Deys v The Queen

The Court of Appeal of New Zealand heard an application by Jared Deys, an appellant, against the Crown, the respondent, for disclosure of excerpts from the Jury Trials Bench Book. The case was heard by Kós P, Miller, and Brown JJ. The appellant’s counsel, B A Crowley, argued that the Bench Book should be disclosed as a matter of natural justice because the Judge had cited it in support of her decision about summing up on the elements of the offence of aggravated robbery. The Crown counsel, C A Brook, responded that the disclosure of the Bench Book was moot because the appeal would focus on whether the Judge gave the correct directions as a matter of law. The court declined the application for disclosure of the Bench Book, holding that it comprises judicial information and it is not authoritative. The court held that the Bench Book serves as a primer for judges and it is not kept current, which makes it unsuitable for disclosure.

The legal issues that the court was required to decide were whether the Bench Book should be disclosed to the appellant’s counsel as a matter of natural justice and whether the Bench Book was authoritative. The court held that the Bench Book is judicial information and it is not authoritative. The court also held that the Bench Book is not kept current and it serves as a primer for judges, who are expected to rely on their own knowledge of the law and the assistance of counsel to ensure that directions are correct.

The court’s reasoning was that a public right to access information relating to the courts and the judiciary is provided for in the District Court Act 2016 and the Senior Courts Act 2016. However, the Bench Book is being sought pursuant to s 236 of the District Court Act, but the provisions allowing for access in both Acts are materially similar. The court drew a distinction between access to court information, which is permitted in accordance with rules of court; access to judicial information, which is not permitted; and access to Ministry of Justice information, which is permitted in accordance with legislation providing for or regulating access to government information. The court held that the Bench Book comprises judicial information, and the categories of judicial information includes “judicial communications not relating to particular cases”. The court also held that the Bench Book is not authoritative and it is apparent from what the Judge said that it follows the authorities which she considered should be followed. Accordingly, it will not assist the argument one way or the other.

The final orders of the court were that the application for disclosure of parts of the Jury Trials Bench Book is declined. The case was heard on the papers and the judgment was given on 30 October 2018 at 11.00 am.