Commission of Inquiry into Police Conduct : Transcript of Hearing 13 August 2004

Commission of Inquiry into Police Conduct

Questions and Answers

Transcripts of Hearings

Report of the Commission of Inquiry into Police Conduct

Transcript of Hearing 13 August 2004

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Link here to: Submissions made to the 13 August Hearing

Commission of Inquiry into Police Conduct
Public Hearing held on 13 August 2004 (Commenced at 9.30 a.m.)

PRESENT:

Commissioners
Justice Robertson and Dame Margaret Bazley

Counsel for the Commission
Ms M Scholtens QC and Ms B Hunt

Counsel for the NZ Police
Ms K McDonald QC and Mr D Boldt

Counsel for the Police Association
Ms S Hughes

Police Managers Guild
Mr E Cooper

Counsel for Crown Law
Ms N Crutchley

Counsel for APN New Zealand Limited
Mr B Gray

Counsel for Dominion Post and
Fairfax Group Publications
Mr P McKnight and Mr R Stewart

Counsel for X
Ms J Ablett-Kerr QC
Mr M Phelps

Counsel for TVNZ and TV3 (Canwest
TV Works Limited)
Mr W Akel

Commission Staff
Ms R Boyack - Executive Officer
Ms E Jeffs - Advisory Officer
Ms J Harris - Information Officer

HON JUSTICE ROBERTSON: Please be seated.

REGISTRAR: This hearing of the Commission of Inquiry into
Police Conduct is now in session.

HON JUSTICE ROBERTSON: The Commission has received an
application from the Police Managers Guild for full party
status. It is minded to grant that application. Are any
of the existing parties wishing to be heard on that
matter?

MS McDONALD: No, Sir.

HON JUSTICE ROBERTSON: Well, in that case, full party status
is accorded to the Police Managers Guild, together with
the existing parties, New Zealand Police, Police
Complaints Authority, Police Association. As we have
indicated in the past, arrangements will be made from
time to time in respect of particular aspects of our work
for people who have an interest in that.

The second issue which we wish to consider today
relates to the controversial issue as to the conduct of
this inquiry and the competing interests which arise with
regard to it. Dame Margaret and I determined that it
would be appropriate to hear those who had a view and an
interest, in open session, to determine on at least a
starting point with regard to how we would operate,
realising always that our overwhelming obligation is to
be fair and to maintain integrity in what we do.
Although we will endeavour to lay down uniform practices
and approaches, necessarily there may be occasions where
we will have to revisit issues in particular
circumstances because of unique factors which have
arisen.

What I am proposing to do is to invite Ms Scholtens
to first address the Commission on the underlying issues
and then to hear from any of the parties who wish to be
heard.

We have sent notification of today to people who
have expressed interest to us. Some people think that
because we tell them that we are doing something, we are of
the view that they have some particular contribution to
make. The system isn't working like that. If people
tell us that they have an interest, then we are advising
them of what we are doing so that they can initiate
action. That opportunity has been provided and will
continue to exist. I am conscious that a number of
representatives of the media are present and may wish to
be heard.

I perhaps should identify them, I will get it wrong if
I go from left to right or right to left, but you are in my immediate sight Mr Akel.

MR AKEL: I appear for Television New Zealand Limited and also
Canwest TV Works Limited, which of course is TV3,
formerly TV3 Network Services, so I appear for both the
TV channels, Sir.

HON JUSTICE ROBERTSON: Thank you, Mr Akel. Mr McKnight?

MR McKNIGHT: I appear with Mr Stewart for the Dominion Post
newspaper and the Fairfax Group Publications.

MR GRAY: I appear for APN New Zealand Limited, the publisher
of the New Zealand Herald and other newspapers throughout
New Zealand.

HON JUSTICE ROBERTSON: Thank you. Ms Ablett-Kerr, you
appear for?

MS ABLETT-KERR: I appear for X, together with
Mr Phelps.

HON JUSTICE ROBERTSON: What I propose to do is invite
Ms Scholtens to address and then, Ms McDonald, do you
intend to speak to the submission?

MS McDONALD: Yes, I do, Sir.

HON JUSTICE ROBERTSON: Ms Hughes, Mr Upton is not going to be
present, is he, but he's been in touch with you?

MS HUGHES: Yes, Sir.

HON JUSTICE ROBERTSON: Mr Cooper, I will hear you if you wish
to speak. I think it would then be appropriate to hear
Ms Ablett-Kerr, and then I will hear the media at the end
of that and then Ms Scholtens. I am grateful to those of
you who did respond to the invitation to provide us with
some material in advance, which both Dame Margaret and I
have read. There will be no need to read any of that
material. I have no objection to it being made available
to the press bench.

I do want to remind people, however, that some of
the issues which will be canvassed are subject to orders
which exist in another place. Although it may be
necessary for us, at least by implication, to avert to
those matters, nothing said or done in this place can
have any effect or impact on orders which have been made
in another place. I can't hold your hands, the media
will have to ensure that they do not, in reporting
anything which occurs here, place themselves in jeopardy
of action in another place.

Does anyone have any questions or comments of a
general sort before I invite Ms Scholtens to address?
Thank you, Ms Scholtens.

***

Submissions by Ms Scholtens QC

MS SCHOLTENS: Thank you, Sir. The two key issues that are
before the Commission today is first, should we be
sitting in public or private? That's a general
proposition and also a proposition that becomes live,
particularly where there are pending criminal
prosecutions which may bear on this Commission's work.

Secondly, if we are sitting in public, what approach
to witness identification should be taken?

A memorandum that I prepared setting out what I see
is the relevant legal principles has been circulated to
all those persons who indicated that they were appearing
today. So, that's available for anybody to comment or
make submissions in relation to. It doesn't go into,
obviously, the merits and how the Commission should
exercise its various powers and discretions but attempts
to set out the legal parameters of them.

Invitations were sent to all those who had
registered a formal interest in this matter, inviting
them to send in written submissions if they were not
proposing - if they were not in a position where they
could appear. We have some written submissions from
persons who aren't here today. They have been made
available to the Commission and also there are copies
available for anyone else who is interested. There are
four of them.

The first is from the Police Complaints Authority,
which is a party to the inquiry. Mr Upton effectively
submits that hearings should be in public as far as
possible. He refers to the rights that are to be
balanced and he supports the suppression of names of
complainants and those complained about, essentially on
the basis that they are background matters only and not
matters which require focus, or ought to have any focus.

Then we have a submission from the Wellington Sexual
Abuse Help Foundation and a number of other related
organisations. They emphasise the importance, as they
see it, that the individual complainants should be given
an option as to how they give their evidence, and they
support whatever measures are appropriate to make these
people feel comfortable telling their story.

The third submission is on behalf of a person who is
the subject of a complaint.

Mr B has made that submission in writing. He
supports the generic application for a presumptive order
of name suppression and identity suppression, that I
understand Ms Hughes will be making from the Police
Association.

He refers to the limits on the Terms of Reference
and, in relation to private hearings, he submits that the
primary mechanism for achieving the right balance is the
use of suppression orders and so shouldn't get into a
situation where private hearings are necessary, at least
at this stage.

And then finally, there is a submission from
Mr Y for one of the persons who has also been
identified as relevant to a complaint.

He submits that the interests of a fair trial require the
Commission to do nothing until the matter is disposed of,
and that is a submission that he has made earlier.

He makes particular submissions relating to
suppression if the Commission does proceed, but he raises a
particular concern that any specific evidence relating to
specific events, whether the parties are named or not,
still has the real potential, he says, to prejudice a
subsequent trial.

He also seeks the non-publication of any submissions,
and I assume, Sir, that would apply to the submission that he
has put before the Commission today.

So, those are the four submissions received from
persons who aren't here today to support what they have
said.

I have also, together with Commission staff, tried
to ascertain the views of those persons who have made
complaints that we have been focusing on in terms of
getting ready to hear evidence about. These people have
come forward on the basis that this is a public inquiry
and in general they support the inquiry being heard in
public; they want the facts in the public arena. They
want the Police to be accountable publicly.

As far as name suppression goes, it really is a case-by-case
situation. Generally they are concerned, if not to
protect their own names and identities, but to protect
the identities of their family, their children and
grandchildren where they are involved or implicated.

And so, overall, there's a view that name
suppression may be appropriate, but there will be
particular cases where I think those complainants will
want their identity made public.

Their views, of course, unsurprisingly, about the
subjects of their complaint, is that they are not in
favour of suppression.

That's essentially all I think I need to raise with
the Commission at this stage.

HON JUSTICE ROBERTSON: Ms Scholtens, I had understood it was
apprehended that the Solicitor-General would be
represented this morning?

MS SCHOLTENS: That was my understanding too, Sir. I
understood Ms Crutchley was going to appear.

HON JUSTICE ROBERTSON: It may be that because we've sat at a
non-conventional time for those who practice in the
High Court she might have been caught short.

MS SCHOLTENS: Perhaps one of the Commission staff would mind
giving her a call.

HON JUSTICE ROBERTSON: Just check with Crown Law whether
there is to be an appearance.

All right, thank you. I will invite you to address
further at the end, Ms Scholtens.

Ms Hunt, do you wish to be heard?

MS HUNT: I have nothing to add, thank you, Sir.

HON JUSTICE ROBERTSON: Yes, Ms McDonald?

***

Submissions by Ms McDonald QC on Behalf of the New Zealand Police

MS McDONALD: Thank you, Sir. I have two submissions, I have
separated them, Sir, one dealing with the specific issue
of name suppression in respect of the complainants and
subjects of the initial complaint, and a separate
submission in relation to the public/private matter.

I wonder if I could just distribute those.

(Written submissions distributed
to Commissioners and counsel)

Perhaps while they're being distributed, I could
deal first with the name suppression in relation to
complainants and subjects of the initial complaints
because my submission in that regard is fairly brief,
although committed to writing, I probably don't need to
go through it in its entirety, I will just speak to it.

The Commissioner supports the presumption in favour
of suppression of the names of complainants where it is
sought, along with the names of the Police members or
associates who are the subjects of the initial
complaints.

That submission is really made and arises out of the
fact that suppression is required or appropriate for
natural justice reasons, the Terms of Reference require
the Commission to consider the process the Police
followed in investigating these complaints and not the
substance of the complaints themselves.

As I understand the intended process to be followed,
for the most part, the subjects of the initial complaints
are unlikely to be required to be giving evidence and the
Commission's focus will be on the process of the
investigation, rather than the allegation and
specifically the Terms of Reference exclude from, as I
understand it, your consideration, any final decision or
judgment about the substance of the allegations, and for
those reasons it would seem appropriate for name
suppression to be granted on a generic basis for the
subject of the initial complaints, and I certainly have
no objection on behalf of the Commissioner to the
complainants having suppression to the extent they wish
that to happen.

Turning to the other issue, to the question of public or
private hearing, that's dealt with in the second of my
submissions.

As I understand it, and as has been conveyed to me
through counsel assisting, the Commission seeks
submissions on this issue, in particular on the effect on
its proceedings of possible criminal charges. The
matter has been put to me on the basis that you have
asked for submissions as to whether it would be - whether
it should continue as a public inquiry, or whether in the
event the charges remain outstanding the Commission
should proceed in private.

In my submission, Sir, no issue really arises in the
event that no criminal charges remain outstanding at the
time we embark upon the substantive part of the inquiry,
but even if charges do remain before the Courts, the
Commissioner of Police supports the continuation of the
inquiry and he considers that its proceedings should take
place openly and in public, subject only to any
suppression orders that may prove necessary as the
inquiry proceeds.

The Commission was set up to address issues that
have given rise to considerable public disquiet and the
public interests that gave rise to the Commission has
plainly not diminished. It's important that the Police
have the opportunity to answer the allegations of
investigative failure in the manner in which they have
handled complaints of sexual misconduct against
colleagues and associates, and it will also be important
that any shortcomings in the way that the Police have
handled these complaints are identified and are the
subject of appropriate recommendations.

The Commissioner's position is that that process
will be a vital part of restoring public confidence in
the integrity of the Police and that in itself is a
matter of some significant public importance.

The matters that are presently before the
Commission, none of them relate to the matters that are
or may come before the Courts. I am talking there about
the first group of cases that you are seized of, and
there are at least a dozen, maybe more.

Once the Commission has heard evidence as to the
complaints presently before it, it's the Police's
intention, subject to your position on it, Commissioners,
that they will want to present to you approximately 200
additional files covering the period 1979-2004 for
consideration initially on the papers but analysis of
those files, that will be a time consuming process but it
will provide you into an insight of the performance of
the Police in this area over the last 25 years.

That process may and is probably likely to identify
further cases where oral evidence should be heard.
Disclosure of these files, in my submission, will not
risk the integrity of any other proceedings and will put
those cases about which the Commission hear, say, oral
evidence in their proper perspective.

It's my submission that the cases that are presently before
you, together with the 200 odd files, will provide the Commission with the
best basis on which to assess police conduct in these
areas and in terms of the Terms of Reference, over the
25 year period.

It also means that the recommendations, or any
recommendations that you may make, will be based on a
comprehensive analysis of Police performance in this area
over that period of time.

HON JUSTICE ROBERTSON: Do I understand you, Ms McDonald, to
be saying that, assuming that there are criminal charges
anywhere, we should investigate those simultaneously with
criminal processes going on?

MS McDONALD: I am not sure that it needs to be simultaneous.
My position, Sir, is that, with the more than dozen cases
that you are seized of already, plus consideration of the
other 200, that that process will take some time and by
the time that process is reached, there will be a greater
clarity about what the position is.

Although I am not formally instructed in relation
to the criminal investigation, those matters are ongoing.

HON JUSTICE ROBERTSON: I just do have a little difficulty
with the notion of this Commission and a criminal process
occurring simultaneously. My instincts suggest to me
that that is a recipe for disaster.

