B v District Court at Palmerston North
[2021] NZHC 2392
•13 September 2021
ORDER PROHIBITING PUBLICATION OF NAMES OF THE PARTIES. IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY
I TE KŌTI MATUA O AOTEAROA TE PAPAIOEA ROHE
CIV-2021-454-11
[2021] NZHC 2392
UNDER the Judicial Review Procedure Act 2016 IN THE MATTER OF
a decision on application for access to District Court documents
BETWEEN
B
Applicant
AND
DISTRICT COURT AT PALMERSTON NORTH
Respondent
Hearing (by VMR): 26 August 2021 Appearances:
Applicant in person
B Vanderlolk as Counsel Assisting
Judgment:
13 September 2021
Reissued:
22 September 2021
JUDGMENT OF GWYN J
[1] This is an application by B for judicial review of a decision of the District Court providing access to court documents to T.1 The documents requested by T are papers which were filed in the District Court prior to B’s discharge without conviction on a charge of bigamy.2 T is the victim of that bigamous marriage.
1 New Zealand Police v B [2021] NZDC 2608.
2 New Zealand Police v B [2021] NZDC 2038.
B v DISTRICT COURT AT PALMERSTON NORTH [2021] NZHC 2392 [13 September 2021]
Background
[2] On 20 October 2010 B married his first wife in India. The marriage was registered in India under the Hindu Marriage Act 1955 on 8 November 2010. B first obtained New Zealand residence in May 2010 as a skilled migrant and obtained citizenship in 2015. His first wife moved to New Zealand in 2010 and obtained residency in 2012. B and his first wife separated in June 2017 but remained legally married.
[3] In October 2018, B met T on the matrimonial match making website “Shaadi.com”. B travelled to India on 5 February 2019 and went through a marriage ceremony with T on 24 February 2019. A marriage certificate for B and T was issued by the Sikh Temple on 14 June 2019. At that time, his marriage status in relation to his first wife was “separated awaiting divorce”. The summary of facts that was accepted for the purposes of B’s subsequent sentencing indicates that T was aware of his marital status at the time.
[4] After B returned to New Zealand, he was charged with bigamy.3 On 5 February 2021, Judge Rowe in the District Court discharged B without conviction.4
[5] On 9 February 2021, T made a request of the Registrar of the District Court at Palmerston North in the following terms:
1.Kindly provide me a copy of judgement or final order in my case.
2.I also request you to help me provide following documents submitted by [B] or his lawyer in this case during whole period:
1)Any statement given by [B]’s family member or any other person from his side.
2)Copy of Matrimonial ID profile submitted by [B].
3)His statement regarding pleading himself Guilty.
4)Whereabouts of [B] like his contact details etc (if possible).
3 Crimes Act 1961, s 205(1)(d).
4 Police v B [2021] NZDC 2038.
[6] B opposed the disclosure of the documents. The essence of his opposition was that this was a fishing trip by T, seeking evidence to be used against him and his family for use in parallel criminal proceedings in India. He said that the release of the documents would amount to forced disclosure of how he intends to defend himself in relation to those criminal charges and would prejudice his defence. He also said he had been blackmailed in relation to those proceedings.
[7] For those reasons, B submitted, the release of the information would breach his rights under sections 25(a), (e) and (f), and 27(1), of The New Zealand Bill of Rights Act 1990 (“NZBORA”) and articles 6, 10 and 11(1) of the Universal Declaration of Human Rights (“UDHR”).
[8] B also submitted that T is not a victim and that he was deprived of the opportunity to make a detailed application in the first instance.
[9] On 17 February 2021, Judge Rowe in the District Court granted T’s application but with redactions to some documents. The documents released are identified in the judgment as: 5
(a)the charging document;
(b)the agreed summary of facts;
(c)police submissions on B’s application for discharge;
(d)submissions in support of B’s application for discharge, with the name of B’s first wife redacted;
(e)B’s affidavit of 13 January 2021, with the redaction of the name of B’s first wife and name of the town where she and their son live, as well as details relating to other family members;
5 Police v B above n 1, at [23].
(f)B’s affidavit of 28 January 2021, with the redaction of some names, addresses and banking details; and
(g)T’s victim impact statement.
[10] The District Court order for disclosure did not take immediate effect, to allow B time to seek a review of the decision if he wished to do so. This application for judicial review was subsequently filed on 10 March 2021.
[11] T was not named as a respondent to this proceeding. On 27 April 2021 Isac J directed that T be served with the proceedings and requested that the Solicitor-General appoint counsel to assist the Court under r 10.22 of the High Court Rules 2016. As I understand it, T does not wish to take an active part in the proceeding, and counsel appointed to assist is able to act as a contradictor to bring relevant arguments and matters to the Court’s attention. As is usual in such a case, the respondent, the District Court, abides the Court’s decision.
