PELAEZ-GARCIA v DISTRICT COURT AT CHRISTCHURCH [2021] NZHC 3501

PELAEZ-GARCIA v DISTRICT COURT AT CHRISTCHURCH [2021] NZHC 3501 [17 December 2021]IN THE HIGH COURT OF NEW ZEALANDCHRISTCHURCH REGISTRYI TE KŌTI MATUA O AOTEAROAŌTAUTAHI ROHECIV-2021-409-000561[2021] NZHC 3501UNDER the Judicial Review Procedure Act 2016IN THE MATTER of an application for judicial review of adecision of the District Court in relation toan in-court media applicationBETWEEN ANDERSON PELAEZ-GARCIAApplicantAND DISTRICT COURT AT CHRISTCHURCHDefendantHearing: 10 December 2021Appearances: E Huda for Mr Pelaez-GarciaJudgment: 17 December 2021JUDGMENT OF DOOGUE J[Reasons for Judgment of 10 December 2021]This judgment was delivered by me on 17 December 2021 at 2.30 pm pursuant toRule 11.5 of the High Court RulesRegistrar/Deputy RegistrarDate:Introduction[1] The applicant, Mr Anderson Pelaez-Garcia, is a Colombian national residingin New Zealand. He is charged with 10 offences all relating to alleged importation ofcocaine into New Zealand.[2] On 10 December 2021, I made an order under s 15(2)(b) of the Judicial ReviewProcedure Act 2016 (the Act) staying the effect of the decision of Judge Hix to grantan in-court media application (ICMA) dated 16 November 2021 by Television NewZealand Limited (TVNZ) seeking orders permitting it to film, take photographs andrecord sounds for news and current affairs programming.1 This decision records myreasons for making the order.Background[3] On Thursday 11 November 2021, Mr Pelaez-Garcia was brought before theDistrict Court at Christchurch in relation to the offences specified above.Mr Christopher Lange, barrister of Eyreton, was assigned as legal aid counsel.[4] On that day, the District Court adjourned the proceeding until 2.15 pm on1 December 2021 for the entry of pleas and election, and remanded Mr Pelaez-Garciain custody. The Court also made an interim order forbidding publication ofMr Pelaez-Garcia's name until 19 November 2021.[5] Mr Pelaez-Garcia was remanded to Christchurch Men's Prison (CMP) and wasimmediately subject to a 14-day isolation period because of the COVID-19 pandemic.During the isolation period, Mr Pelaez-Garcia was able to meet Mr Lange, but onlyvia audio-visual link (AVL).[6] Mr Pelaez-Garcia speaks Spanish and very limited English. Therefore, he andMr Lange need an interpreter's assistance to communicate meaningfully.1 Pelaez-Garcia v District Court at Christchurch [2021] NZHC 3401.[7] On Tuesday 16 November 2021, TVNZ filed and served an ICMA seekingorders permitting it to file, take photographs and record sounds for news and currentaffairs programming.[8] On Thursday 25 November 2021, Mr Lange arranged an AVL meeting withMr Pelaez-Garcia in the presence of an interpreter. During this meeting,Mr Pelaez-Garcia informed Mr Lange that he was concerned CMP staff were able tooverhear lawyer-client conversations and therefore asked Mr Lange to arrange anin-person meeting if possible. A one-and-a-half-hour meeting, with an interpreter, atCMP was scheduled between 11.00 am and 12.30 pm on Tuesday 30 November 2021.[9] On 30 November 2021, Mr Pelaez-Garcia's meeting with Mr Lange abruptlyended after approximately 10 minutes because CMP went into "lockdown". Later thatday, Mr Lange informed the District Court, by email, Mr Pelaez-Garcia opposed theICMA because Mr Lange had been unable obtain fully informed instructions.[10] On Wednesday 1 December 2021, Mr Pelaez-Garcia and Mr Lange had anunscheduled 40-minute meeting in the Christchurch Courthouse custody suite, priorto Mr Pelaez-Garcia's 2.15 pm appearance before the District Court. Luckily, aninterpreter was present at the courthouse. Mr Pelaez-Garcia and Mr Lange were ableto discuss the criminal process, pleas and elections. Mr Pelaez-Garcia raised concernsabout the safety of his family in Colombia, especially if his image were published.[11] Later that day, Mr Pelaez-Garcia was brought before Judge Hix in the DistrictCourt. Mr Lange indicated the ICMA was opposed for the reasons mentioned in hisemail of 30 November 2021. He effectively applied for an adjournment to bringevidence to support the opposition to the ICMA. The Crown indicated they wereneutral on the application.[12] Judge Hix gave an oral judgment granting the ICMA but forbidding publicationof Mr Pelaez-Garcia's name and those of his co-defendants until 4.00 pm on Friday3 December 2021 so as "to enable counsel to consider their position on the ruling delivered on the media application".2 This decision entitled TVNZ to film and publish2 R v Pelaez-Garcia [2021] NZDC 23754 at [15].Mr Pelaez-Garcia's image. The judgment makes passing reference to the factMr Lange had not had sufficient time to take instructions. The judgment makes noreference to the application for an adjournment but, by implication, dismissed it.[13] On 3 December 2021, Judge Hix extended the previously imposed namesuppression deadline to 4.00 pm on Friday 10 December 2021.Grounds for relief[14] Mr Pelaez-Garcia applied for judicial review of Judge Hix's decision grantingthe ICMA, alleging Judge Hix erred in not allowing him adequate time and facilitiesto prepare, file and serve a notice of opposition to the ICMA in circumstances wherehe had limited opportunity to effectively "consult and instruct [his] lawyer".3[15] The relevant exchanges between the Court and counsel are instructive:MR LANGE TO THE COURT:A. And the ground that's been raised with me as regards images beingtaken by the media and it appears matters are being shared worldwideis that may place members of his family at risk back home.Q. And I suppose that's what I was getting at. I need to have some sortof evidential foundation that allows me to make an assessment as tothe degree of risk as you say.A. I agree. I agree Sir and I need explained that information has beenconveyed to me this afternoon at the first proper meeting I have beenable to have with my client with an interpreter and I accept thatevidence will need to be filed and, therefore, I am asking today thatthere be no publication