R v Ratu
[2013] NZHC 3085
•21 November 2013
NOTE: PUBLICATION OF THE APPELLANT WITNESSES' NAMES OR ADDRESSES OR IDENTIFYING PARTICULARS PROHIBITED
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2013-404-000317 [2013] NZHC 3085
BETWEEN THE QUEEN Appellant
ANDMATTHEW ROSS RATU, CRUZ SUNNY KIPA FRUEAN, PATRICK WARU, EDWARD HAYES AND SHANE NEVILLE BARLOW
Respondents
Hearing: 15 November 2013
Appearances: G R Kayes for Appellant
P Hamlin on instructions from M Dyhrberg for Respondent
Ratu
R Mansfield for Respondent Fruean
A Ives for Respondent Waru
J B Wickliffe for Respondent Hayes and on instructions from
A MacMillan for Respondent Barlow
Judgment: 21 November 2013
JUDGMENT OF VENNING J
This judgment was delivered by me on 21 November 2013 at 3.30 pm, pursuant to Rule 11.5 of the
High Court Rules.
Registrar/Deputy Registrar
Date……………
Solicitors: Crown Solicitor, Auckland
Public Defence Service, Auckland
Copy to: M Dyhrberg, Auckland
P Hamlin, Auckland
R Mansfield, Auckland
A Ives, Auckland
A MacMillan, Auckland
R v RATU & Ors [2013] NZHC 3085 [21 November 2013]
Introduction
[1] The defendants in this case face a variety of charges arising out of a riot that
took place at Springhill Prison on 1 June 2013, Queen’s Birthday weekend.
[2] The Crown proposes to call a number of prison officers who were involved in or witnessed the riot to prove the charges. The officers sought interim name suppression to trial. In a ruling delivered on 21 October 2013 Judge E P Paul in the District Court at Auckland declined to prohibit publication of the officers’ names but did prohibit publication of their addresses and occupations.
[3] Of the 29 witnesses who initially sought suppression, 15 seek to appeal the decision refusing name suppression. Two others were not able to be contacted. The appeal is pursued on behalf of those 17 witnesses.
[4] The defendants Ratu, Fruean and Waru oppose the appeal. The defendants
Hayes and Barlow abide.
The District Court decision
[5] In dismissing the application for name suppression the District Court Judge referred to the fear expressed by the witnesses for themselves and their families and considered that it was:1
... not increased to an undue fear by publication as their names are already known to those who would have an interest in intimidation or getting others to act on their behalf.
[6] In support of that conclusion the Judge noted there was no evidence to suggest there had been any threats or actual intimidation levelled against the officers or their wider families since the incident.
[7] Next, the Judge held that, apart from an expression of fear by the witnesses and a general expression of how gangs may behave towards witnesses, there was
nothing more to suggest that that hardship, if there was any, had been elevated to
1 R v Freuan & Ors DC Auckland CRI-2013-004-009350, CRI-2013-004-009348, CRI-2013-004-
009351, CRI-2013-004-009364, CRI-2013-004-009371, 21 October 2013 at [20].
undue or that the safety of any person, whether it be the witnesses or their families, had been established. He concluded:
[23] In short, my assessment is, given the disclosure that has been made to the defendants and the time that has passed since the alleged offending, this application is really too little, too late in terms of any fears that those [witnesses] possess, and certainly do not satisfy me that I should exercise my discretion as against the principle of open justice.
The approach to the appeal
[8] The Crown accepts that the decision to order or refuse name suppression is a discretionary one so that it must show that the Judge acted on a wrong principle, or that he failed to take into account some relevant matters or that he took into account some irrelevant matter or that he was plainly wrong.2
[9] Mr Kayes submitted the Judge was wrong at law to conclude that publication would not be likely to cause undue hardship to the witnesses and/or that to conclude the safety of the witnesses and their families was not endangered. He also submitted that the Judge was wrong to decline name suppression because he:
(a) failed to consider that the witnesses’ names would be published more
widely than the group of defendants; and
(b)was wrong to find there was no evidence of the increased hardship and risk to safety because of the defendants’ gang affiliations; and
(c) failed to consider the hardship that would be caused to the witnesses’
continued employment.
The basis for suppression
[10] Section 202 provides the Court may suppress a witness’ name, address or
occupation only if it is satisfied publication would be likely to:
(a) cause undue hardship to the witness, victim, or connected person; or
(b) create a real risk of prejudice to a fair trial; or
2 May v May (1982) 1 NZFLR 165 (CA), at 170.
(c) endanger the safety of any person; or
(d) lead to the identification of another person whose name is suppressed by order or by law; or
(e) prejudice the maintenance of the law, including the prevention, investigation, and detection of offences; or
(f) prejudice the security or defence of New Zealand.
