R (CA340/2015) V R [2015] NZCA 287

R (CA340/2015) V R [2015] NZCA 287 [6 July 2015]ORDER THAT INTERIM NAME SUPPRESSION GRANTED BY THE HIGHCOURT SHALL CONTINUE ON THE TERMS SET OUT IN PARAS[37]–[38].ORDER THAT PUBLICATION OF THE JUDGMENT AND ANY PART OFTHE PROCEEDINGS (EXCEPT THE RESULT AS SET OUT IN PARAS[39]–[40]) IN NEWS MEDIA OR ON THE INTERNET OR OTHERPUBLICLY AVAILABLE DATABASE IS PROHIBITED ON THE TERMSSET OUT IN PARAS [37]–[38]. PUBLICATION IN LAW REPORT OR LAWDIGEST PERMITTED.IN THE COURT OF APPEAL OF NEW ZEALANDCA340/2015[2015] NZCA 287BETWEEN R (CA340/2015)AppellantAND THE QUEENRespondentHearing: 24 June 2015Court: Wild, French and Winkelmann JJCounsel: C B Wilkinson-Smith for AppellantK Raftery and M Hammer for RespondentT C Goatley for NZME. Publishing Limited, Fairfax NewZealand Limited, MediaWorks TV Limited, Radio New ZealandLimited and Television New Zealand LimitedJudgment: 6 July 2015 at 3 pmJUDGMENT OF THE COURTA The appeal is dismissed.B Interim name suppression granted by the High Court shall continue on the terms set out in paragraphs [37]–[38] of this judgment.C Publication of the judgment and any part of the proceedings (except the result as set out in paragraphs [39]–[40]) in news media or on theinternet or other publicly available database is prohibited on the terms set out in paragraphs [37]–[38] of this judgment. Publication in law report or law digest permitted.____________________________________________________________________REASONS OF THE COURT(Given by Winkelmann J)[1] The appellant was convicted of murder and rape on 22 May 2015. He had been granted name suppression to continue until the end of the trial to protect jurors from learning of his previous convictions.1 They were not admissible evidence at his trial, and the suppression order was made to preserve the appellant's right to a fairtrial.[2] Following the guilty verdicts the appellant advised the trial Judge, Brewer J, that he intended to appeal against his conviction and seek a retrial. He applied for continuing suppression to safeguard a fair trial in the event of a successful appeal and subsequent retrial. The Judge refused to grant continuing name suppression.2[3] The appellant appeals that refusal.3 The appellant argues that the Judge failed to address himself to the relevant statutory test. Had he done so, he would have beensatisfied that the refusal of suppression jeopardised the appellant's right to a fairretrial, should a retrial eventuate.Preliminary matters[4] At the commencement of the hearing of the appeal, we addressed two preliminary matters. The first, an application by NZME. Publishing Limited, Fairfax New Zealand Limited, MediaWorks TV Limited, Radio New Zealand Limited and Television New Zealand Limited for leave to be heard in opposition to the appeal.1 R v R HC Auckland CRI-2014-044-2080, 18 June 2014 [Callover Minute]; R v R [2015] NZHC 817.2 R v R HC Auckland CRI-2014-044-2080, 22 May 2015 [Minute No 10].3 The appellant has interim name suppression pending the outcome of this appeal, Minute No 10 at [2].The application was opposed by the appellant, although he advanced no argument in support of that opposition.[5] The media have an interest in the outcome of this appeal which flows fromtheir interest in reporting court proceedings to the public. The media's interest inname suppression issues has statutory recognition in various provisions of the Criminal Procedure Act 2011.4 These particular media organisations have been heard on name suppression issues in the High Court, including in connection with the decision appealed from. We are satisfied their interest is such that they should be granted leave to be heard on this appeal.5[6] The second preliminary matter was the appellant's application that a memberof this Court, Winkelmann J, recuse herself. This application was made at the commencement of the hearing and was brought on the grounds that Winkelmann J had dealt with a number of pre-trial issues in the High Court proceeding, including dismissing an application for stay of proceedings on the grounds of pre-trial publicity.6 Counsel for the appellant submitted that these circumstances gave rise to a reasonable apprehension of bias. Winkelmann J declined to recuse herself. We briefly record here her reasons for doing so.[7] Establishing apparent judicial bias requires first establishing the actual circumstances that have a direct bearing on a suggestion that the judge was or may be seen to be biased. Secondly, it must be determined whether those circumstances might lead a fair-minded lay observer to reasonably apprehend the judge might not bring an open mind to the resolution of the case.7[8] Here Winkelmann J had not previously been asked to determine the merits of name suppression even as a pre-trial issue, and in any event the issue on this appeal is name suppression following conviction, and pending appeal. There are occasionswhere a judge's prior rulings might lead a reasonable person to question whether he4 Criminal Procedure Act 2011, ss 210 and 283, which apply to members of the media who are reporting on the proceedings and who are either subject to or employed by an organisation that is subject to a code of ethics and the complaints procedures of the Broadcasting Standards Authority or the Press Council.5 Lynn Robertson v Police [2015] NZCA 7 at [29]-[31].6 R v R [2015] NZHC 798.7 Muir v Commissioner of Inland Revenue [2007] NZCA 334, [2007] 3 NZLR 495 at [40].or she will remain impartial in any subsequent proceedings, but only in the rarest of circumstances.8 There has to be some real ground for doubting the ability of the judge to bring objective judgment to bear.9 There are no circumstances that give rise to such a concern in this case.Name Suppression: Relevant principles[9] In this case, the Judge's name suppression decision was made within the framework of s 200 of the Criminal Procedure Act, which provides in material part: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 convicted or acquitted of, an offence.