R v Milligan - [2007] NZCA 536

PUBLICATION OF NAME OR IDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 139 CRIMINAL JUSTICE ACT 1985.

ORDER PROHIBITING PUBLICATION OF JUDGMENT OR THE REASONS THEREFOR IN NEWS MEDIA OR ON THE INTERNET OR OTHER PUBLICLY ACCESSIBLE DATABASE
UNTIL FINAL DISPOSITION OF TRIAL. PUBLICATION IN LAW REPORT OR LAW DIGEST PERMITTED.

IN THE COURT OF APPEAL OF NEW ZEALAND

CA539/07 [2007] NZCA 536

THE QUEEN

v

THOMAS WILLIAM MILLIGAN

Hearing: 22 November 2007
Court: Hammond, John Hansen and Miller JJ Counsel: S Jefferson for Appellant
B J Horsley for Crown

Judgment: 22 November 2007 at 11.17 am

ORAL JUDGMENT OF THE COURT

A Leave to appeal is granted. B The appeal is dismissed.
C Order prohibiting publication of judgment or the reasons therefor in

news media or on the internet or other publicly accessible database until

R V MILLIGAN CA CA539/07 22 November 2007

final disposition of trial. Publication in law report or law digest permitted.

REASONS OF THE COURT

(Given by John Hansen J)

[1] The appellant seeks leave to appeal against the decision of Judge Dawson declining his application for a change of venue from the Palmerston North District Court to the Napier District Court.

Background

[2] The appellant was committed for trial to the Palmerston North District Court on counts of sexual violation by way of unlawful sexual connection and aggravated wounding by stupefaction. It was alleged that at a party on 28 October 2005 the appellant gave the 15-year-old complainant a piece of card and told her to place it under her tongue and allow it to dissolve. As a consequence she became dizzy. The appellant allegedly followed her away from the party and, after the complainant fell over, asked her to perform oral sex on him. When this was refused he placed his penis in the complainant’s mouth.

[3] On 5 June 2007 the appellant failed to appear for a scheduled trial callover for his trial which was to commence on 11 June 2007. A condition of his bail required him to reside at an address in Napier. Subsequently he was arrested on a warrant and appeared in the Napier District Court on 20 July 2007. However, in the meantime there had been considerable publicity in the Manawatu Standard, a paper with a quite wide circulation in the lower North Island. This described the appellant as an armed and violent gang member, and gave details of his previous convictions and alleged he was a heavy methamphetamine user. These articles appeared between Thursday 12 July and Friday 20 July. There was a further article on Thursday 6 September when the appellant apparently escaped from the Napier police cells and returned drunk.

[4] The appellant’s trial is scheduled for May 2008.

The appeal

[5] The appellant maintains that there exists a risk of an unfair trial in Palmerston

North because of the adverse publicity. We disagree for the following reasons.

[6] The matter is governed by s 322 of the Crimes Act 1961:

322 Changing venue or sitting

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Milligan

Details

AGLC: R v Milligan [2007] NZCA 536
Case: [2007] NZCA 536
Decision Date: 22 November 2007

CaseChat Overview and Summary

The Court of Appeal of New Zealand was presented with an appeal by Thomas William Milligan against a decision of Judge Dawson declining his application for a change of venue from the Palmerston North District Court to the Napier District Court. Milligan was committed for trial on charges of sexual violation by way of unlawful sexual connection and aggravated wounding by stupefaction, with the trial scheduled for May 2008. The primary legal issue was whether the appellant could demonstrate a significant risk of an unfair trial due to adverse publicity, which would necessitate a change of venue.

The Court of Appeal examined the legal framework provided by section 322 of the Crimes Act 1961, which allows for a change of venue where it is deemed expedient for the ends of justice. The Court acknowledged that pre-trial publicity could potentially prejudice an accused, but emphasized that the impact of such publicity on juries is typically minimal. The Court noted that a significant lapse of time between the initial publicity and the trial is crucial in determining whether the fairness of the trial has been compromised. In this instance, the Court observed that the last publicity relating to the appellant would be approximately eight months old by the time of the trial, and the more significant publicity from July 2007 would be ten months old. The Court concluded that while the articles were prejudicial, they did not detail the alleged offending in particular, and therefore the appellant did not meet the high threshold required for a change of venue.

The Court of Appeal granted leave to appeal but dismissed the appeal, affirming the decision of Judge Dawson. The Court emphasized that the threshold for changing the venue is deliberately set high, reflecting the principle that an accused should be tried by their fellow citizens in the community where the alleged offence occurred. The Court ruled that it was not expedient for the ends of justice to change the venue and thus denied the appellant’s application. The Court also issued an order prohibiting the publication of the judgment or the reasons for it in the news media or on the internet until the final disposition of the trial, while permitting publication in law reports or law digests.

Orders