Taylor v Witness C
[2017] NZHC 2615
•26 October 2017
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 mediaJudgment:
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 31 August 2017. In short, the key evidence against Witness C included:
(a) evidence of Mr Tamihere that he had never confessed to Witness C;
(b)an affidavit of Witness C dated 25 August 1995 in which he recanted his trial evidence;
(c) the transcript of an interview of Witness C on the Holmes television show on 17 July 1996, in which he said his evidence at trial was a lie; and
(d)a letter Witness C wrote to Mr Tamihere in June 2007 in which he said his evidence at trial “was all false”.
[7] Prior to trial, Mr Taylor, the prosecutor, applied for revocation or variation of the name suppression of Witness C. Both the High Court and Court of Appeal declined to grant revocation prior to the conclusion of Witness C’s trial.3 Witness C was subsequently found guilty of perjury. This verdict confirmed the evidence he gave at the trial of Mr Tamihere was false.
The statutory framework
[8] The 1990 suppression order was made pursuant to either ss 138 or 140 of the Criminal Justice Act 1985.4 Those provisions have since been replaced by the Criminal Procedure Act 2011.5
[9] Relevantly, s 208(1)(c) and (3) of the Criminal Procedure Act provide this
Court with the statutory power to review and vary or revoke a suppression order at any time. But the Court of Appeal in Taylor v C affirmed the longstanding principle that
3 At [35]-[41], and Taylor v C [2016] NZHC 2355.
4 As the Court of Appeal noted at [17], the distinction is immaterial for present purposes.
5 At [22]-[23]. The 1990 order continues as if made under the Criminal Procedure Act 2011.
only in exceptional circumstances will final suppression orders be varied.6 As the
Court noted:
[36] … The reasons for that constraint are obvious: those who give evidence (and those others involved, such as complainants and defendants) are entitled to a due degree of permanence and finality in relation to suppression orders. Such orders are not made lightly in the first place, but only for very good reason. It would be inimical to the criminal justice system if such orders were then able to be discharged readily and without a very significant persuasive threshold first being met. As Fogarty J noted, there are sound policy reasons why courts grant incarcerated Crown witnesses suppression, in particular the prevention of retribution to the witness or his or her family. Evidence of such witnesses in Court is usually accompanied by strong judicial directions, as was the case here. But the granting of suppression is normal, and such a suppression order will only be altered in exceptional circumstances.
(footnotes omitted)
[10] The Court of Appeal, however, also observed:
[37] Secondly, Burns appears to be the only case in New Zealand in which permanent suppression was lifted — following conviction for perjury of the witness. If C is convicted of perjury that may amount to an exceptional circumstance— the act of committing perjury sweeping aside the protection otherwise accorded the witness. That is not, however, the current position and this Court would not now proceed on supposition in place of evidence. Mr Taylor has failed to demonstrate exceptional circumstances that would justify the extraordinary step of removing permanent name suppression.
[11] But while these comments are persuasive, the Court was not expressing a final view. Before ordering revocation, I must first be satisfied that lifting permanent suppression is exceptional.
[12] The are several competing considerations:
(a) The public policy interest in suppressing Witness C’s identity has seriously diminished. Suppression cannot become a device to encourage or protect false testimony.
(b)Equally, however, truthful informer evidence should not be deterred by the prospect that permanent suppression will be lightly discharged.
6 At [36], referring to R v Burns [2002] 1 NZLR 387 (CA).
(c) The evidence before me suggests Witness C, as an incarcerated prisoner, will be a target for recrimination and potentially physical abuse because of his ‘false narking’. In this regard, I refer to the evidence given by Mr Tamihere at trial and referred to in my sentencing notes, and for the purpose of sentencing the evidence produced by the prosecutor, Larry Cant, who noted:
… [Suppressed] the well-known cannabis grower and drug dealer … told me that when he first got to [Auckland Prison] he went on mainstream in B Block and some of the mainstream prisoners were going to waste him as they thought he was [Witness C]. He’s so well known that he wouldn’t last 5 minutes in mainstream in whatever prison they put him in, especially now he’s an old man.
(d)Mr Cant’s statement also, however, confirms the strong impression left by the trial evidence that Witness C’s involvement in Mr Tamihere’s trial is already known to the prison population.
(e) Witness C does not oppose the lifting of name suppression, but has expressed ongoing concern for his welfare.
(f) There is a strong public interest in freedom of expression, open justice and in the identification of persons who commit very serious crimes, such as perjury.
(g) Witness C proposes to appeal.
[13] Having regard to the foregoing, I am satisfied exceptional circumstances have been established and Tompkins J’s suppression order should be revoked pursuant to s
208 of the Criminal Procedure Act.
[14] Two factors are particularly compelling:
(a) Perjury is, as Mr Francois submitted at the sentencing hearing, an assault on the justice system – there is significant public interest in deterring such behaviour.
(b)Witness C does not oppose the application, which signals two important points: the risk of harm is not such that he feels compelled to seek ongoing anonymity, and secondly, the precedent set by this decision is conditioned on his neutrality.
[15] Furthermore, applying the threshold tests applicable to suppression for the purpose of s 202 of the Criminal Procedure Act,7 while I consider publication of Witness C’s name could cause undue hardship to him and could deter truthful informers from giving evidence, for the reasons just expressed, the public interest in publication outweighs Witness C’s interest in ongoing suppression.
[16] But because of Witness C’s indication he will seek to appeal against conviction, I will grant an interim suppression order. The Media helpfully proposed this course.
Order
[17] The order of Tompkins J suppressing the name and identifying particulars of
Witness C dated 20 November 1990 is revoked.
[18] 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.
7 The decision of whether to grant name suppression under s 202 involves a two step test, outlined recently in Robertson v Police [2015] NZCA 7 at [39]-[41].
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