MS McDONALD: I understand your concern, Sir, but I suppose
one needs to step back and look at the basis upon which
this inquiry was set up. At the time that the government
announced this inquiry, the decision had been made by the
Commissioner of the Police to reinvestigate matters. The
Terms of Reference were set against that knowledge and
both you and Dame Margaret were appointed as senior and
experienced Commissioners to manage the very difficult
juggling act that we now find ourselves in.

The submission that I am making on behalf of the
Police is that that is a juggling act which can be
managed. If one starts from the proposition that the
media will act responsibly in the way they report
matters, and, with respect, I don't think we can assume
that the media will not act responsibly in the way they
report any of these matters, and the inquiry that you and
Dame Margaret embark upon is done cautiously and, where
necessary, suppression orders could be used if there are
sensitive aspects of the evidence that require to be
dealt with in public, and we are not going to know that
really until we're further on, then the matter and the
inquiry, in my submission, can be managed.

HON JUSTICE ROBERTSON: Thank you, I hear your submission.

MS McDONALD: Paragraphs 5, 6 and 7 deal with the issue of
media coverage and I perhaps don't need to read those in
their entirety. I've really made the point that the
media are obliged to report matters in a responsible
fashion, and one must start from the proposition that
they will do so and that they will not report matters in
a way that leads to prejudice of any forthcoming criminal
matters that may eventuate.

In the end, Sir, the Commissioner's position is that
he supports the continuation of this inquiry. He
supports its continuation in a public setting and he
would only support a move to private sessions if that was
a last resort, but does support the use of proper
mechanisms as the inquiry proceeds to manage any
particularly sensitive issues which you and Dame Margaret
feel in your judgment may lead to difficulties with any
future criminal proceedings, and the mechanisms there
that I am particularly thinking of, and we have already
discussed, the possible use of summaries of fact to deal
with some of the more sensitive aspects of the first few
cases that will be talked about, and suppression orders
in relation to aspects of the hearing.

Of course, the use of suppression orders would not
mean that the media would not be present, or the public,
rather, would not be present. It would just affect,
obviously enough, the reporting of matters.

HON JUSTICE ROBERTSON: But in respect of a matter which involves
a pending trial, the presence of the media would be
somewhat hollow. I have difficulty in seeing how there
could be any publicity permitted about matters which were
the subject of a pending trial.

Does it have total integrity about it to say to the
press, "We're delighted to have you here. We hope you
will send large teams but there won't be a single word
that you can publish in any shape or form for a year or
two"?

MS McDONALD: I suppose where I'm coming
from, to start with, is there's plenty of work, and
important work and work that falls squarely within the
Terms of Reference, in relation to the group of other
cases arising from the women that have made complaints
and put them before this Commission.

And it may be, and I am only speculating at this
point, but it may be that after you have heard what will
involve quite a lengthy process, detailed evidence from
the Police and from the complainants in respect of the
other matters, you and Dame Margaret may well feel you
could report on an interim basis in relation to some of
the Terms of Reference. I don't know, that would
obviously be a matter for you and Dame Margaret.

HON JUSTICE ROBERTSON: Well, it's an issue I think we need to
talk about. Is it being suggested that we could provide
a report that would have any value on culture, ambience
approach, which did not cover the matters which led to
the formation of the Commission?

I have some difficulty, at least at first blush, in
seeing any utility in a report which says, "This is how
the Police operate, except in one, two, three, four,
five, whatever number of cases, which are off our
territory."

I mean, it seems to me if the Commission is to
report, it has to report on the whole picture; the goods,
the bads, if there are things on both sides.

MS McDONALD: Well, with respect, Sir, I don't agree with you.
There is, in the Commissioner's view and his clear
instructions to me, a very strong public interest in this
inquiry, in having an open and public inquiry that
may go some way to identifying, addressing, the sorts of
issues that are raised, and that that is necessary
in order that there can be some restoration, hopefully,
of confidence in the New Zealand Police.

The Police need - those matters need to be inquired
into and the Police need to address them. This is the
only forum in which that can be properly done.

The other comment I would make in relation to your
most recent observation, Sir, is that rather, with
respect, diminishes the significance of that first group
of cases and the other 200 files, these other files are
equally important and they will give you and
Dame Margaret a very good overview of where there has
been, if there has been, any failure in Police
investigation in matters of this type.

HON JUSTICE ROBERTSON: There is no question about that. The
issue, I suppose, which will have to exercise the
Commission, is the question which is posed most starkly as to why,
if there are two competing interests and two competing priorities, why the
Commission has to either be given precedence or
simultaneous activity with the criminal process.

You will have seen Mr Y's submission, that we
should defer until an uncontaminated criminal process has
been given an opportunity to run, and then we should
investigate, in public, all matters and not just some. On
that submission of his, if you wish to make a
response, I would be glad to hear you from.

MS McDONALD: I haven't seen that submission. It wasn't
copied to me. I simply heard Ms Scholtens's comments
about it a moment ago.

But I would like to make a response to it in this
form, the Commissioner supports the continuation of this
inquiry at this stage and believes there is sufficient
for you and Dame Margaret to consider of some importance
at this point and that it would be in his view, I know, a
very unfortunate situation if this inquiry was
discontinued at all, and he, for the reasons I have
already said, believes that it is important in the public
interests that these matters are addressed fully and now
because there is a very strong public wish that that
happen, and that it is also in the Police interest that
they are addressed now so that matters can move on from
here and that the Commissioner can take steps to start
restoring public confidence in the New Zealand Police,
and that is a matter of significant importance.

HON JUSTICE ROBERTSON: Well, is the submission, Ms McDonald,
that we could complete the inquiry before criminal
processes had been concluded?

MS McDONALD: Sir, I cannot predict how long the criminal
process may or may not take.

HON JUSTICE ROBERTSON: Yes, all right, thank you.

MS McDONALD: Thank you, Sir.

HON JUSTICE ROBERTSON: Ms Hughes?

***

Submissions Made by Ms Hughes on Behalf of The Police Association

MS HUGHES: Your Honour, my submissions are primarily about
the question of name suppression. Did you wish to hear
me on that subject now, or did you wish to hear me just
briefly on the question of public/private hearing?

HON JUSTICE ROBERTSON: Both.

MS HUGHES: Both.

(Written submissions distributed
to Commissioners and counsel)

HON JUSTICE ROBERTSON: I am just trying to get my head round
the order, Ms Crutchley, I think probably it is more sensible
if I invite you to address after all other counsel and before
Ms Scholtens replies.

MS CRUTCHLEY: Thank you, Sir.

MS HUGHES: All other subject persons are represented by the
Police Association.

All subject persons have been subjected to inquiry
at the time that the various complaints were first made.

Some have as a result of those inquiries faced
disciplinary action but none have faced any criminal
charges.

Some have admitted the subject of the complaints but
many more have vigorously and vociferously denied any
wrongdoing.

All complaints notified are of a historic nature.

All subject persons seek suppression of their names
and details which might identify them.

The Terms of Reference in this matter clearly direct
the Commission to inquire into the processes adopted by
the Police post-complaint. It has been repeatedly said,
that this Commission will not make findings of guilt or
innocence and in no case has the Commission sought to
hear from any of the subject persons.

Given the focus of the Commissions of Inquiry, the
decision not to require the subject persons to give
evidence is not surprising.

In the first instance, the actions of this
Commission are governed by the Commissions of Inquiry Act
and the attention of the Commissioners is drawn to
sections 13 and 4.

As is recorded in section 13 of the Commissions of
Inquiry Act High Court judges who are Commissioners have
identical powers to those provided under the Judicature
Act.

This section is commonly accepted as providing the
High Court with inherent jurisdiction to to order its
affairs to achieve the ends of justice.

Such power is described in McGechan J as:

"The inherent jurisdiction is a power allowing the
Court to summarily deal with matters that arise before it
to ensure the machinery of justice is able to turn
smoothly ... A Court has the ability to exercise its
inherent jurisdiction when it is faced with a difficulty
that cannot be dealt with in a satisfactory manner using
only the powers conferred by statute or the rules of
Court. When such difficulty arises, the Court will
invoke the inherent jurisdiction in order to further the
administration of justice. The inherent jurisdiction has
been described as a reserve of or fund of powers, a
residual source, which the Court may draw on where
necessary, whenever it is just and equitable to do
so ..."

It is acknowledged, that those who appear as
witnesses before a Court may have their names suppressed.
What distinguishes that usual run of the mill from that
which confronts this Commission of Inquiry, is that the
subject persons are not intended in the strict sense to
be witnesses, in that they are not being required to
swear an affidavit or present viva voce evidence.

Therefore, that which confronts you is in that
respect novel.

It is submitted that assistance can be derived from
instances where the Courts have been prepared to order
suppression of name particularly in cases involving
matters of discipline. It is submitted that such are
analogous to the situation that currently confront the
Commission and therefore provide a principled background
against which this application can be considered.

The seminal decision discussing the application of
inherent jurisdiction is that of Taylor v
Attorney-General. This case was concerned with
Mr Taylor's identification in radio broadcasts and
newspaper stories the identity of Dr William Sutch.
Dr Sutch had had his name suppressed through trial and
after the publicity which Mr Taylor gave to the matter,
Mr Taylor faced contempt of Court proceedings. He was
duly fined for such contempt and appealed to the Court of
Appeal arguing that the then Supreme Court had no power
to order name suppression. The judgment of the Court was
given by the Chief Justice who referred to the British
decision of Socialist Workers Printers & Publishers, Ex p
Attorney-General. When discussing the differences
between private sittings and those where details
identifying witnesses are suppressed described it thus:

"When one has an order for trial in camera all the
public and all the press are evicted at one fell swoop
and the entire supervision by the public is gone. When
one has a hearing which is open, but where the names of
the witnesses are withheld, virtually all the desirable
features of having the public present are to be seen.
The only thing which is kept from their knowledge is the
name of the witness. Very often they have no concern
with the name of the witness except a somewhat morbid
curiosity. The actual conduct of the trial, the success
or otherwise of the defendant, does not turn on this kind
of thing."

The Court of Appeal referred with approval to the
decision of R v Connelly, another English decision, where
it was said:

"There can be no doubt that a Court which is endowed
with a particular jurisdiction has powers which are
necessary to enable it to act effectively within such a
jurisdiction. I would regard them as powers which are
inherent in its jurisdiction. A Court must enjoy such
powers in order to enforce its rules of practise and
suppress any abuses of its process and to defeat any
attempted thwarting of its process."

As regards the application which confronts the
Commission, it is submitted:

The names of the subject persons are not relevant to
the consideration of the Commission.

The Commission will make no finding as to guilt or
innocence of the subject persons.

The subject persons have not been requested to give
evidence, and if did so request, could well find that you
declined to hear from them on the basis that their
evidence is not relevant.

By contrast, the subject persons, many of whom deny
any wrongdoing, could be subjected to salacious,
inappropriate and intrusive inquiry by the media. Such
can have no justification in law.

Disciplinary cases. Many of those cases involving
issues of discipline involve medical practitioners. In
this regard, I am grateful to my learned friend
Mr Corkill for bringing such to my attention.

The first such decision concerns the extent of the
inherent jurisdiction of the Court. In Guy v Preliminary
Proceedings Committee of the Medical Council, Tipping J
was asked to consider an appeal from the Preliminary
Proceedings Committee which had granted interim orders
suppressing the name of the appellant. Subsequently at
hearing, the jurisdiction to make such an order was
challenged and the appeal arose. His Honour found that
the Court stood possessed of all the powers of the
Tribunal appealed from. His Honour found that the
medical Council had no power to order name suppression.
Further, that whilst the Court had inherent jurisdiction,
such powers were to be exercised in addition to any
statutory jurisdiction but could not conflict with the
statutory matrix which existed. His Honour put it thus:

"The inherent jurisdiction may be resorted to, in a
matter supplementary to any other jurisdiction, statutory
or otherwise, which the High Court may possess. There is
no inherent jurisdiction to do anything where it is clear
that Parliament has legislated to cover the point and
must be taken to have decided that this Court shall not
have jurisdiction to do something. In other words, this
Court may exercise an inherent jurisdiction, in addition
to any statutory jurisdiction which it may possess, but
not in a manner which conflicts with the ambit of that
jurisdiction."

The Commission of Inquiry is not so fettered because
the powers are as described above.

The most recent consideration of this issue is the
unreported decision of The Director of Proceedings v I
and The Medical Practitioners Disciplinary Tribunal,
being a judgment of Frater J given on 20 February 2004.
Her Honour was asked to consider a series of questions
posed in a Case Stated. She concluded that the threshold
in favour of suppression is lower in the arena of a
Tribunal than a Court, that each case must be considered
on its merits, and in that case, it was appropriate to
suppress the doctor's name.

Her Honour confirmed the decision of the
District Court to provide the subject doctor with interim
name suppression pending the hearing of disciplinary
matters. It is a significant and constant thread which
traverses all consideration of name suppression
applications in both the criminal and disciplinary
process, that the subject person be considered innocent
until proven to the contrary. The Commission is reminded
that it will not be able to discharge the burden of
resolving the guilt or innocence of the officers whose
actions and alleged inactions are the subject of this
Commission of Inquiry.

In Frater J's decision, she considered that the
reputation of the subject doctor, the stress placed upon
her and her family, the presumption of innocence and the
corresponding concern for potential irreparable damage to
reputation outweighed the general public interest
considerations.

It is indisputable, that the situation in which the
subject persons are being placed is worse than that which
confronts those who face criminal trials. In effect,
publication of their names could subject them to trial by
media, without a right of response and the irreparable
destruction of their reputations. The Commission is
again reminded that many of those who find themselves the
subject persons strenuously deny any wrongdoing. All
have been subject to previous inquiries and whilst some
may have faced disciplinary charges, none have faced
criminal charges. All allegations are of a historical
nature.

It is submitted that there is no principled basis
upon which name suppression could or should be denied the
subject persons. Accordingly, an application is made to
suppress the names of the subject persons until and
unless an application is made by an interested party or
at the Commission's behest to lift name suppression. By
that I mean, on a case-by-case basis there may be a
foundation to revisit this application, and to that end,
a final order suppressing the names of the subject
persons is not sought at this time. For the sake of
absolute clarity, what is sought is an order suppressing
their name pending further order of this Commission.

