The Queen v Atkins [2000] NZCA 9; [2000] 2 NZLR 46; 92000) 17 CRNZ 581 (9 February 2000)

Last Updated: 9 December 2011

Order prohibiting publication of the contents of this judgment until conclusion of the High Court trial or further order of the High Court

IN THE COURT OF APPEAL OF NEW ZEALAND

CA511/99 CA548/99

THE QUEEN

V

LAWRENCE GLEN ATKINS
MARK WILLIAM EDMONDS

CA521/99 CA522/99 CA523/99 CA524/99

THE QUEEN

V

LAWRENCE GLEN ATKINS
MARK WILLIAM EDMONDS
SAM DAVID TE MARO
CYRUS TAIAPA

Hearing:	3 February 2000
Coram:	Richardson P Henry J Thomas J Keith J Blanchard J

Appearances:	G W Calver for Atkins J C Mathieson for Edmonds D D Rishworth for Te Maro D J Sharp for Taiapa S P France and D R W Barry for the Crown
Judgment:	9 February 2000

JUDGMENT OF THE COURT DELIVERED BY HENRY J

[1] These two applications for leave to appeal by the accused Atkins and the accused Edmonds are against witness anonymity orders made in the High Court on 2 December 1999 under sections 13C and 13G of the Evidence Act 1908. The orders were made on the application of the prosecutor, and relate to five witnesses. They are known as witnesses A, B, E, I and J. Similar applications are not made by either the accused Te Maro or the accused Taiapa. There is a further application under which the Crown seeks an amendment to one of the s13G orders which applies to all four accused persons.
[2] The four accused have been committed for trial on a charge of murder arising out of an assault in the carpark of the Gisborne Hotel close to midnight on 6 March 1999. All four are either members of or associated with the Gisborne Mongrel Mob. Two are full patched members, one a gang prospect and the fourth accused (Mr Atkins) is said to be an associate of the gang and plays in their rugby team. The incident occurred at the Gisborne Hotel at a prize-giving function following a rugby league tournament. The tournament had been organised in an effort to build relationships and ease tensions between the areas Maori and Tongan inhabitants, and involved a number of local teams including the Mongrel Mob team, ‘United Bulldogs’. It appears to have been run without any serious problems.
[3] At the function a fight broke out between a Tongan man, the deceased, and some men drinking at a table which included some members of the Mongrel Mob. Punches were exchanged and the deceased suffered a small cut to his mouth. The fight was broken up and a friend of the deceased led him away.
[4] On the way out the deceased punched his hand through a glass window breaking it. The Crown case is that in the carpark of the hotel some Mongrel Mob members and associates demanded to know why the deceased had broken the window and one of the men began punching the deceased in the face. The deceased was knocked to the ground and a vicious assault began as the group of men, which it is alleged included the accused, punched and kicked the deceased. At one point the deceased tried to get to his feet but one of the men slammed a car door closed onto his head three or four times. He then smashed the deceased’s head into the car door itself. The assault was eventually broken up by two senior members of the Mongrel Mob but the serious head injuries sustained by the deceased resulted in his death.
[5] The assault was witnessed by some 100 people who were in the carpark at the time and of these eleven witnesses agreed to give evidence as to the identity of the assailants but only on the condition that they receive anonymity. The Police obtained pre-trial orders under s13B for all eleven witnesses prior to the hearing of depositions. For reasons to which we will later refer, four of those witnesses are not intended to be called at trial. In the High Court, s13C orders were refused in respect of another two witnesses, whom the Crown do not now propose to call.

The legislation

[6] The Evidence (Witness Anonymity) Act 1997 was a response to the judgment of this Court in R v Hines [1997] 3 NZLR 529. It inserted new sections 13B to 13J into the Evidence Act 1908. It followed a report from the Law Commission, and as the Parliamentary Debates disclose it was enacted to counter problems in the prosecution of serious crime arising when potential witnesses have real grounds to fear for their safety or property if they gave evidence in a trial situation. It was therefore designed to give the Courts additional powers to prevent disclosure of identity of witnesses properly requiring that protection but, as would be expected where possible disadvantages to accused persons resulting from alterations to established trial processes are involved, subject to appropriate pre-requisites being met and ensuring that specified factors are taken into account. The legislation enables the making of pre-trial orders following the laying of an indictable charge, which will apply to the preliminary hearing and may also exclude disclosure of identification particulars prior to the hearing (s13B). High Court trial orders are covered by s13C. If an anonymity order is made, trial must be in the High Court (s13D). Section 13C provides:

Witness anonymity order for purpose of High Court trial- (1) This section applies if a person is charged with an indictable offence and either-

(a) Is committed to the High Court for trial; or

(b) Is committed to a District Court for trial and is the subject of an application under section 28J of the District Courts Act 1957 to transfer the proceeding to the High Court.

