Slater v Police HC Auckland CRI 2010-404-379

[2011] NZHC 772

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2010-404-379

CAMERON JOHN SLATER

Applicant

v

NEW ZEALAND POLICE

Respondent

Hearing:         8 July 2011

Appearances: G J Thwaite for Applicant

A R Burns for Respondent

Judgment:      8 July 2011

ORALJUDGMENT OF WHITE J [Leave to appeal]

Solicitors:           Crown Solicitors, PO Box 2213 Shortland Street, Auckland 1140

Gregory J Thwaite, PO Box 6239 Wellesley Street, Auckland 1141

SLATER V NZ POLICE HC AK CRI 2010-404-379 8 July 2011

[1]      Mr Slater was convicted in the District Court at Auckland on 14 September

2010 on eight charges of breaching name publication prohibition orders made by the District Court under s 140 of the Criminal Justice Act 1985 and one charge of breaching a name publication prohibition imposed by s 139 of the Criminal Justice Act 1985.

[2]      Mr Slater appealed to the High Court against both his convictions and his sentences.  In a judgment delivered on 10 May 2011 I dismissed his appeals.

[3]      Mr Slater has now applied to the High Court under s 144(2) of the Summary Proceedings Act 1957 for leave to appeal to the Court of Appeal on the grounds that the following “issues of law” justified an appeal “in the public interest”:

(a)       the admissibility of evidence;

(b)      the  validity  of  the  individual  “suppression  orders”  in  the  District

Court;

(c)       the nature of a “report” or “account”;

(d)      the status of a person who has been acquitted.

[4]      As the application for leave to appeal was filed on 8 June 2011 some eight days out of time, Mr Slater also applied for an extension of time for filing the application for leave.

[5]      The Crown takes no issue with the delay in the application and accepts that the four issues raised by Mr Slater are “questions of law”, but otherwise opposes the application for leave.

[6]      Leave is granted to Mr Slater to file the application for leave to appeal out of time.

[7]      There is no dispute that the application is to be determined under s 144(2) of the Summary Proceedings Act 1957 and in accordance with the decision of the Court

of Appeal in R v Slater.1    Leave to appeal to the Court of Appeal may be granted when:

(a)       there is a question of law involved in the appeal;

(b)the question of law is one which, by reason of its general or public importance or for any other reason, ought to be submitted to the Court of Appeal; and

(c)       the Court is of the opinion that it ought to be so submitted.

[8]      Whether a question of law is of “general or public importance” will depend on the circumstances of the particular case and not on the application of a precise definition as to when the criteria are satisfied.  Cases show that the criteria may be met in the criminal law context when important issues relating to the interpretation of legislation or the application of the New Zealand Bill of Rights Act 1990 arise. On the other hand, the criteria are unlikely to be met where:

(a)       the law said to be in dispute is sufficiently clear and settled; or

(b)      there are insufficient prospects of success.2

[9]      In order to clarify the questions of law in the present case I issued a minute to counsel before the hearing today suggesting how the questions might be formulated. After hearing further from counsel, it has been agreed that the questions of law raised in the application for leave to appeal should read:

Question 1      Whether the Police evidence adduced in support of the charges at the District  Court  hearing  was  inadmissible  under  s  7(1)(b)  of  the Evidence Act 2006 because it was excluded by necessary implication under the provisions of ss 140 and 139 of the Criminal Justice Act

1985;

1 R v Slater [1997] 1 NZLR 211.

2 R v Mitchell CA 68/04, 23 August 2004 at [6].

Question 2      Whether the information or material posted by the applicant on his Whaleoil blog constituted the publication of a “report or account” in breach of ss 140(1) and 139(1) of the Criminal Justice Act 1985;

Question 3      The  non-publication  orders  the  subject  of  the  charges  against  the applicant were invalid because:

(a)       they   all   described   the   prohibition   on   publication   as   a suppression order; and/or

(b)in two instances they constituted interim orders of undefined scope; and/or

(c)       in  one  instance  the  order  was  made  on  allegedly  “clearly improper grounds”; and/or

(d)in one instance the order applied to a person who had been acquitted.

