Reid v South Pacific Pictures Limited
[2018] NZHC 183
•20 February 2017
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV 2017-404-2586
[2018] NZHC 183
BETWEEN LIAM JAMES REID
Applicant
AND
SOUTH PACIFIC PICTURES LIMITED
Respondent
Hearing: 7 February 2018 Appearances:
C Hirschfeld for Applicant
S Mount QC for Respondent
Judgment:
20 February 2017
JUDGMENT OF TOOGOOD J
This judgment was delivered by me on 20 February 2018 at 1.00 pm Pursuant to Rule 11.5 High Court Rules
Registrar/Deputy Registrar
Reid v South Pacific Pictures Limited [2018] NZHC 183 [20 February 2017]
[1] This judgment concerns an application by South Pacific Pictures Limited (SPP) to strike out an application by a sentenced prisoner, Liam James Reid, for a declaration and other orders intended to protect what he asserts are his fair trial rights. The background to the case is unusual in that Mr Reid is not presently facing trial on any criminal charge and he is not engaged in any form of criminal proceeding currently before any court.
Background
[2] On 31 October 2008, Mr Reid was convicted after a jury trial of raping and murdering Emma Agnew at Christchurch (“the Christchurch matter”) and of raping, attempting to murder, and robbing a second woman, A, at Dunedin (“the Dunedin matter”). On 12 December 2008, Mr Reid was sentenced by the trial Judge, Chisholm J, to life imprisonment with a minimum period of imprisonment of 26 years and to preventive detention.
[3] Mr Reid appealed against his convictions and sentence. The Court of Appeal dismissed the conviction appeals and the appeal against the sentence of preventive detention. The Court, however, reduced the minimum period of imprisonment for the murder conviction to 23 years.
[4] An application by Mr Reid for leave to appeal to the Supreme Court was dismissed on 28 February 2012. The Supreme Court's leave decision records that Mr Reid's application was filed more than a year-and-a-half out of time, and that numerous extensions of time had been given to counsel to advance the matter. In the absence of a grant of legal aid, Mr Mansfield (then counsel for Mr Reid), did not advance the application and the Supreme Court dismissed it. In the final paragraph of its reasons for refusing leave the Supreme Court noted that, if the position changed in the future, it would be possible for Mr Reid to ask the Governor-General to exercise the powers available under s 406 of the Crimes Act 1961 which codifies the Royal Prerogative of Mercy.1
1 Reid v R [2012] NZSC 7 at [6].
[5] Mr Reid is currently serving his sentences at Auckland Prison. He has become aware that SPP, a producer of films and television programmes, proposes to produce for broadcast by Prime Television an episode of a series entitled Forensics NZ outlining the key aspects of his offending. It is said that the episode focuses on the forensic and scientific techniques involved in the Police and ESR2 investigation into the murder of Emma Agnew. It is also said to recount some of the scientific evidence heard publicly during Mr Reid’s trial in 2008.
The nature of the proceeding and the relief sought
[6] Representing himself initially, Mr Reid applied to this Court for an injunction restraining SPP from publishing any information about him and sought disclosure of a copy of the proposed programme. Subsequently, after legal aid funding was obtained and solicitors and counsel were instructed, the present application was made in what is called an amended statement of claim.
[7] The application is brought, presumably although not expressly, in the Court's jurisdiction under the Declaratory Judgments Act 1908. It seeks a declaration by the Court that all matters touching upon what is described as Mr Reid's "appeal" are sub judice. It also seeks such "other orders substantive or ancillary as may achieve the interests of justice or otherwise."3 Mr Mount QC, counsel for SPP, argues that as a matter of law on the undisputed facts the sub judice rule cannot apply and that Mr Reid’s application should be struck out.
The asserted basis for the relief sought
[8] Mr Reid has always maintained his innocence of the murder of Ms Agnew. He has instructed an Auckland barrister, Jeremy Bioletti, to investigate evidential issues and, in due course, to pursue what is described in the pleading as an “appeal” but what is more correctly described as:
(a)an application for recall of the Court of Appeal judgment; or
2 The Institute of Environmental Science and Research Limited, a Crown Research Institute.
3 Amended statement of claim, dated 24 January 2018.
(b)an application for recall of the Supreme Court judgment refusing leave; or
(c)a referral back to either of those courts through the exercise of the Royal Prerogative of Mercy.
