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R v R [2015] NZHC 798 (22 April 2015)

Last Updated: 8 October 2015

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.

NOTE: PREVIOUS ORDER PROHIBITING PUBLICATION OF NAME, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS OF THE DEFENDANT PURSUANT TO S 200 CRIMINAL PROCEDURE ACT 2011

_{REMAINS IN PLACE.}

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2014-044-2080 [2015] NZHC 798

THE QUEEN

v

_R

JUDGMENT OF WINKELMANN J [on application for stay]

This judgment was delivered by me on 22 April 2015 at 4.00 pm pursuant to

Rule 11.5 of the High Court Rules.

_{Registrar/ Deputy Registrar}

R v R [2015] NZHC 798 [22 April 2015]

[1] The defendant is charged with murder and sexual violation. The Crown’s case is that on the evening of 24 May 2014 the defendant abducted Mrs Blesilda Gotingco from Salisbury Road, Birkdale, took her against her will to his home, raped her and subjected her to physical violence, the totality of which conduct resulted in her death. The Crown says that the next morning the defendant took Mrs Gotingco’s body to Eskdale cemetery in Birkdale and left the body in scrub.

[2] The defendant has previously been convicted of serious offending. On

4 October 2006 he was sentenced to a total effective sentence of 8 years’ imprisonment for a number of offences, including abduction for sex with a girl under the age of 12, and indecent assault on a girl under 12. The alleged offending charged in this proceeding occurred several months after his release from prison on that sentence.

[3] Following his release from prison the defendant was made subject to special release conditions and also had an extended supervision order made against him for a period of 10 years. Wylie J imposed the extended supervision order because he considered that it was likely that the defendant would commit further serious offending of a similar nature to his previous offending.¹

[4] On 18 June 2014 Brewer J made orders in the following terms:

[a] I prohibit the publication in any news media or on the internet of the name of the defendant and any details likely to lead to his identification;

[b] I prohibit the publication of any report which may lead to Mr Robertson being identified as having been convicted of any other offences;

[c] I prohibit publication of this judgment;

[d] These prohibitions will apply to the date of Mr Robertson’s trial, namely 2 March 2015. They will then be a matter for the trial Judge to renew or lift.

[5] The Judge said that he made these orders because of his conclusion that there was a real risk of prejudice to a fair trial if the defendant’s name were freely

¹ Chief Executive of the Department of Corrections v R [2014] NZHC 218.

published at that point. This risk arose from the fact that were a potential juror to search the defendant’s name on the internet, the juror would see articles which linked the defendant to the previous offending.

[6] The defendant now applies for a stay of proceedings on the following two grounds:

(a) There is currently material on the internet linking the defendant in this case to that earlier offending and to the extended supervision order. Notwithstanding Police attempts to have that material taken down, some of the material remains. It is of a nature and extent that it has created a real risk that the defendant’s right to a fair trial has been prejudiced. This is because it has tainted the potential jury pool with knowledge of the fact that the defendant in this case is the person who committed those earlier offences and the person who was subject to an extended supervision order. The previous offending is of such a nature that knowledge of it is likely to excite strong feelings against the defendant.

(b) Even were a jury able to be selected free of knowledge of that material, if any member of the jury enters the defendant’s name into a search engine on the internet, the link between the defendant, the earlier offending and the extended supervision order will be immediately available to them.

[7] The defendant submits that there is no action that a trial Judge can take which will adequately mitigate these risks.

[8] The defendant has also filed an application for leave to conduct an on-line survey to ascertain the extent of the dissemination of prejudicial materials. The defendant sought a grant of legal aid to conduct that survey within the jury catchment area but that application was declined. The proposed survey is designed to detect if people who access that survey have knowledge of that prejudicial material. The defendant submits that he should be properly able to take all

reasonable steps to ascertain prospective juror prejudice where there are grounds for believing the same exists. The defence has filed the application for leave to undertake the survey because of concerns expressed by the Crown that the survey may itself taint the jury pool, particularly in light of proximity to the trial date.

[9] The Crown opposes the stay application.

Principles to be applied

[10] To avoid repetition I adopt for these purposes the statement of principles in

R v Bailey :²

Relevant principles

[47] Stays of criminal trials are rarely granted on the grounds of adverse pre-trial publicity. As the Court of Appeal said in Fox v Attorney General:

... to stay a prosecution, and thereby preclude the determination of the charge on its merits, is an extreme step which is to be taken only in the clearest of cases.

[48] This is not to say that proceedings will never be stayed. There is jurisdiction to stay proceedings on the basis of the impact of adverse publicity on the applicant's fair trial rights. The starting point is s 25 of the New Zealand Bill of Rights Act which guarantees as a minimum standard of criminal procedure that:

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

...

