R v Kemara

[2007] NZCA 489

IN THE COURT OF APPEAL OF NEW ZEALAND

CA585/07 [2007] NZCA 489

THE QUEEN

v

TE RANGIWHIRIA KEMARA

CA586/07

THE QUEEN

v

TUHOE FRANCIS LAMBERT

Hearing:         6 November 2007

Court:            Ellen France, John Hansen and Heath JJ

Counsel:         C B Hirschfeld and A Poananga for Te Rangiwhiria Kemara

K W Barron-Afeaki for Tuhoe Francis Lambert
A R Burns for Crown
T J Walker and S Margetts for TVNZ, TV3, Fairfax and Radio New
Zealand

Judgment:      6 November 2007

Reasons:        19 November 2007at 10.30 am

JUDGMENTS OF THE COURT

The applications for special leave to appeal are dismissed.

REASONS OF THE COURT

(Given by Ellen France J)

Introduction

[1]      On 6 November 2007, we dismissed the applicants’ applications for special leave to appeal under s 144 of the Summary Proceedings Act 1957 in relation to name and photographic suppression.  We now give our reasons.

Basis of proposed appeals

[2]      The applicants’ written submissions raised a number of questions but the leave application was advanced on the basis that the question for decision was as follows:

In deciding whether or not to grant name and photographic suppression, what is the law or legal criteria on “a significant risk” to the “right to a fair trial” when the defence of identity is raised as a significant trial issue?

Background

[3]      The applicants have been charged with offences under the Arms Act 1983 jointly with a number of other persons.  At the time of the hearing before us it was possible    that    there    may    have    been    further    charges    laid    under    the Terrorism Suppression Act 2002 but that is no longer the case.

[4]      The applicants first appeared in the District Court in relation to the Arms Act charges  on  15 October 2007.     At  that  time  they  were  granted  interim  name suppression and the Court also prohibited in-Court photography and filming.

[5]      Their  subsequent  applications  to  the  District  Court  for  continued  interim name suppression under s 140 of the Criminal Justice Act 1985 were unsuccessful as were  their  applications  for  prohibition  on  photography:  New  Zealand  Police  v Kemara DC AK CRI-2007-0047-023066 19 October 2007 (Judge Bouchier) and New Zealand Police v Lambert DC AK CRI 2007-004-023068 19 October 2007 (Judge Bouchier).

[6]      We note that the applications in relation to photography arose in the context of   consideration   of   an   application   under   the   In-Court   Media   Coverage Guidelines 2003.  The applicants accepted that there was no appeal right in relation to decisions under the Guidelines.   With the agreement of the parties, the matter proceeded on the basis that in this case the decisions about photography were so linked with name suppression that the two could be dealt with together.

[7]      In decisions delivered on 31 October 2007, Potter J dismissed appeals from both applicants against the District Court’s decisions declining name suppression: K v New Zealand Police HC AK CRI 2007-404-317 and L v New Zealand Police HC AK CRI 2007-404-318.  Her Honour also declined to grant leave to appeal to this Court on the basis that the proposed appeals did not raise any question of law. Potter  J  did,  however,  extend  the  initial  interim  order  made  earlier  in  the District Court to enable the applications for special leave to be filed in this Court as they duly were (although slightly out of time).

[8]      After  hearing  from  Mr  Hirschfeld  on  behalf  of  both  applicants  and

Ms Walker on behalf of the media interests, the stay on publication was extended on

2 November by this Court until 10 am on 5 November.  Similarly, by consent, when the matter was called before us on 5 November, we made orders maintaining the status quo pending a hearing on 6 November.

Discussion

[9]      In terms of s 144(3) of the Summary Proceedings Act, special leave may only be granted where the appeal raises a question of law which “by reason of its general or public importance or for any other reason” ought to be submitted to the Court of Appeal (see R v Slater  [1997] 1 NZLR 211 (CA)).

