Mediaworks TV v Blowers

[2014] NZHC 3073

ORDER PROHIBITING PUBLICATION OF NAME, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS OF WITNESS PURSUANT TO S 202 CRIMINAL PROCEDURE ACT 2011.

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

CRI-2013-088-001070 [2014] NZHC 3073

BETWEEN

MEDIAWORKS TV, FAIRFAX MEDIA,

APN - NZ HERALD AND TVNZ Applicants

AND

MICHAEL DAVID BLOWERS Respondent

Hearing:

3 December 2014

Appearances:

Ms Owen for Mediaworks TV (TV3) Fairfax

NZ Herald
TVNZ
A Fairley and P J Magee for Respondent
M B Smith for Crown

Judgment:

3 December 2014

JUDGMENT OF VENNING J

ON MEDIA APPLICATIONS FOR ACCESS

This judgment was delivered by me on 3 December 2014 at 4.45 pm, pursuant to Rule 11.5 of the

High Court Rules.

Registrar/Deputy Registrar

Date……………

Solicitors:           Crown Solicitor, Whangarei

Thomson Wilson, Whangarei

Copy to:            3 News Mediaworks

Fairfax,
APN – NZ Herald

TVNZ

MEDIAWORKS TV & ORS v BLOWERS [2014] NZHC 3073 [3 December 2014]

Introduction

[1]      Following his guilty pleas Mr Blowers was today sentenced to four years,

nine months’ imprisonment.

[2]      Various media organisations have applied for access to documents on the

Court file:

(a)       New Zealand Herald seeks access to the written statements of Andrew

Glendinning, Karyn Malthus and Ms E;

(b)Fairfax Media seeks access to the summary of facts and any victim impact statements;

(c)      Mediaworks TV3 seeks access to the statements of Karyn Malthus, Andrew Glendinning and Ms E, and also the video tape interview between the police and Mr Blowers.

(d)      TVNZ seeks access to “the case file”.

Preliminary matters

[3]      I record that there remains in place an order under s 202 of the Criminal Procedure Act 2011 prohibiting publication of the name, address, occupation or identifying particulars of Ms E.

[4]      The basis for some of the applications is a little unclear.  The Mediaworks (TV3) application refers to clause 6.8 of the Criminal Procedure Rules 2012.   It appears r 6.6 is the correct rule.   However, nothing turns on this point as r 6.10, Criminal Procedure Rules 2012 applies to determination of the application in any event.

[5]      The Fairfax media application refers to r 6.4(1).   That rule provides for a general right of access to the documents set out in that subsection.  The documents sought by Fairfax, the summary of facts and any victim impact statements, do not

come within r 6.4(1).   However, again nothing turns on that as I will treat the application as being brought under r 6.6.

Determination of the applications

[6]      As noted, the applications are to be determined under r 6.10.  By r 6.10(2) the Court is directed to consider the nature of and reasons for the application or requests and to take into account the following matters:

(a)       the right of the defendant to a fair hearing: (b)      the orderly and fair administration of justice:

(c)       the protection of confidentiality, privacy interests (including those of children and other vulnerable members of the community), and any privilege held by, or available to, any person:

(d)       the principle of open justice, namely, encouraging fair and accurate reporting of, and comment on, trials and decisions:

(e)       the freedom to seek, receive, and impart information:

(f)       whether any document to which the application or request relates is subject to any restriction under rule 6.9:

(g)       any other matter that the Judge thinks just.

[7]      The common theme of the applications is that the release of the information is in the public interest.

[8]      The reasons for the requests are variously put as:

·because Mr Blowers pleaded guilty “the public missed out on the transparency of the information that would have been available in a full trial” (TVNZ);

·to  enable  the  media  “to  better  and  more  effectively  carry out  its important function as the eyes and ears of the public and to report on these matters in a fair, full and balanced way” (TV3);

·         “release of the information is within the public interest backed by the

premise of open justice” (Fairfax media);

·public interest in how corruption of a person in Mr Blowers’ role came about.  No Court hearing to protect because of change of verdict to [not] guilty” (NZ Herald).