Application for review
[12] B’s application for review of the District Court’s decision to release documents is made under the Judicial Review Procedure Act 2016.
[13]B’s claims are brought under a number of headings, including:
(a)error of law in the Judge’s application of the District Court (Access to Court Documents) Rules 2017 (“the Rules”);
(b)failure to have regard to a relevant consideration, namely the prospective criminal charges against him in India;
(c)failure to have regard to the NZBORA and/or the UDHR, in relation to both him and his family members, when applying the criteria for release in r 12 and exercising the Court’s inherent power affirmed in r 5.
[14] B also complains that he was deprived of the opportunity of a hearing before the District Court Judge when determining the application.
[15] The essence of B’s application is that the Judge, in making his decision to release certain documents under the Rules, did not have regard, or had inadequate regard, to criminal proceedings which B says have been initiated against him in India relating to the events which gave rise to the charge of bigamy against him in New Zealand. In his statement of claim, B says that T has accused B’s mother and sister (who are in India) of a criminal conspiracy against her and has also accused them, together with B, of the further charges of torturing T for dowry and misappropriation of dowry. B says that the New Zealand Police are aware of the charges, or threatened charges. He set out the details of those charges in his evidence and submissions to the District Court objecting to T’s application under the Rules.
[16] B says the documents sought by T are important to his defence of the proceedings in India. B submits that the “premature” release of the documents would limit his ability to mount an effective defence and ultimately deprive him of a fair hearing in those proceedings, by:
(a)prejudicing his ability to cross-examine witnesses for the prosecution, who would effectively be ‘coached’ by the premature release of documents; and
(b)leading to witnesses for the defence being intimidated or harassed due to the premature disclosure of their identity and/or statements.
Applicable law
[17] T’s application to the District Court was considered under the District Court (Access to Court Documents) Rules 2017.
[18] Rule 5(1) of the Rules states “These rules do not affect the court’s inherent power to control its own proceedings.”
[19] Rule 8(2) provides for general rights of access in criminal proceedings to certain parts of the court record. Under that rule, T has a right to access the judgment and the Judge’s sentencing notes in the criminal proceeding. In addition, B did not oppose T receiving the amended charging document or the agreed summary of facts.
[20] The further documents which T seeks to access are not documents to which she has a general right of access under r 8(2). Her request for access to these documents therefore falls under r 11, which entitles persons to request access to documents to which they are not automatically entitled. The application of r 11 is to be determined by the court’s application of r 12 (matters to be considered), having regard to r 13 (which directs the court’s approach to balancing the r 12 considerations) and following the procedure set out in r 14.
[21]Rule 12 provides:
12Matters to be considered
In determining a request for access under rule 11, the Judge must consider the nature of, and the reasons given for, the request and take into account each of the following matters that is relevant to the request or any objection to the request:
(a)the orderly and fair administration of justice:
(b)the right of a defendant in a criminal proceeding to a fair trial:
(c)the right to bring and defend civil proceedings without the disclosure of any more information about the private lives of individuals, or matters that are commercially sensitive, than is necessary to satisfy the principle of open justice:
(d)the protection of other confidentiality and privacy interests (including those of children and other vulnerable members of the community) and any privilege held by, or available to, any person:
(e)the principle of open justice (including the encouragement of fair and accurate reporting of, and comment on, court hearings and decisions):
(f)the freedom to seek, receive, and impart information:
(g)whether a document to which the request relates is subject to any restriction under rule 7:
(h)any other matter that the Judge thinks appropriate.
[22]Rule 13 provides:
13Approach to balancing matters considered
In applying rule 12, the Judge must have regard to the following:
(a)before the substantive hearing, the protection of confidentiality and privacy interests and the orderly and fair administration of justice may require that access to documents be limited:
(b)during the substantive hearing, open justice has—
(i)greater weight than at other stages of the proceeding; and
(ii)greater weight in relation to documents relied on in the hearing than other documents:
(c)after the substantive hearing,—
(i)open justice has greater weight in relation to documents that have been relied on in a determination than other documents; but
(ii)the protection of confidentiality and privacy interests has greater weight than would be the case during the substantive hearing.
