Standfast v The Queen
[2019] NZHC 2539
•7 October 2019
NOTE: SUPPRESSION ORDERS EXIST IN RELATION TO ASPECTS OF THIS JUDGMENT PURSUANT TO A DECISION OF THE DISTRICT COURT:
SEE PARAGRAPHS [8] and [9].
ORDER PROHIBITING PUBLICATION OF NAME(S), ADDRESS(ES), OCCUPATION(S) OR IDENTIFYING PARTICULARS OF APPELLANT PURSUANT TO S 200 CRIMINAL PROCEDURE ACT 2011.
SEE PARAGRAPH [47].
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CRI-2019-418-000013
[2019] NZHC 2539
BETWEEN JUST STANDFAST
Appellant
AND
THE QUEEN
Respondent
Hearing: 3 October 2019 Counsel:
M Zintl for the Appellant
M McClenaghan for the Respondent R Stewart for the Media
Judgment:
7 October 2019
JUDGMENT OF DOOGUE J
Introduction
[1] The appellant, Just Standfast, is a member of the Gloriavale Christian Community (Gloriavale). On 13 March 2019, Mr Standfast, appeared before Judge Neave in the District Court at Greymouth having pleaded guilty to one charge of sexual conduct with a child under 12.1 Mr Standfast was sentenced to six months’ community
1 Crimes Act 1961, s 132(3).
JUST STANDFAST v R [2019] NZHC 2539 [7 October 2019]
detention and two years’ intensive supervision.2 Judge Neave also made an interim order suppressing Mr Standfast’s name and any reference to Gloriavale until resolution of unrelated proceedings involving Mr L, another member of that community.3
[2] Proceedings involving Mr L were twice aborted, the most recent time being on 3 July 2019 when a jury was unable to reach verdicts on the charges against him. At the end of that trial, further orders were made continuing suppression of Mr L’s name and his connection to Gloriavale pending the Crown’s decision on whether to proceed with a third trial.4 The Crown now advises it will be seeking a third trial.5 However, the interim suppression orders in respect of Mr Standfast lapsed upon the conclusion of Mr L’s second trial.
[3] On 18 July 2019, both Mr L and Mr Standfast sought continued name suppression in the District Court at Christchurch until the outcome of Mr L’s third trial. Mr Standfast’s application was made on the basis that publication of his name would create a real risk of prejudice to a fair trial for Mr L. Judge Kellar granted continued name suppression in respect of Mr L but declined to continue the interim suppression orders in respect of Mr Standfast.6
[4] Mr Standfast now appeals that decision on the ground the statutory threshold in s 200(2)(d) of the Criminal Procedure Act 2011 (the Act) was met. He also seeks leave to adduce fresh evidence on appeal.
District Court decision
[5] The continued suppression applications before Judge Kellar related to three defendants: Mr Standfast, Mr L and a former member of Gloriavale who had been convicted of sexual offending. The Judge noted the Crown largely supported the
2 R v Standfast [2019] NZDC 4648.
3 At [44]–[46].
4 These interim orders will be reviewed at callover on 6 December 2019.
5 For various reasons, however, this trial is unlikely to take place until March 2020.
6 R v C [2019] NZDC 14897 at [47].
applications, at least until disposition of any trial in respect of Mr L, though the media opposed them.7
[6] The Judge began by noting there is “significant public interest” in Gloriavale which “seems not to have waned over the years”.8 The Judge then identified the relevant law being s 200 of the Act and the two-stage inquiry under that provision, noting the starting point is the principle of open justice.9 In determining whether open justice should yield, the Judge stated the “balance should clearly favour suppression for an order to be made”.10 However, where identification of a defendant has adverse fair trial implications, the Judge noted the Court of Appeal’s observation in R v B that “fairness of trial trumps all other considerations”.11
[7] In respect of Mr Standfast’s application for continued name suppression, the Judge stated the following:
[47] I am 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 Mr L, given these matters:
(a)There is already considerable material in the public domain about Gloriavale.
(b)It will be many months into the future before a third trial for Mr L is reached, if indeed there is to be one.
(c)Any possible prejudice could be met by takedown orders although the practicality of those may be moot.
(d)I also note from my own observations of empanelling the jury in the L trial, that Gloriavale matters are very well known on the West Coast.
[8] The Judge continued Mr Standfast’s interim name suppression until 1 August 2019 for the sole purpose of giving Mr Standfast the opportunity to appeal the decision if he so wished. However, the Judge adopted a “cautious approach” in
7 At [3]–[4].
8 At [24], citing the Court of Appeal’s observations about the high level of publicity Gloriavale has attracted: Clem Ready v R [2018] NZCA 458 at [9].
