Taylor v Witness C - [2017] NZHC 2615

INTERIM ORDER PROHIBITING PUBLICATION OF NAME, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS OF DEFENDANT UNTIL FINAL DISPOSITION OF APPEAL.

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2016-004-7370 [2017] NZHC 2615

BETWEEN
ARTHUR WILLIAM TAYLOR

Prosecutor

AND

WITNESS C Defendant

Hearing: 25 October 2017

Counsel:

R Francois for Prosecutor
A Simperingham for Defendant
T C Goatley and K M Wilson for media

Judgment:

26 October 2017

JUDGMENT OF WHATA J

This judgment was delivered by me on 26 October 2017 at 10.00 am, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date: ………………………….

Solicitors/Counsel: Amicus Law, Auckland Woodward-Chrisp, Auckland Bell Gully, Auckland

TAYLOR v WITNESS C [2017] NZHC 2615 [26 October 2017]

[1] I have before me an application to revoke a permanent suppression order made by Tompkins J on 20 November 1990 in respect of Witness C, who was a witness at the trial of David Tamihere. He has since been found guilty of perjury in respect of that trial. The application is made by a collection of media organisations, who I will simply refer to as the Media.1 The application is supported by the prosecution. Witness C is neutral on the issue of suppression, though he emphasises concern for his safety in the event the permanent suppression order is set aside.

[2] The Solicitor-General has also filed a submission dealing with suppression at my invitation. The Solicitor-General does not take an active position in relation to the application but has helpfully identified policy considerations that should be taken into account in determining whether or not to revoke suppression of the name of an incarcerated prisoner.

Background

[3] The circumstances relating to Witness C’s name suppression are as follows.

[4] Witness C gave evidence at the trial of David Tamihere for the murder of two Swedish tourists, Heidi Paakkonen and Sven Hoglin, in 1990. The Crown case at his trial was wholly circumstantial, as the bodies of the victims had not been located. Three prisoners gave evidence that Mr Tamihere had, at different times, spoken to them while in custody describing how he had sexually assaulted and killed the couple. Witness C was one of those prisoners.

[5] On 20 November 2017, Tompkins J, the trial Judge, made an order prohibiting the publication of the names of the three prison witnesses and any other information likely to lead to their identification. In the Court of Appeal’s words, this order was made to protect Witness C (and the other prison witnesses) from retribution in the
prison community for giving evidence for the Crown.2

1 They comprise NZME. Publishing Limited, Fairfax New Zealand Limited and Radio New Zealand
Limited.
2 Taylor v C [2017] NZCA 372 at [2].

[6] Witness C was subsequently charged with perjury by private prosecution. These charges relates to eight claims he made at trial that Mr Tamihere confessed to particular details of his offending. Witness C was convicted following trial on eight charges on…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2017] NZHC 2615
Decision Date: 26 October 2017

CaseChat Overview and Summary

In Taylor v Witness C, the Court considered an application by media organisations to revoke a permanent suppression order on the name, address, occupation or identifying particulars of Witness C, who had given evidence at the trial of David Tamihere, a man charged with murder. The suppression order was made in 1990 to protect Witness C from retribution in the prison community. Witness C had since been convicted of perjury in relation to his evidence at Tamihere's trial. The Court was required to decide whether exceptional circumstances existed to warrant revocation of the suppression order. The Court considered a number of factors including the public policy interest in suppressing Witness C's identity, the risk of recrimination and potential physical abuse to Witness C, Witness C's expressed concern for his welfare, the strong public interest in freedom of expression, open justice and in the identification of persons who commit very serious crimes, and Witness C's neutrality in relation to the application. The Court found that exceptional circumstances had been established to warrant revocation of the suppression order. The Court also found that Witness C's indication that he will seek to appeal against his conviction for perjury meant that an interim suppression order should be granted until the final disposition of Witness C's appeal.
The order of Tompkins J suppressing the name and identifying particulars of Witness C dated 20 November 1990 is revoked. Witness C’s name and identifying particulars are suppressed until final disposition of Witness C’s appeal. Leave is granted to the Media to revert to this Court if for any reason the Media considers it is necessary to do so.

Orders