R v H HC Dunedin CRI 2007-012-4181

[2008] NZHC 1780

This case has been anonymized

ANY REPORTING OF THIS HEARING NOT TO REFER TO ANY REASONS DEALT WITH THAT RELATE TO THE FORTHCOMING SECOND TRIAL

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

CRI 2007-012-4181

THE QUEEN

v

H
S

Hearing:         17 November 2008

Appearances: R Bates and A Killeen for the Crown

J Haigh QC and B Boyd for the accused H 
G King for the accused H 

Judgment:      17 November 2008

(ORAL) JUDGMENT OF STEVENS J (Media application)

Solicitors/Counsel:

Crown Solicitor, PO Box 803, Dunedin 9054
J Haigh QC, PO Box 1614, Shortland Street, Auckland 1140
G King, PO Box 24086, Manners Street, Wellington 6142
A Killeen, Serious Fraud Office, PO Box 7124, Wellesley Street, Auckland 1141

B Boyd, PO Box 37139, Parnell, Auckland 1151

R V S AND ANOR HC DUN CRI 2007-012-4181  17 November 2008

[1]      The accused, H   (Mr H  ) and H   (Mr H  ) are each charged with two counts of using a document with intent to defraud contrary to s 229A(b) of the Crimes Act 1961.  Each accused also faces a further  charge  of  using documents  to  obtain  a  pecuniary advantage  or  valuable consideration contrary to s 228(b) of the Crimes Act.  The amounts of money said by the Crown to have been dishonestly obtained as a result of the use of the documents concerned is in excess of $16.9 million.  The trial has provoked considerable public interest.

[2]      The trial is due to start later today.  But it is necessary first to determine three applications made under the In-Court Media Coverage Guidelines 2003 (the Guidelines).  Television New Zealand seeks permission to cover the trial for its news and current affairs programmes.  TV3 seeks permission to cover the trial as well.  By agreement between the two networks only one camera would be in Court with the resulting footage to be used on a shared basis.  There is also a media application on behalf of the Otago Daily Times to take still photographs of the accused and certain witnesses appearing at the trial.

[3]      None of these applications were opposed by the Crown.  Mr Bates indicated that in essence the Crown’s position is neutral on each.   With respect to the application by the two television networks, Mr Bates observed that, in the circumstances that apply in courtroom number one in the Dunedin High Court, it would not be too intrusive in the usual circumstances to have one television camera covering the proceedings.   Although it is a small courtroom, a camera can be conveniently placed to the side and in way that would not interfere with the proceedings.  He accepted that a second person could operate the audio equipment if required.

[4]      The applications were opposed by Mr H   and Mr H  .   Detailed submissions in opposition were advanced on their behalf by Mr Haigh QC and Mr King.  I also heard helpful submissions from representatives on behalf of each of the three media groups concerned.

[5]      In New Zealand applications such as the present for in-court media coverage are covered by the Guidelines.   They apply to all proceedings in the High Court. They do not have legislative force, neither according to Guideline 1, do they create rights.   Further, they “should not be construed to create expectations”.   The fundamental duty of a trial Judge is to secure that justice can be done.   On rare occasions this may require a Judge to override the ordinary principle that a trial is to be open to the public: see Scott v Scott [1913] AC 417. But that would normally be exceptional and the demands of justice would have to be compelling.

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

2.    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.

[7]      The reason for the ordinary principle that trials take place in public is so that they are open to the public to attend and to the media for reporting purposes.  In a sense, media representatives covering the relevant trial are the ears and eyes of the public.  Such an approach is departed from exceptionally, often under the provisions of ss 138-140 of the Criminal Justice Act 1985.   Alternatively, a Judge having considered the Guidelines, may determine that for particular and exceptional reasons it is necessary that part of a trial be conducted other than in public.  The exceptional

nature of orders excluding reporters is discussed in the decision of the Court of Appeal in R v Liddell [1995] 1 NZLR 538. Further, s 14 of the New Zealand Bill of Rights Act 1990 enshrines the principle of freedom of information.

