Commissioner of Police v Doyle
[2017] NZHC 3049
•8 December 2017
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2017-404-002149
[2017] NZHC 3049
UNDER the Criminal Proceeds (Recovery) Act 2009 BETWEEN
COMMISSIONER OF POLICE
Applicant
AND
WAYNE STEPHEN DOYLE
First Respondent
HARATA RAEWYN PAPUNI
Second Respondent
Hearing: On the papers Appearances:
M R Harborow and M J Hammer for the Applicant M N Pecotic for the Respondents
Judgment:
8 December 2017
JUDGMENT OF PALMER J
This judgment is delivered by me on 8 December 2017 at 4.00 pm pursuant to r 11.5 of the High Court Rules.
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Registrar / Deputy Registrar
Solicitors:
Meredith Connell, Auckland
COMMISSIONER OF POLICE v DOYLE & OR [2017] NZHC 3049 [8 December 2017]
M Pecotic, Barrister, Auckland
Summary
[1] Radio New Zealand (RNZ) and the New Zealand Herald (the Herald) apply to access documents on the court record and the court file in this proceeding. The judgments of Venning J granting restraining and examination orders are available as of right under r 8, subject to suppression of the addresses of residential properties and the names of children and grandchildren. I decline the application for affidavits filed by the Commissioner of Police which are not yet tested or answered, could give an unbalanced impression of the issues and facts and contain information that may be relevant to potential criminal charges, detrimentally affecting the first respondent’s fair trial rights. The applications may be renewed after 27 April 2018.
The proceeding and application
[2] The proceeding started as without-notice applications for restraining orders and examination orders filed on 20 September 2017, supported by affidavits. The applications were granted by Venning J on 22 September 2017.1 Since then, on-notice applications for restraining orders have been filed and served on the respondents and interested parties. A notice of opposition has been filed. Affidavits in opposition are due to be filed and served on 2 March 2018 and evidence in reply by 27 April 2018. The matter will be called in the week of 30 April 2018.
[3] RNZ and the Herald applied for documents in this proceeding. Initially, RNZ applied for the application by the Commissioner of Police to restrain assets and the judge’s decision. The Herald applied for copies of restraining orders and affidavits filed in support of the restraining orders. Now both organisations also apply for access to seven specified affidavits.
1 Commissioner of Police v Doyle [2017] NZHC 2308; Commissioner of Police v Doyle [2017] NZHC 2309.
Submissions
[4] RNZ and the Herald submit the media has a duty to fairly and accurately report on issues of legitimate public interest which include these proceedings. They rely on s 14 of the New Zealand Bill of Rights Act 1990 (Bill of Rights). They note there has already been significant publication of this matter in the media following a press release issued by the Police and the numerous media stories about the Head Hunters gang. They note the first respondent has not faced any criminal charges for nearly 20 years and state any publication of information in the requested documents “will note that no criminal charges have been laid against the respondents in this matter and are unproven allegations of a civil nature”. They submit the length of time until any trial will diminish the potential for prejudice to fair trial rights from reporting on the evidence. They acknowledge the Court may choose to suppress deeply personal information.
[5] The Commissioner of Police does not oppose the applications but initially suggested they were premature until all parties had been served with on-notice applications and had the opportunity to respond to the media applications. That has now occurred. The Commissioner also notes there is a possibility the Ministry of Social Development may file criminal charges in respect of alleged benefit fraud offending by the first respondent. The Commissioner considers that prospect should not necessarily prevent access to the affidavit evidence altogether.
[6] The first and second respondents oppose the media applications. Ms Pecotic, on their behalf, submits the proceeding is in its early stages and there is a risk premature reporting may present an unbalanced perspective on the parties’ positions. She submits the media would be entitled to have access to the file when the respondent and interested parties have had an opportunity to respond to the allegations. She also submits publication of information relevant to the potential criminal charges could detrimentally affect the first respondent’s fair trial rights. And she submits there are children resident in some of the properties referred to in the proceeding so seeks suppression of the addresses, the names of the second respondent, interested parties and the children and grandchildren.
Law of access to court documents
[7] Section 173 of the Senior Courts Act 2016 provides “any person may have access to court information of a senior court to the extent provided by, and in accordance with, rules of court”. Schedule 2 provides that court information includes the formal court record, the court file, information relating to particular cases and electronic records of hearings. The information sought here is on the formal court record (in respect of Venning J’s judgments) and the court file.
[8] Rule 8(1) of the Senior Courts (Access to Court Documents) Rules 2017 provides that “[e]very person has the right to access the formal court record relating to a civil proceeding”. Under r 11 a person may ask to access any document.
