S v The Queen

[2014] NZHC 1471

ORDER PROHIBITING PUBLICATION OF THIS JUDGMENT PENDING FINAL DISPOSITION OF CURRENT CHARGES AGAINST WITNESS REFERRED TO IN OUR JUDGMENT OR FURTHER ORDER OF THE COURT.  IF NO ORDER OF THE COURT HAS BEEN MADE AT THE TIME OF FINAL DISPOSITION OF THE CHARGES, THIS ORDER WILL AUTOMATICALLY LAPSE.

NOTE: THE WITNESS HAS NAME SUPPRESSION IN RESPECT OF THE CHARGES PURSUANT TO AN ORDER MADE ON 13 JUNE 2014 BY THE DISCIPLINARY OFFICER OF THE NEW ZEALAND DEFENCE FORCE FOR THOSE CHARGES.

ORDER PROHIBITING THE PUBLICATION OF THE IDENTITY AND ANY PARTICULARS THAT COULD IDENTIFY ANY MEMBER OF THE SPECIAL OPERATIONS FORCES OR THEIR OPERATIONS.

IN THE COURT MARTIAL APPEAL COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV 2013-485-10617 [2014] NZHC 1471

UNDER	the Court Martial Appeals Act 1953
IN THE MATTER OF	an appeal by S
BETWEEN	S Appellant
AND	THE QUEEN Respondent

Teleconference:

19 June 2014

Court:

Mallon J

Judge J Billington QC Judge D McGregor

Appearances:

M Mason for the Appellant
Major J Kennedy-Good for the Respondent
T J Gilbert for "Witness"

M Field for Fairfax Media (submissions subsequently received by R Stewart for Fairfax Media)

A May for Radio New Zealand

Judgment:

27 June 2014

S v R [2014] NZHC 1471 [27 June 2014]

JUDGMENT OF THE COURT (Suppression matters)

[1]      Our judgment in this appeal was delivered on 17 June 2014.  It was delivered only to the parties (and not distributed more widely) to provide the parties with the opportunity to check whether there were matters referred to in the judgment which were covered by the suppression orders made in the Court Martial.  Counsel advised the Court of two matters covered by the suppression orders.   One related to an inadvertent reference to Trooper S.  The other related to the changed status of one of the witnesses such that he was now covered by the Court Martial’s suppression order.

[2]      In  addition  counsel  for  the New  Zealand Defence  Force (NZDF) sought permission to refer the judgment to a person who is referred to in the judgment (not Trooper S) and who is now facing charges under the Armed Forces Discipline Act

1971 (the Act).  Permission was granted.  This led to a request by that person for interim suppression of parts of the judgment until such time as the charges he faces are resolved.  A telephone conference was convened.  We heard from counsel for the parties, counsel for the person seeking name suppression and representatives from Radio NZ and Fairfax.   We subsequently received further submissions from the parties, the person seeking suppression and counsel representing Fairfax.

[3]      The power to suppress is found in s 145 of the Act.  That section provides that subpart three of part five of the Criminal Procedure Act 2011 applies (with all necessary modifications)  to  proceedings  under the Act  and  on  appeal  from  any decisions under the Act. As Trooper S was charged with offences under the Act1 and the jurisdiction of the Court Martial is conferred by that Act2 these were proceedings under the Act.    Subpart  three of part  five of the Criminal  Procedure Act  2011 includes the power to suppress the identity of witnesses3 and the power to suppress

evidence and submissions made in any proceeding in respect of an offence.4

1      Armed Forces Discipline Act 1971, ss 39(a), 57(1)(a) and 59(a).

2      Section 78.

3      Criminal Procedure Act 2011, s 202.

4      Section 205.

[4]      The person who seeks suppression was a witness in the proceeding.  He seeks suppression because he is concerned that publication of those parts of our judgment which deal with his involvement will unfairly prejudice a fair trial on the charges which he now faces.  This is because our judgment refers to evidence given in a voir dire which counsel for the witness submits will be inadmissible in respect of the present charges which the witness now faces (because the witness was not given a warning  that  he  had  the  right  not  to  incriminate  himself  before  he  gave  that evidence).   It is also because our judgment expresses a view about what occurred which could be construed as critical of the witness’s conduct.   Counsel for the witness submits that the disciplinary officer who will hear the charges will inevitably be influenced by those matters and that this will prejudice the witness’s right to a fair trial on those charges.  Counsel submits that the suppression imposes no risk as far as his  employer  is  concerned  (the  employer  is  aware  of  the  charges)  and  the suppression would be on an interim basis only, pending the resolution of the charges.

[5]      Fairfax opposes the suppression.  It emphasises that the starting point is open justice.  It submits that if the Court accepts the submission for the witness, then it is accepting that the disciplinary officer(s) who will hear the charges are incapable of exercising their judicial duties appropriately.  It also makes the point that there is a public interest in a senior official facing charges arising out of the charges brought against Trooper S in circumstances where this Court has quashed the convictions on those charges.

[6]      Trooper S opposes the suppression.   His concern is “the integrity of the judgment” and so he opposes large redactions to it.  He is also concerned to ensure that the reason for suppression does not imply that he is the person who is facing further charges. The respondent does not oppose the suppression.

[7]      We acknowledge the importance of open justice and the public interest in the matters at issue.  We nevertheless conclude that fair trial rights must override these interests in the present case in the interim.   We consider that, even though a disciplinary officer can be expected to act appropriately, there remains a real risk that he or she will be influenced by our comments which are made on the basis of evidence which may not be admissible on the charges against the witness.  During

the telephone conference it was accepted that the witness’s name would not be suppressed in our judgment.  Rather those parts of our judgment which concern the witness would not be published in news media or on the internet or on publicly available databases until the disposition of the charges against the witness or further order of the Court.   Publication in law reports or law digests would be permitted. The respondent would ensure that the disciplinary officer would not have access to our judgment.   We consider that a non-publication order should be made in those terms

[8]      Subsequent to the telephone conference we were advised that the witness has name suppression in relation to the charges.  It is for this reason that this judgment on our suppression orders will also be subject to a non-publication order pending the disposition of the charges or further order of the Court.  If there is no further order of the Court this non-publication order will automatically lapse when those charges have been resolved.

Mallon J For the Court