Jolly v Television New Zealand Limited
[2017] NZHC 334
•03 March 2017
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
CRI-2017-409-000022 [2017] NZHC 334
BETWEEN DARREN ALBERT JOLLY
Appellant
AND
TELEVISION NEW ZEALAND LIMITED
First Respondent
DEPARTMENT OF CORRECTIONS Second Respondent
Hearing: 28 February 2017 Appearances:
R R Ward for Appellant
N Ullal for First Respondent
C Boshier and C Bernhardt for Second RespondentReasons:
03 March 2017
JUDGMENT OF GENDALL J [Reasons for Decision on 28 February 2017]
Introduction
[1] In an oral decision I gave in this Court on 28 February 2017, I dismissed Darren Albert Jolly’s (the applicant) application to appeal or judicially review Judge Robert’s decision to grant an application by Television New Zealand Limited (TVNZ) to allow in-court video recording of his up-coming sentencing hearing at the Christchurch District Court on 8 March 2017. In doing so I indicated that my reasons for this decision would follow. I now set out those reasons.
Background
[2] The applicant has a long history of previous convictions for offending, including sexual offences against females aged 12-16 years and committed generally
JOLLY v TVNZ [2017] NZHC 334 [03 March 2017]
between 2003 and 2004. On 18 April 2012 the applicant became subject to an
Extended Supervision Order (ESO) for 10 years. The ESO was imposed on
9 December 2011 in the Hamilton District Court upon the applicant’s conviction for
two further offences of sexual intercourse with a female aged 12-16.
[3] The terms and conditions of the applicant’s ESO included a special condition:
to comply with the requirements of electronic monitoring, and provide access to the approved residence to the Probation Officer and representatives of the monitoring company, for the purpose of maintaining the electronic monitoring equipment as directed by the Probation Officer.
[4] Since the applicant’s initial 18 April 2012 induction to his ESO, he was further re-inducted on 18 December 2014 and 20 September 2016 after periods of imprisonment. On all occasions he acknowledged his understanding of these conditions, including the consequences of non-compliance.
[5] On 26 December 2016, an alert was received from the electronic monitoring company indicating that the applicant’s Global Positioning Satellite (GPS) tracker strap had been tampered with. Soon afterwards, a field officer and local police visited the last location of the GPS tracking device and confirmed that the applicant had removed it.
[6] He was arrested shortly thereafter and later convicted of breaching his terms of ESO. He is to be sentenced on 8 March 2017.
District Court Decision
[7] On 4 January 2017, TVNZ applied for in-court media coverage of the applicant’s sentencing. TVNZ requested permission to film for television, take still photographs and record audio of the sentencing.
[8] On 25 January 2017, in a decision given by way of hand written note, Judge Roberts held:
The application is granted. I have considered the motion put before me on behalf of Jolly. He has a long history of breaching Court orders. Imprisonment is inevitable. Reasons to oppose not sufficiently compelling.
Jurisdiction
[9] An initial jurisdiction issue arises as to the nature of the present application brought before this Court. Mr Ward, for the applicant, initiated this proceeding by way of “Notice of General Appeal” filed on 12 February 2017. He relies on the “In- Court Media Coverage Guidelines 2015” (the Guidelines) as the basis for this appeal. However, the Guidelines are neither enacted in statute nor implemented in regulations of any kind. While I accept that the Guidelines are persuasive in the principles they lay out, they cannot be used as a basis for an appeal. This was
confirmed in TP v Police where Heath J held:1
[19] The remaining aspect of the framework (though created by Judges rather than the legislature) are the In-Court Media Coverage Guidelines
2013 (the Guidelines). I accept Mr Burns’ submission that those guidelines
do not have force of law. However, they can (and do) inform the principles applicable in this area of law.
