Standfast v The Queen
[2019] NZCA 666
•19 December 2019 at 10 am
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA536/2019 [2019] NZCA 666 |
| BETWEEN | JUST STANDFAST |
| AND | THE QUEEN |
| Hearing: | 11 November 2019 |
Court: | Courtney, Brewer and Gendall JJ |
Counsel: | M Zintl for Appellant |
Judgment: | 19 December 2019 at 10 am |
JUDGMENT OF THE COURT
AThe application for leave to bring a second appeal is granted.
BThe application to adduce further evidence is declined.
CThe appeal is dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by Gendall J)
Introduction
Just Standfast is a member of the Gloriavale Christian Community (Gloriavale). In November 2018 he pleaded guilty to one charge of sexual conduct with a child under 12 years.[1] On sentencing Mr Standfast, Judge Neave suppressed his identity pending disposition of sexual charges against another member of Gloriavale, AB.[2] After AB’s trial was aborted, Mr Standfast applied for an order continuing suppression of his name pending any retrial. Judge Kellar refused that application.[3]
[1]Crimes Act 1961, s 132(3).
[2]R v Standfast [2019] NZDC 4648 [Sentencing notes] at [46].
[3]Christian v R [2019] NZDC 14897 [Suppression notes] at [49(c)].
Mr Standfast appealed unsuccessfully.[4] He applies for leave to bring a second appeal on the ground that Doogue J erred in concluding that publication of his name and his connection to Gloriavale would not create a real risk of prejudice to AB’ fair trial rights.[5]
[4]Standfast v R [2019] NZHC 2538 [High Court judgment] at [44].
[5]Criminal Procedure Act 2011, s 289(2)(b).
Leave for a second appeal must not be given unless this Court is satisfied that:[6]
(a)the appeal involves a matter of general or public importance; or
(b)a miscarriage of justice may have occurred or may occur unless the appeal is heard.
[6]Section 289(2).
Mr Standfast’s application rests on the risk of a miscarriage of justice.
For leave to be granted for a second appeal there must be an argument reasonably available that the Court below is in error, although not every error will give rise to a miscarriage of justice.[7] In Robertson v Police this Court declined to identify any guiding principles for the application of the miscarriage of justice test in the context of name suppression.[8] The Court considered the assessment was likely to be fact specific and may, in any event, be best left to judges in individual cases.[9] More recently, in Leef v Police, this Court summarised its assessment in Robertson (in relation to the granting of leave) as focused on “the identification of errors that might have genuinely impacted the outcome”.[10]
[7]McAllister v R [2014] NZCA 175, [2014] 2 NZLR 764 at [37]–[38].
[8]Robertson v Police [2015] NZCA 7.
[9]At [57].
[10]Leef v Police [2019] NZCA 467 at [17].
For the reasons that follow, we are satisfied that errors made in the lower Court justify the grant of leave.
Application to adduce fresh evidence
In the High Court Mr Standfast had applied to adduce further evidence in support of his appeal against the decision allowing publication of his name and the location of his offending. The Judge refused that application.[11] There is no challenge to that aspect of the High Court decision but Mr Standfast has renewed his application in this Court to adduce the same evidence.
[11]High Court judgment, above n 4, at [16].
The evidence was in the form of an affidavit by AB regarding his concern about the potential effect on his fair trial rights of publishing Mr Standfast’s name and a second affidavit by an office administrator employed by Mr Standfast’s counsel, Ms Saavedra, describing the results of an internet search on Gloriavale. Her search had produced what the Judge described as “merely a snapshot” of the hundreds of thousands of documents to be found on the internet relating to Gloriavale, mostly in negative terms.[12]
[12]At [15].
The Judge had refused to allow either affidavit to be adduced on the ground that the evidence was not fresh and was substantially submission.[13] We take the same view. The material could, clearly, have been adduced at the hearing before Judge Kellar so is not fresh.[14] Nor does it add to Mr Standfast’s case so as to require it to be adduced in the interests of justice. It is common ground that there is extensive material available on the interest containing negative information and comment about Gloriavale. It is unnecessary for further examples of this material to be adduced in order to determine the issues arising before us.
[13]At [14].
[14]For discussion of the principles governing the admission of new evidence, see Lundy v R [2013] UKPC 28, [2014] 2 NZLR 273 at [120].
