STANDFAST v R [2019] NZCA 666

STANDFAST v R [2019] NZCA 666 [19 December 2019]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA536/2019[2019] NZCA 666BETWEEN JUST STANDFASTAppellantAND THE QUEENRespondentHearing: 11 November 2019Court: Courtney, Brewer and Gendall JJCounsel: M Zintl for AppellantM G McClenaghan for RespondentRKP Stewart for NZME Publishing Limited and Stuff LimitedJudgment: 19 December 2019 at 10 amJUDGMENT OF THE COURTA The application for leave to bring a second appeal is granted.B The application to adduce further evidence is declined.C The appeal is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Gendall J)Introduction[1] Just Standfast is a member of the Gloriavale Christian Community(Gloriavale). In November 2018 he pleaded guilty to one charge of sexual conductwith a child under 12 years.1 On sentencing Mr Standfast, Judge Neave suppressedhis identity pending disposition of sexual charges against another member ofGloriavale, AB.2 After AB's trial was aborted, Mr Standfast applied for an ordercontinuing suppression of his name pending any retrial. Judge Kellar refused thatapplication.3[2] Mr Standfast appealed unsuccessfully.4 He applies for leave to bring a secondappeal on the ground that Doogue J erred in concluding that publication of his nameand his connection to Gloriavale would not create a real risk of prejudice to AB' fairtrial rights.5[3] Leave for a second appeal must not be given unless this Court is satisfied that:6(a) the appeal involves a matter of general or public importance; or(b) a miscarriage of justice may have occurred or may occur unless the appeal isheard.[4] Mr Standfast's application rests on the risk of a miscarriage of justice.[5] For leave to be granted for a second appeal there must be an argumentreasonably available that the Court below is in error, although not every error will giverise to a miscarriage of justice.7 In Robertson v Police this Court declined to identifyany guiding principles for the application of the miscarriage of justice test inthe context of name suppression.8 The Court considered the assessment was likely tobe fact specific and may, in any event, be best left to judges in individual cases.9More recently, in Leef v Police, this Court summarised its assessment in Robertson1 Crimes Act 1961, s 132(3).2 R v Standfast [2019] NZDC 4648 [Sentencing notes] at [46].3 Christian v R [2019] NZDC 14897 [Suppression notes] at [49(c)].4 Standfast v R [2019] NZHC 2538 [High Court judgment] at [44].5 Criminal Procedure Act 2011, s 289(2)(b).6 Section 289(2).7 McAllister v R [2014] NZCA 175, [2014] 2 NZLR 764 at [37]–[38].8 Robertson v Police [2015] NZCA 7.9 At [57].(in relation to the granting of leave) as focused on "the identification of errors thatmight have genuinely impacted the outcome".10[6] For the reasons that follow, we are satisfied that errors made in the lower Courtjustify the grant of leave.Application to adduce fresh evidence[7] In the High Court Mr Standfast had applied to adduce further evidence insupport of his appeal against the decision allowing publication of his name andthe location of his offending. The Judge refused that application.11 There is nochallenge to that aspect of the High Court decision but Mr Standfast has renewed hisapplication in this Court to adduce the same evidence.[8] The evidence was in the form of an affidavit by AB regarding his concern aboutthe potential effect on his fair trial rights of publishing Mr Standfast's name anda second affidavit by an office administrator employed by Mr Standfast's counsel,Ms Saavedra, describing the results of an internet search on Gloriavale. Her searchhad produced what the Judge described as "merely a snapshot" of the hundreds ofthousands of documents to be found on the internet relating to Gloriavale, mostly innegative terms.12[9] The Judge had refused to allow either affidavit to be adduced on the groundthat the evidence was not fresh and was substantially submission.13 We take the sameview. The material could, clearly, have been adduced at the hearing beforeJudge Kellar so is not fresh.14 Nor does it add to Mr Standfast's case so as to requireit to be adduced in the interests of justice. It is common ground that there is extensivematerial available on the interest containing negative information and comment aboutGloriavale. It is unnecessary for further examples of this material to be adducedin order to determine the issues arising before us.10 Leef v Police [2019] NZCA 467 at [17].11 High Court judgment, above n 4, at [16].12 At [15].13 At [14].14 For discussion of the principles governing the admission of new evidence, see Lundy v R [2013]UKPC 28, [2014] 2 NZLR 273 at [120].[10] The application to adduce further evidence is therefore declined.Interim suppression under s 200 of the Criminal Procedure Act 2011[11] Suppression of Mr Standfast's name is, and has only ever been, sought onan interim basis pending disposition of the charges against AB for the purposes ofprotecting AB's fair trial rights.