(2) The court may make an order under subsection (1) only if the court is satisfied 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 person connected with that person; or(b) cast suspicion on another person that may cause undue hardship 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 is suppressed by order or by law; or(g) prejudice the maintenance of the law, including the prevention, investigation, and detection of offences; or(h) prejudice the security or defence of New Zealand.[10] This section reflects the longstanding presumption in favour of open reporting of proceedings in court, which is based on two fundamental principles of our constitutional order, open justice and freedom of expression.108 Muir v Commissioner of Inland Revenue, above n7, at [98].9 Locabail (UK) Ltd v Bayfield Properties Ltd [2000] QB 451 (CA) at 480, applied in Jessop v R[2007] NZSC 95 at [6].10 Re Victim X (No 2) [2003] 3 NZLR 220 (HC) at [31].[11] As this Court has earlier held, the decision whether to grant name suppression under s 200(2) involves a two-step test:11[39] Stage one is a threshold determination. Stage two is adiscretionary assessment.[40] At the first stage, the judge must consider whether he or she is satisfied that any of the threshold grounds listed in 200(2) has been established. That is to say, whether publication would be likely to lead to one of the outcomes listed in subs (2). The listed outcomes are prerequisitesto a court having jurisdiction to suppress the name of a defendant. It is "only if" one of the threshold grounds has been established that the judge is able togo on to the second stage.[41] At the second stage, the judge weighs the competing interests of the applicant and the public, taking into account such matters as whether the applicant has been convicted, the seriousness of the offending, the views of the victims and the public interest in knowing the character of the offender.Submissions on appeal[12] The challenge to Brewer J's refusal to grant name suppression is brought onthe basis that he failed at the threshold stage to address the risk to a fair retrial in the event of a successful appeal should name suppression be refused. Counsel for the appellant surmises that if name suppression is refused, news items would traverse the following:(a) Seven offences committed over two days in December 2005: abducting one child, attempting to kidnap two others, committing three indecencies on the abducted child and robbing a further child.(b) Details regarding the worst offending against the five year old complainant, as set out in the sentencing notes of Keane J:12[6] An extensive police search was mounted after DM alerted his teacher and at 9.45 am a police sergeant, acting on instinct, extended the search to the area near Kaiate Falls, out ofTauranga. He found you in your mother's car parked on KaiateFalls Road, a short distance from the entrance to the Falls. When you sat up he saw KM in the front passenger seat, which was set back in the reclined position. She was upset and crying and told him that she wanted to get out of the car.11 Robertson v New Zealand Police, above n 5,(footnotes omitted).12 R v [R] HC Tauranga CRI 2005-070-453,4 October 2006.[7] KM, in her disclosure interview, said she had got into the car because she had anticipated that she was to get a Christmas present just as you said. She said that at Kaiate Falls you made her lie back on the seat. You asked to photograph her boxer shorts, which were later found in the back of the car. You then told her to roll on to her stomach. You wished to photograph her bottom. She described you as touching her knickers and bottom and licking her thigh and trying to kiss her face. She pushed you away and protested.(c) The appellant's 2006 trial where he denied the offending andmaintained that he found the five year old "standing, distressed, by the roadside", had intended to take her home and denied touching herindecently.(d) The appellant's offending against a prison officer while awaiting his2006 trial.(e) The fact that preventive detention was declined by Justice Keane at sentencing for the 2005 offending.(f) The appellant's eight year sentence for the 2005 offending and theoffending against the prison officer, which was served in its entirety.(g) Further convictions for breaching his parole release conditions.(h) The extended supervision order made by Wylie J on 19 February 2014 for a period of 10 years.[13] The appellant argues that the case for name suppression pending appeal was strong. The Judge had accepted pre-trial that this material was of a sensational nature, so that publication of it could create a real risk of prejudice to a fair retrial.13The same remained true post-conviction, perhaps more so because this sensational information will now be linked to a man who has been convicted of another equally sensational crime. The Judge failed to accord this factor any weight. Although the Judge noted the submission that public knowledge of the appellant's criminal history13 Callover Minute at [14].would likely prejudice any future retrial, the Judge's reasoning on this issue was nomore extensive than:14I think that is something that will have to wait and be determined at the time if it occurs. I agree with Mr Raftery that there is nothing so unusual about this case that name suppression should continue. There have been many examples of high profile convictions followed by retrials with fair trials as a result.