W (SC 60/2023) v The King - [2023] NZSC 164

NOTE: INTERIM ORDER SUPPRESSING THE NAME OF W AND ANY IDENTIFYING PARTICULARS MADE ON 9 JUNE 2023 IS TO CONTINUE UNTIL FURTHER ORDER.

IN THE SUPREME COURT OF NEW ZEALAND

I TE KŌTI MANA NUI O AOTEAROA

SC 60/2023
[2023] NZSC 164

BETWEEN	W (SC 60/2023) Applicant
AND	THE KING Respondent

SC 77/2023
BETWEEN	MARK JOSEPH HOGGART Applicant
AND	THE KING Respondent

Court:	Glazebrook, O’Regan and Kós JJ
Counsel:	C W J Stevenson for Applicant in SC 60/2023 Q Duff for Applicant in SC 77/2023 C A Brook, R K Thomson and T C Didsbury for Respondent in SC 60/2023 and SC 77/2023
Judgment:	12 December 2023

JUDGMENT OF THE COURT

AMr Hoggart’s application for an extension of time to apply for leave to appeal is granted.

BThe applications for leave to appeal are granted in part ([W] v R [2023] NZCA 155). The approved questions are:

1Whether the Court of Appeal was correct to conclude that a media take down order was not required in the circumstances of this case.

2Whether the Court of Appeal was correct to conclude that the verdicts were not unreasonable in light of admissible evidence relating to the potential culpability of Lester Hamilton (deceased).

C The applications for leave to appeal are otherwise dismissed.

DInterim order suppressing the name of W and any identifying particulars made on 9 June 2023 is to continue until further order.

____________________________________________________________________

REASONS

In 2021, the applicants, W and Mark Joseph Hoggart, were found guilty of the 1987 aggravated robbery of the Red Fox Tavern in Maramarua and the murder of its publican, Mr Bush. Their convictions were upheld by the Court of Appeal.[1] Both W and Mr Hoggart seek leave to appeal their convictions to this Court.
[1][W] v R [2023] NZCA 155 (French, Gilbert and Collins JJ) [CA judgment].
W presents five potential grounds of appeal: (1) the verdicts were unreasonable, there being reasonable doubt about the identity of the offenders; (2) wrongful exclusion of Mr Hartshorne’s evidence, and improper warning regarding Mr Wereta’s evidence, in each case as to alleged confessions to murder by a Mr Lester Hamilton (deceased); (3) W’s police interview statements were improperly obtained and impermissibly used; (4) this Court’s pre‑trial decision regarding incentivised witnesses was based upon erroneous facts;[2] and (5) the trial Judge should have issued a takedown order.
[2]W (SC 38/2019) v R [2020] NZSC 93, [2020] 1 NZLR 382.
Mr Hoggart also presents the same first, second and fifth grounds, along with a further one of his own: (6) if no takedown order was made, the defendants names should have been anonymised at trial. Mr Hoggart requires (and sought) an extension of time to apply for leave to appeal. The Crown did not oppose this application and an extension of time to apply for leave to appeal is granted.
We grant leave in respect of the first, second (in part) and fifth grounds of appeal.
Leave is not granted in respect of other…

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: [2023] NZSC 164
Decision Date: 12 December 2023

CaseChat Overview and Summary

In this case, the applicants, W and Mark Joseph Hoggart, appeal against their convictions for the aggravated robbery of the Red Fox Tavern in Maramarua and the murder of its publican, Mr Bush, in 1987. Their convictions were upheld by the Court of Appeal. The applicants seek leave to appeal to the Supreme Court of New Zealand on several grounds, including the reasonableness of the verdicts, the exclusion of certain evidence, and the trial judge's decision not to issue a media takedown order. Both applicants argue for leave to appeal to this Court, with W presenting five grounds and Mr Hoggart presenting six.

The legal issues that the Court needed to decide included whether the verdicts were unreasonable, whether there was wrongful exclusion of evidence, and whether the trial judge should have issued a takedown order. The Court also had to consider whether the applicants' police interview statements were improperly obtained and used, and whether the trial judge's pre-trial decision regarding incentivised witnesses was based on erroneous facts. Mr Hoggart also argued that if no takedown order was made, the defendants' names should have been anonymised at trial.

The Court granted leave to appeal in part, allowing the first, second (in part), and fifth grounds of appeal. The Court did not grant leave for the third ground, concerning W's police interview statements, as there was no realistic prospect of a miscarriage of justice. The Court also did not grant leave for the fourth ground, as it lacked substance given the Crown did not call the incentivised witnesses. The sixth ground, seeking anonymisation of the defendants' names at trial, was also dismissed as impractical and inconsistent with the principles of open justice.

The Court granted Mr Hoggart's application for an extension of time to apply for leave to appeal. The approved questions for appeal are whether the Court of Appeal was correct to conclude that a media takedown order was not required and that the verdicts were not unreasonable in light of admissible evidence relating to the potential culpability of Lester Hamilton (deceased). The interim order suppressing the name of W and any identifying particulars made on 9 June 2023 is to continue until further order and will be re-evaluated when the appeal is heard and determined.

Orders