixon’s 2014 convictions appear to relate to offending that is very similar to the current alleged offending (although I note that I have only received a copy of the summary of facts relevant to the current offending at this morning’s hearing and have not yet had an opportunity to read it). I am aware of the information, however, that is set out in the charging documents.
[18] The articles available on the internet report (amongst other things) that Mr Dixon has been convicted of sexual offending in 1973 against a young boy at an unnamed Auckland school at which he tutored. The present charges relate to alleged sexual offending against young boys at an Auckland school during the same time period (1973 and 1974). Information regarding Mr Dixon’s prior convictions is therefore likely to be highly prejudicial and could well impact on a jury’s assessment of the likelihood that Mr Dixon is guilty of the current alleged offending. Whether such prejudice is unfair, however, or is legitimate prejudice arising out of the probative value of Mr Dixon’s prior convictions as propensity evidence, has yet to be determined by this court.
[19] In my view, publication of Mr Dixon’s name at this time, prior to any determination by this court as to whether his prior convictions should be admitted as propensity evidence, would create a real risk of prejudice to a fair trial. I am not satisfied that judicial directions would be sufficient to mitigate that prejudice. In the event that the court had found the previous convictions to be inadmissible, it would be highly prejudicial for the jurors to learn of Mr Dixon’s earlier convictions and the details of that offending. It would likely be difficult, if not impossible, for jurors to put it entirely out of their minds.
[20] Obviously, if Mr Dixon’s previous convictions are determined to be admissible propensity evidence at trial then there would be no justification for continued name suppression from that point. At this stage, however, the foreshadowed propensity application has not yet been filed and no determination has been made regarding that issue.
[21] For the reasons outlined I am satisfied that the threshold requirement in s 200(d) is met.
The exercise of the discretion
[22] It is therefore necessary to proceed to the second stage of the analysis – the exercise of the court’s discretion as to whether or not to make a name suppression order. This issue can be dealt with briefly, as it is well established (and all counsel accepted) that the defendant’s right to a fair trial will pre-empt the principle of open justice where the fair trial right is likely to be impugned: “fairness of trial trumps all other considerations”.16
[23] It is therefore necessary to suppress Mr Dixon’s identity for a further period. In addition, it is necessary to suppress the contents of this judgment, and the evidence and submissions made at today’s hearing, to avoid the risk of undermining the suppression order that is being made.
Result
[24]The application for name suppression is granted. I make the following orders:
(a)Order prohibiting the publication of the name, address, occupation or identifying particulars of the defendant pursuant to s 200 of the CPA;
(b)Order prohibiting publication of this judgment (save for [1] and [2] and the fact that the defendant has been granted continued name suppression).
(c)Order prohibiting publication of the evidence referred to and the submissions made at the name suppression hearing on 24 March 2021 pursuant to s 205 of the CPA.
16 R v B [2008] NZCA 130, [2009] 1 NZLR 293, (2008) 24 CRNZ 69 (CA) at [2] and [62]; and
MS (CA405/16) v R [2016] NZCA 544 at [9]. See also Simon France (ed) Adams on Criminal Law – Procedure (online looseleaf ed, Thomson Reuters) at [CPA200.02]-[CPA200.02A].
[25]These orders are to remain in force until the earlier of:
(a)the determination of any propensity application that rules the defendant’s previous convictions and/or the conduct giving rise to them to be admissible at trial; or
(b)the commencement of the trial.
Katz J
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