[12] Section 200(4) of the Criminal Procedure Act 2011 (CPA) permits an interimorder to be made if there is an arguable case that one of the grounds set out in s 200(2)applies. But an interim order made under s 200(4) expires at the person's next courtappearance and may only be renewed if the court is satisfied that one of the groundsin subs (2) applies.200 Court may suppress identity of defendant(1) A court may make an order forbidding publication of the name,address, or occupation of a person who is charged with, or convictedor acquitted of, an offence.(2) The court may make an order under subsection (1) only if the court issatisfied that publication would be likely to—(a) cause extreme hardship to the person charged with,or convicted of, or acquitted of the offence, or any personconnected with that person; or(b) cast suspicion on another person that may cause unduehardship to that person; or(c) cause undue hardship to any victim of the offence; or(d) create a real risk of prejudice to a fair trial; or(e) endanger the safety of any person; or(f) lead to the identification of another person whose name issuppressed by order or by law; or(g) prejudice the maintenance of the law, includingthe prevention, investigation, and detection of offences; or(h) prejudice the security or defence of New Zealand.(3) The fact that a defendant is well known does not, of itself, mean thatpublication of his or her name will result in extreme hardship for thepurposes of subsection (2)(a).(4) Despite subsection (2), when a person who is charged with an offencefirst appears before the court the court may make an interim orderunder subsection (1) if that person advances an arguable case that oneof the grounds in subsection (2) applies.(5) An interim order made in accordance with subsection (4) expires atthe person's next court appearance, and may only be renewed ifthe court is satisfied that one of the grounds in subsection (2) applies.(6) When determining whether to make an order or further order undersubsection (1) that is to have effect permanently, a court must take intoaccount any views of a victim of the offence conveyed in accordancewith section 28 of the Victims' Rights Act 2002.[13] As noted, the ground relied on in this case is s 200(2)(d), being a real risk ofprejudice to the fair trial rights of AB.15 If there is demonstrated a real risk of prejudiceto fair trial rights under s 200(2)(d), the right to a fair trial trumps other considerationsto be weighed in connection with name suppression.16 In considering the applicationof s 200(2)(d), it is relevant to bear in mind that fair trial rights are not merely a privatebenefit accruing to a particular person but are crucial to the integrity of the criminaljustice system generally.17The District Court's refusal to continue name suppressionThe District Court decision[14] Judge Kellar dealt with Mr Standfast's application to continue namesuppression together with an application for permanent name suppression by a formerGloriavale member, XY, who had been sentenced in May 2019 for sexual offendingagainst his daughter while at Gloriavale.18 XY's name and the fact that the offendinghad occurred at Gloriavale had also been suppressed on an interim basis.19[15] The interim orders relating to Mr Standfast and XY were both made withthe support of the Crown to protect AB's fair trial rights.20 The Crown supportedcontinued interim name suppression for Mr Standfast and permanent namesuppression for XY (for reasons relating to the victim of that offending).21 It also15 It was accepted that s 200(2)(d) could apply to the fair trial rights of a person other than the personseeking name suppression.16 MS (CA405/2016) v R [2016] NZCA 544 at [9].17 R v Burns (Travis) [2002] 1 NZLR 402 (CA) at [10]; and Siemer v Solicitor General [2013] NZSC68, [2013] 3 NZLR 441 at [18]–[20] and [156].18 Suppression notes, above n 3.19 At [1].20 At [25].21 At [16] and [25].supported suppression of the fact that both sets of offending occurred withinGloriavale.[16] The media opposed the applications.22[17] The application to renew the interim suppression order relating to Mr Standfastfell to be determined by reference to s 200(5) and consequently s 200(2)(d) — thatis, whether the court was satisfied that that there was a real risk of prejudice to a fairtrial. The Judge held that this threshold was not met because he was not satisfied thatpublication of Mr Standfast's identity and the Gloriavale connection would be likelyto create a real risk of prejudice to a fair trial for AB given that:23(a) there is already considerable material in the public domain about sexualoffending at Gloriavale;(b) it would be many months before a third trial for AB was reached,if indeed there was to be one;(c) any possible prejudice could be met by take-down orders, althoughthe efficacy of those may be limited; and(d) from his own observations of empanelling the jury in the earlierAB trial, he noted that Gloriavale matters are very well known inthe West Coast.[18] Judge Kellar:24(a) ordered permanent suppression of XY's name and any identification ofthe relationship between XY and his daughter, the victim;2522 At [26].23 At [47].24 At [49].25 See also [46].