R v The Queen - [2015] NZHC 798

ORDER PROHIBITING PUBLICATION OF THE JUDGMENT AND ANY PART OF THE PROCEEDINGS (INCLUDING THE RESULT) 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.

NOTE: PREVIOUS ORDER PROHIBITING PUBLICATION OF NAME, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS OF THE DEFENDANT PURSUANT TO S 200 CRIMINAL PROCEDURE ACT 2011
REMAINS IN PLACE.

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2014-044-2080 [2015] NZHC 798

THE QUEEN

v

R

Hearing: 17 April 2015

Appearances:

Mr Raftery & Mr Walker for Crown
Mr Wilkinson-Smith & Mr Brosnahan for defendant

Judgment:

22 April 2015

JUDGMENT OF WINKELMANN J [on application for stay]

This judgment was delivered by me on 22 April 2015 at 4.00 pm pursuant to
Rule 11.5 of the High Court Rules.
Registrar/ Deputy Registrar

R v R [2015] NZHC 798 [22 April 2015]

[1] The defendant is charged with murder and sexual violation. The Crown’s case is that on the evening of 24 May 2014 the defendant abducted Mrs Blesilda Gotingco from Salisbury Road, Birkdale, took her against her will to his home, raped her and subjected her to physical violence, the totality of which conduct resulted in her death. The Crown says that the next morning the defendant took Mrs Gotingco’s body to Eskdale cemetery in Birkdale and left the body in scrub.

[2] The defendant has previously been convicted of serious offending. On

4 October 2006 he was sentenced to a total effective sentence of 8 years’ imprisonment for a number of offences, including abduction for sex with a girl under the age of 12, and indecent assault on a girl under 12. The alleged offending charged in this proceeding occurred several months after his release from prison on that sentence.

[3] Following his release from prison the defendant was made subject to special release conditions and also had an extended supervision order made against him for a period of 10 years. Wylie J imposed the extended supervision order because he considered that it was likely that the defendant would commit further serious offending of a similar nature to his previous offending.1

[4] On 18 June 2014 Brewer J made orders in the following terms:

[a] I prohibit the publication in any news media or on the internet of the name of the defendant and any details likely to lead to his identification;

[b] I prohibit the publication of any report which may lead to Mr Robertson being identified as having been convicted of any other offences;

[c] I prohibit publication of this judgment;

[d] These prohibitions will apply to the date of Mr Robertson’s trial, namely 2 March 2015. They will then be a matter for the trial Judge to renew or lift.

[5] The Judge said that he made these orders because of his conclusion that there was a real risk of prejudice to a fair trial if the defendant’s name were freely

1 Chief Executive of the Department of Corrections…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v The Queen

Details

AGLC: R v The Queen [2015] NZHC 798
Case: [2015] NZHC 798
Decision Date: 22 April 2015

CaseChat Overview and Summary

The case of R v R, heard in the High Court of New Zealand, involves a defendant charged with the murder and sexual violation of Mrs. Blesilda Gotingco. The Crown alleges that the defendant abducted Mrs. Gotingco, took her to his home, raped her, and subjected her to physical violence, resulting in her death. The defendant had previously been convicted of serious offences, including abduction for sex and indecent assault on a girl under the age of 12, and was subject to an extended supervision order upon his release from prison. The defendant applied for a stay of proceedings, arguing that there was material on the internet linking him to his earlier offending, creating a real risk of prejudice to a fair trial. The defendant also sought leave to conduct an online survey to ascertain the extent of the dissemination of prejudicial material.

The court considered the principles of staying criminal trials due to adverse pre-trial publicity, acknowledging that such stays are rarely granted. The court found that while the available material online created a risk to the defendant's right to a fair trial, it was not a case where a fair trial was impossible. The court was confident that the trial judge could take necessary steps to address the risk and ensure a fair trial for the defendant. The court declined the application for a stay and also refused leave to conduct a public survey, considering the potential risk of tainting the jury pool. The existing name suppression orders remained in place, and an order was made prohibiting publication of any part of the proceedings until the final disposition of the trial.

Orders