R v Taiapa

[2017] NZHC 3067

ORDER PROHIBITING PUBLICATION OF THE REASONS FOR JUDGMENT IN NEWS MEDIA OR ON THE INTERNET OR OTHER PUBLICLY AVAILABLE DATABASE UNTIL FINAL DISPOSITION OF

TRIAL. PUBLICATION IN LAW REPORT OR LAW DIGEST PERMITTED.

ORDER PROHIBITING PUBLICATION OF NAME, ADDRESS OR IDENTIFYING PARTICULARS OF THE DEFENDANT UNTIL FINAL DETERMINATION OF ANY APPEAL FROM THIS DECISION.

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

I TE KŌTI MATUA O AOTEAROA TAURANGA MOANA ROHE

CRI-2017-070-004676

[2017] NZHC 3067

THE QUEEN

v

ANDRE ROBERT TAIAPA

Hearing:	8 December 2017
Counsel:	A J Pollett for Crown E A Hall for defendant
Judgment:	11 December 2017

JUDGMENT OF KATZ J

This judgment was delivered by me on 11 December 2017 at 3:30 pm pursuant to Rule 11.5 High Court Rules

Registrar/Deputy Registrar

Solicitors:     A Pollett, Hollister-Jones Lellman, Crown Solicitor, Tauranga Counsel:  E A Hall, Pipitea Chambers, Wellington

R v TAIAPA [2017] NZHC 3067 [11 December 2017]

Introduction

[1]                 Andre Taiapa is charged with the  murder  of  Don  Henry Turei  (Jnr)  on 26 November 2016. He has previously been granted interim name suppression pursuant to s 200 of the Criminal Procedure Act 2011 (“Act”). He now seeks continued name suppression through until (at least) the case review hearing date of 21 February 2018.

[2]                 Mr Taiapa seeks name suppression on two grounds, namely that publication of his name would be likely to:

(a)create a real risk of prejudice to a fair trial;1 and/or

(b)endanger the safety of any person.2

The Crown case

[3]                 The Crown case is as follows. Mr Turei, who was a patched member of the Tribesmen gang, was travelling by motorbike to attend a wedding reception of a couple associated with the Tribesmen on Saturday, 26 November 2016. The wedding reception was taking place at the Waihau Bay Fishing Club. There had been tension earlier in the day between Tribesmen gang members travelling to the wedding and the local chapter of the Mongrel Mob gang, who occupied a gang pad en route.

[4]                 Mr Turei rode past the Mongrel Mob gang pad, wearing his Tribesmen gang patch. Mr Taiapa took exception to this. He allegedly pursued Mr Turei in a Honda Odyssey motor vehicle, ultimately driving Mr Turei’s motorbike off the road, causing it to crash into a ditch. Mr Turei died from injuries that he suffered in the crash.

1      Criminal Procedure Act 2011, s 200(2)(d).

2      Criminal Procedure Act 2011, s 200(2)(e).

Name suppression – general principles

[5]Section 200 of the Act envisages a two-step process:3

(a)First, the Court must determine if one of the consequences listed in  s 200(2) would be likely to follow if no order for suppression were made.

(b)Second, the Court must determine whether it is appropriate, in all the circumstances, to exercise its discretion to forbid publication of the defendant’s name.

[6]                 At least one of the listed consequences in s 200(2) must be “likely” to occur. The Court of Appeal has emphasised that this is essentially a question of common sense.4 It will be sufficient if there is an “appreciable risk” that the specified consequence will occur.5 This does not mean, however, that the applicant must establish that the consequence is more likely than not to occur.6

[7]                 The requirement that the Court be “satisfied” that the specified consequence is likely to occur essentially means that the Court must come to a decision on the evidence before it.7 It places an evidential onus on the applicant to displace the presumption in favour of publication.8

3Fagan v Serious Fraud Office [2013] NZCA 367 at [9]; Robertson v Police [2015] NZCA 7 at [39]-[41]; and R (CA340/15) v R [2015] NZCA 287 at [11].

