Blair v Police HC Rotorua CRI-2011-463-000087 [2011] NZHC 1925 (30 November 2011)

Last Updated: 2 February 2012

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

_{CRI-2011-463-000087}

PAUL ANTHONY BLAIR

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing: 30 November 2011

Counsel: FC Wood for Appellant

N Tahana for Respondent

Judgment: 30 November 2011

_{JUDGMENT OF ASHER J}

Solicitors/Counsel:

Davys Burton, DX JP30001, Rotorua. Email: [e-mail]

Crown Solicitor, PO Box 740, Rotorua. Email: [e-mail]

BLAIR V NZ POLICE HC ROT CRI-2011-463-000087 30 November 2011

Introduction

[1] On 23 September 2011 Paul Anthony Blair was convicted following a jury trial of one count of sale of cannabis and two counts of possession of cannabis for the purpose of sale. Following his conviction an interim non-publication order that had been previously in place was lifted without opposition. However, later, after a decision to appeal the conviction was made, Mr Blair, through his counsel, applied for a further non-publication order pending the hearing of the appeal.

[2] On 27 September 2011 Judge McGuire heard that application and declined to grant a further non-publication order. However, given that notice was given that there would be a challenge to this Court against his decision he granted an interim non-publication order that has continued until today when the hearing of the appeal is taking place.

Background

[3] It is necessary to go through the procedural developments that have led to this hearing in more detail. At the time of his initial arrest and appearance in Court Mr Blair was granted interim non-publication of name. It appears that the grant was made on a Police Court day and without opposition or reasons being given. I am informed by counsel for the Crown, Ms Tahana, that if the Crown Solicitor had been involved the application for the interim non-publication order would have been opposed. In any event, the interim non-publication order was in place and continued until the trial.

[4] Following the conviction, the lifting of the non-publication order and the decision to appeal, the application for a new interim non-publication order pending appeal was filed on the same day. However, it was not heard on that day and there was a delay of some days without there being any non-publication order in place. In the spirit of the constructive relationship that must exist between the courts and the profession and the media there was no publication of Mr Blair’s name while the hearing of the interim non-publication order application was awaited. Ultimately that interim non-publication order application was heard some four days later and

Judge McGuire refused to make the orders sought or grant a further interim non- publication order pending an appeal against that decision.

[5] Mr Blair then attempted to file his appeal papers in the High Court at Rotorua. They were rejected and his solicitors advised that the appeal would have to be lodged with the Court of Appeal. Accordingly, the appeal was lodged in the Court of Appeal. In a Minute dated 23 November 2011 the Court of Appeal indicated its provisional view that the Crown submission that the Court of Appeal had no jurisdiction was correct and that Mr Wood was to file further submissions.

[6] This was not done and instead the appeal papers were again lodged in this Court. This time they were accepted for filing and this hearing follows some three working days after the filing.

[7] Given this chequered procedural history it is necessary to say a little more about jurisdiction. Both Mr Wood for Mr Blair and Ms Tahana for the Crown accept that this Court has jurisdiction to hear this appeal.

[8] This Court does indeed have such jurisdiction. Section 140(1) of the Criminal Justice Act 1985 gives courts the power to make orders prohibiting the publication of names and other details of a person “accused or convicted” of the offence. Section 28E(2B) of the District Courts Act 1947 states that a prosecutor or applicant may appeal to the High Court against the making of such an order “or refusal”. This is such an appeal.

Relevant facts

[9] During November and December 2010, Rotorua Police undertook an undercover operation in relation to the sale and supply of illegal drugs. Undercover officers targeted various addresses. One of those was 9 Ian Street, Rotorua. On

17 December 2010 an undercover police officer went to that address. The officer knocked on the door and it is his evidence that Mr Blair answered the door. The officer indicated that he wished to buy drugs. Mr Blair allegedly went away and

returned with a choice of four “tinnies”. He told the officer to choose. The officer chose one and gave $20 in exchange.

