The Queen v Mark Middleton
[2000] NZCA 215
•26 September 2000
| IN THE COURT OF APPEAL OF NEW ZEALAND | CA 218/00 |
THE QUEEN
V
MARK MIDDLETON
| Hearing: | 19 September 2000 |
| Coram: | Keith J Robertson J Baragwanath J |
| Appearances: | K I Jefferies for Applicant |
| A F D Cameron for Crown | |
| Judgment: | 26 September 2000 |
| JUDGMENT OF THE COURT DELIVERED BY ROBERTSON J |
This is an application for leave to appeal against a pre-trial order for change of venue.
Mr Middleton faces five charges, namely :
[a]On or about 18th day of August 1999 at Wellington did threaten to kill PAUL DALLY (also known as WAYNE CLARENCE TEPA) by communicating that threat to JULIE ROBERTS.
[b]On or about the 23rd day of August 1999 at Wanganui did threaten to kill PAUL DALLY (also known as WAYNE CLARENCE TEPA) by communicating that threat to KIM MAREE PURDY.
[c]On or about the 26th day of August 1999 at Wanganui did threaten to kill PAUL DALLY (also known as WAYNE CLARENCE TEPA) by communicating that threat to JONATHAN DOUGLAS MORGAN.
[d]On or about the 13th day of August 1999 at Wanganui knowing the contents thereof, sent a letter or writing containing a threat to kill PAUL DALLY (also known as WAYNE CLARENCE TEPA) to the Registrar of THE PAROLE BOARD.
[e]On or about the 22nd day of September 1999 at Wanganui did threaten to kill PAUL DALLY (also known as WAYNE CLARENCE TEPA) by communicating that threat to JONATHAN DOUGLAS MORGAN.
Following his committal for trial in the Wanganui District Court the Crown sought a change of trial venue on the grounds :
¨ That it is expedient for the ends of justice that the accused be tried at a substituted District Court outside the Wanganui District.
¨ That there is a real risk that a fair and impartial trial will not be possible in the District Court at Wanganui because :
(a) The accused stood as an independent candidate for the Whanganui electorate in the 1999 general elections in which he campaigned on law and order issues of a nature which surround this case.
(b) It is not possible to identify the proportion of persons within any prospective pool of jurors who will have voted for the accused, or decided not to and who will have thereby formed a pre-determined view of the issues surrounding this case.
(c) There has been extensive local publicity given to the issues surrounding this trial.
(d) The accused’s views concerning the issues surrounding this trial are widely known in the Wanganui District.
(e) The combined effect of these various factors are such that a fair and impartial trial cannot be conducted in the Wanganui District.
¨That the rights of the accused pursuant to s 25 of the New Zealand Bill of Rights Act 1990 will not be compromised by the granting of this application.
¨That it is expedient for the ends of justice generally that this case be tried in a District Court other than that at Wanganui.
Following a hearing on 15 June 2000, in a reserved judgment delivered on 30 June, Becroft DCJ concluded :
I rule that the trial of the accused be transferred out of Wanganui. I accept the defence submission that if the trial was to be transferred, then New Plymouth or Palmerston North would hardly be satisfactory venues. The Chronicle newspaper circulates in part of each of those areas. There is close proximity to Wanganui. Equally, I am of the view that a transfer to Wellington where the murder charge against Paul Dally was resolved, would also be inappropriate. A transfer entirely out of the lower North Island seems justified. During general discussion, both counsel accepted that there could be no concern if Auckland was the venue for the trial other than the defence concern as to the costs that would be incurred by the accused. In this respect I note the Crown’s responsible concession that it would undertake to pay all reasonable travelling and accommodation costs during trial for Mr Middleton. (Curiously, a strict interpretation of s 322(3) means that the Court does not appear to have the power to formally make an order as to the accused’s costs, but the matter was not argued and does not arise given the Crown’s undertaking).
There is a formal order that the accused be tried at Auckland. I understand from the Auckland Jury Trial Liaison Judge that this trial can be accommodated at Auckland on a reasonably urgent basis.
Mr Middleton seeks leave to appeal that decision on the basis that :
His Honour the District Court Judge has erred in law in exercising his discretion to grant the Crown’s application for change of trial venue, and has taken into account irrelevant considerations and has given undue weight to evidence of the Crown especially evidence that was unreliable and speculative in nature.
