R v Tully
[2016] NZHC 621
•8 April 2016
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
CRI-2014-009-008232 [2016] NZHC 621
THE QUEEN
v
RUSSELL JOHN TULLY
Hearing: 7 April 2016 Appearances:
M van Beynen in person for Fairfax Media
B Stanaway for Ministry of Social Development
M Zarifeh for the CrownR J Tully appearing in person via AVL J Rapley as Amicus Curiae
Judgment:
8 April 2016
JUDGMENT OF MANDER J
[1] Before the commencement of Mr Tully’s trial I made an order prohibiting the publication of the CCTV footage from inside the WINZ offices and still images lifted from that record to be produced during the course of the trial.1 These exhibits capture Mr Tully moving around the WINZ office discharging the shotgun and shooting WINZ staff members.
[2] The order was to have permanent effect. It was made out of concern for the interests of the victims and their families arising from the graphic nature of what was captured on the CCTV footage. After the conclusion of the trial Radio NZ sought to
review the suppression order and made application for the CCTV footage to be
1 R v Tully, CRI-2014-009-008232, 22 February 2014 [Minute].
R v RUSSELL JOHN TULLY [2016] NZHC 621 [8 April 2016]
released for publication. I maintained the order, however I expressed concern about suppressing such a central piece of evidence in the trial which was of legitimate public interest.
[3] The possibility of still images from the CCTV footage being made available for publication was raised. Such images would show only the gunman and would not include WINZ staff members or victims. The Crown agreed to discuss with representatives of the media and in particular Mr van Beynen on behalf of Fairfax New Zealand, whether a consensus could be reached about the release of some images lifted from the CCTV footage. A number of these photos had been included in the trial photograph booklet produced in evidence. It was not apparent that publication of such images would impinge upon the reasons and purpose for suppressing the CCTV footage in the interests of the victims and their families.
[4] Subsequently I was advised by the Crown that the Ministry of Social Development opposed the publication of any still photographs and sought to be heard on the issue. As a result it was necessary to convene a further hearing. Faced with opposition to any images being released for publication, Mr van Beynen on behalf of Fairfax New Zealand made application for the order suppressing the CCTV footage be reviewed.
The material in question
[5] The CCTV footage from inside the WINZ office was produced at trial as an exhibit and played to the jury. The footage captures Mr Tully’s entry into the office, his shooting of the receptionist, Mrs Noble, his movements into the body of the office and his repeated discharge of the shotgun. The footage includes Mr Tully’s shooting of Ms Curtis under her desk and his movements to the rear of the office where Ms Cleveland was trapped at her desk. The footage does not show Ms Cleveland, however it captures Mr Tully lowering the gun and repeatedly discharging the shotgun at her from close range. The CCTV footage is only 61 seconds in length.
[6] The Crown’s case also included photographs lifted from the CCTV footage and included in a photo book produced as an exhibit. These images capture Mr Tully’s entry, his shooting of WINZ staff and his movements around the office before exiting.
Principles to be applied
[7] Section 205 of the Criminal Procedure Act 2011 (the Act) provides the Court with a power to make an order forbidding publication of any part of the evidence produced at trial. As far as it is relevant to the present circumstances, the Court may make an order only if the Court is satisfied that publication would be likely to cause
undue hardship to any victim of the offence.2 The section reinforces the presumption
of open justice and that suppression orders are only to be made in restricted circumstances.3
[8] The definition of “victim” has the meaning given to it in s 4 of the Victim’s Rights Act 2002. A person against whom an offence is committed by another person or who suffers physical injury, or loss as a result, is a victim. A victim includes a member of the immediate family of a person who dies as a result of an offence.