4      Huang v Serious Fraud Office [2017] NZCA 187 at [9].

5H v R [2015] NZHC 1501 at [18]; and NN v Police [2015] NZHC 589 at [21]. Other cases have referred to a “real risk”: see Beacon Media Group Ltd v Waititi [2014] NZHC 281 at [17]; Peglar v Police [2014] NZHC 1184 at [23]; and JM v R [2015] NZHC 426 at [33].

6      Beacon Media Group Ltd v Waititi, above n 5, at [17]; and JM v R, above n 5, at [34].

7For discussion of the meaning of the phrase “is satisfied” see R v White (David) [1988] 1 NZLR 264 (CA) at 268; and R v Leitch [1998] 1 NZLR 420 (CA) at 428.

8See Re Victim X [2003] 3 NZLR 220 (CA) at [45]; and R v Paterson [1992] 1 NZLR 45 (HC) at 50.

Would publication of Mr Taiapa’s name be likely to create a real risk of prejudice to his fair trial rights?

[8]                 The first issue I must consider is whether publication of Mr Taiapa’s name would be likely to create a real risk of prejudice to his fair trial rights. A “real risk” is one that might well eventuate.9 The assessment of risk is highly contextual.10

[9]                 Ms Hall advised that it is likely that a challenge to the identification of     Mr Taiapa as the driver of the Honda Odyssey vehicle will be a key focus of the defence at trial. Ms Hall submitted that publication of Mr Taiapa’s name will therefore create a real risk of prejudice to a fair trial, because potential witnesses will then be able to access images of him, for example through social media. If the defence were then able to locate and interview any further eyewitnesses (who have not already made police statements), their identification evidence would be potentially compromised if Mr Taiapa’s name had been published prior to them providing statements.

[10]              As far as the Crown witnesses are concerned, I accept Ms Pollett’s submission that their identification evidence will already have been secured by way of signed formal written statements or other formal evidential records, such as photo montage evidence. If Crown witnesses were to now alter their identification evidence at trial, they can then be cross-examined on any inconsistencies. This case is no different to other cases where identification is in issue in that respect.

[11]              The focus must therefore be on whether there are likely to be further identification witnesses who have not yet been spoken to by police. I find that proposition to be both unlikely and speculative. The incident occurred over a year ago. Mr Taiapa was only charged recently, after a very lengthy police investigation.

[12]              I must be satisfied that there is a real risk that publication of Mr Taiapa’s identity at this stage is likely to prejudice a fair trial. There is no evidence that, independently  of  the  police  investigation,  Mr Taiapa  is  aware  of  any potential

9Bruce Robertson (ed) Adams on Criminal Law (online looseleaf ed, Thomson Reuters) at [CPA200.02(4)] and  [CPA205.03]. See also  Commissioner of Police v Ombudsman  [1988] 1 NZLR 385 (CA) at 391.

10     Solicitor-General v W & H Specialist Publications Ltd [2003] 3 NZLR 12 (HC) at [30].

eyewitnesses to the incident. Rather, Ms Hall relies on Crown disclosure to identity any such witnesses. One would expect, however, that any witnesses revealed through such disclosure will already have been spoken to by the police during the course of their investigations.

[13]              Taking all of these matters into account, I am not satisfied that publication of Mr Taiapa’s name will prejudice his fair trial rights.

Would publication of Mr Taiapa’s name be likely to endanger the safety of any person?

[14]              The second ground relied on by Mr Taiapa is that publication of his name would be likely to endanger his safety and also that of other members of his family.

[15]              The Court of Appeal has emphasised that speculation about how people might react to publication does not satisfy the test. There must be an evidential basis for proof of likelihood of endangerment.11 I note that there is no evidence before the Court relating to this issue. Rather, Ms Hall submitted that publication would be likely to endanger Mr Taiapa’s safety because of the broader gang context in which the alleged offending occurred. In essence, I understand her argument to be that Mr Taiapa would be at risk of retribution from Tribesmen gang members in prison, if his identity were to become known.