The Commission has invited the Police Association to
address it as to whether or not the proceedings of the
Commission of Inquiry should proceed in private or in
public.

The Police Association supports and indeed seeks the
public hearing of the allegations giving rise to the
Commission of Inquiry. This desire is subject to a
single caveat, which is that the rights and interests of
the subject persons should not be sacrificed for the
purposes of conducting a public inquiry. It is submitted
that there is no proper basis for requiring the
publication of their names and that the business of this
Commission of Inquiry can proceed unimpeded if the names
and details identifying the subject persons are
suppressed.

The Police Association accordingly submits that the
hearings of the Commission of Inquiry should be conducted
in public save for the orders sought in this these
submissions.

HON JUSTICE ROBERTSON: Do you wish to comment at all on the
issue of whether there is a different situation which
would arise if there were criminal charges pending at the
same time?

MS HUGHES: I adopt the submissions of Ms McDonald in that
regard, Sir, that it is very important this Commission of
Inquiry get underway. There is a considerable volume of
matters that need to be attended to. They are obviously
of concern to the complainants but, I can assure you,
they are of equal concern to the subject persons and the
Police Association generally.

HON JUSTICE ROBERTSON: And that the Commission could complete
its task while there were still matters outstanding in
the criminal Courts?

MS HUGHES: Yes, Sir, because, of course, this Commission is
tasked with considering the culture of the New Zealand
Police, and if you take the Garrett and Nicholas matters,
they themselves would not demonstrate a culture. A
culture needs to be considered against an examination of
a far greater matrix of matters and complaints and
concerns and policies, etc..

Furthermore, if you don't proceed on that basis,
then you deny all of those people their opportunity to be
heard and to have the matter resolved now.

It must follow that it is possible to protect the
rights and interests of those who may face criminal
charges through various orders of this Commission and the
Courts.

HON JUSTICE ROBERTSON: I wonder if you could help me with
what you see as the mechanism.

You're saying that we could complete a report,
including any matters which are the subject of a criminal
trial, even though the criminal trials were on foot at
the same stage?

MS HUGHES: The criminal trials will of course be concerned
with a finding of guilt or innocence of anyone
prosecuted. This Commission is concerned with processes
conducted by the Police post-complaint.

There is, if you like, a demarcation line which
naturally exists.

HON JUSTICE ROBERTSON: It appears a very sandy soil that it
exists in, Ms Hughes. I'd be assisted if you tell me how
one draws this bright line without the one contaminating
the other?

MS HUGHES: It is, as we've discussed already, Sir, that in a
number of the cases which are already before the
Commission, there are assertions made by complainants
that certain wrong things happened to them at some time
in the past. There is an equal and opposite denial of
that.

That is not of concern to you. What is of concern
to you is, having received a complaint, what did the
Police do?

So, how can that be any different to a matter before
a criminal Court when I would assume that any wrongdoing
is denied? And then the focus for that Court is focused
on a finding of whether that denial is accepted by a jury
or not, and you have a difficult focus. Your focus is an
assumption that a complaint was made on "X" date, what
happened to it post that complaint.

HON JUSTICE ROBERTSON: Thank you.

MS HUGHES: Thank you, Sir.

HON JUSTICE ROBERTSON: Mr Cooper, do you wish to be heard?

MS HUGHES: I understand the Managers Guild simply adopts the
submissions made already.

HON JUSTICE ROBERTSON: Ms Ablett-Kerr?

***

Submissions by Ms Ablett-Kerr QC

MS ABLETT-KERR: I am obliged to you, Sir. I appear to present
views on behalf of my client on the issues that we
were invited to express some views on.

Firstly, the issue of whether the hearings should be
in public or in private. This is a matter of discretion,
I accept the outline of the legal principles as espoused
by Ms Scholtens in her submissions. I've had sight of
them and I accept those are the appropriate principles.

My client is very clear in her instructions that
she believes that the Commission should be sitting in
public. It is a Commission of Inquiry into Police
Conduct and the very nature of the inquiry that you are
about suggests that any hearing really does have to be in
public, otherwise it may well defeat the purpose of the
inquiry in the first place.

It's only by a public hearing that sufficient
transparency can be accorded to the process, that the
integrity of the proceedings its demonstrated to the
whole of New Zealand, and that public confidence in both
this process and the New Zealand Police Force can be
enhanced.

It seems to me that the submissions that you have
already heard really endorse this prospect, this desire
to have the matter heard in public.

There is a need of the public to have confidence in
its Police Force and a public hearing of an inquiry into
its conduct is obviously the best way, in my submission,
for this matter to proceed.

So, I have - in the submissions that I have put in
front of the Commission, you will see that I have
referred to the lecture that Sir Ivor Richardson gave,
the F W Guest Lecture, where he draws distinctions
between certain types of inquiry. This inquiry is
clearly an investigative inquiry and there is a
legitimate public interest. My client has both a public
interest and she has a personal interest in what takes
place.

I have also referred you to Fay, Richwhite v Davison
where Hardie Boys J indicated that section 4 suggests
that an inquiry will normally be conducted in the same
way as Court proceedings in public. I don't really seek
to develop any more of my submissions because it does
seem to me that the case for a public hearing, as opposed
to a private hearing, which of course you have the right
to hold if you think that that is appropriate, is in fact
overwhelming and so I don't seek to develop that.

I move, if I may, to the question of whether there
should be name suppression or not.

HON JUSTICE ROBERTSON: Well, the only comment that you may
wish to make on this point that's being made, is whether
that would be acceptable if it was seen as a necessary
mechanism to preserve the integrity of simultaneous
criminal process.

MS ABLETT-KERR: Yes, in terms of name suppression, you're
talking about?

HON JUSTICE ROBERTSON: No, I'm talking about public/private
hearing. If the concern were contamination of criminal
process, whether in that circumstance, even although
public hearing may be the desired alternative, private
hearing would be acceptable so that there was no danger
of contamination.

MS ABLETT-KERR: She wants matters to proceed as quickly as
possible and as thoroughly as possible, but she
recognises, and has accepted the advice that I have
tendered, that there cannot be contamination of the
criminal process. She does not want contamination of the
criminal processes.

So that if this Commission did determine that there
were some aspects that needed to be not publicised, then
of course she would accept that because the criminal
process is a vital process, as far as she is concerned.

Now, whether the concerns to protect that process
can be met by suppression, as opposed to a private
hearing, is ultimately a matter for you, Sir, to
determine because you will know where you're at at a
particular point in time and the type of material that
you're dealing with.

I think it's very difficult to set a hard and fast
rule about these things because you don't yet know, as I
understand it, the precise issue you're going to deal
with at any given point in time.

So that, you have the right to - whilst you might
say in a general sense the hearings will be public, but
you reserve the right at any given point in time,
providing the Commission feels that it is justified, to
not have a particular part of the hearing certainly
publicised. Well, you'd have the right to have it heard
in private but you'd have to exercise that discretion
very sparingly because having the media present, even if
they can't publish it, is actually quite a good thing, in
my submission.

I heard you indicate earlier that we can't really
invite droves of them to come down to hear something that
they can't do anything with, not for a while, but I don't
- whilst it sounded unattractive to have these people sit
here at considerable expense, there is something actually
very valuable in having the media here even if they are
held back from publishing for a considerable period of
time because the public then know that at some stage the
information that has been heard can in fact be put out
there; it isn't hidden, it isn't behind closed doors, it
isn't a star chamber, the whole process would become
accountable and it will become transparent, even if it
can't be transparent in its entirety at a particular
point in time. So that, I probably draw back from the
position that I understood you to be articulating to me -

HON JUSTICE ROBERTSON: Testing.

MS ABLETT-KERR: Testing, yes. Well, I draw back from it. I
support the view that the media should have access to the
whole of the hearing and that control, if the Commission
believes that there should be control, because it does
have other processes to consider, can be done by
suppression orders, which no doubt the Commission would
articulate with great clarity and great firmness to the
media, and sufficient control could be gained, I think,
in that way, and that would be my submission on the
matter.

HON JUSTICE ROBERTSON: Thank you.

MS ABLETT-KERR: In relation to name suppression, I've already
indicated that her name is in public.
She doesn't resile from it and she will live with the
consequences of the publicity that has been and will be,
but she also strongly supports the view that the public
interest demands that the names should not be suppressed.

I would seek to invite you to reverse Ms Hughes'
position on this. Ms Hughes says you should suppress the
names of all subject persons and then if there is an
individual application to lift by a party, you can deal
with it on a case-by-case basis.

In my submission, you should not suppress. Your
basic rule should be no suppression. Transparency and
accountability is vital to the integrity of this process
and the idea that you're going to suppress names, and I
include both complainants and subject persons, as a
starting point immediately puts this cloak of secrecy
about the matter. Nobody is really going to know what's
going on.

If you start from the point where you say, "All
matters are capable of being reported upon, seen, but we
will identify those matters as we go along," and I rather
suspect that you're going to have an army of counsel here
who will tell you when you should be suppressing matters,
"we will suppress those matters as and when they become
demonstrably necessary."

So, for example, if we look at complainant persons,
the argument for their names to be suppressed can clearly
be dealt with by counsel assisting. There is obviously
good communication between complainant persons and the
counsel that have been made available by the Commission
to take care of their interests. If suppression of their
names becomes necessary, desirable, then the Commission
could listen to the argument and make a decision
accordingly.

As to subject persons, then the same can be done for
them, but there is a shift in the burden. The shift
places the burden upon the individual who seeks
suppression to persuade the Commission that it should
exercise its discretion in favour of suppression.

HON JUSTICE ROBERTSON: What is the relevance of the identity
of the person complained about to this Commission?

MS ABLETT-KERR: Well, I think there is something that is
inherently concerning, I don't want to put it higher than
that, but concerning, about allegations being made by
people who will not identify themselves, who don't seek
to identify themselves. Now, there may be very good
reasons, of course, why such people don't want to
identify themselves. And where there are good reasons,
no doubt the Commission would consider them very
favourably. After all, our criminal law actually
protects complainants -

HON JUSTICE ROBERTSON: No, you're getting off the question I
asked, Ms Ablett-Kerr, with respect.

MS ABLETT-KERR: I'm sorry, Sir, would you like to focus me?

HON JUSTICE ROBERTSON: What is the relevance of the name of
the person against whom an allegation was made by a
member of the public of sexual misconduct to the Terms of
Reference of this Commission?

MS ABLETT-KERR: Yes, I'm sorry, I got you the wrong way
round.

Well, the relevance is that you may get further
evidence becoming available. It is the same relevance
that applies to a criminal Court. Why do we have
publication of people's names? Because you may get
further evidence coming forward. It's very important
that the Commission does get as much information as it
possibly can.

HON JUSTICE ROBERTSON: Why would we want information about a
matter which we have been specifically excluded from
looking at?

You see, the task of the Commission begins, as I
read the Terms of Reference, on the day that a person
fronted up to a Police Station and made a complaint of
wrongdoing against them, and we are, in quite explicit
words, excluded from considering the guilt or innocence,
the validity or otherwise, of the allegation then made.

It seems to me that there is strength in Ms Hughes'
submission, simply in the principles of natural justice,
because if we are going to identify people, then we are
going to have to give them an opportunity to be heard on
that point.

Now, everyone has pussy footed around this morning
about how long this Commission might sit for. It will be
decades if we are going to let people get into the issue
of whether the allegation was true or not true.

MS ABLETT-KERR: That isn't what I'm talking about. We all
who have appeared in front of you, and will appear in
front of you this morning, entirely accept that what this
Commission is to investigate is the process.

HON JUSTICE ROBERTSON: The process "post-complaint".

MS ABLETT-KERR: Post-complaint. And it is not guilt or
innocence. Therefore, what is the problem with
identifying those individuals who are part of the
process?

HON JUSTICE ROBERTSON: When you make an allegation against
someone, the principles of natural justice are orthodoxly
interpreted as meaning people have an opportunity to
defend themselves and to challenge the allegation against
them.

MS ABLETT-KERR: Well, there are many ways of being heard, of
course; having counsel represent you and presenting your
position is a way of being heard. My client is being
heard this morning through my appearance here and in
front of you, and the same will apply, presumably, to
subject persons. Presumably, the other individuals who
are here this morning will be representing the parties
that have nominated them to come forward. So, there is a
question of being heard. This Commission really is
surely going to be interested in systemic, whether there
has been - whether there is a systemic failure.

Now, if you conceal identities, then the opportunity
for the Commission to identify evidence that might
support systemic failure, or a systemic attitude to
investigating complaints, say, of a sexual nature, are
inhibited. We all know that the winds of publicity help
bring things to the surface, help bring things out.

If it wasn't for publicity, then these cases would not have
got to the point where it is. This Commission probably wouldn't be
sitting.

Now, if - I appreciate the argument and of course
I've argued on many occasions for the need -

HON JUSTICE ROBERTSON: I was just making a note of your new
stance, Ms Ablett-Kerr. I will look forward to waiting for it
if I ever get back on the bench.

MS ABLETT-KERR: I was quite sure you would, Sir.

But the protection - I accept that the protection of
the individual and the individual's rights should be a
matter of concern to the Commission but there are ways in
which you can do it, and you can do it. I am quite sure
Ms Hughes would get up if there was a subject person
against whom an allegation is made and she felt that
there should be protection of that person because the
potential for unfairness and prejudice far outweighed the
public interest in knowing, that would be a matter for
the Commission and the Commission would suppress.

What I am putting to you is that you shouldn't start
from the position that she articulates, namely suppress
it all and let somebody like Mr Akel come along and ask
for the publicity, for the suppression to be lifted, but
rather adopt as a matter of principle your starting
point, that is that there must be transparency.

HON JUSTICE ROBERTSON: Transparency about our Terms of
Reference?

MS ABLETT-KERR: Absolutely.

HON JUSTICE ROBERTSON: But you're not yet coming to grips
with that, in my judgment, Ms Ablett-Kerr.

