R v Smith

[2015] NZHC 1650

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2014-004-11560 [2015] NZHC 1650

THE QUEEN

v

PHILLIP JOHN SMITH

Hearing:	15 July 2015
Appearances:	J L S Shaw for Crown T Ellis for Defendant
Judgment:	15 July 2015

JUDGMENT OF LANG J

[on application for review of suppression orders]

This judgment was delivered by me on 15 July 2015 at 2.30 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

R v SMITH [2015] NZHC 1650 [15 July 2015]

[1]      In a judgment delivered on 11 June 2015, I dismissed an application by Mr Smith for an order under s 70 of the Criminal Procedure Act 2011 that charges currently faced by Mr Smith in the District Court be transferred to this Court for trial.1   I also made an order suppressing publication of the judgment and any part of the proceedings until final disposition of the charges in the District Court.

[2]      On  3  July  2015,  Mr  Ellis  filed  a  second  application  seeking  an  order transferring the charges from the District Court to this Court.  He also applied for an order reviewing the suppression order I had made in relation to my judgment.

[3]      Venning  J  dismissed  the  second  application  for  transfer  in  a  judgment delivered on 6 July 2015.2   Venning J also made an order prohibiting publication of his judgment and any part of the proceedings until final disposition of the charges in the District Court.  By separate Minute dated 6 July 2015, Venning J directed that the application for review of the original suppression order was to be listed for first call in the criminal callover on 13 July 2015.

[4]      When the application was called on 13 July, Mr Ellis advised me that he proposed filing a further application for review of the suppression orders made by Venning J on 6 July 2015.  I treated this advice as an oral application for review of the orders made by Venning J, and advised Mr Ellis that I would consult with Venning J in order to ascertain whether he was content for me to deal with both applications.  I have now obtained confirmation from Venning J that I should take that step.

[5]      The Crown confirms that it abides the decision of the Court in relation to both applications.

[6]      Both suppression orders were made in order to protect Mr Smith’s fair trial rights.  Trial and appellate courts in New Zealand routinely make such orders when dealing with pre-trial applications so as to protect the fair trial rights of defendants.

This normally occurs without submissions being made by either party.  The Crown is

1      R v Smith [2015] NZHC 1319.

2      R v Smith [2015] NZHC 1565.

usually neutral on this issue, whilst defendants are normally content to receive the benefit of all available measures to protect their fair trial rights.

[7]      In  the  present  case  Mr  Smith  effectively  seeks  to  waive  the  protection afforded to him by the two suppression orders.  This is somewhat curious given the fact that he also alleges that his fair trial rights have been irretrievably compromised through statements made by state officials regarding the circumstances giving rise to the charges he now faces.  Given that fact, it is difficult to see why he would want to run the risk of having further material about his alleged offending placed in the public domain.  Mr Smith is nevertheless entitled to waive the protection that would ordinarily be offered to him by the courts.

[8]      I therefore lift both suppression orders with immediate effect.

Lang J

Solicitors:

Crown Solicitor, Auckland
Counsel:

Dr T Ellis, Auckland