[9] Mr Bioletti has summarised his inquiries to date and the issues he is investigating in these terms:
3.The case file itself runs to approximately 25 large file boxes. An initial review identified two core issues in relation to the Christchurch convictions. They were the cellphone evidence and a hair found in the deceased's mv which was identified as belonging to the applicant by DNA testing. Counsel is at the stage now where I am about to seek further disclosure from the Police investigation file of the working papers of the telco experts who compiled the cellphone movements of the deceased and the applicant on the day the murder was alleged to have been committed. It is proposed to have this material and the cellphone evidence given reviewed by an independent expert. In relation to the hair located in the deceased's car there are significant chain of custody issues identified. The ESR technician who did the tapelifts, on one of which the hair was located, did not give evidence at the trial. Disclosure of the ES file has been obtained. Within the file there are no photographs of the tapelifts from the mv. In particular there is no photograph of the tapelift on which the hair was found. The hair was allegedly removed from the tapelift and placed in one of six small snaplock bags which were placed in an exhibit envelope labelled "hairs from car seats." This was done at the Christchurch Police station. This is unusual as you would expect such a process to be carried out in the Laboratory with the use of a microscope. ESR disclosur3e indicates this process may in fact have occurred in the Laboratory rather than at the police station. There are no photographs of the plastic snaplock bags from the exhibit envelope. There are further issues based on the disclosure as to who in fact examined the hairs in the Laboratory and separated out the hair exhibit into it's [sic] own envelope which was forwarded to the ESR lab in Auckland for biological analysis. The ESR file indicates that the exhibits were returned to the Police. It is proposed to seek further disclosure of the Police investigation file for the items not previously disclosed.
4.During the process of reviewing the ESR on the hair issue Counsel has also been able to identify some core forensic issues in relation to the Dunedin convictions. The two cases, Christchurch and Dunedin were joined and in terms of the prosecution are linked. The Dunedin matter has not yet been looked at in detail but there are key DNA issues in relation to blood found on the applicants [sic] shoes and on a rope found at the scene in Dunedin. These relate to LCN DNA analysis and mixed profile DNA analysis. Further issues relate to the code of the program used to make the statistical probability analysis. The code issue will require further disclosure being sought from the
ESR and expert analysis of the software and code. In relation to all of these issues a DNA expert will need to identify all the specific components of the disclosure presently obtained from the ESR with a view to an expert carrying out a review of the DNA evidence. The Court of Appeal found that although there was prejudice in the late disclosure of some of the DNA evidence here was no expert evidence presented in the Court of Appeal to challenge the validity of the Crown evidence.
[10]Mr Reid says this about the investigation:
[16] It has taken several years to obtain the ESR file and other disclosure relating to the Christchurch matter and the Dunedin matter. Legal aid is now awarded and my counsel has received and preliminary (sic) reviewed the ESR file. A review of this disclosure indicates that there is outstanding material not disclosed still and there is material which requires further analysis.
[17] The forensic evidence relied upon by the Crown is contentious and subject to my appeal. I have not exhausted my appeal rights. The risk that any publication and broadcast of this forensic file by the defendant will directly jeopardise my right to a fair appeal and my rights to a fair and impartial trial will be void.
[11] The defendant’s application to strike out Mr Reid's claim is founded on the submission that the amended statement of claim discloses no reasonably arguable cause of action. Mr Mount argues that it is clear the application for further substantive or ancillary orders providing the protection sought is predicated on the Court having made a declaration "that all matters touching upon [Mr Reid's] appeal are sub judice".4
Discussion
[12] I am unaware of a succinct statement by a senior court of any "sub judice rule". If there is one, neither counsel drew it to my attention. What I think Mr Hirschfeld means by that expression, however, is that the publisher of statements about the subject matter of a Court proceeding may be held in contempt of Court if it is shown that as a matter of practical reality the actions of the publisher caused a real risk, as distinct from a remote possibility, of interference with the administration of justice.5 In a case such as this, by interfering with a defendant's right to a fair trial.
