Jones for NZME

[2024] NZHC 2171

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

T426/2000

[2024] NZHC 2171

UNDER

Senior Courts (Access to Court Documents) Rules 2017

IN THE MATTER OF

An application for access to court documents

BETWEEN

MURRAY JONES for NZME

Applicant

Hearing:	On the papers
Judgment:	5 August 2024

JUDGMENT OF O’GORMAN J

[Application for access to court documents]

This judgment was delivered by me on 5 August 2024 at 2.30 pm pursuant to r 11.5 of the High Court Rules 2016.

Registrar/Deputy Registrar

…………………………………

Re JONES FOR NZME [2024] NZHC 2171 [5 August 2024]

[1]    Mr Murray Jones has applied to access a criminal file for the purposes of an “investigation into conduct of religious organisation in relation to certain crimes”. As the email address for Mr Jones is from an “NZME” domain, I assume that the application is made for journalistic or media purposes connected to New Zealand Media and Entertainment.

[2]    The file in question has been retrieved from Archives New Zealand. It relates to a criminal jury trial that resulted in a sentence imposed on 12 September 2000. The offending in question occurred some 20 or so years earlier, around 1979 and 1980.

[3]The request is for:

(a)the Judge’s summary;

(b)sentencing notes; and

(c)the list of charges.

Senior Courts (Access to Court Documents) Rules 2017

[4]    The Senior Courts (Access to Court Documents) Rules 2017 (the Rules) govern access to documents transferred from Archives New Zealand to the court.1

[5]    Rules 8(3) and (4) govern general access to files relating to a criminal proceeding. Rule 8(3) lists certain court documents in criminal proceedings that can be accessed as of right by every person. These are:

(a)the permanent court record under pt 7 of the Criminal Procedure Rules 2012;

(b)any published list providing notice of a hearing;

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

(c)any judgment, order, or minute of the court given in the proceeding, including any records of the reasons given by a judicial officer; and

(d)any judicial officer’s sentencing notes.

[6]    Rule 8(4) lists certain court documents in criminal proceedings that can only be accessed by leave of a Judge. These include “any document containing evidence of a complainant…”.2

[7]    Rule 11 applies if a person is not entitled to access a document relating to a proceeding or an appeal under rr 8 or 9. In those cases, the Registrar must promptly give a copy of the request to the parties to the relevant proceeding or appeal, or to their lawyers, subject to the power of a Judge to dispense with that requirement if it would be impractical. Rule 12 sets out the matters to be considered in determining a request for access under r 11.

Application to facts

[8]In this case, there are two documents that fall within the request:

(a)the record of the result of hearing, listing the offences, verdicts and result of hearing; and

(b)the notes of Judge A N MacLean on sentencing.

[9]    Both documents fall within the scope of r 8(3) as documents to which every person has a right of access. However, any right under the Rules is subject to any court order or direction limiting or prohibiting access or publication.3

2      Rule 8(4)(b).

3      Rule 6(a).

[10]   There are other types of documents on the file, including a transcript of evidence from the complainant and a transcript of the defendant’s police interview. After this length of time, leave would not likely be granted for that type of material in circumstances where the application is brought by the media rather than individuals involved with the subject matter.4 I need not finally determine that issue, because the request does not extend that far.

[11]   From a review of the Court file, I do not see any court order or direction limiting access to the r 8(3) material, or any reason why a restriction would apply under any of the enactments listed in r 7(2).

[12]   However, the privacy rights of the victim and other family members should also be considered.5 In trials of this nature today, complainants would have automatic name suppression.6 Given common law privacy rights, I consider that some restrictions are appropriate.

[13]   Accordingly, I grant leave for copies of those two documents listed in [8] above to be provided to the applicant, but I impose a condition that there is to be no publication of the victim’s name or identifying particulars, or the names or identifying particulars of any others referred to in the sentencing notes who were children at the time of the offending in 1979 and 1980.

O’Gorman J

4      R v D [2020] NZHC 1671 at [8].

5 At [17].

6      Re Brickell [2020] NZHC 2585 at [14]; and Criminal Procedure Act 2011, s 203.