(b) declined to suppress publication that XY's offending occurred withinGloriavale and by a former member;(c) declined to suppress publication of Mr Standfast's name;(d) declined to suppress publication of the fact that Mr Standfast'soffending occurred within Gloriavale;(e) ordered continued interim name suppression of AB; and(f) ordered continued interim suppression of the fact the alleged offendingcommitted by AB occurred within Gloriavale.Events following the District Court decision[19] On 1 August 2019, counsel who acted for XY informed the District Court thatthe order permitting publication of the fact that XY's offending occurred withinGloriavale would not be appealed.[20] Following this, and on that same day, the media, as they were entitled to do,reported XY's offending online. The article detailed that the incidents of sexualoffending committed by XY occurred within Gloriavale. At the foot of this articlereference was also made to a West Coast teacher who indecently touched and exposedhimself to a nine-year-old pupil. Although the article did not identify Mr Standfast orhis connection to Gloriavale, the Crown says that the connection could be drawn,given it was included within the main story detailing the offending by XY.The High Court appeal[21] Mr Standfast advanced his appeal on the ground that, contrary to the view ofthe District Court Judge, there existed a real risk of prejudice to AB's fair trial rightsas a result of the similarities between his own offending and the alleged offending byAB (both involving a young person and occurring within Gloriavale) and the risk ofjurors seeing contemporaneous reporting about the community or searching for suchmaterial, despite being directed not to do so.26 In addition, prejudice to AB's fair trialrights could not be cured by take-down orders in relation to historical publications.27[22] The Crown adopted a neutral position but noted that XY's decision not toappeal publication relating to his offending identifying Gloriavale meant that detailsof this recent sexual offending within Gloriavale had been published online and sowere in the public domain.28 As a result, any potential prejudice and/or potentialimpact on AB's fair trial rights relating to the connection between his alleged sexualoffending and the fact that other sexual offending had taken place within Gloriavale,may have already occurred. The Crown noted, too, the widespread (albeit historical)media coverage of the prosecution of Gloriavale's founder, Hopeful Christian,for sexual offending at Gloriavale. The Crown identified the factors to be weighed:the principle of open justice; the fact that there had been recent publication of sexualoffending within Gloriavale; and the need to protect AB's fair trial rights (it confirmedthat there was to be a third trial).[23] Doogue J did not accept that either the significant negative publicity aboutGloriavale or the similarity of Mr Standfast's offending and the alleged offending byAB created a real risk that AB's fair trial rights would be prejudiced.29 In doing soshe relied on the decisions of the High Court and this Court of Appeal in Ready vPolice.30 Ready involved an unsuccessful application for name suppression bya Gloriavale member convicted of assaulting two of his children. His application hadbeen made for the purposes of protecting the fair trial rights of Mr Standfast (who atthe time had not yet been convicted) and AB. Dismissing Mr Ready's appeal, thisCourt said:31We accept that there is a close and critical media interest in Gloriavale.Much of the existing publicity about it, including articles on the day of thehearing before us about the circumstances of Prayer's death, is sharply criticalof Gloriavale. But as the Judge found, publicity about Mr Ready's offendingis not likely to cause a prospective juror to think a different Gloriavaledefendant is guilty of quite different offending. In our opinion any risk of that26 High Court judgment, above n 4, at [22]–[24].27 At [25].28 At [27].29 At [38]–[40].30 Ready v Police [2018] NZHC 1445 and Ready v R [2018] NZCA 458.31 Ready v R, above n 30, at [9].is readily capable of being managed by directions in which the trial Judge willhave to give in any event.[24] Doogue J considered that the same reasons applied to Mr Standfast'scircumstances, saying that:32[41] I do not consider it material that the appellant in Ready wasconvicted of a different type of offence to that committed by Mr Standfast andthose alleged to have been committed by [AB]. Dunningham J's reasoningremains applicable. Potential jurors are no more likely to be prejudicedagainst a member of Gloriavale charged with an offence similar to that forwhich another member of Gloriavale has already been convicted, than ifthe offences were different. Jurors will have the benefit of hearing andweighing up all the evidence before them and will receive guidance on theirrole from the trial Judge.