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R v Wharewaka HC Auckland CRI-2004-092-4373 [2005] NZHC 1668; (2005) 21 CRNZ 1008 ; [2005] NZAR 606 (8 April 2005)

Last Updated: 10 July 2020

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2004-092-4373

THE QUEEN

v

ABRAHAM JOSEPH WHAREWAKA (SENIOR) ABRAHAM JOSEPH WHAREWAKA (JUNIOR) TIMOTHY JAKE WHAREWAKA

RANIA MOHSEN NIAZI

Hearing: 4 & 18 March 2005

Counsel: B R Northwood and B D Tantrum for Crown
P J Kaye and H B Leabourn for Prisoner Wharewaka Senior and Prisoner Wharewaka Junior
R M Mansfield and S J Bonnar for Prisoner Timothy Wharewaka C L Harder and O G Martell for Prisoner Niazi
J W S Baigent (4 March) and W Akel (18 March) for Television New Zealand

Judgment: 8 April 2005

JUDGMENT OF BARAGWANATH J

Solicitors:

Crown Solicitor, Auckland Simpson Grierson, Auckland

Counsel:

Mr P Kaye, Auckland

Mr R Mansfield, Auckland Mr C L Harder, Auckland

R V WHAREWAKA (SENIOR) AND ORS HC AK CRI-2004-092-4373 8 April 2005

The applications

• [1] Abraham Wharewaka Senior, his son, Abraham Wharewaka Junior, his brother, Timothy James Wharewaka, and his partner, Rania Niazi, were tried in the High Court at Auckland on a variety of drug related counts. Pleas during the trial or verdicts on 4 March 2005 resulted in the following convictions

• [2] The “organised criminal group” referred to in the final count was the Sindi Chapter of Black Power, of which Mr Abraham Wharewaka Senior was founder and president and his son and brother patched members. The criminal activity it alleged was the manufacture of methamphetamine and the cultivation and sale of cannabis. While the Crown did not claim that the manufacture of methamphetamine was for supply it was established that the cannabis selling operation was on a very large scale with an annual turnover of some millions of dollars.

• [3] The prisoners have been remanded for sentence on 28 April 2005.

• [4] During the trial Television New Zealand Ltd (TVNZ) made written applications to copy

1. a videotape of a party at the Sindi Chapter clubrooms seized under warrant and described as

Black Power party with rap singer:

• Shows main accused passing P pipe
• Abe Wharewaka Junior in possession of firearms
• Congregating and participating in organised criminal group.

2. Photographs from the police containing a blow up of a video photograph seized under warrant showing Abraham Wharewaka Junior in possession of firearms and also photographs taken by the police of drugs and drug equipment seized under warrant.

100. Companies office files produced by the police.

The clubroom premises or “gang pad” and also the Aquarius Massage Parlour featuring in the case were effectively under the control of Mr Wharewaka Senior.

• [5] As Mr Timothy Jake Wharewaka had not been served the initial hearing on 4 March did not proceed. At the hearing on 18 March TVNZ further applied to copy two further home videos seized under warrant which were described as
  4. Aquarius massage parlour

• Congregating and participating in organised criminal group
• Abe Wharewaka Senior passing P pipe

5. Hui at Rotorua

• Passing P pipe

• [6] The Rotorua hui appears to have been of members of New Zealand Black Power chapters. There is no evidence that Mr Wharewaka Senior or his Sindi Chapter had particular authority in relation to the premises where it was held.

• [7] On 7 March 2005 TVNZ applied to film the sentencing for television.

• [8] Mr Abraham Wharewaka Senior and Junior consent to both applications. The Crown abide the decision of the Court on each. Mr Timothy Jake Wharewaka opposes the application to search and has not responded to the application for the sentencing to be filmed. Ms Niazi abides the former has not responded to the latter.

Jurisdiction

• [9] The applications for leave to copy exhibits are made under the Criminal Proceedings (Search of Court Records) Rules 1974

2 Search of Court Records

...