MS ABLETT-KERR: Sir, that's a matter of -

HON JUSTICE ROBERTSON: The question of whether one can look
at systemic problems, at response and reaction to
allegation, why will that be better and more effective if
it has a name attached to it than it will be if it is
without a name?

Because it comes back to this competing interest
that if a person is named in the public arena with an
allegation of sexual misconduct against them, how can the
Commission deny them the opportunity to defend themselves
or call evidence about that point?

MS ABLETT-KERR: Well, with respect, I think that we might be
discussing something that is very unlikely to occur
because if somebody is the subject of a criminal inquiry,
the likelihood of them wanting to come along and give
evidence to a Commission of Inquiry, I would have
thought, was extremely, extremely remote.

HON JUSTICE ROBERTSON: But, as Ms McDonald has said, we need
to remember that there is a wider focus than just some
people who may be subject or are already subject to
criminal inquiries. It is a much wider issue than that.

It may be that the issue doesn't arise because a
name is in the public arena in another event. But we are
looking, and it is clear from our preliminary work, that
we are looking at least in some cases which relate to
allegations made 20 years ago, where as best as we are
told at the moment, no contemplation of criminal matters
arising.

MS ABLETT-KERR: Let's look at that situation then. We've got
an historic situation, scenario, an historic scenario
where you've got allegations perhaps of sexual
misconduct, assault, and an allegation that complaints
were not followed up as a consequence.

Now -

HON JUSTICE ROBERTSON: Allegations made and denied at the
time.

MS ABLETT-KERR: And then not properly inquired into, followed
up.

HON JUSTICE ROBERTSON: I don't know whether they were
properly inquired into or not. There was a complaint -

MS ABLETT-KERR: We're talking about the allegation. That is
something that this Commission of Inquiry is looking at.
Are these complaints properly followed up?

HON JUSTICE ROBERTSON: No, that's precisely what we're not
looking at, Ms Ablett-Kerr. What we are looking at is
whether the process of investigation was adequate and, to
the extent, that there are problems with that, whether
they indicate systemic problems or cultural problems or
the like.

But it is clear, and with respect to your robust
media not always so far well understood, that we will
never be looking at issues as to whether an allegation
made a person guilty or innocent.

MS ABLETT-KERR: No, I'm not saying that you are, and if I
haven't clearly expressed myself to you then I am very
sorry and I will attempt to do it. I am quite prepared
to adopt the description of what the Commission is going
to do from you, Sir, because I totally accept that. But
why is the public not entitled to know the identity of
the people who are involved in the process?

HON JUSTICE ROBERTSON: Well, they are entitled to know the
identity of the people who were involved in the process
of investigating. The issue is whether it is necessary
for them to know the name of the person against whom the
allegation was made, in respect of which we are not going
to give that person the opportunity to defend themselves
against the initiating allegation.

MS ABLETT-KERR: Well, if we follow it through -

HON JUSTICE ROBERTSON: I have trouble drawing lines in the
sand with Ms Hughes but I don't have any trouble in
drawing this line between the day that a person arrives
and makes a complaint and you look forward, which is what
I understand, and no lawyer has ever suggested to me to
the contrary, is what the Commission was about.

MS ABLETT-KERR: I think we all accept that and I think that
we need to move on from that particular point.

So that, if I have understood the position that
you're suggesting to me, that the identity of the person
against whom the complaint was originally made might be
suppressed, even though there is no risk of criminal
charges being laid because I think that that possibly is
a different scenario, but then that the identity of those
who are involved in the processes thereafter, the
processes of investigation, wouldn't necessarily be
suppressed. Have I understood the scenario?

HON JUSTICE ROBERTSON: There is an investigation about that
process. Obviously it would be subject to the caveat
that for in an individual circumstance a unique
application could be made. But what happens - how the
investigation was handled is the very core of our
activity and business.

MS ABLETT-KERR: Yes, I accept that.

HON JUSTICE ROBERTSON: So that, I didn't understand Ms Hughes
to be suggesting that there could be some blanket
Suppression Order applied there.

What we are talking about is the name of the person
against whom the complaint was made on the basis that we
are not going to inquire into the validity of that
complaint and the guilt or innocence of the person
against whom it was made and, therefore, it would be a
breach of the principles of natural justice to identify a
person who could not and would not be given the
opportunity to defend themselves.

MS ABLETT-KERR: But the names of those who might have
participated in a potential inadequacy of investigation,
who might be described - and this is all potential, I
mean, we're not talking about what necessarily has been -
a cover up, a neglected duty, their names - Ms Hughes
doesn't seek to have their names suppressed.

HON JUSTICE ROBERTSON: I'm sure if she could find a way to do
it, she may want to do it, but it is much more difficult
to see that arising out of the Terms of Reference,
Ms Ablett-Kerr.

MS ABLETT-KERR: Well, it's entirely a matter for you, Sir,
but I would have thought that the public interest in
having the whole process to be a transparent one is
really very strong.

HON JUSTICE ROBERTSON: I understand that.

MS ABLETT-KERR: Very strong, and the way in which you can
protect this individual who has had a complaint made
against them who is not going to be called to give
evidence in front of you, is for you to deal with that on
a case-by-case basis, when Ms Hughes or whoever can get
up and say, "You shouldn't allow John Smith's name," God
forbid that there is a John Smith who is part of it,
"John Smith's name to be published because this is
20 years ago. He's not here in front of you, he's got
26 grandchildren who are going to be upset by the whole
thing if you do."

Isn't the better way for the Commission to deal with
that on a case-by-case basis when you can hear the
competing arguments? But to start from a blanket
proposal that you should suppress and that there should
be - and shift the burden on lifting, or making an
application to lift, on the media is wrong, and I don't
really want to do the whole of the media's case here, but
that's my position on it.

HON JUSTICE ROBERTSON: Well, I have a question of you on that
position. How does the Commission then react to that
person, either with or without grandchildren, or
sickness, or 20 years ago, who says, "You've identified
me as someone who is alleged to have misappropriately
behaved sexually," while he was a Police Officer, "I want
to give evidence about what actually happened"? How, as
a matter of law and equity, could this Commission refuse
to hear him?

MS ABLETT-KERR: Well, you couldn't because it's not within
the terms of your reference.

HON JUSTICE ROBERTSON: I see. So, he gets named. He can't
defend himself because that's outside of the Terms of
Reference?

MS ABLETT-KERR: This is not an unknown situation for Courts.
In Courts quite frequently we get into situations where
people are prevented from giving evidence, saying, "But I
didn't do that." I mean, I'm thinking of similar fact
evidence, evidence of being in a certain place at a
certain time, we deal with, and judges tell juries, "You
must put that from your mind, that is not what you're
dealing with today." Why can the Commission not do that?
Why can the Commission not deal with this situation on a
case-by-case basis and make its determination then? but
start from the point that there will be transparency.

HON JUSTICE ROBERTSON: Can I just draw your attention to
paragraph 13 of your submissions. Who are we talking
about when you talk about those who have done no wrong?

MS ABLETT-KERR: Well, it's very hard for me to determine who
they might be at this time.

HON JUSTICE ROBERTSON: But are we talking about people
against whom complaint was made or people who are under
scrutiny because of their acts or omissions in
investigation?

MS ABLETT-KERR: Probably the latter was what I had in mind
when I wrote that.

It seems to me, if we're talking about - I think
there's a distinction between the type of scenario that
you will deal with where there is no criminal allegation,
or unlikely to be a criminal allegation, that is going to
travel the criminal processes, and ones where there are,
but even in situations where there are criminal charges
actually pending at this point in time, the appropriate
arena for protection of that person's name really has to
be the criminal Court, doesn't it?

A Suppression Order in the criminal Courts will
apply everywhere, and this Commission does not need to be
troubled by the question of suppression of the
individual's name. It's entirely a matter for the
criminal Court who will apply the standards that it has
where name suppression, of course, is not an easy thing
to come by.

HON JUSTICE ROBERTSON: Yes, all right. Well, thank you for
that, Ms Ablett-Kerr. Is there anything else you want to
say in your submission?

MS ABLETT-KERR: No, I don't, Sir, apart from to say as a
parting shot, if I may, I invite the Commission to treat
the question of suppression in a manner that is
consistent with the way that Courts deal with the
question of suppression.

The Commission, whilst you are -

HON JUSTICE ROBERTSON: Higher Courts or first instance
Courts?

MS ABLETT-KERR: The highest Court. Well, Your Honour, the
way that the High Court would deal with the question of
suppression is - it's a pretty good rule of thumb to look
at. By and large they tend to go along with the Court of
Appeal.

In my submission, there should be a consistency of
approach from this Commission. It would be unfortunate,
indeed, if a different standard were seen to apply to a
Commission of Inquiry, particularly one of this nature,
which really is of such importance to the New Zealand
public and to the New Zealand Police Force itself, I
would have thought.

I don't really have anything further.

HON JUSTICE ROBERTSON: Yes, all right. Thank you,
Ms Ablett-Kerr. I think we'll take an adjournment before
we hear from the media.

Hearing adjourned from 10.55 a.m. until 11.10 a.m.

HON JUSTICE ROBERTSON: Mr Akel?

Submissions by Mr Akel on Behalf of TVNZ & TV3 (CanWest TV Works Limited)

MR AKEL: May it please the Commissioners, I have handed up
some written submissions and a few cases. After 10 or
15 years of debating these issues with my friend,
Ms Ablett-Kerr, she's finally taken on board a lot of
what I've been saying, but, of course, Sir, I've been
debating these same issues with you for 10 or 15 years
but the question is whether you'll take them on board.

I don't intend going through the submissions
word-for-word but I refer to the Terms of Reference and
at the bottom of paragraph 3, the Commissioners, I am
acknowledging of course that the Commissioners are
excluded from determining the guilt or innocence of any
particular individual in relation to any alleged sexual
assault or other alleged criminal offence.

I then refer to the general provisions with regard
to hearings in private, so we don't need to go anywhere
with regard to inherent jurisdictions or anything like
that. You have power within the Terms of Reference.

At the outset I refer to perhaps the most well-known
of the Court of Appeal decisions on commissions of
inquiry, the Fay, Richwhite case, in referring to
Hardie-Boys J just at the very outset, the clear
indication that the Commission will always start from the
premise that it's going to be in public.

I have also referred to sections 4 and 13, noting
that the Commission is sitting in a civil jurisdiction
but cases dealing with these issues out of a criminal
jurisdiction are going to be important.

With regard to issue one, it is submitted that this
inquiry is a classic case where the principles of
openness should apply. I am at paragraph 7. At the
heart of this inquiry is public confidence in the Police.
Issues relating to public confidence in the Police should
not be dealt with behind closed doors. It is vitally
important to New Zealand society that an inquiry such as
this, that is looking into conduct of the Police, and in
particular whether Police procedures were and are
appropriate in certain circumstances, is itself open to
full public scrutiny. In short, there must be full
confidence in this Commission itself, as well as
restoring, I think were the words used by one of counsel,
full public confidence in the Police.

In this respect, the media are the eyes and ears of
the public.

Legally, the starting point must be the twin
principles of freedom of expression and open
administration of justice. I have referred to some
well-known cases that Your Honour, Sir, the Commission is
aware of.

In the civil context I have referred at the final
bullet point at paragraph 8 to Brown v Attorney-General,
a recent decision of Miller J which he reviewed all the
law relating to suppression in the civil context.

At 9 I make the point, as my friend Ms Ablett-Kerr
made, there is a heavy onus on those who seek to displace
the principle of open justice to demonstrate that the
interests of justice, in this case fair trial rights,
would be frustrated if an order for suppression were not
made.

The Courts have considered public/private hearings
and stays in relation to commissions of inquiries in a
number of cases.

At 11 I make the point that the earlier cases are
not entirely helpful as they pre-date the New Zealand
Bill of Rights Act and the greater emphasis on openness
of the Court proceedings since that Act, as witnessed by
the cases that I have referred to.

I do make a special reference with regard to the
Mahanga decision:

"A further purpose of open justice is the
maintenance of public confidence in the judicial system
which flows from making it more transparent and
comprehensible to the public."

Of course, my friend Ms Ablett-Kerr referred to the
word "transparency".

At paragraphs 12, 13, 14 and 15, right through to 16
and 17, I quote directly from the decision of the Court
of Appeal in the Fay, Richwhite case. But at the very
outset at paragraph 13, I say that the Court of Appeal
held that the Commissioner had not erred in law in
exercising its discretion to hear evidence in public
since he was entitled to conclude that public and
personal interests, such as the public perception of the
integrity of the inquiry process, the significance of the
public office held by certain parties and the
impracticality of a closed inquiry outweighed the
interests of taxpayer confidentiality.

Now, I don't intend going through those quotes in
detail, but the learned President of the Court of Appeal
noted what Sir Ronald Davidson said at 6 and 7:

"This inquiry must be conducted in such a way that
whatever the result may be, the public will have
confidence in the manner in which it is carried out.
What confidence will the public have in an inquiry where
all the evidence which goes to the heart of the inquiry
in relation to the Inland Revenue Department's
investigations is given behind closed doors?"

In 7:

"To learn of a large part of the proceedings only in
my eventual report is a poor substitute for following
these proceedings as they take place."

Over the page at paragraph 15 I refer to Hardie
Boys J, just the first paragraph there:

"He then proceeded to indicate the matters he had
taken into account in reaching his conclusion that the
evidence should all be given in public. Some are
obviously of greater weight than others. The more
important were: the public interest arising from
allegations of tax law abuse by major New Zealand
companies; the ability of the Director of the SFO
adequately to defend himself; the desire of the
Commissioner of the IRD and the Director to defend
themselves in public; the possibility that helpful
witnesses would not come forward if evidence were not
published; the limitations put on the parties as to
cross-examination and the calling of witnesses if
evidence were taken in secret; and the maintenance of
public confidence in the conduct of the inquiry and in
the validity of the Commission's final report.