9 At [31], citing R v Liddell [1995] 1 NZLR 538 (CA).
10 At [38].
11 At [35], citing R v B (CA459/06) [2008] NZCA 130, [2009] 1 NZLR 293 at [62].
respect of Mr L, suppressing his name and any identifying particulars until his discharge or disposition of his third trial.12
[9] It is also relevant to the present appeal to note that the Judge granted permanent name suppression to the former member of Gloriavale who was convicted of sexual offending.13 This was because of the impact publication was likely to have on the victim. However, the Judge did not suppress the facts of the offending itself, including the fact it occurred in Gloriavale by a former member of that community.
Application for leave to adduce fresh evidence
Legal principles
[10] In name suppression appeals, this Court has inherent jurisdiction to accept fresh evidence on the same basis as in other appeals.14 The discretion should be exercised sparingly and “only admitted where it can properly be said that the interests of justice require the admission, and the proposed evidence satisfies the principles for admission of fresh evidence.”15 The evidence should be sufficiently fresh and credible.16
Analysis
[11] Mr Zintl, for Mr Standfast, seeks to adduce two affidavits in support of Mr Standfast’s appeal: one affirmed by Mr L and another by Shamatay Saavedra, a legal office administrator employed by Mr Zintl.
[12] Mr L’s affidavit does no more than outline the apparent similarities between his alleged offending and that of Mr Standfast. Mr L then goes on to essentially make legal submissions on the potential impact on his fair trial rights if Mr Standfast’s appeal were to be dismissed and his name were to be published. In essence, Mr L says
12 At [48]–[49].
13 At [46].
14 DH v New Zealand Police [2018] NZHC 2672 at [26]; B v Housing New Zealand Corp [2016] NZHC 974 at [13]–[15]; R v Ratu [2013] NZHC 3085 at [20]–[24].
15 R v Ratu, above n 14, at [24].
16 R v Bain [2004] 1 NZLR 638 (CA), approved by Bain v R [2007] UKPC 33, (2007) 23 CRNZ 71 at [34]; Lundy v R [2013] UKPC 28, [2014] 2 NZLR 273 at [120].
that publication of Mr Standfast’s name could “contaminate” the minds of potential jurors in his third trial before they have had a chance to hear the evidence in that trial.
[13] Ms Saavedra’s affidavit details the results of internet searches undertaken over a two-hour period, including a Google search of the phrase “Gloriavale Christian Community” and the word “Gloriavale”, a Google search for books on Gloriavale, a YouTube search of the word “Gloriavale”, a Facebook search of the word “Gloriavale”, and a general media search for articles about Gloriavale. The point of Ms Saavedra’s research is to show that the “vast majority of material available on the internet about [the] Gloriavale Christian Community through Google and YouTube is significantly biased, negative and adverse”.
[14] The evidence in both affidavits is not fresh. It was available at the time of Mr Standfast’s hearing before the District Court. Evidently, it was not considered relevant enough then despite the fact the same ground under s 200 of the Act was argued before Judge Kellar. Additionally, both affidavits exceed their scope by containing either submissions or opinion evidence.
[15] In Ms Saavedra’s case, I note that her research is merely a snapshot (if it can even be called that) of the hundreds of thousands of documents on the internet pertaining to Gloriavale. By Ms Saavedra’s own admission, the search of the word “Gloriavale” came up with about 232,000 results, while the search of the phrase “Gloriavale Christian Community” came up with about 30,300 results. Ms Saavedra also found over 1,300 YouTube videos when she searched the word “Gloriavale”. Further, Ms Saavedra’s affidavit is strewn with her opinion as to the character of the results in her snapshot. While I accept, as did Judge Kellar, that there has been significant negative publicity concerning Gloriavale, it cannot be said with confidence
— let alone with the confidence in Ms Saavedra’s affidavit — that the majority of the results in Ms Saavedra’s searches share these views. Nor could it be said how such material would impact on anybody who reads or views it. Doing so would be pure speculation.
[16] In any case, the affidavits do not advance Mr Standfast’s appeal. They do not satisfy the criteria for fresh evidence on appeal, nor do the interests of justice require
their admission. For these reasons, I decline leave to adduce the affidavits of Mr L and Ms Saavedra as fresh evidence on appeal.
