W v Police HC Auckland CRI-2007-404-35
[2007] NZHC 63
•16 February 2007
This case has been anonymized
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2007-404-35
BETWEEN W
Appellant
ANDNEW ZEALAND POLICE Respondent
Hearing: 16 February 2007
Appearances: Shane Tait for Appellant
Steven Haszard for Respondent
Judgment: 16 February 2007
JUDGMENT OF HARRISON J
SOLICITORS
Shane Tait (Manukau City) for Appellant
Meredith Connell (Auckland) for Respondent
W V POLICE HC AK CRI-2007-404-35 16 February 2007
[1] Mr W appeals against a decision in the District Court at Manukau on 31 January 2007 refusing to suppress publication in the media of Mr W ’s images filmed while in Court.
[2] Mr W faces charges of murder, aggravated robbery and kidnapping along with two others. He has pleaded not guilty. Depositions have yet to be taken. There has been some pre-trial disclosure.
[3] Judge David Harvey’s decision dated 31 January 2007 succinctly summarises the competing arguments for Mr W and the Crown on this narrow question as follows:
[3] The main ground whereby Mr Tait opposed the media application was that the broadcasting of [Mr W ’s] image might well have an impact upon the issue of identification which he said was at large as far as the alleged crimes were concerned.
[4] Mr Haszard, on the other hand, said that he was not relying on any eye witness identification, but that [Mr W ’s] presence or involvement with the alleged crime was based upon circumstantial evidence…
[4] The Judge was satisfied that, given the nature of the Crown’s case, there was no reason to inhibit media coverage or require pixelation of Mr W ’s image: at [4]. He concluded, taking into account all other factors, that the public interest demanded that further information be made available to the public as to the progress of the case: at [6].
[5] In order to succeed on an appeal against the judicial exercise of a statutory discretion Mr W must establish that the Judge erred in law, was plainly wrong, or took account of irrelevant considerations; in a case like this he must discharge a high threshold.
[6] In careful submissions advanced in support of the appeal, Mr Shane Tait submits that publication would prejudice Mr W ’s right to a fair trial. In particular, he submits that it would place material in the public arena with the risk of an effect on potential jurors and also impede his general defence. However, as Judge Harvey accepted, identity is not the prime issue in this case in contrast to Savaiinaea v Police HC Auckland A111/02 16 August 2002. In that decision Rodney Hansen J
made an order for suppression of publication of images because the only evidence linking the appellant was visual identification made by one witness using photographs from a montage. Furthermore, the Crown had not excluded the possibility that the witness would be invited to make a dock identification. Accordingly, prior publication could lead to that part of the evidence being tainted.
[7] However, the Crown’s case here is different. It relies on circumstantial evidence. Mr W was allegedly disguised at the time of the crime. He is accused of breaking into a residential address with his co-offenders and beating to death one of the occupants whom he previously knew. The police were alerted. Mr W and his alleged co-offenders escaped but were apprehended by police officers later. The police accept that there were no eye witnesses and so further publicity will not elicit any evidence linking Mr W to the crimes. Instead the Crown will invite the jury to draw an inference that in the circumstances of the case Mr W and his co-offenders were responsible for the crimes leading to the victim’s death.
[8] Accordingly, I am not satisfied that Judge Harvey erred. In particular, the Judge was satisfied, as am I, that there was little or no reason to prohibit media coverage or require pixelation of Mr W ’s image. His identity does not require
protection pending trial. Accordingly, I dismiss the appeal.
Rhys Harrison J
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