That is emphasised again at paragraph 16, the middle
paragraph there:

"Another important consideration is the nature and
significance of the public offices held by the two state
servants whose honesty and competence are under
challenge; particularly the Commissioner of Inland
Revenue, in whose integrity the community must have the
utmost confidence. These men have been subjected to the
gravest of attacks in public, and it must be in the
public interest that they should have the fullest
opportunity to defend not only themselves, but also their
office and their staff, in public. Much the same may be
said of Mr Peters. Although he is the initiator and not
the target, his reputation may also be at stake."

In my submission, the same principles will apply in
this submission.

Again, I refer to Hardie Boys J at paragraph 17.

And the emphasis again is always on the public
confidence, not only in the Department that was under
attack in that inquiry but in the public confidence in
the Commission of Inquiry itself.

At paragraph 18 I refer to a recent decision out of
England, the Wagstaff case. The Court in that case
quashed the Secretary of State's decision to set up an
inquiry to be held in private in examining the issues
raised by the deaths of many of the patients of Dr Harold
Shipman. Now, this case, Sir, is in the casebook that I
provided but I do, in particular, refer to the evidence
that was given by Sir Louis Blom-Cooper QC to the Court,
in which he said that he had conducted 11 public
inquiries since 1985 and he was firmly of the view that
if there are any attempts made to have any parts of
public inquiries in private, it does not work. And his
opinion is set out at page 310, line G, of that decision.

At page 310 the Court outlined the factors which
might be regarded as persuasively in favour of opening up
the inquiry.

At page 320 the three considerations put forward for
a private hearing which were dismissed.

But I've summarised these below. In particular,
witnesses are less likely to exaggerate or try to pass on
responsibility. Others come forward, openness helps to
restore confidence; absence of significant risk of leaks
leading to distorted reporting; an open inquiry was what
the families wanted in that particular case.

The evidence that was given by Sir Louis
Blom-Cooper, there was no reason why the inquiry should
take longer if evidence was heard in public and a
presumption very much in favour of a public hearing.
Again, the public confidence, its report and
recommendations would demand restoration of public
confidence being a matter of high public importance. No
reasons for delay. Do not accept that private hearsay
lead to more candor. A private hearing will lead to the
totality of available information being reduced and the
ability to test one piece of evidence against another
being inhibited.

Now, I'm not going to take you or Dame Margaret to
those decisions but I do, Sir, invite you both to read it
because it is a good summary of what the issues are very
much as seen from the United Kingdom's perspective.

There have been other cases since then that
distinguish it, but those cases have been on whether or
not the Sector of State concerned had the power to order
a Commission of Inquiry in private, and those cases
upheld the relevant Minister 's prerogative in that
respect.

At 19, as submitted at the outset, openness in the
search for truth on an issue relating to public
confidence in the Police, outweighs concerns about
privacy and reputation, and any concerns about fair trial
rights will not materialise.

The reasons for this submission are as follows.

The issues involved call for openness. The
allegations by the complainants, and the public concern
is, that allegations of wrongdoing by certain Police
Officers have not been investigated properly and hidden
away. There's a real risk that having this inquiry in
private will simply perpetuate a general disquiet about
the Police conduct.

Now, I accept at the very outset, Sir, that the
Terms of Reference are not in any way to determine right
or wrong, guilt or otherwise. It is about procedure.
But you, with respect, tested my friend with regard to
what was the harm or what was to be gained by - what was
the harm in not naming certain people? What was to be
gained by naming certain people?

Well, in my submission, there are two points. First
of all, it is unrealistic to expect that those names of people
involved would not already be known. They are in the public domain.

Indeed, the Terms of Reference 2(a), as obviously
the Commissioners are aware, refers to the practice of
Police in relation to the investigations of the
complaints alleging sexual assault by members of the
Police, or by associates of the Police.

Now, in my submission, Sir, if there is going to be
an investigation into the process that was carried out,
that must of itself involve some consideration of who the
allegations were made against, what steps were taken in
those allegations, and what was their involvement, or the
involvement of their associates.

The second point I make, Sir, is this. If
complaints or evidence is put before the Commission, the danger
of not naming people involved who are complained about is that
you're casting aspersions on other people.

Take, for example, a small local Police Force
somewhere something like Opotiki, or Whakatane or
something like that. By not naming people, do you leave
it open that others - there's a shadow put over other
people.

The whole purpose, with respect, Sir, of this
inquiry is to bring openness into something where the
public concern has been whether or not there has been, in
some way, and one doesn't want to use an emotive word
like "cover up" or pejorative word like "cover up", but
whether or not things have been swept under the carpet.
Whether or not the practices and procedures that were
laid down by the Police for investigation of these sort
of allegations were, in essence, not put into practice,
or, if they were put into practice, whether or not the
processes that took place left a situation where people
were looking after their own.

In my submission, Sir, this is the sort of inquiry
where admittedly there are going to be other interests
involved. It is a balancing exercise and what my
submission is about is that the balance must come down on
the side of complete openness.

At 21 - in fact I've made the point there already at
21, as was referred to in Fay, Richwhite & Co, it is
important for the integrity of this inquiry that it is
not seen to be conducting its investigation behind closed
doors.

What I've said there, following on, may not in fact
be correct, if in fact people to whom complaints are made
are not going to be giving evidence. So, clearly that
does not apply.

22, having the hearing or parts of the hearing in
private is also unrealistic. There has already been a
large amount of publicity with regard to the Rotorua
case. The names of those involved are already in the
public domain. Breaking up the hearing into parts will
inevitably lead to suspicion as well as practical
difficulties.

Now, we as lawyers totally understand that, yes, at
various times hearings are heard in private for reasons
that ensure fair trial rights, but the concern that - in
the normal Court process. But the concern we have here,
Sir, with regard to a public inquiry, is that as soon as
there's some closing down of that importance of freedom
of expression of public openness, which is the very
essenced of a Commission of Inquiry, then again the
concern is, what's going on here? Is something being
hidden up?

It's better in my submission, Sir, to have it all
out and then look at what happens - what can be done by
the Courts to protect fair trial rights, and that's what
I'm going to come to in a short moment.

HON JUSTICE ROBERTSON: Do you say that going private would
never be an acceptable mechanism to deal with that
interface between potential criminal trials and the
Commission?

MR AKEL: Exactly, Sir. I am going to come to that -

HON JUSTICE ROBERTSON: Well then, how do we cope with the
danger in the criminal trial from the perspective of the
media? No doubt Ms Crutchley is going to give me all the
answers on that, but you're saying that to manage that
difficult interface, private hearings is never going to
be an alternative?

MR AKEL: It's never going to be an alternative. When I get
on to the issue of individual suppression, clearly if
complainants come forward and they say, "I want to have
privacy," then I acknowledge on behalf of TVNZ and TV3
that that would obviously be an appropriate case. It
goes without saying.

But my submission, Sir, is this.

HON JUSTICE ROBERTSON: I don't know that it's totally obvious
to me why you would draw that line, Mr Akel.

Why would you draw the line between a complainant
and a person complained about in that way?

MR AKEL: Can I develop, first of all, it this way, Sir. As
the Court of Appeal said in the Gisborne Herald case, we
have to be concerned that we're not just working on
speculation, that we're not readily assuming in some way
that whatever takes place at this hearing is going to
affect fair trial rights.

Now, with the greatest of respect to you, Sir, it
seems to me you've come - your approach in this hearing
has been that whatever takes place here is inevitably
going to affect fair trial rights; whereas, my submission
is it should be the other way around. You don't approach
it that way, you approach it on the basis of saying, we
start from the idea of openness. We then look and say,
is there really any basis for the fear that we have that
fair trial rights may, in fact, be inhibited in some sort
of way?

Now, the Court of Appeal in the Gisborne Herald case
said that it lacked empirical evidence as to the effect
of pre-trial publicity on jurors, and as a result of
that, and I point - at paragraph 24 I set out what the
Court of Appeal in essence said, what its concerns were.

Now we have the benefit of Professor Young's study,
juries in criminal trials, and I've put in the casebook
the relevant part of the Law Commission paper in that
respect, where Professor Young and his associates came
down and said that, in fact, jurors were not influenced
by what they read in the papers, that jurors took note of
the directions that were given by judges in the
criminal - in any criminal trial that took place.

HON JUSTICE ROBERTSON: I am just wanting to see whether
Ms Ablett-Kerr is shaking her head or adopting that
submission as well.

MS ABLETT-KERR: She is not doing anything, actually. She is
adjusting her jacket.

MR AKEL: Well, significantly, and it's a case, Sir, that you
and I -

HON JUSTICE ROBERTSON: Are you able to point me to any
decision where a Court has had to decide in advance
whether there is a real likelihood of contamination?

The issue for this Commission is if it doesn't meet
in private, is there a real risk of contamination of any
potential criminal process?

MR AKEL: Yes, I can, and I was just going to refer you to the
case that you and I, with respect, had a debate on. You
might have won.

HON JUSTICE ROBERTSON: I made orders in Burns, I think.

MR AKEL: Travis Burns, and I refer to this in my submission.
You will recall in Travis Burns, Mr Burns had been
convicted of the murder of Joanna McCarthy. There was a
huge amount of evidence and certain disquiet that Travis
Burns was also involved in some way in the killing of
Tania Furlong at Howick, and you, Sir, injuncted at that
time the Howling at the Moon article by Mr Wishart.

The case was heard, Mr Burns was convicted of the
murder of Joanna McCarthy. The media then wanted to
publish what had taken place in the investigation with
regard to Tania Furlong, and in particular the allegation
made by Lewis, who had been arrested by the Police, that
in fact he'd been set up by Burns who was in the pockets
of the Police, he was a paid informer.

Chambers J who heard the trial made an order
allowing the media to publish that article, obviously
Mr Burns then went straight to the Court of Appeal and
the Court of Appeal said, "No, we would not allow
publication because there was so much publicity with
regard to the Joanna McCarthy trial and so much publicity
with regard to the appeal," but where that case, with
respect, is distinguishable, there was no publicity in
that case with regard to Burns and his association with
Tania Furlong.

I do invite Your Honour to consider what the Court
of Appeal said in that case. They said on the special
circumstances of this case, the fact that allegations
were made that Burns had killed Tania Furlong meant that
if there was a retrial on Joanna McCarthy it was unlikely
he could get a fair trial on that particular case.

But what the Court of Appeal also accepted was the
importance of the media being able to report on events
openly and, in particular, in a period of current news
worthiness.

So, that, in some way, responds to what you, Sir,
said about the media coming down here and then having
some orders made that they could only publish in the
future.

Well, my submission, Sir, is this. The media, they
know what the rules of contempt are. If they don't, then
they're going to be consulting their lawyers, hopefully,
anyway.

And then the next point that I make is at 26, the
Courts have long recognised the focusing effect of
listening over a prolonged period to the evidence in a
particular case, thereby minimising the risk of prejudice
to a fair trial.

In essence, endorsing exactly what the Law
Commission paper was all about.

I ask you, Sir, what's the point, as head of the Law
Commission, what's the point of having Law Commission
papers if we're not in fact going to put them, in effect,
into practice?

HON JUSTICE ROBERTSON: I don't think you want to lock in that
submission. I notice a little later in your submission
you're not wanting to pick up a submission of the Law
Commission, so you better make sure you're not blowing
hot and cold, Mr Akel.

MR AKEL: Oh, I'm always doing that, Sir.

If I can take - I'm not going to take you through
all those authorities that I've referred to there, Sir,
but all the cases make it clear that the focusing effect
of a trial itself, that jurors do listen to the
instructions of judges; they are not influenced by
pre-trial publicity.

So, that, in my submission, Sir, is where the
safeguard is.

You see, again with respect, it seems to me that
this hearing is started on the basis, well, whatever we
do here is automatically going to affect fair trial
rights. My proposition is that that starting point is
wrong.

Fair trial rights and freedom of expression rights
are an equal poise. It is a matter of getting the
balance and then seeing how in some way can we
accommodate all rights.

My submission is, you accommodate all rights by
going ahead with your hearing a full public hearing and
then saying, we've got to be reliant and accept the
integrity of the trial process that jurors will, in fact,
take notice of only what they hear in the Courtroom, all
the more so, Sir, where your report and your inquiry is
not into the guilt or innocence of certain Police
Officers that are named.

Reference is made in the submission by senior
counsel for the Commission to cases like Fitzgerald and
Thompson. In my submission, the rationale behind those
cases needs to be reconsidered, particularly in view of
the Law Commission paper. And, again, I refer to the
Burns case, and I say Burns is clearly distinguishable
because here what the Commission has to deal with, the
issues are already very much in the public domain and, on
top of that, we've had statements through the media by
the Police Officers involved all denying liability, all denying
any wrongdoing.

From one of them, "her allegations have absolutely
no foundation". From another one, "a full Police
investigation in the early 1990s completely cleared me of
any wrongdoing". Another one, "I denied the allegations
absolutely then and I deny them absolutely now".

So, they've had their say through the media.

Turning now to the next issue, that of suppression
of name. Again, the same submissions apply. Name
suppression will relate to those witnesses who can be
described as complainants, those witnesses who complaints
have been made against, other witnesses, complainants,
well, the names of the two leading complainants perhaps
are already in the public domain. Ms Ablett-Kerr is here
representing her client who wants to be publicly
identified.

Again, there's been a wind change by the legislature
with section 139(2)(a) of the Criminal Justice Act. In
essence, the names of complainants can be publicised if
the complainant consents in certain circumstances. In
essence, if she knows what she's doing in allowing her
name to be publicised.

It is submitted that if any witness who is a
complainant does not object to being identified then
there should be no identity suppression. Obviously for
other complainants some sort of identity protection may
be appropriate. This should be made clear to encourage
other potential witnesses to come forward.

With regard to those whose complaints are made
against or will be made against, it is submitted that the
Court standards should apply. Really there's been very
much a move against name suppression. I mean, again,
Ms Ablett-Kerr referred to the fact if you name people
this may encourage others to come forward. That was very
much the rationale behind the Court of Appeal decision in
the Liddell case.

Indeed, that's proved prophetic in a way.