[25] Summarising her other reasons for dismissing the appeal, the Judge said:[40] The force of Mr Standfast's appeal is based not on the potentialimpact that publicity of his name and offending could have on [AB's] fair trialrights, but rather the mere existence of publicly-available adverse publicityabout Gloriavale.[42] Because references to Mr Standfast's offending (but not identity)have been made in the course of reporting on the offending of the formerGloriavale member convicted of sexual offending, continued suppression ofMr Standfast's name could create speculation as to the identity of thatoffender. This may have a greater prejudicial effect on [AB's] fair trial rightsthat if the media were permitted to publish Mr Standfast's identity.[43] In this situation I am of the view that, as with more general prejudice,any specific prejudice to [AB's] fair trial rights that may arise from existingpublicity about Gloriavale can be addressed by judicial directions. That isthe conventional course taken by the courts when a defendant is associatedwith a controversial group or groups and there is no evidence before me tosuggest that it is not the appropriate course in this instance. Further, I agreewith [counsel for the media] that takedown orders remain a possibility inrespect of specific publicity that may be prejudicial.Appeal[26] Mr Zintl, for Mr Standfast, submitted that s 200(2)(d) does not create a highthreshold but simply requires an appellant to show that publication would be likely tocreate a real risk of prejudice to a fair trial. He argued that the Judge had erred in herassessment that the threshold ground in s 200(2)(d) was not satisfied by placing32 High Court judgment, above n 4.insufficient emphasis on the likelihood, nature and impact of future publicity tothe fair trial rights of AB if the suppression orders concerning Mr Standfast werelifted.[27] Mr Zintl considered that the prejudice to AB would arise primarily fromthe similarity of the charges against him and the nature of Mr Standfast's offending.He identified the fact that both were members of Gloriavale and in positions of poweror control (Mr Standfast being a teacher and AB a youth group leader), thatMr Standfast's offending and the alleged offending by AB occurred at Gloriavale,and that the complainants in both cases were young female members of Gloriavale.The Judge had referred to most of these similarities. But Mr Zintl argued thatthe Judge placed inadequate weight on these similarities as a result of her reliance onReady, in which the different nature of the offending was at the heart of this Court'sdecision to dismiss the appeals.[28] We agree that Ready is distinguishable because Mr Ready's offending was verydifferent to the (then alleged) offending by Mr Standfast and it was that fact that wascritical to the decision to refuse name suppression. In our view there must be a riskthat a jury's view of AB would be affected by the knowledge that another Gloriavalemember had recently pleaded guilty to similar offending. We therefore think thatthe Judge erred in concluding that potential jurors are no more likely to be prejudicedagainst a member of Gloriavale charged with offences that are similar to thosecommitted by another, than if the offences were different.[29] We turn, then, to the Judge's assessment that the existing publications onthe internet about Gloriavale (including Mr Standfast's and XY's offending) mean thatpublication of Mr Standfast's name would not be likely to create a risk of prejudice toAB's fair trial rights and that any risk would be addressed by the trial judge'sdirections. Mr Stewart, for the media interests, supported this reasoning. He pointedout that AB's trial is still months away, there is substantial information aboutGloriavale already in the public domain and jurors can be relied on to comply withdirections, including not to search the internet.[30] Mr Zintl acknowledged that a significant amount of negative and prejudicialcoverage about Gloriavale is already in the public domain. However, he submittedthat this fact, and even the fact that the suppression order may already have beenbreached by the reporting of Mr Standfast's offending when reporting on XY, does notexclude or diminish the potential impact of further prejudice to AB's fair trial rights.Mr Zintl relied on the statements in Solicitor-General v W & H Specialist PublicationsLtd in relation to future publication when there has already been pre-trial publication:33[29] Where there has already been extensive pretrial publicity, which mayin itself have created a risk of prejudice, a further publication may neverthelesscreate further risk by reviving the prejudice or otherwise reinforcing it[30] Whether there is a real risk in the particular case depends upon allthe circumstances, the most important of which are the impact ofthe publication and the timing in relation to trial. Dissipation of effect(and therefore the reality of risk) is a factor of both timing and impact.For that reason, it is not possible to develop a rule of thumb that the distanceof a fixed period from publication will prevent the risk of prejudice remainingreal. The assessment of real risk is inevitably a judgment which is specific tothe facts of the particular case.