Horopapera v The the Queen
[2022] NZHC 1410
•16 June 2022
IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY
I TE KŌTI MATUA O AOTEAROA
TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE
CRI-2022-463-12 CRI-2022-463-11
CRI-2022-463-21 [2022] NZHC 1410
BETWEEN JOSEPH HOROPAPERA and DUANE SIMON and SHARN KELVIN MAHUIKA
AppellantsAND
THE QUEEN
Respondent
Hearing: On the papers Counsel:
S Mills for Appellant, J Horopapera M Dorset for Appellant, D Simon
J Munro for Appellant, S K Mahuika C Macklin for Crown
Judgment:
16 June 2022
JUDGMENT OF GORDON J
[Access to court file]
This judgment is delivered by me on 16 June 2022 at 10 am.
.....................................................
Registrar / Deputy Registrar
Solicitors: Lance Lawson Ltd, Rotorua
Tucker & Co, Auckland Crown Solicitor, Rotorua
Counsel: M Dorset
J Munro, Barrister, Auckland
HOROPAPERA, SIMON and MAHUIKA v R [2022] NZHC 1410 [16 June 2022]
[1] On 31 March 2022 I gave judgment on appeals against sentence brought by Joseph Horopapera, Duane Simon and Sharn Mahuika (the judgment)1. I allowed Mr Simon’s appeal and dismissed the appeals brought by Mr Horopapera and Mr Mahuika.
[2] The New Zealand Herald (journalist David Fisher) now makes a wide-ranging application for access to the Court file. The application is opposed by the three appellants. The Crown is neutral. The memoranda in opposition were forwarded to the New Zealand Herald. Mr Fisher has filed a letter in reply.
[3]The first part of the application seeks general classes of documents as follows:
… a copy of the summary of facts, supporting affidavits or statements and copies of any schedules or addendum attached, any statements from the Appellants, copies of any surveillance information both audio and visual, copies of the warrants that approved that surveillance, copies of any photographic evidence beyond surveillance imagery, copies of criminal histories of any of the parties, copies of any written submissions put forward by the parties, copies of the district court sentencing indications and any prior judgments or minutes made in the case.
[4] The second part of the application identifies and seeks access to specific documents which were referred to in the judgment.2
[5] The appellants advance a blanket opposition to all documents although counsel for Mr Simon notes that members of the media are commonly given access to the Summary of Facts on which a defendant is sentenced. In particular counsel for the appellants submit there are privacy concerns. As a consequence of counsel articulating their opposition to the application to access the reports prepared under s 27 of the Sentencing Act 2002, the New Zealand Herald has (properly) withdrawn its application in relation to those reports. The other documents in respect of which privacy concerns are raised are a psychological report for Mr Horopapera and character references from family and friends for all appellants. The Privacy Act 2020 is relied on. Counsel for the appellants submit that a “balanced and detailed account”
1 Horopapera v R [2022] NZHC 646.
2 For Mr Horopapera at [36] and [51]; Mr Simon at [90], [92] and [106]; and Mr Mahuika at [127].
can be published by reference to the judgment which was lengthy and detailed (running to 152 paragraphs).
[6] The Privacy Act does not apply to the providing of access by a Judge to court documents. Under s 8 of the Privacy Act, a New Zealand agency (subject to the Privacy Act), does not include a court or tribunal in relation to its judicial functions.3
[7] Rather, the application is brought under and governed by the Senior Courts (Access to Court Documents) Rules 2017. Under r 11 any person may ask to access any document. “Access” means to search, inspect, or copy under the supervision of an officer of the court.4
[8] Rule 12 provides that in determining a request for access under r 11, the Judge must consider the nature of, and the reasons given for, the request and take into account the matters listed in r 12 that are relevant to the request or any objection to the request. The relevant matters in r 12 are:
(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.
[9] Rule 13 sets out the approach to balancing of interests for the three different phases of a hearing. For the third phase, after a substantive hearing, r 13(c) provides:
(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.
