Bailey v R
| Jurisdiction | New Zealand |
| Judge | Ellen France J |
| Judgment Date | 23 September 2011 |
| Neutral Citation | [2011] NZCA 480 |
| Docket Number | CA599/2011 CA601/2011 CA602/2011 |
| Court | Court of Appeal |
| Date | 23 September 2011 |
2011 NZCA 480
Ellen France, Harrison and Wild JJ
CA599/2011
CA600/2011
CA601/2011
CA602/2011
IN THE COURT OF APPEAL OF NEW ZEALAND
Application for leave to appeal against lifting of suppression orders by High Court — applicants faced charges of participation in an organised criminal group — suppression orders were in force in relation to pre-trial judgments — High Court rescinded existing suppression orders and substituted more limited suppression orders in relation to specific paragraphs of the judgments — whether there had been a lack of time for applicants' counsel to prepare for hearing on lifting of suppression orders - whether judge had not given sufficient weight to the applicants' right to a fair trial.
V Nisbet for Applicant Bailey
C W J Stevenson for Applicant Signer
C B Hirschfeld and T B Afeaki for Applicant Kemara
R Fairbrother for Applicant Iti
A R Burns and E Finlayson-Davis for Respondent
(Given by Ellen France J)
The applicants face charges of participation in an organised criminal group under s 98A of the Crimes Act 1961 and other charges under the Arms Act 1983. The charges arise out of a police operation in the Urewera Ranges in 2006–2007. The applicants (and their then co-accused) raised a number of issues about the admissibility of evidence the Crown sought to call at trial. There were judgments on
these issues in the High Court, this Court and in the Supreme Court. 1 Suppression
orders have been in force in relation to these judgments. Those orders were largely sought by the accused for the purposes of preserving their rights to a fair trial.
Once the admissibility issues were resolved (by the recent decision of the Supreme Court), 2 the Crown applied to the High Court to have the suppression orders lifted. In judgments delivered on 13 and 15 September 2011, Winkelmann J reduced the scope of the suppression orders in respect of the pre-trial judgments of the High Court, this Court and the Supreme Court. 3 The applicants sought leave to appeal against Winkelmann J's judgments. After hearing from counsel, we delivered our judgment dismissing the application for leave. Our reasons for this decision follow.
The background is set out in the various pre-trial judgments and need not be repeated here. For present purposes, we need only note that the applicants' trial by jury is scheduled to take place in February 2012. 4
Winkelmann J in her judgment of 13 September 2011 took as her starting point the principle of open justice. However, her Honour went on to note: 5
… when the principle of open justice sits at odds in a particular case with an accused person's right to a fair trial, ?[t]he public's right to receive information, the principle of open justice, the type of information in question, its public importance and interest, its likely circulation, methods of diluting its effect on the minds of potential … jurors, the presumption of innocence, and other issues are all to be balanced against its prejudicial effect.? 6
If having balanced these various considerations it is determined that publication of information will jeopardise the right to a fair trial ?the issue ceases to be one of balancing. The principles of freedom of expression and open justice must then be departed from; not balanced against. There is no room in a civilised society to conclude that, ?on balance?[,] an accused should be compelled to face an unfair trial. 7
Winkelmann J reiterated the inviolate nature of the right to a fair trial. 8
Applying these considerations to the present case, Winkelmann J said there was little articulation by the defendants of how publication could prejudice their ability to receive a fair trial beyond ?the assertion that it would?. 9 The Judge, having considered the arguments made and having reviewed the judgments in issue, identified the following material in the judgments as posing a risk to a fair trial: 10
[P]ublication of inadmissible evidence, publication of comment by either the police or a judicial officer as to the probative effect and strength of evidence, and finally publication of anything relating to an accused's character which is irrelevant to the subject matter of the proceeding. I add the latter category out of caution as I have not identified any such evidence in the judgments.
Winkelmann J went on to say that those risks could be eliminated by maintaining suppression in respect of such parts of the judgments as was necessary to prevent publication of the following categories of evidence: 11
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(a) Any judicial comment upon the probative effect or strength of evidence;
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(b) Any record of police fears or police assessment of the strength of evidence;
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(c) Narration of informant information or police beliefs based upon it;
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(d) Discussion regarding the basis for seeking interception warrants under the Crimes Act; and
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(e) Any inadmissible evidence.
The parties were asked to reach agreement on the identification of the passages thereby affected.
In the judgment of 15 September 2011, the Judge declined an application for an adjournment of the hearing. Winkelmann J did give the parties some time for defence counsel to work through the judgments after the Crown submissions. (The Crown had notified the parties of the passages it had identified the previous day.)
Winkelmann J then made orders rescinding the existing suppression orders and substituting more limited suppression orders in relation to specific paragraphs of the judgments of 7 October 2009 (High Court), 15 December 2009 (High Court), 19 November 2010 (this Court) and 2 September 2011 (Supreme Court). The detail of these suppression orders is set out in Winkelmann J's judgment of 15 September 2011. 12
The application for leave was brought on the basis there is an initial question about this Court's jurisdiction to hear the application. In terms of the proposed substantive appeal, the issues to be raised as set out in the application for leave are as follows:
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a. Lack of time to prepare for the hearing on the Crown's application for the lifting of suppression orders
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b. The learned judge failed to give due weight to the sub judice rule
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c. The learned judge failed to give due weight to fair trial issues given the trial will be before a jury
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d. The learned judge was plain wrong
The application was opposed by the Crown.
We first discuss the jurisdiction issue and then deal with the proposed grounds of appeal.
The Court's jurisdiction to hear the proposed appeal is founded on s 379A(1)(ba) of the Crimes Act. That subsection provides that an application for leave to appeal prior to trial may be made in relation to:
[T]he making of an order under paragraph (a) or paragraph (b) of section 138(2) or section 140 of the Criminal Justice Act 1985, or the refusal to make any such order:
Section 138(2) of the Criminal Justice Act, in turn, provides that:
Where a court is of the opinion that the interests of justice, or of public morality, or of the reputation of any victim of any alleged sexual offence or offence of extortion, or of the security or defence of New Zealand so require, it may make any one or more of the following orders:
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(a) an order forbidding publication of any report or account of the whole or any part of-
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(i) The evidence adduced; or
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(ii) The submissions made:
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(b) an order forbidding the publication of the name of any witness or witnesses, or any name or particulars likely to lead to the identification of the witness or witnesses:
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(c) subject to subsection (3) of this section, an order excluding all or any persons other than the informant, any Police employee, the defendant, any counsel engaged in the proceedings, and any officer of the court from the whole or any part of the proceedings.
Because it is relevant to the argument, we also note that s 138(5) provides that:
The powers conferred by this section to make orders of any kind described in subsection (2) [of this section] are in substitution for any such powers that a court may have had under any inherent jurisdiction or any rule of law; and no court shall have power to make any order of any such kind except in...
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