R v S HC Christchurch CRI 2007-009-6120

[2008] NZHC 637

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI 2007-009-006120

REGINA

v

S

Hearing:         29 April 2008

Counsel:C Bradley for TV3 and Television New Zealand Limited (Applicants) K Cook  for Accused (Opposing)

R M Thomas for Crown (Observing) Judgment:         6 May 2008

JUDGMENT OF FOGARTY J

ORDERS

AThe order prohibiting filming or photographing the accused in the trial is confirmed.

BThe  application  to  film  eye  witnesses  outside  the  class  of  young partygoers is allowed, as to three adult witnesses on Edgeware Road and the three adult witnesses of two subsequent accidents away from Edgeware Road, reserving an opportunity for them to apply to be rendered not recognisable, or not filmed, recorded or photographed at all.  Otherwise the orders as to witnesses remain the same.

R V S HC CHCH CRI 2007-009-006120  6 May 2008

DECLARATIONS

CGuidelines 2 and 4 are not a correct statement of the law which applies to a trial Judge when considering making orders controlling media coverage.  They cast the role of the trial Judge as exercising a discretion, when she or he is discharging a duty to secure that justice be done, according  to  law,  exercisable  only  on  a  principled basis.    That  duty includes a duty on the Judge to take positive steps if necessary to secure that the evidence is unaffected by media coverage of the trial.  To secure includes taking precautions.

DIf Guideline 2 is read as simply being supplemental to the common law, then it cuts across the imperative to secure that justice be done, for it invites a balancing of the need for a fair trial with a “principle” that the media are the “eyes and ears of the public”.   It also suggests that the concern as to evidence being affected by the witnesses knowing they are being filmed for public broadcast is the concern of the witness rather than being a prior and more important concern of the trial Judge.

EThe Guidelines presume that the trial Judge will allow photographing and  filming  of  the  accused  during  the  trial,  which  images  can  be broadcast and published during the trial.  That is an error of law, for the trial Judge must treat the accused as innocent until there is a verdict of guilty, and in so doing cannot impose, or risk imposing, any punishment. Broadcasting and publishing photos of any accused while on trial is often a public humiliation, akin to the ancient punishment of pillory. Accordingly, it is prohibited by the common law.

Introduction

[1]      Mr S   drove a car along a residential street on which a number of young  party  goers  were  standing,  killing  two  girls  and  injuring  others.    He  is standing trial for murder and various charges of causing grievous bodily harm and wounding with intent.  The trial issue is his state of mind at the time.

[2]      On Friday, 18 April, I granted permission for film and radio coverage of all of the trial except: the evidence of the eye witnesses; and, any photographing or filming of the accused during the trial. The reasoning in respect of the eye witnesses is set out in paragraph [4]:

[4]       There is no permission to film any of the eye witnesses.  These are young people, almost certainly emotionally affected by what they saw and likely to be distressed.   I want them to be able to give their evidence as calmly as possible to the jury, without being in the eye of a camera.   I consider this qualification is required by the imperative need for a fair trial. I do not consider that need is met by giving these young people the choice whether to be filmed or not.

[3]      The  applicants  for  media  coverage  were  not  heard  and  I  granted  the applications for a re-hearing to consider these two restrictions on coverage. The applications were by Television New Zealand Limited, TV3 and supported by the Press.  I  have  had  the  benefit  of  written  and  oral  argument.  The  core  of  the application was a submission that my ruling was out of line with the “In Court Media Coverage Guidelines 2003”, and its application by other Judges.

[4]      The application to photo and film an accused is opposed by the accused on two grounds advanced by his counsel, Mr Cook:

1.       Fear for his safety; and

2.On  principle,  relying  on  the  application  of  the  presumption  of innocence and a contention that he is entitled to the same protection as given by these Guidelines to witnesses.

The legality of the Guidelines

[5]      Guideline 1, 2 and 4 provide:

1. Application of guidelines

These guidelines:

(a) Apply to all proceedings in the Court of Appeal, the High Court, and the District Court from 1 January 2004.