[14] The appellant says that this was indeed an unusual case. The existence of name suppression during trial is in itself unusual, as is the extent of prejudicial material that will be widely available online should name suppression not continue.[15] In support of suppression, the appellant emphasises that suppression now does not deprive the public of the right to know about and explore all of the background matters. It is simply a matter of timing; the effect of granting name suppression is to defer the time at which the public will have access to that information.The threshold question: would publication be likely to create a real risk of prejudice to a fair retrial?[16] This was the first issue for the Judge to address. The Judge's reasons fordeclining name suppression pending appeal are very brief. Nevertheless we agree with counsel for the media and the Crown that the Judge did determine the application on the basis that he was not satisfied that publication of this material was likely to cause a real risk of prejudice to a fair retrial. For the reasons we now setout, we agree with the Judge's decision on this issue.[17] The first point to observe is that what the Judge had to consider was not the risk of prejudice to a trial, but rather to a hypothetical retrial which may or may not occur at some indeterminate time in the future. The appellant has yet to appeal, although we accept his statement that he will appeal and his counsel's advice to usthat grounds of appeal have been identified. There is no certainty that his appeal will be successful. If it is, then there is a further issue as to whether a retrial will be ordered. Nevertheless we accept the appellant's submission that the provisions of14 Minute No 10 at [1].s 200(2)(d) are broad enough to capture the risk of prejudice to a retrial. The lack of certainty that there will ever be a retrial is clearly a matter to be weighed, but we consider that factor is relevant at the second stage of the s 200 inquiry, if it is reached.[18] We also accept the appellant's argument that the information which would be published about the appellant's previous convictions is prejudicial and would not beadmissible at trial. It involves the abduction of a child and sexual offending against that child. There is also associated material which will probably be traversed in the media including various judicial assessments of his risk of reoffending. The coverage is likely to be such that it will reach a significant proportion of those who would be eligible jurors in the case of a retrial.[19] Counsel for the media argue that in weighing the risk of prejudice we should proceed on the basis that although there would be an initial flurry of media reporting, this will quickly fall away,15 and around the time of any retrial responsible media will observe usual reporting guidelines. It is on this basis that the media argue that the detail of the information will quickly fade from the public consciousness, so that it will be possible to summon a jury unaffected by anything more than the bare bones of the information: that the appellant has some serious previous convictions. The Crown says that this is no more than the public would know even if name suppression is ordered. It emerged at trial that the appellant had GPS monitoring; that was a critical part of the Crown case. It also emerged that he was on parole. When he is sentenced the Crown will refer to his previous convictions. It follows that the risk to a fair retrial should publication be allowed is more perceived than real.[20] We accept that the pattern of reporting is likely to be as the media contend. Nevertheless, our judgment is that it is appropriate to proceed on the basis that the detail will not fade with time, which was also the position of both the appellant and the Crown. When this information is reported it will be linked to the appellant'sconviction for the murder of Mrs Gotingco – a murder which has been intensely reported and has been the subject of considerable public interest. We think it is15 R v Rickards HC Auckland CRI-2005-063-122, 28 November 2005 at [94].likely to stick in the public consciousness that the man convicted of Mrs Gotingco'skidnap, rape and murder has previously committed a sexual offence against a child, and that he has previously been assessed as being at high risk of reoffending. Wealso accept the appellant's point that although it may have emerged at trial that theappellant probably had previous convictions, the jury were not aware of the nature of those convictions.[21] We do not however consider that the existence of such knowledge is likely to create a real risk of prejudice to a fair retrial which cannot be adequately managed by standard techniques available to a trial judge. We acknowledge the earlier offending was serious, and that it has some similarities to the offending against Mrs Gotingco. It involved abduction and for a sexual purpose. But it also has very real differences. The earlier offending was against a child and did not involve violence other than the violence inherent in sexual offending. Directions to a jury that these earlier convictions are irrelevant to the matters which they must decide, and explaining why it would be unfair to take the information into account against the appellant would be adequate to meet such prejudice. From time to time courts have to deal with defendants with high-profile earlier convictions, and this is the approach that is adopted.16[22] Trial judges regularly express confidence in the efficacy of judicial directions.17 They do so because it is the experience of trial judges that juries conscientiously follow judicial directions. If a strong direction is given, that direction combined with the intense focus the trial process places upon the evidence produced in the courtroom, and the additional discipline that the judicial summing up imposes on the jury, are sufficient to safeguard against the risk of illegitimate use by the jury of that information.