[11] I note that it seems the Judge must have been satisfied that publication of the appellants’ address and occupation would be likely to cause undue hardship and/or endanger safety, because he ordered suppression of those details. It appears he intended to give some measure of protection to the appellants’ privacy by suppressing those details, but with respect the protection is illusory. Their occupations will be clear when they give evidence in this case. As to their addresses, s 87 of the Evidence Act 2006 provides privacy for a witness’ address in any event. Further, the names of a number of the appellants are distinctive. With their names published and their occupations known, it would not be difficult for a third party to obtain their addresses.
[12] The Judge also seems to have run the concepts of undue hardship and danger to safety, which are separate considerations, together. While there may be an overlap to the extent the same evidence may apply to both, each should be considered separately.
[13] I also agree with Mr Kayes that the Judge was wrong to conclude that, because the appellants had not received any threats or anything of that kind, it did not follow that name suppression was not required. The fact there have not been, as yet, any threats or anything of that kind of itself proves little. Although the appellants’ names have been disclosed to the defendants, they have been suppressed from wider publication. It is what might happen if there is wider publication that is of concern to the appellants.
[14] For those reasons I accept the Judge erred and it is open for this Court to allow the appeal if the merits require it.
Further evidence
[15] The first issue is whether further evidence should be admitted for the purposes of the appeal.
[16] The only evidence before the Judge was that of Detectives Scott and Cherry. Detective Scott gave some very general evidence about gangs. Detective Cherry reported on a meeting he had held with five of the officers at which a number of general concerns were raised. The Crown seeks to adduce further evidence from a number of the appellants together with an affidavit from David Alty, the manager of Regional Intelligence, Department of Corrections. Mr Alty’s affidavit provides details of the gang associations of the defendants. The appellants’ affidavits provide further evidence of the hardship to them if their names are published.
[17] The right of appeal is under s 283 of the Criminal Procedure Act 2011 (CPA). Section 334 of the CPA provides that the appeal Court may rehear the whole or any part of the evidence and has the same jurisdiction as the Court appealed from to hear and receive evidence. However, there is no express provision entitling the Court to receive further evidence on an appeal of this nature.
[18] Mr Mansfield referred to the specific provisions for the receipt of evidence in relation to appeals involving conviction, sentence or contempt and noted they did not apply to the present appeal.3 In Taylor v R the Court of Appeal noted that s 389 of the Crimes Act 1961 (the predecessor to s 335) had been confined to appeals against conviction and sentence.4 This has been expressly confirmed by s 335 CPA.
[19] While s 336 CPA does provide for further evidence in relation to appeals generally, it is restricted to appeals before the Court of Appeal and Supreme Court.5
Mr Mansfield submitted there was therefore no jurisdiction for this Court to receive
further evidence on appeal.
3 Criminal Procedure Act 2011, s 335.
4 Taylor v R [2010] NZCA 333 at [7].
5 Criminal Procedure Act 2011, s 336(1).
[20] While accepting that there is no express statutory power for the High Court to receive fresh evidence on a pre-trial appeal, Mr Kayes submitted that was because, unlike the Court of Appeal and Supreme Court, which are creatures of statute, this Court can rely on its inherent jurisdiction to admit such evidence.
[21] There are factors which point against the ability of this Court to rely on its inherent jurisdiction to admit further evidence on an appeal of this nature. Section
119(3) of the Summary Proceedings Act 1957 which applied to appeals generally provided for the right to receive further evidence if it could not reasonably have been adduced at first instance. That right has not been repeated in the CPA sections, at least in relation to this Court. Further, as the Court of Appeal observed in Taylor the closed nature of the jurisdiction on interlocutory appeals may operate against recourse to the inherent power.
[22] Against those considerations, however, this Court has relied on its inherent jurisdiction to admit further evidence, both on appeals in civil matters where there was no jurisdiction within the existing High Court Rules: Terrace Tower (NZ) Pty Ltd v Queenstown Lakes District Council6 and in criminal trials prior to the introduction of s 98 to the Evidence Act 2006: R v Timutimu.7
[23] Also, the CPA provides for a right of appeal (by leave) against the decision of the first appeal court, which in this case is this Court. If leave was granted, it appears further evidence could be adduced before the Court of Appeal under s 336. It would be strange if, in those circumstances, this Court could not receive further evidence on the first appeal, but the Court of Appeal could on a second appeal.
[24] I conclude that this Court retains inherent jurisdiction to admit further evidence on an appeal of this nature, but the discretion is to be exercised sparingly. It should only be admitted where it can properly be said that the interests of justice require the admission, and the proposed evidence satisfies the principles for
admission of fresh evidence.