(b) Do not have legislative force.

(c)  Do  not  create  rights  and  should  not  be  construed  to  create expectations.

(d)  Replace  the  Guidelines  and  Voluntary  Code  of  Conduct  for

Expanded Media Coverage of Court Proceedings dated May 2000.

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.

…

4. Discretion of the court

(1) All matters relating to in-court media coverage are at the discretion of the court.

(2) Guidelines 5 to 14 apply subject to subclause (1).

[6]      Ms  Bradley,  for  the  media,  submitted  that  the  principles  of  freedom  of expression and open justice are engaged in relation to any restriction on media reporting.  She submitted that the starting point is s 138(1) of the Criminal Justice Act which provides:

138    Power to clear Court and forbid report of proceedings

(1)     Subject to the provisions of subsections (2) and (3) of this section and of any other enactment, every sitting of any court dealing with any proceedings in respect of an offence shall be open to the public.

[7]      She invited guidance from the suppression cases and cited from a judgment for the Court of Appeal delivered by Cooke P in R v Liddell [1995] 1 NZLR 538 where at 546 Cooke P said:

In considering whether the powers given by s 140 should be exercised, the starting point must always be the importance in a democracy of freedom of speech, open judicial proceedings, and the right of the media to report the latter fairly and accurately as "surrogates of the public". These principles have been stressed by this Court in a line of cases extending from Broadcasting Corporation of New Zealand v Attorney-General [1982] 1

NZLR 120 to Auckland Area Health Board v Television New Zealand Ltd [1992] 3 NZLR 406 where a number of the intermediate decisions are cited. The basic value of freedom to receive and impart information has been

re-emphasised by s 14 of the New Zealand Bill of Rights Act 1990. (My emphasis)

Ms Bradley cited this dictum leaving out the two sentences highlighted in bold.

[8]      Section 14 of New Zealand Bill of Rights Act 1990 provides:

14    Freedom of expression

Everyone has the right to freedom of expression, including the freedom to seek, receive, and impart information and opinions of any kind in any form.

[9]     The application of the “starting point” is more fully explained in the Broadcasting Corporation case, particularly in the judgment of Woodhouse P at page 123, but see also Cooke J at pages 131-132 and Richardson J at page 135.  The leading judgment was that of Woodhouse P, a judgment recently cited by McGrath J in his leading judgment in Rogers v TVNZ Ltd [2007] NZSC91 [118].  The Court of Appeal in Broadcasting Corporation adopted the House of Lords in Scott v Scott [1913] AC 417. In a passage cited with approval by Woodhouse P in Broadcasting Corporation (at 123), Viscount Haldane said at 435:

… If there is any exception to the broad principle which requires the administration of justice to take place in open Court, that exception must be based  on  the  application  of  some  other  and  overriding  principle  which defines the field of exception and does not leave its limits to the individual discretion of the judge.

[10]     Second, the Lord Chancellor identified a more important principle than open justice, the application of which justifies excepts to open justice:

…While the broad  principle is that  the  Courts  of this  country must,  as between  parties, administer justice in  public, this  principle is  subject  to apparent exceptions, such as those to which I have referred.   But the exceptions are themselves the outcome of a yet more fundamental principle that the chief object of Courts of justice must be to secure that justice is done.

(437) (Emphasis added)

[11]     Accordingly, I proceed on the basis that the starting point is that the Judge must administer justice in public unless exceptions are granted by statutory provisions, such as ss 138-140 of the Criminal Justice Act, or in a principled way by exercise of the Court’s inherent jurisdiction to control the trial.  That principled way includes recognising that there is “yet more fundamental principle that the chief object of Courts of justice must be to secure that justice is done”.

