Sweeney v R
| Jurisdiction | New Zealand |
| Judge | Kós P |
| Judgment Date | 04 March 2022 |
| Neutral Citation | [2022] NZCA 37 |
| Docket Number | CA693/2021 |
| Court | Court of Appeal |
[2022] NZCA 37
Kós P, Peters and Palmer JJ
CA693/2021
CA702/2021
IN THE COURT OF APPEAL OF NEW ZEALAND
I TE KŌTI PĪRA O AOTEAROA
Bill of Rights, Criminal Procedure — appeal against a High Court decision which refused pre-trial name suppression to two men charged with murder — inflammatory, inaccurate news reporting — right to a fair trial — test for determining name suppression — Criminal Procedure Act 2011
N P Chisnall and L A Elborough for B Sweeney
J-A Kincade QC for F Sweeney
R L Mann for Respondent
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A The appeals are dismissed.
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B Order prohibiting publication of the judgment and any part of the proceedings (including the result) in news media or on the internet or other publicly available database until final disposition of trial. Publication in law report or law digest permitted.
(Given by Kós P)
We are asked here to grant pre-trial name suppression to two men charged with murder, because of inflammatory, inaccurate news reporting. However, as the Judge below found, the true facts will be before the jurors in the form of evidence, and that evidence — together with a strong and tailored judicial direction — may be expected to ameliorate fully the media inaccuracy. Accordingly, there is no real risk of prejudice to a fair trial by publishing the names of the defendants pre-trial in the ordinary way. 1
Following an incident on the highway in October 2021, a utility vehicle driven by Mr Frank Sweeney pulled up at a service station in Otorohanga. 2 Shortly after, the other vehicle involved in the incident pulled up behind it. With Mr Sweeney in the first vehicle was his cousin, Benjamin, and a third man. The second vehicle also had three occupants, one of them a Mr Anthony Bell. As he got out of his vehicle, Mr Bell dropped a hammer on the ground.
The Crown case is that Mr Benjamin Sweeney rushed at Mr Bell, punching, kicking and stomping him. He also hit a second man, Mr Victor Tumai, on the back with Mr Bell's hammer. Mr Frank Sweeney is then said to have struck Mr Bell as he was getting up, causing him to go down again and hit his head on the concrete pavement. Captured by CCTV footage, the whole incident lasted 30 seconds. The Sweeneys drove away. Mr Bell died.
In the ordinary way, none of this would have given rise to a name suppression issue likely to come before this Court. The Sweeneys would have been named at either their first or second court appearance. 3
The difference in this case is that both accredited and social media began to report the death of Mr Bell as the consequence of an “axe attack”. In some instances, the “axe” is described as a “tomahawk”, a distinction without a real difference. There was no axe. No tomahawk. It is common ground that the reporting of what occurred was seriously inaccurate. Just who is responsible for that state of affairs is beside the point.
This true instance of fake news appears in five accredited media articles which remain on the internet (on the New Zealand Herald, Stuff, NewsTalk ZB and NewsHub websites). 4 We were also shown a selection of extracts from social media sites where this inaccurate account of events is again perpetrated.
The Sweeneys applied for an order under s 200 of the Criminal Procedure Act 2011 for continued name suppression, citing real risk to a fair trial and endangered safety of, or extreme hardship to, other persons. 5 Harland J ruled against them on all three grounds. 6 Only the first ground is now pursued on appeal.
The Judge held the appellants had failed to satisfy her that there was a real risk that their right to a fair trial would be undermined by the previous inaccurate reportage. She said: 7
The defendants have been granted interim suppression of their names to date and the details of any pre-trial applications will also be automatically suppressed. In addition, the jury pool who are summonsed in this region are summonsed in respect of both District and High Court trials. The names of the trials and/or the subject matter of them are not revealed in the jury summons. The first time any perspective jurors will be made aware of the names of the defendants is likely to be prior to empanelling. At that point, they will be warned about searching for any details on the internet or social media. Such directions will be repeated by the trial judge. As [the Crown] submitted, the CCTV footage (which I have viewed) will speak for itself and the Crown case is not based on the misreporting that occurred. I am therefore not satisfied that publication of the defendants' names at this stage of the pre-trial process would be likely to prejudice their right to a fair trial.
The threshold not having been met, the Judge did not go on to consider the second, discretionary element of s 200. 8
As Ms Kincade QC and Mr Chisnall acknowledged, it is axiomatic that the starting point in an application for name suppression is the principle of open justice, which manifests in a prima facie presumption in favour of open reporting. 9 This reflects the importance in a democratic state of freedom of speech, recognised in s 14 of the New Zealand Bill of Rights Act 1990, the importance of open judicial proceedings, and the right of the media to report court proceedings. As Elias CJ observed in Lewis v Wilson & Horton Ltd: 10
Given the congruence of these important considerations, the balance must come down clearly in favour of suppression if the prima facie presumption in favour of open reporting is to be overcome.
Section 200 of the Criminal Procedure Act, under which the present applications were made, sets up a two-stage test. The first stage is evaluative (so that a general right of appeal lies). 11 It requires the Court to assess whether the s 200(2) threshold concern relied upon would be likely to occur if name publication occurred (in this case, pre-trial). 12 That is to say, it must be a real and appreciable possibility, and not remote or fanciful. 13 The second stage involves the exercise of discretion (and from which, therefore, a more limited appeal runs). 14 This second stage requires the Court to decide that the affirmed risk is sufficiently grave that the starting-point principle of open justice must yield in this case.
Ms Kincade and Mr Chisnall both submit that the starting point of open justice is premised on fair and accurate reporting. Here not only was the incident misreported, but it involved speculation about what preceded the incident and “character blackens the appellants while praising the virtue of the deceased”. The connection of the Sweeney name to the “axe killing” was said to be “overwhelmingly prejudicial”. Jury directions cannot cure the damage done. As Ms Kincade put it:
… publication of the appellants' names would create a real risk of prejudice to a fair trial, as it would link them pre-trial to publicly accessible, substantially inaccurate and highly prejudicial speculation and commentary. The appropriate approach is to order pre-trial suppression pending completion of the trial.
Mr Chisnall submits, further, that it could not be assumed that the publicity here would be transitory given...
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