(2) At any time after the person is committed for trial, the prosecutor may apply to a High Court Judge for a witness anonymity order under this section.

(3) The Judge must hear and determine the application in chambers, and-

(a) The Judge must give each party an opportunity to be heard on the application; and

(b) Neither the party supporting the application nor the witness need disclose any information that might disclose the witness’s identity to any person (other than the Judge) before the application is dealt with.

(4) The Judge may make a witness anonymity order if satisfied that-

(a) The safety of the witness or of any other person is likely to be endangered, or there is likely to be serious damage to the property, if the witness’s identity is disclosed; and

(b) Either-

(i) There is no reason to believe that the witness has a motive or tendency to be untruthful, having regard (where applicable) to the witness’s previous convictions or the witness’s relationship with the accused or any associates of the accused; or

(ii) The witness’s credibility can be tested properly without disclosure of the witness’s identity; and

(c) The making of the order would not deprive the accused of a fair trial.

(5) Without limiting subsection (4), in considering the application, the Judge must have regard to-

(a) The general right of an accused to know the identity of witnesses; and

(b) The principle that witness anonymity orders are justified only in exceptional circumstances; and

(c) The gravity of the offence; and

(d) The importance of the witness’s evidence to the case of the party who wishes to call the witness; and

(e) Whether it is practical for the witness to be protected by any means other than an anonymity order; and

(f) Whether there is other evidence which corroborates the witness’s evidence.

(6) If a witness anonymity order is made under this section,-

(a) The party who applied for the order must give the Judge the name, address, and occupation of the witness; and

(b) The witness may not be required to state in Court his or her name, address, or occupation; and

(c) During the course of the trial, no counsel, solicitor, officer of the Court, or other person involved in the proceeding may disclose-

(i) The name, address, or occupation of the witness; or

(ii) Except with leave of the Judge, any other particulars likely to lead to the witness’s identification; and

(d) During the course of the trial,-

(i) No oral evidence may be given, and no question may be put to any witness, if the evidence or question relates to the name, address, or occupation of the witness who is subject to the order; and

(ii) Except with leave of the Judge, no oral evidence may be given, and no question may be put to any witness, if the evidence or question relates to any other particulars likely to lead to the identification of the witness who is subject to the order; and

(e) No person may publish, in any report or account relating to the proceeding, the name, address, or occupation of the witness, or any particulars likely to lead to the witness’s identification.

[7] Section 13G is also relevant for present purposes.

Judge may make orders and give directions to preserve anonymity of witness- (1) A Judge who makes an order under section 13B or section 13c may, for the purposes of the preliminary hearing or trial (as the case may be), also make such orders and give such directions as the Judge considers necessary to preserve the anonymity of the witness, including (without limitation) 1 or more of the following directions:

(a) That the Court be cleared of members of the public:

(b) That the witness be screened from the defendant:

(c) That the witness give evidence by closed-circuit television or by video link.

(2) In considering whether to give directions concerning the mode in which the witness is to give his or her evidence at the preliminary hearing or trial, the Judge must have regard to the need to protect the witness while at the same time ensuring a fair hearing for the defendant.

(3) This section does not limit-

(a) Section 206 of the Summary Proceedings Act 1957 (which confers powers to deal with contempt of Court); or

(b) Section 138 of the Criminal Justice Act 1985 (which confers power to clear the Court); or

(c) Any power of the Court to direct that evidence be given, or to permit evidence to be given, by a particular mode.

[8] For s13C purposes a Judge may appoint independent counsel to assist (s13E), if orders are made directions to a jury are required (s13F), and orders may be varied or discharged before the witness gives evidence (s13H).
[9] There have been three other High Court trial orders sought under s13C, orders being made on two of those applications. The section has not previously been considered by this Court. It can be noted that s4 of the 1997 amendment requires the Ministry of Justice to review these provisions as soon as practicable after three years from their commencement.