[12]     There has been a shift in New Zealand law as to the explanation for the reasons of public reporting.   In 1982, in the Broadcasting Corporation decision, Cooke P (127) adopted a dictum of Lord Diplock in Attorney-General v Leveller Magazine Ltd [1979] AC 440, 449-450:

As a general rule the English system of administering justice does require that it be done in public:  Scott v Scott [1913] AC 417. If the way that courts behave cannot be hidden from the public ear and eye this provides a safeguard against judicial arbitrariness and idiosyncrasy and maintains the public confidence in the administration of justice.

[13]     In Liddell we see added the reason of the importance in a democracy of freedom of speech and the citation of s 14 of the New Zealand Bill of Rights Act. However, the Court did not intend by that addition to qualify the explanation of the two principles in Scott v Scott as adopted in the Broadcasting Corporation decision. On the contrary, it saw its statement as being consistent with that decision. Accordingly, the ultimate obligation of the trial Judge is to pursue the chief object of the Courts of justice, to secure  that justice be done.

[14]     Reluctantly, because of the current everyday adoption of the Guidelines, I

have come to the view that Guidelines 2 and 4 are not a correct statement of the law

which applies to a trial Judge when considering making orders controlling media coverage.   They cast the role of the trial Judge as exercising a discretion, when setting the scope of media coverage of the trial.  Rather the Judge is discharging a duty to secure that justice be done, according to law, exercisable only on a principled basis.  That duty includes a duty on the Judge to take positive steps if necessary to secure that the evidence is unaffected by media coverage of the trial.   To secure includes taking precautions.  If Guideline 2 is read as simply being supplemental to the common law, then it cuts across the imperative to secure that justice be done, for it invites a balancing of the need for a fair trial with a principle that the media are the “eyes and ears of the public”.   (See Guideline 2(2)(e) echoing the dictum of Lord Diplock cited above.)

[15]     There is a practical distinction between a TV camera lens and microphone capturing evidence for broadcast on the national evening news and the eyes and ears of a reporter.  Honest witnesses can hesitate, and correct their recall.  They may be inhibited from doing so, if their hesitations and corrections are to be on the evening news.  I pointed out to Ms Bradley that many of the eye witnesses in the case had given evidence different from their original statements, often because they were aided by street plans, not aerial photos, with more detail.   Some changed their evidence on being shown their earlier statements.  Some did not.  Ms Bradley said this was the sort of material that made for good television.   I am sure it is. I am equally sure as a trial judge that I do not want witnesses inhibited by that prospect.  I know of no common law authority that has articulated a principle that filming and photographing is a simple alternative to observation in Court by reporters.

[16]     Guideline 2 also suggests that the concern as to evidence being affected by the witnesses knowing they are being filmed for public broadcast is the concern of the witness rather than being a prior and more important concern of the trial Judge, (2)(f).

[17]     In this latter respect I should explain that Guideline 2(2)(f) is given effect by

Guidelines 10 and 11 which provide:

10. Witness protection as of right in criminal trials

(1) Except in the case of the accused or an official witness (who may apply under guideline 11), witness protection is available as of right in a criminal trial for any witness who seeks it.

(2) Witness protection under this rule may be sought by notification to the presiding  Judge  at  any  time  prior  to  the  witness  commencing  to  give evidence.

(3) Witness protection means that the media applicant:

(a) in the case of television coverage, must ensure that the witness, if broadcast giving evidence, is not recognisable;

(b) in the case of still photograph coverage, must not photograph the witness while he or she is in court or giving evidence.

(4) Authority to cover the trial is subject to witness protection granted under this guideline.

11. Additional discretionary witness protection

(1)  This  guideline  applies  to  all  witnesses  in  criminal  trials  (including official witnesses and the accused) and to all witnesses in civil trials.

(2) Any witness or the party proposing to call the witness may apply by letter to the Registrar of the court in which the trial is to be held for a ruling that the witness not be filmed, photographed, or recorded.

(3) The application must be lodged at least three clear working days before the trial is due to start provided:

(a) the defence in a criminal case may apply orally to the presiding

Judge as soon as possible after electing to give or call evidence; and

(b) The Judge may decide to consider any other application even if the three day time limit is not met.