(5) [With certain specified exceptions] no person may search, inspect, or copy–

(a) The Crown Book without the leave of a Judge or a Registrar (but not a Deputy Registrar) and subject to such conditions as the Judge or the Registrar may impose:

(b) Any file, or part of a file, or document relating to a criminal proceeding without the leave of a Judge and subject to such conditions as the Judge may impose.

...

(9) For the purposes of this rule “document” includes:

...

(b) All exhibits produced in evidence:

...

• [10] Mr Akel did not challenge the vires of the rules but submitted that they must be given an interpretation and application consistent with s 14 of the New Zealand Bill of Rights Act 1990

14 Freedom of expression

Everyone has the right to freedom of expression, including the freedom to seek, receive, and impart information and opinions of any kind in any form.

• [11] The application for leave to film the sentencing is made in terms of the In Court Media Coverage Guidelines (2003) prepared by a committee including judicial and media representatives. They include

1. Application of guidelines

These guidelines:

(a) Apply to all proceedings in the Court of Appeal, the High Court, and the District Court from 1 January 2004.

(b) Do not have legislative force.

(c) Do not create rights and should not be construed to create expectations.

(d) Replace the Guidelines and Voluntary Code of Conduct for Expanded Media Coverage of Court Proceedings dated May 2000.

2. Purpose

(1) These guidelines are intended to ensure that applications for in-court media coverage are dealt with expeditiously and fairly and that so far as possible like cases are treated alike.

(2) In making decisions and exercising discretions under these guidelines, the court may have regard to the following matters:

(a) the need for a fair trial;

(b) the desirability of open justice;

(c) the principle that the media have an important role in the reporting of trials as the eyes and ears of the public;

(d) the importance of fair and balanced reporting of trials;

(e) court obligations to the victims of offences;

(f) the interests and reasonable concerns and perceptions of victims and witnesses.

...

4. Discretion of the court

(1) All matters relating to in-court media coverage are at the discretion of the court.

...

9. Decisions after hearing

...

(3) In considering the application, the Judge may have regard to:

...

(b) the media applicant’s standing as a media organisation;

Principles

• [12] Section 138 of the Criminal Justice Act requires that, save as otherwise provided by statute

...every sitting of any court dealing with any proceedings in respect of an offence shall be open to the public.

The principle that criminal trials and sentencing are performed in public is a fundamental element of the accused’s absolute right to justice and is limited only by certain statutory exceptions. That right to justice is recognised by the common law’s insistence on a fair trial: R v Griffin [2001] 3 NZLR 577, 587 para [40]; R v A (No 2) [2001] UKHL 25; [2002] 1 AC 45, 70 para [51] per Lord Hope and the heading to s 27 of New Zealand Bill of Rights Act; the right to a public hearing has been confirmed by s 25 as among the

...Minimum standards of criminal procedure

Everyone who is charged with an offence has, in relation to the determination of the charge, the following minimum rights:

(a) The right to a fair and public hearing by an independent and impartial court...;

• [13] The reasons why the right to justice requires a public hearing, stated memorably in Scott v Scott [1913] UKHL 2; [1913] AC 417, have been summarised by Woodhouse P in Broadcasting Corporation of New Zealand v Attorney General [1982] 1 NZLR 120, 122-3. The need for assurance of justice to the accused, to victims and to the community can only be met by public audit of how the courts exercise the great powers they receive in order to discharge heavy responsibilities. It has been expressed in the precept that a judge while judging is himself on trial.

• [14] In criminal cases the principle of openness is at its strongest in relation to the actual hearing of trials and sentencings. In other circumstances, including the present applications for search of court records for post-trial programmes, that principle may have to yield at least in part to other public and private interests, including that of personal privacy.

