Nuku

[2019] NZHC 879

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

[2019] NZHC 879

IN THE MATTER OF

an application by KARL NUKU for access

to documents in CIV-2008-485-1603 and CIV-2017-485-372

On the papers
Judgment:	17 April 2019

JUDGMENT OF MALLON J

Introduction

[1]    On 5 October 2017 Mr Karl Nuku made a formal request under rr 8 and 11 of the Senior Courts (Access to Court Documents) Rules 2017. He sought copies of certain documents relating to the proceeding in Greer v Prison Manager at Rimutaka Prison (CIV-2008-485-1603).1 On 16 January 2019 Mr Nuku renewed his application to access these documents and also sought documents from another proceeding, Greer v Chief Executive, Department of Corrections (CIV-2017-485-372).2

[2]    These documents are sought to assist Mr Nuku in a High Court proceeding he has brought that concerns the conduct of law enforcement officers during criminal proceedings against him. Mr Nuku says the requested documents may assist with potentially making an interim application relating to his limited access to computer facilities in prison. Both Greer proceedings related to the issue of prisoner access to facilities.

1      This proceeding has been finally determined.

2      This proceeding has not been finally determined.

Application by Nuku [2019] NZHC 879 [17 April 2019]

[3]    The documents Mr Nuku seeks in relation to Greer v Prison Manager at Rimutaka Prison (CIV-2008-485-1603) are:

(a)a copy of the plaintiff’s statement of claim and the respondents’ statement of defence or reply;

(b)a copy of the plaintiff’s affidavits in support of the statement of claim and the respondents’ response affidavits (as referenced at [2] of Ronald Young J’s judgment in that proceeding);3

(c)a copy of the plaintiff’s submissions and the respondents’ submissions;

(d)a copy of any further minutes, judgments, orders or directions relating to the Department of Corrections’ provision of access to facilities and documents to prisoners conducting their own litigation; and

(e)a copy of the three cases Ronald Young J refers to at [64].4

[4]    The documents Mr Nuku seeks in relation to Greer v Chief Executive, Department of Corrections (CIV-2017-485-372) are:

(a)Greer v Police [2013] NZHC 2682 and R v Greer [2014] NZHC 358;

(b)Greer v Chief Executive, Department of Corrections HC Wellington CIV 2017-485-372, 10 July 2017, Minute of Ellis J;

(c)the affidavit of Ms V J Whelan, sworn 7 August 2017, as referred to at

[12] of Greer v Chief Executive, Department of Corrections [2018]

NZHC 1240; and

(d)the further discovery that was ordered at [42(b)-(c)] of the judgment in

(c) above.

3      Greer  v  The  Prison  Manager  at  Rimutaka  Prison  HC  Wellington  CIV  2008-485-1603,  18 December 2008, Judgment of Ronald Young J.

4      R v Royal [1993] 10 CRNZ 4; R v Shaw [1992] 1 NZLR 652; and R v Taylor HC Wellington CRI 2004-091-4321, 21 July 2001.

[5]    Following the receipt of this request, Collins J directed that the five published judgments which were requested (at [3(e)] and [4(a)] above) be provided to Mr Nuku. He also sought views on Mr Nuku’s request from Mr Greer and counsel for the respondents in each of the above proceedings. All three parties responded detailing objections to providing Mr Nuku with specific portions of the documents requested. Mr Nuku was then given a three week period to respond to these objections and that has now been received by the Court.

The submissions

The documents in Greer v The Prison Manager at Rimutaka Prison (CIV-2008-485- 1603)

[6]Crown Law, as counsel for the respondents:

(a)has no objections to Mr Nuku being provided with a copy of the plaintiff’s statement of claim, the respondent’s statement of defence or reply, and copies of any further minutes, judgments, orders or directions relating to the Department of Corrections’ provision of access to facilities and documents to prisoners conducting their own litigation;

(b)objects to disclosure of personal information about Mr Greer contained in the Crown submissions at paragraphs 1-25, 35-36, 38-48, 52-56, 59, 61-84, 87-95, 97-98, 101-104 and 107; and

(c)in relation to the six affidavits filed by the Crown in the proceedings it:

(i)objects to the disclosure of the Lamb affidavit (which is an affidavit of documents);

(ii)does not object to the disclosure of the Lee affidavit;

(iii)objects to the disclosure of the Woledge affidavit; Brosnahan affidavit; paragraphs 2-7, 11-15, 19-28, 30, and 33-37 of the Howe affidavit; and paragraphs 3-8 of the Reese affidavit on the basis that these contain personal information about Mr Greer.

(d)There was a seventh affidavit filed by the respondents in this proceeding (affidavit of Terence  Groves, the fifth respondent, filed  30 October 2008). Crown Law said nothing about this.