6 Terrace Tower (NZ) Pty Ltd v Queenstown Lakes District Council [2001] 2 NZLR 388.
7 R v Timutimu HC Auckland CRI-2004-92-14159, 4 May 2006 confirmed on appeal: CA236/06,
30 November 2006.
[25] Counsel are agreed that the relevant principles are set out in R v Bain and Lundy v R.8 The evidence should be sufficiently fresh and sufficiently credible. In the present case I accept the evidence proposed to be adduced is credible. In Bain the Court of Appeal noted as to fresh evidence:9
... Ordinarily if the evidence could, with reasonable diligence, have been called at the trial, it will not qualify as sufficiently fresh. This is not an immutable rule because the overriding criterion is always what course will best serve the interests of justice. …
[26] Mr Kayes concedes that, applying that test, the further evidence of Mr Alty and the appellants cannot be said to be fresh.
[27] In Lundy the Privy Council noted that if the evidence was credible but not fresh the Court should assess its strength and its potential impact on the safety of the conviction. If the Court considered there was a risk of a miscarriage of justice if the evidence was excluded it should be admitted, notwithstanding the evidence was not fresh.
[28] Even on the Bain test, the overriding criterion is what will best serve the interests of justice. Modifying the Lundy test to this case, if the evidence would impact on the decision appealed from so that, if admitted, the appeal should be allowed, then the interests of justice would require its admission. If the Court should properly have come to a different decision in light of the further evidence then this Court should intervene and admit the further evidence.
[29] That requires the Court to assess the strength of the evidence and its potential impact on the District Court’s decision to decline name suppression.
[30] The further evidence of the appellants addresses the issue of undue hardship and safety of the appellants and their families. The further evidence admitted for this appeal discloses, inter alia:
At the moment it’s only the prisoners involved who know that I am giving evidence. If my name is published then more people will know my name
8 R v Bain [2004] 1 NZLR 638 (CA), approved by Bain v R UKPC 33, (2007) 23 CRNZ 71 at [34]
and Lundy v R [2013] UKPC 28.
9 R v Bain, at [22].
and not only that I was involved but that I am giving evidence against the prisoners. The prisoners involved are gang members and the rest of the gangs will know who I am.
The prisoners are always asking to find out which officers were involved in the riot. I have tried hard to get back to normal after the riot by not thinking about it but it is always at the back of my mind. I am always aware that the reason prisoners are in prison is that they have already done something wrong.
While I am on shift I am constantly interacting with prisoners who can be aggressive and are there because they have done something in their past. In other jobs there might be some time to do something else in the day but in my job the whole shift is about looking after prisoners. If my name is published I would not feel safe at work.
The prisoners I work with do not know that I am giving evidence in this case. If my name was printed in the paper, prisoners I work with would get hold of that information. I am concerned that I would be a target as the guy who gave evidence about prisoners. I know there are guys in my unit who are in the same gangs, Killer Beez and the Crips, as the prisoners who were involved in the riot. If they know it’s me then they will label me as a snitch. People who tell tales do not have a good name in prison. I know that if they knew this information that would make it difficult for me to work.
A lot of people in my community would be asking me questions if they knew I was giving evidence about the riot. Even just because I am a prison officer people ask me a lot of questions about my work.
There are other statements to similar effect. In further affidavits filed with the Court but not disclosed to the defendants the appellants detail further concerns.
[31] The theme of the evidence is that now the rioters have been transferred to other prisons the fact the appellants were involved during the riot or will give evidence about it is not generally known to the present prison muster at Springhill, and that if the information is disclosed the appellants are concerned it will affect their ability to work within the prison and also endanger their safety, and that of their families. One appellant gives evidence of being targeted by associates of prisoners in the past. He refers to an occasion when he was advised that it was possible a car load of Killer Beez gang members were parked outside his house where he previously lived:
I know that if a prisoner wanted to they would be able to obtain personal information about me and have done so in the past. I am not unrealistic about that. However there is a difference between information being generally available and information being freely published about me. I take our privacy seriously. ...
[32] Another officer is no longer employed in the prison but his work is also potentially affected because in his new role he is required to visit homes of gang members and gang associates.
Discussion
[33] On an application such as this an appropriate balance must be struck between the principles of open justice and the right to freedom of expression under s 14 New Zealand Bill of Rights Act 1990 and the interests of, in this case, the appellants and their families.
[34] Given that the defendants know the appellants’ names and there are no interlocutory hearings involving the appellants, it appears that open justice considerations will not be affected by an interim order suppressing the appellants’ names until trial. Whether the suppression should apply at trial and thereafter is best assessed by the trial Judge. In terms of freedom of expression, the names of the witnesses in this case can only have very limited interest to the general public. They are only witnesses and involved in the case because of their work within the prison. Mr Hamlin candidly admitted there can be no particular public interest in publication of the witnesses’ names. What is of interest is that the riot involved attacks on prison officers and that the prison officers were witnesses to it. That can and has been published. The names of the witnesses adds very little of relevance to the matters of public interest arising from the riot.