Relevant law
Suppression generally
[17] Section 200 of the Act gives the Court the power to suppress the identity of a defendant. Subsection (2) specifies the grounds on which it can do so. Relevantly, these grounds include where the Court is satisfied that publication would be likely to create a real risk of prejudice to a fair trial.17 In JM v R, Asher J held that "likely" in respect of creating a real risk of prejudice to a fair trial meant a "real risk" of such an outcome.18 He stated:
[33] In that context, I do not see any difficulty in “likely” meaning “real risk” in relation to s 200(2)(d), which requires publication to “create a real risk of prejudice to a fair trial” before suppression can be considered. It may seem odd at first blush that the Court must be satisfied that there is a real risk of a real risk of prejudice, but it is clear from the Law Commission’s issues paper that there was some debate about the appropriate test for suppression of evidence on the basis of prejudice to a fair trial, and that the insertion of the word “real risk” reflected the outcome of that debate.18 The insertion of the phrase reflects the importance placed on the right to a fair trial in comparison to the other specified grounds in s 200(2).
[18] Section 200 requires a two-stage analysis. In Robertson v Police, the Court of Appeal set out that analysis as follows:19
[40] At the first stage, the judge must consider whether he or she is satisfied that any of the threshold grounds listed in 200(2) has been established. That is to say, whether publication would be likely to lead to one of the outcomes listed in subs (2). The listed outcomes are prerequisites to a court having jurisdiction to suppress the name of a defendant. It is “only if” one of the threshold grounds has been established that the judge is able to go on to the second stage.
[41] At the second stage, the judge weighs the competing interests of the applicant and the public, taking into account such matters as whether the applicant has been convicted, the seriousness of the offending, the views of the victims and the public interest in knowing the character of the offender.
17 Criminal Procedure Act 2011, s 200(2)(d).
18 JM v R [2015] NZHC 426 at [33].
19 Robertson v Police [2015] NZCA 7 (footnotes omitted).
Approach on appeal
[19] In light of the two-stage analysis in Robertson, the approach on appeal will depend on which stage of the analysis is disputed by the appellant. In Austin, Nichols & Co Inc v Stichting Lodestar, the Supreme Court stated that when exercising general rights of appeal, appellants are “entitled to judgment in accordance with the opinion of the appellate court, even where that opinion is an assessment of fact and degree and entails a value judgment.”20 If the appellate court’s judgment differs from the lower court, the lower court’s decision is wrong and it would be incorrect for the appellate court to defer to it.
[20] This differs to the approach on appeal from the exercise of a discretion. There, an appellate court can only reverse a lower court’s decision where the appellate court is satisfied the decision contained an error of principle, failed to consider a relevant factor, took into account an irrelevant factor or was plainly wrong.21
[21] In H v R, Ellis J succinctly set out how these approaches apply to suppression appeals as follows:22
[23] On appeal, the Court must similarly adopt a bifurcated approach. That part of the appeal which focuses on the first stage of the analysis is to be regarded as a general appeal, whereas the second stage is to be treated as an appeal against the exercise of a discretion. In the former case, the appellate court may come to its own view on the merits. In the latter, however, an appellant must establish that the judge below has “acted on some wrong principle, taken into account an irrelevant factor, ignored a relevant factor or was plainly wrong”.
Submissions
Mr Standfast’s submissions
[22] Mr Zintl submits that this is case where there is a real risk of prejudice to the fair trial rights of Mr L if suppression of Mr Standfast’s name and identifying particulars, including his membership to Gloriavale, were lifted and publication of that information occurred.
20 Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141 at [16].
21 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 481 at [30]–[35].
22 H v R [2019] NZHC 1155.
[23] Mr Zintl refers to several similarities between the alleged offending of Mr L and the offending of Mr Standfast to support this submission, including the fact that both the offending and alleged offending were of a sexual nature involving a young person and occurred within Gloriavale. He submits that these similarities may be used by the jury in Mr L’s third trial for “impermissible propensity reasoning”.
[24] Further, Mr Zintl submits that jurors may see a contemporaneous report or search for publications on Gloriavale despite any judicial direction not to. Given the public interest in Gloriavale, he says that “any publication material on Gloriavale is likely to stick in the public consciousness”. In this regard, he submits that Judge Kellar did not appreciate the distinction between contemporaneous publications (which are “brought” to the public) and historic publications which the public must actively seek out.
[25] Mr Zintl also submits that any prejudice to Mr L’s fair trial rights cannot be cured by takedown orders in respect of historic publications concerning Gloriavale. Nor, he says, does it make sense for the Judge to have suppressed the fact Mr L’s alleged offending occurred within Gloriavale but did not do the same in respect of Mr Standfast and the former member of that community who was convicted of sexual offending.