[9] The approach to suppression and the provisions of the Act are now well established. The Court is required to firstly consider whether the statutory threshold has been established. In this case, whether publication would be likely to cause undue hardship to any victim. If the qualifying ground has been made out the Court must then weigh whether in its assessment of the various competing interests there
should, in the exercise of its discretion be suppression.4
[10] In order to meet the statutory criteria it must be shown that publication would
be likely to cause undue hardship to a victim of the offence. “Undue hardship”
means something more than the hardship that would normally attend publicity
2 Criminal Procedure Act 2011, s 205(2)(a).
3 Robertson v Police [2015] NZCA 7 at [32] – [45].
4 R v R [2015] NZCA 287; Robertson v Police [2015] NZCA 7; Fagan v Serious Fraud Office
[2013] NZCA 367 at [9].
surrounding the criminal proceeding.5 The term “undue” indicates something more than ordinary and involves excessive or serious hardship greater than would otherwise be expected to arise from the publication of evidence adduced in a criminal trial. It is, however, to be contrasted with the phrase “extreme hardship” which connotes a very high level of hardship.6 The test is one of “likely to cause.” That is to be construed as an appreciable risk or real risk which cannot readily be discounted.7
[11] While there presently exists a permanent order suppressing the publication of the CCTV footage and the stills from inside the WINZ office, such an order may be reviewed, varied or revoked by the Court at any time.8 Mr van Beynen, as a member of the media, has standing to initiate and be heard in relation to any application to vary or revoke a suppression order.9 Third parties may, with the Court’s leave, also
be heard on issues of suppression.10
[12] During the course of submissions referral was made to pt 6 of the Criminal Procedure Rules 2012 which govern access to court documents. While those rules have application to any request to lift still photographs from the CCTV footage that were not included in the photo book produced as an exhibit at trial, the issue before me is one of suppression rather than access to material on the Court file. That said, the factors referred to in r 6.10 largely reflect the type of matters required to be considered at the second stage of the suppression exercise. It is to be noted that r 6.10(f) refers to the relevance of any existing order preventing publication. It follows therefore that access is likely to be determined in any case by the issue of suppression.
The statutory test
[13] The Crown relies on s 205(2)(a) of the Act that publication of the CCTV
footage would be likely to cause undue hardship to the victims of the offending, and
5 R v Joshi [2015] NZHC 2523 at [7].
6 Robertson v Police [2015] NZCA 7 at [48] referring to R v N [2012] NZHC 2042 at [21];
Rougeux v Police [2014] NZHC 979 at [20]; Jung v Police [2014] NZHC 949 at [17].
7 Hughes v R [2015] NZHC 1501 at [18].
8 Criminal Procedure Act 2011, s 208(1)(c) and (3).
9 Criminal Procedure Act 2011, s 210.
10 Siemer v Solicitor-General [2013] NZSC 68, [2013] 3 NZLR 441 at [183].
in particular to the victims’ families. It has filed affidavits from Ms Adams and Ms Curtis who were shot at by Mr Tully. There is also an affidavit from another Ashburton WINZ employee, Ms Hayman, who was forced to flee the office in fear of her life at the time of the shootings. Their affidavits attest to the distress that has been caused to them as a result of the shootings. They suffer from post-traumatic stress disorder and the emotional impact on both themselves and their families has been acute. They are concerned about being re-traumatised should the CCTV footage be published. They depose to the risk both to themselves and their families of viewing the footage and the resulting distress.
[14] Mr van Beynen did not seek to minimise the effects on the deponents and their families from being exposed to the CCTV footage. His submissions largely concentrated on the wider balancing considerations relating to open reporting, however he did not accept the effect on the WINZ staff members met the statutory test of undue hardship. While sympathetic to their position he submitted they would be able to take steps to avoid seeing the footage, and that publicity given to the published footage would be soon overtaken by other news. He noted the material that remained on the internet would have to be specifically searched for.
[15] The viewing of the CCTV footage which captures Mr Tully’s attack would be deeply disturbing to those who directly experienced that traumatic event. In particular, the footage shows Ms Curtis being shot as she seeks to hide under her desk. The extraordinary nature of Mr Tully’s attack and the potentially lethal consequences for WINZ staff present in the office that morning have caused lasting and understandable fears and distress. Viewing footage of those events, and indeed knowing that such a record is perpetually available at the touch of a computer key, is likely to cause them hardship which is out of the ordinary from victims of violent offending who may be exposed to evidence published or reproduced in reports by the media.
[16] If there is room for debate as to the effect of the offending on the surviving victims there can be no doubt as to the profound distress to the families of Mrs Noble and Ms Cleveland from the publication of the CCTV footage which records the execution of their family members. The reason for the original suppression order
was for the purposes of protecting the dignity of those deceased victims and to avoid distress to their families arising from the explicit footage being publicly displayed. The material is graphic insofar as it concerns Mrs Noble. While Ms Cleveland cannot be seen in the recording, Mr Tully’s actions of lowering the shotgun and repeatedly discharging the shotgun at his victim before returning a third time to deliver the fatal shot, would obviously be deeply distressing to Ms Cleveland’s family.