Others may come forward. The concern we're going to
have is this, Sir -

HON JUSTICE ROBERTSON: I'm sorry, let's just talk about that.
The only people who could come forward here are other
people who allege they made a complaint which was not
properly dealt with.

Now, this thing has consumed our media for the last
seven months. The fact that it is Inspector Bloggs or
Constable C against whom a complaint is made is not going
to make any difference to that.

You see, we're not investigating Inspector C or
Constable Bloggs. We're investigating what happened
after someone fronted up at a Police Station.

I mean, I'm not unfamiliar with the principles - I
was trial Judge in Dr Procter's case. I am relatively familiar
with the approach of these things but the issues are quite
different.

MR AKEL: Well -

HON JUSTICE ROBERTSON: The issues are not whether an
identified person did other bad things allegedly, it is
how the system responded to the complaint about them.
And Ms Ablett-Kerr, with all her interesting approaches, did
not appear to me to answer the question, what is the
relevance of that name?

MR AKEL: What would happen if -

HON JUSTICE ROBERTSON: It is not the Afeaki sort of
situation. It is not flushing out the people or anything
like that.

MR AKEL: Well, with respect, Sir, it is in a bigger sort of
way.

Take this example. Say there was one complaint
involving a smallish country Police Station and the issue
with that one complaint was, was the procedure once a
complaint - was it properly investigated? Now, that's
going to go to all sorts of issues of integrity and
credibility of particular complainants.

Say there was one person involved in making that
complaint with regard to that, say. Say there were two
other women in that country locality who feared that they
didn't want to go ahead and become involved in this
public inquiry because they thought, "Here I am in a
small country community in Whakatane," or wherever it may
be, "and I'm going to be left, sort of, making
accusations where no-one is really going to believe what
I say, that I laid a complaint."

If you bring out names, there is always going to be
the chance that someone who is timid or fearful, or just
inherently shy, or worst of all ashamed of what may have
taken place, may turn around and say, "Because others
were in the same situation as me, I'm going to come
forward," and that, in my submission, Sir, is the reason
why candor is all important. It's going to enable
people - but if you have openness and if you adopt an approach,
a total approach towards openness, then hopefully that will
encourage others to come forward, obviously with the
caveat that if you want - as a complainant you want some
sort of an anonymity, then we're prepared to consider
that.

With regard to other witnesses, Sir, I've just
referred to again Victim X, where the Court of Appeal
made it clear in the Bill Trotter case that it would be
rare indeed for any witness to have name suppression.

And then, finally, I don't know what orders have
been made with regard to televising of the hearing, but I
make a formal application now on behalf of both TVNZ and
TV3 to televise the hearing in line with the Court media
coverage guidelines.

I have referred to what Fisher J said in the Choy
decision and that, again, is in the bundle.

I have made some concluding comments, which again
senior counsel for the Commission referred to Taylor,
again it is my submission that the law in New Zealand has
moved some distance from Taylor post Bill of Rights and
convention issues, but I don't know whether they're
particularly relevant to today's hearing.

HON JUSTICE ROBERTSON: Well, the question, Mr Akel, I
probably want to hear you on, just to summarise it all,
if the Commission were in any circumstance to reach the
conclusion that it would be unwise or imprudent, to hear
evidence in public, is it better that the Commission
postpones its hearings or hears in private?

MR AKEL: I find that very difficult to answer in the
abstract, Sir. The reason I say that -

HON JUSTICE ROBERTSON: I thought you might.

MR AKEL: There's going to be such a variety of cases.

HON JUSTICE ROBERTSON: Do you accept there may be some
circumstances where private hearings would be a last
resort acceptable?

MR AKEL: My submission is this, Sir, that, as I've perhaps
emphasised too much, this Commission should proceed on
its way on the basis obviously of concern about future
fair trial rights, a concern. It's got to take that into
account clearly, but it is not a principle that overrides
everything else.

I then move to the step and I say -

HON JUSTICE ROBERTSON: When are fair trial rights to be
overridden in New Zealand in 2004, Mr Akel?

MR AKEL: Fair trial rights are never going to be overridden
in New Zealand in 2004 or any time in the future, nor for
that matter, hopefully, in the past.

But I'm going to say this, Sir, on this particular
issue, which gets down to is the fear that publicity
arising out of this hearing will affect those fair trial
rights, that's the issue. And my submission, Sir, we now
have the Young report, we have decisions by Courts saying
that the protection that can be provided by directions to
the jury and how juries operate, that really overcomes
what concerns you may have.

HON JUSTICE ROBERTSON: Thank you.

Have we lost Mr McKnight, Mr Gray? Mr Stewart,
you're going to be Mr McKnight.

MR STEWART: Yes, Sir. I am simply going to inform you, Sir,
that the Dominion Post and the Fairfax Group Publications
supports the submissions by the other media
representatives, particularly those you are about to hear
of Mr Gray, which we've had the benefit of reading, and
in particular the submission that the hearing be heard in
public and that media be present at all times, even if
there were suppression orders in place during those
times. Thank you, Sir.

HON JUSTICE ROBERTSON: Thank you, Mr Stewart.

***

Submissions by Mr Gray on Behalf of APN New Zealand Limited

MR GRAY: It's difficult to know what to say without sounding
like a Greek chorus, and even then whether it's a lead
nickle or golden nickle, only time will tell.

I do not wish to go through the synopsis that I sent
to counsel assisting the Commission yesterday but I do
wish to ask the Commission, when it makes its decision in
this matter, to start from asking the question, what is
the juridical basis upon which we claim to have power to
exclude people from our hearings and to prevent people
from talking about what happens in our hearings? because
that's what suppression orders are.

So far as hearings in private are concerned, it's
perfectly clear that the Commission has power to do that.
The power is expressly conferred by the Terms of
Reference. So, there can be no question that when this
Commission was established and empowered, it was
contemplated that it may become appropriate for it to
conduct some of its proceedings in private.

But as to other orders, the juridical basis upon
which powers are available and can be exercised to stop
people talking about what has happened in here is less
clear. You have the power of the High Court in its civil
jurisdiction. That means that the powers conferred on
the Court in its criminal jurisdiction by sections 138,
139 and 140 are not available. So, we're relying only on
the inherent power that the High Court has in its civil
jurisdiction, and there are not many cases dealing with
the nature of the inherent powers of the High Court in
its civil jurisdiction.

I wonder if I can, before developing that, make one
aside to answer a question posed by Your Honour
Robertson J to Mr Akel and I think to Ms Ablett-Kerr, how
is there a bright line to be drawn between people who are
complainants and people about whom complaints are made?
In my submission, there's a very easy basis upon which
that line can be drawn. Section 139 of the Criminal
Justice Act provides that the identity of complainants of
crimes of a sexual nature should be suppressed. The
Commission may decide that that is evidence of a public
policy that it should give effect to in exercising the
inherent powers of the High Court in its civil
jurisdiction, but there is no similar public policy that
can be derived either from the other provisions of the
Criminal Justice Act or otherwise.

HON JUSTICE ROBERTSON: I accept that, Mr Gray. The
difficulty I have is the corollary that in any criminal
case a person against whom an allegation made has the
ability to defend themselves.

The issue is how, without giving people the
opportunity to defend themselves, we can put them in
jeopardy of their reputation?

I say again, if we are going to allow Police
Officers, or former Police Officers, against whom
allegations are made to tell their side of the story, it
is no part of our Terms of Reference, but what I am
troubled about, and what neither Mr Akel nor
Ms Ablett-Kerr appeared to answer directly, is how you
deal with what appears on its face to be a fundamental
breach of the principles of natural justice, on the one
hand, by saying a person's name can come out but they can
not defend themselves because to do so would go outside
our Terms of Reference?

MR GRAY: I heard -

HON JUSTICE ROBERTSON: If you have a juridical answer to
that, I'd be really most appreciative.

MR GRAY: I don't know it's a juridical question. I did hear
your exchange with Ms Ablett-Kerr and it did seem to an
observer of that exchange, that the floor that underlay
it is it treats a statement that an allegation has been
made as a statement that the allegation is true.

So, where a statement is made in the proceedings
before this Commission that a person came along to a
Police Station, made a complaint and that complaint was
not investigated appropriately, it is not necessary for a
proper understanding by this Commission of what it must
do or by the public of what the Commission is doing, that
the inference is drawn that the allegation was
well-founded.

And so, the guilt or innocence of the person against
whom the allegation was made, not only is not part of the
Terms of Reference of this Commission, but is not
inferred or able to be inferred from the acknowledgment
of the true fact that an allegation was made.

Now, members of the public know that people make
allegations, that those allegations are the commencement
of a Police investigation and the Police investigation
may be conducted well or not.

They also know that in order to determine the guilt
or innocence of a person, the investigation proceeds to
the laying of charges and there is a trial. Members of
this community well understand that if there has been no
charge laid and there has been no trial, that there
cannot be said to be a true allegation, or one which is
capable of proof on the criminal standard.

So, it is not correct to say that merely because
somebody might come to this Commission and say, "I made a
complaint," that the media will run away and publish in
fact a different fact, which is that a complaint was true
or that the members of the public who would come to hear
of that would think that.

The law does control the manner in which people talk
about things which touch the reputation of others, and
the law controls it by the law of defamation.

What the law says is, people can say things which
are true but they may not say things which are untrue.
And the law says that people can say things where it's
important in the public interest that they be said so
that there's a defence of qualified privilege, but in
order for that defence of qualified privilege to be
available, what is said must be fair and accurate, it
can't go too far, it has to be reasonably complete.

So, when those propositions are applied to what this
Commission must do, it is necessarily the case that
people will come and say, "I made an allegation." The
public needs to know that allegations were made. It is
not necessarily the case that this Commission or the
public or those reporting to them will say because an
allegation is made you should treat that allegation as if
it were true. And so, evidence from any party about the
truth or otherwise of the allegation forms no part of
this Commission's work.

HON JUSTICE ROBERTSON: To which Ms Hughes' submission is, if
what the public needs to know is that an allegation was
made, how are the public better off in knowing the name
of the person against whom the allegation is made?

We're down to that - there's a very narrow gap
between you.

MR GRAY: That's right.

HON JUSTICE ROBERTSON: Everyone who has made submissions thus
far agrees the public needs to know all these things and
everything should be in public, but the issue is if it is
outside our Terms of Reference, why is it relevant to
have a name attaching to that complaint?

MR GRAY: And I've got several answers. The first is to turn
the question round and say that's not the appropriate
question. The question is, on what basis can this
Commission restrict people talking about the identity of
the person against whom a complaint is made? What's the
legal basis for the exercise of that power?

The second part of the answer is, judges, and the
judgment of Lord stain in Ex parte Simm, for example, is
probably the most prominent recent example, are very
careful to say it is not for Courts to say what people
should hear. It's not for Courts to say what's relevant
and not relevant and in the public interest and not in
the public interest, because, frankly, that's outside
their skill set and that's a matter that ought to be left
to others.

I suppose the third part of the answer is to say
this Commission is in part about real people and real
facts, and if the public is going to understand what is
giving rise to these complaints, what it is the
Commission is investigating and why the Commission has
come to the conclusion that ultimately it will come to,
it needs to understand who are the real people, what
happened in respect of the investigation, and what should
be done about it, and it does help public confidence for
there to be the reality that is brought about by the
provision of factual accuracy.

HON JUSTICE ROBERTSON: Yes, all right, thank you, Mr Gray.

MR GRAY: That was a somewhat lengthy interlude, Sir, into
what I had set out to say, which is if the Commission
asks itself, on what basis are we empowered to interfere
with people talking to each other about what happens here
and when should we do it? then it is necessary to start
with section 16 of the Judicature Act, which is the
statutory expression of the inherent power, to look at
cases, such as Scott v Scott, which is where really any
modern discussion of the extent of the inherent power in
the Court's civil jurisdiction comes from, and then to go
to New Zealand applications of that case, like Taylor
which is a decision that other counsel have referred to.

What those cases say is the inherent jurisdiction is
one which can be exercised in the interests of the
administration of justice. The cases make very, very
clear that it's not a power which can be exercised simply
because the Court thinks it would be a good idea. It is
not a power which can be exercised because the interests
of someone before the Court are affected. It's a power
which can be exercised only where that exercise is
necessary to enable the Court to do its work, and so it's
the ability of the Court to do its work that is the
driver of any exercise of what is called the inherent
jurisdiction, and I suppose, and I'm grateful to my
learned friend Ms Scholtens because we've had an
opportunity to exchange submissions and have reached a
very large measure of agreement. Probably the only
difference between us is the matter of emphasis on the
difference between the interests of justice and the
interests of the administration of justice and the extent
to which I say that the inherent jurisdiction of the
Court is not to do whatever is necessary in the interests
of people before it, but to do what is necessary in
enabling the Commission in this case to do its job.

You might say that is a semantic -

HON JUSTICE ROBERTSON: Doesn't that ignore the Terms of
Reference, Mr Gray?

MR GRAY: Which part of them, Sir?

HON JUSTICE ROBERTSON: The Terms of Reference which
specifically say we may sit in private and exclude
people. I don't know why you say we come back to the
juridical civil standard when, in setting us up, those
who advised the Governor-General took a rather different
view.

I, with respect to you, think it is rather too
narrow to say you're in the position that you would be in
a civil Court. I would have been there in any event as a
Judge with a warrant.

So, surely the starting point, although it's got to
be influenced by the whole environment in which we live,
that the Terms of Reference acknowledge the
possibility of something which would not be the way it
would be dealt with in a general Court.

MR GRAY: I started by acknowledging, Sir, that you may sit in
private, that the Terms of Reference empower you to do
that. The Terms of Reference don't empower you to make
suppression orders.

HON JUSTICE ROBERTSON: I see. So that, if we were satisfied
that the interests of justice required some limitation,
we would have to go into private, rather than make
suppression orders. I didn't think that everybody else
in the room thought that was a good idea, but if that's
the challenge you put before me, then I might have to
respond to it.