[26] For these reasons, Mr Zintl submits that the threshold in s 200(2)(d) was met and that because “the right to a fair trial trumps all considerations and is non- negotiable”, the Court ought to exercise its discretion in favour of preserving Mr L’s fair trial rights.
The Crown’s submissions
[27] Mr McClenaghan, for the Crown, has advised the Court that the Crown “takes a neutral position to the present appeal”. This is because on 1 August 2019, the District Court Registry was advised by counsel for the former member of Gloriavale who was convicted of sexual offending that he did not wish to appeal the Judge’s decision declining to suppress the facts of his offending, including the fact it occurred in Gloriavale by a former member of that community.
[28] On that same day, the media reported that offender’s offending online. An article on the Stuff website detailed the offending and noted that it had occurred in Gloriavale. That article also referenced Mr Standfast’s offending, though did not disclose Mr Standfast’s identity.
[29] The Crown’s position in the present appeal is based on the premise that any potential prejudice or impact on Mr L’s fair trial rights resulting from publication of the fact sexual offending took place within Gloriavale is likely to have already occurred.
Media organisations’ submissions
[30] Mr Stewart, counsel for Mediaworks TV Ltd, NZME Publishing Ltd and Stuff Ltd, advises that these media organisations oppose the appeal. He submits that this case is different to those on which Mr Standfast relies given suppression is being sought for the benefit of an unrelated defendant in unrelated proceedings.
[31] In any case, Mr Stewart submits that publication of Mr Standfast’s name is unlikely to create a real risk of prejudice to a fair trial for Mr L. He says that given the volume and content of material already in the public domain, reference in a Stuff article to Mr Standfast’s offending (without naming him) did not create any additional risk to prejudice to a fair trial, nor would publication of Mr Standfast’s name.
[32] Mr Stewart likens Mr L’s situation to the retrials of David Bain and Mark Lundy (which were preceded by large volumes of potentially prejudicial publicity) and submits that any concerns about potential prejudice to a fair trial can be allayed by judicial directions — as likely occurred in those instances. He also draws an analogy between Mr L’s trial and trials of members of the Catholic Church, noting the significantly greater volume of prejudicial information online about offending by members of the clergy. He submits that it cannot be said that a defendant’s affiliation to that Church (or in Mr L’s case, to Gloriavale), in itself, creates a real risk of prejudice to a fair trial. Again, he says that judicial directions would suffice.
[33] Finally, Mr Stewart submits takedown orders remain a possibility in respect of specific articles.
Analysis
[34] Because Mr Standfast says that the threshold in s 200(2)(d) was met, this is an appeal against the first stage of the requisite analysis under s 200 and is subject to the approach reserved for general appeals. If my view differs from that of Judge Kellar, I must go on to make my own determination about whether suppression should be granted. In this regard, s 287 of the Act gives this Court wide ranging powers to confirm, vary or set aside the District Court’s decision on suppression or to make any other order it considers appropriate.
[35] Turning to the application of s 200, the starting point is indeed the principle of open justice.23 Sufficient reasons must exist for this principle to yield in favour of name suppression.
[36] This appeal turns specifically on the application of s 200(2)(d). Messers Zintl and Stewart have referred me to R v B and R v F which discuss this provision.24 For present purposes, is not necessary to outline the facts of those cases. I simply observe, with reference to those cases and others in which s 200(2)(d) has been applied or discussed,25 that the provision is ordinarily invoked in respect of defendants about whom there exists publicly-accessible adverse publicity which may impact on their forthcoming trial. It is seldom used for the benefit of other persons set to face trial (save for instances where a person’s offending is directly related to the defendant whose fair trial rights are sought to be protected),26 let alone in respect of unrelated defendants in unrelated proceedings.
[37] This does not mean that s 200(2)(d) cannot be invoked in such circumstances. The provision refers to a fair trial, not a specific trial or solely the trial of the person invoking the provision. However, the connection between the person seeking name
23 See Erceg v Erceg [2016] NZSC 135, [2017] 1 NZLR 310 at [2]. The Supreme Court commented that “the principle of open justice is fundamental to the common law system of civil and criminal justice.”
24 R v B (CA459/06), above n 11; R v F [2018] NZHC 257.
25 Norsworthy v New Zealand Police [2013] NZHC 2550; O (CA680/2014) v R [2014] NZCA 579; R v DAB [2016] NZHC 2444; R v Wilson [2017] NZHC 2532; R v W [2018] NZHC 2611; Ready v New Zealand Police [2018] NZHC 1445; Ready v R, above n 8.