4 Amended statement of claim, dated 24 January 2018.
5 Solicitor-General v Wellington Newspapers Ltd [1995] 1 NZLR 45 at [47].
[13] While Mr Hirschfeld has done his very best in the circumstances to make a case for the Court's intervention it is plain, from even a relatively cursory consideration of the allegations in the amended statement of claim, that Mr Reid cannot possibly obtain the relief he seeks in the present proceeding. The assertion that the "sub judice rule" applies is founded upon the allegation that, "the Plaintiff's appeal is currently subject to the sub judice rule."6
[14] But there is no appeal. There is no proceeding in which Mr Reid's rights to a fair trial are engaged. All that is happening is that a barrister is undertaking a line of inquiry which may result in his obtaining information, which might afford a basis for an argument that Mr Reid has suffered a substantial miscarriage of justice. As Mr Mount submits, however, a great deal of work needs to be undertaken and the courts will need to give a number of favourable decisions (if the matter reaches any court). Such decisions include determining that cogent evidence that was not available at the time of Mr Reid's trial has become available and may have had an effect on the jury's verdict or verdicts.7 Alternatively, a Court would need to determine that, for some other reason, there has or might have been a miscarriage of justice which warrants Mr Reid being retried after a long delay.
[15] The authorities make it clear, however, that recall is not appropriate where there are alternative remedies reasonably available.8 Here, the alternative remedy as indicated by the Supreme Court is the application for the Royal Prerogative of Mercy. An application for the Royal Prerogative of Mercy faces a number of hurdles. Not least is a requirement that, after investigating the matter and obtaining counsel's advice, the Ministry of Justice recommends a reference to the Governor-General; that the Governor-General accepts the recommendation and the Executive Council passes an order, following which the Court of Appeal considers the new appeal and orders a retrial.
[16] Mr Hirschfeld drew my attention to what may have been a procedural anomaly related to Mr Reid's application for legal aid to pursue his application for leave to
6 Amended statement of claim, dated 24 January 2018.
7 R v Sungsuwan [2006] 1 NZLR 730.
8 R v Smith [2003] 3 NZLR 617 at [36].
appeal in the Supreme Court. If some injustice has occurred, it may be open to Mr Reid to seek the indulgence of the Supreme Court to hear a delayed application for a recall of that Court's judgment.
[17] In brief, it is said that inquiries since the Supreme Court's judgment have established that Mr Nigel Hampton QC, Special Counsel appointed to advise the legal aid authorities, recommended a grant of legal aid. The recommendation, however, was not processed and Mr Mansfield (who was then acting for Mr Reid) was not informed prior to the Supreme Court's judgment.
[18] Even if it could be established that Mr Reid ought to have been granted legal aid, however, an application to the Supreme Court to recall its judgment on that basis faces the further hurdle which was observed by that Court that the leave application was more than a year-and-a-half out of time.9 The Supreme Court also observed that no cogent evidence had been made available:10
[4] Nothing has been put before this Court which could provide any basis for the conclusion that either the DNA evidence or the evidence of the tracking of the mobile phone was actually unreliable, so that a substantial miscarriage of justice may have occurred.
[19] Moreover, the Court said that Mr Reid's propositions about those pieces of evidence was entirely speculative.11 That means that Mr Bioletti's investigation would need to establish some basis for arguing that a substantial miscarriage of justice had occurred, in the same manner as would be required for an application for the exercise of the Prerogative of Mercy.
Result
[20] I return, however, to the fundamental flaw in Mr Reid's present claim: there is no appeal and there is no proceeding in respect of which contempt of Court or any application of a sub judice rule can be considered.
9 Reid v R [2012] NZSC 7 at [2].
10 At [4].
11 At [4].
[21] The plaintiff's case has no prospect of success and I order that the proceeding be struck out.
[22] The defendant is entitled to costs, although an application for a costs order may be futile. Any application shall be filed and served by 6 March 2018. Any memorandum in opposition shall be filed and served by 27 March 2018. Costs shall then be determined on the papers unless the Court directs otherwise.
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Toogood J
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