Taylor v C

[2016] NZHC 2355

ORDER PROHIBITING THE PUBLICATION OF THE NAMES OR IDENTIFYING PARTICULARS OF "C" AND "Z".

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2016-404-000236 [2016] NZHC 2355

UNDER

sections 208(1)(c) and 208(3) of the

Criminal Procedure Act 2011 and section

138(4)(c) of the Criminal Justice Act 1985 (as far as is applicable)

IN THE MATTER

of an application to revoke or vary a suppression order

BETWEEN

ARTHUR WILLIAM TAYLOR Applicant

AND

"C" Respondent

AND

MEDIA WORKS Non-Party

AND

"Z"

Non-Party

Hearing:	29 September 2016
Appearances:	M Harborow for Crown C Wilkinson-Smith for Respondent Applicant in person K Wilson for Media Works J-A Kincade for "Z"
Judgment:	4 October 2016

JUDGMENT OF FOGARTY J

This judgment was delivered by Justice Fogarty

On 4 October 2016 at 4.00pm Pursuant to r 11.5 of the High Court Rules Registrar/Deputy Registrar

Date:…………………………

TAYLOR v "C" [2016] NZHC 2355 [4 October 2016]

The private prosecution

[1]      Mr Taylor has lodged in the District Court a document charging witness “C” with eight counts of perjury during his evidence on oath at the trial of Mr David Tamihere for the murder of Ms H B Paakonen and Mr S U Hoglin and one count of attempting to pervert the course of justice.

[2]      Pursuant to s 26 of the Criminal Procedure Act 2011 (CPA), the Registrar of the Court referred these charges to the District Court (Judge B A Gibson) for a direction that the formal statements and exhibits referred to were sufficient to justify a trial. The relevant provisions are set out as follows:

26       Private prosecutions

(1)       If a person who is proposing to commence a private prosecution seeks to file a charging document, the Registrar may—

(a)      accept the charging document for filing; or

(b)       refer the matter to a District Court Judge for a direction that the  person  proposing  to  commence  the  proceeding  file formal statements, and the exhibits referred to in those statements, that form the evidence that the person proposes to call at trial or such part of that evidence that the person considers is sufficient to justify a trial.

(2)       The Registrar must refer formal statements and exhibits that are filed in accordance with subsection (1)(b) to a District Court Judge, who must determine whether the charging document should be accepted for filing.

(3)       A Judge may issue a direction that a charging document must not be accepted for filing if he or she considers that—

(a)       the evidence provided by the proposed private prosecutor in accordance with subsection (1)(b) is insufficient to justify a trial; or

(b)      the proposed prosecution is otherwise an abuse of process.

(4)       If  the  Judge  determines  under  subsection  (2)  that  the  charging document should not be accepted for filing, the Registrar must—

(a)      notify the proposed private prosecutor that the charging document will not be accepted for filing; and

(b)      retain a copy of the proposed charging document.

[3]      On 8 July, Judge Gibson made directions for the future conduct of the trial from which all parties agreed the inevitable inference is that he has made a determination that the charging documents should be accepted for filing.   Quite properly, Judge Gibson has not given reasons.  The inference, however, is that he is satisfied that the evidence proposed to be led by the private prosecutor is sufficient to justify a trial.  Counsel agreed that sufficiency here was akin to a s 147 test, namely, that on the basis of the papers before the District Court indicating the case to be presented, there will likely be sufficient evidence enabling a jury properly directed to reach a verdict of guilty on one or more of the charges.

This application

[4]      Consequent upon the charges being accepted for filing, Mr Taylor as the intending prosecutor and as applicant to this Court made an application that the order of Tompkins J of this Court made on 20 November 1990 prohibiting the publication of the name of witness “C” be revoked or varied.

[5]      Witness  “C” is  the defendant  in  the charges  that  have been  filed  in  the District Court.  He was then, and is now, in prison.  The suppression order made by Tompkins J was the usual suppression order made in favour of Crown witnesses who are serving prison sentences in order to protect them from any retribution from the prison community for having given evidence for the Crown in a trial.

