R v F
[2018] NZHC 257
•27 February 2018
ORDER PROHIBITING PUBLICATION OF NAME, ADDRESS,
OCCUPATION OR IDENTIFYING PARTICULARS OF DEFENDANT PURSUANT TO S 200 CRIMINAL PROCEDURE ACT 2011. SEE
ORDER PROHIBITING PUBLICATION OF IDENTIFIED PARTS OF THE JUDGMENT [AS PER PARAGRAPH [43]] IN NEWS MEDIA OR ON THE INTERNET OR OTHER PUBLICLY AVAILABLE DATABASE UNTIL FINAL DISPOSITION OF TRIAL. PUBLICATION IN LAW REPORT OR LAW DIGEST PERMITTED.
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2018-004-832
[2018] NZHC 257
THE QUEEN v
F
Hearing: 27 February 2018 Appearances:
B H Dickey for the Crown M Pecotic for the Defendant
Judgment:
27 February 2018
ORAL JUDGMENT OF GORDON J
Solicitors: Crown Solicitor, Auckland Counsel: M Pecotic, Auckland
R v FELISE [2018] NZHC 257 [27 February 2018]
Introduction
[1] F is to face trial in this Court on one charge of manslaughter on 19 November 2018.1 The trial is set down for two weeks.
[2] At his first court appearance, F was granted interim name suppression pursuant to s 200(4) of the Criminal Procedure Act 2011 (the Act).
[3] As s 200(5) provides that F’s interim name suppression will expire at his next court appearance, he now applies for continued name suppression until his trial.
[4]The application is before me as Duty Judge.
The alleged factual background
[5]The Crown’s case is as follows.
[6] During the early hours of 27 January 2018, the victim was the front passenger in a vehicle being driven in Auckland Central. The victim was an 18-year-old male visiting Auckland from Whangarei. His friend was driving the vehicle.
[7] At around 3:15 am, the vehicle drove past F as he stood with an associate at the driver’s side window of a vehicle parked outside a bar on Wellesley Street. F had been drinking in that bar from around 1 am.
[8] The victim fired a plastic water-pellet gun at F. This angered F but did not hurt him. The vehicle the victim was in then stopped at the nearby traffic lights. F strode up to it. Upon reaching the passenger side of the vehicle, F opened the door and began assaulting the victim. The victim was seated and restrained by a seatbelt throughout the attack.
[9] F punched the victim several times to the head with a closed fist. The victim initially put his hands up to try defend himself, but his hands dropped as he lost
1 Crimes Act 1961, ss 160(2) and 171.
consciousness. During the assault, F also seized the water-pellet gun from the passenger footwell and used it to strike the victim, breaking it over him.
[10] F continued to punch the victim following his loss of consciousness. The force of the punches caused the victim’s head to jolt backwards and sideways.
[11] Eventually, an associate of F was able to lead him back to the vehicle parked outside the bar.
[12] The driver transported the victim to hospital. Ultimately, the victim never regained consciousness. He suffered a severe brain bleed, a broken nose, and by the time of his arrival at Auckland Hospital, he had experienced two cardiac events. Upon arrival, he was assessed as unlikely to survive. The victim eventually died on 28 January 2018.
Law
[13] Section 200(1) of the Act empowers the court to make an order forbidding publication of the name, address, or occupation of a person who is charged with, or convicted or acquitted of, an offence.
[14] Section 200(5) provides that F’s interim name suppression will only be renewed if the court is satisfied that one of grounds in s 200(2) applies:
(2)The court may make an order under subsection (1) only if the court is satisfied that publication would be likely to—
(a)cause extreme hardship to the person charged with, or convicted of, or acquitted of the offence, or any person connected with that person; or
(b)cast suspicion on another person that may cause undue hardship to that person; or
(c)cause undue hardship to any victim of the offence; or
(d)create a real risk of prejudice to a fair trial; or
(e)endanger the safety of any person; or
(f)lead to the identification of another person whose name is suppressed by order or by law; or
(g)prejudice the maintenance of the law, including the prevention, investigation, and detection of offences; or
(h)prejudice the security or defence of New Zealand.
[15] Ultimately, a person applying for name suppression must satisfy a two-stage test. The Court of Appeal in Fagan v Serious Fraud Office stated:2
(a)the Court must be satisfied that one or more of the threshold grounds listed in s 200(2) has been established; and
(b)the Court must be satisfied that it is appropriate to exercise its discretion to grant name suppression taking into account the competing interests of the applicant and the public.
[16]The Court in D (CA443/2015) v Police subsequently elaborated on the test:3
[10] … The legislation does not impose a burden of proof but the presumption will apply unless the applicant can point to something to displace it.
