Horopapera v The the Queen - [2022] NZHC 1410

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
Appellants

AND

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].

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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 Horopapera v The the Queen

Details

AGLC: Horopapera v The the Queen [2022] NZHC 1410
Case: [2022] NZHC 1410
Decision Date: 16 June 2022

CaseChat Overview and Summary

The case of Horopapera v The Queen involves an application by the New Zealand Herald for access to documents in the Court file related to appeals against sentence brought by Joseph Horopapera, Duane Simon, and Sharn Kelvin Mahuika. The appellants opposed the application, raising privacy concerns under the Privacy Act 2020. The Crown took a neutral stance on the application.

The primary legal issue was whether the New Zealand Herald should be granted access to the court documents under the Senior Courts (Access to Court Documents) Rules 2017. The court needed to balance the principles of open justice, the protection of confidentiality and privacy interests, and the freedom to seek, receive, and impart information.

The Court held that the Privacy Act did not apply to the provision of access by a judge to court documents. Instead, the application fell under the Senior Courts (Access to Court Documents) Rules 2017. The Court considered the nature of the request, the reasons given, and the relevant matters listed in Rule 12 of the Rules. After a substantive hearing, the protection of confidentiality and privacy interests has greater weight than open justice. However, open justice has greater weight for documents relied upon in the determination.

The Court allowed the New Zealand Herald access to certain documents, such as the general summary of facts, the summary specifically for Mr Simon including the annexed schedule of phone calls, criminal histories for each appellant, and sentence indications for each appellant with redactions for unrelated defendants. However, the Court denied access to confidential documents like the s 27 cultural reports, the psychologist's report prepared for Mr Horopapera, and character references for all appellants. The Court held that the principle of open justice was already satisfied by the judgment, which contained sufficient detail for fair and accurate reporting.

In conclusion, the application was granted to the extent of allowing access to certain documents while denying access to others. The Court balanced the interests of open justice, confidentiality, and privacy, ultimately deciding that the privacy interests outweighed the public interest in accessing the sensitive documents.

Orders