Queen v Arlander [2011] CKHC 44 (25 May 2011)

IN THE HIGH COURT OF THE COOK ISLANDS
HELD AT RAROTONGA
(CRIMINAL DIVISION)

QUEEN

V

SCOTT DAVID ARLANDER
RICKY CARLSON
ALAIN ESTALL
TUTAI-O-FANAURA MERE KING
INANO MATAPO
DINA TEKURA MANAUEA MATAPO
GIOVANNI MARSTERS
SAMUEL TANGAROA

Counsel: C Evans and T Manavaroa for Crown
N George for Accused Estall, I Matapo, DTM Matapo, Marsters and Tangaroa
L Rokoika for Accused Arlander and Carlson
C Petero for Accused King

Ruling: 25 May 2011

RULING OF HON HUGH WILLIAMS J
ON APPLICATION OF INTERIM NAME SUPPRESSION
AND APPLICATIONS BY THE MEDIA

INTRODUCTION

[1] All 11 accused before the Court today were apprehended as a result of the termination of a Police Operation they termed "Operation Eagle", as a result of which the accused were all arrested early in May 2011, having been charged initially in front of a Court presided over by a Justice of the Peace. They were all granted interim suppression of name with that order to expire today unless continued by a further order of the Court.

[2] The grounds on which interim suppression was initially granted were apparently twofold: To advise their families of the fact of their arrest and being charged, and because the Police investigation was still ongoing at the time.

[3] The question today is whether the order for interim suppression of the accuseds' names should be extended, perhaps up to the commencement of trial.

LAW

[4] It is clear the Court has the power to order suppression of accused persons' names as an exercise of discretion.

[5] The starting point is to consider the Constitution of the Cook Islands, s.64 of which provides a universal entitlement to freedom of thought and freedom of speech and expression which applies both to the accused in this matter and to the media which has shown a significant interest in the arrests and in the progress of the case to date.

[6] It is not in contention that the law of New Zealand applies, at least by analogy, to the question of continuation of suppression and in that regard the guiding authority is the decision of the New ZeaCourt of Appeal in v v Wilson & Horton Ltd [n1">[1]. Because persons present will not have access to that, it is nary to read it:

"[41] In R v Liddellddell [1995] 1 NZLR 538 at 546-547 this Court declined to lay down any code to govern the exercise of a discretion conferred by Parliament in terms which are unfettered by any legislative prescription. But it recognised that the starting point must always be the importance of freedom of speech recognised by s.14 of the New Zealand Bill of Rights Act 1990, the importance of open judicial proceedings, and the right of the media to report Court proceedings:

"What has to be stressed is that the prima facie presumption as to reporting is always in favour of openness".

[42] Factors it is usual to take into account in deciding whether the prima facie presumption should be displaced in the case include:

• whether the person whose name is suppressed is acquitted or convicted. If acquitted, the Court may more readily apply the power to prohibit publication, although in R v Liddell the Court recognised ... that the public has an interest in acquittals also.
  
• the seriousness of the offending. Where a person is convicted of a serious crime it will only be in rare cases that name suppression will be ordered. Where the charge is "truly trivial" particular damage caused by publicity may outweigh any real public interest...
  
• adverse impact upon the prospects for rehabilitation of a person convicted...
  
• the public interest in knowing the character of the person seeking name suppression, an interest which has been acknowledged in cases involving sexual offending, dishonesty and drug use...
  
• circumstances personal to the person appearing before the Court, his family, or those who work with him and impact upon financial and professional interests. As it is usual for distress, embarrassment and adverse personal and financial consequences to attend criminal proceedings, some damage out of the ordinary and disproportionate to the public interest in open justice in the particular case is required to displace the presumption in favour of reporting.
  

[43] The Judge must identify and weigh the interests, public and private, which are relevant in the particular case. It will be necessary to confront the principle of open justice and on what basis it should yield..."

[7] A little later:

"Given the congruence of these important considerations, the balance must come down clearly in favour of suppression if the prima facie presumption in favour of open reporting is to be overcome."

[8] The Court of Appeal in that passage referred to the decision in Roberts v Police [2]. That was a case where a man charged with drug offending had been discharged without conviction and sought, unsuccessfully, to perpetuate an order for suppression of his name on the ground of the impact on him and his family of publication. The report deals with an unsuccessful appeal against a District Court Judge refusing to continue the order for suppression.

SUBMISSIONS

[9] In this case Mr George on behalf of a n of r of the accused submitted that the orders for suppression should be continued, largely on the grounds he advanced successfully in the Justices of the Peacet. He also pointed out that in a small community such as Raas Rarotonga, were suppression not to be granted, that of itself may have an impact on the selection in due course of an impartial jury.

[10] Ms Rokoika forrs Arlanderander and Carlson supported that proposition and also submitted that suppression should be granted in all cases unless the accused pleaded guilten ifarge was withdrawn, an order for suppression shou should be continued, she submitted.


[11] Mr Petero for Ms Kid not oppose the rescissicission of the suppression order.

