R v X - [2022] NZHC 1752

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CRI-2019-096-3073

[2022] NZHC 1752

THE QUEEN

v

X

Hearing: 6 May 2022; further submissions 21 May; 3 June

Counsel:

F E Cleary and A C R M Jeffares for Crown R M Lithgow QC and A Jeremich for Mr X E D Nilsson for Stuff Ltd

Ruling:

21 July 2022

RULING OF SIMON FRANCE J

(Judgment redactions)

Introduction

[1] On 17 September I issued a judgment excluding statements made by Mr X to police officers.1 The judgment was preceded by a hearing over several days at which various police officers and corrections staff gave evidence. A dispute arose during that hearing concerning the use of a document which contained the interview template used by the officers when interviewing Mr X. A pragmatic compromise, endorsed by the Court, resolved the dispute and allowed the pre-trial hearing to proceed.

1 R v X [2021] NZHC 2444.

R v X [2022] NZHC 1752 [21 July 2022]

[2] The compromise involved suppressing those parts of the evidence in which the document was discussed, and also required redactions to the judgment. Stuff Ltd now challenge these suppression orders, saying that the process followed did not enable the Court to be satisfied that the statutory prerequisite for the making of such an order was met. This means there was no jurisdiction to order it. Alternatively, it makes application under s 210 of the Criminal Procedure Act 2011 for revocation of the order. Doubts having been raised about the order’s legitimacy, the Crown has filed a fresh application under s 205 of the Act.

[3] Aspects of Stuff Ltd’s challenge, which is not without merit, are better suited to appeal. However, for reasons to be set out, there are presently no reasons given supporting the suppression so the utility of an appeal is compromised. Further, the combination of an application to revoke and a fresh application to suppress allow the matter to be revisited. Following that course will cure earlier procedural deficits, and provide a reasoned decision which will still be subject to full appeal rights. It is therefore the course this ruling follows.

The orders in issue

[4] There is a police interview method known as the Complex Investigation Phased Engagement Model (CIPEM). CIPEM was developed by Detective Superintendent Fitzgerald of the New Zealand Police. He was a witness at the admissibility hearing. DSupt Fitzgerald trains specialist interviewers in the method. These interviewers hold regular positions within the police, and are only called in to interview on an ad hoc basis. As I understand it, application for use of the interviewers is made to DSupt Fitzgerald. If he considers it a suitable case for CIPEM, he allocates two of his team of trained interviewers.

[5] Mr X was suspected of being involved in the shooting of Ms Lois Tolley. The investigation was stalled and eventually two specialist CIPEM interviewers were tasked to interview Mr X. The interview…

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 X

Details

AGLC: R v X [2022] NZHC 1752
Case: [2022] NZHC 1752
Decision Date: 21 July 2022

CaseChat Overview and Summary

In this case, the High Court of New Zealand revisited suppression orders made in relation to a police interview method known as the Complex Investigation Phased Engagement Model (CIPEM). Stuff Ltd, a media organisation, challenged the suppression orders, arguing that they were not supported by proper reasons and lacked the necessary jurisdiction. The Crown, on the other hand, argued that the suppression orders were justified to protect the integrity of the investigative technique and to prevent potential prejudice to the maintenance of law.

The court addressed several legal issues, including whether section 205 of the Criminal Procedure Act 2011 applies to pre-trial matters, the availability of confidentiality provisions in the Evidence Act, and the role of the inherent jurisdiction. The court found that section 205 does apply to pre-trial matters and that the suppression orders were justified based on the potential prejudice to the maintenance of law. However, the court also concluded that the orders were not supported by proper reasons, which compromised their legitimacy.

The court decided to revisit the suppression orders and considered the arguments from both the Crown and Stuff Ltd. The Crown argued that disclosure of the CIPEM method would likely prejudice the maintenance of law, while Stuff Ltd argued that there was a significant public interest in the transparency of the interview technique, especially given the breaches of rules that occurred during the implementation of CIPEM. The court ultimately concluded that the public interest in disclosure outweighed the maintenance of law considerations, particularly because many aspects of CIPEM were already publicly available.

The court lifted the redactions in the judgment and quashed the suppression orders. The decision allows for the Crown to consider an appeal, and the ruling will take effect on a specified date, with the possibility of the judgment being reissued without redactions if no appeal is filed.

Orders