MR GRAY: I am not making submissions, Sir, on whether it's a
good idea or not. I am making submissions on what it is
that the law enables this Commission to do.

HON JUSTICE ROBERTSON: So, you're saying that we could sit in
private but that defined a juridical basis to make a
Suppression Order, we're thrown back into the civil
jurisdiction of the Court, Scott v Scott onwards?

MR GRAY: That's correct.

HON JUSTICE ROBERTSON: All right, thank you.

MR GRAY: I must acknowledge, of course, that the Taylor
decision makes perfectly clear that in the exercise of
the inherent jurisdiction it is preferable to make
suppression orders than it is to sit in private, and the
Court of Appeal, despite there being some disagreement
between the judges on other matters in the decision, were
very much together on that, and of course, as you would
expect, if it's appropriate to exercise the inherent
jurisdiction, then the Bill of Rights Act probably would
require that in doing so you do it to the minimum extent
necessary to interfere with the freedom of expression
that's affirmed by section 14.

But I do say, Sir, that it is necessary to stop and
ask before a Suppression Order is made, what interest is
the Commission serving? And I say the cases do not
support the exercise of the power in the interest of
parties only in the interest of doing the Commission's
business, and that's a slightly different mindset,
although I do also concede that there may be times when
the distinction is so small as to be difficult to find.

I go on to say, as I have said at the beginning,
that in relation to complainants who wish to have their
name suppressed, section 139 of the Criminal Justice Act
I think is authority for a public policy, that creates
the kind of exception that would normally give rise to an
opportunity to use the inherent jurisdiction of the
Court.

So far as people accused of committing offences are
concerned, I, however, say the position is much, much
more difficult. In this there is a distinction between
those against whom charges may already have been brought,
and I agree with my learned friend Mr Akel, that the task
for the Commission then is to ask, are section 25 of the
Bill of Rights Act fair trial values invoked? And, if
they are, then of course some kind of suppression orders
would be required. But, like Mr Akel, I remind the Court
that Dr Young's work for the Law Commission suggests that
pre-trial or extra trial publicity, even during trial,
doesn't seem to affect jurors.

I read the Court of Appeal judgment of Burns
slightly different from my learned friend. In Burns.
(No.1) Thomas J for the Court said, "Well, we regard
these facts as so exceptional that we think suppression
is warranted in this case. We are mindful of Dr Young's
work and we're mindful that in most cases suppression
won't be necessary, but we think these facts are so
extraordinary, the possibility that Burns may have
committed a murder and then provided evidence of a
confession by someone else to procure their conviction
and so avoid prosecution himself, was so sensational that
that was the kind of information which probably was an
exception to what Dr Young had written."

If you read Burns (No.2), Sir, you can see that the
Court of Appeal acknowledged, when it resat in a
different bench, acknowledged the decision of the Court
of Appeal in Burns (No.1) had been to that effect but
then moved quite quickly to remind everybody about
Dr Young's work, and you might think that the second
Court of Appeal looking at it really wondered whether it
had been the case, that the evidence was so sensational
that there needed to be suppression.

And Burns (No.2) is a case in which the Court of
Appeal was asked to consider the possibility of a future
trial in respect of the first murder and said, "Well, no,
based on Dr Young's work we think even if there was a
future trial, a jury properly directed would be able to
deal with the facts appropriately."

So, in my submission, Burns 1 and 2 read together
are quite strong authority for the proposition that the
Court of Appeal is very mindful of the work that Dr Young
has done and acknowledges that in most cases it does seem
that juries are not affected by publicity outside the
Court in which they are sitting.

In any event, Sir and Ma'am, the position of persons
otherwise mentioned is controlled by the law of
defamation, controlled by the requirement that what is
said is true, and the challenge posed for this Commission
and for others is why should the State ever act to
restrict free speech which is true? Why should people be
prevented from saying to each other things which are
true?

But, of course, the ability to say what is true is
not a licence to say what is untrue, whether because
there's an absence of defence of truth under the
Defamation Act, or because there's an absence of defence
of qualified privilege because it's not legitimately in
the public interest that the topic be debated.

And so, I argue that persons who may be mentioned in
proceedings before this Commission have the protection of
the law but it is a protection that's available if what
is said about them is untrue. It would be untrue to say
that the statement "an allegation has been made" implies
that the allegation was true and that what is alleged in
fact took place. And the difficulty for those who wish
to talk about what will happen before this Commission is
they will need to be very careful to remind people to
whom they speak that what is said here is that there is
an allegation, not that the allegation is true, and
that's the balancing act, but it's a balancing act that
ought to be performed by those who are speaking, not by
the Commission seeking to control whether they speak and
what they say when they do speak. It's a responsibility
which lies with those which seek to publish.

And so, I say, Sir and Ma'am, that this Commission
ought to sit in public as much as possible. I don't
think I need say any more about that. And this case, in
this regard, is very like the Fay, Richwhite one where
Sir Ronald Davidson, the Commissioner, said, "Well the
whole point of this Commission is to deal with a
challenge to integrity of a public body in carrying out
enforcement functions. That challenge must be talked
about in public. What we think about it must be said in
public. And, in fact, the Commission," he said in that
case, "can't do its job if it's asked to do so in
private," and that proposition, with respect to my
learned friends who have made it, must have considerable
weight.

So far as suppression is concerned, as I've said, it
seems that for complainants who wish it, there's a
published policy which might justify the inherent powers
being used, but for other people the grounds, in my
submission, are much less clear, and I suppose I finish
by asking the Commission to do no more than this. Do not
make a general decision that people mentioned should not
be talked about. If particular cases seem to the
Commission to require suppression, then particular cases
should be dealt with when the time comes on their
particular facts, rather than by a general decision made
at the beginning.

Unless you have some questions, those are my
submissions.

HON JUSTICE ROBERTSON: Thank you, Mr Gray.

***

Submissions by Ms Crutchley on Behalf of the Solicitor-General

MS CRUTCHLEY: I appear by invitation of the Commission on
behalf of the Solicitor-General without any particular or
specific representational interests, but really to
provide some general submissions on the issue of public
and private from that perspective.

My opportunity to hear what the arguments have been
in respect of those who represent specific or have
specific represental interests, have been really
listening rather than reading their written submissions.

My approach is perhaps somewhat different,
Commissioners. I have looked at matters around what
might be limits on the Commission's hearing the evidence
in public, rather than looking at the powers of the
Commission to do so, including the assumption that all of
this inquiry should be in public.

I perhaps won't read every word of my submissions
but take the Commission to those aspects of the
submissions which might be the most apposite.

I refer, of course, to the purpose of the Commission
of Inquiry and the specific exclusion. My first
submission would be that clearly a criminal investigation
into allegations by two named individuals in the Terms of
Reference which may, or which have or may lead to
criminal proceedings, may need to have priority over the
Commission's inquiries into the adequacy of those Police
investigations into those matters.

The reason I make that submission is that the
hearing of their evidence in public could interfere with
the investigations in any criminal prosecutions.

These individuals as complainants in trials of
relevant sexual offences would have the automatic
protections provided to them as complainants, unless of
course they chose to be public, this would be despite
publicity given to their allegations, and the Commission
may therefore need to determine whether all of their
evidence to it could be in public.

I then refer to the Seventh Recital which sets out
investigations carried out by the Police into other
allegations of sexual assaults and whether they have been
inadequate.

I understand this to be referring to matters that
are reported directly to the Commission.
I am unaware of the nature of such self
referrals, Sir, in detail. They may be matters where
they deal with consensual sexual conduct involving Police
Officers and associates or where allegations of sexual
misconduct have been made where the Police after
investigation have decided not to prosecute.

For either category, I submit there is an argument
that the impact of publication of such evidence about
Police Officers may poison the atmosphere for the hearing
of any criminal trials arising in unassociated
allegations, so that notwithstanding the differences in
the cases from those the subject of criminal charges, it
may not be possible because of the atmosphere poisoned by
that evidence for serving and former Police Officers to
have a fair trial. I raise that just as an argument.

It may be that the balance between public and
private falls on the side of private hearings of evidence
in these other matters because of the likelihood of
interference in the due administration of justice
otherwise.

The Commission could, of course, approach these
other matters on a case-by-case basis in determining
whether the evidence, or all of it, should be heard in
private or public.

I have referred to two legal concepts that could be
used to examine the issue about whether the evidence that
this Commission hear should be heard in public or
private, and they are principles from the law of
contempt, limitations on coercive power of the Commission
through the application of the doctrine of abuse of
power.

The footnote I have put there, Sir, I have taken the
basis of this discussion from a particular chapter which
is an Australian text, but very useful in teasing out
some of the issues.

I have two qualifications to the discussion. The
first one is that the principles from both areas of the
law, the authorities that deal with both those principles
are for the most part authorities that have discussed
challenges to the exercise of power, rather than looking
at the issues in anticipation which this Commission is
doing this morning.

The other qualification is while that text is useful
to illuminate relevant issues, it is a discussion of
Australian law and, while the basic concepts are very
similar to New Zealand law, they don't have the overlay
of our Bill of Rights Act, and other counsel have
mentioned that as significant.

I then set out the New Zealand definition of what
the law of contempt is concerned with from the
Solicitor-General v Radio New Zealand case, being conduct
which tends to undermine the system for administration of
justice by the Courts or to inhibit civil advance from
prevailing themselves from the settlement of their
dispute. I am really only concerned with the first
aspect of that test.

I then refer to what Lord Diplock set out in the AG
v Times Newspaper case, what he considered to be the
requirements of the administration of justice, in
particular, the two second requirements that he talks
about:

"... secondly, that they should be able to rely upon
obtaining in the Court (that is all citizens) the
arbitrament of the Tribunal which is free from bias
against any party and whose decisions will be based upon
these facts only that have been proved in evidence
adduced before it in accordance with the procedure
adopted in the courts of law; and thirdly, that, once a
dispute has been submitted to a court of law, they should
be able to rely on there being no usupration by any other
person of the function of that court to decide it
according to law."

I think in respect of this matter, it's the second
and third requirements that are, perhaps, useful to have
a discussion about. I'll go on to do so in a second.

HON JUSTICE ROBERTSON: That's really what the first -
Ms Ablett-Kerr, but particularly Mr Akel and Mr Gray are
saying, rely on Dr Young, there isn't any problem, and I
understood Mr Akel really to go as far as to say, even if
there were criminal trials going on, we should just carry
on regardless and investigate in a totally public, full
and uninhibited way what we are bound to do. And the
back row seems to say, "Well, you've got the law of
contempt and you've got defamation to deal with it."

None of them talked about the possibility that a person
in a criminal trial would get a total discharge on the
basis that the Court could not guarantee the integrity of
the criminal process, and that's an issue on which I
would like to hear from you in due course.

MS CRUTCHLEY: Yes, Sir.

HON JUSTICE ROBERTSON: And to whether that is a proper risk
for this Commission to be taking.

MS ABLETT-KERR: I wonder if I could raise a point because
when you talk about the "back row", you talk about us
as - I don't think I went as far as Mr Akel.

HON JUSTICE ROBERTSON: No, you didn't go as far as; part of
the Greek chorus, but just which part of it, a little
different.

MS ABLETT-KERR: I think I did alert my client's concern
about the contamination of any criminal trial.

HON JUSTICE ROBERTSON: Yes.

MS CRUTCHLEY: Thank you, Sir. It did strike me when I was
listening to the submissions of counsel from the news
media that many of the cases they were talking about, of
course, were about criminal jury trials, and I think
there is a difference in the inquiry that needs to be
looked at under the issue of public or private.

I will go on and develop that theme, but it seemed
to me that evidence in public in front of this Commission
about the issues that this Commission has to deal with
could indeed influence the due administration of justice
in the hearing of criminal jury trials.

The other distinction to be made about Dr Young's
work is that his evidence from looking at what jurors did
in jury trials was from a very small sample of jury
trials and it wasn't as absolute as perhaps has been made
out. It was an indication that jurors are not influenced
by publicity about the trial they are sitting on when
they are sitting on it.

So, that's quite a significant issue that is not
what this - what my submissions are about in terms of
what the Commission might be looking at.

I would like to go on perhaps and discuss, in
particular, from my paragraph 15.1, the considerations
that must apply where criminal offending will be dealt
with by trial by jury because I think that's not been
talked about this morning at all, as well as the
fundamental rights in sections 24 and 25 and the freedom
of expression.

I set out the well-known statement from the
Solicitor-General v TVNZ but perhaps I could just move on
to consider the criminal jury - that criminal jury trials
are conducted according to established procedures and
principles, and that aspect is important.

I do think it would be important for this Commission
at some point to have a factual statement of where the
Police investigations and prosecutions are up to, and
perhaps a likely timeframe for the remainder of the
Police investigation work as the basis for some of the
considerations here.

There are two principles related to the right of
trial by jury that I think need some consideration, and
I've quoted there from the relevant authority:

"A person accused of a crime is entitled to have the
case presented to a jury with their minds open,
unprejudiced and untrammeled of anything that any
newspaper for the benefit of its readers takes upon
itself to publish before any part of a case has been
heard."

That fear trial right equally extends to the Crown,
and that of course has been very long recognised. It's
not generally a right that's as visible in comparison to
discussion about fair trial rights of the accused but
more of an assumption, but given that the Crown looks
after the public interest in the prosecution function, it
clearly is of vital importance in this particular
discussion, and in particular to the second and third
requirements that Lord Diplock identified.

I think the most important question, Sir, is to
focus on what the effect could the publication of the
evidence of this Commission have on the fact finding
ability of a jury in associated criminal jury trials,
which must be a really important issue when looking at
what this Commission will look at? I go on to discuss
that.

It must be that witnesses, particularly complainants
and putative accused may give evidence to this Commission
on matters which are collateral to or associated with,
rather than directly about, allegations of criminal
conduct. They will be associated with the initial
allegation but, of course, that material would not be
admissible at trial.

If such evidence was provided to the Commission for
the purposes of the Commission's area of inquiry but
which trenches on the evidence that witnesses and accused
may give at a criminal trial, then publication of
evidence given to the Commission may well have an
improper influence on future jury members.

