Slater v R [2011] NZCA 568 (9 November 2011)

Court of Appeal of New Zealand

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Slater v R [2011] NZCA 568 (9 November 2011)

Last Updated: 16 November 2011

IN THE COURT OF APPEAL OF NEW ZEALAND

CA464/2011 [2011] NZCA 568

BETWEEN CAMERON JOHN SLATER Applicant

AND THE QUEEN Respondent

Hearing: 3 November 2011

Court: Harrison, Miller and Asher JJ

Counsel: G J Thwaite for Applicant A R Burns for Respondent

Judgment: 9 November 2011 at 11.45 am

JUDGMENT OF THE COURT

The application for special leave to appeal is dismissed.

REASONS OF THE COURT

(Given by Harrison J)

Introduction

[1] Following a defended summary hearing in the District Court at Auckland, Cameron Slater was convicted of eight charges of breaching judicial orders made under s 140 of the Criminal Justice Act 1985 (CJA) and one charge of breaching a statutory prohibition on publication under s 139 of the CJA.[1] Each of the orders had been made by a District Court Judge in separate criminal proceedings prohibiting publication in a report or account of the proceeding of the name, address or occupation of the defendant or any particulars leading to his or her identification. The s 139 prohibition is against publication of particulars identifying the victims of alleged serious sexual offending. The charges arose from Mr Slater’s conduct in publishing clues about identities in postings on his Whaleoil blog. He was fined $750 on each of the nine counts cumulatively and ordered to pay costs of $130.[2]
[2] It should be noted that Mr Slater deliberately published on his blog the details giving rise to these charges. It was part of his campaign to disclose publicly the names of people in whose favour suppression orders had been made in criminal proceedings in the District Court. His general modus operandi was to disclose information which would lead to a defendant’s identification. In sentencing Mr Slater, Judge David Harvey said this:

Your [activity], in terms of publishing the names of people who were subject to non-publication orders, was carefully calculated, carefully thought out and deliberate ... .

[3] Mr Slater appealed to the High Court against both conviction and sentence. His counsel, Mr Thwaite, originally identified nine grounds of appeal against conviction. In argument, however, the grounds were reduced to four. Only one was a challenge to whether the material published on Mr Slater’s website did in fact identify the name, address or occupation of the defendant or was likely to lead to that identification.
[4] White J dismissed Mr Slater’s appeal against both conviction and sentence on all counts.[3] However, the Judge subsequently granted Mr Slater leave to appeal to this Court on the following question of law:[4]

Whether the information or material posted by [Mr Slater] on his Whaleoil blog constituted a publication of a “report or account” in breach of ss 140(1) and 139(1) of the Criminal Justice Act 1995.

[5] Mr Slater’s appeal on that question has yet to be heard. However, he now seeks special leave under s 144(3) of the Summary Proceedings Act 1957 (SPA) to appeal to this Court against his conviction on five additional questions of law on which White J refused him leave.

Jurisdiction

[6] As a preliminary point, Mr Thwaite submits that leave is unnecessary to argue the five additional questions of law. That is because leave has been granted on one question and in Mr Thwaite’s submission the whole judgment is thus subject to appeal. In support Mr Thwaite notes that s 144 of the SPA does not provide for “partial leave” so that once leave is given the whole judgment is open to appeal subject only to the Court’s power to limit the scope of argument at the substantive hearing. In particular, he says, the phrase “question of law” where used in s 144(1) must by reference to s 33 of the Interpretation Act 1999 mean that the word “question” in the singular includes the plural “questions”. Accordingly, leave given for one question of law necessarily means leave is given for all proposed questions of law.
[7] Section 144 provides:

144. Appeal to Court of Appeal

(1) Either party may, with the leave of the High Court, appeal to the Court of Appeal against any determination of the High Court on any case stated for the opinion of the High Court under section 107 of this Act or against any determination of the High Court on a question of law arising in any general appeal:

Provided that, if the High Court refuses to grant leave to appeal to the Court of Appeal, the Court of Appeal may grant special leave to appeal.

(2) A party desiring to appeal to the Court of Appeal under this section shall, within 21 days after the determination of the High Court, or within such further time as that Court may allow, give notice of his application for leave to appeal in such manner as may be directed by the rules of that Court, and the High Court may grant leave accordingly if in the opinion of that Court the question of law involved in the appeal is one which, by reason of its general or public importance or for any other reason, ought to be submitted to the Court of Appeal for decision.

(3) Where the High Court refuses leave to any party to appeal to the Court of Appeal under this section, that party may, within 21 days after the refusal of the High Court or within such further time as the Court of Appeal may allow, apply to the Court of Appeal, in such manner as may be directed by the rules of that Court, for special leave to appeal to that Court, and the Court of Appeal may grant leave accordingly if in the opinion of that Court the question of law involved in the appeal is one which, by reason of its general or public importance or for any other reason, ought to be submitted to the Court of Appeal for decision.