[10]     In response to a reference in my minute to the decision of the Court of Appeal in Manikpersadh v R,3 Mr Thwaite has, by way of memorandum dated 7 July 2011, also proposed that leave be granted to raise the following further questions of law:

Question 4      The locus of publication (although not argued in the High Court: cf judgment of 10 May 2011 at [6]).

Question 5      In view of the conceptual location of ss 139 and 140 of the Criminal Justice Act 1985 between a right to freedom of expression (s 14 of the New Zealand Bill of Rights Act 1990),  and a right to a fair trial (s 25(a)):

(a)       whether on their terms ss 139 and 140 are valid;

(b)      whether in operation ss 139 and 140 are valid, in the light of

Hansen v R;4 and

(c)       what  level  of  reasoned  justification  and  what  degree  of specificity is required in an order under ss 139 and 140.

Question 6      What  duty  a  court  has  in  terms  of Article  2  of  the  International Covenant  on  Civil  and  Political  Rights  to  provide a remedy in  a criminal context where an order should not have been made, whether by way of:

(a)       a declaration; and/or

(b)       the exercise of a discretion as to conviction; and/or

(c)       the exercise of a discretion as to sentence, in light of s 107 of the Sentencing Act 2002.

[11]     For the Crown, Mr Burns opposed the application for leave in respect of these further questions.   He pointed out that the decision in Manikpersadh v R involved a case where the particular issue formulated for the first time by the Court of Appeal had not been raised in the High Court, whereas in this case Mr Slater had raised and not pursued questions 4 and 5.

[12]     The  principal  issue  here  is  whether  any  of  these  questions  ought  to  be submitted to the Court of Appeal because they are of general or public importance or for any other reason.  Before considering this issue in relation to each of the specific questions of law separately, it is necessary to mention at the outset a general submission  made  for  Mr Slater  by  Mr  Thwaite  that  because  the  case  concerns “a matter of constitutional importance” there should be a low threshold for allowing an appeal, particularly in light of the obligation assumed by the Government of New Zealand to advance rights under the International Covenant and the absence of a separate constitutional court to adjudicate matters of constitutional law involving the

court structure.   Mr Thwaite also referred to the “legal environment” for the prosecution, including pending new legislation as to court orders preventing publication  as  foreshadowed  by  the  report  of  the  Law  Commission,  the  recent decision of the Supreme Court in Morse v Police,5 concerning freedom of expression in the context of the criminal law, and the recent decision of the European Court of Human Rights in Mosley v The United Kingdom,6  concerning the right of privacy vis-à-vis the right of freedom of expression.

[13]     As indicated in my judgment of 10 May 2011 at [45]-[47] and [50]-[52], I recognise that the case has arisen in the context of freedom of expression and fair trial rights and that the current law relating to name suppression orders is the subject of a Law Commission report and reform measures before Parliament.   I have also confirmed Mr Slater’s rights to express his strongly-held opinions against name suppression orders on his Whaleoil blog site and to participate in the law reform debate, but the issue is whether he was entitled to go further and include information on his blog site which appeared to be subject to non-publication court orders or a statutory prohibition on publication.

[14]     At the hearing today Mr Thwaite confirmed that he accepted these points.

[15]     The questions of law raised by Mr Slater in the present case are principally questions of statutory interpretation to be answered on the basis of accepted principles.  There is therefore no reason why the question of leave to appeal should be considered on any basis other than that required by s 144(2) of the Summary Proceedings Act 1957 and the decision of the Court of Appeal in R v Slater.  As the Court of Appeal pointed out in R v Slater at 215, the question whether a point of law raises a question of general or public importance is not to be diluted.

[16]     I therefore turn to consider each of the questions of law separately to see whether they are of general or public importance.

5 Morse v Police [2011] NZSC 45.

6 Mosley v The United Kingdom (48009/08), Section IV, ECHR,10 May 2011.

Question 1: admissibility of evidence

[17]     The first question of law is:

Whether the Police evidence adduced in support of the charges at the District Court hearing was inadmissible under s 7(1)(b) of the Evidence Act 2006 because it was excluded by necessary implication under the provisions of ss 140 and 139 of the Criminal Justice Act 1985.