An example is a current or former Police Officer may
give evidence about their conduct in investigating sexual
allegations against Police Officers, or their sexual
conduct relevant to the consideration of adequacy of
investigation. This evidence could well be inadmissible
at the criminal jury trial of the sexual charges.

If published from the Commission's hearing, it could
well affect the jury pool's assessment of the particular
current or former Police Officer, either when they come
to give evidence as a witness or when they come to their
trial as an accused.

Now, witnesses at this Commission may well have to
canvass matters at the heart of the allegations of sexual
offending. This may provide a rehearsal for such
witnesses which may have the following implications. It
could cause witnesses to submit themselves on oath to a
version of events in advance of the criminal proceedings;
publication of the evidence of these witnesses might
provide difficulties where a witness to the Commission
has told a version of events which is contrary to their
statement to the Police about the criminal matter.

Now, I am not suggesting that witnesses would come
along here, Sir, and give false evidence, but the nature
of what this Commission is looking at may impact on the
type and nature of evidence they would give, which would
be different, or have a different focus or cast, than the
content of their allegations about the actual offending.

So then, your witness may feel compelled to repeat
the evidence given at this Commission for fear of being
prosecuted for giving false evidence.

Witnesses - publication of witness' evidence could
deprive of the opportunity for surprise contained in
cross-examination at trial; and it may necessarily cover
collateral matters and evidence which could be
inadmissible at trial.

The latter point could influence the course of
evidence given at trial if such consistencies obtained in
evidence for the Commission's inquiry were used to
undermine witness' credibility at criminal trials.

Now, in the criminal process, cross-examination
designed to test the credibility of witnesses occurs
through exploration of inconsistencies with the witness
in evidence at trial as between written statement,
evidence given at depositions and at trial. So, while
depositions is an inquiry into whether there is a case to
answer, and trial is an inquiry into guilt or innocence,
such cross-examination is always focused on the
substantive and relevant evidence related to proof of
charges and is always done in the strict context of
procedures surrounding the criminal jury trial.

However, here the purpose and specific nature of
this inquiry is quite different to either inquiry
described above in the criminal process. Thus, evidence
given publicly for one purpose in a forum not contained
by rules applicable to the criminal process but which
evidence is available to the criminal trial, could allow
undermining of the credibility of witnesses and accused
in a way that could affect the proper administration of
justice through interfering with the more limited inquiry
and stricter rules applicable to a jury trial.

For those witnesses who might also be expected to
speak to the Commission of Inquiry about the matters it's
charged with, who may be or who are also charged with
criminal offending, then clearly one needs to consider
the fundamental rights they have pursuant to the
New Zealand Bill of Rights Act.

Now, in balancing that exercise between fair trial
right and freedom of expression rights it may be argued
that the fair trial rights will not necessarily be
affected because of the procedural mechanisms which can
be used to deal with possible prejudice. There's been
some subtle or indirect discussion of that this morning.
I refer, of course, to the Lama CJ in Dagenais v Canadian
Broadcasting Corp, the procedural mechanisms considered
available. But, of course, in the Gisborne Herald case
the Court of Appeal didn't consider such measures would
be adequately effectively - effectively adequate in
New Zealand and I've set out their approach. As well as
another point from the Dagenais judgment.

In Australia, and I refer to the Australian text I
have discussed in the first footnote, one of the
procedural options available there appears to be a
temporary staying of a trial to allow potential jurors'
memories of prejudicial publicity to fade. Of course, in
New Zealand this is not an option in criminal jury
trials. To delay a trial for that purpose would ... part
of the rights of an accused to a fair hearing.

In the New Zealand context, of course, the Court of
Appeal in the Gisborne Herald did note that there may be
even less scope for the staying of a proceeding or
delaying a criminal proceeding if there's been publicity
that affects trial rights.

It's also clear from the Gisborne Herald case any
balancing exercise is only a temporary curtailment of
publicity, rather than the absolutes that have been
spoken about this morning.

In the second general provision in the Terms of
Reference it's clearly contemplated that publication of
evidence heard by the Commission in private and the
report itself will be subject to public disclosure by the
government. So, if this Commission decides not to hear
evidence in public, then in future the government would
be able to provide publication of both the evidence and
the full report at a point where criminal charges have
been dealt with by the system.

Now, normally, obviously curtailment of the right to
publish is generally of short duration if all you're
looking at is a criminal trial.

The best example of that is evidence given at
pre-trial hearings on admissability issues. While the
media are generally present at such hearings, they can't
publish details of the evidence, submissions or ruling
until the trial is over. That curtailment of publication
is of reasonably short order and it may be argued that of
course the period of curtailment in this circumstance may
be longer, and that's no doubt true, but the principles
still apply, that is of temporary curtailment.

HON JUSTICE ROBERTSON: But what the media are saying to me is
that's intolerable, that if there is to be publicity it
needs to be publicity at the time that the evidence is
being given to the Commission, and that anything other,
they say, would be totally unacceptable. I mean, I think
they would argue that the temporary thing which was seen
as acceptable by some Courts is a thin edge to the wedge.

MS CRUTCHLEY: I understand that, Sir. I suppose what I'm
attempting to tease out is, where do the fair trial
rights of accused persons who will stand trial on
criminal charges arising out of the basic allegations
which are the starting point of this Commission, how
those - where the balance is in relation to protection of
fair trial rights and the overall issue of the due
administration of justice? I would suggest temporary
curtailment is one obvious solution. Hearing evidence
that may touch on those issues in private is another
one.

Your Honour talked about the postponement of the
Commission of Inquiry as a third possibility.

So, there are a variety of mechanisms where the
balance of fair trial rights which is seen in New Zealand
to be of more significant importance at the point of
trial than the ability to publish for a temporary period.

HON JUSTICE ROBERTSON: Thank you.

MS CRUTCHLEY: The last point I haven't really developed in
any great length basically, Sir, because of the small
opportunity I had to consider the matters before coming
here, but it's to look at the limitations of coercive
powers of the Commission, again related to people who may
be charged with offences.

Now, the Commission, like some other agencies, you
can require people to answer questions which may be
against interest. I've outlined some of the powers that
there are available, situations where people can be
compulsorily required to answer questions.

I would suggest there may be a limitation on the use
of the Commission's coercive powers to insist that a
putative accused compulsorily proviede evidence to the
Commission in public on matters directly related to
matters which are likely to be the subject of criminal
charges. So, I see there may be a need to be some
careful consideration about what a putative accused could
be asked by this Commission while there is an ongoing
criminal investigation, the result of which is not yet
known, that is charges will be laid or charges will not
be laid.

Again, if -

HON JUSTICE ROBERTSON: If the Commission to protect fair
trial interests has to have one or two hands tied behind
their back, how much confidence is the public going to
have in the Commission's eventual report if it has not
thoroughly, scrupulously and without halt or hinder,
investigated every matter which is properly on the table?

MS CRUTCHLEY: That's not my argument, Sir. I think I make it
very clear in that paragraph that I'm talking about that
being in public. I don't think for a moment this
Commission should do anything other than to do what
you've described. But if you're going to compulsorily
require a putative accused to discuss matters which may
be the subject of a criminal jury trial for them, which
may have to canvass matters which may be the subject of
their defence, then to do that in public may well affect
the fair trial rights of that person when they become an
accused, but I wouldn't imagine that that could stop the
Commission from hearing from that person in private,
although immediately one begins to think about -

HON JUSTICE ROBERTSON: New Zealand is a very small place.

MS CRUTCHLEY: I wasn't going to say that. I was more
thinking, who else would be present?

HON JUSTICE ROBERTSON: New Zealand is a small place and I
think the reality of being able to maintain the integrity
of that is something that I have to weigh.

MS CRUTCHLEY: Yes, Sir. I just thought it would be helpful
to kind of address that.

HON JUSTICE ROBERTSON: I am grateful to you for raising it
because these are the crunch issues that we have to work
out.

Can we tailor a process which - you see, I don't
hear anybody saying that the maintenance of fair trial
has got to be a major concern, even if I can't get
everybody to say a priority, even if that's what I would
say for myself.

Then the issue is, can you ensure that and, as I
understand the media, you will only be able to have a
process which has confidence, transparency and integrity
about it if it is being done in public; and how do you
marry those two things together? That is the challenge
of today.

MS CRUTCHLEY: Yes, Sir.

HON JUSTICE ROBERTSON: I hear very loudly those who say,
"This matter has got to be got on with and dealt with,"
but how do you prioritise that need, and it's an
understandable need and a thoroughly commendable need,
with the need for ensuring that you don't do anything
which has the potential to interfere with the Court
process because someone has to weigh and assess whether
it is in the public interest, that if there were criminal
charges they were not able to be run or that people were
discharged because this Commission had contaminated the
water to such an extent that a fair trial could no longer
be assured?

What we have been looking at in this public/private
thing, is to see whether going private is a way to enable
that to occur, and certainly the message from the media
is fairly consistent and it is pretty much the message of
everyone else, you go public to the greatest extent you
can, but where are the areas in which you can have
privacy? Those are the challenges which I think face us
at this point.

MS CRUTCHLEY: Sir, I wouldn't be of the view that you go
public to the widest extent in this inquiry precisely
because of the issues you've identified as being the
difficult ones, and maybe - well, what Ms McDonald said
this morning in terms of what work the Commission can do,
there seems to be a body of work the Commission could
engage on which wouldn't begin to directly impact on the
fair trial rights of persons who are charged and who may
be charged as a result of the current investigations.

HON JUSTICE ROBERTSON: Can one say that with confidence? I
mean, Mr Akel has been making with confidence the
submission that juries are never affected by things that
go on outside, but can we say with confidence that people
who were facing - former or present Police Officers -
facing criminal charges, those trials would not be
affected in any way by the fact that this Commission were
scrutinising the activities of other Police Officers and
their responses at the same time?

MS CRUTCHLEY: Well, I -

HON JUSTICE ROBERTSON: You see, those are the risk factors -

MS CRUTCHLEY: That's right.

HON JUSTICE ROBERTSON: - which need to be made because the
outcome of the wrong call by the Commission is that
people avoid criminal responsibility.

MS CRUTCHLEY: Yes. I wouldn't agree with Mr Akel in that
respect, and that was my first submission, that you may
in fact even run the risk if evidence about the -
evidence of sexual conduct consensual and allegations of
misconduct that have not formed the basis of any charge
may poison the environment for those who are Police
Officers who are charged and there may be a risk there,
depending on the content of that evidence and how far one
has to go into the nature of the allegations in order to
look at adequacy of investigation.

HON JUSTICE ROBERTSON: So, then you come back to saying,
well, let's do it in private so that we don't have any
danger of that sort of process, and then I have to cope
with the media's response that that is simply a never
acceptable approach to this sort of public issue.

MS CRUTCHLEY: Isn't there a middle ground in respect to some
of the issues that this Commission can deal with, can be
happily dealt with in public and the matters dealt with
on a case-by-case basis in relation to those witnesses
who do have stories to tell, part of which it is
important are in the public arena, part of which cannot
be in the public arena because it will affect fair trial
rights of Police Officers charged with criminal offending
but which, after the temporary curtailment of that
material, their evidence and the report of the Commission
is actually public?

So -

HON JUSTICE ROBERTSON: But temporary curtailment,
Ms Crutchley, realistically we're looking at
18 months/two years if we have major criminal charges,
are we not?

MS CRUTCHLEY: Yes, Sir, absolutely.

HON JUSTICE ROBERTSON: I'd be looking at figures as to how
long a matter which has pre-trial processes and more than
normal things could run. That's even longer than the
Court of Appeal talked about in the temporary things
before.

MS CRUTCHLEY: Yes. With respect, the Gisborne Herald case,
the Court of Appeal was looking at one criminal
proceeding rather than a Commission of Inquiry having to
grapple with their business plus look at the effect on
criminal trials.

The only other point, of course, once criminal
charges have been laid, it would appear that the
privilege against self-incrimination would immediately be
available and the right to silence would probably take
precedence over the Commission's ability to compulsorily
require such persons to give evidence, particularly in
public. And there may well be some arguments about that
from those who represent persons who have been charged
with criminal offences.

My conclusion really is that the Commission may need
to just deal with this on a case-by-case basis, about
whether evidence from a particular witness can all be
heard in public, or parts of it can be heard in public,
rather than looking at the issue on a global basis.

I mean, the mechanics of that may prove to be too
troubling but one could imagine that the Commission could
embark on that exercise, weighing the considerations for
each witness where their evidence might trench on matters
which will be dealt with in a criminal jury trial.

Unless you have any questions, Sir -

HON JUSTICE ROBERTSON: No, thank you, Ms Crutchley, I am
obliged to you and all counsel.

***

Submissions in Reply by Ms Scholtens QC

MS SCHOLTENS: Can I make just one point, Sir, one relating
to the suggestion that name suppression of subject
persons might - one reason against name suppression would
be that people might come forward if their names were in
the public arena. I'd suggest, and it has been our
experience, that the names themselves aren't relevant to
whether people come forward or not. We have had
individuals who have come forward essentially because
they've been encouraged by the fact that others have been
prepared to come forward, and so that has been what has
encouraged them. It's got nothing to do with the particular
individuals who are the subject of complaint. The people who have
come forward have said, "We made a complaint too and we're unhappy."

Now, whether there are other complaints around about
the individual they're talking about, the Commission is
going to get that information, not as a result of any
publicity but as a result of the Police responding to our
request for all the files of complaints over the last
25 years. So, any complaints that have been made in the
last 25 years on matters touching on this sort of conduct
will be brought to our attention through that process.

I just want to make that point about that
submission.

HON JUSTICE ROBERTSON: Dame Margaret and I am obliged to you
all for your assistance. We will take time to consider
the issues and the competing values which have be advanced
from various parts of the room. The Commission
will now adjourn.

Hearing concluded at 12.50 p.m.

Return to Commission of Inquiry into Police Conduct


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Last updated: 26/03/2007