R v Te Hiko HC Rotorua CRI 2006 077 921

[2007] NZHC 1663

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CRI 2006 077 921

THE QUEEN

v

WHETU TE HIKO

Hearing:         23 February 2007

Counsel:A F Pilditch and T R Bailey for the Crown H S Edward and P Hardie for the Prisoner W Akel for the media

Ruling:           23 February 2007

ORAL RULING OF WILD J

[1]      With the prisoner’s conviction this morning, the 12 December application by Fairfax New Zealand Limited – subsequently advanced as an application on behalf of all New Zealand media -   for an order permitting publication of the deposition evidence relating to the prisoner becomes largely moot, and I accordingly need not decide it.

[2]      With  two  exceptions  the  media  may  publish  the  evidence  given  at  the depositions hearing in the District Court at Tokoroa on 19 September before Justices of the Peace.  That is the hearing which resulted in the prisoner’s committal to this

Court on the murder charge to which he has this morning pleaded guilty.

R V TE HIKO HC ROT CRI 2006 077 921  23 February 2007

[3]      The two exceptions are that I suppress from publication the photographs of Ms Dear’s body taken at the crime scene in her classroom at Strathmore Primary School.   I also suppress from publication the photographs taken during the post mortem examination of Ms Dear’s body at Auckland on 18 July last year.

[4]      As publication of those photographs is suppressed, I direct that the Registrar is not to give those photographs to the media.

[5]      So  that  there  is  no  misunderstanding,  those  suppression  orders  and  that direction do not apply to the coronial autopsy report sworn by Dr Denmark before the Coroner on 11 August.  A copy of that report is to be made available with the other evidence that was heard by the Justices at the preliminary hearing.

[6]      I record that, on behalf of the media, Mr Akel informed me that his express instructions were not to seek access to those photographs.  That is a very responsible attitude.

[7]      When Fairfax applied on 12 December the balance the Court needed to strike was between the opposing public interests in fair trial for accused and freedom of information and open justice.  The prisoner’s conviction this morning dispenses with the need to strike that balance:  there is now not going to be a trial.

[8]      The balance now is between freedom of information and open justice on the one hand, and two new considerations on the other:

a)       A privacy concern on behalf of Ms Dear’s family, and perhaps also her  close  friends,  her  teaching  colleagues  at  Strathmore  Primary School and, I daresay, the pupils she taught there.

b)       A concern about basic human decency and respect for the dead.

[9]      As to freedom of information and open justice, the outline of submissions Mr Akel had prepared in support of the media application advances adequately and convincingly the public interest in freedom of information and open justice, although of course it does that from the viewpoint of the media as the surrogates of the public

in Court proceedings.  One case Mr Akel referred to seems particularly apt here.  It is the decision of the United States Supreme Court in Richmond Newspapers Inc v Commonwealth of Virginia (1980) US Supreme Court Report 65 L.Ed 973, where the Court said:

When a shocking crime occurs, a community reaction of outrage and public protest  often  follows  …  thereafter  the  open  process  of justice  serve  an important prophylactic  purpose, providing an outlet for community concern, hostility, and emotion.

[10]     I do not have access to that judgment this morning, and am unsure in what context the United States Supreme Court said that – whether in a pre-trial or post- trial context, I do not know.  My point is that it is a lucid statement about the public interest when a shocking crime occurs, and that publicity can have what the Court called a prophylactic purpose i.e. a healing purpose.

[11]     The opposing privacy and decency considerations are, I think, adequately reviewed in the recent judgment of Heath J in Fardell v The Coroner’s Court HC AK CIV 2006 404 3638 1 November 2006.  I am mindful that that judgment dealt with the ability of the media to publish evidence  given  at a Coroner’s inquest, whereas  I am  concerned  with  evidence  given  at  the  preliminary hearing  in  the District Court of this criminal proceeding against the prisoner, and after he has pleaded guilty and been convicted.

[12]     Particularly relevant in my view is what the High Court of England said back in 1827 in the case of Garnett v Ferrand (1827) 6 B and C 610; (1829) 108 ER 576. What led to that case was the refusal of a journalist to leave, and his subsequent forcible removal from, a room in which a Coroner’s Court had been assembled for an inquest where the body was in view. This is what the Court said at 627; 582:

Cases also may occur, in which privacy may be requisite for the sake of decency; others in which it may be due to the family of the deceased.  Many things must be disclosed to those who are to decide, the publication whereof, to the world at large, may be productive of mischief without any possibility of good.  Who then is to decide whether privacy be necessary or proper?  We answer, the coroner, and the coroner alone, and that the propriety of his decision cannot be questioned in an action.

[13]     I have looked at the photographs, publication of which I am suppressing.  Mr Akel’s instructions that the media do not seek access to those photographs, and my own view that I cannot conceive of the New Zealand media publishing any of them, perhaps make it unnecessary to rule on the photographs.   But, if publication were contemplated, then, to use the words of the English High Court, I consider it “may be productive of mischief without any possibility of good”.

[14]     To put that in contemporary language, I cannot see that publishing those photographs would do any public good.  But I consider it could, indeed would, do much public harm.  It would lead to hurt, indeed to offence if not anguish.  No good would come of it.  It is for those reasons that I have suppressed publication of those photographs.

[15]     For the prisoner, Mr Hardie raises an issue about the videotapes of the Police interviews with the prisoner.  He submits that the prisoner’s privacy in terms of that videotape being played on television needs to be balanced against the public interest in open justice and freedom of reporting.

[16]     I am not prepared to suppress publication of the videotapes.  Media access to videotapes has recently been dealt with specifically by the Court of Appeal in the case of Television New Zealand v R (Mahanga) [1996] 3 NZLR 393. And public access to Court records generally has been dealt with by the Supreme Court in Mafart v Television New Zealand [2006] 3 NZLR 18.

[17]     I accept some distinction between Mahanga and this proceeding, in that the videotape in issue in Mahanga had been played  during the  trial,  and  had  been reported on.  However, I consider that is a distinction without a difference.  For the purposes of ruling on the videotapes I accept Mr Akel’s argument that they, as an exhibit produced in evidence at the depositions hearing, must be treated as if they had been played in open Court at that hearing.

[18]     In Mafart at para [7] the Supreme Court said:

Public access to Court files both in respect of current and completed cases, must be considered in the context of contemporary values and expectations in relation to freedom to seek, receive and impart information, open justice, access to official information, protection of privacy interests, and the orderly and fair administration of justice.

[19]     As I commented to Mr Hardie, having read the transcripts of those video interviews, I do not consider that any particular privacy interests of the prisoner are engaged and it is significant that Mr Hardie relies, not on the substance of the interviews (and any particularly private matters discussed during them), but on the televising of the image of the prisoner being interviewed.

[20]     In the result, the orders made by Heath J on 12 October 2006 are set aside.  In their place I order that the media:

a)       May inspect and copy the evidence given at the depositions hearing of this proceeding in the District Court at Tokoroa on 19 September

2006, with the exception of the photographs described in [3] above.

b)In  respect  of  the  videotapes,  the  media  may obtain  copies  of  the videotapes.   I leave to the Registrar, the arrangements that will be necessary for those copies to be made.

Solicitors:

Crown Solicitor, Rotorua for the Crown

Harry Edward, Rotorua for the Prisoner

Simpson Grierson, Auckland for the media