R v J (CA259/02)
[2002] NZCA 361
•18 October 2002
| NOT TO BE PUBLISHED IN NEWS MEDIA OR ON INTERNET OR PUBLICLY ACCESSIBLE DATABASE UNTIL COMPLETION OF TRIAL | |
| IN THE COURT OF APPEAL OF NEW ZEALAND | CA259/02 |
THE QUEEN
V
J (CA259/02)
| Hearing: | 16 October 2002 |
| Coram: | McGrath J Baragwanath J Salmon J |
| Appearances: | R Rai for Appellant AE Kiernan and CB Wilkinson-Smith for Crown |
| Judgment: | 18 October 2002 |
| JUDGMENT OF THE COURT DELIVERED BY SALMON J |
This is an appeal against a decision refusing to continue an order for suppression in relation to two sexual offences on which the appellant was acquitted.
The accused originally faced an indictment of eight counts, five relating to the supply or offer to supply a Class B drug, and two alleging sexual offences. There were three complainants in all.
On 16 July a High Court Judge determined various pre trial applications. As a result the indictment was severed and two trials were ordered. The first trial concerned allegations relating to two drug supply offences and two sexual offences concerning one complainant. The second trial involved three drug supply allegations concerning two complainants. The Judge also ordered that the appellant’s name be suppressed until the conclusion of the second trial.
At the time of the ruling it was anticipated that both trials would be heard in the week of 29 July 2002 in the New Plymouth High Court. The first trial commenced on 29 July. The appellant pleaded guilty to the two charges of supplying Class B drugs and was found not guilty by the jury following trial on the two counts alleging sexual offending. The first trial over ran the time originally allocated so that there was no time left for the second trial, which is now scheduled to commence on 29 October.
On 1 August 2002 at the conclusion of the first trial the prosecutor asked a different Judge to review the non publication order. The Judge lifted the order to the extent that it applied to the two sexual allegations. He continued the order in relation to the drug related matters. He suspended the effect of his order pending the hearing of this appeal. In lifting the order in relation to the sexual allegations, the Judge noted that the original order for non publication was made to ensure that the second trial could not be prejudiced by the first trial. He went on to say:
The matters referred to in the first trial are I am informed matters of significant public interest in New Plymouth. If publication of the details of this trial are withheld for another two months or more I am concerned, and the media can rightfully claim, that any advantage to the public in knowing about this matter will have been effectively dissipated. The trial would be reported on the basis of acquittals in relation to two sexual matters.
It can be seen in the order that he made and in the comments referred to above, the Judge was conscious of the need to balance the public interest in the open reporting of trials against the possible prejudicial effect of that publication to an accused awaiting trial.
We are satisfied that in the circumstances that existed when the ruling was made the Judge’s order was the proper one to make.
We are faced now with a different situation. The second trial is now due to commence in less than two weeks. The Crown acknowledges that because of the proximity of the trial the balance has now shifted so that possible prejudice from publication which would remind the public in New Plymouth of those matters of significant interest referred to by the Judge, outweighs the countervailing right of open reporting.
Accordingly, we allow the appeal and extend the non publication order to the commencement of the second trial. At that stage the question of whether and when to lift the order is to be in the hands of the Trial Judge.
Solicitors
Till Henderson King, Hamilton for Appellant
Crown Solicitor, Auckland
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