Commissioner of Police v Chan
[2019] NZHC 1864
•2 August 2019
NOTE: PUBLICATION OF THE ADDRESS OF THE PROPERTY RESTRAINED IS PROHIBITED: SEE [18] AND [20] OF THIS JUDGMENT. IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2019-404-000745
[2019] NZHC 1864
UNDER the Criminal Proceeds (Recovery) Act 2009 BETWEEN
COMMISSIONER OF POLICE
Applicant
AND
DA SHENG CHAN
First Respondent
LU LU
Second RespondentDA SHENG CHAN, LU LU and OAKLAND TRUSTEES LIMITED in their
capacity as Trustees of the FTLM Trust Third Respondents
Hearing: 1 August 2019 Counsel:
K Eastwood for the Applicant K E Hogan for the Respondents
Judgment:
2 August 2019
JUDGMENT OF EDWARDS J
This judgment was delivered by me on 2 August 2019 at 11.00 am pursuant to r 11.5 of the High Court Rules.
Deputy Registrar
Counsel: K E Hogan, Auckland
Solicitors: Meredith Connell (Office of the Crown Solicitor), Auckland
Copy To: S Hurley, Auckland
COMMISSIONER OF POLICE v CHAN [2019] NZHC 1864 [2 August 2019]
[1] Mr Hurley, a court reporter with the New Zealand Herald, applies for access to the court file. Specifically, he seeks access to the Commissioner of Police’s application for restraining and other orders, judgments, orders, and minutes on the court file. Access is sought so that a fair and accurate news report of the Commissioner’s application may be made.
[2] The Commissioner does not oppose the application, but both respondents do. The first respondent, Mr Chan, is currently facing criminal charges. He submits that his fair trial rights may be prejudiced by detailed publicity of this proceeding. The second respondent, Ms Lu, does not face criminal charges, but nevertheless opposes the application on the basis that she, Mr Chan, and their dependents are entitled to privacy.
[3] This proceeding is a civil proceeding. Restraining orders were made on 20 May 2019. In accordance with a joint memorandum of counsel dated 14 June 2019, orders relating to the sale of a house, and an assets forfeiture order in respect of some cash, were made on 17 June 2019. Applications for forfeiture orders over the other property have yet to be made, and are unlikely to be made prior to resolution of the criminal charges faced by Mr Chan.
Legal framework
[4] The application is governed by the Senior Courts (Access to Court Documents) Rules 2017 (Access Rules). Rule 8(1) provides that every person has a right to access the formal court record relating to a civil proceeding.
[5] The formal court record is defined to include all the documents sought by Mr Hurley (judgment, order, minutes of the court), with the exception of the Commissioner’s application. The joint memorandum of counsel dated 14 June 2019 falls outside this definition also.
[6] Rule 5(1) of the Access Rules provide that the rules do not affect the court’s inherent power to control its own proceedings. Rule 5(2) specifically provides that a Judge may direct that judgments, orders, documents or files of any kind may not be accessed without the permission of the Judge.
[7] Rule 12 sets out factors to be taken into account in considering a request for access. That rule provides:
12 Matters 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.
[8] As Woolford J confirmed in Commissioner of Police v Li, none of the r 12 factors have primacy, and there is no hierarchy of considerations.1 The considerations are mandatory to the extent they are relevant, but not all matters will necessarily be relevant.
[9] The approach to balancing the r 12 factors depends on the stage of the proceeding. Rule 13 provides as follows:
(a)Approach to balancing matters considered
In applying rule 12, the Judge must have regard to the following:
1 Commissioner of Police v Li [2018] NZHC 1566 at [24] citing Greymouth Petroleum Holdings Ltd v Empresa Nacional des Petróleo [2017] NZCA 490, [2017] NZAR 1617 at [21].
(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.
Analysis
[10] As Ms Lu does not face criminal charges, her opposition to the application relies on:
(a)the right to defend civil proceedings without the disclosure of any more information about the private lives of individuals than is necessary to satisfy the principle of open justice; and
(b)the protection of other confidentiality and privacy interests (including those of her children).
[11] I do not consider that these interests outweigh the right in r 8 to access the formal court record. There is a strong public interest in knowing the outcome of civil proceedings for restraint and forfeiture of property that weighs in favour of disclosure in this case. Disclosure of documents on the court record is the minimum required to satisfy the principle of open justice.
[12] Furthermore, there are no specific confidential or privacy interests which would warrant access to those documents being declined. The only exception to that
is the address of the property the subject of the sale order. Ms Lu, and her children, currently reside in that family home. Publishing that detail is not necessary to satisfy the principle of open justice in this case. Mr Hurley says, as a matter of decency, the New Zealand Herald would not publish that in any respect and he does not oppose a condition prohibiting publication of the address.
[13] In addition to the grounds raised by Ms Lu, Mr Chan says that granting the application will compromise his fair trial rights. Mr Chan faces charges relating to the manufacturing and possession of a class A drug and a charge of participating in an organised criminal group. His trial in the District Court is set down for March 2020.
[14] The opposition to the application would be on stronger grounds if access was sought to the affidavits on file. Those affidavits contain allegations against the respondents that have yet to be tested. However, Mr Hurley does not seek access to these affidavits. This distinguishes this case from others where access to affidavits was declined in similar circumstances.2
[15] Nevertheless, there is a concern that reporting on the orders made in this proceeding may be misconstrued as admissions of criminal offending by the respondents. Ms Hogan submits that this concern is compounded in this case because Palmer J’s sealed orders record them as being made by consent, rather than being unopposed. Further, the orders themselves do not accurately reflect the pragmatic approach adopted by the respondents in this proceeding, while still maintaining their opposition to the allegations of criminal offending.
[16] I consider that these concerns are met by the obligation on media to ensure reports are fair and balanced. Mr Hurley indicates that the difference between the civil and criminal proceedings will be drawn in his article, and he intends to reiterate that Mr Chan has pleaded not guilty to the criminal charges. To assist in ensuring that the reporting is accurate, fair and balanced, I consider disclosure of the Commissioner’s application should also be made. The orders and minutes on the court file need to be understood in context, and disclosure of the Commissioner’s application will provide the necessary information to ensure that occurs.
2 Commissioner of Police v Doyle [2017] NZHC 2308.
[17] The specific concerns about the basis upon which the orders were made may be addressed by disclosure of the joint memorandum of counsel dated 14 June 2019. That joint memorandum records the respondents’ position and gives further context as to why that position was taken. The balancing of the r 12 factors weighs in favour of disclosure of this joint memorandum also to ensure fair, balanced and accurate reporting.
[18] It follows that the application for access should be granted and the joint memorandum of counsel disclosed in addition. Access is granted on the condition that there is no publication of the address of the property restrained.
Result
[19]Mr Hurley is granted access to the following documents:
(a)Minute of Venning J (dated 20 May 2019);
(b)On notice application for restraining and further orders (dated 29 April 2019);
(c)Joint memorandum of counsel (dated 14 June 2019);
(d)Minute of Palmer J (dated 17 June 2019);
(e)Sale order (dated 17 June 2019);
(f)Assets forfeiture order (dated 17 June 2019).
[20] Access is granted on the condition that there is no publication of the address of the property referred to in these documents.
Edwards J