KEMPSON v R [2020] NZCA 671

KEMPSON v R [2020] NZCA 671 [17 December 2020]NOTE: PUBLICATION OF NAMES, ADDRESSES, OCCUPATIONS ORIDENTIFYING PARTICULARS OF COMPLAINANTS K AND OPROHIBITED BY S 203 OF THE CRIMINAL PROCEDURE ACT 2011.IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA106/2020[2020] NZCA 671BETWEEN JESSE SHANE KEMPSONAppellantAND THE QUEENRespondentHearing: 17 December 2020Court: Kós P, Cooper and Courtney JJCounsel: T M Cooper for AppellantB H Dickey and O S Klinkum for RespondentR K P Stewart for NZME Publishing Ltd, Radio New Zealand,Stuff Ltd and Television New Zealand LtdJudgment: 17 December 2020 at 11.50 amReasons: 17 December 2020 at 1.30 pmJUDGMENT OF THE COURTA The application for continued suppression of the appellant's name isdenied.B Name suppression will lapse at 11 am on Friday 18 December 2020.____________________________________________________________________REASONS OF THE COURT(Given by Kós P)[1] Mr Kempson has now been convicted of the following serious crimes:(a) the murder of Ms Grace Millane, convicted by Moore J after a trial byjury in Auckland in November 2019;(b) threatening to kill, two charges of assault with a weapon, three chargesof male assaults female and two charges of sexual violation by unlawfulsexual connection in relation to a former partner, K, convicted byBrewer J after a Judge-alone trial in October 2020;(c) the rape of a further complainant, O, convicted by Venning J followinga Judge-alone trial in November 2020.[2] Severance of K's trial was ordered by the High Court in August 2019 andseverance of O's trial was ordered by this Court in October 2019.1 At the timethis Court ordered suppression until final disposition of the three trials.2 Mr Kempsonoriginally elected trial by jury for the charges listed at (b) and (c) above, but withdrewthat election by leave of the High Court pursuant to s 53 of the Criminal ProcedureAct 2011.[3] On 7 October 2020 Brewer J directed name suppression "will continue inrespect of the two forthcoming trials or until further order of the Court".On 6 November Venning J directed suppression in all the non-murder charges tocontinue until delivery of our judgment in the murder charge, unless extended by us.3[4] Mr Kempson's appeal to this Court against his conviction for murder was heardon 6 August 2020, and judgment is to be delivered tomorrow, 18 December.On 15 December, the Court advised counsel accordingly, and further advised thejudgment would order that name suppression lapse.1 R v Kempson [2019] NZHC 2077 at [173]; and Kempson v R [2019] NZCA 511.2 At [71]–[72]. That was acknowledged in a memorandum by defence counsel dated 2 March 2020.Suppression was continued for the purpose of the appeal at the appeal hearing on 6 August 2020,because of the remaining trials (which at that time were to be jury trials).3 R v Kempson [2020] NZHC 2929 at [7].[5] Yesterday, on 16 December 2020, Mr Kempson filed a memorandum "seekingcontinuation of suppression orders": to preserve the appellant's fair trial rights, as either this Court orthe Supreme Court may allow the appeal and order a retrial (by jury).The position is the same in respect of the sexual violation matters, which arebeing appealed to this Court.Submissions[6] For Mr Kempson, Ms Cooper submits continued orders are needed not becauseof the prospect of retrial following the present appeal, but retrials in either or boththe sexual violence cases. Publication of Mr Kempson's name, and his convictions,may impair his potential fair retrial rights.[7] Mr Dickey for the Crown opposes extension. He submits the Court's orders in2019 were clear as to term and were reinforced by Venning J's direction of6 November. He says the interests of open justice should now prevail over aspeculative possibility of appeals being allowed and Mr Kempson also being allowedto revert to trial by jury in any retrial.[8] For the media interests represented, Mr Stewart supports the stance taken bythe Crown. He submits the time has long passed when suppression should continue.Mr Kempson no longer enjoys the presumption of innocence, and the prospects ofretrial and reversion to a jury trial in either of the sexual violence cases is merelyspeculative.Discussion[9] The orders for suppression in the present appeal and the trials below werealways bound to expire on delivery of this Court's judgment, as Venning J's ordersmade clear. Those were not appealed, and we think it is far too late to come to us nowat the eleventh hour, as the Court's judgment in the primary appeal is about to bereleased and seek further continuation of the orders. Nor does the application haveany merit.[10] In this case, Mr Kempson relies generally on s 200(2)(d): "create a real risk ofprejudice to a fair trial". No other basis for suppression is identifiable. We are notpersuaded that further suppression is justifiable, such that this Court's discretion toextend the orders should be exercised.