[10]     The reference in the proposed question to a “significant risk” to the right to a fair trial comes from the test set out in R v Burns (Travis) [2002] 1 NZLR 387 (CA). In that case, this Court said at [11] that:

The comments in R v Liddell and the Gisborne Herald case clarify the nature of the balancing exercise to be undertaken when considering whether to grant or revoke a suppression order.   The public’s right to receive information,  the  principle  of  open  justice,  the  type  of  information  in question, its public importance and interest, its likely circulation, methods of diluting its effect on the minds of potential jurors, the presumption of innocence, and other issues are all to be balanced against its prejudicial effect.     But  once  this  exercise  has  been  completed  and  it  has  been determined that there is a significant risk that the accused will not receive a fair trial, the issue ceases to be one of balancing.  The principles of freedom of expression and open justice must then be departed from; not balanced against.    There  is  no  room in  a  civilised  society  to  conclude  that,  “on balance”, an accused should be compelled to face an unfair trial.   (Our emphasis.)

[11]     In the present case, Judge Bouchier essentially determined that there was no “significant risk” to a fair trial.  The Judge did not see anything in the other factors relating to the applicants’ personal circumstances to tip the balance against open justice.  Potter J on appeal has concluded there was no error in that approach.

[12]     Potter J  accepted  the  Crown  submissions  that  it  was  hard  to  see  how publication of photographs of the applicants could prejudice a defence based on identity.  The Judge put it this way in K v New Zealand Police:

[20] … Publication of a photograph would simply identify who it is who is charged.  That is in the public interest.  Ultimately, if identity is an issue, the jury will be comparing the accused in person with any photographs produced by the prosecution in evidence which it is claimed show the appellant to be present.  The jury will be clearly directed that must take into account, only the evidence given in Court at the trial.

[21]      I agree with [the Crown] that it is not logical that publication of the appellant’s name or a photograph of photographs of him could place at significant risk a defence based on identity.   It is even more illogical to contend that availability of that information in the public arena could prejudice any defence based on voice identification.

[13]     As to the other matters including the applicants’ personal  circumstances, Potter J said that the District Court Judge had considered all relevant matters and had not misdirected herself in relation to any irrelevant matters.

[14]     Whether there was a significant risk to a fair trial in these two cases is an evaluative exercise turning on the application of well-settled principles to the facts. Further, whilst an identity defence may raise different issues, the test of “significant risk” to a fair trial does not change.  The evaluative exercise called for in this case does not give rise to questions of law of the requisite importance in terms of s 144.

[15]   In developing his submissions, Mr Hirschfeld on behalf of Mr Kemara emphasised that matters were at an early stage in terms of disclosure of the evidence and that matters were moving very quickly.   (His submissions were adopted by Mr Barron-Afeaki  for  Mr  Lambert.)    For  example,  Mr  Hirschfeld  said  that  the applicants  had  only recently been  provided  with  the  termination  warrant  which included much more detail than the applicants had previously seen.   Further, the applicants made something of the possibility that if charges were laid under the Terrorism Suppression Act, it was possible that the applicants might face two trials.

[16]     Mr Hirschfeld said that the possibility of two trials raised additional issues in terms of name and photograph suppression.   The submission was that this development brought this case into the same category as R v Rickards HC AK CRI 2005-063-1122 25 May 2006 (Randerson J) where suppression was granted in a situation where two of the applicants faced more than one trial.

[17]     The gravamen of these submissions was that it was premature to discount the possibility of a significant risk to fair trial.   Again, that is essentially a factual question and not one giving rise to a question of law.   In any event, in terms of whether the matter of name and photographic suppression is one that ought to be considered by this Court there is merit in the submission advanced by Mr Burns and

Ms Walker that any questions of potential prejudice to a fair trial could be dealt with by  directions  in  the  context  of  any  subsequent  trials.    That  matter  had  to  be considered in light of the reality that there had already been publicity of the fact that many of those charged with terrorism-related offences were already facing charges under the Arms Act.

[18]     Finally,  the  applicants  sought  to  make  something  of  what  they  saw  as disparity between their cases and those of other co-accused where some form of suppression orders had been made.  Given the factual differences in the various cases it was difficult to see how this issue gave rise to any question of law.

[19]     For these reasons, the applications for special leave were declined.

Solicitors:

Crown Solicitor, Auckland

Simpson Grierson, Auckland for Intervenor