The Tamihere trial and subsequent appeal

[6]      David  Tamihere  was  found  guilty  of  the  murder  of  these  two  Swedish tourists. The Crown case was entirely circumstantial, including the inference that the tourists were dead, because at the date of the trial their bodies had not been discovered.  After Mr Tamihere sought leave to appeal, the remains of Mr Hoglin were found in an isolated area.

[7]      At the trial, witness “C” had given evidence that Mr Tamihere had told him

that:

(a)       Mr Tamihere had met the couple in a picnic or camping area; (b)       He tied Mr Hoglin up and sexually assaulted him;

(c)      He disposed of Mr Hoglin by beating his head in with a lump of wood;

(d)He continued holding prisoner and sexually assaulted Ms Paakonen and was holding her prisoner in the bush when a couple had come across them and this had almost led to him being caught;

(e)       He killed Ms Paakonen; and

(f)      He disposed of their bodies after stealing an  aluminium boat and taking them 15 to 20 minutes out to sea between Thames and Wilsons Bay.

[8]     The discovery of Mr Hoglin’s remains led to conclusions significantly inconsistent with the evidence of witness “C”.  There was no indication of a skull fracture or a broken neck.  The pathologist was of the opinion that the deceased had suffered stab  wounds in the neck  and shoulder area with a possible attempt of decapitation.

[9]      Mr Tamihere, prior to the death of this couple, had been evading authorities since 1986, living mainly in the bush on the Coromandel Peninsula.   The circumstantial case against him led with him being seen driving the rental car that had been hired by the deceased couple and that in the house he was occupying there was found clothing of Mr Hoglin.  Mr Tamihere’s evidence was that he had taken the Subaru after gaining entrance to it using a piece of fencing wire but denying that he ever had any contact with either of the couple.  Part of the circumstantial case against him  was  a  witness  identification  of  a  couple  said  to  be  Mr  Tamihere  and  Ms Paakonen and an allegation by a Crown witness that Mr Tamihere’s son showed him a watch said to have been given to him by his father, which appeared to be the same as a watch shown being worn by Mr Hoglin in a photograph.  The watch was found with Mr Hoglin’s remains.

[10]     The  Crown  called  three  fellow  prisoners  whose  names  were  suppressed although disclosed to the defence, the jury and all in the Court at the trial.  The Court of Appeal judgment summarises their evidence as follows:1

They gave evidence that Tamihere had spoken to them at different times while they were in custody, describing in various ways how he had sexually assaulted and killed the couple and disposed of their bodies.  The accounts are plainly inconsistent with each other.   He denied them, but with the curious qualification that he had fed false stories or different kinds to five or six fellow prisoners so that he could identify those who he believed might try to wrongly inform on him to the police.

[11]     On appeal, the Court of Appeal admitted evidence of the discovery of Mr Hoglin’s skeletal remains, the watch and the clothing.   The Court noted that the discovery of the watch with the remains was of course the complete answer to the Crown’s reliance on the evidence showing a direct connection between Mr Tamihere and one of his victims. The Court of Appeal also observed:2

We would be surprised if the jury had given much credence to any of the detail and the stories Tamihere was said to have told these witnesses.  In the case of two of them there are doubts as over whether he said anything at all apart from his own admission that he spread disinformation to suspected inmates.

[12]     Otherwise  the Court  of Appeal  found that  the  discovery of Mr Hoglin’s remains was not inconsistent with the key elements of the Crown case and the appeal was dismissed.

Witness “C” recants his evidence

[13]     On 25 August 1995, witness “C” swore an affidavit before a solicitor in which he claimed named police officers had fed him information about the police investigation into the murders and offered him up to $100,000, and assistance with getting him released on parole from his life sentence, if he gave a statement helpful to the police, prosecution and Mr Tamihere.  He said in that affidavit:

The fact of the matter is David Wayne Tamihere never made any confession to me of any kind.  David Wayne Tamihere actually always maintained his innocence.

1      R v Tamihere CA428/90, 21 May 1992 At 11.

2      At 15.

[14]     In an interview with the broadcaster, the late Mr Paul Holmes, via telephone, which was broadcast with “C’s” voice electronically disguised, “C” confirmed what he said in his affidavit and made allegations against the police that they had put him up to it and induced him to give untrue evidence.