[31] Mr Zintl also cited, by way of example, M v Police in which this Court alloweda second appeal against the refusal to grant interim name suppression pending trialwhere the appellant had been the subject of widespread negative publicity and wouldsubjected to more upon the expected release of a coroner's report.34 The Courtconsidered that:[16] If there were no risk of enhanced publicity through the release ofthe coroner's findings, we would have had no difficulty in agreeing withthe views reached in the District Court and High Court. There has alreadybeen extensive publicity, adverse to the appellant, over the death of the twinsand the publication of her name in relation to the pending charges wouldsimply have to be managed. But when the coroner's findings are releasedthere will undoubtedly be extensive media publicity throughout the country.[17] If we were to lift the suppression order now, the publicity she wouldreceive upon the release of the coroner's findings would be likely to besignificantly enhanced by the revelation of the charges pending againstthe appellant. In the public's mind, there would an obvious linkage madebetween those charges and her role. The publicity is most likely to beadverse to the appellant and will make it more difficult for potential jurors tobe impartial.33 Solicitor-General v W & H Specialist Publications Ltd [2003] 3 NZLR 12 (HC).34 M (CA43/2012) v Police [2012] NZCA 135.[32] Mr Zintl described the media interest in the community as unprecedented andthe publication of stories about the community and its members as fanatical.He foresaw that if the Mr Standfast's name were no longer suppressed there would bea "media frenzy of epic proportions containing prejudicial articles or news stories onMr Standfast, the details of the offending and the connection to Gloraivale".This would potentially revive and reinforce the earlier prejudicial reporting and risktainting the jury pool.[33] The Judge's consideration of whether the s 200(2)(d) threshold was met wasdirected towards the effect of the existing adverse publicity about Gloriavale. She didnot consider the effect that publication of new information about Mr Standfast mighthave in terms of reinforcing the prejudicial effect of the existing coverage. This wasan error, though it does not mean that the result was wrong. We therefore considerthe matter afresh.[34] As we have already discussed, AB's fair trial rights must prevail overthe principle of open justice if publication would create a real risk of prejudice to thoserights. We start by noting again the fact that there is a substantial amount of prejudicialmaterial about Gloriavale generally in the public domain. This includes, specifically,details of previous sexual offending that has occurred within the community.This publicity is capable of having a prejudicial effect on AB when he stands trial,whether or not Mr Standfast's name is published. It is accepted that judicial directionsto the jury will be able to address that risk. The issue here is the risk that the inevitableprejudice caused by existing publicity will be reinforced or intensified bythe publication of about Mr Standfast's offending and whether that additional effect islikely to create a real risk to AB's fair trial rights that cannot be adequately addressedby the trial judge's directions.[35] In our judgment, the effect of the publicity that will arise from publication ofMr Standfast's name can be adequately addressed by directions from the trial judge.When considering the adequacy of jury directions to combat the prejudicial effect ofthe material, we take into account the fact this issue arises regularly as a result ofdefendants' associations with other groups that attract negative publicity.These include, for example, gangs and other religious groups. Trial judges arecognisant of the potential risks to the fairness of trial and accustomed to tailoring jurydirections to ensure that individuals receive a fair trial. Jurors in cases such as thismust be trusted to obey proper judicial directions.35[36] Jurors for AB's retrial will be drawn generally from the West Coast communitythat has lived close to Gloriavale for some time. They will be directed regardingthe information already in the public domain and the need to focus solely onthe evidence against AB adduced in the trial. We do not consider that the addition ofMr Standfast's offending to the body of information already available publicly is likelyto cause such additional prejudice that the effect could not be adequately addressed bytailored directions from the trial judge.[37] We therefore conclude that, although the Judge made errors in her assessmentof whether the s 200(2)(d) threshold had been met, the outcome was neverthelesscorrect.Result[38] The application for leave to bring a second appeal is granted.[39] The application to adduce further evidence is declined.[40] The appeal is dismissed.Solicitors:Crown Solicitor, Christchurch for Respondent35 Lyttelton v R [2015] NZCA 279, [2016] 2 NZLR 21 at [66].