[23]Rule 14 provides the procedure for dealing with such a request:
14Procedure for dealing with requests and objections
A Judge may determine a request for access (and any objection received by the Registrar and referred to the Judge under rule 11(4)) in any manner the Judge considers just (including on the papers or at an oral hearing) and may—
(a)require the person asking for access to—
(i)file an interlocutory application or originating application:
(ii)file a written request providing, in detail, the reasons for the request, including the purpose for which the document is sought, and the matters in rule 12 that the person relies on as relevant to the request; or
(b)require the person asking for access or any other person concerned to give notice of the request to any person who, in the opinion of the Judge, may be adversely affected by the request; or
(c)dispense with a requirement to give notice under paragraph (b), if the Judge thinks it appropriate.
Discussion
District Court’s process
[24] I consider first B’s complaint that the District Court did not conduct an oral hearing of the application under the Rules.
[25] B was (initially) represented. He provided affidavit evidence and comprehensive written submissions to the Court in support of his opposition to T’s application. The Court concluded that a hearing was not required and assessed T’s application and B’s objections on the papers.6 B’s submission before me is that, first, that he was detrimentally affected by the recusal of his counsel during the three day period allowed by the Court for him to respond to T’s application and, second, that if a hearing had been provided, he would have had an opportunity to put more information before the Court about the proceedings against him in India.
[26] I am satisfied that B did have an adequate opportunity to make detailed submissions and provide relevant information to the Court before it made its decision to disclose the documents requested.
Relevance of Victims’ Rights Act 2002
[27] B also points to the Judge’s emphasis on T as a victim entitled to access relevant services under s 8 of the Victims’ Rights Act 2002. He says that the Judge assumed that this was the reason for T’s request. The Judge concluded that access to relevant documents from the court file was “likely to promote [T]’s ability to access relevant services or at least to take appropriate advice, to which she is entitled.”7 However, no reasons were specifically stated by T in her application for access to the documents. B submits that she is not a victim.
[28] I do not accept B’s submission that T is not a victim because she was a knowing party to the bigamous marriage. She is a victim of that offence notwithstanding her knowledge of B’s marital status at the relevant time. That notwithstanding, s 8 of the
6 New Zealand Police v B, above n 1, at [8]-[10].
7 At [13].
Victims’ Rights Act, which was specifically referred to by the District Court Judge, does not create legally enforceable rights.8 Specific rights relating to access to the relevant services are set out elsewhere in the Act; for example, s 11 (information about programmes, remedies and services) and s 12 (information about proceedings). Section 12 relates only to information to be provided to the victim about the investigation of an offence against them in the context of ongoing proceedings relating to that offence. Implicit in the wording of that provision is that its purpose is to enable the victim to be apprised of various steps in the proceedings as they occur. Here, the proceeding against B for bigamy of which T was the victim has been concluded.
[29] It seems to me that the provisions of the Victims’ Rights Act are not of central relevance in this context, because:
(a)the New Zealand proceedings in which T was a victim, for the purposes of that Act, have concluded; and
(b)it appears that the information is sought, not for the purpose of accessing information and services available to T as a victim of an offence in New Zealand, but for use in proceedings initiated by her in a different jurisdiction.
Relevance of NZBORA and UDHR
[30] Now I turn to B’s substantive complaint that the District Court did not have adequate regard to his rights, and those of his family, under the NZBORA and the UDHR in making its assessment under the Rules.
[31] Rule 12 sets out the matters which a Judge must consider when determining a request under r 11. The Judge is required to take into account each of the listed matters that is “relevant to the request or any objection to the request”. The District Court Judge found that the most important considerations in r 12 were (a), (b), (c) and (d). 9 B says that the Judge was wrong to emphasise these considerations as there is no hierarchy among the factors listed in r 12. He says the Judge ought to have instead
8 Victims’ Rights Act 2002, s 10.
9 Police v B above n 1, at [20].
emphasised r 12(b) (the right of a defendant in a criminal proceeding to a fair trial) and r 12(c) (the right to bring and defend civil proceedings without the disclosure of any more than necessary for open justice).
[32] While it is correct that, as B submits, that there is no hierarchy of considerations and none of the factors in r 12 have primacy over the others,10 inevitably each application will give rise to different considerations. The relevance of and emphasis on particular r 12 factors will necessarily vary depending on context.
[33] I therefore do not accept that the Judge erred in his assessment of the r 12 factors.
[34]B also points to r 6(1)(a) which provides:
6 General qualifications on all rights of access under rules
(1)Any right or permission given by or under these rules to access a document, court file or any part of the formal court record is subject to –
(a)any enactment, court order, or direction limiting or prohibiting access or publication; and
…
[35]B says that this rule qualifies r 9 and the rules in general.
[36] However, as discussed with B at the hearing, the part of r 6 on which he relies is specifically limited to an enactment, court order, or direction which limits or prohibits access or publication. No such provision is at issue here.