(c) The right to be presumed innocent until proved guilty according to law.

[49] The right to a fair trial is a fundamental right, which is not to be subordinated to the legitimate public interest in the detection and suppression of crime Montgomery v HM Advocate and Another.

[50] In determining whether prejudicial publicity could constitute grounds for a successful appeal against conviction, the Court of Appeal said in R v Halkyard & Harawira:

2. R v Bailey HC Auckland CRI-2007-085-7842, 23 April 2010 (citations omitted). Endorsed by the Court of Appeal in Iti v R [2012] NZCA 492 at [50].

... the question is whether the publicity in this case gives rise to a real concern that the accused did not receive a fair trial. This must be judged in relation to New Zealand circumstances and experience, bearing in mind that the trial Judge will direct the jury to put aside emotion and prejudice, to ignore anything they may have previously heard, and to decide the case solely on the evidence presented to them. That warning will vary in emphasis, depending on the circumstances.

[51] In R v Bain this Court said that a finding of abuse of process may be founded on the inability of the Court to ensure a fair trial. At [26] the inquiry was identified as being “whether a fair trial remains attainable” and at [120]:

Consistent with the right to a fair and public hearing by an independent and impartial Court guaranteed by s 25(a) of the Bill of Rights Act, the New Zealand authorities articulate that where pre-trial publicity has been of such a nature as to demonstrate that, on balance, a fair trial is no longer attainable, then a permanent stay of the proceeding may be appropriate: R v Coghill [1995] 3 NZLR 651 (CA) and R v Cara (2004) 21 CRNZ 283 (HC).

[52] However, even where there has been prejudicial widespread publicity which may continue to have effect at the time of trial, a stay is not an inevitable result. As Randerson J said in R v Rickards, the real question is whether there are means available by which a fair trial can be ensured notwithstanding that prejudicial publicity has occurred to date, and even where there is a likelihood of further prejudicial publicity during trial.

The material that is available on-line

[11] The defendant has filed a volume of material in support of the application. In the initial application for a stay the defendant identified several breaches of the suppression order. He also identified material that, while perhaps not directly in breach of the suppression order, carried the risk of indirectly identifying the defendant. This material was:

(a) A tweet made by a journalism student that named the defendant. That tweet was posted on 31 May 2014 (posted after the defendant was given interim name suppression).

(b) A facebook post by a member of the Sensible Sentencing Trust. The

member records on their page that they had previously had “an old

article from the NZ herald on my FB page which had the name of

Blessie Gotingo’s murderer and I linked the guy to the murder.”

(c) A website (E2NZ.org) that confirms that the defendant was named on facebook and twitter and contains discussion that he is “known to Police.” It contains a number of details about the defendant, including his previous convictions that easily enable the identification of the defendant through searching on that detail. It also provides hyperlinks to material that identifies him.

(d) A Google search of the defendant’s name that shows connections to the present case, including photos of the victim. The defendant submits that because the defendant’s name is suppressed there should be no link between the defendant and the victim. A Google search of the defendant’s name also reveals details about his previous offending and the extended supervision order.

(e) The Contrarian Journal (www.contrarianjournal.com) contains statements that “Blessie’s murderer was known to police beforehand... was on supervision for ...sexual assault and serious bodily harm... Reports also show that the suspect served a mere eight years for those crimes.”

[12] Following the initial application the defendant filed a further memorandum on the stay issue dated 5 March 2015. Attached to that memorandum is a report compiled by a public relations company dated 3 March 2015. That report was designed to address the extent to which material related to the defendant and his history is publicly available; and how readily a prospective juror could find out the identity of defendant in these proceedings.

[13] The report identifies further information that could link the defendant’s name

to the current offending, including:

(a) A website (www.tropix.com) which identifies the person arrested for the offending as a “27 year old man described as, Maori from the Bay of Plenty”.

(b) Keeping our kids safe from predators (NZ) facebook page.

Underneath a photo of the defendant with a caption referring to the extended supervision order there is a comment “I bet you hes the one that killed blessie on the north shore (inside info)” Underneath a different photo and story about the defendant there is a comment from a different person “This is the guy that killed Blessie Gotingo”.

(c) Sensible Sentencing Trust’s Offender database. This details that the defendant is currently “remanded in prison”.

(d) Comments posted on two popular blog sites: Whaleoil and Kiwiblog.

The comments include suggestions to look at the Sensible Sentencing Trust’s facebook page and offender database. They also include details about the defendant such as the fact he was wearing a GPS bracelet and that he had previously offended against children.