26 See, for example, R v Shipton [2007] 2 NZLR 218 (CA). See also Dunningham J’s observation in
Ready v New Zealand Police, above n 25, at [38].
suppression under s 200(2)(d) and the particular defendant whose fair trial rights they say are likely to be prejudiced is clearly relevant to the determination of the provision’s applicability.
[38] Here, Mr Zindl is suggesting that in the context of significant negative publicity relating to Gloriavale, reporting on Mr Standfast’s offending is likely to contaminate the minds of potential jurors in Mr L’s third trial given his alleged offending and Mr Standfast’s offending share some features, thereby creating a real risk of prejudice to Mr L’s fair trial rights. I note that the same argument was advanced before the High Court in Ready v New Zealand Police in respect of a name suppression appeal concerning a member of Gloriavale who was convicted of two charges of assault with a weapon against two of his children.27 In that case, the appellant sought name suppression for the benefit of Messers Standfast and L who, at that time, had not yet pleaded or proceeded to trial. Dunningham J observed the following:
[35] In the normal course, reporting on the fact that one person from a community of approximately 600 people was convicted of assaulting his children would not give rise to fair trial risks for another member of that community who is charged with serious sexual offending. They would simply be seen as separate cases. What Mr Zintl says makes the difference in this case is the level of adverse publicity that there has already been about Gloriavale, and which can be found through searching the internet, coupled with the likelihood of further adverse publicity if name suppression is lifted. The issue for me is whether those additional factors mean that declining name suppression for Mr Ready does trigger a real risk of prejudice to the fair trial rights of the two other defendants.
[36] In my view, they do not. The negative portrayal of Gloriavale that Mr Zintl is concerned about comes from information that is already public, such as the sexual offending history of other members of the community. That publicly available information is far more relevant to the charges the two defendants are facing than the fact that Mr Ready has been convicted of assaulting two of his daughters. While publicity about his offending may form part and parcel of the general interest in Gloriavale that media attention has focused on, it is not sexual offending, and I do not think that a prospective juror who learns of Mr Ready’s offending would be more likely to reason that the other defendants have committed sexual offending.
[37] Any general prejudicial views a juror may have formed about Gloriavale from existing media interest will have to be addressed through jury directions. In my view, knowledge of Mr Ready’s offending will fall within the scope of that direction and it does not raise any further special risk of prejudice to the other defendants’ fair trial rights.
27 Ready v New Zealand Police, above n 25.
[39] In refusing to grant leave to appeal a second time, the Court of Appeal upheld Dunningham J’s conclusion and commented:28
We accept that there is a close and critical media interest in Gloriavale. Much of the existing publicity about it, including articles published 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 which the trial Judge will have to give in any event.
[40] In my view, the same reasons as those outlined in Ready (both in the High Court and Court of Appeal) apply to Mr Standfast’s circumstances. The force of Mr Standfast’s appeal is based not on the potential impact that publicity of his name and offending could have on Mr L’s fair trial rights, but rather the mere existence of publicly-available adverse publicity about Gloriavale.
[41] Further, 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 Mr L. 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.
[42] Even if I considered any similarity between the offences relevant to this appeal to be material, it would only reinforce my view that continued suppression is not warranted in this instance. 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 Mr L’s fair trial rights than if the media were permitted to publish Mr Standfast’s identity.
28 Ready v R, above n 8, at [9].
[43] In this situation, I am of the view that, as with more general prejudice, any specific prejudice to Mr L’s fair trial rights that may arise from existing publicity about Gloriavale can be addressed by judicial directions. This 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 it is not the appropriate course in this instance. Further, I agree with Mr Stewart that takedown orders remain a possibility in respect of specific publicity that may be prejudicial.
[44] For these reasons, I consider Judge Kellar was right to decline continued name suppression for Mr Standfast as the threshold in s 200(2)(d) was not met.
Result
[45]The appeal is dismissed.
Suppression
[46] Mr Zintl advised that should this Court dismiss the appeal, Mr Standfast would file an appeal in the Court of Appeal. He submitted that name suppression should continue pending the outcome of that appeal.
[47] I order the suppression of Mr Standfast’s name, address and occupation, and any other identifying particulars, including his connection to Gloriavale, for five working days from the date of this judgment. If an appeal is lodged within that time, suppression will continue pending the outcome of that appeal.
Doogue J
Solicitors:
Crown Solicitor, Christchurch
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