[37] B also points to r 5 under which the Court retains the inherent power to control its own procedure.
[38] Ultimately the nub of B’s complaint is that the Judge did not adequately consider the impact that release of the documents would have on his rights and his
10 Greymouth Petroleum Holdings Ltd v Empresa Nacional del Petróleo [2017] NZCA 490, considering the Senior Courts (Access to Court Documents) Rules 2017.
family members’ rights, given the actual or threatened proceedings against them in India.
[39] The District Court Judge did refer to the UDHR and correctly concluded that two of the rights relied on by B (arts 6 and 10) were being observed “in the context of the law as it applies in New Zealand.”11 As the Judge noted, B had been given an opportunity to have an input into the decision under the Rules. The Judge found, again correctly in my view, that art 11(1) of the UDHR12 did not apply to the issue before him, since he was not required to determine whether B is guilty of an offence.13
[40]B also relies on the NZBORA, in particular on:
(a)s 25(a) (the right to a fair and public hearing by an independent and impartial court);
(b)s 25(e) (the right to be present at the trial and to present a defence);
(c)s 25 (f) (the right to examine the witnesses for the prosecution and to obtain the attendance and examination of witnesses for the defence under the same conditions as the prosecution); and
(d)s 27(1) (the right to the observance of the principles of natural justice by any tribunal or other public authority which has the power to make a determination in respect of that person’s rights, obligations, or interests protected or recognised by law).
[41] Although the Judge did not specifically refer to NZBORA, the relevant rights relied on by B are reflected in the mandatory considerations listed in r 12. I Think it is plain that the NZBORA rights relied on by B were not breached in relation to the bigamy charge brought against him in New Zealand.
11 Police v B above n 1, at [16].
12 Everyone charged with a penal offence has the right to be presumed innocent until proven guilty according to law in a public trial at which he has had all the guarantees necessary for his defence.
13 In any event, in the New Zealand context, international law is given effect through domestic legislation, such as NZBORA (“An Act to affirm, protect, and promote human rights and fundamental freedoms in New Zealand”).
[42] The core of B’s complaint is that the Court did not, or did not adequately, consider the impact of any decision to release the documents to T by reference to his and his family’s rights under the UDHR in respect of the legal proceedings in India. That is a different question altogether, and not one which is reflected in the protections of fair trial rights in respect of New Zealand proceedings which I have found are embodied adequately in the Rules.
[43] Rule 11(2)(c) requires the person seeking access to documents to “give reasons and the purpose for which the access is sought”. The purpose of the request should be articulated in a way that allows the court to weigh the nature of, and reasons for, the request in terms of the r 12 factors, and against the mandatory countervailing factors in r 13 (the protection of confidentiality and privacy and the orderly and fair administration of justice).14
[44] T’s initial request for access did not set out the purpose for which she sought to access the documents. While B’s concerns about the proceedings against him in India were before the District Court Judge in B’s affidavit evidence and submissions, they are not specifically referred to in the judgment. Noting B’s comprehensive submissions, the Judge said “[B] refers to some evidential matters which are not relevant to whether these documents should be released.”15 There is also a tangential reference to B’s claim that he is being blackmailed by persons associated with T. The Judge said that “[w]hether [or not] that is true, very little of the information conveyed in B’s affidavits or submissions is likely to make any difference”.16
[45] It appears that access has been sought by T for the purpose of aiding the criminal proceedings which she has apparently initiated against B in India. I am persuaded that that is a factor relevant to the exercise of the Court’s discretion under r 12 of the Rules. It ought to have been considered directly by the District Court, but it was not. In particular, it may have been relevant to:
14 Fuji Xerox v Whittaker [2018] NZHC 1043, at [16].
15 New Zealand Police v B, above n 1, at [9].
16 At [14].
(a)the protection of other confidentiality and privacy interests (including those of children and other vulnerable members of the community) and any privilege held by, or available to, any person under r 12(d); and
(b)the Court’s ability to consider “any other matter that the Judge thinks appropriate” under r 12(h).
Result
[46] On that basis, I remit the matter back to the District Court for a reconsideration of the request for documents under the District Court (Access to Court Documents) Rules 2017. In doing so, the Court should have appropriate regard to the reasons for T’s request and to any evidence before the Court about the proceedings against B in India. It will be for the District Court to determine its procedure for reconsidering the application and whether an oral hearing is required, exercising its discretion under r 14.
Addendum
[47] After the initial publication of this judgment B sought name suppression. I have granted name suppression on an interim basis and accordingly this judgment has been reissued with the names of the parties anonymised.
Gwyn J
Solicitors:
Crown Law, Wellington
BVA The Practice, Palmerston North
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