[14] At the conclusion of the 3 March report the author states:

.... a few simple searches via the Facebook search function reveal direct

identification of [the defendant] in relation to [this] case.

.....

Someone seeking out the identity of the accused can easily follow a trail of internet postings that will lead them to a conclusion.

Having reviewed the material filed by the defendant I agree with the report writer’s

conclusion.

[15] Subsequently the defendant has also asked for the Court’s permission to conduct a survey. In support of that application the defendant has identified other material that has been published and is available on-line as at 2 April 2015. This includes:

(a) The Sensible Sentencing Trust website, which contains material which strongly suggests the defendant has previous convictions.

(b) The Keeping our kids safe from predators (NZ) facebook page.

Confirming the same material is still available

(c) E2NZ - confirming the same material is still available.

(d) Kiwiblog – There is an article on Kiwiblog titled “the Blessie alleged killer”. It links to a New Zealand Herald article, which does not itself appear to breach any suppression orders. There are many pages of comments to this story, none of which name the defendant directly, but some of which provide information or make suggestions that could potentially lead to his identification through further searching. For instance, one of the comments quotes from the sentencing notes of the defendant’s earlier sentencing.

The Crown’s opposition to the stay application

[16] The Police have taken steps to address the material which is in breach of the existing orders because it links the defendant in this case to the earlier offending. This has resulted in the removal of the tweet that directly identified the defendant, removal of some of the facebook comments that appeared on the Sensible Sentencing Trust’s page and removal of the Contrarian Journal article. Some material however is beyond the reach of the Police because it sits on overseas registered sites.

[17] The Crown submits that the pre-trial publicity has not been so extensive that it is likely to have contaminated the jury pool. It says that any risk that a potential member of the jury pool has accessed this material can be met through appropriate procedures at trial, the type that were considered in the Bailey proceeding.

[18] As to the risk that a jury member will search the internet to identify the material linking the defendant to the earlier offending and the extended supervision order, the Crown submits that again that can be met through judicial direction.

Analysis

Stay application

[19] The material the defendant points to is all material which appears on-line. Much, if not all of it also seems to have been created some time ago. Although the material remains accessible, a potential juror or juror would have to go to the particular site or search with the defendant’s or the victim’s name to come across it. Although I acknowledge a link could be stumbled upon, there is no evidence suggesting there is a significant likelihood of that occurring.

[20] The problematic aspects of the coverage are that it:

(a) identifies the defendant as a person with a serious criminal record.

(b) discusses the offending for which he was convicted, which is offending of a type to excite a strong emotional response.

(c) identifies the fact that the defendant had an extended supervision order made against him, supporting the conclusion that he is someone who was considered by a court to be likely to reoffend seriously.

(d) supports a conclusion that when he allegedly committed these offences the defendant was subject to some sort of restriction relating to the earlier offending.

[21] The detail about the earlier offending and the extended supervision order is material that is not admissible in this proceeding. However, the fact that the defendant has previously had some involvement with the law will inevitably be before the jury, because of the evidence the jury will hear that he was subject to electronic monitoring. The GPS data collected through that monitoring is a critical part of the Crown’s case.

[22] I accept the Crown’s submission that the pre-trial publicity has not been so extensive that it would contaminate the jury pool such that a fair trial no longer

remains attainable. There are only a few instances where the defendant has been directly named in connection with the current offending, and these have occurred on social media or special interest sites, rather than in the mainstream media. As the conclusion to the report filed by the defendant makes clear, the nature of the material currently available online is such that if a person wanted to find out the identity of the defendant they could do so. But they would need to follow a trail of links, rather than having the information directly presented to them without any action on their part.

[23] Any concerns that a member of the jury may have been exposed to this information can be dealt with by initial remarks to the jury pool to the effect that they must raise with the Judge if they know anything about the subject matter of the trial or the defendant. It may be that a more rigorous approach is adopted, such as questioning each jury member about prior knowledge, but the form of the pre-trial screening is best left to the trial Judge after discussion with counsel.

[24] I do observe however that I do not see any prejudice to the defendant in a more rigorous screening process. Although it may suggest the defendant is known to the Police, this will inevitably be revealed at trial given the GPS evidence.

