R v Milligan

[2007] NZCA 536

PUBLICATION OF NAME OR IDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 139 CRIMINAL JUSTICE ACT 1985.

ORDER PROHIBITING PUBLICATION OF JUDGMENT OR THE REASONS THEREFOR IN NEWS MEDIA OR ON THE INTERNET OR OTHER PUBLICLY ACCESSIBLE DATABASE

UNTIL FINAL DISPOSITION OF TRIAL. PUBLICATION IN LAW REPORT OR LAW DIGEST PERMITTED.

IN THE COURT OF APPEAL OF NEW ZEALAND

CA539/07 [2007] NZCA 536

THE QUEEN

v

THOMAS WILLIAM MILLIGAN

Hearing:         22 November 2007

Court:            Hammond, John Hansen and Miller JJ Counsel:         S Jefferson for Appellant

B J Horsley for Crown

Judgment:      22 November 2007         at 11.17 am

ORAL JUDGMENT OF THE COURT

A        Leave to appeal is granted. B The appeal is dismissed.

C        Order prohibiting publication of judgment or the reasons therefor in

news media or on the internet or other publicly accessible database until

R V MILLIGAN CA CA539/07  22 November 2007

final  disposition  of  trial.     Publication  in  law  report  or  law  digest permitted.

REASONS OF THE COURT

(Given by John Hansen J)

[1]      The appellant seeks leave to appeal against the decision of Judge Dawson declining his application for a change of venue from the Palmerston North District Court to the Napier District Court.

Background

[2]      The appellant was committed for trial to the Palmerston North District Court on counts of sexual violation by way of unlawful sexual connection and aggravated wounding by stupefaction.   It was alleged that at a party on 28 October 2005 the appellant gave the 15-year-old complainant a piece of card and told her to place it under her tongue and allow it to dissolve.  As a consequence she became dizzy.  The appellant allegedly followed her away from the party and, after the complainant fell over, asked her to perform oral sex on him.  When this was refused he placed his penis in the complainant’s mouth.

[3]      On 5 June 2007 the appellant failed to appear for a scheduled trial callover for his trial which was to commence on 11 June 2007.   A condition of his bail required him to reside at an address in Napier.  Subsequently he was arrested on a warrant and appeared in the Napier District Court on 20 July 2007.  However, in the meantime there had been considerable publicity in the Manawatu Standard, a paper with a quite wide circulation in the lower North Island.  This described the appellant as an armed and violent gang member, and gave details of his previous convictions and  alleged  he  was  a  heavy  methamphetamine  user.    These  articles  appeared between Thursday 12 July and Friday 20 July.   There was a further article  on Thursday 6 September when the appellant apparently escaped from the Napier police cells and returned drunk.

[4]      The appellant’s trial is scheduled for May 2008.

The appeal

[5]      The appellant maintains that there exists a risk of an unfair trial in Palmerston

North because of the adverse publicity.  We disagree for the following reasons.

[6]      The matter is governed by s 322 of the Crimes Act 1961:

322     Changing venue or sitting

(1)       Where any person is  committed for any crime  to appear  at  any sitting of the High Court or of a District Court (hereinafter referred to as the Court of committal), and it appears to a Judge or a District Court Judge (as the case may require) that it is expedient for the ends of justice that the person should be tried for that crime—

(a)     Where the High Court is the Court of committal, at some place or at some sitting other than the place or sitting for trial to which he was committed, or at which he would in the ordinary course of law be tried; or

(b)      Where a District Court is the Court of committal, at some District Court or at some sitting of the Court of committal other than the Court or sitting to which he was committed, or at which he would in the ordinary course of law be tried,—

the Judge, either of his own motion, or on application made by or on behalf of the prosecutor or the person charged, may by order, either before or after an indictment is filed, direct that the person shall be tried at such place and sitting of the Court, or (as the case may require) by such Court and at such sitting of that Court (hereinafter referred to as the substituted Court), as he thinks fit.

…

[7]      The starting point is that justice should be done in the community in which the alleged offending occurred.  The test under s 322 is to be applied in a practical and reasonable way (R v Houghton CA371/99 23 November 1999, [8] and [22]).

[8]      This  Court  has  recognised  that  pre-trial  publicity  can  potentially  be prejudicial to an accused, but a significant lapse of time between the initial publicity and trial is considered material in determining whether the fairness of trial has been threatened (R v Coghill [1995] 3 NZLR 651 at 662).

[9]      Adverse media publicity per se is not enough to satisfy the test under s 322, this Court stating in R v Middleton CA218/00 26 September 2000 at [12]:

The recent Law Commission discussion paper NZLC PP 37 Juries in Criminal Trials Part Two Vol 2 paras 7.51-7.57 indicates that the impact of media publicity both before and during trial is in almost all cases minimal and  that  the  apprehension  which  sometimes  exists  about  the  effect  of publicity may be over-stated.

[10]     Further, this Court in R v Gillies CA252/05 28 March 2006 considered the impact of an applicant’s notoriety as a career criminal in respect of an application for change of venue.   Like this appellant, Gillies was a member of a gang, but the appellant’s notoriety falls short of Gillies’.  Gillies had received wide publicity over a number of years for his offending.   This Court stated at [15]:

Finally, as this Court has on many occasions emphasised, the threshold that must be crossed by an applicant for a change of venue is set deliberately high.  That stems from the fundamental principle that an accused should be tried by his fellow citizens in the community in which he allegedly offended. In our view the appellant, even had he applied before trial for a change of venue, would not have come near discharging that high threshold.

[11]     In this case the last publicity relating to the appellant will be approximately eight months old when the trial takes place in May 2008.   The more significant publicity, dating from July 2007, will be ten months old.   While the articles were prejudicial to the appellant, the media did not traverse the alleged offending in any particular detail.

[12]     The application is essentially on the ground that adverse media publicity will create an insurmountable bias in the jury pool that will hear his trial.   We see no concern of this occurring.  A considerable time will have passed since the publicity and the impact of publicity is clearly minimal on juries.   In our view it is not expedient for the ends of justice that there be a change of venue.

[13]     Leave to appeal is granted, but the appeal is dismissed.

Solicitors:

Crown Law Office, Wellington