[18]     For Mr Slater, Mr Thwaite submitted that this issue concerns the proper interpretation of the Evidence Act.   The question is whether there is to be  any implied exceptions to a prohibition order, to allow the state to enforce the prohibition order. The issue ties in with the issue of what constitutes a “report” or “account”.

[19]     Mr Thwaite confirmed that his position remained as set out in [55] of my judgment of 10 May 2011, namely that there was no authority to support his interpretation of s 7(1)(b) of the Evidence Act 2006 and that if his interpretation were correct it would be difficult to prosecute anyone successfully for breach of ss 139 and 140 of the Criminal Justice Act 1985.

[20]     In  my  view,  therefore,  the  law  is  sufficiently  clear  and  settled  and  this question of law has insufficient prospects of success.  It is not a question of general or public importance or one which for any other reason ought to be submitted to the Court of Appeal.  Leave to appeal in relation to this question is therefore declined.

Question 2: the nature of a “report” or “account”

[21]     This question of law is:

Whether the information or material posted by the applicant on his Whaleoil

blog constituted the publication of a “report or account” in breach of ss

140(1) and 139(1) of the Criminal Justice Act 1985.

[22]     For Mr Slater, Mr Thwaite submitted that this issue concerns the nature of the activity that attracts criminal sanction.  The Court of Appeal has recognised that at one end discussion among citizens may not be covered by the statute.  At the other end, traditional media are covered.  The traditional media have a right of audience before the courts in respect to a prohibition order and is likely to continue to have

one.  A blogger has no such recognised right.   This issue raises concerns of three types:

(a)       What is the proper meaning of the word in the normal context?

(b)What meaning should be attributed in the context of freedom of expression?

(c)      Should a particular interpretation be adopted that reflects the ability of the traditional media to challenge an order, which a blogger cannot do?

The last involves a question of equal treatment as between traditional media and bloggers, if both face the same sanction, but only one has the power to attempt to avert the sanction.

[23]     I accept that the distinction which Mr Thwaite seeks to draw between the traditional media and other persons publishing material on the internet and websites does involve an important question of law relating to the interpretation of ss 139 and

140 of the Criminal Justice Act 1985.  I also note that in the context of this question Mr Slater may seek to raise with the Court of Appeal aspects of the wider issues relating to “publication” on the internet or a website and the New Zealand Bill of Rights Act 1990 referred to in Questions 4 and 5 as well as the decision of the High Court of Australia in Hogan v Hinch7 which Mr Thwaite referred to in argument. As Mr Burns acknowledged, if clarification of the law on this issue is required, then it would be a matter of public importance for the Court of Appeal to consider.  While I express no view on the merits of the appeal in relation to Question 2, I am not

prepared to say that Mr Slater’s prospects of success are necessarily “insufficient” on this question.   This question of law therefore is a question of general or public

importance in respect of which leave to appeal should be granted.

7 Hogan v Hinch [2011] HCA 4 at [29], [37] and [38].

Question 3: the validity of the original District Court suppression orders

[24]     The questions of law are:

Whether the non-publication orders the subject of the charges against the applicant were invalid because:

(a)       they all described the prohibition on publication as a suppression order; and/or

(b)      in two instances they constituted interim orders of undefined scope;

and/or

(c)       in one instance the order was made on allegedly “clearly improper grounds”; and/or

(d)      in one instance the order applied to a person who had been acquitted.

[25]    For Mr Slater, Mr Thwaite submitted that this issue concerns a central requirement of criminal law, which is certainty of prohibition: Morse v Police at [12] and R v Sanders.8  The alleged deficiencies of the orders cover:

(a)       The  use  of  general  language  (the  words  “suppression  order”)  to describe the prohibition.

(b)      The use of an interim order with undefined scope.

(c)       The validity of an order made on “clearly improper” grounds.

(d)      The application of the orders to persons who have been acquitted.