[23] It is appropriate that we acknowledge that counsel referred us to many cases in which the Courts have discussed whether publication of a name will create a real risk of prejudice to a fair trial.18 Ultimately however whether such a risk exists has16 R v Michael Wesley Kumeroa [2010] NZCA 496 at [53].17 Montgomery v HM Advocate [2003] 1 AC 641 (PC) at 673.18 For example, Norsworthy v Police [2013] NZHC 2250; Fraser v R [2010] NZCA 313; Senior v R [2014] NZCA 620.to be determined on the facts of each case, so we do not propose to discuss those cases here.[24] We appreciate that we are taking a different view to that taken in the High Court pre-trial. When name suppression was ordered until the conclusion ofthe trial, it was the Judge's assessment that this would insulate the jury pool fromthis prejudicial information, thereby protecting the appellant's fair trial rights. It didnot follow from that determination that a fair trial was not possible if the information was in front of the jury. The judge was entitled to take a precautionary approach.[25] Following conviction the factual situation is different. In this case we consider it is also necessary to weigh the prejudice which could flow if these earlier convictions are not able to be directed upon at retrial. After all, the continuation of name suppression only makes sense if the information is able to be kept from this future jury. For the following reasons we consider that it is unlikely that it will be.[26] There will inevitably be more information available following sentence. The Crown tells us that it will be seeking both a minimum period of imprisonment above the standard minimum for murder, and will also seek an order for preventive detention. The sentencing judge will need to traverse the appellant's earlier offending history, and will again have to assess his risk of further offending. If name suppression is continued, some of the material in that reasoning process may have to be suppressed. But even if it is suppressed, preventive detention sentences are only able to be imposed where:19(i) the offender has previous qualifying offences (and qualifying offences are serious offences); and(ii) the Court is satisfied that the offender is likely to commit another qualifying offence.19 Sentencing Act 2002, s 87.Those are the legal reasons why a sentence of preventive detention may be imposed. Those legal reasons will of course be accessible to the public even through the mainstream media.[27] Continued suppression will encourage speculation and conjecture about what is being kept from the public. The longer that suppression continues while significant events are occurring in the criminal justice process, the more speculation and conjecture there will be.[28] Related to this is the fact that there is already extensive material available on the internet in connection with the appellant and his earlier offending. Some of it links the appellant and his early history to the offending against Mrs Gotingco. This information is unlikely to disappear. While responsible media will be constrained by suppression orders, the very fact of those suppression orders as well as the sentencing, the appeal and the (possible) retrial, will maintain online interest in the appellant and feed the generation of more material.[29] The appellant argues that online information is different to information in the mainstream media. Members of the public have to seek out information online, whereas information on television and in the print media is presented to them. This is a valid distinction where the suppression is ordered for a relatively short time. Here, the trial occurred within 12 months of offending. The internet is not a sealed container from which no information leaks. The appellant is now asking for a suppression order that would need to be at least another 12 months in duration. We expect that over that time the information available online in connection with the appellant would become widely known.[30] For the above reasons we do not consider that the appellant has established that the Judge erred in his determination of the threshold question. Should a retrial occur, the trial judge will be able to adequately manage any risk of prejudice to a fair trial which the availability of this information to the jury causes. We think a better guarantee of a fair trial is judicial direction to the jury about the risk of illegitimate reasoning based upon this information, rather than continued attempts to suppress it.The second stage inquiry[31] We make some observations in connection with the second stage of the inquiry. We do so because even if we are incorrect in the preceding analysis regarding the threshold issue, the appellant must fail at the second stage of the inquiry.