The High Court Judgment

[10] In addressing the s13C application the Judge first turned to subs(4)(a) and expressed himself as satisfied that in respect of each of the seven witnesses in question, their safety and possibly that of other persons was likely to be endangered if their respective identities were disclosed. The word “likely” was construed as equating a real or substantial risk. As to subs4(b), he concluded that the subparagraph (i) term concerning untruthfulness was met in respect of witnesses A, B, E, I and J but not in respect of witnesses G and H. The Judge also concluded that the subparagraph (ii) requirement was not met because the proposed cross-examination on the issue of credibility involved a risk of identification. He was also satisfied that the accused would not be deprived of a fair trial by the making of the order.
[11] At the preliminary hearing and in accordance with the s13B pre-trial orders which had been made, the protected witnesses gave evidence outside the courtroom by way of video link and with picture distortion and voice distortion. They had also been allowed to refuse to answer questions as to their precise positioning at the time they viewed the actions of the persons committing the fatal assault. In the High Court, the Judge expressed the view that these concerns on the part of the defence as defeating the conduct of a fair trial could be met: if a witness did not disclose his or her position at the time of observation, then the probative value of the evidence, which would be the subject of a firm direction from the trial Judge, would necessarily suffer: and as to picture and voice distortion, by allowing the trial Judge and jury (only) to see the witnesses visually without distortion.
[12] The Judge then confirmed that he had taken each of the factors identified in subs(5) into account, and addressed those in turn. In the result, the application for anonymity orders in respect of witnesses A, B, E, I and J pursuant to s13C was granted, together with the following orders under s13G:

[a] That the Court should be cleared of members of the public if, during the course of the trial, this appears to the trial Judge to be appropriate.

[b] That the witnesses give evidence by closed-circuit video link from a separate location.

[c] That this evidence be presented visually by two separate images at the same time:

[i] The first where the witness’s images are to be visually distorted and their voices disguised, as was the case at the preliminary hearing. This image is to be visible to all persons concerned with the trial other than the jury and, at his or her option, the trial Judge.

[ii] The second image is not to be visually distorted but is to be accompanied by disguised voices. This image is to be presented solely to the jury and, at his or her option, the trial Judge.

[iii] While giving evidence the witnesses in question are to be accompanied only by a court official.

[iv] Any documentary or other exhibits to be referred to a witness are to be retained by that court official until such point as they are required to be inspected by the witness.

[v] Those responsible for the care of the witnesses are to ensure that each of the witnesses are to remain separate and apart from each other during such time as they are involved in the process of giving their evidence and being conducted to and from the separate location where this is to take place. In this regard I note the Crown prosecutor’s concern that this requirement may cause practical difficulties in maintaining a continuity of evidence.

[vi] Leave is granted to any party to seek further directions from either myself or the trial Judge prior to trial if further clarification of any of the above orders is required, or if any practical difficulties arise in their implementation.
The appellate procedure

[13] There is obvious force in the concern expressed by both Mr Calver and Mr Mathieson in endeavouring to combat evidence to which they are not privy when addressing the statutory requirements of subs(4). For that reason, we take the view that as a general rule this Court should make its own evaluation of the evidence which has properly been withheld from the party opposing the application, and its own determination of whether those requirements have been met. In the absence of knowledge of the evidence before the trial Judge, and the consequential absence of reasons for his or her conclusions, it can be an almost impossible task to mount an attack against briefly expressed conclusions. This situation is a necessary (and acceptable) result of legislation of this kind, which has had to be enacted in the overall interests of society. But for the appeal right to be meaningful and to effect its proper purpose, and also to alleviate what may be genuine concern as to the fairness of the trial process itself, this approach is the more appropriate. That exercise will however be against the background of the trial Judge’s findings, in particular giving due weight to those which concern disputed evidence the subject of a normal contested hearing not involving undisclosed evidence. If this Court is satisfied that the statutory requirements are met, then it will review the trial Judge’s residual discretion to make or to refuse orders in accordance with normal principle. The subsection (5) requirements must of course be given full weight in so far as they are applicable to any part of the overall inquiry.
[14] This approach is not to be seen as encouragement to appeal s13C orders, which it is contemplated will continue to be comparatively rare and will not necessarily require consideration of a significant volume of undisclosed material. We were also advised from the Bar that the existing practice is for all s13B and s13C applications to be under the control of the Solicitor-General. It would seem highly desirable for that to continue quite apart from statutory review purposes.