[10] On 20 December 2010 the operation was terminated and search warrants were executed at various addresses. The addresses included Mr Blair’s work address, which was also his home address. At that address Police located 8.74 grams of cannabis head.

[11] At the trial the undercover police officer identified Mr Blair as the person who came to the door. Mr Blair gave evidence and denied it was he that came to the door and pointed to the fact that there was another person of similar appearance who was in the house at the time.

[12] The jury reached verdicts of guilty on all counts.

The basis of the appeal

[13] Mr Wood for Mr Blair acknowledged that following a conviction the factors that are usually taken into account in pre-conviction non-publication hearings alter. The essence of his submission was that non-publication was required in the interests of justice for fair trial reasons. Mr Blair has a certain profile in Rotorua. He is a barrister. The affidavit evidence filed on his behalf shows him to have a legal practice. The nature of his work and public services that he performs have resulted in his photograph and name often being in the local papers.

[14] The key issue at trial was identity. Was it Mr Blair who came to the door? Mr Wood submits that the publication of Mr Blair’s name will result in widespread local publicity about his identity. He submits that the publication of the conviction will adversely impact on a potential juror’s view of the case and the appellant’s presumption of innocence for a new trial. He submits that the prejudice that will follow could not be adequately addressed through judicial directions.

[15] Mr Wood points out that this is a victimless crime in the sense there were no persons who immediately suffered. He also refers in his written submissions to the

fact that the publication of Mr Blair’s name would severely impact on his ability to carry out work as a barrister and advocate, but it is fair to say that that aspect of the submissions was not pursued before me this morning. It was his submission that Judge McGuire in his decision failed to address fair trial issues at all. His decision was therefore flawed and should be quashed and substituted with a decision granting interim non-publication until the hearing of the appeal.

[16] The Crown in response submitted that there were no particular fair trial issues that arose and that in accordance with established principles there should be publication of Mr Blair’s name.

Approach to non-publication

[17] The general principles to be applied in non-publication applications are now well settled. There is a general principle of ancient origin that criminal justice must be open justice. It is well recognised that the media have a crucial role in ensuring that there is such open justice, and the media can be seen in this area as “surrogates of the public”.1 In addition there is the general principle that everyone in New Zealand has the right to freedom of expression, including the freedom to receive

information and opinions of any kind in any form. That general principle is now enshrined in s 14 of the New Zealand Bill of Rights Act 1990.

[18] The relationship of the public’s right to receive information has to be balanced against an accused’s right to receive a fair trial. The process of consideration is sometimes referred to as a balancing exercise. The right to a fair trial is also enshrined in the New Zealand Bill of Rights Act.2 It is clear that fair trial rights must trump open justice considerations.3

[19] Particular considerations apply where the non-publication is considered following a conviction pending an appeal against that conviction. In that

_{circumstance the presumption of innocence is no longer available as a factor in}

1 _{R v Liddell [1995] 1 NZLR 538 (CA) at 546.}

2 _{New Zealand Bill of Rights Act 1990, s 25(a).}

3 R v B (CA 459/06) [2008] NZCA 130, [2009] 1 NZLR 293 at [80].

favour of non-publication. The issue was considered in R v Burns (Travis).4 The Court considered that it was neither sensible nor feasible when considering an application following a conviction and pending an appeal, to speculate on the outcome of the appeal. The result could not and should not be pre-judged.5 The Court then proceeded to determine the application on the basis of its “exceptional facts”.6 The Court commented:7

It 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.

This application

[20] The question that I have to determine is whether the possibility of a retrial (which statistics indicate is ordered only in a limited number of cases) and the possibility of unfairness arising from publication in that retrial, outweighs the weight to be afforded the principle of open justice. I have no doubt that a clear case of serious prejudice of the sort that was ultimately made out in Burns can be sufficient to warrant the making of a non-publication order.

