W v Police HC Auckland CRI-2007-404-35

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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

CaseChat Overview and Summary

In the High Court of New Zealand, Auckland Registry, Mr W appeals against a decision made by the District Court at Manukau on 31 January 2007. The appeal concerns the refusal to suppress the publication of Mr W’s images in the media, which were filmed while he was in court. Mr W faces serious charges, including murder, aggravated robbery, and kidnapping, along with two co-defendants, and has pleaded not guilty. The case has not yet proceeded to the stage of taking depositions, but there has been some pre-trial disclosure.

The legal issues before the court were whether the publication of Mr W’s images in the media would prejudice his right to a fair trial and whether the suppression of such images was necessary to protect his identity and ensure an impartial jury. Mr W’s counsel argued that the publication could impact the issue of identification and prejudice his right to a fair trial, particularly as the identification issue was still unresolved. Conversely, the Crown’s counsel argued that the case against Mr W relied on circumstantial evidence rather than eyewitness identification, and therefore, the suppression of the images was unnecessary.

The court examined the nature of the Crown’s case, which relied on circumstantial evidence, and concluded that there was no reason to inhibit media coverage or require the pixelation of Mr W’s image. The court found that the public interest in the availability of information about the progress of the case outweighed the potential prejudice to Mr W’s right to a fair trial. The appeal was dismissed, affirming the District Court’s decision to allow the publication of Mr W’s images in the media.

The final orders of the court were to dismiss Mr W’s appeal, upholding the District Court’s decision that there was little to no reason to prohibit media coverage or require the pixelation of Mr W’s image. The court was satisfied that the public interest in the dissemination of information about the case's progress justified the decision.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established