R v E HC Rotorua CRI 2006-069-1101

[2007] NZHC 102

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CRI 2006-069-1101

THE QUEEN

v

E

Hearing:         27 February 2007

Appearances: F Pilditch and J Munro for the Crown

J Rowan QC and B Cooper for the accused

Judgment:      5 March 2007

RULING [2] OF STEVENS J

(Application by Dominion Post for order for in-court media coverage)

Solicitors/Counsel:

Crown Solicitor, PO Box 740, Rotorua

J Rowan QC, PO Box 4292, Wanganui

R V E HC ROT CRI 2006-069-1101  5 March 2007

Introduction

[1]      Early this morning, I was handed a copy of an application by the Dominion Post  for  in-court  media  coverage  (the  application).     The  application  sought permission to take still photographs during the proceedings.

[2]      The application was presented in Court by Mr M Watson on behalf of the Dominion Post.   When presenting  the  application,  he  elaborated on the  written application and advised the Court that his newspaper was seeking permission to take still photographs of the accused only on the first day of the trial.

[3]      Mr Watson confirmed that the application had been filed with the Registrar late yesterday, that is the day before the trial was due to start.  He also accepted that it was filed outside the time limit of the guidelines for filing such applications.

Applicable guidelines

[4]      The  application  is  governed  by  the  provisions  of  the  In-Court  Media Coverage  Guidelines  2003  (the  Guidelines).     Guideline  1  provides  that  the Guidelines apply to all proceedings in the High Court from 1 January 2004.  Whilst the Guidelines do not have legislative force and (according to Guideline 1(c)) do not create rights and should not be construed to create expectations, they are designed to assist the Courts and the media when dealing with applications for in-court media coverage of various types.

[5]      The purpose of the Guidelines is set out in Guideline 2 as follows:

Purpose

(1)       These guidelines are intended to ensure that applications for in-court media coverage are dealt with expeditiously and fairly and that so far as possible like cases are treated alike.

(2)       In   making   decisions   and   exercising   discretions   under   these guidelines, the court may have regard to the following matters:

(a) the need for a fair trial;

(b) the desirability of open justice;

(c)  the  principle  that  the  media  have  an  important  role  in  the reporting of trials as the eyes and ears of the public;

(d) the importance of fair and balanced reporting of trials; (e)  court obligations to the victims of offences;

(f)  the interests and reasonable concerns and perceptions of victims and witnesses.

[6]      Relevant to the application, Guideline 4 provides that all matters pertaining to in-court media coverage are at the discretion of the Court.  The full text of Guideline

4 provides:

Discretion of the court

(1)       All matters relating to in-court media coverage are at the discretion of the court.

(2)       Guidelines 5 to 14 apply subject to subclause (1).

[7]      The making of in-court media coverage applications by a media applicant, including the time of making such applications, is governed by Guideline 5.   This relevantly provides:

Making application

(1)       Any person who wishes to cover a trial must apply to the court where the trial is to take place on the prescribed form in Schedule 1.

(2)       Any such application should be lodged with the Registrar of the court at least ten working days before the trial is due to start.

(3)       Any application lodged inside ten working days before the trial must contain an explanation for the delay and the reasons why it should be granted despite the delay.

(4)       On receipt of an application, the Registrar must refer it promptly to: (a) The trial Judge (or presiding Judge in the case of the Court of

Appeal);

(b) Counsel for the parties; (c)  Any unrepresented party.

[8]      The making of responses to such an application is provided for in Guideline 6 which relevantly states:

Response to application

(1)       Within three working days of receipt of an application, any party receiving it must notify the Registrar, the media applicant, and the other parties in writing:

(a) That the application is not opposed; or

(b) That the application is opposed (in whole or in part) and the

reasons for the opposition.

[9]      For completeness, I also quote from Guideline 8 which is pertinent to the application.  Guideline 8 states:

Decisions on the papers

(1)       A Judge may decline an application on the papers if it is lodged inside ten working days before trial.

(2)       A Judge may grant an application on the papers if:

(a) all parties have advised their consent or non-opposition; or

(b) the time for notifying any opposition has passed and no party has given notice of any opposition.

(3)       In all other cases, it is appropriate that there be a hearing of the application, in a manner directed by the Judge.

Procedure followed

[10]     Although the application was filed after the ten working day period provided for in Guideline 5(2), I decided not simply to decline the application on the papers. As  noted  earlier,  I  heard  from Mr  Watson  for  the  Dominion  Post  and  he  was helpfully able to provide more specificity regarding the coverage sought.   In particular, the only still photographs to be taken were of the accused, Miss Rarua E  , and only on the first day of the trial.

