Taylor v Witness C
[2018] NZHC 731
•20 April 2018
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2016-004-7370
[2018] NZHC 731
BETWEEN ARTHUR WILLIAM TAYLOR
Prosecutor
AND
WITNESS C
Defendant
Hearing: On the papers Counsel:
R Francois for Prosecutor
A Simperingham for Defendant R Thomson for Solicitor-General T C Goatley for media
Judgment:
20 April 2018
JUDGMENT OF WHATA J
This judgment was delivered by me on 20 April 2018 at 5.00 pm, pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar Date: ………………………….
Solicitors: Amicus Law, Auckland
Woodward-Chrisp, Auckland Crown Law, Wellington
Bell Gully, Auckland
TAYLOR v WITNESS C [2018] NZHC 731 [20 April 2018]
[1] Witness C gave informant evidence at the trial of David Tamihere. He was given permanent name suppression. He was found guilty of perjury in relation to that evidence. In a judgment dated 26 October 2017, I revoked the permanent name suppression order.1 However, I granted Witness C interim name suppression until final disposition of his appeal against conviction for perjury.2
[2] Witness C has now abandoned his appeal against conviction. A memorandum of counsel for the media3 dated 17 April 2018 requested confirmation that because of the abandonment, the interim name suppression order has lapsed.
[3] Given the significance of the issue, I sought submissions from the affected parties and convened a telephone conference. I record the position of the parties as follows.
[4] Mr Simperingham, counsel for Witness C, indicated that because the appeal against conviction has been abandoned, it would be appropriate for the interim name suppression order to lapse. The Solicitor-General agrees.
[5] Mr Francois, counsel for Mr Taylor, however, submits that the Court of Appeal is now seized of the suppression issue because of Mr Taylor’s appeal against my interim suppression order. He says, based on discourse with the Judges of that Court, it may be that I did not in fact revoke the permanent suppression order and as such the appellate Court may wish to resolve that issue. While maintaining that I did in fact revoke the permanent order, he submits that I should await the outcome of the Court of Appeal decision. He emphasised that the Court may address matters of considerable importance as it relates to name suppression of informers.
[6] Ms Goatley, for the media, clarified, by reference to a minute of the Court of Appeal, that there was no appeal against my decision to revoke the permanent name suppression and so the appeal did not present a barrier to any decision by me to confirm that interim suppression had lapsed. Ms Thompson, for the Solicitor-General,
1 Taylor v Witness C [2017] NZHC 2615.
2 At [18].
3 They comprise NZME Publishing Limited, Fairfax New Zealand Limited, MediaWorks TV Limited, and Radio New Zealand Limited.
agreed that there was no barrier, though on a slightly different basis. Ms Thompson submitted that my interim order operated as a stay on the revocation order, rather than an order for interim suppression per se. In any event, she submitted as the conviction appeal was abandoned, the order has lapsed or may be varied in terms of s 208 of the Criminal Procedure Act 2011.
[7]I have now read the Court of Appeal’s minute of 1 March 2018. It records:
[2] The appeal in question is brought by Mr Taylor as prosecutor against the interim order suppressing Witness C’s name and details pending determination of the appeal against his conviction. There is no appeal against the order revoking Witness C’s permanent name suppression.
[8] I therefore find Mr Francois’ submission somewhat perplexing. Mr Taylor appealed my interim suppression order to set it aside. That order is now effectively redundant on its terms. Mr Taylor did not seek other relief. Logically, his appeal is now also redundant, but Mr Francois submits I should await the Court of Appeal decision. Yet to do nothing would simply abdicate my duty to respond to a request for clarification properly made by Ms Goatley.
[9] I propose to take up Mr Simperingham’s suggestion and resolve the impasse in this way: to maintain comity with the appellate Court process, I will defer any final decision confirming that the interim suppression order has lapsed, to enable Mr Francois and/or the other parties to seek directions from the Court of Appeal as to the status of Mr Taylor’s appeal and any other directions that Court might consider appropriate to the circumstances.
[10] Finally, the public should not be confused as to the current status of the suppression order. It remains in place until further order of this Court or the Court of Appeal. However, the present lack of clarity must be remedied as soon as possible. I also therefore direct that a further telephone conference be convened, on Thursday or Friday next week, with an exact time to be confirmed in consultation with counsel.
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