[17] For these reasons I confirm my earlier ruling that publication of the CCTV footage and the stills taken from that record, would be likely to cause undue hardship to the victims and to the families of the deceased. The statutory threshold under s 205(a) of the Act is established.
The balancing test
[18] With the statutory criteria for suppression of the evidence having been established, it remains for the Court to determine whether having regard to the various competing interests and in particular the strong presumption in favour of open justice, the Court should in the exercise of its discretion suppress the evidence. It was in relation to this second part of the exercise which Mr van Beynen’s submissions, and those made on behalf of the Ministry of Social Development, were largely directed.
[19] Fairfax New Zealand stressed the importance of open justice and the freedom to impart and receive information. It was concerned to ensure the media’s rights to fully report Court proceedings were not unnecessarily nor incrementally curtailed. While acknowledging the potential for stress to be caused to the victims and their families from the publication of the CCTV footage, Mr van Beynen submitted that such consequences were not out of proportion to the public interest of maintaining the open reporting of criminal proceedings. Providing the wider public with the opportunity to see the footage would, in his submissions, allow it to better understand the reasons for the jury’s verdict and for the sentence to be imposed. He
stressed the importance of the visual information, and the insight and better understanding the community can achieve by being able to view the footage.11
[20] Mr van Beynen submitted that dissemination of the footage would inform public discussion about the need for security in WINZ’s offices and allow people to understand the need for expenditure to justify greater security measures. Similarly, people resentful about not having the type of access they previously had to WINZ offices would gain a greater appreciation of why this is now necessary. It would promote understanding and sympathy for the position of WINZ staff.
[21] Mr van Beynen, while not wishing to diminish the concerns of WINZ staff members around the country, submitted the reasons put forward by WINZ management in support of suppression, not only of the CCTV footage but of any stills lifted from it, was simply not sufficient to curtail the open reporting of the trial. The possible stressful impact of the publication of evidence on a wider workforce was an insufficient basis to curtail ordinary press freedoms.
[22] The Ministry of Social Development as an interested party filed affidavits in support of the continuation of suppression. Unlike the Crown, which did not oppose the publication of four identified still photographs taken from the footage which did not show WINZ employees or Mr Tully shooting at his victims, the Department objected to any modification of the existing order. Its opposition was based on concerns for the health, safety and welfare, not only of former Ashburton WINZ staff members, but its frontline staff around the country.
[23] I have already recognised the effect on the survivors of the shootings and the immediate families of the deceased. However the department sought to rely on the potential effect of publication on its wider WINZ frontline staff.
[24] I have read the affidavit of Dr Johal, a clinical psychologist who has been involved in assisting WINZ staff and who expresses concerns about the potential effect of the publication of CCTV footage and photographs and the dissemination of
such material on WINZ staff members. His concern is that the publication of the
11 R v Burton HC Auckland CRI-2008-044-010516, 19 February 2010 at [16].
footage and photographs showing Mr Tully committing these acts of violence against staff members may increase anxiety levels for staff and potentially result in an increase in perceived and actual instances of threats to staff providing frontline services.
[25] Mr Carl Crafar is the Deputy Chief Executive of social housing at the Ministry of Social Development. He filed an affidavit deposing to the Ministry’s concerns about the wellbeing of its staff and the impact of the publication of CCTV footage and still photographs on the wider organisation. He made reference to an increase in the number of violent incidents and threats made to staff in the wake of the shootings at the Ashburton office. The Ministry is concerned that the release of the material may result in possible copycat events and there could be a spike in incidents threatening staff safety and security. The Ministry has also expressed concern regarding the office layout and the effect of images of Mr Tully standing in a work environment the same as other WINZ workers, causing undue stress and trauma.