[7]    Mr Greer does not object to the disclosure of his statement of claim, affidavit in support of statement of claim and submissions. In relation to all other requested documents, Mr Greer has expressed his dissatisfaction with the short three-day timeframe he was given to review these documents and his experience with the justice system generally. He wants to review all other documents and provide his response in “due course”. He indicates that “due course” may be around two weeks from when he was provided with the Registrar’s letter about Mr Nuku’s request. I note that it has been almost seven weeks since he was provided with that letter and that no further correspondence has been received from Mr Greer regarding Mr Nuku’s request.

[8]    Mr Nuku considers Crown Law’s objection to the personal information about Mr Greer is properly made and requests that the Court review the paragraphs identified by Crown Law and make redactions as needed before providing him with the documents. In relation to the affidavit evidence, Mr Nuku concedes the Lamb affidavit need not be disclosed. He agrees Crown Law’s objections to the disclosure of parts of the Howe and Reese affidavits are properly made, and asks that the Court review them, redact as appropriate and provide him with the documents.

The documents in Greer v Chief Executive, Department of Corrections (CIV-2017- 485-372)

[9]Luke Cunningham Clere, counsel for the Chief Executive:

(a)does not object to the disclosure of Greer v Police [2013] NZHC 2682, R v Greer [2014] NZHC 358 or Chief Executive, Department of Corrections HC Wellington CIV 2017-485-372, 10 July 2017, Minute of Ellis J;

(b)objects to the disclosure of matters specific or personal to Mr Greer contained in paragraphs 18-25 and annexure C of Ms Whelan’s affidavit;

(c)objects to the disclosure of personal information of Ms Whelan as contained in paragraphs 3-6 of her affidavit; and

(d)does not object to the disclosure of documents discovered pursuant to Cooke J’s order at [42(b)-(c)] of his judgment. Details of these are contained in the affidavit of documents sworn by Ms Moana Rose Graham on 27 June 2018. The documents in category (b) were all discovered by way of the affidavit of Ms Whelan (which has already been addressed).

[10]   Mr Greer takes a similar approach to Mr Nuku’s request to access documents in this proceeding as discussed above in relation to the (CIV-2008-485-1603) proceeding.

[11]   Mr Nuku says the personal information about Ms Whelan (at paragraphs 3-6 of her affidavit) is “discoverable” and ought to be disclosed as they will pertain to her position as Acting Prison Director. Further, similar to his comments above, Mr Nuku agrees with the non-disclosure of personal information about Mr Greer and requests the Court review the identified sections and make redactions as needed prior to providing him with the documents.

Access under rule 8

[12]   Mr Nuku has applied under rr 8 and 11 of the Senior Courts (Access to Court Documents) Rules 2017. Rule 8 states:

8        General rights of public

Civil proceedings

(1)Every person has the right to access the formal court record relating to a civil proceeding.

…

[13]   The two proceedings in relation to which Mr Nuku’s application is made are civil proceedings. Therefore, s 8(1) applies and Mr Nuku has the right to access the formal court record relating to those civil proceedings.

[14]The “formal court record” is provided a specific meaning by the Rules:

4        Interpretation

…

formal court record means any of the following kept in a registry of the court:

(a)a register or an index:

(b)a published list that gives notice of a hearing:

(c)a document that—

(i)may be accessed under an enactment other than these rules;

or

(ii)constitutes notice of its contents to the public:

(d)a judgment, an order, or a minute of the court, including any record of the reasons given by a Judge:

(e)the permanent court record under Part 7 of the Criminal Procedure Rules 2012:

(f)the rolls of barristers and solicitors kept under section 56 of the Lawyers and Conveyancers Act 2006 or any former corresponding enactment

[15]Mr Nuku therefore has the right to access the following under rule 8:

(a)In relation to Greer v Prison Manager at Rimutaka Prison (CIV-2008- 485-1603): a copy of any further minutes, judgments, orders or directions relating to the Department of Corrections’ provision of access to facilities and documents to prisoners conducting their own litigation; and a copy of the three cases Ronald Young J refers to at [64].5

(b)In relation to Greer v Chief Executive, Department of Corrections (CIV- 2017-485-372): Greer v Police [2013] NZHC 2682; R v Greer [2014] NZHC 358; and Greer v CE of Corrections HC Wellington CIV 2017- 485-372, 10 July 2017, Minute of Ellis J;

5      R v Royal [1993] 10 CRNZ 4; R v Shaw [1992] 1 NZLR 652; and R v Taylor HC Wellington CRI 2004-091-4321, 21 July 2001.

Access under rule 11

[16]Rule 11 states:

11Any person may ask to access documents

(1)This rule applies if a person is not entitled to access a document relating to a proceeding or an appeal under rule 8 or 9.