[10] In his decision Heath J proceeded to explain that the Guidelines lack legislative force and do not create rights or expectations.2 The source of jurisdiction for an order made under the Guidelines springs from the Court’s inherent jurisdiction to control its own processes. Heath J held:
[22] So far as the District Court is concerned, it is recognised that any Court requires an inherent power to control its processes, so as to prevent abuse. Delivering the judgment of the Court of Appeal in McMenamin, Somers J said at 276:
An inferior Court has the right to do what is necessary to enable it to exercise the functions, powers and duties conferred on its by statute. This is implied as a matter of statutory construction. Such Court also has the duty to see that its process is used fairly. It is bound to prevent an abuse of that process. All is well understood…
[23] The inherent jurisdiction of the High Court is much wider than the District Court’s inherent powers. Nevertheless, it is clear that the High Court cannot exercise inherent jurisdiction in a manner that conflicts with statutes, rules or regulations.
And:
[47] An appeal Court can only act within the limits of the jurisdiction
created for it by Parliament…In the absence of an appeal right, neither the
1 TP v New Zealand Police HC Auckland CRI 2007-092-5673, 24 April 2008.
2 At [20].
prosecution or a defendant can challenge a first instance discretionary order on appeal.
[11] Therefore, it was generally inappropriate to initiate this proceeding by way of an appeal. In granting permission for media coverage, Judge Roberts was exercising his inherent jurisdiction to control court procedures, as opposed to any statutory empowerment.
[12] At [13] and [17] of his submissions before me, however, Mr Ward recognised this and suggested that this matter could proceed by way of an application for judicial review.
[13] I therefore deal with this present application as one seeking judicial review of Judge Roberts’ decision. As such, in order for the applicant to succeed, he must demonstrate that an error of law occurred here in that, in giving his decision, Judge Roberts took into account something irrelevant, failed to take into account something relevant, acted outside the scope of his inherent jurisdiction, or reached a decision no Judge could properly reach.
Submissions
[14] In relying on the Guidelines, the applicant submits that granting media coverage here is inappropriate and will:
(a) impact on the appellant’s personal safety; (b) impact on the appellant’s rehabilitation;
(c) risk the safety of others, namely his family; and
(d) be contrary to the need for a fair trial,
[15] The relevant provisions of the Guidelines hold that:
2. Guideline principles
In making decisions and exercising discretions under these guidelines, the court may have regard to the following matters:
(a) The need for a fair trial;
(b) The desirability of open justice;
(c) The principle that the media have an important role in the reporting of trials as the eye and ears of the public;
(d) Court obligations to the victims of offences; and
(e) The interest and reasonable concerns and perceptions of the parties, victims and witnesses.
[16] The applicant’s review here is based primarily on ground (e). This is that the Judge failed to properly take into account the interest, concerns and perceptions of the parties, victims and witnesses.
[17] In response, TVNZ submits that the starting point here must be the desirability and importance of open justice. It contends that none of the matters raised by the applicant are sufficiently compelling and that his concerns are simply inevitable consequences of his offending.
Analysis
[18] Recently, the Supreme Court in Erceg v Erceg has emphasised the pivotal importance of open justice to our common law court system. A unanimous decision delivered by Arnold J held:3
[2] The principle of open justice is fundamental to the common law system of civil and criminal justice. It is a principle of constitutional importance, and has been described as “an almost priceless inheritance”. The principle’s underlying rationale is that transparency of court proceedings maintain public confidence in the administration of justice by guarding against arbitrariness or partiality, and suspicion of arbitrariness or partiality, on the part of courts. Open justice “imposes a certain self-discipline on all who are engaged in the adjudicatory process – parties, witnesses, counsel, Court officers and Judges”. The principles mean not only that judicial proceedings should be held in open court, accessibly by the public, but also that media representatives should be free to provide fair and accurate reports of what occurs in court. Given the reality that few members of the public will be able to attend particular hearings, the media carry an important responsibility in this respect. The courts have confirmed these propositions on many occasions, often in stirring language.