[15]     On 8 August 1996, witness “C” retracted these statements.   He claimed he made the affidavit because of threats to him and to his elderly parents.

[16]     Then on 11 June 2007, witness “C” wrote a letter to Mr Tamihere, received by him on about 13 June, in which he said in relation to his trial evidence “as you know it was all false and fabricated by police anyway”.  He also said he would “do a complete statement to exonerate you”.

[17]     I would note that this letter was not referred to in oral argument and this judgment should be not read as accepting it proven to have been sent.

“C” offers to give evidence in “Z’s” trial

[18]     It is also a matter of record that prior to the trial of “Z” in 2015, “C” was, for a period of time, recorded as a Crown witness. “C” was prepared to give evidence that “Z” had made self-incriminating remarks to him while they were both in prison. The Crown elected not to call that evidence in pursuit of proving that “Z” was guilty beyond reasonable doubt. I draw the inference that the evidence was regarded to be unsatisfactory in at least some respects and unlikely to assist the jury in reaching its verdict.

Jurisdiction

[19]     During the hearing, two jurisdictional issues were raised:

(a)       Does the CPA or the Criminal Justice Act 1985 (CJA) govern the

Court’s jurisdiction to set aside the suppression order?

(b)If  the  CPA  applies,  does  Mr  Taylor  have  standing  to  bring  the application to revoke or vary the order of Tompkins J?

[20]     These issues were raised because the text of the CPA, on its face, does not provide for non-parties  to  a proceeding to  apply to  vary or revoke suppression orders.

[21]     The parties agreed that the Court does have the jurisdiction to set aside the order.3   It is common ground the order was made under the CJA, now repealed, but that ss 18 and 21 of the Interpretation Act 1999 provide for the continued effect of the order, notwithstanding the repeal.

[22]     The Crown argued it is arguable that neither the CJA nor the CPA can be applied to this application and that there is no jurisdiction to review the order.  But the Crown did not really push that proposition.  Rather, it submitted “a generalised interpretation of s 397 and 398 of the CPA is that the law at the time applies to proceedings of this nature.  In these circumstances it is accepted that the applicant has  standing  to  apply  to  vary  the  order  as  detailed  in  Siemer  v  The  Solicitor-

General.”4 A similar argument was advanced by Mediaworks.

[23]     I proceed on the basis that the CJA applies and that Mr Taylor has standing to bring his application.  Even if I am wrong in this conclusion and the CPA applies, Mediaworks has standing to bring the application under s 210 of the CPA.

Legal principles

[24]     It was common ground between counsel and Mr Taylor that the leading cases for revoking and varying permanent suppression orders protecting an informant are the decisions in R v Burns of the High Court5 and in the Court of Appeal.6

[25]     I briefly traverse the factual setting of those cases.  In 1996, Tania Furlan was murdered in her home.   Mr Christopher Lewis was charged with her murder.   Mr Burns was going to be a key Crown witness and had supposedly been paid $30,000 by the police to give testimony to the effect that Mr Lewis had confessed to him that

he had murdered Mrs Furlan.  The murder trial never took place because Mr Lewis

3      Referring to R v Burns (Travis) [2002] 1 NZLR 387 (HC); Broadcasting Corporation v Attorney

General [1982] 1 NZLR 120 (CA); Siemer v Solicitor-General [2013] NZSC 68, [2013] 3

NZLR 441.

4      Siemer v  Solicitor-General, above n 3, at [180]–[183].

5      R v Burns [2002] 1 NZLR 387 (HC).

6      R v Burns [2002] 1 NZLR 410 (CA); R v Burns (No 2) [2002] 1 NZLR 410.

committed suicide in prison, leaving material which effectively accused Mr Burns of being the murderer.  Mr Burns was granted permanent name suppression due to his status as a police informant.  In 1998, Joanne McCarthy was murdered in her home in similar circumstances to Mrs Furlan.  Mr Burns was arrested and charged with her murder.  He was found guilty and convicted following a jury trial.   Several media organisations applied to have the permanent suppression order set aside so that they could publish that Mr Burns had been a key Crown witness in the Lewis prosecution.

