Drayton v Parker HC Christchurch CRI 2010-409-55

[2010] NZHC 686

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2010-409-000055

JOANNE DRAYTON

Applicant

v

PAULINE PARKER JULIET HULME Respondents

Judgment:      10 May 2010

JUDGMENT OF HON. JUSTICE FRENCH

Introduction

[1]      Associate Professor Drayton has asked the Court for permission to search trial transcripts of the 1954 Parker/Hulme murder trial.

[2]      Usually,  such  an  application  would  be  dealt  with  under  the  Criminal

Proceedings (Access to Court Documents) Rules 2009.

[3]      However, there is a complication in this case because of the fact that in 1988 the relevant Court file was transferred to National Archives, now known as Archives

New Zealand.

DRAYTON V PARKER AND ANOR HC CHCH CRI-2010-409-000055  10 May 2010

[4]      Rule 4(1) of the Access to Court Documents Rules specifically provides that the Rules only “apply to documents while they are in the custody and control of the court and until they are transferred to Archives New Zealand”.

[5]      That raises a preliminary jurisdictional issue as to whether the Court has jurisdiction to consider Associate Professor Drayton’s application, or whether she is required to direct her request elsewhere.

[6]      The parties were given an opportunity to make submissions.   I record that submissions were received from Mr Lange of the Christchurch Crown Solicitor’s office.

[7]      This judgment is limited only to the issue of jurisdiction.  It does not address the merits of the Associate Professor’s application.

Discussion

[8]      There is no doubt the file is a public record.

[9]      At the time the file was transferred to National Archives, the 1957 Archives

Act was in force.

[10]     Section 20(1)(c) of that Act provided:

(1)Except as may be otherwise provided in any Act, and subject to the conditions under which any archives are deposited, all archives deposited in the National Archives shall be available for public reference in accordance with regulations made under this Act:

Provided that—

…

(c)Any public archive deposited in the National Archives by the Department of Justice or the Department for Courts and containing any information relating to the trial of any particular person may be inspected only by a person authorised in writing in that behalf by the Minister of the Crown who is responsible for the Department for Courts:

[11]     The  effect  of  that  provision  was  that  anyone  wanting  to  search  the Parker/Hulme file would have had to obtain written authority from the Minister of Justice (the Department for Courts is now known as the Ministry of Justice).

[12]     In 2005, the Archives Act was repealed and replaced by the Public Records

Act 2005.

[13]     The new Act has transitional provisions which provide:

65       Transitional provisions

(1)       Despite section 66(a), the agreements or other matters referred to in subsection (2) that are in force immediately before the commencement of this Act continue in force in the manner specified in that subsection.

(2)       The agreements and other matters to which subsection (1) applies are—

…

(g)       in the case of a public archive in the possession of Archives New Zealand, restrictions on inspection imposed under section 20(1)(b), (c), or (ca) of the Archives Act 1957, as if the public archive had been classified under section 43(1)(b) as a restricted access record in accordance with section 44(3)

[14]     The   condition   of   Ministerial   approval   imposed   in   respect   of   the Parker/Hulme file was a restriction on inspection imposed under s 20(1)(c) of the Archives Act 1957 within the meaning of s 65.   It follows from s 65 that the condition remains in force and that the Parker/Hulme file is deemed to be a restricted access record under s 44 of the 2005 Act.

[15]     That does not mean, however, that Associate Professor Drayton must seek permission from the Minister.   Section 44(4) of the 2005 Act provides that in the case of a restricted access record, the administrative head of a controlling public office may at any time, in consultation with the Chief Archivist, vary or withdraw a condition.  In 2008, after consulting with the Chief Archivist, the General Manager for Higher Courts (acting as the delegate of the Chief Executive of the Ministry of Justice)  signed  an  Access  Authority  which  provides  inter  alia  that  requests  for

records relating to criminal matters between 60 and 100 years old are to be referred to the Court for determination.

[16]     “Controlling public office” is defined by s 4 of the Act as:

(i)in relation to a public record, the public office that controls the public record:

(ii)      in relation to a public archive, the public office that has power to determine conditions of access to the public archive

[17]   I am satisfied, having regard to this definition, that in the case of the Parker/Hulme file the “controlling public office” is the Ministry of Justice because of the previous designation under the 1957 legislation.  Equally, I am satisfied that the General Manager of Higher Courts, as the delegate of the Chief Executive, was “the administrative head” of the controlling public office for the purposes of s 44(4).  It follows that the 2008 Access Authority applies to the file and confers jurisdiction on the Court.

[18]     Whether  the  Ministry  is  also  the  controlling  public  office  in  respect  of criminal files transferred to National Archives after the 1957 Act was repealed is not an issue that it is necessary for me to decide.  In his submissions, Mr Lange raised an interesting argument that following the Supreme Court decision of Mafart & Prieur v TVNZ [2006] NZSC 33 (at [20]), the records may arguably remain under the control of the Court’s inherent supervisory power notwithstanding the transfer. Therefore, in the case of those post-2005 files it is the Courts that are the controlling public body, and their administrative head (the Chief Justice or the Chief Judge) the only person with authority to classify the records or vary conditions of access. If correct, that would mean the 2008 Access Authority may not apply to criminal files transferred after the 2005 Act came into force. I express no view on the correctness or otherwise of that analysis. As I have said, it is not an issue that is necessary for me to decide because of the specific 1957 provision which in my view puts the matter in the case of the Parker/Hulme file beyond all doubt.

Outcome

[19]     The Court does have the power to consider Associate Professor Drayton’s application.

[20]     That jurisdiction is derived from s 44(4) of the Public Records Act 2005 and the 2008 Access Authority.

[21]     There will now be an opportunity for Ms Parker and Ms Hulme to advise the

Court whether they have any objections to the application and if so on what grounds.

[22]     I  direct  that  any  submissions  regarding  the  substantive  merits  of  the application are to be filed by 31 May 2010.

[23]     Finally, I would like to express the Court’s gratitude to Mr Lange for his most helpful and detailed submissions.

Solicitors:
Crown Solicitor’s Office, Christchurch