The Queen v Jason John Cumming

[2002] NZCA 307

IN THE COURT OF APPEAL OF NEW ZEALAND CA414/02

THE QUEEN

V

JASON JOHN CUMMING

Hearing:	10 December 2002
Coram:	Gault P Blanchard J McGrath J
Appearances:	S J Shamy for Appellant J W Tizard for TV3 Network Services Ltd J C Pike for Crown
Judgment:	10 December 2002

JUDGMENT OF THE COURT DELIVERED BY GAULT P

1. We have heard at short notice an appeal against a judgment delivered in the High Court at Christchurch on 5 December 2002 by Justice Panckhurst refusing an order suppressing publication of the details of certain evidence which was ruled inadmissible at the criminal trial of the appellant.

2. The appellant was convicted and counsel’s instructions are that, after sentencing which has not yet taken place, there will be an appeal against conviction.  We were given a brief outline of possible grounds of appeal. 

3. The principal argument advanced in support of the present appeal is that should the conviction be overturned and a new trial ordered there will be a risk, if details of the evidence should be published, that the appellant will not receive a fair trial.  At the forefront of the argument was the decision of this Court in R v Burns [2002] 1 NZLR 387. The decision in that case, however, made it clear that after conviction it will only be in exceptional cases that publication of material arising from or surrounding the trial will be suppressed. We do not consider that the present case is in the exceptional category of the kind contemplated in the decision in Burns.  Essentially the matter was one for the discretion of the Judge.  He had been the trial Judge and was familiar with all of the circumstances and was satisfied that there was not such a risk of prejudice in the event that a retrial should eventuate as to justify an order. 

4. We have not been persuaded that that view was wrong and accordingly the appeal is dismissed.

Solicitors
S J Shamy, Christchurch, for Appellant
Oakley Moran, Wellington, for TV3
Crown Law Office, Wellington