[11]     When the application was filed, it was in the form provided in Schedule 1, as required by Guideline 5(1).   But interestingly, clause 6 was not completed.   This clause applies if, as here, the application has been lodged out of time and provides an opportunity for the applicant to offer an explanation, if any is available, as to why the application has been lodged out of time.  Mr Watson informed the Court that the relevant personnel at his newspaper had only realised late in the piece, and shortly before the trial, that no photograph of the accused was available.

[12]     A copy of the application was provided to counsel for the Crown and the accused as required by Guideline 5(4).  The views of counsel are set out below.

[13]     Mr Rowan QC, on behalf of the accused, advised that the application was opposed.   He said  that  he  had  discussed  the  matter  briefly with  his  client  and submitted that the taking of still photographs of her on the first day of the trial would add further to the stress and pressure that she was feeling as she confronted her trial in the High Court.   Mr Rowan advised that when he raised the matter with the accused she was “visibly upset”.

[14]     Mr Rowan referred to the various factors which he had raised in argument during the hearing of his application for name suppression heard earlier.   He emphasised  her  youth  and  the  likely  additional  pressure  and  stress  that  media coverage  by  photographs  would  cause.     He  also  explained  the  fact  that  the application was outside the time limit in Guideline 5.

[15]     Mr  Pilditch,  for  the  Crown,  referred  to  the  policy  reasons  behind  the requirement for early notification of such an application as required by Guideline 5. He  submitted that  in  other  cases,  where  the  application  was  late,  it  was  often dismissed by the Court outright, simply by dealing with the matter on the papers.

[16]     Mr Pilditch submitted that, if the Court were minded to grant the application, then the only remaining opportunity for an in-court still photograph on the first day of trial would be during his opening address or any opening statement on behalf of the accused.  That would be potentially disruptive and intrusive and he invited me to impose conditions to avoid any such effects.

[17]     Having  heard  from counsel for  the  parties,  I then  invited  Mr  Watson to respond.  He mentioned the public interest in having a photograph of the accused in conjunction with any other report of the proceedings.  In this regard he referred to my earlier ruling lifting suppression of the name and details of the accused.

[18]     Having carefully considered the applicable Guidelines, I consider that the timely filing of such applications is important.  I accept the policy reasons referred to in support of early notification referred to by Mr Pilditch.   These include allowing time  for  all  parties  to  be  heard  and  to  make  considered  submissions  and  the competing demands on Court time, particularly in relation to criminal trials in the High Court where the Court is under pressure from a very heavy workload.

[19]     Another reason for early notification is the fact that on the first day of any criminal trial, there are often various last minute interlocutory applications to be dealt with.  Moreover, counsel will inevitably be busy finalising their addresses and organising witnesses.   Accordingly,  it  is  important  that  applications  for  in-court media coverage be filed at the earliest possible opportunity, and  preferably, within the time limit provided for in Guideline 5(2).

Decision

[20]     The application was filed out of time.  The reasons advanced to suggest that, although filed out of time, the application should nevertheless be granted do not warrant the Court making an order for the taking of still photographs of the accused in Court.   Given the fact that the application did not provide reasons for the late filing, this is the type of application which would, in the normal course, be declined on the papers.

[21]     However,  it  was convenient  for  the  Court  to  hear  from the  applicant  in support of the application.  Despite the narrowing of the applications and the greater specificity indicated in terms of what still photography was being sought, I conclude that, in the exercise of the Court’s discretion, the application should be declined.

[22]     Even if the application had been filed in time, I do not consider that it would have been appropriate case to allow the applicant to take still photographs of the accused on the first day of her criminal trial on a charge of murder.  In this context I accept that the age of the accused, which is just over 17 years, would be likely to

cause an increase in the degree of stress and pressure upon her at an undoubtedly a difficult time for her.  I accept that the taking of a still photograph or photographs of the accused, additional to any written media coverage would be likely to add such stress and pressure.  In this regard, I accept the submissions made by Mr Rowan, on behalf of the accused.

[23]     The accused is likely to be particularly vulnerable to  any in-court  media coverage, especially of a photographic nature, as a result of the existence of video footage taken at the time she was at the Turangi Police Station on the night of the incident.  The circumstances in which such video footage was taken are described in more detail in my earlier Ruling [1] at [14] and [15].  There is a possibility that such footage might be used in the future, but only after the trial has reached its full conclusion, as part of the Police Ten 7 series.  Hence, it is probable that the accused would have a hyper-awareness of, and vulnerability to, any in-court photographic coverage.

[24]     For the above reasons, the application is declined.

Stevens J