Section 13C(4)

Safety of the witnesses

[15] Mr Calver submitted that the correct test to be applied is whether the applicant for the order has proved safety endangerment on the balance of probabilities. We do not agree. In its context the word “likely” bears a common meaning - a real risk that the event may happen - a distinct or significant possibility. As Cooke P observed in Commissioner of Police v Ombudsman [1988] 1 NZLR 385, 391 in construing the Official Information Act 1982 which protected information “likely to prejudice a fair trial”:

To require a threat to be established as more likely to eventuate than not would be unreal. It must be enough if there is a serious or real and substantial risk to a protected interest, a risk that might well eventuate. This Court has given “likely” that sense in a line of criminal cases, a recent example of which is R v Piri [1987] 1 NZLR 66. It is a test familiar in other branches of the law also (see for instance the House of Lords case, R v Secretary of State for the Home Department, ex parte Sivakumaran [1988] 1 All ER 193).

[16] There is no cause to read the word otherwise in the present context. It is the existence, in a real sense, of danger to safety (or serious damage) which can, not will, give rise to an order. What is being considered is a threshold, one which is directed to persons who as part of their civic duty are being required to take part in the Court process, and their personal safety, or the well-being of their property, which may be affected by reason of their participation.
[17] This approach is consistent with that adopted by the English Court of Appeal in R v Lord Saville of Newdigate [1999] 4 All ER 860, which concerned the inquiry of a specially appointed tribunal into the “Bloody Sunday” shootings in Londonderry, Northern Ireland in 1972. An application to the tribunal by a number of soldiers for anonymity was in question. Lord Woolf MR, giving the judgment of the Court, said that the issue was not to be determined by the onus of proof and approved the dictum of Lord Diplock in Fernandez v Government of Singapore [1971] 2 All ER 691, a case concerning the return of a fugitive offender. Prejudice involving a risk of inappropriate trial or punishment was there at issue. Lord Diplock said at p697:

My Lords, bearing in mind the relative gravity of the consequences of the court’s expectation being falsified in one way or in the other, I do not think that the test of applicability of para (c) is that the court must be satisfied that it is more likely than not that the fugitive will be detained or restricted if he is returned. A lesser degree of likelihood is, in my view, sufficient; and I would not quarrel with the way in which the test was stated by the magistrate or with the alternative way in which it was expressed by the Divisional Court. “A reasonable chance”, “substantial grounds for thinking”, “a serious possibility”.

As Lord Woolf went on to observe, where what is at stake is the safety of (there) the former soldiers and their families, the risk is extremely significant. So too, in the case of witnesses to a serious crime. Whether a Court is satisfied such a risk exists must be a matter of judgment.

[18] We have given careful consideration to the affidavits supplied by the five witnesses in question, and to additional affidavits including those of Detective Sergeant Smith. We are mindful of the fact that the matters deposed to have not been tested by cross-examination and that there has been no opportunity to present contradicting evidence in respect of the non-disclosed assertions. But in applications of this nature the Court will necessarily be called upon to consider untested evidence, and to evaluate evidence some of which could be classed as hearsay. We accept Mr Calver’s submission that in such an exercise care must be taken in making the evaluation and in drawing conclusions, and is to be expected. But we do not accept the proposition that unless the evidence was sufficient to warrant prosecution for a normal offence it should not be acted upon. The weight to be given to any particular assertion will depend upon many differing factors, including source, reliability, and the existence or absence of supporting material. This aspect was dealt with admirably by Young J in his judgment on a s13C application in R v Dunnill [1998] 2 NZLR 341 at 347:

Some of the observations I have made are based on the evidence of Constable Sparrow which is, in turn, based on a number of alleged offences which cannot be said to have been substantiated by prosecution and conviction. It was not suggested by Mr Sandston that I was obliged to disregard evidence unless admissible in accordance with the ordinary rules of admissibility. In making this concession he was, I think, influenced by Accused (CA60/97) v Attorney-General (1997) 15 CRNZ 148. I believe, making allowance for the force which there is in Mr Sandston’s comments, that the conclusions which I have just referred to are open to me on the basis of the material which the police have presented even if significantly discounted to allow for the inherent uncertainties in the exercise.