[11] Under the thresholds in paragraphs 200(2)(a), (c) and (d) the court must decide whether publication will cause “extreme” or “undue” hardship, or a “real risk” of prejudice. The adjectives indicate that these are comparative standards. They require that the court compare the consequences of publication in the instant case with those that normally attend prosecution. Distress, embarrassment and adverse personal and financial consequences usually attend criminal proceedings, and something out of the ordinary is needed if the applicant is to get across the threshold. This is an important principle. Its workings are well illustrated by the facts of Liddell, in which the offender's wife was said to be “only just making it” after learning of his serial offending against children, but the Court reasoned that his family's anguish was not an exceptional consequence of his crimes.
[12] At the second stage the court must balance relevant considerations in the exercise of discretion. The open justice principle must be considered at this stage, notwithstanding that the threshold has been crossed. That is so because the ultimate question remains whether open justice should yield. The balance must “clearly favour” suppression. In a case turning, as this one does, on subs (2)(a) , (d) and (e), relevant considerations accordingly include the open justice principle, the seriousness of the offending, the presumption of innocence, the public interest in knowing the applicant's character and identity, the public's right to freedom of expression, the applicant's youth and the likely impact publication will have on the applicant's prospects of rehabilitation, any other circumstances personal to the applicant, the interest of victims and the interests of other affected person.
(Citations omitted)
2 Fagan v Serious Fraud Office [2013] NZCA 367 at [9].
3 D (CA443/2015) v Police [2015] NZCA 541.
[17]More recently, Downs J in a case in this Court stated:4
[11] As will be apparent, the discretionary power to suppress publication of a defendant’s name is exercisable only upon satisfaction of the jurisdictional threshold publication would likely lead to one or more of the consequences identified in subs (2).5 “Likely” in this context means a real and appreciable risk or possibility.6 If jurisdiction exists, the Court must then consider the competing interests of the defendant, public and victim.7 However, if jurisdiction arises because of genuine risk of prejudice to a fair trial, publication will generally yield to that “non-negotiable” right.8
Submissions
[18] F relies on the grounds contained in s 200(2)(a), (b), (d) and (e). In terms of s 200(2)(d), which is F’s main ground, Ms Pecotic, appearing for him today, submits that there is a real risk of prejudice to a fair trial. F seeks name suppression to avoid potential jury members researching his name on the internet and finding out about his previous criminal offending.
[19] In his affidavit filed in support of the application, F exhibits a Google search for his name which returns 19 results in the first two pages. Twelve of these hits are news articles directly related to his previous aggravated robbery and murder charges. Eight of the articles are the first results to appear. There are also images of F in Court, in the dock. As a result, even though he was acquitted of the murder charge, F submits that a potential juror will inevitably be prejudiced against him through reviewing and reading these articles. The prejudicial effect is said to be enhanced due to the similarities between the nature of the previous offending and the current charge before the Court.
[20] For the purpose of s 200(2)(e), in his affidavit, he exhibits a form which shows that intelligence collected through recorded phone calls to and from the prison reveals that the victim in this case had familial gang connections. It further states that monitored calls of a unit in the prison confirm that prisoners are aware of F’s alleged offence and “that he would be at risk of serious harm from members of the Tribesmen”
4 R v W [2017] NZHC 2532.
5 Huang v Serious Fraud Office [2017] NZCA 187 at [5].
6 D (CA443/2015) v Police [2015] NZCA 541 at [30](a).
7 Robertson v Police [2015] NZCA 7 at [41].
8 Lyttleton v R [2015] NZCA 287 at [32].
gang. As he currently has name suppression, the prisoners are unaware of his name. He says a transfer to another prison if his name is published is futile because he will similarly be in danger there.
[21] F lastly submits that his brother who is currently in custody might be at risk of harm too and he relies on s 200(2)(a), (b) and (e) in this regard.
[22] The Crown opposes the application on the basis that none of the threshold grounds for name suppression is made out or, alternatively, that the balance of interests favours open justice in this case.
Discussion
Stage one
[23] There are a significant number of internet articles relating to F. A Google search using his name returned 6,960 results.
[24] The material is potentially highly prejudicial. A significant proportion of the results on the first pages relates to a 2010 trial where F was eventually acquitted of charges of murder and manslaughter. This was after he had pleaded guilty to a charge of aggravated robbery.
[25] The following titles on the first page of results illustrate the highly prejudicial nature of the material:
(a)‘Wasted’ witness heard robbery plan;
(b)‘I’m living my life as a dead person’;
(c)‘Justice has been done’ – family’s relief at killer’s sentence;
(d)One guilty of liquor store owner’s murder;
(e)Four more in court over robbery;
(f)Wife shocked at single murder verdict in Singh trial; and
(g)Killer Asked For Family’s Forgiveness.