The five counts relate to threats allegedly made by Mr Middleton during the period 13 August 1999 to 22 September 1999 and said to have been communicated to members of the media and persons associated with the Parole Board.
In 1989 Paul Joseph Dally was convicted of the murder at Lower Hutt of the applicant’s stepdaughter, Karla Cardno for which he was sentenced to life imprisonment. The various alleged threats were made within the context of the possibility of Mr Dally being granted parole and received wide publicity through both television, radio and the print media.
The District Court Judge noted :
The basis of the application is that in Wanganui, as in no other part of New Zealand, members of the community have had the opportunity to crystallize their attitude to Mr Middleton’s alleged behaviour, first, by virtue of a readers’ poll conducted by the local newspaper and secondly, by virtue of the accused’s candidacy as an independent Member of Parliament for the Whanganui Electorate. In this way, it is said, “a large percentage of the available pool of jurors has expressed an opinion on issues which are inextricably linked to that which must be determined at trial”. The Crown submits that the circumstances and the context of this application are unprecedented and justify a change of venue being ordered.
The defence contends that the application is brought for obvious strategic advantage to the Crown. The defence view is that the perceived concerns raised by the Crown could only be extinguished if this trial was heard outside New Zealand because in every community within the country, the allegations at issue in this trial have received such publicity that most people will have already formed a view of the matter. It is submitted that an accused should not be penalised for making himself available for election to Parliament. His popularity, or otherwise, is irrelevant. The defence emphasises that the accused is entitled to be tried in his local community. Besides, any change of venue will involve the accused, a man of limited means, in considerable additional cost. It is argued that there is no reason why a jury of Wanganui residents would not be capable of honouring their Juror’s Oath.
The approach of the Courts to such applications is not difficult of expression but not always easy of application in particular circumstances.
The starting point is that an accused person should generally be tried in the community where the offending occurred, Juries Act 1981 s 5(b).
Secondly, regard must be had to s 322(1) of the Crimes Act which provides :
322. Changing place of trial before or after indictment - (1) Where any person is committed for any crime to appear at any sitting of the High Court or of a District Court (hereinafter referred to as the Court of Committal), and it appears to a Judge or a District Court Judge (as the case may require) that it is expedient for the ends of justice that the person should be tried for that crime –
(a)Where the High Court is the Court of committal, at some place or at some sitting other than the place or sitting for trial to which he was committed, or at which he would in the ordinary course of law be tried; or
(b)Where a District Court is the Court of committal, at some District Court or at some sitting of the Court of committal other than the Court or sitting to which he was committed, or at which he would in the ordinary course of law be tried, -
the Judge, either of his own motion, or on application made by or on behalf of the prosecutor or the person charged, may by order, either before or after an indictment is filed, direct that the person shall be tried at such place and sitting of the Court, or (as the case may require) by such Court and at such sitting of that Court (hereinafter referred to as the substituted Court), as he thinks fit.
Thirdly, the impact of extraneous material needs consideration. The recent Law Commission discussion paper NZLC PP 37 Juries in Criminal Trials Part Two Vol 2 paras 7.51-7.57 indicates that the impact of media publicity both before and during trial is in almost all cases minimal and that the apprehension which sometimes exists about the effect of publicity may be over-stated.
That is probably merely a contemporary formulation of a long recognised principle encapsulated in R v Holden & Anor (1833) 5 B & Ad 347 where Denman CJ noted at 354 :
When men are summoned into a jury-box to decide upon a case of felony, such prejudice is very apt to die away: it is a kind of feeling which juries are learning more and more to lay aside; and we should rather relax that disposition by being too ready to suppose that they would be influenced by unjust impressions. Objections have been suggested in point of form; and it is true that the Court might, by granting such a rule as this, expose itself to frequent solicitations of the same kind; still, if I thought it necessary for the purpose of securing a fair trial, I should certainly be disposed to grant this application.
Littledale, Parke, and Patteson JJs concurred.
Finally, it is a fundamental principle that any trial is permeated by the hallmarks of independence and objectivity. It is essential to ensure that there is no real risk of a perception by an informed and objective observer of anything other than even-handed and dispassionate justice being administered. That principle must be applicable whether it is Judge alone or a case which involves a jury.