Decision
[26] The starting point when considering issues of suppression must always be recognition of the importance of an open system of justice. The rights of the media as surrogates of the public to report freely about the criminal justice process must always be a dominant factor. Section 205 of the Act and the limited statutory criteria on which suppression must be based is illustrative of the presumptive right of access to report the proceedings of the Courts. Intrinsic to the principle of open justice is the recognised public interest and benefit of the fair and accurate reporting of trials and Court decisions, which is likely to be promoted by unimpeded access to the evidence upon which a jury has based its verdict and informed Court decisions.
[27] The statutory criteria for suppression under s 205(2)(a) of undue hardship to victims has in the circumstances of this case been established. In that regard my finding is limited to the likely undue hardship to the surviving victims of the shootings and in particular the effect of publication of the CCTV footage on the deceased’s families. In balancing the interests of the media and the public interest
in open reporting against those of the victims and their families, I do not consider the
media’s interests to be illegitimately curtailed by suppression of the CCTV footage.
[28] Mr van Beynen sought to emphasise that publication of the CCTV footage would enable a fuller understanding of the matter than is possible solely through the printed word. While I accept that visual images are capable of providing a more immediate form of communication to the viewer, the viva voce evidence of eye witnesses to Mr Tully’s actions were able to be fully reported. No particular details or narrative of the offending are being kept from the public. The CCTV footage and indeed the stills were displayed in open Court on computer screens and able to be viewed by the media and reported.
[29] Mr van Beynen submitted that the media itself has a responsibility to victims of crime and the wider public when exercising its own discretion of what should be put in the public domain. He urged the Court to place some reliance on the media to responsibly carry out that function in a situation such as the present and that it should be left to the media to make that assessment. In opposition to such a course it was submitted that it is not simply a matter of assessing whether the Court can accept Fairfax New Zealand’s assurance it will act responsibly and sympathetically to the families of the deceased. Fairfax would have no control or supervision of how other media organisations or outlets may use the material.
[30] The risk of inappropriate use of the material is aggravated by the CCTV footage and images inevitably being placed on the internet. Once on the internet there is a complete loss of control of the material and of the use to which it may be put by others or accessed on an ongoing basis for prurient and illegitimate purposes.
[31] The simple response to Mr van Beynen’s submission that the Court should place confidence in the media to self-regulate the use of such material is that the Crown made application in the interests of the victims at the commencement of the trial for the Court to exercise its powers under s 205 to suppress the material in question. While Mr van Beynen’s submission as to the responsible approach that his organisation will take to the use of the material may properly be taken into account as part of the balancing process, it remains for the Court to determine the Crown’s
application effectively on behalf of the victims and their families, that this particularly sensitive evidence not be available for publication.
[32] Despite Mr van Beynen’s extensive and detailed submissions I do not consider the original reasons for the suppression order to have been eclipsed by the considerations that he has urged upon me. I consider it is necessary to suppress the CCTV footage in order to protect the dignity of the victims and avoid the distress to their families, which will inevitably follow from the explicit, gruesome and disturbing images of the deaths of their loved ones. I do not consider the suppression of the graphic footage unreasonably impedes or curtails the fair and accurate reporting either of the trial or of the details of the offending available from the balance of the evidence adduced.
[33] This effectively brings me to the position that was reached at the conclusion of the hearing on 10 March. There is no doubt the CCTV footage was an important part of the Crown’s case and there is an obvious and legitimate public interest in the footage. The possibility of an edited version of the CCTV footage being made available to the media which would not include images of the victims, WINZ staff or members of the public and which did not show Mr Tully shooting at his victims was canvassed at that time. Because of the very short length of the footage it is not a realistic option to provide an edited version. The exhibit itself is a compilation of recordings taken from the various security cameras positioned within the WINZ office. I anticipate any shortened montage of the exhibit once edited would have little value.
[34] The question therefore arises whether suppression should extend to still images taken from the CCTV footage. In particular to the four images which show an armed and disguised Mr Tully and which would not include WINZ staff members or victims. As I observed shortly after the conclusion of the trial, it was likely a series of images could be agreed which would not infringe the spirit and intent of the suppression order, designed as it was to protect the victims and their families from the distressing images of the fatal shootings.
[35] The Crown was agreeable to that course. It has confirmed that it does not oppose the four identified still photographs from the photo booklet exhibit being made available for publication. However WINZ maintain that even publication of those four images should be suppressed.