• [15] To give effect to the principle of open justice in changing circumstances requires evolution of its application. The principle, entitling a right of public entry to the courtroom save in exceptional circumstances, has long been applied to permit the presence in court of accredited news reporters whose presence may bring to the attention of the wider community fair and accurate reports of what is done in their name: Attorney-General v Leveller Magazine Ltd [1979] AC 440. Unlike the public they are not excluded from, for example, bail hearings where facts adverse to an accused inadmissible at a subsequent trial are ventilated in the confident knowledge that they will not be published. The previous practice of judges considering bail applications out of court left the media representatives uninformed as for the reasons for decisions. That such applications have come to be dealt with invariably in court in the presence of the media has enhanced both the transparency of bail hearings and overall public confidence in the results. The reality that television is now the eyes and ears of the community in a way that was previously the preserve solely of

newspapers and later radio has required its recognition in terms of the court procedures. The need for what Lord Steyn has called

[t]he glare of contemporaneous publicity [to] ensure that trials are properly conducted [as] a valuable check on the criminal process

and its

...mak[ing] uninformed and inaccurate comment about the proceedings less likely

In re S (A Child) Identification: Restrictions on Publication [2004] UKHL 47; [2004] 3 WLR 1129, 1141 paras 29-30.

is indisputable. Hence in New Zealand the media guidelines.

The application in relation to the sentencing hearing

• [16] In Re Victim X [2003] NZCA 102; [2003] 3 NZLR 220, 238 paras 36-7 the Court of Appeal emphasised the principle of open justice, especially in criminal proceedings, and required there to be “compelling reasons” or “very special circumstances” to justify departure from that principle. No such reasons or circumstances were identified in the present case and there will be an order that the sentencing hearing may be televised.

Inspection of the exhibits

• [17] The purpose of the application for leave to search the exhibits, as part of the court records, concerns a proposed “Close-Up” programme focused less, it seems, on the conduct of the trial than on the gang phenomenon in New Zealand. As R v Mahanga [2000] NZCA 354; [2001] 1 NZLR 641 (CA) shows, the application raises rather different considerations from those already discussed. In that case the Court of Appeal rejected a submission that the same open justice principles apply to an application to inspect exhibits in completed proceedings which had been duly open to the public and the media. Rather the Court is required in the exercise of its discretion to balance the countervailing interests.
• [18] It is necessary first to identify them with precision. At the forefront of TVNZ’s argument is the public interest in freedom of expression recognised in s 14.

• [19] In opening his argument Mr Akel contended that in this case the pointers to freedom of expression so overwhelmed the privacy considerations that he could take the high ground that the documents could and should be made available to all media. He pointed to the facts

• all the materials were shown in open court;

• there has been wider media attention evidenced by headlines, photographs and substantial reports in the print media;

• there has already been television filming of the verdicts;

• the convictions were on a substantial number of drug-related charges, a firearm charge and the charge of participation in a criminal group;

• there is a public interest in how gangs operate in the kind of activities that led to the trial;

• there is public interest in the report of the effect of the trial and convictions on the gang;

• television footage is needed for understanding of the defendants and their operation;

• there are no issues of suppression.

• [20] But the relevance of informed consent to such an application is obvious, as was recognised by Anderson J at first instance in R v Mahanga [2001] 1 NZLR 234, 236 para [9]. When it became clear that Messrs Abraham Wharewaka Senior and Junior agreed to be interviewed only by TVNZ and not by other media in whom they are not prepared to place confidence Mr Akel submitted that an order so limited ought to be made.
• [21] Mr Akel cited ss 5 and 6 of the Bill of Rights, Moonen v Film and Literature Board of Review [1999] NZCA 329; [2000] 2 NZLR 9 and Newspaper Publishers Association of New Zealand (Inc) v Family Court [1999] 2 NZLR 344, 351, submitting that in striking the balance between freedom of expression and privacy this Court must adopt the position giving the greatest weight to s 14. But that argument was rejected by the Court of Appeal in Mahanga.

• [22] The interests identified by Mr Mansfield in opposition to the application may be expressed in terms of the right to privacy of those who have not waived their entitlement.

• [23] Mr Mansfield emphasised the importance of balancing the interests of open justice against those of privacy. He submitted that the former interests have already received due attention by the open conduct of the trial at which the media could and newspaper reporters did attend. The fact that TVNZ did not apply to film the trial until the stage of the jury verdicts means that it cannot rely on the open justice considerations which would have applied at that stage.