(4) Where written application is made under this rule, the applicant must promptly notify all other parties and any person seeking or granted authority to cover the trial.

(5) On an application under this guideline, the Judge may hear from the applicant, the parties, and any person seeking or granted authority to cover the trial, but is not obliged, in the case of an application made during the trial, to defer ruling on the application because any person granted authority to cover the trial is not present.

(6)In considering the application, the Judge may have regard to: (a) the principles set out in guideline 2;

(b) whether covering the trial is likely to affect adversely the quality of the evidence to be given by the witness;

(c) whether the presence of a television camera or a photographer or radio crew is likely to lead to the witness not turning up to give evidence;

(d) whether being filmed or photographed or recorded may cause undue stress or anxiety to the witness;

(e) whether being filmed or photographed or recorded may lead to intimidation or harassment of the witness;

(f)  whether  the  witness's  privacy  interests  outweigh  the  public interest in broadcasting that witness's evidence, given the likely significance of the evidence;

(g) any other relevant matters.

(7) The Judge may rule that:

(a) any person covering the trial:

(i) must not film the witness while he or she is in court or giving evidence;

(ii) must not film the witness anywhere between the time of the ruling and the end of the trial;

(iii) must not photograph the witness while he or she is in court or giving evidence;

(iv) must not photograph the witness anywhere between the time of the ruling and the end of the trial;

(v) must not record the witness while he or she is in court or giving evidence;

(vi) must not record the witness anywhere between the time of the ruling and the end of the trial;

(vii) may film the witness but must ensure that the witness, if broadcast giving evidence, is not recognisable;

(b) the witness's application is declined.

(8) Where the Judge makes a ruling under subclause (7)(a), authority to cover the trial is subject to that ruling.

(9) Where the Judge makes a ruling in terms of subclause (7)(a)(i) or (ii), the television camera must be either removed from the court while the witness is giving evidence or turned away from the witness so that it is apparent to the witness that he or she is not being filmed.

[18]     Effectively the difference is that by Guideline 10 a witness has a right not to be recognisable.  By Guideline 11 the witness can apply not to be filmed, recorded, or photographed, at all

First issue:  filming or photographing of the accused during the trial

[19]     As the Court of Appeal recently reaffirmed in R v Wanhalla [2007] 2 NZLR

573 [49] a criminal trial proceeds on the basis, from the beginning to the end, that the accused is treated “as innocent until the Crown has proved his or her guilt”. Accordingly, there is no basis for the imposition by the Court on the accused of any punishment prior to his or her conviction.

[20]     There  is  a  practical  difference  between  the  name  of  an  accused  being published and film or photographs of the accused being broadcast or published.  The distinction is recognised in the Guidelines inasmuch as they provide protection to witnesses from being filmed even though their names are not suppressed.   In the United Kingdom s 41 of the Criminal Justice Act 1925, which applies to England and Wales, prohibits the taking of photographs or making of sketches in or around the Court and publishing any such photograph or sketch.  Case law has interpreted this to cover filming for cinematic and, more recently, for television purposes.  See R v Loveridge, Lee and Loveridge [2001] 2 CR App 591 CA.  The United Kingdom Department for Constitutional Affairs in November 2004 published a consultation paper entitled:  “Broadcasting Courts” and recorded that at the time that the 1925 Act was passed photographs of defendants and other participants in Court proceedings were a popular subject for newspapers, that the legislation was passed with the argument:

Everybody  has  suffered  for  a  long  time  by  prisoners  in  the  dock  and witnesses being pilloried by having their photographs taken, and this is to prevent that happening.

(House of Commons Debates, vol 182, column 1599)

Plainly, the authors of the report consider this is still a legitimate point of view in

2004.  Being pilloried is a punishment by way of public humiliation.

[21]     I  do  not  know  whether  this  point  was  considered  by  the  committee formulating the 2003 Guidelines.  It is not identified in the 1998 review documents which I have read. The 2004 UK consultation document was published after these Guidelines  were  released.    I  agree  with  the  view  expressed  in  the  House  of Commons debate that publication of photos or broadcast of film in the media can be fairly described as pillory in many cases.