The application to adduce further evidence is therefore declined.
Interim suppression under s 200 of the Criminal Procedure Act 2011
Suppression of Mr Standfast’s name is, and has only ever been, sought on an interim basis pending disposition of the charges against AB for the purposes of protecting AB’s fair trial rights.
Section 200(4) of the Criminal Procedure Act 2011 (CPA) permits an interim order to be made if there is an arguable case that one of the grounds set out in s 200(2) applies. But an interim order made under s 200(4) expires at the person’s next court appearance and may only be renewed if the court is satisfied that one of the grounds in subs (2) applies.
200 Court may suppress identity of defendant
(1) A court may make an order forbidding publication of the name, address, or occupation of a person who is charged with, or convicted or acquitted of, an offence.
(2) The court may make an order under subsection (1) only if the court is satisfied that publication would be likely to—
(a) cause extreme hardship to the person charged with, or convicted of, or acquitted of the offence, or any person connected with that person; or
(b) cast suspicion on another person that may cause undue hardship to that person; or
(c) cause undue hardship to any victim of the offence; or
(d) create a real risk of prejudice to a fair trial; or
(e) endanger the safety of any person; or
(f) lead to the identification of another person whose name is suppressed by order or by law; or
(g) prejudice the maintenance of the law, including the prevention, investigation, and detection of offences; or
(h) prejudice the security or defence of New Zealand.
(3) The fact that a defendant is well known does not, of itself, mean that publication of his or her name will result in extreme hardship for the purposes of subsection (2) (a).
(4) Despite subsection (2), when a person who is charged with an offence first appears before the court the court may make an interim order under subsection (1) if that person advances an arguable case that one of the grounds in subsection (2) applies.
(5) An interim order made in accordance with subsection (4) expires at the person’s next court appearance, and may only be renewed if the court is satisfied that one of the grounds in subsection (2) applies.
(6) When determining whether to make an order or further order under subsection (1) that is to have effect permanently, a court must take into account any views of a victim of the offence conveyed in accordance with section 28 of the Victims’ Rights Act 2002.
As noted, the ground relied on in this case is s 200(2)(d), being a real risk of prejudice to the fair trial rights of AB.[15] If there is demonstrated a real risk of prejudice to fair trial rights under s 200(2)(d), the right to a fair trial trumps other considerations to be weighed in connection with name suppression.[16] In considering the application of s 200(2)(d), it is relevant to bear in mind that fair trial rights are not merely a private benefit accruing to a particular person but are crucial to the integrity of the criminal justice system generally.[17]
The District Court’s refusal to continue name suppression
The District Court decision
[15]It was accepted that s 200(2)(d) could apply to the fair trial rights of a person other than the person seeking name suppression.
[16]MS (CA405/2016) v R [2016] NZCA 544 at [9].
[17]R v Burns (Travis) [2002] 1 NZLR 402 (CA) at [10]; and Siemer v Solicitor General [2013] NZSC 68, [2013] 3 NZLR 441 at [18]–[20] and [156].
Judge Kellar dealt with Mr Standfast’s application to continue name suppression together with an application for permanent name suppression by a former Gloriavale member, XY, who had been sentenced in May 2019 for sexual offending against his daughter while at Gloriavale.[18] XY’s name and the fact that the offending had occurred at Gloriavale had also been suppressed on an interim basis.[19]
[18]Suppression notes, above n 3.
[19]At [1].
The interim orders relating to Mr Standfast and XY were both made with the support of the Crown to protect AB’s fair trial rights.[20] The Crown supported continued interim name suppression for Mr Standfast and permanent name suppression for XY (for reasons relating to the victim of that offending).[21] It also supported suppression of the fact that both sets of offending occurred within Gloriavale.
[20]At [25].
[21]At [16] and [25].
The media opposed the applications.[22]
[22]At [26].
The application to renew the interim suppression order relating to Mr Standfast fell to be determined by reference to s 200(5) and consequently s 200(2)(d) — that is, whether the court was satisfied that that there was a real risk of prejudice to a fair trial. The Judge held that this threshold was not met because he was not satisfied that publication of Mr Standfast’s identity and the Gloriavale connection would be likely to create a real risk of prejudice to a fair trial for AB given that:[23]
(a)there is already considerable material in the public domain about sexual offending at Gloriavale;
(b)it would be many months before a third trial for AB was reached, if indeed there was to be one;
(c)any possible prejudice could be met by take-down orders, although the efficacy of those may be limited; and
(d)from his own observations of empanelling the jury in the earlier AB trial, he noted that Gloriavale matters are very well known in the West Coast.