In the instant case it is now contended that there was an incorrect exercise of discretion because the Judge was improperly influenced by the accused’s perceived popularity in the Wanganui district as evidenced by his election campaign and particularly his involvement in the poll in connection with the Degrees of Murder bill which had been promoted by a member of Parliament and was conducted as part of the local print media’s November general election coverage. It is submitted that the Judge placed substantial reliance upon this and noted :
At the very least, the detailed evidence provided by the Crown reveals a quite remarkable and perhaps unique situation. In one sense the newspaper readers’ poll and the general election contest has forced people within the Wanganui Jury District to concentrate, focus and probably firm their views about the very behaviour for which Mr Middleton stands trial. This is because the readers’ poll was presented and Mr Middleton’s candidacy reported in such a way so as to make a clear link between his advocacy for tougher sentences and his alleged threats to kill Paul Dally. I accept that Mr Middleton’s profile within this local community is inextricably linked to the charges now before the Court.
Balanced against this I take into account Mr Jefferies strong contention, indeed accepted by the Crown, that wherever this trial is held, there will have been considerable public debate and media attention given to Mr Middleton’s stance. In this way, the defence argues, many New Zealanders will have already formed a view of their attitude towards him and the venue of the trial might be thought to be irrelevant.
While there is obviously some truth in that argument, in my view, within the Wanganui Jury District there has been far beyond what might be called “normal” media coverage and typical public response to it. In Wanganui, people have been encouraged, if not forced to think about Mr Middleton’s behaviour in significantly more detail (and to come to a final opinion about it) than in other areas of New Zealand. This must be so because of the readers’ poll, his general election candidature and all the associated comment in the Chronicle. Plainly, these factors create a unique situation. I accept that the readers’ poll is relatively informal but presumably the decision to vote for Mr Middleton, one of the most important and profound rights in a democracy, would not have been made lightly. Therefore, people within the Wanganui Jury District are much more likely to have crystallized their views about his behaviour and to that extent might understandably find it correspondingly harder to put those views aside when considering the evidence and the verdicts.
Mr Jefferies on behalf of the applicant contends that these issues were of minimal or no relevance because :
[a]The poll results are hearsay and should not be admitted into evidence, or at least because of their speculative and unreliable nature given very little weight.
[b]The poll was extremely informal and casual, and not conducted in accordance with any proper survey or statistical standard. There was no evidence that it was subject to an independent design or specifically captured a cross section of the community.
[c]The poll related to an election campaign and in fact is remote from the specific charges faced by the accused. The accused’s evidence is that he deliberately avoided any reference to his charges during his election campaign.
[d]The respondents to the newspaper poll have not been identified. Their ages and precise addresses are generally unknown and may therefore quite conceivably not form part of any prospective jury pool (Jury age group 20 to 65 years).
[e]Only 10% of the (one thousand) responses gave a favourable comment in respect of the applicant. One can only speculate as to the opinion held of the applicant by the remaining 90%.
[f]The poll was not engineered by the applicant, and he sought no publicity in respect of it.
[g]The poll did not specifically relate to the applicant but was designed to measure support for MP Brian Neeson’s Degree of Murder Bill.
[h]The poll asked similar questions to that contained in the National Referendum (concerning tougher penalties for criminal offending) held at the General Election.
[i]The national referendum results as to tougher sentences were generally consistent throughout New Zealand with 80 to 90% voting for tougher penalties. It could therefore be logically concluded that the sentiments expressed by way of the Wanganui Newspaper poll respondents would prevail in any District in New Zealand and that any change in trial venue is therefore futile.
On the other hand the Crown referred to the evidence which was available to the Judge in the District Court particularly that of the Editor of the Wanganui Chronicle who was required to give viva voce evidence and was cross-examined. Emphasis was placed on the following interchange :
Q. But for Mr Middleton, would the poll have been carried out, conducted at that time?
A. At that time, no. I don’t believe so. It was Mark’s public statements that prompted the poll. Coincidental, I believe, Mr Neeson’s promotion of the bill which was just another issue, and I believe purely coincidental and we tied the two together. No question. But certainly Mark Middleton’s stance and his statements prompted our poll.