[35] However, I accept that the right of freedom of expression is an established principle. It is for the appellants to show that, in their circumstances, that right and the principle of open justice are to be subjected to the appellants’ personal interests. But in this regard, the fact these appellants were either victims or witnesses, as
opposed to alleged offenders, is a relevant consideration.10
[36] I consider first whether publication of the appellant’s names can be said to be
likely to endanger their safety or the safety of their family members. Counsel for the defendants opposing the appeal referred to s 16(1)(b) of the Criminal Disclosure Act
10 Victim X v TVNZ [2003] 3 NZLR 220 at [46].
2008 and noted that the appellants’ names were not withheld from the defendants on the basis that disclosure was likely to endanger their safety.
[37] However, there is a difference between providing the information to the defendants and publication more broadly. In theory at least, further and wider disclosure to the world generally (as opposed to the limited disclosure to the defendants) could endanger the officers’ (or their families’) safety because, it may lead to members, associates or prospects of gangs associated with the defendants and who may be in the community, deciding to take action in a misguided belief it may help the defendants.
[38] While that is a possibility, I accept that even given the further evidence it is largely speculative to suggest that disclosure of the appellants’ names means the officers’ personal safety or the families’ safety will be endangered. It cannot be said that is likely to be a consequence of wider publication of their names. I consider the real issue in the present case is whether the further disclosure is likely to cause undue hardship.
[39] What constitutes undue hardship has been considered in a number of cases: serious hardship (in R v Wallace);11 excessive or greater hardship than the circumstances warrant (in Dalton v Auckland City: Porter v Auckland City);12 or something more than the ordinary hardship (in Lyall v Solicitor-General).13 I approach the issue on the basis that to be undue in the present case the hardship must
be disproportionate to the hardship that witnesses (and victims in particular) could generally be expected to experience when having their names published as witnesses.
[40] The ordinary hardship a witness or victim might generally experience in giving evidence and having his or her name published as a witness might be the publicity associated with the case, including publication of their association with the case, embarrassment, and related issues. Of course in cases involving victims of
sexual offending, and child witnesses, publication of the witnesses’ names is not
11 R v Wallace (2001) 18 CRNZ 577.
12 Dalton v Auckland City: Porter v Auckland City [1971] NZLR 548.
13 Lyall v Solicitor-General [1997] 2 NZLR 641.
permitted.14 I accept Mr Hamlin’s point that as prison officers these appellants will witness incidents from time to time and might be expected to give evidence at disciplinary hearings and perhaps even at Court. However, giving evidence in a trial involving a number of defendants following the riot is of a quite different scale. It is the alleged pack action, the gang associations and the real interest other prisoners have in the riots that adds a further dimension to this case.
[41] I also consider the defendants’ counsel reliance on the Judge’s suggestion the horse had bolted to be misplaced. I consider that there is a difference between disclosure to the defendants (who are prima facie entitled to know the names of the witnesses) and the right of the general public, including other prisoners, to know the witnesses’ names. There is a difference between the officers’ names being known to the rioters (who have been shifted to different prisons), and their names being known to the prisoners they currently work with on a day to day basis. The issue is not solely what the defendants might themselves instigate, but rather the harassment of the appellants from associates or prospects of such gangs who may be presently in the community and who may decide to harass or take other action against the appellants or their families.
[42] The further evidence supports the Crown submission that as yet not everyone does know the appellant’s identity. Importantly, given the defendants have been shifted to other prisons, not everyone in Springhill prison knows that these officers are to give evidence. The muster of prisons changes regularly from time to time. This case may not be heard for some months yet. By the time this case comes to trial the muster complement at Springhill will be quite different. There is, on the further evidence, real purpose in suppressing the officers’ names. They work in situations where they are supervising large numbers of prisoners, often on their own. At the very least the attitude towards ‘narks’ or those who give evidence against prisoners will make their work much more difficult if their names are known to the wider prison population. At worst it may prevent them continuing in their career.
[43] The evidence satisfies me that the appellants are likely to suffer undue hardship both in terms of the pressure and attention they will come under in their
14 Criminal Procedure Act 2011, ss 203 and 204.
work environment and also in relation to harassment both at work and in the home environment. In their home environment such harassment would be likely to affect their families.
[44] I conclude that, even though publication of their names cannot be said to be likely to endanger the safety of the appellants, publication is likely to lead to harassment or unwelcome attention both at work and generally which would be undue hardship.
[45] For those reasons I consider that the Judge was wrong to conclude that publication of the appellants’ names more broadly would not be likely to cause undue hardship.
Result
[46] The appeal is allowed and name suppression of the appellants (and of their addresses) is granted until trial. It will be for the trial Judge to address the position
at trial and following trial.
Venning J
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