[10]The appeals were against sentences imposed in the Rotorua District Court on
3 February 2022 (Mr Simon and Mr Horopapera) and 18 February 2022
3 Privacy Act 2020, s 8(a)(iv). See also R v Tauroa [2020] NZHC 727 at [4].
4 Senior Courts (Access to Court Documents) Rules 2017, r 4.
(Mr Mahuika). The sentencing followed guilty pleas on a range of charges brought following a Police investigation which uncovered a syndicate involved in a large-scale commercial indoor cannabis cultivation and distribution operation in the Bay of Plenty from 2018 to 2020. Mr Fisher says the New Zealand Herald carried coverage of the case previously and proposes again to publish a balanced, detailed account of the matters that were before the Court. He notes that the appellants were involved in a commercial cannabis operation of a scale not commonly seen. The offending took place during a time when wider society was discussing a referendum on cannabis on which the public was asked to vote at the general election held on Saturday 17 October 2020.
[11] First, as far as the reasons for the request, I accept that the New Zealand Herald has a genuine and proper interest in accessing some of the documents. The appeal raises what were, and remain, topical questions which are legitimately in the public interest. But that must be weighed and balanced against the other interests in r 13(c)(ii).
General classes of documents
[12] As noted, the proceedings in the High Court were appeals against sentence following guilty pleas. Because of the guilty pleas most of the documents sought are not on this Court’s file. But even if they were, the New Zealand Herald’s application may well have not succeeded. That is because r 13(c)(i) provides that open justice has greater weight in relation to documents that have been relied on in the determination than other documents. I respectfully adopt the words of Venning J in Mediaworks TV v Blowers where, like the appellants here, the defendant had pleaded guilty:5
[10] The request for access to the statements (including the video statement) on the Court file is a request for information which has never been given in open Court. It is not necessary for the media to have access to those statements to satisfy the important principle of open justice. I do not consider the principle of open justice, and the media’s role as the “eyes and ears” of the public reporting what takes place in Court supports the release of the material.
…
5 Mediaworks TV v Blowers [2014] NZHC 3073 at [10] and [13].
[13] It would be wrong in principle for Mr Blowers, having pleaded guilty on the basis of a summary of facts to be subjected to what would amount to a further trial by the media based on selected extracts of evidence never presented in Court.
[13] The same applies here. The above extracts will be relevant when I come to consider particular documents requested in relation to each appellant.
[14] The documents in the general list which are on the Court file are: a general summary of facts and a second summary of facts specifically for Mr Simon which annexes a schedule of phone calls; criminal histories for each appellant; written submissions by counsel for each appellant and the Crown in the appeal; the District Court sentencing indications and a minute of this Court dated 10 February 2022.
[15] The minute of 10 February 2022 is procedural only and access to it will not advance the interests of open justice. I will deal with the submissions of counsel when I consider the documents sought in relation to each appellant.
[16] Out of the general class of documents, the New Zealand Herald may have access to:
(a)The general summary of facts and the summary of facts specifically for Mr Simon including the annexed schedule of phone calls;
(b)Sentence indications for each appellant all dated 16 April 2021.6 The indication for Mr Mahuika included indications for two other defendants. The parts of the indication relating to the two other defendants are to be redacted. That is paragraphs [3]–[8] and [19] – [23]); and
(c)Criminal histories for each of the three appellants.
6 The prohibition in s 63 of the Criminal Procedure Act 2011 on publishing information about a request for a sentence indication or that a sentence indication has been given does not apply as the appellants have been sentenced.
Section 27 reports
[17] In R v Tauroa, Nation J refused a media outlet access to a s 27 cultural report prepared in advance of sentencing saying:7
[13] The cultural report prepared for Mr Tauroa’s sentencing contains a substantial amount of extremely personal and private information. Where relevant, that information was presented in open court and can be found in the sentencing notes. As articulated in Blowers and Rahman, the principle of open justice has therefore already been satisfied. Given the highly personal nature of the cultural report, the privacy interests of Mr Tauroa must outweigh any considerations of open justice and freedom of information.
[14] I am also satisfied that the right to privacy is more significant in this case than the public interest. Given the extent to which the report is relevant has already been discussed in the submissions and sentencing notes, there can be no public interest in viewing the balance of that report. It would not inform about the process of justice. It would simply provide highly personal information about an individual. That information, however interesting it may be to the public, would not benefit the public interest if it were released.
[18] As noted the New Zealand Herald no longer pursues its application for the s 27 reports. For the avoidance of doubt I direct that the s 27 reports should not be accessed.
[19] Although the New Zealand Herald does not pursue the application for the s 27 reports I have set out the passages from Tauroa above because they apply equally to the application for access to the psychologist’s report of 16 July 2021 prepared in relation to Mr Horopapera which I address next.
