Dotcom v Attorney-General - [2012] NZHC 2000

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV 2012-404-001928 [2012] NZHC 2000

UNDER the Judicature Act 1972

IN THE MATTER OF an application for judicial review

BETWEEN KIM DOTCOM First Plaintiff

ANDFINN BATATO Second Plaintiff

ANDMATHIAS ORTMANN Third Plaintiff

ANDBRAM VAN DER KOLK Fourth Plaintiff

ANDATTORNEY-GENERAL First Defendant

ANDTHE DISTRICT COURT AT NORTH SHORE
Second Defendant

Hearing: 8 August 2012

Counsel: P J Davison QC, W Akel and R Woods for First Plaintiff
GJSR Foley for Second, Third and Fourth Plaintiffs
J C Pike, A M Toohey and FRJ Sinclair for First Defendant

Judgment: 8 August 2012

Reasons: 9 August 2012

REASONS FOR RULING OF WINKELMANN J

[on (a) first defendant’s application for suppression/non-publication orders, (b)
media applications for access to Court records]

DOTCOM V ATTORNEY-GENERAL MEDIA HC AK CIV 2012-404-001928 [8 August 2012]

This judgment was delivered by me on 9 August 2012 at 4.30 pm pursuant to
Rule 11.5 of the High Court Rules.
Registrar/ Deputy Registrar

[1] The plaintiffs argue that the New Zealand Police used unreasonable force in the search of the Dotcom mansion. The Police used both the Special Tactics Group (STG) and the Armed Offenders Squad (AOS) in effecting the arrest of Mr Dotcom and others and the search. For the purposes of this hearing the Police have disclosed documents, and film taken by both the Dotcom CCTV system and by a helicopter which was used by the Police to deliver part of the force involved in search, seizure and arrest at the Dotcom address. The Police sought orders suppressing parts of that evidence.

[2] The orders sought by the Police were as follows:

1.Non-publication of all details that could lead to the identity of any member of the AOS or STG.

2.Suppressing any facial features or identifying details of any AOS or STG staff which includes any in Court filming and faces shown on video recording and CCTV footage and call signs used in the helicopter video footage.

3.Non-publication of two documents identified, namely request for assistance and STG appreciation documents.

[3] At the conclusion of the hearing of this application, I made orders granting part only of the application and said that I would give my reasons today. These are my reasons.

[4] In civil proceedings, there is an onus on a party to establish a proper foundation for a confidentiality order, just as there is in criminal proceedings. This follows from the principle of open justice - the principle that justice should be administered in public, and subject to the full scrutiny of the media. This has been
affirmed in many New Zealand decisions in the criminal area: R v Liddell,[1] and R v

B.[2] The principle is no less important in civil proceedings than it is in criminal proceedings[3] (although different considerations may well be engaged in the civil jurisdiction than are engaged in criminal proceedings).

[1] R v Liddell [1995] 1 NZLR 538.

[2] R v B [2008] NZCA 130.

[3] Broadcasting Corporation…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Dotcom v Attorney-General

Details

AGLC: Dotcom v Attorney-General [2012] NZHC 2000
Case: [2012] NZHC 2000
Decision Date: 8 August 2012

CaseChat Overview and Summary

This case involved an application for judicial review by Kim Dotcom and others against the New Zealand Attorney-General and the North Shore District Court. The plaintiffs challenged the use of force by the New Zealand Police during a search of Dotcom's residence, and sought access to evidence, including CCTV footage and documents, to support their claims. The Police applied for suppression orders to prevent the publication of certain details that could identify members of the Special Tactics Group (STG) and the Armed Offenders Squad (AOS). The media also sought access to court records.

The legal issues before the court were whether the court should grant suppression orders to protect the identities of STG and AOS members, and whether the media should be granted access to the evidence. The court had to balance the principles of open justice and the public interest in holding the police accountable, against the need to protect the safety and operational effectiveness of the STG and AOS.

The court found that there was a legitimate public interest in the effective and safe operation of the STG and AOS, and in protecting the safety of their members. However, the court also recognised that the disclosure of certain details could endanger the officers and compromise the planning and execution of future operations. The court concluded that suppression orders should be granted in respect of the identification of STG and AOS members, and the suppression of certain call signs and parts of two documents. The court found that the public interest in the effective and safe operation of the STG and AOS outweighed the public interest in the open and public conduct of proceedings in this case.

The court also made orders that the media have access to the exhibits produced at the hearing, but with non-publication orders in relation to call signs (except Zero Alpha) and any identifying particulars in respect of members of the STG and AOS. The plaintiffs agreed to provide copies to the media due to logistical difficulties in allowing access to those exhibits during the course of the hearing. The Attorney-General indicated that they may appeal the effect of the court's decision in relation to the two documents, and the court made interim orders continuing the non-publication orders in respect of those two documents until further order of the Court.

Orders