FAWCETT v R [2023] NZCA 183

FAWCETT v R [2023] NZCA 183 [22 May 2023]NOTE: THE SUPPRESSION ORDERS MADE BY GENDALL J DURINGTHE TRIAL OF THE APPELLANT AS MODIFIED BY DUNNINGHAM J INA JUDGMENT DATED 25 FEBRUARY 2022 REMAIN IN FORCE.IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA290/2022[2023] NZCA 183BETWEEN MAUHA HUATAHI FAWCETTAppellantAND THE KINGRespondentHearing: 27 April 2023Court: Cooper P, French and Brown JJCounsel: C W J Stevenson and K H Cook for AppellantB F Fenton for RespondentJudgment: 22 May 2023 at 10.30 amJUDGMENT OF THE COURTThe appeal is dismissed for want of jurisdiction.____________________________________________________________________REASONS OF THE COURT(Given by French J)Introduction[1] Mr Fawcett seeks to appeal a decision of Dunningham J in which the Judgedeclined to revoke a suppression order suppressing publication of the identities of twopolice officers.1 The decision arose from an application made by Mr Fawcett unders 208 of the Criminal Procedure Act 2011.2[2] This judgment is limited to the issue of whether the Court has jurisdiction tohear the appeal.Background[3] In 2009, the police officers in question interviewed Mr Fawcett on fouroccasions about the murder of Ms Mellory Manning (the first interviews). At the timeof these interviews, Mr Fawcett was not a suspect but was interviewed as a person ofinterest.[4] Mr Fawcett did however later become a suspect and between 2009 and 2012he was interviewed by other police officers on a further five occasions as a suspect(the suspect interviews).[5] In 2012 he was charged with murder, the indictment being filed on12 November 2012. The latter date is significant for reasons we later explain.[6] The trial took place in February and March of 2014. During the trial, the trialJudge, Gendall J, made various suppression orders. These included an interimsuppression order regarding the identity of the officers who had conducted the firstinterviews.3 It is common ground that the Judge made the orders under s 202 of theCriminal Procedure Act.[7] The interim suppression orders became permanent on 3 March 2014.4[8] On 11 March 2014, the jury found Mr Fawcett guilty of Ms Manning's murder.1 R v Fawcett [2022] NZHC 285 [Suppression decision].2 Section 208 of the Criminal Procedure Act 2011 empowers a judge to review a suppression orderand revoke or vary it.3 R v Fawcett HC Christchurch CRI-2012-004-5233, 27 February 2014.4 R v Fawcett HC Christchurch CRI-2012-004-5233, 3 March 2014.[9] In 2017 this Court quashed the conviction on the grounds that evidence ofMr Fawcett suffering from foetal alcohol syndrome cast doubt on the reliability of hisstatements to police.5 A retrial was ordered.[10] However, the retrial never eventuated. That was because in September 2021Dunningham J held that the statements made by Mr Fawcett at the suspect interviewshad been made in circumstances that were likely to have adversely affected theirreliability and were therefore inadmissible under s 28 of the Evidence Act 2006 (theadmissibility decision).6[11] The Crown conceded that without the statements, there was insufficientevidence to re-try Mr Fawcett. It therefore sought leave to withdraw the murder chargeunder s 146 of the Criminal Procedure Act. That was opposed by Mr Fawcett becausethe withdrawal of a charge does not prevent subsequent proceedings being issued.Mr Fawcett instead applied for the charge to be dismissed under s 147 of theCriminal Procedure Act, which has the effect of a deemed acquittal. Dunningham Jagreed that was the appropriate course of action and accordingly dismissed thecharge.7[12] Following this decision, Mr Fawcett and Stuff Ltd (Stuff) sought the revocationof various suppression orders made during the original trial including the suppressionorders relating to the first interviews. Dunningham J accepted that she had jurisdictionunder s 208 of the Criminal Procedure Act to review the suppression orders becausethere had been a significant change of circumstances since the orders were made in2014.8 The primary change of circumstances relied on by Stuff and Mr Fawcettincluded the Judge's admissibility decision as well as publicity in the media about thefirst interviews.5 Fawcett v R [2017] NZCA 339, with reasons given in a subsequent judgment: see Fawcett v R[2017] NZCA 597.6 R v Fawcett [2021] NZHC 2406 at [300]–[301] and [308] [Admissibility decision].7 R v Fawcett [2021] NZHC 2858, with reasons given in a subsequent judgement: see R v Fawcett[2021] NZHC 2969.8 Suppression decision, above n 1, at [43]–[46], relying on NZME Publishing Ltd v R [2018] NZCA363 at [19].[13] After a review of the suppression orders, the Judge concluded that someaspects of the suppression orders should be modified but that the names of the officerswho conducted the first interviews were to remain suppressed.9[14] Mr Fawcett then filed a notice of appeal against this latter ruling. The Crownsignalled that it opposed the appeal and also raised jurisdictional issues. In a minutedated 18 August 2022, Cooper P directed that the issue of whether there wasjurisdiction for the proposed appeal and, if so, the appropriate pathway, should beresolved separately from a consideration of the substantive merits.[15] In contending that Mr Fawcett had a right of appeal, his counsel Mr Stevensonidentified four possible appeal pathways that would give this Court jurisdiction:(a) s 283 of the Criminal Procedure Act;(b) s 379A of the Crimes Act 1961;(c) s 208 of the Criminal Procedure Act; and(d) appellate pathways for civil proceedings.