It was submitted that there must be added to this the newspaper reporting at around the time and particularly the fact that of 1,000 people who responded to the poll, a hundred (even though not specifically invited to do so) took the opportunity of writing in support of Mr Middleton and his position. Whatever may be said about the lack of scrupulous professionalism about the poll, the Judge took a cautious approach to this matter and noted :
Nevertheless, in my view, given that it is impossible to exclude that some in the jury pool would have voted for Mr Middleton or even supported him in the readers’ poll, the matter could not be cured by Crown challenges (because of the secrecy of a general election vote) or by strong directions to the jury. Any decision by a juror to support Mr Middleton would necessarily have profoundly concentrated a juror's mind, obviously more so than in any other venue where this trial might take place. It may be that the majority of any jurors who so voted would not be captive to their prior view of Mr Middleton. However, it may be that some jurors’ opinion of Mr Middleton and his actions are sufficiently finalised for them to be unable to fairly and impartially consider the issues. What I am unable to exclude, is the view of one juror being so fixed because of his or her previous vote in favour of Mr Middleton, that he or she would be unable to bring an open mind to the decision-making process. It would require only one juror in this position to have his or her thoughts so crystallized, as to make a fair trial impossible.
In addition complaint is made that what was described as popularity was inappropriately treated by the District Court Judge.
The issue of popularity has been considered in a number of cases over the past century. In R v Leggatt (1901) 19 NZLR 317 Stout CJ in refusing an application for change of venue which was advanced because of the local popularity of a doctor noted :
I must assume that a jury of Nelson people are capable of respecting their oaths and administering justice.
That comment must be viewed within the context of the Judge’s final remark :
There is no evidence that the case has excited more than an ordinary interest, or that so many persons have expressed opinions that a proper trial is impossible.
The Crown submits that assertion could not apply in the instant case.
A similar approach emerges in R v Maxwell [1933] NZLR 110 where MacGregor J noted :
I cannot say that I am all convinced that an impartial jury cannot be obtained in the present case.
The Judge in Maxwell as was the case in Leggatt considered the circumstances routine.
Mr Jefferies placed particular reference on the decision of Tompkins J in R v Hikawai & Ors (High Court Gisborne, 22 October 1987) where the Judge refused a Crown application for change of venue for the trial of police officers charged with offences in relation to the Rastafarian cult on the basis that there would be widespread support for the Police in the Gisborne district. Tompkins J concluded :-
It is one thing for a person in the community to feel and express strong personal views about criminal activities of which he or she has become aware through the news media and talk around the town. But it is another and significantly different thing where that person is on a jury, shouldered with the responsibility of determining guilt or innocence, conscious of the need to be impartial as between the Crown representing the community and the accused, and with firm clear directions from the Judge to exclude sympathy or prejudice and to decide the guilt or innocence of the accused only on the evidence sworn to in the Court.
And :
The second reason relates to the importance of trial taking place in the community where the offence is alleged to have occurred. No doubt this consideration will be outweighed if for other convincing reasons there is a real risk that an impartial trial cannot be held but it remains an important consideration. As McMullin J observed at p 8 of Hamley :
The local venue is to be taken unless a case is made out under s 322(1) to meet the ends of justice. The reasons for this are not merely administrative represented by the savings in costs occasioned by a local trial. There may be other reasons as well. There is something to the point that justice should be done and be seen to be done in the community in which the alleged offence is committed.
The Crown submits that in the instant case the issue of relevance is not popularity but rather what the Judge described as “the depth of formally expressed opinion and public debate about Mr Middleton's alleged actions.”
Mr Jefferies further contended that the decision of the District Court Judge had regard to the political overtones of the alleged offending and in doing so had interfered with Mr Middleton’s rights under the Bill of Rights Act 1990 which affirms New Zealand’s commitment to the International Covenant on Civil and Political Rights Article 14(1) of which provides :
All persons shall be equal before the Courts and Tribunals.
Reference was also made to Amnesty International Fair Trials Manual (published December 1998) at chapter 11, page 73, as to article 14(1) :
One implication is that a person charged with a criminal offence such as destruction of property should be afforded the same guarantees whether or not the offence occurred in a ‘political’ or ‘ordinary criminal’ context.
The applicant argued that he was being disadvantaged because of his political opinion on an issue of public debate.