• [24] He submitted that members of the Sindi Chapter and of Black Power should have their privacy interests protected. While Mr Timothy Jake Wharewaka did not himself feature in the footage Mr Mansfield was instructed by him to express concern in relation to filming of other members of the family and of the Sindi Chapter and of Black Power at private functions where there was an expectation of privacy. In the event that there is to be some filming of persons other than those who have consented to publication or agreed to abide they should be protected by pixilation.

• [25] Mr Mansfield submitted that in the case of exhibits and films seized under warrant beyond the minimum publication necessary for the proper conduct of the trial the expectation of privacy should be sustained. Nor should there be provided the opportunity of retrial by the media of counts on which the jury had disagreed (as whether the Crown had proved from the videotapes that Mr Abraham Wharewaka Senior and others had been using and supplying to others the drug “P”).

Approach

• [26] Certainly a presumption of openness will apply where there is no countervailing public interest; s14 requires no less. But the cases of difficulty are where Bill of Rights Act values conflict either between themselves or with another recognised public interest, in this case privacy. That right has assumed prominence in recent times as is seen by the enactment of the Privacy Act 1993 and the development of the judge-made law of privacy expressed in Hosking v Runting [2004] NZCA 34; [2005] 1 NZLR 1 (CA). Each reflects a general appreciation that the dignity of the individual is a core value, indeed the fundamental value, of a civilised society. That topic is the subject of a lucid discussion by Munby J in R (Burke) v General Medical Council [2004] EWHC 1879; [2005] 2 WLR 431, 452-8 paras 59-72.

• [27] It is only such absolute rights as freedom from torture (s 9 BORA) and entitlement to a fair trial that simply trump all competing values. Neither freedom of expression nor privacy is an absolute right. Such non-absolute “rights”, which it is the Court’s function to balance, may usefully be seen as public interests to be meshed appropriately with other public interests - whether they are to be found in the Bill of Rights, the Human Rights Act or in the principles of common law. Each is of such importance that where they conflict the balance between them must be struck in a carefully nuanced way.

• [28] In England Sedley LJ confronted the problem in Douglas v Hello! Ltd [2000] EWCA Civ 353; [2001] QB 967, and his approach has been endorsed by Lord Hoffmann in Campbell v MGN [2004] UKHL 22; [2004] 2 AC 457, 474 para 55 (each involving, as here, privacy competing against freedom of expression). It is that there is no question of automatic priority, nor any presumption in favour of one rather than the other. The question is rather the extent to which it is necessary to qualify one right to protect the underlying value protected by the other. And the extent of the qualification must be proportionate to the need.

• [29] While Professor Burrows has cautioned against over-ready assumption that the balance between freedom of expression and privacy will be the same in New Zealand as in England where the Bill of Rights does not protect privacy

(see Media Law [2004] NZLRev 787, 804), such approach is consistent with that in

Mahanga. I adopt it in this case.

• [30] The law protects the rights of all persons; gang members are no exception. Gang membership or association is not of itself prohibited by law; on the contrary ss 16-17 of the Bill of Rights provide

16. Freedom of peaceful assembly

Everyone has the right to freedom of peaceful assembly.

17. Freedom of association

Everyone has the right to freedom of association.

• [31] The law’s approach is seen in Polanski v Condé Nast Publications Limited [2005] UKHL 10, 10 February 2005) where a fugitive from justice was permitted to give evidence from abroad by videolink in support of his defamation proceeding within the jurisdiction.

• [32] The law also protects the privacy of the homes and private lives of all people so long as they do not infringe it. But there can be no legitimate privacy expectation in relation to the proceeds of proved criminal conduct or the means by which they have been created.

Decision on application to search

• [33] Film of illicit drugs (Photos 5/9, 7/38, 7/42 and 7/47, 12/37 and 12/38 and 15/9), of equipment used for the manufacture of methamphetamine (Ex 154/4, 154/5, 154/6 and 154/7) and of the funds received as proceeds of sale of cannabis (13/3, 13/10, 13/16, 15/10 and /11), in relation to which items there has been a conviction, may be copied and published.