[16] At the hearing, Mr Stevenson conceded it was not tenable to categorise the caseas a civil matter and that it needed to be considered under available criminal pathways.We agree and in light of the concession need not address the arguments raisedregarding the rights of appeal in a civil proceeding.[17] Mr Stevenson also resiled from his previous contention that the appeal pathwayunder s 283 of the Criminal Procedure Act was available. In our view, that was alsoan appropriate concession. However, it is important to explain why we consider thatto be so. Accordingly, we address s 283 before considering the two pathways thatwere actively promoted at the hearing.9 At [51].Section 283 of the Criminal Procedure Act[18] Section 283 of the Criminal Procedure Act provides:283 Right of appeal against decision on suppression order(1) A person specified in subsection (2) may appeal under this subpart tothe first appeal court against a decision of a court—(a) to make or refuse to make a suppression order; or(b) to renew, vary, or revoke a suppression order under section208.(2) The persons who may appeal are—(a) the applicant for the suppression order; or(b) the prosecutor; or(c) a member of the media to whom section 210(1) applies.[19] In our view, there are two reasons why s 283 does not provide Mr Fawcett witha right to appeal. First, Mr Fawcett does not come within the category of persons listedin s 283(2) with standing to bring an appeal. He did not apply for the suppressionorder at issue, is not a prosecutor and not a member of the media.[20] The second and even more fundamental reason arises from the effect of thetransitional provisions under the Criminal Procedure Act on appeal pathways, inparticular s 397. The effect of s 397 is that proceedings which began before thecommencement date of any particular provision in the Criminal Procedure Act andwhich were not fully determined before that date must continue in accordance withthe law as it was before the provision in question came into force.[21] The commencement date for s 283 was 1 July 2013.10 The proceeding againstMr Fawcett began before 1 July 2013. It began on 12 November 2012, the date theindictment was filed. Mr Fawcett's proceeding was also not determined before1 July 2013. His proceeding thus falls within s 397, putting the appeal right unders 283 out of Mr Fawcett's reach and making it necessary to consider the law relatingto appeal rights that applied before s 283 came into force10 Criminal Procedure Act Commencement Order 2013, cl 2.[22] The fact that the suppression order itself was made under theCriminal Procedure Act makes no difference to this analysis. That is because differentparts of the Criminal Procedure Act came into force at different times. The provisionunder which Gendall J made the order – s 202 of the Criminal Procedure Act – cameinto force on 5 March 2012.11 Unlike s 283, it was thus already in force when theproceeding against Mr Fawcett commenced in November 2012 and so outside thescope of the transitional provisions.[23] What then were the available appeal pathways in criminal proceedings prior tothe enactment of the Criminal Procedure Act? They were primarily found in theCrimes Act 1961. And it is one of those Crimes Act provisions – namely s 379A (nowrepealed) – that Mr Stevenson relies on instead of s 283 of the Criminal ProcedureAct.Section 379A of the Crimes Act 1961[24] Section 379A relevantly provided:379A Right of appeal in certain cases(1) At any time before the trial, or as the case may require a later retrial,either the prosecutor or the accused person, with the leave of the courtappealed to, may appeal to the Court of Appeal or the Supreme Courtagainst any of the following orders (whether made in relation to thetrial or a later retrial of charges), namely,—(ba) against the making of an order under section 200, 202, or 205of the Criminal Procedure Act 2011, or the refusal to makeany such order:[25] Orders made under the three sections specified in s 379A(1)(ba) are varioustypes of suppression orders. Indeed, as already mentioned, the suppression order madeby Gendall J in this case was made under s 202 of the Criminal Procedure Act.11 Criminal Procedure Act Commencement Order 2011, cl 2.[26] However, there is an obvious difficulty applying this Crimes Act provision tothe present case. The right to appeal under s 379A is expressed to apply "before thetrial, or as the case may require a later retrial". Yet Mr Fawcett's trial concluded nineyears ago and he is not facing a retrial.[27] Mr Stevenson acknowledged the difficulty but submitted it was "not theknockout blow" that it might first appear to be. Noting that the interpretation of astatute is "animated by context, policy and purpose" and that the proposed appealraises important issues of open justice and the integrity of the justice system, he urgedus to follow the approach taken by the Supreme Court in C v R.12 He submitted thatin C v R, the Supreme Court was confronted by a similar awkwardness of language ina different provision but its instinct was to adopt an expansive interpretation and strainto find jurisdiction so as to enable important questions to be determined on their merits.Thus, the phrase "convicted persons" was interpreted by the majority of the Court toinclude defendants who had been acquitted.13[28] Developing this submission, Mr Stevenson contended that in the same spirit,we should find that the theoretical possibility of a retrial is sufficient to bringMr Fawcett's proposed appeal within s 379A. He acknowledged there was currentlyno realistic prospect of Mr Fawcett being re-tried. However, a theoretical possibilityexisted because even though a person has been acquitted, they may be re-charged ifcompelling new evidence probative of guilt is subsequently discovered.14[29] We do not accept that a theoretical possibility of a retrial is capable ofconferring a right of appeal under s 379A. The difficulties are more than anawkwardness of language. They are in our view insuperable.