[26]     Each of the points raised in this question involves, however, a challenge to the validity of the original District Court suppression order.   This is effectively a collateral challenge to those orders which Mr Slater seeks to pursue in the absence of the persons whose names were suppressed.   As pointed out in my judgment of

10 May 2011 at [85], the original orders remain valid unless and until declared invalid in appropriate proceedings.  I refer also to the recent decision of a Full Court of the High Court in Solicitor-General of New Zealand v Seimer9  where a similar

conclusion was reached in relation to an alleged breach of a suppression order made

8 R v Sanders [1994] 3 NZLR 450 (CA) at 467.

9 Solicitor-General of New Zealand v Seimer HC Wellington CIV 2010-404-8559, 4 July 2011, at

[39]-[43].

by the High Court in its inherent jurisdiction.  Mr Slater’s case is not an appropriate proceeding for the purpose of challenging the validity of the original suppression orders in the District Court.  Leave to appeal should be declined on this ground.

[27]     In addition, the specific points raised by Mr Slater in his application for leave to appeal do not relate to questions in respect of which it can be said that the law is not sufficiently clear and settled or that they have sufficient prospects of success:

(a) The use of the shorthand expression “suppression order” is so well established that there is no sufficient prospect of it being considered invalid: cf judgment of 10 May 2011 at [81].

(b)The use of the expression “interim order” is also so well established that there is no sufficient prospect of the absence of a specific date invalidating the order: cf judgment at [83]-[84].

(c) The application of a suppression order to a person who has been acquitted is so well established that it would not invalidate the order: cf judgment at [82].

Questions 4 and 5

[28]     The proposed further questions of law are:

Question 4      The locus of publication (although not argued in the High Court: cf judgment of 10 May 2011 at [6]).

Question 5      In view of the conceptual location of ss 139 and 140 of the Criminal Justice Act 1985 between a right to freedom of expression (s 14 of the New Zealand Bill of Rights Act 1990), and a right to a fair trial (s 25(a)):

(a)       whether on their terms ss 139 and 140 are valid;

(b)      whether in operation ss 139 and 140 are valid, in the light of

Hansen v R;10 and

(c)       what  level  of  reasoned  justification  and  what  degree  of specificity is required in an order under ss 139 and 140.

[29]     As I have already noted, Mr Slater may seek to raise with the Court of Appeal aspects of those questions in the context of Question 2.  I do not consider that leave should be granted separately in respect of these questions, especially as Mr Thwaite disavowed any reliance on the following issues at the hearing of the appeal before me and there are no special reasons why they should be raised now:

(a)       whether the information or material posted by the applicant on his

Whaleoil blog was published in New Zealand: cf my judgment of

10 May 2011 at [6]; and

(b)whether ss 139 and 140 of the Criminal Justice Act 1985 were inconsistent with ss 14 and 25(a) of the New Zealand Bill of Rights Act 1990: cf my judgment of 10 May 2011 at [47].

[30]     Furthermore, I do not see any basis for a question of law relating to the

suggested “validity” or “invalidity” of ss 139 and 140 of the Criminal Justice Act

1985: cf s 4 of the New Zealand Bill of Rights Act 1990 and Hansen v R.

Question 6

[31]     The proposed question of law is:

Question 6      What  duty  a  court  has  in  terms  of Article  2  of  the  International Covenant  on  Civil  and  Political  Rights  to  provide a remedy in  a criminal context where an order should not have been made, whether

by way of:

10 Hansen v R [2007] 3 NZLR 1 (SC).

(a)       a declaration; and/or

(b)       the exercise of a discretion as to conviction; and/or

(c)       the exercise of a discretion as to sentence, in light of s 107 of the Sentencing Act 2002.

[32]     I agree with Mr Burns that this question goes beyond the proper parameters of an appeal by leave under s 144(2) of the Summary Proceedings Act 1957.  I do not consider that this question has sufficient prospects of success even in the context of this case.   It therefore does not raise a question of law of general or public importance.

[33]     To the extent that this question seeks to enable Mr Slater to appeal against the sentences  imposed on him,  I note that  such an  appeal would be  limited to the circumstances of his case and would not therefore raise a question of law of general or public importance.

[34]     Leave should therefore not be granted in respect of this question.

Result

[35]     For  the  reasons  given  the  application  for  leave  to  appeal  in  respect  of question 2 is granted, but the application in respect of questions 1, 3, 4, 5 and 6 is

declined.

D J White J