[32] Although the fairness of a trial is non-negotiable the appellant has had his trial.20 We are now addressing the potential impact of publicity on a retrial that remains no more than a possibility. The Court must consider whether the possibility of a retrial and the possibility of unfairness from publication outweigh the principles of open justice. Different considerations apply where name suppression is sought pending appeal. We take into account that the appellant is now a convicted man. He no longer has the benefit of the presumption of innocence. As this Court said inR v Burns:21It is to be acknowledged at once that cases are rare indeed in which the Courts will decide that publication of information relating to the accused creates a substantial risk of prejudice at a second trial. A balancing exercise becomes inevitable, if only because the retrial is no more than a possibility. Once the jury has delivered its verdict and the prospect of a retrial is contingent on a successful appeal, the weight to be attributed to each of the competing values will differ. The courts then find it difficult to contemplate circumstances in which freedom of expression is outweighed, at least until it is clear that there will be a retrial. It is not until then that the presumption of innocence will again apply.[33] Also a matter to be weighed is the speculative nature of that which is sought to be protected. Suppression is sought to protect the right to a fair retrial which at the present time remains only a possibility.[34] The appeal relates to very serious offending. There is considerable public interest in knowing the appellant's identity, and his previous history. The appellantargues that suppression will simply delay publication and that there will ultimately be freedom for information to flow in a way that is consistent with the principles of open justice and freedom of expression. But the delay he seeks is significant,20 R v T [2006] 2 NZLR 577 (CA) at [64], applying R v A (No 2) [2002] 1 AC 45 (HL).21 R v Burns (Travis) [2002] 1 NZLR 387 (CA) at [16].especially when viewed in light of the seriousness of the offending and the nature of the other information which will come to light when the suppression is lifted.[35] We also take into account that the level of public interest is such that it is inevitable that the vacuum currently created by the existence of the suppression orders is being filled by rumour and speculation. This point is related to the earlier issue we addressed as to the impact upon a potential jury if name suppression is continued. But it is also relevant to consider that continued suppression is not in the interests of the administration of justice. As was said by this Court in Television New Zealand v R in connection with an earlier high profile murder trial:22The substantial public interest in the murder and the trial is however relevant in another way. The material presented to this Court demonstrates significant media interest in and speculation about the suppressed evidence.The suppression might itself "promote distrust and discontent". Thatspeculation is not in the interests of the administration of justice and is itself a reason supporting the revoking of the prohibition order.That continuing speculation, appearing for instance in major nationally distributed periodicals, is also relevant to the undoubted distress and anguishof members of the Bain family but the very continuance of the prohibitionorder may help fuel that speculation and add to their distress.[36] To conclude, were we to have answered the threshold question in the affirmative, we would still have declined to suppress in light of the balancing exercise contemplated in the second limb of the test. The appellant has been found guilty of serious criminal offending, and no longer has the benefit of the presumption of innocence. There is considerable public interest in knowing of his identity, and of his previous engagement with the criminal justice system. Continued suppression will be likely to create rumour and speculation, which will not only undermine confidence in the administration of justice but will also in itself undermine theappellant's right to a fair retrial. Against this we weigh that an appeal may or maynot be successful in the future. If it is successful, there may or may not be a retrial, although we do think a retrial would be inevitable in this case. At this point the suppression is sought to protect a notional right only. We see these factors weighing heavily in favour of refusing continued name suppression.22 Television New Zealand v R [1996] 3 NZLR 393 (CA) at 397.[37] Counsel for the appellant asked that in the event we dismiss the appeal, we continue the suppression order for two days to allow the appellant time to consider whether to seek leave to appeal to the Supreme Court from the judgment. We therefore order that until further order of this Court, interim name suppression granted in the High Court will continue and publication of this judgment and any part of the proceedings (except the result) in news media or the internet or other publicly available database is prohibited.[38] If by 5pm on Wednesday 8 July 2015 the appellant has notified the Registrar of his intention to appeal, the Court will be prepared to consider granting an interim suppression order under s 292 of the Criminal Procedure Act 2011. If such notification is not received this Court will issue a minute confirming that all suppression orders are at an end.Result[39] For the reasons above the appeal is dismissed.[40] We order that on the terms set out in paragraphs [37]–[38] above:(a) Interim name suppression granted in the High Court will continue; and(b) Publication of this judgment and any part of the proceedings (except the result as set out in paragraphs [39]–[40]) in news media or the internet or other publicly available database is prohibited. Publication in law report or law digest is permitted.Solicitors:Crown Law Office, Wellington for RespondentBell Gully, Auckland for media