and the matter can be revisited should themedia wish to have in court media coverage at the case reviewhearing. With my client I do require the assistance of an interpreter.It is not straightforward.Q. All right.THE COURT TO MR HARVEY:Q. What's the Crown position?A. I'm (inaudible 16:26:07) Sir. My friend's explained he needs sometime to get some paperwork together. He's explained the issues withme so I'm neutral to his application to adjourn the media request.3 New Zealand Bill of Rights Act 1990, s 24.Q. Mr Harvey I've got written on here that an interim order for namesuppression was made on the 11th of November. It's three weeks laternow or closer and it's supposed to have lapsed today and I think whatI'm hearing is an application to extend that.A. No, sorry, as I understood it, interim name suppression lapsed on the19th of November at 9.00 am.Q. Oh okay. No name suppression's not an issue for you?A. No.MR LANGE TO THE COURT:A. No Sir, it's the media –Q. Okay.A. – recording of the defendant and that being published, it would beavailable on the internet. I understand that ColumbianQ. So if they publish his nameMR HARVEY TO COURT:It's already been published Sir.THE COURT TO MR LANGE:Q. Well if it's already been published how does thatA. It's his image Sir. It's a photo of him.Q. What I'm hearing is there's ground for seeking that his image be notpublished as the fear of retribution at home and I'm just trying to seewhere the risk is, given that his name's already out there and if anymain supplier of drugs is interested in this cartel they know him. Theyknow his name. So what's his image going to do?A. Firstly exception is taken to these defendants being referred to as acartel.Q. Okay, all right. I accept that.A. There's no evidence of said – secondly, on my instructions there is arisk to his family if his image, a photo of him, or a recording of thiscourt case is published. Now I need more information in relation tothat to be able to present evidence to the Court as to how that riskarises in Columbia. What I'm asking for today is that the in courtmedia coverage be declined, the ability to take photographs or videoand that can be revisited at the case review hearing.Q. I'm inclined to grant the application.A. Thank you Sir.Q. I'm noting he's got his mask on as well. So I've indicated that's whatI'm about to do. Is there anything else you wanted to add?A. What's the in court? I have filed a notice by plea, plea by noticerecording not guilty pleas and electing trial by jury. The matter willgo through to the same Crown case review date and I can indicate thata bail application is likely to be filed in the near future.Q. I'll just deliver a decision. Sorry is there something else or?A. No Sir.[16] On my reading of the transcript, it seems a miscommunication occurredbetween counsel and the Court. It is reasonable to conclude that Mr Lange's thankingof the Judge indicated he thought the Judge was saying he would grant the applicationfor adjournment when the Judge said, "I am inclined to grant the application". Myconclusion is supported by the fact Mr Lange no longer pressed the issue when he wasgiven further opportunity, "Sorry is there something else or?".[17] Despite having been alerted to the fact Mr Lange required an adjournment for,prima facie, very good reason and despite the Crown being neutral on the matter, theJudge proceeded to grant the ICMA without properly affording Mr Pelaez-Garcia hisright to be fully heard. His judgment is devoid of reasons as to why he thoughtMr Pelaez-Garcia should not be afforded the opportunity to bring evidence in supportof his opposition to the IMCA.Interim order[18] The relevant parts of s 15 of the Act say:15 Interim orders(1) At any time before the final determination of an application, the courtmay, on the application of a party, make an interim order of the kindspecified in subsection (2) if, in its opinion, it is necessary to do so topreserve the position of the applicant.(2) The interim orders referred to in subsection (1) are interim orders—(a) prohibiting a respondent from taking any further action thatis, or would be, consequential on the exercise of the statutorypower:(b) prohibiting or staying any proceedings, civil or criminal, inconnection with any matter to which the application relates:(c) declaring that any licence that has been revoked or suspendedin the exercise of the statutory power, or that will expire bythe passing of time before the final determination of theapplication, continues and , where necessary, that it bedeemed to have continued in force.(3) (4) An order under subsection (2) or (3) may—(a) be made subject to such terms and conditions as the courtthinks fit; and(b) be expressed to continue in force until the application isfinally determined or until such other date, or the happeningof such other event, as the court may specify.[19] The order I made was necessary to preserve Mr Pelaez-Garcia's positionpending his having sufficient opportunity to file an affidavit in the District Court insupport of his opposition to the ICMA. If that is done the matter can then be properlyargued before that Court.[20] Further media applications have since been filed and will be the subject ofargument at the case review on 24 February 2022. It would be efficacious if TVNZ'sapplication was revisited alongside those applications.[21] Pursuant to s 15(4)(a), I direct Mr Pelaez-Garcia to formally file any notice ofopposition and affidavit in support in the District Court and to effect service no laterthan 17 February 2022.[22] The order staying the effect of Judge Hix's order will preserve the position ofMr Pelaez-Garcia through to 2 March 2022, when it will lapse. Its sole purpose is toprovide Mr Pelaez-Garcia sufficient time to file any evidence in opposition to anymedia application and for the matter to be properly heard.[23] I expect counsel will then file a notice of discontinuance of this proceeding.Doogue JSolicitors:Patients & WilliamsCrown Solicitor's Office, ChristchurchCC:E Huda, Christchurch