[16]              It is somewhat unrealistic, in my view, to expect that suppressing publication in the media of Mr Taiapa’s name will mean that it does not become known in gang circles. I note, for example, that callover and pre-trial appearances in this case are held in open Court. Mr Turei’s friends, family members or gang associates are entitled to attend. I suspect it is relatively well known in the East Coast community that Mr Taiapa has been arrested and charged in respect of the death of Mr Turei.

11 Bitossi v R [2014] NZCA 595 at [8]. The context of the Bitossi case was that the defendant had been charged with arson, and there were concerns held by the defendant that tenants who had personal possessions in the damaged building would seek retribution against the defendant’s family. The Court was not satisfied that name suppression would be appropriate: there was no evidence of threats or danger from any member of the public.

[17]              In any event, gang tensions are not uncommon in the prison environment. It is the responsibility of the Department of Corrections to take appropriate steps to manage such issues and to protect the safety of prisoners. Indeed, Ms Hall accepted that Corrections can be expected to manage Mr Taiapa’s safety while he is in a custodial environment. She accordingly focused her argument on the issue of endangerment to Mr Taiapa’s family. Ms Hall submitted that revenge may be sought against them, in circumstances where Mr Taiapa is unable to protect them. The targeting of whanau in this context is submitted to be a common gang tactic of intimidation. Ms Hall submitted that the situation has the potential to begin a cascading of consequential inter-gang strikes and revenge counter-strikes.

[18]              As I have previously noted, the issue is not whether there might be some theoretical risk to Mr Taiapa’s family members, but whether publication of his name is likely to endanger them. There is no evidence of any specific risks to Mr Taiapa’s family. Rather, the underlying proposition appears to be that retribution against family members is more likely in the context of gang-related offending than in other types of offending.

[19]              There is no evidence to support that proposition and it is certainly not something that is such common knowledge that I could take judicial notice of it. Even if it were true, however, there is no evidence before me to assist me to assess such a risk in the circumstances of this case. For example, where do Mr Taiapa’s family live? Where do they work? Do they live or work in areas where there is a significant Tribesmen presence? Have they discussed their concerns with local law enforcement and sought advice from them?

[20]              Further, as noted above, I suspect that Mr Taiapa’s alleged involvement is already widely known in the relevant gang circles.

[21]              Taking all of these matters into account, I am not satisfied that it has been established that publication of Mr Taiapa’s identity is likely to endanger his family. While there may be some degree of risk, it is my view that it falls short of meeting the “likely” threshold.

[22]              Finally, I note that Ms Hall submitted that the presumption of innocence and the adverse consequences of publication of what may be an unjustified charge are among the factors to be weighed.12 Such matters are clearly relevant, albeit at the discretionary stage of the inquiry. Similarly, the principle of open justice falls for consideration at that stage.13 Given, however, that none of the grounds in s 200(2) have been made out, the jurisdictional threshold for the making of a suppression order has not been crossed. There is accordingly no basis to embark on the second stage of the inquiry, namely whether the Court should exercise its discretion to suppress publication of Mr Taiapa’s name.

Result

[23]Mr Taiapa’s name suppression application is declined.

[24]              Ms Hall informed me that if Mr Taiapa’s application is declined there is a real prospect of an appeal. She will be meeting with Mr Taiapa today (11 December 2017) to take instructions generally and also intends to discuss name suppression issues further with him at that time. I therefore make an interim order continuing Mr Taiapa’s name suppression, pursuant to s 286 of the Criminal Procedure Act 2011. That order will continue in force until either expiry of the period specified for filing a notice of appeal (20 working days) or the determination of any appeal that is filed within that period.

[25]              I also make an order prohibiting publication of the reasons for this judgment in news media, on the internet, or on any other publicly available database until final disposition of trial. Publication in law reports or law digests is permitted. This is to protect Mr Taiapa’s fair trial rights.

Katz J

12Relying on R v B [2008] NZCA 130, [2009] 1 NZLR 293 at [25]; and M v Police (1991) 8 CRNZ 14 (HC) at 15-16.

13     Robertson v Police, above n 3, at [46].