[3] However, it is well established that there are circumstances in which the interests of justice requires that the general rule of open justice be
3 Erceg v Erceg [2016] NZSC 135.
departed from, but only to the extent necessary to serve the ends of justice. So, a court may order that proceedings be heard in camera, either in whole or in part, in the exercise of the court’s inherent jurisdiction…
[19] The Court’s have continuously recognised that there is a presumption in favour of open justice.4 Unless there are good reasons to refuse access to court proceedings, members of the public should be entitled to observe the administration of justice.5
[20] The Court has a wide discretion in terms of allowing in-court video recording, to be exercised in light of the factors set out in the Guidelines. As with any discretion regarding Court procedure, the fundamental touchstone in the exercise of this discretion is the interests of justice.6 Where on a sentencing, as is the case here, no fair trial issues arise, the Court has recognised the importance of the principle of open justice, and the news media’s role as the “eyes and ears of the public”.7 These factors are also recognised in Guidelines 2(b) and (c), and in a way recognised in the principles of open justice and freedom of expression in s 5 New Zealand Bill of Rights Act 1990.
[21] At [12] of her written submissions before me, Ms Ullal for TVNZ contended:
12. In light of these matters, the case speaks to important questions regarding the administration of justice, the need for the public to be fully informed on how cases are conducted and how an offender’s compliance with extended supervision orders is monitored and/or enforced. There is a legitimate public interest in fulsome reporting on the appellant’s conviction and sentence in those circumstances, as they are relevant to ongoing public confidence in the criminal justice system. The video recording for which TVNZ seeks permissions is an important part of that comprehensive reporting.
In the circumstances prevailing in the present case, I agree.
[22] Turning now to the general review of grounds set out in the applicant’s
Notice of Appeal, as I have noted, these are that “the Judge erred in the use of this
4 Lewis v Wilson & Horton [2003[ 3 NZLR 546 (CA).
5 Television New Zealand v Rogers [2008] 2 NZLR 277 (SC) at [27].
6 R v Crutchley HC Hamilton CRI-2007-068-000083, 16 May 2008 at [6].
7 R v Dixon HC Auckland CRI-2003-092-026923, 19 June 2008 at [5].
discretion by failing to take into account the interests, reasonable concerns and
perceptions of the appellant.”
[23] The appellant’s “concerns” here generally seem to be:
(a) the alleged impact filming would have on his rehabilitation and reintegration into society;
(b)the stress that publication will cause to members of his family, including his elderly parents and other family members who he says are not fully aware of his past; and
(c) the perception that publication would create increased personal danger to him.
[24] No evidence has been provided however in support of these safety, privacy or other general “concerns”. Nor is it explained how they are linked specifically to a video recording of the sentencing hearing, rather than the publication of the applicant’s name and picture (which, it seems, he does not oppose) or indeed any possible showing of archive video footage. I am also unsure how these concerns are relevant to issues over TV cameras being in court, given there has already been many publications online and in the media of the applicant’s name and photos. He is very much in the public domain already, it seems.
[25] I find that none of the matters raised by the applicant are sufficiently compelling to rebut the presumption of openness discussed above, or to otherwise prevail against the public interest in favour of publication here. The matters raised by the applicant, as I see it, are simply the inevitable consequence of his offending.
[26] Concerns for the applicant’s safety and the safety of others, and the impact television media coverage will have on his rehabilitation are not explained or clear. This is not the first time the applicant has been subject to news media coverage. Online articles featuring the extent of the applicant’s offending and his photo are already widely available to the public. It is unlikely, in my view, that the granting of
the media access sought here would cause further hardship beyond what is ordinarily expected to be the consequence of the applicant’s conviction and sentencing in these criminal proceedings.
Result
[27] It is for these reasons that I do not find that Judge Roberts erred in the exercise of his discretion to permit in-court media television coverage of the applicant’s sentencing. The present application for judicial review (and indeed the original “appeal” itself) are dismissed.
...................................................
Gendall J
Solicitors:
Raymond Donnelly & Co
Copies to
Rupert Ward, Barrister, Rangiora
Second Respondent
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