Psychologist’s report of 16 July 2021
[20] This report prepared for Mr Horopapera contains information which is of the same sensitive nature as that contained in the s 27 reports. It is information which is, by nature, confidential. Further, the heading of the report is “Confidential Psychological Report”. The opening paragraph records “The information contained in this report is confidential …”.
[21] In R v Rahman media organisations including the New Zealand Herald sought access to expert reports on fitness to stand trial (that is psychological reports). Woolford J declined the application. The Judge considered that the principle of open
7 R v Tauroa, above n 3, at [13] and [14].
justice was satisfied by access to the judgment which contained extracts from and details referring to expert reports, which he considered was sufficient to ensure fair and accurate reporting. The Judge said of the reports:8
… the reports on the court file and other documents contain extensive personal information about Ms Rahman. There are many expert reports, close to 30, and some of these are very detailed. Ms Rahman’s privacy in this regard should be respected. Especially given there has not been a trial.
[22] In two earlier cases (decided under r 6.10(2) of the Criminal Procedure Rules 2012 before the Senior Courts (Access to Documents) Rules 2017 came into effect) the Court was equally disinclined to release mental health reports.9
[23] For the above reasons the New Zealand Herald may not have access to the psychologist’s report of 16 July 2021 prepared for Mr Horopapera.
Specific documents – Mr Horopapera
[24] The New Zealand Herald seeks access to documents listed in [36] and Mr Horopapera’s statement referred to in [51] of the judgment. However, although documents are listed in [36], apart from a discussion in the judgment of the s 27 report and the psychologist’s report I did not rely on the other documents in my decision.
[25] As far as the character references are concerned, counsel for the appellants submit that justice would be stymied if the necessary character evidence was not put before the Court for fears the media would access and publish it. I do not accept that statement as a general principle. The writers must be taken to have known that references or letters for those appearing for sentence will form part of the Court file and may in fact be referred to in open court. However, in this case they were not relied upon in the judgment. There is also the fact that a number of the letters contain sensitive and private information not only about Mr Horopapera but about others. For the above reasons the New Zealand Herald may not have access to the documents referred to in [36] of the judgment.
8 R v Rahman [2018] NZHC 1808 at [38].
9 R v Q & M [2015] NZHC 245; and R v R HC Auckland CRI-2014-044-2080, 27 June 2014 referred to in R v Tauroa, above n 3, at [9].
[26] The document referred to at [51] of the judgment is the statement Mr Horopapera made to the Police. That document is not on the High Court file. Even if it were, I would be disinclined to give access to it for the reasons given in [12] above.
[27] The New Zealand Herald may have access to the written submissions on behalf of Mr Horopapera and for the Crown in response – but with any details from the s 27 cultural report and psychologist’s report redacted from both sets of submissions. There is sufficient detail by way of summary in the judgment.
Specific documents – Mr Simon
[28] I have already addressed the request for the schedule of phone calls annexed to the summary of facts (access to be provided) and the s 27 report (access refused).
[29] Other documents sought are references or letters of support. For the same reasons as referred to above in relation to Mr Horopapera, in carrying out the required balancing under r 13(c) I do not give access to any references or letters in support in relation to Mr Simon.
[30] The New Zealand Herald may have access to the written submissions for Mr Simon and the Crown in response – but, as with the submissions for Mr Horopapera – any details from the s 27 report are to be redacted. The necessary content, for open justice purposes, is in the judgment.
Specific documents – Mr Mahuika
[31] The specific documents sought are the character references mentioned at [127] of the judgment.
[32] In the judgment, at [143] I acknowledged the support that Mr Mahuika had. Beyond that there was no detailed discussion of the references that would tip the balance in favour of access when weighed against confidentiality and privacy interests in r 13(c). The New Zealand Herald may not have access to these documents.
[33] For completeness, I record that I do not accept the submission made on behalf of Mr Mahuika that because his appeal was unsuccessful the public has a more limited interest in the documents filed in support of his appeal than would have been the case if his appeal had been successful. This is a flawed argument. Whether or not an appeal is successful has nothing to do with the public’s interest and appreciation of the matters before the Court.
[34] The New Zealand Herald may have access to the written submissions for Mr Mahuika and the Crown in response – but, as with the submissions for Mr Horopapera and Mr Simon – any details from the s 27 report are to be redacted. The necessary content, for open justice purposes, is in the judgment.
Result
[35] The application is granted to the extent set out in [16], [27], [30] and [34]. The application is otherwise refused.
Gordon J
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