[11] First, the potential for fair trial being affected does not concern the presentproceeding, despite the application originally being cast in that way. Should eitherthis Court or the Supreme Court order retrial, and retrial proceeds before a jury, thatjury will know the identity of Mr Kempson.[12] Secondly, we turn then to fair trial interests in relation to the sexual violationand related charges. These have been heard and resolved. Convictions have beenentered. Appeals have been filed in this Court. Ms Cooper raises the spectre ofappellate reversal and retrial. There are a number of difficulties with that submission:(a) Retrials occur regularly where there has been prior publicity given tothe index or other charges. Strong judicial directions are devised anddelivered to deal with that. In this case however it is extremely unlikelyany jury retrial would occur.(b) Mr Kempson had elected trial by jury, but had withdrawn that electionby leave given under s 53(2). Without commenting on the likelihoodof it occurring, in the event of retrial being ordered we would expectthat retrial to be conducted in accordance with the pretrial ordersalready made, including as to mode of trial. Mr Kempson wouldtherefore need to seek leave to reinstate his original choice of mode oftrial, presumably under s 51(2). The prospects of that being grantedappear low. Ms Cooper was unable to identify any requisite change ofcircumstance for the purposes of s 51(2). Plainly, if mode of retrialremained Judge-alone, no issue of impairment of fair trial rights arises.(c) Even if Mr Kempson were granted leave and allowed to reverse trackagain on mode of trial, jurors would almost certainly need to beinformed of Mr Kempson's conviction for the murder of Ms Millane.While the New Zealand media deserves great credit for its obedienceto the suppression orders made in the High Court and this Court, theseorders have not been effective in overseas jurisdictions. Mr Kempson'sname has been widely published in association with the death ofMs Millane. It would not be sufficient to rely on generalised directionsas to circumspection from internet searching for the defendant's name.Any such search instantly produces his association with Ms Millane.As a result, Brewer J advised counsel before the change of election thathe considered the best way to ensure Mr Kempson's fair trial rights wasto confirm the Millane link to the jury panel, empanel a jury whichbelieved it could be impartial, and give strong, tailored directions toreinforce the need for impartiality.[13] Thirdly, it is time now for a dose of reality. Regardless of his culpability formurder, Mr Kempson admits he killed Ms Millane and disposed of her body.There was no issue as to identity at this trial, and nor could there be. This all occurredmore than two years ago. Mr Kempson has been convicted at all three trials and nolonger enjoys the presumption of innocence. In the ordinary way, there is a genuineand proper public interest in his identity being disclosed.4 Suppression occurred onlybecause of the severance of charges and the separate trials he was facing. As eventsplayed out, that step was futile, given both the degree of publicity given toMr Kempson's association with Ms Millane on the internet, and his election of trial byJudge alone. Be that as it may, with the conclusion of those trials, if not of the wholelegal process, it is time for the curtains of suppression to be drawn back and the lightof open justice allowed back in.[14] Finally, we note Ms Cooper's belated attempt to invoke s 286, in her replysubmissions, a provision not addressed in her written memorandum or primary oralsubmissions. She suggests this Court is bound to now make an interim order becauseMr Kempson would wish to seek leave to appeal to the Supreme Court if we declinethe application heard today. We do not consider the provision is available in thecircumstances of this case where: (1) the orders defining the duration of suppression4 R (CA340/2015) v R [2015] NZCA 287 at [35].are made at an earlier time, (2) no appeal was filed within time against those orders,and (3) what instead is done is a last-gasp application for continuation. If we are wrongin taking that view, it will be for the Supreme Court to tells us that. There is timeavailable to apply for leave to the Supreme Court prior to the lapsing of the order.[15] We therefore advised counsel at 11.50 am that the application would bedeclined.Result[16] The application for continued suppression of the appellant's name is denied.[17] Name suppression will lapse at 11 am on Friday 18 December 2020.Solicitors:Crown Solicitor, Auckland for Respondent