Commissioner, New Zealand Police v Hancox
[2021] NZHC 100
•5 February 2021
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CIV 2016-485-1010
[2021] NZHC 100
UNDER the Criminal Proceeds (Recovery) Act 2009 IN THE MATTER OF
an application under sections 46, 50 and 55
BETWEEN
THE COMMISSIONER, THE NEW ZEALAND POLICE
Applicant
AND
DONALD JOHN HANCOX
First Respondent
DENISE ISOBEL HANCOX
Second RespondentBANK OF NEW ZEALAND
First Interested Party
IAG NEW ZEALAND LIMITED
Second Interested Party
On the papers Judgment:
5 February 2021
JUDGMENT OF MALLON J
[1] In 2016 Donald Hancox was convicted for defrauding a secondary school at which he worked of $375,237.45. He was sentenced to two years and three months’ imprisonment. The Commissioner of Police subsequently applied for forfeiture of assets under the Criminal Proceeds (Recovery) Act 2009. Restraining orders were sought and granted pending determination of that application. Forfeiture orders were subsequently granted by consent. The orders involved the sale of a property registered
THE COMMISSIONER, THE NEW ZEALAND POLICE v HANCOX [2021] NZHC 100 [5 February 2021]
in the names of Donald and Denise Hancox and forfeiture of a portion of the proceeds of that sale.
[2] On 23 August 2019 a Stuff reporter (Wendy Murdoch) applied for access to “[t]he Commissioner’s applications, any documents in opposition, affidavit evidence (redacted if necessary), memoranda from counsel, plus minutes, orders, and judgments of the court”. It had earlier been confirmed to Ms Murdoch that she could have access to the court record as of right, but for other material a timetable for submissions was put in place.1
[3] The formal court record comprises judgments, orders or minutes of the Court.2 It does not include applications, notices of opposition, affidavits or memoranda of counsel. In submissions for Mr Hancox, release of this material was opposed on the basis that the applications contained allegations and the factual basis on which they were made was contained in affidavit evidence that was disputed and had not been tested. The settlement reflected that Mr Hancox accepted his share of the proceeds from the sale of the property should be forfeited given his offending (this was less than the sum that had been sought), the Commissioner’s acceptance that it may not have been able to prove its full application at trial, and that Mrs Hancox was an innocent party. The submissions relied on Crimson Consulting Ltd v Berry in support of its position.3
[4] It appears that Mrs Hancox’s position was that Ms Murdoch’s application should await consideration after the sale of the restrained property. This was because there was an interim suppression order applying to the fact that the property being sold was subject to the Criminal Proceeds (Recovery) Act. The Commissioner was neutral on Ms Murdoch’s application except that it agreed with the submissions for Mrs Hancox that it should be considered after the sale of the restrained property and once civil forfeiture had occurred.
1 The Commissioner, The New Zealand Police v Hancox HC Wellington CIV-2016-485-1010, 12 August 2019 at [3].
2 Senior Courts (Access to Court Documents) Rules 2017, r 4.
3 Crimson Consulting Ltd v Berry [2018] NZCA 460.
[5] Ms Murdoch submitted that access should be granted to all the material she sought with redactions for any contested matter. She submitted that, as Mr Hancox had pleaded guilty, at least some of the affidavit evidence must have been accepted. She submitted that the subject matter was already in the public arena (several Stuff and Dominion Post articles had been published about the case) and the Crimson Consulting case was of a different nature with quite different public interest values.
[6] It appears that no formal determination of the media application was made. It appears to have been accepted that, beyond access to the formal record, the application should await the sale to avoid prejudicing the amount received in the sale through publicity that it was a forced sale. The forfeiture order was finalised on 17 April 2020 following the sale of the property.
[7] On 1 December 2020 counsel for Mrs Hancox filed a memorandum setting out her position on the outstanding media application. It is unclear from the file what precipitated this. In any event, Mrs Hancox’s position was effectively that access should be restricted to the formal court record relating to details of the sale of the house. As to any further access, it was submitted that the public interest was higher during the criminal phase of the proceedings than it was now; and that Mrs Hancox, as an innocent party, had the right to move on and to be forgotten now that Mr Hancox had been punished and the family home had been sold to compensate the complainant in the criminal case. Counsel went on to say that if the intended use of the material could be clarified then it may be that any further formal opposition would not be necessary.
[8] Ms Murdoch responded on 2 December 2020. She said that she was content to have access to the formal record, and details as to the address and sale price of the property, the deductions made, the amount that was returned to the college and when that occurred if that information is not included in the formal record. She would also appreciate having access to anything else that might be relevant to understanding the proceeding. She said she did not know why her application was not considered earlier, but the delay in that occurring should not alter how the application was determined. She also said that the information was sought for normal journalistic purposes and it
was not appropriate for counsel or the court to have some role in vetting how the information would be used.
[9] The parties had the opportunity to respond to Ms Murdoch’s position. For Mrs Hancox, her position was maintained. The Commissioner was content to abide the Court’s decision. It appears that no response was received by Mr Hancox. The file was referred to me as Duty Judge this week, this being the first week of the resumption of usual (non-urgent) court business.
[10] It is unclear why Ms Murdoch’s application languished for as long as it did. However, it is apparent from Ms Murdoch’s 2 December 2020 submission that her interest in reporting on the matter remains. There is a public interest in the outcome of the civil forfeiture procedure, including whether the school recovered some or all of their losses from Mr Hancox’s fraud and, if so, when and how much. From my perusal of the file, the formal record appears to provide these details. She is entitled to the formal record as of right.4
[11] If Ms Murdoch wishes to have access to more of the file in order to understand the proceeding, she may do so. I accept that any media publicity about the matter may be a source of stress for Mrs Hancox, but that will be so regardless of whether Ms Murdoch has access to the formal record only or has wider access. I am well satisfied that the principle of open justice and the freedom to seek, receive and impart information outweigh the confidentiality and privacy interests of the parties even though the criminal and civil proceedings have now concluded.5 I also agree with Ms Murdoch that the Crimson Consulting case was of a different nature with quite different public interest values than this one. It may well be that the allegations in the supporting affidavit are not all accepted, but they relate to a criminal case where the factual basis on which the conviction and sentencing proceeded was public. Ms Murdoch is a highly experienced court reporter and will know to take into account any difference between the allegations in the affidavit and that factual basis.
4 Senior Courts (Access to Court Documents) Rules 2017, r 8(1).
5 Rules 12(d)-(f) and 13(c).
[12] Accordingly, Ms Murdoch may have access to the formal court record. If she wishes to have access to the documents to which she originally sought access, in order to assist her to understand the formal record, she may do so.
Mallon J
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