[26]     At the High Court, Chambers J found that it was appropriate to review the permanent suppression order noting:

[32] Mr Burns' own prosecution and conviction for murder are wholly exceptional circumstances which Williams J would never have contemplated when making his suppression order. I have no doubt at all that the circumstances have changed markedly and that a review is appropriate.

[27]     Chambers  J  revoked  the  permanent  suppression  order  for  the  following reasons:

[50] … I have determined that the public interest now dictates that there must be a free exchange of information and opinions regarding his role in the prosecution of Mr Lewis. ... Freedom of information is now more important than  the  need  to  protect  him  as  a  key  Crown  witness  in  the  Lewis prosecution. We must rely on the prison authorities to take whatever steps are necessary to ensure that Mr Burns is safe in prison.

[51] In reaching that conclusion, I have not overlooked the submissions of Miss Gordon. Her principal concern was that lifting the suppression order will weaken the assurance of anonymity the police often give to their informers. I do not accept that that will be the result. This is, after all, a truly exceptional case as it has developed. It is not just that Mr Burns went on to commit other crimes, a feature which, according to Detective Inspector Collin, is not unusual with police informers. What is remarkable and sets this case apart is the horrendous nature of the murder for which he has now been convicted,  its  parallels  to  the  Furlan  murder,  and the  fact  that  the  man charged with the Furlan murder has posthumously published a book alleging that Mr Burns, although a key Crown witness, was in fact Mrs Furlan's murderer.

[52] Those extraordinary circumstances may never be repeated. Others who are police informers and who apply for and are given name suppression need not fear that that suppression will lightly be revoked. In any event, the police have never been able to guarantee name suppression to a witness. There is always the possibility that a Court will refuse to accord name suppression. There  is  no  presumption  that  police  informers  will  be  given  name suppression under s 138(2). That is not one of the specific categories Parliament saw fit to mention as potentially justifying suppression. Of the

five categories, “the interests of justice” is the only potentially applicable one. Even if a Court at first instance does accord name suppression, there is always the possibility that a Court on appeal may reverse that decision, perhaps on an appeal brought by the news media. People who get name suppression under s 138 know that the Court has power to review that name suppression.

…

[54] … What Mr Burns' case raises is a number of questions about the use of police informers and their payment. That is a matter which the news media wish to debate. It is an important matter which should be debated. The people are entitled to know the pros and cons of the police's widespread use of informers.

[28]     Mr Burns appealed both his conviction and the lifting of the suppression order.  The Court of Appeal overturned Chambers J’s judgment on the basis that, if the suppression order did not continue, the appeal was likely to be futile as it would severely prejudice Mr Burns’ right to a fair trial. The Court noted:

[12] We do not doubt that the publication of Mr Burns' name in connection with his evidence in Mr Lewis' case would severely prejudice his trial. It is highly sensational information. It contains many questions which the media would wish and, indeed, feel under a duty, to pursue: did Mr Burns give false evidence at the preliminary hearing on Mr Lewis' charge; did Mr Burns in fact murder Ms Furlan; did the police prosecute the wrong person; what was the effect and appropriateness of the payment of $30,000 to Mr Burns as a secret witness; why are the police not prosecuting Mr Burns for Ms Furlan's murder; and was Mr Lewis innocent and driven to suicide because of Mr Burns' evidence and the police handling of the case against Mr Lewis? These and other questions can be expected to be pursued with vigour. They will have high public interest. Chambers J thought that the revelations would be likely to be front page or headline news, although only for a short time. We agree that the revelations would be front page and headline news but, while such prominence would no doubt abate, we do not agree that the publicity would cease. There are too many critical issues involved for public interest to subside or media coverage of it to come to an end. Indeed, the very fact Mr Burns was appealing his conviction and, if his appeal is allowed, facing a retrial would ensure that the newsworthiness and interest remained.

[29]     But  the  Court  of Appeal  agreed  with  Chambers  J  that  permanent  name suppression granted to informants could be lifted in exceptional circumstances:

[24] … Mr Burns could be more correctly described as a secret witness rather than a police informant as he was regarded in the Court below. But the same principles apply. The Courts will be most difficult to persuade that the name of a secret witness should be divulged in the absence of truly exceptional circumstances.