[21] Judge McGuire referred to Burns in his decision. However, it is correct, as Mr Wood submits, that there was no express consideration of fair trial issues in his decision. Rather the Judge asked whether the case was an “exceptional case” of a kind similar to Burns and concluded having considered the stigma that would be suffered by Mr Blair that it was not. Given the fact that the effect on a fair trial of publication is a relevant issue it is necessary to consider Mr Wood’s fair trial

_{argument in this decision.}

4 _{R v Burns (Travis) [2002] 1 NZLR 387 (CA).}

5 _{At [15].}

6 At [16].

[22] The publication of Mr Blair’s name will, I have no doubt, lead to widespread publication of his name and possibly his photograph. It is likely that if Mr Blair succeeded on his appeal and there was a retrial at some stage later next year, or early in the year following, that jurors would have some memory of such publications. They would know that Mr Blair had been found guilty by a jury in Rotorua and given the fact that there was a retrial that an appellate court had set the conviction aside.

Will publication mean that Mr Blair will not get a fair trial?

[23] At a retrial, knowledge by the jury of a previous trial is not an uncommon position. Retrials occur frequently not just because of successful appeals, but because of hung juries or the premature termination of a trial. The fact that there has been a publicised previous trial and conviction is not generally seen, as a matter of trial practice, as preventing a fair trial. It will often be the case that the jury is aware or becomes aware of the fact of an earlier trial. In such circumstances the Judge directs the jury during the trial to consider the allegations purely on the evidence adduced, and put entirely to one side the fact and any outcome of the earlier trial. Any prejudice must be put to one side. Experience indicates that these directions are effective.

[24] The point was addressed directly in Burns. It was observed:8

Consequently, many retrials begin with the general public being aware of the result of the previous trial, the evidence which emerged in the course of that trial and, in many cases, the criminal record of the accused. These are matters which can generally be met by adopting available measures to prevent or minimise the risks occasioned by any prejudice resulting from this knowledge. Special directions to the jury designed to counter any such prejudice are one obvious measure.

[25] Mr Wood submitted that this case was out of the ordinary because the issue turned on the identity of Mr Blair. But this is not a factor making this case an exception. Identification of the accused, although it has its own set of complications and evidential requirements, involves in the end issues of credibility and reliability. These lie at the heart of many trial issues.

[26] The fact that there has been previous publicity of Mr Blair’s identity or photograph will not make it harder to ensure a fair consideration of identity issues by the jury. They will be given not only the directions about avoiding prejudice in the previous trial, but also any directions that must be given in relation to identity issues. It can be anticipated that the jury’s focus will be on the particular relevant evidence that is adduced through the trial. I cannot therefore accept that there is a risk of unfairness in the trial process because there will be a central identification issue.

[27] Mr Wood has emphasised the fact that what is sought is only a short term non-publication order pending the appeal which is due to be heard on 15 February

2012. While this is so, and is a factor that I take into account in the balance, in my view the paramount principle of open justice prevails over non-publication in this case, even if the order sought is for a short period. Further, there must also be the possibility following the delivery of the Court of Appeal decision of a further appeal to the Supreme Court. Mr Wood correctly points out there would have to be a new application in that circumstance, but no doubt the same submissions that are being made now could be made then. In the end if Mr Wood’s approach is accepted as correct, the duration of the orders could end up being very much longer than the three or four months envisaged at the moment.

[28] I conclude, therefore, that Judge McGuire did not make any error in his decision declining the application for non-publication orders. Mr Blair’s right to a fair trial that might follow a successful appeal will not be damaged by publication.

[29] I do not ignore the undoubted damage in the meantime to Mr Blair’s practice and reputation in Rotorua that will arise from publication. That factor on its own does not warrant a non-publication order. Indeed if there had been a consideration of the issue on its merits at the original non-publication hearing the application may have failed. Certainly at this stage following conviction, Mr Wood was right not to pursue that ground in oral submissions. This issue was considered and dismissed by Judge McGuire in his oral judgment.

Result

_{[30] The appeal is dismissed.}

...................................

Asher J