[22]     There is room for different opinion.  Some may reject the notion that such publicity could amount to pillory.  Others may say that the consequence of public humiliation is overwhelmed by right of the media to portray the accused.   In the suppression cases, publication of the name of the accused usually causes significant reputation damage and humiliation.  However, the Courts have consistently held that this is a cost which is an inevitable by-product of administration of justice in public. But, the publication of the name does not make that person recognisable to strangers. If that person is not a public figure, by being filmed he may become recognised in daily life by strangers.  This is exacerbated by the heightened curiosity of the public to see what the accused person looks like.  Inasmuch as judging is done in public to constrain the Judges (be they jury or professional Judges), there is no need for film and photographs of the accused being shown to the public.

[23]     Little  distinction  is  made  in  the  common  law  between  the  accused  or defendant in proceedings and the complainant or plaintiffs, and all other witnesses. All are named in the public Courtroom.   A secret witness is an anathema to the common law.  The reason why witnesses cannot give evidence anonymously is to secure accountability by them, and so promote the reception of reliable evidence. Except in the exceptional case where suppression is granted, the names of the complainants,  accused,  parties  and  witnesses  are  all  able  to  be  reported.    The common law knows no concept of a “right” of witnesses to witness protection. Statutes provide for witness protection.  These provisions are limited in nature and quite specific, such as to the evidence given by a complainant of rape and evidence given by young children.

[24]     Quite clearly, the expression in Guideline 10(1) that “witness protection is available as of right in a criminal trial for any witness who seeks it” is not intended

to be a legal proposition.  There is no such proposition in statute law or in common law.  The committee producing the Guidelines has no law making power.  It is plain that Guidelines 10 and 11 are put in place precisely because the authors of the Guidelines recognise that there is a real distinction between a witness being named in a report of a Court hearing as distinct from the witness being filmed or photographed giving evidence in a Courtroom.  The thinking behind the Guidelines is that witnesses have a right to be protected from that, but the accused does not. The accused may be given some protection if the accused gives evidence.   (See Guideline 11(1).)   But the thinking is that the accused gets no protection from being filmed or photographed in the dock or elsewhere in the Courtroom during the trial. Limited protection is given to the duration of the photograph and filming in the standard conditions.

[25]     I am satisfied that there is no basis in common law for the distinction being drawn in the Guidelines protecting witnesses from the consequences of filming and photographing but not the accused.   I turn to the significance of s 14 of the New Zealand Bill of Rights.

[26]     The dictum of the Court of Appeal in Liddell is worded carefully.  It does not say that by reason of s 14 the media has a right to film or photograph the accused, to be in that respect “the eyes and ears of the public”, to use the language of the Guidelines.   Ironically, the Guidelines themselves acknowledge this implicitly by recognising a “right” on witnesses to refuse to be so filmed.  Rather, in my view the Court of Appeal in Liddell were simply using s 14 to reinforce the right of the media to report proceedings, albeit subject to the duty to do so fairly and accurately.  This is clear from the choice of language in the dictum saying that s 14 “reemphasised” the basic value of freedom to receive and import information.

[27]     Because of the presumption of innocence, I am of the view that as a matter of principle the publicity adverse to the accused should be limited, as a precaution, to avoid imposing an unjustified punishment.   Elsewhere, in the United Kingdom by law, and in Canada and Australia, such filming and photograph does not happen. New Zealand is out of line.   Ms Bradley argued that this was because the New Zealand media is more responsible, and has submitted to self-regulation by these

Guidelines.  Inasmuch as justice is secured by the name of the accused being made public throughout the process, it thereafter seems to me that the presumption of innocence trumps the broadcasting of the accused by film or photo from the Courtroom facing the charges. I consider this is a principled view, shared by numerous common law Judges applying the same principles, certainly in the United Kingdom, Australia and Canada.  That is the reason why I drew a distinction in the order I originally made between the filming and photographing of the accused during the trial as distinct from after any conviction, which, if it occurs, has been allowed. Incidentally,  I  do  not  think  it  follows  that  the  media  has  a  right  to  film  and photograph all convicted persons no matter how minor their convictions for in my view broadcasting and publication of such film and photographs is a public humiliation and part of the punishment.  It is a matter for judgment.  As the charges are very serious here I considered that if proved the subsequent filming and photography would not be unjust.