[30]     This proposition was echoed by a differently composed Court in Burns (No

2).7    Following Mr Burns’ unsuccessful appeal against his conviction, the Court of Appeal lifted the suppression orders noting that “on the balancing of legitimate privacy and fair trial values against countervailing freedom of expression and open justice  considerations  that  there  is  no  justification  in  the  public  interest  for continuing the suppression orders”.8

The parties’ positions

Mr Taylor

[31]     Mr Taylor applies for revocation of “C’s” name on the basis that:

(a)       Unless name suppression is revoked or varied, the District Court will be unable to exercise its discretion as to suppression in relation to s

200 of the CPA;

(b)      No reasons were given for the name suppression and the order of

Tompkins J fails to stipulate its duration;

(c)       “C” will not suffer extreme hardship if his name is published;

(d)“C’s”  circumstances  have  materially  changed  since  the  order  was made, having recanted his testimony;

(e)       The  evidence  against  “C”  in  relation  to  the  perjury  offending  is

strong;

(f)       It is in the interests of justice that untruthful informers be deterred as much as possible because they present a danger to fair trial interests;

(g)      If “C’s” name suppression is lifted, it will not deter truthful informers

from coming forward; and

7      R v Burns (Travis) (No 2), above n 6, at [5].

8 At [12].

(h)It is likely that further evidence may be uncovered that is relevant to and supports the extant perjury prosecutions against “C” if his name is published.

The Crown

[32]     The Crown opposes the application for revocation of name suppression.  Mr

Harborow for the Crown submitted that as a matter of principle:

Publication of the respondent’s (C) name is likely to prejudice the maintenance of law, including the prevention, investigation and detection of offences as witnesses may be dissuaded from providing useful information in the future.

[33]     Mr   Harborow   had   a   subsidiary  submission   that   maintenance   of   the suppression order poses no real impediment to the applicant’s ability to present his case.

[34]     Mr Harborow submitted that revocation of suppression orders granted  to secret witnesses should only be reviewed in truly exceptional circumstances. Applying that standard, Mr Harborow submitted:

(a)      It has not been proved the “C” has lied.

(b)It is not relevant that “C” may have lied at the Tamihere trial, he is entitled, however, to mount a defence to that proposition in the upcoming perjury trial.

(c)      “C” was not accused of involvement in relation to the Tamihere case, unlike in Burns where Mr Burns was accused of involvement in the murder of Mrs Furlan.

(d)The offending in the Tamihere case differed significantly from “C’s” (subsequent) conviction against a minor, unlike in Burns where the alleged offending was similar.

(e)      “C’s” offending in relation to the minor has been resolved and is not the subject of active investigation.   Therefore the public interest in knowing the identity of the respondent does not rise to the same level.

“C”

[35]     Mr Wilkinson-Smith made submissions on behalf of “C”, submitting that the permanent suppression order should not be revoked or varied  for the following reasons:

(a)      C” continues to serve a sentence in prison and is at risk of being targeted for being a “nark”.

(b)“C”  retracted  the  evidence  he  gave  against  Mr  Tamihere  in  the affidavit of 1995 because of threats made against him and his family.

(c)       There has been no material change to justify revisiting the orders. “C”

maintains that his evidence at the Tamihere trial was truthful.

(d)The protection for inmates who give evidence should not be lightly revoked.   The fact that “C” has been charged with perjury is insufficient to meet the “exceptional circumstances” threshold for revocation (as required by Burns). The allegation has not been proven and, in fact, the presumption of innocence must take precedence.

(e)       Witnesses have come forward despite suppression.

Mediaworks

[36]     Ms  Wilson  for  Mediaworks  made  arguments  in  support  of  Mr  Taylor’s

application for lifting permanent name suppression, in particular:

(a)      This is a case where the “truly exceptional circumstances” threshold his made out.  The police are alleged to have offered “C” considerable inducements in exchange for him giving evidence which was helpful to the police in securing the conviction of Mr Tamihere.   “C” has since said that the evidence was not true, yet has subsequently acted as a police witness in other cases.  The identification of “C” and the complete account of what happened in the Tamihere case is a matter of high public importance, as it goes to the heart of the integrity of the

criminal justice system.  There is a high degree of public interest in

knowing “C’s” identity.