[23]At [47].
Judge Kellar:[24]
(a)ordered permanent suppression of XY’s name and any identification of the relationship between XY and his daughter, the victim;[25]
(b)declined to suppress publication that XY’s offending occurred within Gloriavale and by a former member;
(c)declined to suppress publication of Mr Standfast’s name;
(d)declined to suppress publication of the fact that Mr Standfast’s offending occurred within Gloriavale;
(e)ordered continued interim name suppression of AB; and
(f)ordered continued interim suppression of the fact the alleged offending committed by AB occurred within Gloriavale.
Events following the District Court decision
[24]At [49].
[25]See also [46].
On 1 August 2019, counsel who acted for XY informed the District Court that the order permitting publication of the fact that XY’s offending occurred within Gloriavale would not be appealed.
Following this, and on that same day, the media, as they were entitled to do, reported XY’s offending online. The article detailed that the incidents of sexual offending committed by XY occurred within Gloriavale. At the foot of this article reference was also made to a West Coast teacher who indecently touched and exposed himself to a nine-year-old pupil. Although the article did not identify Mr Standfast or his connection to Gloriavale, the Crown says that the connection could be drawn, given it was included within the main story detailing the offending by XY.
The High Court appeal
Mr Standfast advanced his appeal on the ground that, contrary to the view of the District Court Judge, there existed a real risk of prejudice to AB’s fair trial rights as a result of the similarities between his own offending and the alleged offending by AB (both involving a young person and occurring within Gloriavale) and the risk of jurors seeing contemporaneous reporting about the community or searching for such material, despite being directed not to do so.[26] In addition, prejudice to AB’s fair trial rights could not be cured by take-down orders in relation to historical publications.[27]
[26]High Court judgment, above n 4, at [22]–[24].
[27]At [25].
The Crown adopted a neutral position but noted that XY’s decision not to appeal publication relating to his offending identifying Gloriavale meant that details of this recent sexual offending within Gloriavale had been published online and so were in the public domain.[28] As a result, any potential prejudice and/or potential impact on AB’s fair trial rights relating to the connection between his alleged sexual offending and the fact that other sexual offending had taken place within Gloriavale, may have already occurred. The Crown noted, too, the widespread (albeit historical) media coverage of the prosecution of Gloriavale’s founder, Hopeful Christian, for sexual offending at Gloriavale. The Crown identified the factors to be weighed: the principle of open justice; the fact that there had been recent publication of sexual offending within Gloriavale; and the need to protect AB’s fair trial rights (it confirmed that there was to be a third trial).
[28]At [27].
Doogue J did not accept that either the significant negative publicity about Gloriavale or the similarity of Mr Standfast’s offending and the alleged offending by AB created a real risk that AB’s fair trial rights would be prejudiced.[29] In doing so she relied on the decisions of the High Court and this Court of Appeal in Ready v Police.[30] Ready involved an unsuccessful application for name suppression by a Gloriavale member convicted of assaulting two of his children. His application had been made for the purposes of protecting the fair trial rights of Mr Standfast (who at the time had not yet been convicted) and AB. Dismissing Mr Ready’s appeal, this Court said:[31]
We accept that there is a close and critical media interest in Gloriavale. Much of the existing publicity about it, including articles on the day of the hearing before us about the circumstances of Prayer’s death, is sharply critical of Gloriavale. But as the Judge found, publicity about Mr Ready’s offending is not likely to cause a prospective juror to think a different Gloriavale defendant is guilty of quite different offending. In our opinion any risk of that is readily capable of being managed by directions in which the trial Judge will have to give in any event.
[29]At [38]–[40].
[30]Ready v Police [2018] NZHC 1445 and Ready v R [2018] NZCA 458.
[31]Ready v R, above n 30, at [9].