[28]     Quite reasonably Ms Bradley pressed me to fall in line with my judicial colleagues who regularly apply the Guidelines and provide for broadcasting and publication of film and photos of the accused taken in the Courtroom during the trial. High Court Judges have a long established practice of endeavouring to follow each other’s rulings although we are not bound to do so.

[29]     While starting from the principle of open justice, my more important duty is to secure that justice be done, according to law.  So I examine the law.  Only then, if my judgment in that regard allows, do I look at the Media Guidelines.  Of course, that is to a degree an over-simplification because I have considered whether or not the Media Guidelines summarise usefully the law, upon the matter I have to decide. In my opinion they do not.  It follows I am bound to disregard them.  I do so against the principle that I must ensure that I do not impose a punishment on an accused person prior to conviction.   I consider that the filming of an accused person in a Courtroom in the dock, or its equivalent can be a public humiliation.  The accused person has a right to oppose it while presumed innocent, and he has done so here. To secure that justice be done it is prudent to prevent possible public humiliation by such filming.

[30]     I note for completeness that there is a basis in this case for Mr Cook’s argument that if Mr S   becomes recognisable by reason of his picture being broadcast or published he may, if acquitted, nonetheless be the subject of attacks on his person because of the context of tragedy which surrounds this case.  I do not need to decide the issue on this point.

Second issue:  Filming of witnesses

[31]     The  application  for  filming  of  all  witnesses  proceeded  on  the  basis  that witnesses could choose themselves whether or not to be filmed.  There has in fact been no challenge to the order prohibiting the filming of youthful eye witnesses.  I have since learned that there  are  potentially three  adult,  sober,  non-party going witnesses who were eye witnesses of events in Edgeware Road.  One was a man who stopped to look on his way to going to night shift work.  The other two are a husband and wife who were neighbours.   There are also three other adults who witnessed severally two subsequent collisions of the car driven by the accused after the Edgeware Road incident which caused the deaths and the injuries.

[32]     On the basis of the Media Guidelines whether or not those witnesses were filmed would depend on an application being made to the Court by the witness, or the party.  As explained, I do not think that the trial Judge can surrender control of the trial in this respect to the witnesses in this fashion and still discharge the duty to secure that justice be done, for witnesses may not appreciate in advance the impact on them of giving evidence before a television camera.

[33]     I adopt the reasoning of the Department of Constitutional Affairs in the UK

in paragraph 5 of their introduction:

It is important to stress that the proceedings of a court have the overriding objective of delivering fair civil or criminal justice to the litigants or the accused.   To quote from the 1913 judgment in the case of Scott v Scott: “while the broad principle is that the Courts… must … administer justice in public … the chief object of courts of justice must be to secure that justice is done”.   Those addressing the court or presenting or giving evidence are direction their remarks to the others involved, and not to anyone outside.  It is vital that any arrangements made do not disturb this or affect the conduct of participants, or their willingness to participate, in a way which detracts from justice.  Particular consideration must be given to the potential impact

of   any   new   arrangements   on   witnesses,   whether   witnesses   for   the prosecution or for the defence in criminal matters or witnesses in civil proceedings.

(Underlined words are my emphasis)

[34]     As I read that paragraph it places the responsibility for ensuring that the evidence being given is not disturbed by media arrangements on the Judge, not on the witnesses or the parties.  Witnesses give evidence in a criminal trial to the jury, Judge and counsel, in that order.  Persons in the public gallery, including the media, are observers.  They are not the audience.  It is vital to ensure that any filming does not disturb this evidence or affect the conduct of the witnesses.  The trial Judge must err on the side of caution in order to secure justice.