[36] I have already traversed the reasons put forward on behalf of WINZ for its opposition to the publication of those images. Photographs 126, 127 and 128 show Mr Tully inside the WINZ office exiting the front door. Photograph 124 shows Mr Tully in the body of the office. All four capture his appearance on the day disguised with a balaclava and armed with a shotgun. In none of the photographs is Mr Tully firing the weapon nor is he directing himself towards any victim, nor are any WINZ staff or members of the public even present. The office as shown in the photographs appears to be empty.
[37] I do not consider the reasons put forward by WINZ are sufficient to justify continued suppression of these four images. None of the images bear upon the justification for the suppression of the CCTV footage. Put another way, had these four images been the only photographs adduced at trial, there would be no possible basis upon which they could legitimately be suppressed under s 205.
[38] Photo 124 which depicts Mr Tully in the centre of the Ashburton WINZ office masked and armed is a chilling image. It shows a gunman in the middle of an open plan office with which many office workers throughout New Zealand would be familiar. Mr Stanaway, on behalf of WINZ, emphasised to me the stress likely to be caused to WINZ staff viewing the images in the knowledge that it is a WINZ office with a similar or same appearance in terms of its furnishings as other WINZ employees’ workplaces. In some of the images the Work and Income signage can be seen. He submitted these four photographs would therefore bring home or remind WINZ workers of what occurred in an office the same as their own and spark distress. I do not minimise the potential effects on WINZ staff, but of course these circumstances of the offending are already known.
[39] In my view there is a wider public interest in the media being able to fully report and communicate by use of these limited number of images of what occurred
inside the office. There was some suggestion that publication may possibly provide some insight or intelligence about the layout of WINZ offices to any person minded to repeat such an attack. However, at least in relation to the still photographs proposed to be made available to the media, Mr Stanaway accepted that could not realistically be offered as a reason for suppression.
[40] It was suggested by WINZ that the showing of these images would result in an increased number of threats and security incidents as occurred in the wake of the offending itself. I do not wish to diminish the concern of WINZ, however there has been a three week trial which attracted much publicity and resulted in detailed reports of Mr Tully’s actions being published. It has not been suggested that there was any spike in such incidents as a result of this publicity. I cannot discern publication of these limited images should necessarily result in any greater risk and it has not been explained to me the correlation between publication of the images and these concerns.
[41] In my view there is a proper and legitimate public interest in making the four photographs adduced at trial available for publication. I have already reviewed the conflicting interests as they relate to the suppression of the CCTV footage. My rationale for continuing suppression in respect of that exhibit as it relates to the interests of the victims and their families, who ought not to have to be exposed to the violent images, does not extend to the images proposed to be made available for publication.
[42] The release of the identified still photographs strikes a proper balance between the need for the media to present a complete report (or as complete as possible) of the evidence of Mr Tully’s offending and the interests of the victims and the dignity of the deceased so as to avoid undue hardship. It is necessary that any curtailment of the freedom of the press and our system of open justice bears a reasonable relationship with the purpose for that curtailment.12 The reasons put forward by WINZ to extend suppression to the nominated four images does not bear
that scrutiny.
12 In re S (A Child) (Identification: Restrictions on Publication) [2004] UKHL 47, [2005] 1 AC
593.
Conclusion
[43] It follows, therefore, that the existing permanent order suppressing the internal CCTV footage of the WINZ office remains in place. That order, as it presently does, extends to and includes the still photographs lifted from the footage and included in the photograph booklet produced as an exhibit at trial. However, the suppression order is modified to the extent that the order no longer includes photographs 124, 126, 127 and 128 (pages 151, 153, 154 and 155) of the photograph booklet produced at trial as exhibit 38.
[44] Mr Stanaway, in the course of his submissions, raised with me the possible need to preserve rights of appeal upon the release of my decision. I note that an applicant for a suppression order, a prosecutor and a member of the media have rights of appeal under s 283 of the Act. Section 286 provides for interim suppression for that purpose. In order for the parties to have the opportunity to consider their positions I will make an interim order continuing the suppression of the four still photographs no longer subject to the original suppression order until 5.00 pm on Tuesday 12 April 2016.
Solicitors:
Raymond Donnelly & Co, Christchurch
Bridgeside Chambers, Christchurch
Copy to:
R J Tully, Christchurch
M van Beynen, Fairfax Media
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