In the Matter of Senior Courts (Access to Court Documents) Rules 2017 And an application by Feroze Brailsford for access to court file

[2023] NZHC 2855

NOTE: THE NAME AND IDENTIFYING DETAILS OF THE PERSON TO WHOM THIS DECISION RELATES HAVE BEEN ANONYMISED TO

PROTECT THEIR PRIVACY INTERESTS

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

I TE KŌTI MATUA O AOTEAROA TE PAPAIOEA ROHE

CRI-2009-454-13

[2023] NZHC 2855

IN THE MATTER	of Senior Courts (Access to Court Documents) Rules 2017
AND	an application by Feroze Brailsford for access to court file

Hearing:	On the papers
Counsel:	F D G Brailsford for Applicant
Judgment:	11 October 2023

JUDGMENT OF RADICH J

Introduction

[1]    Mr Brailsford, counsel for M, has applied  for access to  court documents  in R v Shepherd – CRI-2009-454-013 – a case involving two counts of sexual violation under s 128 of the Crimes Act (the Crimes Act) and two counts of indecent assault on a boy under s 141 of the Crimes Act (now repealed). The documents sought are described in the following way:

We wish to access records related to [M’s] testimony and the sentencing judgment.

Re Application by Feroze Brailsford for access to court file [2023] NZHC 2855 [11 October 2023]

[2]    The documents are sought on the basis that Mr Brailsford’s firm is acting for M in relation to abuse he is alleged to have suffered while attending Hato Petera, including abuse that is alleged to have been perpetrated by Mr Shepherd.

Law

[3]    Access to court documents is governed by the Senior Courts (Access to Court Documents) Rules 2017.

[4]    In criminal proceedings, every person has the right to access the permanent court record; any published list providing notice of a hearing; any judgment, order, or minute of the court given in the proceeding, including any records of the reasons given by a judicial officer; and any judicial officer’s sentencing notes.1 Rule 8(4) provides exceptions to this right of access.

[5]    If the documents sought are not of a type to which a right to access is provided, a person may apply to access a document on the court file under r 11. A Judge may grant the request with or without conditions after considering the nature of the request, the reasons given for it and each of the matters set out in r 12 that are relevant to the request or any objection to it. Those matters are:

(a)the orderly and fair administration of justice:

(b)the right of a defendant in a criminal proceeding to a fair trial:

(c)the right to bring and defend civil proceedings without the disclosure of any more information about the private lives of individuals, or matters that are commercially sensitive, than is necessary to satisfy the principle of open justice:

(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:

(g)whether a document to which the request relates is subject to any restriction under rule 7:

1      Senior Courts (Access to Court Documents) Rules 2017, r 8(3).

(h)any other matter that the Judge thinks appropriate.

The requested documents

[6]    There is a general right of access to the “sentencing judgment” under r 8(3). None of the exceptions in r 8(4) apply here. Accordingly, I order the sentencing judgment to be made available to Mr Brailsford.

[7]    By “records related to [M’s] testimony” it is understood that the applicant is referring to M’s written statement of evidence and to the transcript of the evidence that he gave at the two trials that took place.2

[8]In addressing the matters to be considered in r 12:

(a)No issues arise as to the orderly and fair administration of justice, the right to a fair trial or the right to bring and defend civil proceedings.

(b)No privacy interests arise and no issues arise under s 203 of the Criminal Procedure Act 2011 given the solicitor/client relationship between Mr Brailsford and M.

(c)The principle of open justice and the freedom to seek, receive and impart information – matters that are both advanced in granting the request.

[9]    For these reasons, I am satisfied that it is appropriate for a copy of the following documents to be given to Mr Brailsford:

(a)M’s written statement of evidence of 13 March 2008.

(b)M’s written statement of evidence of 4 June 2009.

(c)Those parts of the notes of evidence of the first trial, which commenced on 2 June 2009, that transcribe the evidence given by M.

2      Following a hung jury in the trial that commenced on 2 June 2009, a retrial commenced on 26 July 2010.

(d)Those parts of the notes of evidence of the retrial of the proceeding, which commenced on 26 July 2010, that transcribe the evidence given by M.

Radich J

Solicitors:

Cooper Legal, Wellington for Applicant