[9]      To the extent the applications purport to rely on the principle of open justice, and the fair and accurate reporting of and comments on trials and decisions as a basis for the applications I consider them to be misconceived.  The important principle of open justice properly supports accredited members of the media having the right to be present and to report on what takes place in Court.  To that extent the accredited media is properly regarded as the eyes and ears of the public who are not at Court.  It has an important role to play in informing the public in that regard.  The media has properly exercised that right in relation to Mr Blowers’ trial from the start of the trial to the entry of the guilty pleas and today at his sentencing.  The media has been free to report the progress of the case, its developments and its conclusion.   The only restriction is in relation to the identity of a police informant, whose identity is suppressed in accordance with s 202 of the Criminal Procedure Act.

[10]     The request for access to the statements (including the video statement) on the Court file is a request for information which has never been given in open Court. It is not necessary for the media to have access to those statements to satisfy the important principle of open justice.  I do not consider the principle of open justice, and the media’s role as the “eyes and ears” of the public reporting what takes place in Court supports the release of the material.

[11]     I also have regard to the consideration of the freedom to seek, receive and impart information.  However, that right must be balanced against other important considerations,  namely  the  orderly  and  fair  administration  of  justice  and  the protection of confidentiality.

[12]     While applications of this nature must depend on their individual facts, in this case I consider there are a number of reasons why access to the statements sought should not be granted. They include:

·Some of the evidence in the statements to which access is sought would have been inadmissible at trial.

·The statements are witness statements (and a police interview) which have not been admitted into evidence.  The statements and assertions in them have not been tested by cross-examination.  If the details in them  were  released  it  would  be  contrary to  the  ideal  of  fair  and accurate reporting, given that these statements could, in the absence of cross-examination and qualification, be misleading.

·         To the extent Mr Blowers’ statement to the police is relevant, it is

incorporated in the agreed summary of facts.

·Access  is  only sought  to  some  of the  witnesses  statements.   The statements only paint part of the picture.  They do not provide a full picture.    The  trial  was  scheduled  for  two  to  three  weeks.    The imparted information must be balanced.   In the absence of cross- examination on the statements it would not be.

·Guilty pleas can be in the interests of justice.  In pleading guilty and acknowledging guilt in accordance with the summary of facts one of the advantages to a defendant is the need for trial is avoided.   The guilty plea avoids further evidence being given against him and brings the process to an end. That is a relevant consideration in this case.

·Mr Blowers has now accepted responsibility for his actions.   The actions he has accepted responsibility for are recorded in the summary of facts, which is available to the media.  The basis upon which the Court has sentenced him is also set out fully in the Court’s sentencing notes. Given that the victim impact statement is from the police, that can also be made available.

[13]     It would be wrong in principle for Mr Blowers, having pleaded guilty on the basis of a summary of facts to be subjected to what would amount to a further trial by the media based on selected extracts of evidence never presented in Court.

[14]     The comments of Wylie J in APN NZ Ltd v Banks, albeit at a pre-trial stage, are also generally applicable in this case.1   At trial evidence is given in context.  It is tested by the parties and its relative weight and importance can be explored.  The reporting  of  that  evidence  results  in  fair,  accurate  and  balanced  reporting  and satisfies the considerations in r 6.10.  However, to take aspects of proposed witness statements which are not tested out of context, raises the risk of imbalance and inaccuracy which would itself be contrary to the interests of justice.

[15]     For those reasons the applications to access the Court file, in particular to access the Court file for witness statements and Mr Blowers’ interview, none of which have been presented in open Court, are declined.

[16]     The media may, however, have access to the summary of facts used as the basis for sentencing (subject to the confidentiality order applying to the informant) and to the victim impact statement by Kevin Burke on behalf of the Northland

Police.

Venning J

1      APN NZ Ltd v Banks [2014] NZHC 915.