• [34] The certificates of incorporation of various companies with which the evidence established association of the Sindi Chapter may be searched. They are public documents available at the office of the Registrar of Companies and there is no privacy interest warranting their being withheld.
• [35] More difficult are the three videotapes. In Mahanga the Crown played a videotape of an interview by the police of one accused, later convicted of murder of his child. At the hearing TVNZ, which had permission to televise the trial and took its own videotape of the in-court screen was declined leave by the trial judge, Rodney Hansen J, to use excerpts to improve the sound quality of its new coverage. After the trial it applied for leave to inspect and copy the videotape for the purpose of a documentary. Anderson J ([2001] 1 NZLR 234) dismissed the application on the ground not only that he could not review a fellow judge’s decision but that the attempt to secure reconsideration of his earlier decision Television New Zealand Ltd v R [1996] 2 NZLR 462 went beyond the then Expanded Media Coverage Guidelines and that there was no justification for that course. The Court of Appeal held ([2001] 1 NZLR 641) that both Hansen and Anderson JJ had had regard to the relevant factors – the interests of the broadcaster, Mr Mahanga’s privacy interests and the public interest in the administration of justice - and neither decision was plainly wrong, so there were no grounds for challenging their discretionary decisions.

• [36] TVNZ having secured the consent of the Messrs Abraham Wharewaka Senior and Junior and there being no objection by Ms Niazi to the video images of her being filmed by TVNZ its s14 right or interest justifies permission to inspect with a view to publishing the footage of them.

• [37] I am of a different opinion in relation to the other persons shown in the videotapes filmed in the Sindi Group’s “pad”, at Aquarius and at a Black Power convention in Rotorua who have not given such consent.

• [38] There has been no conviction arising from the events shown in the videotapes other than that of Mr Abraham Wharewaka Junior on the firearm charge. Were it not for the consents by Messrs Abraham Wharewaka Senior and Junior and the lack of objection by Ms Niazi, save insofar as the information has already entered the public domain or could be expected to do so by publication in media (see Television New Zealand Ltd v R [1996] 3 NZLR 393, 397-8) I would not have permitted inspection and copying of the videotapes except in relation to the firearm, because there is no sufficient reason to override their privacy interests.
• [39] I do not consider that playing of the videotapes in the courtroom of itself constitutes such publication as would warrant concluding that the information has already entered the public domain.

• [40] I do not rely on Home Office v Harman [1983] AC 280 where the House of Lords decided by a bare majority that reading documents in open court does not waive privilege in them. The European Court of Human Rights later decided that the holding that Ms Harman was in contempt of court gave rise to an admissible complaint against the United Kingdom. The proceeding was settled on a basis requiring amendment of the Rules of the Supreme Court regarding discovery (Nicol, Millar and Sharland Media Law & Human Rights Blackstone Press Ltd 2001 p 62); and Ms Harman is now Solicitor-General.

• [41] I prefer the simple argument that the activity depicted in the videotapes was social and occurred in private; the jury was not satisfied that it included illegal conduct (it failed to agree on charges that it showed the supply of a pipe of methamphetamine by one person to another); the tapes were obtained compulsorily under warrant; while they were played in open court no attempt was made to videotape the tapes at that stage; and the evidence about them has not been shown to have entered the public domain or that it will necessarily do so otherwise than by leave to inspect it. That the media might have been able to copy the videotapes at a stage when the powerful right to see the trial existed does not entail a similar result at this later stage when other interests are to be taken into account.

• [42] While I am prepared to accept that Ms Niazi like Messrs Abraham Wharewaka Senior and Junior has waived her privacy right, that cannot be said of anyone else in any videotape. It follows that permission to inspect and copy the videotapes will be limited to such parts of them as record all or any of Messrs Abraham Wharewaka Senior and Junior and Ms Niazi. Further, any other person or persons shown in the copy of the videotapes is to have his or her privacy protected both by pixilation and by absence of identifying information accompanying the presentation. Given Mr Wharewaka Senior’s authority in relation to the Sindi Chapter clubrooms and Aquarius views of them may be published. So too may such information, including identification of the performer known as Kurupt, as is

already in the public domain. In the Rotorua videotape only views of Mr Wharewaka Senior may be searched and copied.

• [43] There will be leave to apply by telephone conference for more specific directions consistent with this judgment.

• [44] Costs are reserved.

W D Baragwanath J