[35]     There is much debate in the academic literature as to whether or not the presence of television in the Courtroom affects the evidence.   See generally the thorough  article  by  Christopher  Lane  “On  Camera  Proceedings:     A  Critical Evaluation of the Interrelationship Between the Principle of Open Justice and the Television of Court Proceedings in Australia” 25 (No. 1) Monash UL Rev 54 (1999).

[36]     In New Zealand we have the advantage of some data taken from the real world, rather than from hypothetical trials conducted with students.   In 1998 the Media Coverage of Court Proceedings Pilot Evaluation Committee reported on the results of an independent research team from Massey University commissioned by Department  of  Courts  to  evaluate  the  media  coverage  of  Court  proceedings. Seventy-seven witnesses involved in six trials responded to a questionnaire on the impact on them of television.    Twenty-three of the 77 witnesses (30%) reported that cameras in Court had distracted them.  The main reasons for distraction were:  that extra people/equipment in the Courtroom were distracting; the psychological discomfort of knowing that the cameras were there; the physical distraction of seeing a  camera;  and  the  process  involved;  and,  being  asked  whether  he/she  required identity protection.  Eighteen of the witnesses (23%) responded that the presence of cameras in Court had caused them stress.   The main reasons for stress were:   the knowledge that a large potential audience were watching; fears of making stumbles which would be broadcast; not wanting to be recognised by strangers; invasion of

privacy; fear of retribution; and, the extra presence of cameras being physically imposing.

[37]     There was also an analysis done in respect of radio, which had only 19 participants surveyed.  Eight thought the presence of radio recording in Court had violated witnesses’ privacy, five thought the presence of radio recording in Court had made witnesses less willing to appear in Court and two thought the presence of radio recording in Court had distracted witnesses.  Five thought the presence of radio recording in Court had made witnesses more nervous.

[38]     This is a case in which counsel for the Crown and accused are examining minutely the observations of eye witnesses.   As already noted, a number of eye witnesses have contradicated themselves already.   Some have agreed their earlier statements to the police were correct.  Some have said the earlier statements were wrong.   Some have broken into tears giving evidence.   They may not have given their evidence as candidly as they did, if they had been filmed or photographed, or recorded for radio.  I am reinforced in my earlier precautionary decision to decline the application that they be filmed.

[39]     In respect of the six adults to whom I have referred, I have read their briefs taken, I understand, from statements made to the police.   Unlike the younger eye witnesses who were the party goers, who were themselves injured or witnessed fellow  party  goers  being  injured  or  killed,  I  am  satisfied  that  these  adults  as bystanders will be able to give their evidence relatively free from emotion and not under particular pressure should they find that their memories are fragile and that they are contradicting themselves.  They are much closer in my mind to the police, medical and expert witnesses, whose evidence I have allowed to be filmed and recorded.  I am satisfied that the risk to the quality of their evidence being affected by film or photography or recording is so minimal that it can be safely disregarded. Accordingly, on that basis I will allow them to be filmed.  I will, of course, continue to observe closely their demeanour in case they are affected, and may intervene to stop the filming.  I grant permission to film, photograph and record for radio their evidence, reserving an opportunity for them to apply to be rendered not recognisable, or not filmed, recorded or photographed at all.  It is not necessary to name these six

persons.  Counsel are aware of who I am referring to.  I do not name them because it is far from clear as to whether they will all be called as witnesses.

[40]     I make the orders and declarations set at the start of this judgment.  I do so in the exercise of my inherent jurisdiction, see Taylor v Attorney-General [1975] 2

NZLR 675, 682, and s 16 of the Judicature Act 1908.

Solicitors:

Raymond Donnelly & Co, Christchurch, for Crown

PHB Hall, Christchurch, for Accused