Doogue J considered that the same reasons applied to Mr Standfast’s circumstances, saying that:[32]
[41] …I do not consider it material that the appellant in Ready was convicted of a different type of offence to that committed by Mr Standfast and those alleged to have been committed by [AB]. Dunningham J’s reasoning remains applicable. Potential jurors are no more likely to be prejudiced against a member of Gloriavale charged with an offence similar to that for which another member of Gloriavale has already been convicted, than if the offences were different. Jurors will have the benefit of hearing and weighing up all the evidence before them and will receive guidance on their role from the trial Judge.
[32]High Court judgment, above n 4.
Summarising her other reasons for dismissing the appeal, the Judge said:
[40] … The force of Mr Standfast’s appeal is based not on the potential impact that publicity of his name and offending could have on [AB’s] fair trial rights, but rather the mere existence of publicly-available adverse publicity about Gloriavale.
…
[42] … Because references to Mr Standfast’s offending (but not identity) have been made in the course of reporting on the offending of the former Gloriavale member convicted of sexual offending, continued suppression of Mr Standfast’s name could create speculation as to the identity of that offender. This may have a greater prejudicial effect on [AB’s] fair trial rights that if the media were permitted to publish Mr Standfast’s identity.
[43] In this situation I am of the view that, as with more general prejudice, any specific prejudice to [AB’s] fair trial rights that may arise from existing publicity about Gloriavale can be addressed by judicial directions. That is the conventional course taken by the courts when a defendant is associated with a controversial group or groups and there is no evidence before me to suggest that it is not the appropriate course in this instance. Further, I agree with [counsel for the media] that takedown orders remain a possibility in respect of specific publicity that may be prejudicial.
Appeal
Mr Zintl, for Mr Standfast, submitted that s 200(2)(d) does not create a high threshold but simply requires an appellant to show that publication would be likely to create a real risk of prejudice to a fair trial. He argued that the Judge had erred in her assessment that the threshold ground in s 200(2)(d) was not satisfied by placing insufficient emphasis on the likelihood, nature and impact of future publicity to the fair trial rights of AB if the suppression orders concerning Mr Standfast were lifted.
Mr Zintl considered that the prejudice to AB would arise primarily from the similarity of the charges against him and the nature of Mr Standfast’s offending. He identified the fact that both were members of Gloriavale and in positions of power or control (Mr Standfast being a teacher and AB a youth group leader), that Mr Standfast’s offending and the alleged offending by AB occurred at Gloriavale, and that the complainants in both cases were young female members of Gloriavale. The Judge had referred to most of these similarities. But Mr Zintl argued that the Judge placed inadequate weight on these similarities as a result of her reliance on Ready, in which the different nature of the offending was at the heart of this Court’s decision to dismiss the appeals.
We agree that Ready is distinguishable because Mr Ready’s offending was very different to the (then alleged) offending by Mr Standfast and it was that fact that was critical to the decision to refuse name suppression. In our view there must be a risk that a jury’s view of AB would be affected by the knowledge that another Gloriavale member had recently pleaded guilty to similar offending. We therefore think that the Judge erred in concluding that potential jurors are no more likely to be prejudiced against a member of Gloriavale charged with offences that are similar to those committed by another, than if the offences were different.
We turn, then, to the Judge’s assessment that the existing publications on the internet about Gloriavale (including Mr Standfast’s and XY’s offending) mean that publication of Mr Standfast’s name would not be likely to create a risk of prejudice to AB’s fair trial rights and that any risk would be addressed by the trial judge’s directions. Mr Stewart, for the media interests, supported this reasoning. He pointed out that AB’s trial is still months away, there is substantial information about Gloriavale already in the public domain and jurors can be relied on to comply with directions, including not to search the internet.
Mr Zintl acknowledged that a significant amount of negative and prejudicial coverage about Gloriavale is already in the public domain. However, he submitted that this fact, and even the fact that the suppression order may already have been breached by the reporting of Mr Standfast’s offending when reporting on XY, does not exclude or diminish the potential impact of further prejudice to AB’s fair trial rights. Mr Zintl relied on the statements in Solicitor-General v W & H Specialist Publications Ltd in relation to future publication when there has already been pre-trial publication:[33]
[29] Where there has already been extensive pretrial publicity, which may in itself have created a risk of prejudice, a further publication may nevertheless create further risk by reviving the prejudice or otherwise reinforcing it…
[30] Whether there is a real risk in the particular case depends upon all the circumstances, the most important of which are the impact of the publication and the timing in relation to trial. Dissipation of effect (and therefore the reality of risk) is a factor of both timing and impact. For that reason, it is not possible to develop a rule of thumb that the distance of a fixed period from publication will prevent the risk of prejudice remaining real. The assessment of real risk is inevitably a judgment which is specific to the facts of the particular case.
