Matenga v Coroners Court at Dunedin

[2014] NZHC 2994

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

CIV-2014-412-196 [2014] NZHC 2994

BETWEEN

PERERO FREDERICK ALEXANDER

SHARMON MATENGA Applicant

AND

THE CORONERS COURT AT DUNEDIN

Respondent

Hearing:

27 November 2014

(At Christchurch)

Counsel:

J A Farrow for Applicant
R K P Stewart for Fairfax Media Limited

Judgment:

27 November 2014

JUDGMENT OF THE HON JUSTICE KÓS (Application for interim non-publication orders)

[1]      Mr Matenga applies on an urgent Pickwick basis for interim orders, in effect under s 74(b) of the Coroners Act 2006 (the Act), that his name not be made public. I have determined that it is not appropriate to grant the application.   Time today permits only very brief reasons for that decision to now be given.

[2]      Mr Matenga is a Corrections Officers at Milton Prison.  He is scheduled to give evidence this week in the Coroner’s inquest into the death of prisoner Jai Davis in February 2011.   Mr Matenga is being called as a witness because he was the Corrections officer who was checking Mr Davis periodically while he was in the At Risk Unit, in the period immediately prior to his death.

[3]      An application was made yesterday under s 74(b) of the Act the Coroner

conducting the inquest, Coroner Crerar, that Mr Matenga’s name (and those of two

other Corrections officers) not be made public.  The major ground of the application

MATENGA v THE CORONERS COURT AT DUNEDIN [2014] NZHC 2994 [27 November 2014]

was a perceived risk to the applicants’ personal safety if their names were publicised. The secondary ground was a risk to fair trial rights should the names be made public, and the applicants were then prosecuted.

[4]      Section 74 provides:

If satisfied that it is in the interests of justice, decency, public order, or personal privacy to do so, a coroner may prohibit the making public of—

(a)       any evidence given or submissions made at or for the purposes of any  part  of  the  proceedings  of  an  inquiry  (for  example,  at  an inquest); and

(b)       the  name,  and  any  name  or  particulars  likely  to  lead  to  the identification, of any witness or witnesses.

[5]      The application before Coroner Crerar failed.  He held that the evidence as to perceived risk to personal safety was speculative and unproven.  It amounted to no more than the applicants’ own assertions.   The prospect of a prosecution of the applicants was remote.   The police had no such intention following their own investigation.

[6]      Mr Matenga has now filed a statement of claim in the High Court seeking judicial review of the Coroner’s decision.  The other applicants before the Coroner have not pursued the matter further.   It is alleged that the Coroner’s decision is wrong; that he failed to consider the difficulties of providing direct evidence of increased risk; that it was irrelevant that few prisoners from 2011 were likely still to be at Milton (as the risk lay from any prisoner potentially); that the prospect of a prosecution could not be gauged until the Coroner’s findings were released, and that the decision to decline was unreasonable.

[7]      The leading case on s 74 is the decision of Whata J in Gravatt v Coroners’ Court at Auckland.1   That case concerned a judicial review of a coronial decision not to publish the names of health professionals treating a medical student who later died

of meningococcal disease. Whata J observed:2

1      Gravatt v Coroners’ Court at Auckland [2013] NZHC 390, [2013] NZAR 345.

2      At [57]-[58].

Coming full circle, under s 74 a Coroner has express but limited jurisdiction to prohibit publication. The Coroner must be satisfied that prohibition is in the interests of justice, decency, public order or personal privacy. These matters are not statutorily defined. Nevertheless satisfaction of those matters by themselves or in combination is a condition of the exercise of any power under s 74. If those conditions do not exist then there is no power to prohibit. Indeed, unlike the medical disciplinary context, there is no general power to prohibit publication in circumstances where it is desirable to do so.

Furthermore, I can see nothing in either the language used in s 74, or the scheme or purpose of the Act that would obviate the duty on the Coroner to observe the affirmed right to impart information and/or the principle of open justice, unless suppression is demonstrably justified in terms of the listed grounds and on those grounds only. Nor is it sufficient to simply identify a basis for suppression under s 74. It must represent an authorised and justified limitation of a fundamental right. This approach to s 74 is, in my view, concordant both with the general purposes of the Act, to help prevent deaths and to promote justice, and also with the specific function of the Coroner in this case, namely to make recommendations which may, if drawn to the public attention, reduce the chances of other deaths.

[8]      Whata J revoked the coronial decision to prohibit publication.  I note that it is an essential feature of the Coroner’s inquest process that it work in public, so that the community is fully informed of circumstances that led up to and were causative of the death being inquired into. An order under section 74 should be exceptional.

[9]      I am not satisfied that this is a proper case in which to grant interim relief of the kind sought.   While I accept that an interim non-publication order might be necessary to preserve Mr Matenga’s position to gain the relief he seeks in his judicial review proceeding, that is to an extent a self-fulfilling consideration.

[10]     More importantly, I find:

(a)       demonstrable justification has not been given for the interruption of the ordinary, open coronial inquest process; and

(b)the balance of convenience does not favour the grant of the interim relief sought.

[11]     First, I consider the basis of the claim advanced fundamentally weak.  The Coroner’s decision is reasoned and cogent.  He was correct to say that the evidence of risk is speculative.   I would add that there is such a degree of buttressing in

Mr Matenga’s affidavit as to rather confirm the weakness of the primary ground.  He was right also to say that the risk of prosecution, let alone harm to the fair trial rights of the applicant is remote, as I note later.

[12]     Secondly I note that the names of the two other original applicants are now public knowledge, having been published now in the news media.  One of them is the prison manager, who is Mr Matenga’s wife Ann.  There has been considerable publicity of her involvement, and of answers she gave to questions from counsel for the Howard League.   Mr Matenga’s relationship with the prison manager will be known by prisoners.  It is difficult now to say whether any risk he faces will arise from that publication, or from any further publication of his own name and involvement.

[13]     Thirdly,  if  there  is  indeed  physical  risk  to  Mr  Matenga  as  a  result  of disclosure of his involvement, that is a matter which his employer, the Corrections Department, will need to take into account in his assignment to duty.   That is the appropriate method of addressing this issue.  It is not at all appropriate to derail the normal public working of the coronial inquest process to address a concern which, if sound, can and should be addressed in another way, and by his employer.

[14]     Fourthly, the risk to fair trial rights in the event of prosecution is overstated. Such prosecution is highly unlikely on the evidence before me.  Furthermore, in the event that assessment proves wrong, the non-publication of Mr Matenga’s name will not  prevent  jurors  from  putting  two  and  two  together  if  they actually  read  the Coroner’s findings (or a report of them) and they refer to the actions of Corrections officer X, checking on Mr Davis periodically.  Jurors can be instructed adequately not to take into account other sources, in the usual way.

[15]      I am not satisfied therefore that it is reasonably necessary to make the orders sought.     I  will  however  make  a  temporary  order  prohibiting  publication  of Mr Matenga’s name in connection with the inquest or these proceedings, to facilitate

any appeal that may run from this decision.  The orders just made will expire at 1pm on Friday 28 November 2014.

Stephen Kós J

Solicitors:

Webb Farry for Applicant