DISCUSSION & DECISION

[12] In light of the authorities, the Court's commencement point is that the names of the accused should be able to be published unless there is a particular reason for ordering suppression as a matter of discretion. The media operate as a surrogate for the public in these situations, and accordingly the question is whether it is in the public interest for the orders for suppression not to be continued.

[13] There is force in Mr G's submission that there mere may be difficulty in selecting an impartial jury in due course from the eligible jury panel in a community as small as Rarotonga, but as pointed out in the exchanges between Bench and Bar, that is a problem which arises with the selection of a jury panel in many small communities where inevitably a large number of the people involved know a sizeable proportion of the population. So, although it is a factor not without weight, it is not an overwhelming factor in circumstances such as this, particularly where such jury research as has been carried out on the topic suggests that jurors, once empanelled, can successfully put out of their minds anything they may have heard, read or seen about the case before they were actually empanelled as jury members. Jurors take that stance in order to fulfil their responsibilities conscientiously.

[14] So, in the circumstances of this matter, and particularly given that the trial of these accused is unlikely to occur during 2011, the factor is not one of significant weight in the decision as to whether suppression should be continued.

[15] Mr George's sepoint was that ihat investigations are ongoing. That is true. There are scientific investigations apparently being undertaken by agencies in New Zealand which mpact on the the number of charges and their content. For the present, however, all the accused are charged under the Narcotics and Misuse of Drugs Act 2004. Almost all are charged in relationannabis offences, although ough there is some offending concerning LSD, and there are Crimes Act offences concerning attempted perversion of the course of justice and bribery. So, in the Cook Islands context, this is a matter where the offending is regarded as serious as discussed in Lewis.

[16] It is inevitable however that, should completion of the Police investigation result in the withdrawal of any of the charges against the accused - and indeed Ms Evans fe Crown advises the the likelihood is that more charges will be laid rather than fewer - the withdrawal of any charges against any accused must be done in opent and it would be unrealistic to consider that suppression sion should apply to any accused where a charge is withdrawn against him or her.

[17] So, although the offending is, in Cook Islands terms "serious", that is not a matter of great weight, and the fact that the investigation is continuing is a matter the results of which will also need to be dealt with in open Court.

[18] There is another factor which bears on the exercise of discretion in this case and it is that apparently the termination of the Police operation, and the charging of some 13 accused as a result, has occasioned a significant amount of media comment already, in the Cook Islands and overseas. It was a big operation in local terms and an operation of sufficient size to attract the interest of media outside the country.

[19] In New Zealand, where the order suor suppression were not enforceable, there has been publicity involving the names of at least one of the accused, publicity which has been retransmitted to tok Islands. So to a limited extent at least the suppressionssion order has been defeated.

[20] On a boarder front, but related to that issue, it is commonly difficult to maintain the integrity of suppression orders in a world where internet and social networking sites based outside the country but receivable inside the country have no compunction, knowingly or otherwise in breach of suppression orders, in publishing details of accused persons. So that, to an extent maintenance of the suppression orders in this case would be futile.

[21] Allied with that, seeing this matter has occasioned as much public comment as it has, there will inevitably be a significant amount of tittle-tattle alive in the community, and if the suppression orders are maintained that casts a pall of suspicion over all those who may, correctly or otherwise, be identified as accused by tittle-tattle and scuttlebutt. It is better for the accused to be named for that pall of suspicion to be dispelled, and the accused can be reassured that the aura of suspicion about them is likely to be lessened in the interval which must elapse between now and trial and, having regard to the jury research mentioned, is likely to be nullified at the trial itself.

[22] Having regard to all of that, the Court's view is that there is no basis made out for continuing the orders for interim suppression of name for any of the accused - some of whom have accepted the inevitability of publication - and accordingly the orders are directed to expire as at today.

[23] That leaves the question of the application by the media for the photographing or filming of the accused. There was an application by the media that that be done in Court for use in news broadcasts at a later stage. As pointed out, again in the exchanges between Bench and Bar, there is at the moment no established tort of invasion of privacy in the Cook Islands, and accordingly any order the Court might make preventing photographing the accused must be coupled with any order for continued suppression and extends only to the precincts of the Courthouse. There could be no opposition to the accused being photographed in the street if they are granted bail.

[24] So, having regard to all of that, the order is that the accused may be photographed or filmed once only, with those images to be used only in connection with reports concerning this case, and the media should bear in mind the need to be restrictive in their use of the photographs lest it imperils the integrity of the jury once this matter comes to trial.

[25] It is not for the Court to decide how the order concerning photographing or filming should be implemented. The photographs or films could be taken in the courtroom but that is undesirable, and the accused may prefer to submit themselves to photographing or filming in another location.

Hugh Williams J

Editorial Note: Derived from the Court’s electronic records and believed to be correct and final.

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^[1] [2000] NZCA 175; [2000] 3 NZLR 546 at 558-9, paragraphs 41-43.

^[2] [1989] NZHC 772; (1989) 4 CRNZ 429 at 431.