[33]Solicitor-General v W & H Specialist Publications Ltd [2003] 3 NZLR 12 (HC).
Mr Zintl also cited, by way of example, M v Police in which this Court allowed a second appeal against the refusal to grant interim name suppression pending trial where the appellant had been the subject of widespread negative publicity and would subjected to more upon the expected release of a coroner’s report.[34] The Court considered that:
[16] If there were no risk of enhanced publicity through the release of the coroner’s findings, we would have had no difficulty in agreeing with the views reached in the District Court and High Court. There has already been extensive publicity, adverse to the appellant, over the death of the twins and the publication of her name in relation to the pending charges would simply have to be managed. But when the coroner’s findings are released there will undoubtedly be extensive media publicity throughout the country. …
[17] If we were to lift the suppression order now, the publicity she would receive upon the release of the coroner’s findings would be likely to be significantly enhanced by the revelation of the charges pending against the appellant. In the public’s mind, there would an obvious linkage made between those charges and her role…. The publicity is most likely to be adverse to the appellant and will make it more difficult for potential jurors to be impartial.
[34]M (CA43/2012) v Police [2012] NZCA 135.
Mr Zintl described the media interest in the community as unprecedented and the publication of stories about the community and its members as fanatical. He foresaw that if the Mr Standfast’s name were no longer suppressed there would be a “media frenzy of epic proportions containing prejudicial articles or news stories on Mr Standfast, the details of the offending and the connection to Gloraivale”. This would potentially revive and reinforce the earlier prejudicial reporting and risk tainting the jury pool.
The Judge’s consideration of whether the s 200(2)(d) threshold was met was directed towards the effect of the existing adverse publicity about Gloriavale. She did not consider the effect that publication of new information about Mr Standfast might have in terms of reinforcing the prejudicial effect of the existing coverage. This was an error, though it does not mean that the result was wrong. We therefore consider the matter afresh.
As we have already discussed, AB’s fair trial rights must prevail over the principle of open justice if publication would create a real risk of prejudice to those rights. We start by noting again the fact that there is a substantial amount of prejudicial material about Gloriavale generally in the public domain. This includes, specifically, details of previous sexual offending that has occurred within the community. This publicity is capable of having a prejudicial effect on AB when he stands trial, whether or not Mr Standfast’s name is published. It is accepted that judicial directions to the jury will be able to address that risk. The issue here is the risk that the inevitable prejudice caused by existing publicity will be reinforced or intensified by the publication of about Mr Standfast’s offending and whether that additional effect is likely to create a real risk to AB’s fair trial rights that cannot be adequately addressed by the trial judge’s directions.
In our judgment, the effect of the publicity that will arise from publication of Mr Standfast’s name can be adequately addressed by directions from the trial judge. When considering the adequacy of jury directions to combat the prejudicial effect of the material, we take into account the fact this issue arises regularly as a result of defendants’ associations with other groups that attract negative publicity. These include, for example, gangs and other religious groups. Trial judges are cognisant of the potential risks to the fairness of trial and accustomed to tailoring jury directions to ensure that individuals receive a fair trial. Jurors in cases such as this must be trusted to obey proper judicial directions.[35]
[35]Lyttelton v R [2015] NZCA 279, [2016] 2 NZLR 21 at [66].
Jurors for AB’s retrial will be drawn generally from the West Coast community that has lived close to Gloriavale for some time. They will be directed regarding the information already in the public domain and the need to focus solely on the evidence against AB adduced in the trial. We do not consider that the addition of Mr Standfast’s offending to the body of information already available publicly is likely to cause such additional prejudice that the effect could not be adequately addressed by tailored directions from the trial judge.
We therefore conclude that, although the Judge made errors in her assessment of whether the s 200(2)(d) threshold had been met, the outcome was nevertheless correct.
Result
The application for leave to bring a second appeal is granted.
The application to adduce further evidence is declined.
The appeal is dismissed.
Solicitors:
Crown Solicitor, Christchurch for Respondent
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