Gosnell v The Queen - [2014] NZHC 2235

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2011-009-014294 [2014] NZHC 2235

GAVIN JOHN GOSNELL

v

THE QUEEN

Application: 22 August 2014

Judgment:

16 September 2014

JUDGMENT OF GENDALL J (Dealt with on the papers)

Introduction

[1] Gavin John Gosnell (Mr Gosnell) was found guilty by a jury and convicted in this Court of murder following a trial that took place between 8 April 2013 and
16 April 2013. Earlier, he had pleaded guilty to one charge of offering indignities to a dead human body.

[2] Mr Gosnell has applied to this Court seeking access to the audio recording of a pre-trial application hearing on 12 February 2013, and the audio recording of his jury trial. These are effectively the notes of evidence in audio format. The application was made in writing to the Registrar by letter dated 14 August 2014, though not received until 22 August 2014.

[3] This application requires determination of two issues:

(a) Does a defendant in a criminal trial have a right to access such material?

GOSNELL v R [2014] NZHC 2235 [16 September 2014]

(b) If so, should Mr Gosnell be granted access?

Outcome

[4] I have reached two general conclusions with regard to the issues in this application:

(a) Notes of evidence (or transcript) are documents within the meaning of the Criminal Procedure Rules 2012 and therefore form part of the Court record.

(b)The Court has a wide discretion to ensure that access is granted only in appropriate circumstances, and only to appropriate documents, on whatever conditions are necessary to achieve this.

[5] Applied to the present case, in the absence of reasons from Mr Gosnell supporting his application and addressing why a printout of the transcript in each case (which I understand he may have) is inadequate, I am not prepared to set in motion the mechanics that would precipitate Mr Gosnell being furnished with the audio recordings he seeks. For clarity, I note that even with reasons, it is far from certain that the information would be provided.

[6] My reasons follow.

Does a defendant in a criminal trial have a right to access the notes of evidence?

The access regime

[7] By r 6.5(1) of the Criminal Procedure Rules 2012, “[t]he prosecutor and the defendant in a criminal proceeding, and their lawyers, may access the court file during or after the completion of the criminal proceeding.” This is subject to the discretionary qualification to that right in r 6.5(2)(a) and the mandatory qualification in r 6.5(2)(b).

[8] The relevant definitions are provided in r 6.1:

access means to search, inspect, or copy under the supervision of an officer of a court

court file means a collection of documents in the custody or control of the court that relate to a criminal proceeding.

Document does not include –

(a) notes by or for a judicial officer for his or her personal use; or

(b) any material that relates to the administration of the court

[9] From the interpretation section, three…

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.

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Details

Case: [2014] NZHC 2235
Decision Date: 16 September 2014

CaseChat Overview and Summary

Gavin John Gosnell was found guilty of murder and pleaded guilty to one charge of offering indignities to a dead human body. He applied to the High Court of New Zealand, Christchurch Registry, seeking access to the audio recordings of a pre-trial application hearing and his jury trial. The application raised two issues: (a) whether a defendant in a criminal trial has a right to access such material; and (b) if so, whether Mr Gosnell should be granted access.

The court concluded that notes of evidence, or transcripts, are documents within the meaning of the Criminal Procedure Rules 2012 and form part of the Court record. The court has a wide discretion to ensure that access is granted only in appropriate circumstances, and only to appropriate documents, on whatever conditions are necessary to achieve this. In this case, the court was not prepared to grant Mr Gosnell access to the audio recordings he sought. The reasons for this decision include the lack of reasons provided by Mr Gosnell supporting his application and addressing why a printout of the transcript in each case (which he may have) is inadequate. The court noted that even with reasons, it is far from certain that the information would be provided.

The court considered the Criminal Procedure Rules 2012 and concluded that the notes of evidence are documents that form part of the Court record. The court also noted that the notes of evidence are prepared by the National Transcription Service, not the Judge, and are widely disseminated for various purposes, such as review on appeal. The court emphasised that the notes of evidence do not contain privileged or confidential information. The court further noted that the Court has a wide discretion to determine whether access is appropriate and whether conditions should be imposed. The court concluded that Mr Gosnell's application for a copy of the audio recordings was declined.

The court directed that Mr Gosnell is to be given a typed printout of the transcripts of his trial and the pre-trial hearing in question, and that these are only to be used by Mr Gosnell for his personal purposes and not disseminated to any third party.

Orders