[8] The statutory structure is unambiguous. The qualifying threshold for a second right of appeal is the existence of a question or questions of law. By necessary implication the question must be one which is specifically approved by this Court within the screening process mandated by s 144. Otherwise the Court would not be able at the next stage of the process to determine whether the question of law is of such general or public importance that it ought to be submitted to this Court for decision. That requirement must obviously exclude what effectively would be a general right of appeal.
[9] The three specific requirements of s 144 are important. Collectively they reflect a legislative shift in relative emphasis from error correction on appeal to the High Court, to clarification and development of legal principles in this Court on second appeals. Mr Thwaite’s submission ignores Parliament’s intention to limit the availability of second appeals to the Court of Appeal in summary proceedings and to restrict their nature and scope; his argument subverts the clear statutory policy of identifying a discrete question or questions before the substantive hearing. As Mr Burns submits, acceptance of Mr Thwaite’s argument would require the Court to address every point raised on a second appeal regardless of its merits, contrary to the legislature’s requirement that consideration be limited to the merits of identified questions of law.
[10] We confirm that leave is required under s 144 of the SPA to argue any question on an appeal to this Court. The granting of leave on one question does not thereby open the door to argue a range of questions for which leave has been specifically sought and refused. There is no general right of appeal.
[11] We shall now consider each question identified by Mr Thwaite. We note that the questions are identical to those which he raised unsuccessfully before White J. In argument before us Mr Thwaite made no attempt to address the Judge’s reasons for refusing leave.

Questions

(a) Was the evidence of the prosecution as to the contents of the various non-publication orders made by the District Court admissible in terms of the Evidence Act 2006

[12] First, Mr Thwaite challenges the admissibility at Mr Slater’s trial of evidence constituted by the contents of the non-publication orders. His challenge is said to be on the bases that the terms of the various orders were “so tight” as to prevent any disclosure whatsoever outside of the prescribed scope of s 141 of the CJA and, additionally, s 7(1)(b) of the Evidence Act 2006 operates to render evidence of the contents of the orders inadmissible. According to Mr Thwaite, the hearing of Mr Slater’s appeal presents an opportunity to consider a prohibition which does not expressly refer to such evidence but involves it by implication.
[13] Mr Thwaite did not attempt to develop these propositions or refer to authority in support. If correct, his argument would have far reaching consequences. However, a cursory reading of s 141 establishes that its terms contradict Mr Thwaite’s submission. The section simply provides that nothing in s 140 of the CJA shall prevent publication of certain particulars in named circumstances. The provision is permissive, not prohibitive. It does not operate to prevent admission of an order as evidence in support of a prosecution for breach of that order.
[14] Furthermore, as White J pointed out when dismissing Mr Slater’s substantive appeal, it would make a nonsense of s 140(5) – the statutory provision creating the offence of breach of an order made under the CJA – if the prosecution was unable to adduce the order in evidence for the purpose of proving a breach. Thus, if evidence of the order is not excluded under the CJA, it is not excluded by s 7(1)(b) of the Evidence Act. Further, admitting the evidence was clearly consistent with the fundamental principle set out in s 7 of the Evidence Act that relevant evidence is admissible.
[15] This question is not arguable.

(b) Were the individual orders made in the District Court valid?

[16] Second, Mr Thwaite submits that the various orders made in the District Court were defective. He describes some of them as “[representing] idiosyncratic personal judicial views, contrary to established law”. He says that none of the reasons given justified suppression and in any event none of the orders were sufficiently precise.
[17] We agree with the short point made by White J in answer. However this argument is dressed up, it is no more than a collateral challenge to the orders made by the District Court on application by the defendants in those proceedings. Mr Thwaite could not identify any want of statutory jurisdiction to make the particular orders. He accepts that all were amenable to challenge by way of appeal or by application for judicial review. But none were challenged by one of those means. Without challenges or further application by the parties to the relevant proceedings the orders remained permanently enforceable and in full force and effect at the date of Mr Slater’s alleged breaches of them.
[18] This question is not arguable.

(c) Can a suppression order be made in respect of a person who has been acquitted?

[19] Third, Mr Thwaite submits that the validity of a suppression order is spent or expires if and when a defendant has been acquitted. He accepts, however, that this question is subsumed within the preceding question challenging the validity of the orders. This question is also not arguable.

(d) In view of the conceptual location between ss 139 and 140 of the Criminal Justice Act 1985 between a right to freedom of expression (s 14 of the New Zealand Bill of Rights Act 1990) and a right to a fair trial (s 25(a)) are sections ss 139 and 140 valid?

[20] Fourth, Mr Thwaite effectively challenges the validity of the statutory provisions under which the suppression orders were made. He did not press the point in oral argument. Plainly, on elementary constitutional principles, this Court has no jurisdiction to enquire into the validity of legislation enacted by Parliament. This question is not arguable.

(e) What duty does a Court have in terms of Article 2 of the International Covenant on Civil and Political Rights to provide a remedy in a criminal context where a suppression order should not have been made

[21] Fifth, Mr Thwaite raises an open ended proposition to the effect that this Court is bound to provide Mr Slater with a remedy where the subject order should not on Mr Thwaite’s argument have been made. On analysis that submission adds nothing to the previous questions and the question is not arguable.

Conclusion

[22] We are not satisfied that any of the proposed questions of law are arguable. It follows that none of them meet the statutory threshold for granting special leave.

Result

[23] Mr Slater’s application for special leave to appeal is dismissed.

Solicitors:
Crown Law Office, Wellington, for Respondent

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[1] Police v Slater DC Auckland CRI-2010-004-9358, 14 September 2010.
[2] Police v Slater DC Auckland CRI-2010-004-9358, 14 September 2010.
[3] Slater v New Zealand Police HC Auckland CRI-2010-404-379, 10 May 2011.
[4] Slater v New Zealand Police HC Auckland CRI-2010-404-379, 8 July 2011.