(b)The facts in the present case are materially different to the facts in Burns.  Further, the comments in that case directed at the protection of informants do not apply where an informant has admitted that he or she has been untruthful.

(c)      “C” has a distinctive and significant criminal history that has been widely reported over the past 25 years.  It would seem unlikely that many  people  in  New  Zealand  would  fit  his  profile  and  that  the passage of time means that the identity of “C” may have become obvious to many people, including those serving time with him in prison.

(d)It  is well known in the relevant circles that  “C” has  acted as  an informant in the past and has claimed that defendants have confessed to him in very high profile cases.   He has been in prison for a very long period of time without his safety being materially jeopardised.  It appears that steps can be taken by prison authorities to protect “C’s” safety.

(e)      It does not follow that the mere fact of “C” having acted as a police informant should ensure his identity be kept secret.   He has been charged with perjury and it is a general principle that those who come before the Court be identified.

(f)      The Court should take into account the fact that the laws around suppression have materially changed over the past 25 years to the point where name suppression is now only granted where there are compelling reasons or very special circumstances that outweigh the presumption in favour of openness.

(g)Allowing  publication  of  “C’s”  name  will  potentially  allow  other instances of dishonesty to be uncovered, which may impact on other convictions that have occurred.

Discussion

[37]     The analysis starts with the proposition that for sound policy reasons Crown witnesses who are prisoners serving a sentence will usually get a suppression order to  prevent  retribution  being  brought  upon  them.   There have to  be  exceptional reasons why the suppression order is ever lifted.

[38]     In the trial of David Tamihere, the Crown obviously had sufficient confidence in the reliability of “C’s” evidence to call him as a witness.   By contrast in the second trial of “Z”, “C” was an available witness able to give evidence of self incriminatory remarks made by “Z” to him but the Crown elected not to call “C”. There is a serious case that the August 1995 recantation of “C” is an exceptional reason for lifting the suppression.   The problem is that it was not possible at the hearing to resolve the merit of his subsequent withdrawal of his recantation on the grounds that the affidavit was made against threats.

[39]     There is doubt now that the prosecution was properly screened and allowed to go forward under s 26 of the CPA.  I proceed on the analysis that there is a serious argument that “C’s” evidence at the trial of David Tamihere was false and amounted to perjury.  But that is not a proven fact.  It will be the subject of a jury verdict at the end of the upcoming perjury trial.

[40]     “C’s” trial will be subject to extraordinary public interest.  Not only will the public be interested in the trial (due to its connection with the Tamihere trial), but the trial will also be of public interest because it raises serious questions about the integrity of the criminal justice system.  In particular, did the Crown obtain untrue testimony from “C” in exchange for financial inducements?  It is imperative that the media not be prevented from reporting on the trial in an accurate and effective manner.

[41]     His offending is likely to become public during the course of the perjury trial. But I am not persuaded that the public also need to be aware of “C’s” name in order to be able to understand and follow the trial.

[42]     I am bound to give effect to the longstanding principle of protecting the identities of informants and secret witnesses who are granted permanent name suppression.  For there to be a true exception to the principle, there has to be a set of facts which will not undermine the value of the ability of the suppression order to protect  Crown  witnesses  who  are  incarcerated.    The  Crown  acknowledged  that should the charges of perjury against “C” succeed and he be found guilty, that that would be an exceptional fact justifying the lifting of the suppression order.  I agree. But at present where there is an argument being advanced by “C” that his recantation by affidavit was made under duress, in my judgment he still qualifies of the benefit of the suppression order.  It is in the long term interests of encouraging informants to give  evidence  for  suppression  orders  not  to  be  set  aside  against  anyone  in  the absence of proven fact that the evidence was perjury.   That fact has not been established here and it is for this reason that I am persuaded that I should dismiss Mr Taylor’s application.

Result

[43]     The application to set aside the suppression order is dismissed.

Costs

[44]     This was, however, an appropriate application for Mr Taylor to make.  There was doubt as to the law which had to be applied after Burns, which has a very

different set of facts.  For this reason, costs will lie where they fall.

Solicitors/counsel:

C Wilkinson-Smith, Barrister, Auckland

J-A Kincade, Barrister, Auckland

Bell Gully, Auckland

Copy to Applicant

Fogarty J