[19] In the present case there is relevant evidence common to all witnesses. It relates to activities of the Mongrel Mob in Gisborne over the period September 1998 to March 1999 where it can properly be inferred that in some if not all failure to prosecute crimes of serious violence will have been due, whether in part or wholly, to threats, intimidation, or fear of retribution. Four of the witnesses originally granted anonymity for the preliminary hearing are now unavailable, and there are good grounds for attributing that to similar reasons. There is credible evidence of a specific threat, sourced to the Mongrel Mob, made against one of the witnesses believed to have given evidence anonymously at the preliminary hearing, and also of approaches of a threatening nature to two such others. In addition to the connections earlier referred to with the Mongrel Mob within this comparatively small community, each accused has relevant convictions for offences of violence of a serious nature. The five witnesses now in question have also deposed to a fear for safety. Our assessment of the evidence available, keeping firmly in mind the matters urged upon us by Mr Calver, satisfies us that the safety of each witness, and in some instances that of other persons, is likely to be endangered if identity is disclosed. In short, we agree with the Judge’s conclusion. As he did, we take the view that to elaborate further would result in an undue risk of identification. We can also say that we have not taken into account any undisclosed information which should have been disclosed to the defence.

Possible untruthfulness

[20] Under this head we are again mindful of the need for care in assessing the limited material put before us, and the inability of the defence to test it or indeed to enquire into the issue. We conclude that we do have sufficient information which enables us to be satisfied, as we are, that the provisions of subs (4)(b)(i) have been met. Again that is a matter of judgment.

A fair trial

[21] The restrictions in question comprise the subsection (6) prohibitions and for present purposes the associated mode of trial directions set out under paragraphs (b) and (c) (i) and (ii) of the s13G orders. The issue is whether despite implementation of those restrictions, the Court is satisfied, in so far as it can be at this point of time, that a fair trial will result. The starting point must be the legislation’s recognition that ensuring the anonymity of witnesses does not necessarily negate the concept of a fair trial - and that must be so. Section 13A which enables protection of the identity of undercover police officers is an example. There have been no serious contentions that these provisions infringe s24(a) of the New Zealand Bill of Rights Act 1990. What is at issue in this respect is an inroad into generally accepted trial processes, something which has occurred from time to time over the years but without infringing the basic concept of a fair trial. In each case it is therefore necessary to examine the effects of the particular orders. It can also be noted that the Court has power under para (7) to give leave to ask questions which may otherwise infringe the subs (6) order. In some circumstances, the order may be revoked under s13H in advance of the witness giving evidence. That would probably require some significant change in circumstances from those initially presented.
[22] The particular disadvantages of anonymity relating to this trial which it was submitted will prevent a fair trial can be summarised. They concern the inability to test the credibility and reliability of the witnesses, and relate to: (a) restrictions on ascertaining the precise positioning of the witnesses when observing the incidents deposed to; (b) examining the witnesses adequately as to possible mistake, motive for untruthfulness or, partiality; (c) testing the witnesses’ physical and mental condition at the time; and (d) the effect of the picture and voice distortions.
[23] We note at the outset that the High Court was not requested to obtain the assistance of independent counsel under s13E, that no doubt (and understandably) being why that section was not invoked by the Judge. It seems to us however that in the majority of cases where establishment of the sub (4)(b) and (c) prerequisites in particular are in issue, such assistance could be of value to the Court, even if not requested by the parties. We turn now to the particular matters of concern.
[24] As to the first disadvantage identified, the preliminary hearing disclosed difficulties for defence counsel in establishing the precise whereabouts of the anonymous witnesses at relevant times. Where, as here, identification of those responsible for the assault, and their participation are in issue, questions of reliability of identification evidence may well be of importance. The physical ability of a witness to see what is deposed to, and the presence of the witness in that position, clearly have relevance and possibly significance. Three observations need to be made. First, the terms of the subs (6) order do not expressly prohibit questions other than those which can properly be said are likely to lead to identification of the witness - that there is a real or substantial risk of that resulting. Secondly, the trial Judge has the residual power to allow such questions, which would be exercised having regard to all the circumstances including the relative substantiality of the risk and the importance of the particular question. These are very much matters of judicial control at trial. Thirdly, as the Judge in this case observed, the refusal of a witness to give details pertinent and significant to the reliability of his or her evidence will obviously be uppermost in the minds of the jury, and the quality thereof probably substantially diminished. The point however remains one which must be given due weight in the overall equation.
[25] The second area of concern is one which is inherent in the scheme of the legislation and will feature in most s13C applications. It is an area which may include matters suitable for enquiry by independent counsel, and the fact that this was not sought by the defence is some indication of its level of significance, or the lack of it, in this case. We share that apparent perception, having had the additional opportunity of considering material which is relevant to the subs (4)(b)(i) issue which raises similar questions. We doubt whether knowledge of identity would assist materially on the possibility of mistaken identification.
[26] The third matter is also one which must be weighed carefully. Reliability of identification may be affected by such factors as consumption of liquor or drugs, and physical impairment. There could be some disadvantage not only from being unable to adduce evidence to contradict the evidence of an anonymous witness on those matters, but also from the inability to investigate them.
[27] Mr Calver also relied on what he submitted would be the undue effects of the picture and voice distortion requirements, particularly arising from the inability of cross-examining counsel to observe the facial reactions of the witness, this disadvantage being aggravated by the fact that the jury would be able to see those reactions. We doubt that there is much weight in this complaint, and in the circumstances consider any disadvantage must be comparatively slight. Mr Calver also stressed that there was undue prejudice to the accused Atkins because if he was being tried alone the orders would not have been made. Even accepting the latter contention, which Mr France disputes, we see no weight in this complaint. The witnesses are giving evidence which is admissible against Mr Atkins, and it is their safety which is in question. If justice requires their anonymity, then it should be granted.
[28] Also to be taken into account are matters of general consequence when such orders are made. They include the possibility of adverse inferences being drawn simply from the fact that anonymity has been granted. This however is a necessary consequence of the legislation, and the possible effect is lessened by the firm directions required by s13F. Experience has also shown that this kind of concern is less real than is often claimed. Mode of trial directions which are related to protection of witnesses and others are not uncommon, and have not resulted in unfair trials. Protection is given regularly to child complainants in sexual abuse cases, and in others orders have been made allowing evidence to be taken outside the courtroom at an undisclosed venue (M (CA60/97) v Attorney-General CA60/97, 29 May 1997). Counsel also pointed to the removal of access to possible avenues of exploration which would be helpful to the defence. In the circumstances of this case we see little substance in that particular complaint.
[29] We are mindful of the dictates of subs (5), and have given careful consideration to the responsible and helpful submissions of both Mr Calver and Mr Mathieson. In the end we are satisfied that the orders made under ss 13C and 13G, altering in a material way as they do the normal trial process, will not deprive either of these two applicants of a fair trial.