[25] I accept that once the trial has commenced there is a risk that a member of the jury may search for material connected to the trial including searching on the defendant’s or victim’s name. This is not an unusual eventuality, but is rather a risk in any criminal trial where the defendant has previous convictions not admissible as evidence against the defendant. It is relevant to this issue that the problem material is not current in the sense that it is not appearing in daily newspapers or news broadcasts. Any such publication is prevented by the earlier suppression orders. To access the historic material a juror would have to take the positive step of searching. Although they will have the information to do such a search that is the type of conduct jurors are directed they must not engage in. Jurors will be firmly instructed

not to undertake their own research including by doing any internet searching.³ They

_{will be told not to discuss this case with their family or friends, and not to make any}

³ A juror who disregards such a direction may well be in contempt of court. See Rosemary Tobin “Contempt of Court, the internet and jurors” [2014] NZW 366 and Law Commission Contempt in Modern New Zealand (NZLC IP36, 2014) at 39.

postings about the case on social media. Judicial directions will therefore also address the risk of friends and family telling the juror about the earlier offending, or the existence of the extended supervision order.

[26] It is true that the earlier offending is of a type that will provoke an emotional response and that the reasons for imposing the extended supervision order could prejudice the jury against the defendant. If the jury were aware of these things very firm judicial directions would be required to meet the risk of illegitimate reasoning processes on the part of the jury. As I noted in Bailey the trial judge may therefore think it prudent to also direct the jury that if something happens that causes them real concern during the course of the trial, then they should immediately raise that

concern with the judge.⁴

[27] The trial Judge might also deem it appropriate to have a conference with counsel on the first morning of the trial to discuss what the appropriate directions to the jury are. Even if by the time of the trial there is wider knowledge of the defendant’s history I do not consider that this would mean that a fair trial is impossible. Courts have dealt with the situation of defendants with well known yet inadmissible criminal histories before and can do so with appropriate directions.

[28] My analysis of this application involves the assumption that a jury will follow judicial direction. As to that, I repeat yet another passage from the judgment in Bailey:⁵

[67] Trial judges regularly express confidence in the efficacy of judicial directions. These are not expressions of wishful thinking, but reflect a common experience of the trial Judge that juries do follow judicial directions. Judges are able to measure the efficacy of judicial direction in the verdicts delivered by juries who, by their verdicts, show that they have understood and followed directions, including those as to prejudice and the proper use of evidence.

[29] To conclude to this point, although the availability of the material on-line

creates a risk to the defendant’s right to a fair trial, this is not a case where a fair trial

_{is now impossible. There are steps the trial Judge can take to address that risk and}

⁴ _{R v Bailey, above n 1 at [73].}

⁵ Approved by the Court of Appeal in Iti v R, above n 1, at [62].

ensure that the defendant is still able to receive a fair trial. I therefore decline the application for a stay.

Application for leave to conduct a survey

[30] The defendant wishes to undertake a survey to ascertain the extent of juror prejudice in the catchment area. The defendant’s counsel submits that if the level of prejudice is low then that will be the end of the matter, however, if the survey shows potential juror prejudice then the survey will provide evidence to the Court to support any of the following applications:

(a) an application for change of venue;

(b) an application to question prospective jurors before a challenge for cause under s 25 of the Juries Act 1981;

(c) a stay application.

[31] The defendant seeks leave because it has acknowledged the risk that the survey itself may taint the jury pool. I consider that it was appropriate for leave to be sought in this situation. The risk that the survey might taint the jury pool raises the possibility that conducting the survey could amount to contempt of court as it is an action that might create a real risk of interference with the administration of justice.

[32] The usefulness of the results of this type of survey is inevitably unclear when the survey remains in prospect only. It may be that a well designed survey could be a good predictor of any prejudice in the jury pool. That evidence might then be relevant to the question of whether any of the applications mentioned above should be granted.

[33] Nevertheless, given my analysis of the risk of prejudice created by the material on-line, I doubt that the result of any survey would alter the outcome of the stay application. Even if some potential jurors are aware of the material, the trial

Judge can take the necessary steps to identify those jurors and ensure they do not serve on the panel.

[34] On the other hand there is a clear risk that the jury pool might be tainted by the survey itself, by sparking potential jurors’ interests and causing them to seek out further information. The defendant submits that the survey company has informed him that the smallest possible sample size is around 500 people. The defendant says that given this small size it is unlikely that the survey would further taint the jury pool. Even so that is a risk I believe should be avoided, given the proximity of the start of trial, 28 April 2015.

[35] For these reasons, I decline to grant leave.

Result

[36] The application for stay is declined.

[37] Leave to undertake a public survey in connection with this trial is refused.

Suppression

[38] There are existing name suppression orders in relation to this proceeding. They remain in place. There is to be no publication of the defendant’s name in relation to these proceedings.

[39] The content of this judgment addresses the existence of the defendant’s previous convictions. I therefore make a further order prohibiting publication of any part of the proceedings (including the result) in news media or on the internet or other publicly available database until final disposition of the trial. This order is necessary to protect the defendant’s fair trial rights.