[9] Rule 12 of the Rules sets out the matters that I must take into account in determining the applications here. As well as the nature of, and reasons given for, the request, I must take into account, relevantly:
(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:
…
(h) any other matter that the Judge thinks appropriate
[10] As I recently noted in Berry v Crimson Consulting Ltd, in applying r 12, r 13 provides I must have regard to the point that protection of confidentiality and privacy interests and the orderly and fair administration of justice may require access to
documents be limited before the substantive hearing.2 The point was reinforced by the Court of Appeal in Greymouth Petroleum Holdings Ltd v Empresa Nacional Del Petróleo:3
[25] … during the substantive hearing open justice has greater weight, in particular in relation to documents admitted in evidence. When a court is engaged in hearing a dispute its workings, including documents referred to or relied on, should be open to full scrutiny by all members of the public, unless there are particular and strong reasons to the contrary. The public should be able to follow and understand the hearing process. However, prior to and after the substantive hearing, the importance of public scrutiny is less, as the court is not hearing and resolving the dispute. Prior to the hearing there is no guarantee the case will go to hearing at all. Therefore, open justice has less weight. The parties are entitled to the protection of confidentiality and privacy within reasonable limits, given that they have not at that point aired the dispute in public. After the substantive hearing the need for public scrutiny diminishes in importance as time moves on …
(emphasis added)
[11] Where applications are made prior to substantive hearing, concerns about potential inaccuracies in pleadings can carry substantial weight. In GFD I LLP v Melview (Kawarau Falls Station) Investments Ltd (in Rec) Winkelmann J articulated the reasons for that as follows:4
Parties file applications at an interlocutory stage and typically make various allegations in memoranda and affidavits. Some of those allegations are not responded to by parties in the full confidence that when a matter gets to a substantive hearing, issues which remain relevant can be fully addressed and an appropriate focus brought to bear upon the critical factual and legal issues.
[12]In BNZ Investments v Commissioner of Inland Revenue Wild J stated:5
[33] If the documents in question have not been adduced in evidence, or have not been read by the court at some other (i.e. non-evidentiary) stage, the moral impetus behind “open justice” did not apply, because the material never entered the public domain …
[36] … Rule 3.16 places the focus upon the nature of and reasons for the request and the factors outlined in the rule. This mirrors the approach taken by Courts in the United Kingdom and Australia. It is clear that the principle of open justice is paramount, effectively creating a presumption of disclosure.
2 Berry v Crimson Consulting Ltd [2017] NZHC 3026.
3 Greymouth Petroleum Holdings Ltd v Empresa Nacional Del Petróle [2017] NZCA 490 at [25].
4GFD I LLP v Melview (Kawarau Falls Station) Investments Ltd (in Rec) [2012] NZHC 677, (2012) 21 PRNZ 125 at [16].
5 BNZ Investments v Commissioner of Inland Revenue (2009) 20 PRNZ 311 (HC).
This presumption is easily displaced if the request is for documents that were not read in or read by the Court, because the principle of open justice rests on the premise that such documents have entered the public domain.
Decision
[13] My starting point is the principle of open justice. As the Supreme Court stated in Erceg v Erceg:6
The principle of open justice is fundamental to the common law system of civil and criminal justice. It is a principle of constitutional importance, and has been described as “an almost priceless inheritance”. The principle’s underlying rationale is that transparency of court proceedings maintains public confidence in the administration of justice by guarding against arbitrariness or partiality, and suspicion of arbitrariness or partiality, on the part of courts. Open justice “imposes a certain self-discipline on all who are engaged in the adjudicatory process – parties, witnesses, counsel, Court officers and Judges”. The principle means not only that judicial proceedings should be held in open court, accessible by the public, but also that media representatives should be free to provide fair and accurate reports of what occurs in court. Given the reality that few members of the public will be able to attend particular hearings, the media carry an important responsibility in this respect. The courts have confirmed these propositions on many occasions, often in stirring language.
[14] The Supreme Court also recognised the interests of justice can require departures from the principle of open justice, “but only to the extent necessary to serve the ends of justice” and not just because the material would be embarrassing or unwelcome, unless there are exceptional specific adverse consequences.7
[15] As Wild J stated in BNZ Investments, the principle of open justice effectively creates a presumption of disclosure of information filed in court for the purpose of legal proceedings. As I held in Berry v Crimson Consulting Ltd, that is similar to the principle of availability in the Official Information Act 1982 regarding official information held by the executive branch of government.8 It is reinforced by the right to freedom of expression, including the freedom to seek, receive and impart information, guaranteed by s 14 of the Bill of Rights, as reflected in r 12. The decisions of the judiciary are subject to the Bill of Rights, under s 3.
6 Erceg v Erceg [2016] NZSC 135, [2017] 1 NZLR 310 at [2] (footnotes omitted).
7 At [3] and [13].
8 Berry v Crimson Consulting Ltd, above n 2, at [22].
[16] Here, the judgments of Venning J are available as of right under r 8. I do not consider there is any reason to deny access to them. I do order that the addresses of the residential properties and the names of the children and grandchildren be suppressed, in the interests of protecting their privacy.
[17] However, I do not consider the affidavits filed by the Commissioner should be made available yet. They contain untested and unanswered allegations and could give an unbalanced impression of the issues and facts involved in the proceeding if made available without the affidavits in response. They also contain information that may be relevant to the potential criminal charges referred to by the Commissioner. That information, unanswered and untested, may detrimentally affect the first respondent’s fair trial rights.
[18] On the basis of r 13, and the legal authorities referred to above relating to limits on access to information at early stages of the proceeding, I consider there is sufficiently good reason at this stage of this case to decline the request for access to the affidavits until after the respondents’ affidavits and the affidavits in reply are filed and served. At that point, the media can make further applications which will be considered in the circumstances at the time, which may include further information as to the prospect of criminal charges.
Result
[19] The judgments of Venning J of 22 September 2017 are to be made available to RNZ and the Herald, if they have not been already, subject to suppression of the residential addresses and names of children and grandchildren.
[20] Otherwise the applications are declined. They may be renewed after 27 April 2018.
Palmer J
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