Overall discretion

[30] Section 13C(4) gives the Court a discretionary power, exercisable within the requirements of subs (a)(b) and (c). It is also subject to the provisions of subs (5), some of which may impinge on subs (4)(b) and (c) considerations but which are also of particular importance to the final decision whether or not to exercise the power. Even if the subs (4) criteria are established, the Court must still stand back and ask whether the orders should, in the overall interests of justice, be made. We can discern no error in the approach of the Judge to this question, and indeed would reach the same conclusion ourselves. Some observations as to subs (5) can be made. The reference in para (b) to exceptional circumstances is a recognition that s13C orders will not be made as a matter of routine. They will be rare cases, based on their own particular circumstances. No general rule, for example applicable to gang related offences, applies. The power is to be used sparingly. It is significant that it has only been requested on three other occasions since December 1997, and it is clear that on those the dictates of para (b) have been carefully applied. Exceptional circumstances are not confined to those which constitute the alleged offending. The fact that here it arose following a brawl between two factions in the precincts of an hotel is but one facet. Exceptional circumstances will result from the cumulative effect of a series of factors, some of which will be peculiar to the particular case and some of which may be seen in other instances. The conclusion of exceptionality is an overall judgmental assessment, and the end result of a consideration of all factors. Attempts should not be made to redefine the words or to circumscribe their meaning. In the present case we have little difficulty in concluding that the circumstances here are sufficiently exceptional in their totality to justify the orders.
[31] It is unnecessary to add much to what the Judge has said in respect of the other subs (5) paragraphs. The gravity of the offence is of course of significance to the accused as well as to the community. The intended evidence is relevant and the Crown case could be significantly depleted without it. Other means of witness protection are not in the circumstances practical. There is other evidence capable of corroborating that of the witnesses, which therefore is not unsupported stand alone evidence and on balance supports the orders.