Mr Cameron contended that this was to misstate and misunderstand what the Judge had decided. The change of venue was not sought or granted because of Mr Middleton’s political profile or belief, but rather because Mr Middleton’s profile within the Wanganui community was inextricably linked to the charges now before the Court. It was submitted that the Judge was specifically referring to what he described as the quite remarkable and perhaps unique situation where the very subject matter of the charges was inevitably linked to the profile which Mr Middleton had in this particular community.
Finally it was contended that the Crown had not made out sufficient grounds to discharge the onus on it to justify the change of venue application. It is common ground that a person should be tried within their own community but subject always to the need for any trial to involve a jury which can act as independent, objective and dispassionate assessors of the relevant factual situation.
Mr Jefferies submitted that the present case should be distinguished from those in which there was outrage or indignation about a serious brutal crime which might interfere with the calm and dispassionate exercise of judgment by a local jury such as R v Holdem (1987) 3 CRNZ 103. Similar approaches are to be found in the earlier decision of this Court in R v Tuckerman (CA 48/86, 18 April 1986) and repeated recently in R v Houghton (CA 371/99, 23 November 1999).
There is however a distinctive feature in this case which sets it apart from others where the Court has had to consider applications for change of venue. The subject of the alleged offending is the firmly held view about an issue of public debate or controversy. It cannot be denied that Mr Middleton having articulated a strongly held view about a matter of public interest, in the course of his election campaign conducted himself in such a way as to stimulate or attract substantial public debate about it. Although the historical roots of the jury system involved local people who were deemed and in fact required to have personal knowledge the jury system as it now operates requires persons who are unfamiliar with the specific issues to be determined who are instructed to determine the case only on the basis of evidence presented in the Court and who are required to be dispassionate, independent, objective and impartial determiners of the facts solely on the basis of the available evidence. It is true that the matters which have exercised Mr Middleton and which were influential in his campaign are matters of substantial interest nation-wide, but the Judge determined as recorded above (and we agree) that on the material available to him the intensity of the feeling and the focus upon it within Wanganui was significant.
The Judge noted that, had this been an application by an accused person for a change of venue because the community view was against him he would have had no hesitation whatsoever in granting the change of venue. The Judge noted that there should be a cautious approach to applications brought by the Crown but nonetheless concluded that the Crown’s concerns were well founded.
Not only has the applicant not satisfied us that the exercise of discretion was in error, but we should record that if we had to reach a decision ourselves on the application for a change of venue we would likewise have concluded that in the unique circumstances of this case there really was no option.
This was a case which was very different from others as at the very heart of the charges are the issues about which he has been publicly campaigning, with which he is perceived by the community to be associated and in respect of which he is portrayed by the media as being a focal point. Whether that reality is of his making or orchestration is immaterial. It is a factual situation which must be weighed and assessed.
Mr Jefferies did not wish to disclose what approach the defence may adopt at trial, but we note that the charges are all counts of threatening to kill. The elements on such counts are capable of clear, concise and narrow definition. It is at the heart of our criminal justice system that any person who stands trial does so before a Court which is independent, impartial and unaffected by influences which could predispose them one way or the other. Wanganui is a relatively small city in which these important issues, which we acknowledge have a public profile nation-wide, became intensified and concentrated in a unique way by the media and in a political campaign. It is true that there were other planks on Mr Middleton’s campaign at the general election but criminal sentencing and parole was a major issue and presented by the media as a focal point. The truth of the perceived position is to be found in a news story in the Wanganui Chronicle of 1 September 1999, headed “I will kill the killer says defiant Middleton” which appeared alongside a coupon inviting responses to the poll on the subject which the paper was running. This really captures the inevitable picture which emerges about the interrelationship.
We note that an undertaking has been given by the Crown to ensure that no additional financial burden is created for the applicant by the change of venue. Weighing the competing interests a Court must inevitably conclude that the trial has to take place outside of Wanganui. No particular argument was addressed to us as to any more appropriate alternative venue, the issue being argued rather as one of principle.
In the unusual circumstances of the case it is appropriate that leave to appeal should be granted but the appeal is dismissed.
Solicitors:
Crown Law Office, Wellington
Jefferies & Raizis, Wellington
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