[26] The Crown first submits that the effect of publications can dissipate over time, and with that, the level of risk. I accept that this is the case generally.9 But, as is apparent from the number of search results, F’s 2010 trial was highly publicised. It is still within recent memory. The titles illustrate the public interest in the trial. There are also images of F in Court, in the dock. The Court of Appeal commented in R (CA340/2015) v R:10
[20] … Nevertheless, our judgment is that it is appropriate to proceed on the basis that the detail will not fade with time, which was also the position of both the appellant and the Crown. When this information is reported it will be linked to the appellant's conviction for the murder of Mrs Gotingco — a murder which has been intensely reported and has been the subject of considerable public interest. We think it is likely to stick in the public consciousness that the man convicted of Mrs Gotingco's kidnap, rape and murder has previously committed a sexual offence against a child, and that he has previously been assessed as being at high risk of reoffending. We also accept the appellant's point that although it may have emerged at trial that the appellant probably had previous convictions, the jury were not aware of the nature of those convictions.
[27] Although within a different context, I consider that these remarks are similarly applicable here. The similarity of the charges in this case creates an added risk of prejudice. Publication of F’s name may therefore “contaminate the minds of potential jurors”.11
[28] The Crown also submits that there is a distinction between contemporaneous publications and publications that potential jurors have to seek out actively. As the Court of Appeal in R (CA340/2015) v R acknowledged, the potential for prejudice in the latter case is less:12
[29] The appellant argues that online information is different to information in the mainstream media. Members of the public have to seek out information online, whereas information on television and in the print media is presented to them …
9 R (CA340/2015) v R [2015] NZCA 287 at [19]-[20].
10 R (CA340/2015) v R, above n 9.
11 R v W, above n 4, at [15].
12 R (CA340/2015) v R, above n 9.
[29] I accept the distinction. But, as the Court of Appeal acknowledged in the same case, “[t]he internet is not a sealed container from which no information leaks”.13 So, for the reasons given, I consider there is an appreciable possibility that publication will create a real risk of prejudice to F’s fair trial rights. In other words, to use the words of the section, “that publication would be likely to create a real risk of prejudice to a fair trial”.
[30]I consider, therefore, that the jurisdictional threshold of s 200(2)(d) is met.
[31] Given my view that the threshold for s 200(2)(d) is met, I make only a few brief comments regarding (a), (b) and (e). Indeed, Ms Pecotic, while not abandoning this part of the application, acknowledged it was not strong.
[32] First, in relation to s 200(2)(d), F relies on both the victim’s alleged gang connections and threats that have allegedly been made by gang members. He cites the decision of Hoffman v Police.14 In that case, name suppression was declined because the appellant’s identity was already known to the other prisoners. Here, F alleges his identity is unknown.
[33] The Crown submits that F has not demonstrated any additional risk to his safety is likely to arise if his name is published in the media. F is currently isolated from other prisoners for his safety. The protective custody form records that he was in serious danger from the commencement of his detention, namely while he was subject to interim name suppression. The Crown submits that media reporting is not the only way that gang members or others may find out his identity.
[34] F is also concerned about his brother’s safety and relies on s 200(2)(a), (b) and (e). The Crown submits there is no evidence of any threats to F’s brother because of a familial relationship. The Crown states it is clear from the form that there were threats to F’s own safety without his name having been published.
13 At [29].
14 Hoffman v Police [2016] NZHC 2766.
[35] There must be an evidential basis for a belief that the safety of a person is likely to be endangered.15 Here, F relies on the report from the prison officer already referred to.
[36] In my view, this report suffices to show that F’s safety might possibly be endangered if his name suppression lapses. Unlike in the Hoffman case, F’s identity is not known to the other prisoners. I cannot speculate on any other methods by which gang members may be able to find out F’s identity. However, although I consider F’s safety might possibly be endangered, I do not consider the evidence takes it as high as ‘likely’.
[37] In terms of harm to F’s brother, I do not consider that an evidential basis has been satisfied. If prison staff were of the view that F’s brother was also in danger, in my view he would have been placed in protective custody segregation also.
[38] F also deposes that there may be a case of mistaken identity, namely that gang members will confuse his brother with him. I do not see that matter as having any great weight.
Stage two
[39] There is a significant public interest in the open reporting of criminal trials. The interests of the victim also favour publication.
[40] In that regard, I note that the victim’s mother has filed a letter dated 26 February 2018. Under s 200(6) of the Act, the court must take into account the views of the victim (which includes the victim’s mother) when deciding whether to make a permanent order. Although this will not be a permanent order, I do mention the letter. The victim’s mother says the family deserves to have an open and transparent trial (and that the public deserves to know the person responsible).
15 Bitossi v R [2014] NZCA 595 at [8].
[41] However, as the Court of Appeal recognised in R (CA340/2015) v R, “the fairness of a trial is non-negotiable”.16 As the Court of Appeal also stated in R v B,17 the right to a fair trial trumps all else.
Decision
[42] Accordingly, my decision is that F’s name, address, occupation and any other identifying details are suppressed until trial and I make an order to that effect. A further application will need to be made to the trial Judge.
[43] I also make an order that there should be no publication of the assertion that the victim in this case has gang connections.
Gordon J
16 R (CA340/2015) v R, above n 9, at [32].
17 R v B [2008] NZCA 130, [2009] 1 NZLR 293 at [2].