Crown appeal

[32] The Solicitor-General seeks leave to appeal the s13G order, by amending paragraph (c)(i) and (ii) to require the witnesses’ images to be visually distorted for all viewers of the video link, including trial Judge and jury.
[33] We are not persuaded the Judge erred in this respect. Mr France initially submitted there were two reasons justifying the course he propounded. The second or subsidiary suggestion was that it would avert the possibility of a juror becoming aware at a later stage in the trial that a witness was known to him or her, requiring the juror’s disqualification. There are probably means of averting that possibility, but that apart we do not consider such considerations will normally form part of the s13C exercise, which is directed primarily to the protection of potential witnesses and the conduct of a fair trial. Incidental consequences, although possibly of marginal relevance in the final exercise of discretion, should not govern the making of s13C or s13G orders. The principal reason was the perceived danger arising from the pool of people knowing the identity of the witnesses being increased, with the possibility of inadvertent (or forced) disclosure later occurring thereby defeating the order. There may be circumstances where the course contended for is warranted, but there is no evidence before us which justifies it in the present case. The affidavits of the witnesses do not express concern that the jury may see their faces, and the evidence contains nothing to suggest that there is a likelihood of juror approach or intimidation which would result in disclosure. In short, the risk of disclosure by reason of this provision in the order is not shown to be at a level which both renders the risk unacceptable and if amended as submitted would still result overall in a fair trial. We see it as of some importance in the present case that the jury are able to see the witnesses clearly as they are examined and cross-examined.

Section 13B

[34] In his judgment, the Judge referred to the s13B pre-trial orders and the question whether they still remained in force. This arose apparently in an attempt to obtain disclosure of the identity of the witnesses referred to in the s13B order who were not going to be called by the Crown at trial. Submissions on this issue were made in this Court although it was not addressed orally by counsel. As it happens the Judge in the High Court made no order in respect of the s13B orders and there is therefore no appeal before us in that respect, but we have thought it desirable to respond to the submissions.
[35] With respect, we think there is a misconception, and there is in fact no present issue arising under s13B. The relevant provisions and subsections (2) and (6) of s13B:

(2) At any time after the person is charged, the prosecutor or defendant may apply to a Judge for an order-

(a) Excusing the applicant from disclosing to the other party prior to the preliminary hearing the name, address, and occupation of any witness, and (except with leave of the Judge) any other particulars likely to lead to the witness’s identification; and

(b) Excusing the witness from stating at the preliminary hearing his or her name, address, and occupation, and (except with leave of the Judge) any other particulars likely to lead to the witness’s identification.

(6) If a pre-trial witness anonymity order is made under this section,-

(a) The party who applied for the order must give the Judge the name, address, and occupation of the witness; and

(b) During the course of the preliminary hearing, no counsel, solicitor, officer of the Court, or other person involved in the preliminary hearing may disclose the name, address, or occupation of the witness, or any other particulars likely to lead to the witness’s identification; and

(c) During the course of the preliminary hearing,

(i) No oral evidence may be given, and no question may be put to any witness, if the evidence or question relates to the name, address, or occupation of the witness who is subject to the order; and

(ii) Except with leave of the Judge, no oral evidence may be given and no question may be put to any witness, if the evidence or question relates to any other particulars likely to lead to the identification of the witness who is subject to the order; and

(d) No person may publish, in any report or account relating to the proceeding, the name, address, or occupation of the witness, or any particulars likely to lead to the witness’s identification.

[36] The only orders made under s13B(2) were those excusing the prosecution from disclosing witness details prior to the preliminary hearing, and excusing witnesses from identifying themselves at the preliminary hearing. Subsection (6) details the consequences of the order, and is concerned with the course of the preliminary hearing and publication of any report or account of it. Whether publication of the identity of a witness granted anonymity under the 1997 amendment but one which is not caught by either s13B (6)(d) or its s13C equivalent, would constitute contempt is of course a separate issue.

Conclusion

[37] For the above reasons, the accused Atkins and the accused Edmonds are each granted leave to appeal, but both appeals are dismissed. The application by the Solicitor-General for leave to appeal the s13G order in part is granted but that appeal too is dismissed. There will be an order prohibiting publication of the contents of this judgment until conclusion of the High Court trial or further order of the High Court.

Solicitors
Gresson Grayson & Calver, Hastings, for Appellant Atkins
Rishworth Wall, Gisborne, for Appellants Edmonds and Te Maro
Burnard Bull, Gisborne, for Appellant Taiapa
Crown Law Office, Wellington