[8]      The Guidelines are in place to assist trial Judges to determine applications in particular cases.  Their purpose is to guide judicial officers in making the judgments that   are   required   to   be   made   when   applications   are   advanced   by   media representatives including those in television, radio and print media.   The Judges applying the Guidelines may take into account the specific matters referred to in the purpose provision of Guideline 2 already referred to.

[9]      One particular aspect of applications made under the Guidelines, is that the trial Judge, having heard from the relevant applicants, is called upon to determine the extent to which, if at all, the media should be able to report, to photograph or to film for television in any given case.   Again, the Guidelines are available to enable applications to be dealt with promptly and fairly against the five considerations listed.  Such a list is not intended to be exhaustive of the factors to be weighed in determining the interests of justice.

[10]     Mr Haigh QC, for Mr H  , in opposing the application referred to two relevant authorities.  First he cited R v Sila HC CHCH CRI 2007-009-006120 6 May

2008, Fogarty J.  He also cited the decision of Keane J in R v Crutchley HC HAM CRI 2007-068-0083 16 May 2008.   I have read both decisions.   In terms of an overall approach to the Guidelines, I prefer that set out in the judgment of Keane J.

Grounds in support

[11]     The media representatives emphasised the public interest in this case and the fact that it concerns in excess of $16.9 million of public funds said to have been obtained from a public health authority namely, Healthcare Otago or later the Otago District Health Board.  The importance of open justice was also referred to.

[12]     Mr McDermott and Mr Gooselink, on behalf of TVNZ and TV3 respectively, referred to the practical arrangements that had been made providing for one camera

only to be involved.  Sensibly, this would be used by both networks with the footage being shared between the two of them.  Obviously, journalists from the two media networks would be present in Court, together with one person who would operate separate audio recording devices.   This person would be sitting alongside the cameraman.

[13]     So far as the still photographs are concerned, Ms Sinclair for the Otago Daily Times suggested that still photographs of the accused might be taken at the start of the trial.   This is what happened at the depositions.   Ms Sinclair also sought permission to take photographs of certain witnesses during the trial.  The proposal is that,   if   a   request   is   made   to   photograph   a   particular   witness   before   the commencement of his or her evidence, this request would be notified to the Crown Solicitor and hopefully might be dealt with by consent between the parties.  If there are any issues arising then these could be resolved by me on a case by case basis.

Submissions in opposition

[14]     The applications for in-court media coverage were opposed by Mr Haigh and Mr King, for Mr H   in totality.   Mr Haigh realistically recognised that the media representatives had a legitimate interest in covering criminal trials on behalf of the public and that this was certainly a case where there was heightened degree of public interest.

[15]     Mr  Haigh  referred  to  various  other  reasons  in  support  of  a  total  ban, applicable in particular to Mr H  .   These submissions were conveniently dealt with during the argument and there is no need for me to elaborate upon those arguments in this judgment.   Rather, I note that the submissions made have been taken into consideration in determining the applications.

Decision

[16]     I propose to grant the applications.  They will be granted respectively for the television filming and taking of still photographs on the standard conditions subject to the following limitation:

a)       Messrs H   and H   may only be filmed or photographed in the dock when they first enter the courtroom at the beginning of the trial and for no more than five minutes.

b)This restriction is to apply so that any filming takes place essentially during the introductory stages of the trial.

[17]     Should either Mr H   or Mr H   elect to give evidence, I will consider then whether there is a need for any further directions.  I reserve leave to counsel for Messrs H   and H   to make applications at the time.

[18]     As far as witnesses are concerned, Mr Bates has confirmed that the witness list and timing will be made available both to counsel and to the media ahead of time.  If the media wish to film a particular witness, the media representative is to notify Mr Bates.  Hopefully, any matters can be resolved between counsel.  If there is any opposition on behalf of any particular witness (and I have been told there may well be one or two that will oppose being photographed) any unresolved issues can be dealt with prior to the witness stepping into the witness box.

[19]     I  reserve  leave  to  those  who  would  wish  to  support  an  application  for protective measures to apply.  Normally, that matter will be advanced by Mr Bates, but it may well be that individual witnesses will wish to be represented by counsel.

[20]     I reserve leave generally to apply.

Stevens J