[30] First, the order now sought to be appealed was made in relation to a trial, not aretrial.12 C v R [2021] NZSC 110, [2021] 1 NZLR 530.13 At [26]–[27].14 Criminal Procedure Act 2011, s 154.[31] Secondly, the wording of s 379A is in any event only capable of theinterpretation that the right of appeal must be exercised before the trial. An appealagainst an order made during the trial is thus outside its scope.[32] Thirdly, the section clearly contemplates that the pending trial or retrial mustbe an actual trial or retrial, not a theoretical or notional one. Not only is that indicatedby the unambiguous wording of the section, but also by the underlying purpose of theappeal pathway, which must be to ensure that the trial or retrial is conducted lawfully.[33] We are therefore satisfied that in light of the text and purpose of s 379A,Mr Stevenson's proposed interpretation is not tenable. To adopt it would be contraryto Parliament's intention and to stray beyond the proper role of the Court. The onlyavailable reading of the provision is that it applies to pre-trial or pre-retrial orders andconfers a right of appeal that must be exercised before the trial or retrial as the casemay be. It does not assist Mr Fawcett.[34] For completeness we note that the legislative history of theCriminal Procedure Act supports this interpretation. The relevant departmental reportspecifically identified the inability to bring a criminal appeal against suppressionorders made at trial as a gap to be closed in the new legislation.15Section 208 of the Criminal Procedure Act[35] It will be recalled that the decision sought to be appealed was the outcome ofa review conducted under s 208 of the Criminal Procedure Act.[36] Section 208 states:208 Duration of suppression order and right of review(1) A suppression order—(a) may be made permanently, or for a limited period ending ona date specified in the order; and(b) if it is made for a limited period, may be renewed for a furtherperiod or periods by the court; and15 Ministry of Justice and Law Commission Departmental Report for the Justice and ElectoralCommittee: Criminal Procedure (Reform and Modernisation) Bill (16 May 2011) at 206.(c) if it is made permanently, may be revoked by the court at anytime.(2) If the term of a suppression order is not specified, it has permanenteffect.(3) A suppression order may be reviewed and varied by the court at anytime.[37] In NZME Publishing Ltd v R this Court held that the jurisdiction conferredunder s 208 is a jurisdiction to vary or revoke a suppression order where there has beena change of circumstances which warrants re-visiting the order.16 The Court also heldthat the section does not provide an opportunity to advance a collateral attack on thecorrectness of the original order.17[38] Section 208 itself does not specify who has standing to apply for such a review.But it has been held in another decision of this Court, Taylor v C, that anyone who hasa proper interest may apply under s 208.18 We accept, as Dunningham J must havedone, that Mr Fawcett is a person who has a proper interest for the purposes of makingsuch an application.[39] Section 208 does not itself confer any rights of appeal against a decision madeunder it. The only express right to appeal such a decision is found in s 283 of theCriminal Procedure Act which cannot apply to this case for reasons already traversed.[40] Undaunted, Mr Stevenson submitted that nevertheless this Court could assumejurisdiction to hear the appeal under s 208 on the basis there have been changes ofcircumstances since Dunningham J's decision. We understand these changes relate tochanges in the personal circumstances of the officers and information in the publicdomain.[41] However, in our view, it would be wrong for this Court to arrogate jurisdictionto itself to hear an appeal under the guise of a review, especially when Parliament hasprovided for express appeal rights in another provision.19 The review that is to be16 NZME Publishing Ltd, above n 8, at [16].17 At [16].18 Taylor v C [2017] NZCA 372 at [24] and [34].19 Namely s 283.undertaken under s 208 is a review conducted by the same Court that made the orderat issue.20 That is why it is called a right of review as distinct from a right of appeal.This Court did not make the suppression order at issue. Accordingly, assuming thereare operative changes of circumstances arising since the High Court decision, thenMr Fawcett's remedy is clearly to go back to the High Court and seek another review.Conclusion[42] For the reasons given above, we are satisfied that none of the possible appealpathways is available to Mr Fawcett. The Court does not have jurisdiction to entertainhis appeal and it is accordingly dismissed.Solicitors:Crown Law Office, Wellington for Respondent20 Cosci v District Court at Tauranga [2017] NZHC 1907, [2017] NZAR 1721 at [18]–[20].