Commissioner of Police v Zagros

[2023] NZHC 220

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2018-409-669

[2023] NZHC 220

BETWEEN

THE COMMISSIONER OF POLICE

Applicant

AND

SAMI ZAGROS

First Respondent

HYPER TRADE LIMITED
Second Respondent

ANZ BANK NEW ZEALAND LIMITED
First Interested Party

ANDRE FRANCIS JAMES

Second Interested Party

Hearing:

(Determined on the papers)

Counsel:

S J Mallett for Applicant

A M S Williams and K E Bucher for First Respondent

Judgment:

17 February 2023

JUDGMENT OF EATON J

[1]    Mr Kenny on behalf of Stuff Limited has applied under the Senior Courts (Access to Court Documents) Rules 2017 for access to “the documents on the file, including any Court issued judgments and approved documentation from the commencement to the conclusion of the case”.

[2]    The application relates to proceedings brought by the  Commissioner  of  New Zealand Police against Mr Zagros seeking an assets forfeiture order or a profit

THE COMMISSIONER OF POLICE v ZAGROS [2023] NZHC 220 [17 February 2023]

forfeiture order. Since these proceedings were issued, Mr Zagros has pleaded guilty and been sentenced for serious drug offending.1

[3]    The present proceedings were resolved by a judgment I issued on 9 February 2023 following a consent memorandum signed on behalf of the Commissioner of Police and by Mr Zagros.2 The application for a profit forfeiture was abandoned and an asset forfeiture order was made.

[4]    Mr Kenny’s application describes his reasons for seeking the access to Court documents being of public interest, given the connection of this case to the criminal prosecution of Mr Zagros.

Legislative framework

[5]    An application to access a Court file is governed by the Senior Courts (Access to Court Documents) Rules 2017.

[6]    Insofar as the present application seeks access to a judgment of the Court, r 8 provides that in a civil proceeding every person has the right to access the formal Court record.3 This is a civil proceeding and the formal Court records includes any judgment, order or minute of the Court.4 I consider Mr Kenny’s application to access evidence filed in support of the applications as having been made under r 11 and, therefore, r 12 is applicable. Rule 12 states:

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

1      R v Zagros [2022] NZHC 2874.

2      Commissioner of Police v Zagros [2023] NZHC 162.

3      Senior Courts (Access to Court Documents) Rules 2017, r 8.

4      Above n 3, r 4.

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.

and; Rule 13 which relevantly 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.

[7]    Ms South, on behalf of the Commissioner, does not oppose the application. Mr Williams, on behalf of Mr Zagros, does not oppose the release of my judgment but opposes the release of the supporting evidence on the grounds that personal information is recorded within the supporting evidence.

Analysis

[8]    Mr Kenny is entitled access to a copy of my judgment and all minutes issued in the process. The judgment records the specific assets the subject of the assets forfeiture order. That order was made by consent.

[9]    Because this case was resolved short of a defended hearing, the supporting evidence filed by the Commissioner has not been tested in Court. Beyond the evidence summarised in the judgment, it has not been necessary for the Court to consider the evidence filed. In those circumstances, I do not consider it appropriate for Mr Kenny to have access to the affidavit evidence.

Result

[10]   Mr Kenny is granted access to all judgments and minutes on the file but access to the supporting evidence is declined.

...................................................

Eaton J

Solicitors/Counsel:

Crown Solicitor’s Office, Christchurch Anselm Williams, Christchurch