(2)A person may ask to access any document by providing the Registrar of the relevant court registry with a letter, an email, or any other written form of request that—

(a)identifies the person and gives the person’s address; and

(b)sets out sufficient particulars of the document to enable the Registrar to identify it; and

(c)gives reasons for asking to access the document, which must set out the purpose for which the access is sought; and

(d)sets out any conditions of the right of access that the person proposes as conditions that he or she would be prepared to meet were a Judge to impose those conditions (for example, conditions that prevent or restrict the person from disclosing the document or contents of the document, or conditions that enable the person to view but not copy the document).

(3)The Registrar must promptly give a copy of the request to the parties to the relevant proceeding or appeal, or to their lawyers.

(4)A Judge may dispense with the requirement in subclause (3) if it would be impractical to require notice to be served.

(5)A party who receives a copy of a request and who wants to object to it must give written notice of the objection to the Registrar, setting out the grounds on which the party objects,—

(a)before 3 pm on the third working day after the day on which the copy is received; or

(b)if the copy is received on a day on which a hearing relating to the document is proceeding, before 3 pm on the first working day after the day on which the copy is received.

(6)For the purposes of subclause (5), a person is deemed to receive a copy of a request on the day on which it is sent electronically or handed to the person.

(7)A Judge may—

(a)grant a request for access under this rule in whole or in part—

(i)without conditions; or

(ii)subject to any conditions that the Judge thinks appropriate; or

(b)refuse the request; or

(c)refer the request to a Registrar for determination by that Registrar.

(8)Without limiting the powers in subclause (7), the Judge may refuse a request for access under this rule solely for the reason that the request does not comply with subclause (2)(a), (b), (c), or (d).

[17]   Mr Nuku’s request and submissions are compliant with the procedural and formal requirements set out in r 11. I note also, for Mr Greer’s information, that the requirement for parties to the relevant proceedings or appeal to object to the request and provide grounds for that objection within three working days is a requirement imposed by r 11(5) of the Rules and not one set by the Registrar.

[18]   Rules 12 and 13 are relevant to the court’s exercise of discretion to grant access to court documents under r 11. They state as follows:

Determining requests for access

12Matters to be considered

In determining a request for access under rule 11, the Judge must consider the nature of, and the reasons given for, the request and take into account each of the following matters that is relevant to the request or any objection to the request:

(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:

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

13Approach to balancing matters considered

In applying rule 12, the Judge must have regard to the following:

(a)before the substantive hearing, the protection of confidentiality and privacy interests and the orderly and fair administration of justice may require that access to documents be limited:

(b)during the substantive hearing, open justice has—

(i)greater weight than at other stages of the proceeding; and

(ii)greater weight in relation to documents relied on in the hearing than other documents:

(c)after the substantive hearing,—

(i)open justice has greater weight in relation to documents that have been relied on in a determination than other documents; but

(ii)the protection of confidentiality and privacy interests has greater weight than would be the case during the substantive hearing.

My assessment

Access to documents in Greer v Prison Manager at Rimutaka Prison (CIV-2008-485- 1603) under rule 11

[19]   Mr Nuku is granted access to unredacted copies of: Mr Greer’s statement of claim, affidavit in support and submissions; the respondent’s statements of defence; and the Lee affidavit.  The respondent has consented  to the disclosure of them to  Mr Nuku to the extent they are held by the Court. Mr Greer made similar statements regarding his statement of claim, affidavit and submissions. The principle of open justice and the freedom to seek, receive and impart information weighs in favour of disclosure. Confidentiality, privacy and commercial sensitivity issues have not been raised.

[20]Mr Nuku is granted redacted access to the following documents:

(a)Affidavit of Ms Reese: redacted at paragraphs 3-8.

(b)Affidavit of Mr Howe: redacted at paragraphs 2-7, 11-15, 19-28, 30 and 33-37.

(c)Respondent submissions: redacted at paragraphs 1-25, 35-36, 38-48, 52-56, 59, 61-84, 87-95, 97-98, 101-104 and 107.

[21]   Having reviewed the redactions sought I accept they fall within the categories identified by the Crown, namely information personal or specific to Mr Greer. I consider the principles of open justice are met with the documents that are to be provided by Mr Nuku and in light of the purpose for which the documents are sought.

[22]   I do not grant Mr Nuku access to the affidavit of Mr Woledge; the respondents’ affidavit of documents; the affidavit of Mr Brosnahan; and the affidavit of Mr Groves.

[23]   I agree with the respondents’ counsel’s opposition to the disclosure of these documents and acknowledge Mr Nuku’s responsible acceptance of that. The documents contain personal information about Mr Greer, other correspondence, and confidential and private information.6 Those principles outweigh that of open justice here. This is especially so given the general information about prisoner access to facilities to which Mr Nuku is being granted access and his stated purpose for requesting access.

Access to documents in Greer v Chief Executive, Department of Corrections (CIV- 2017-485-372) under rule 11

[24]   I grant Mr Nuku access to the affidavit of Mr Whelan with passages the respondent objected to redacted. Having reviewed the redactions sought by the respondent I accept they contain information personal or specific to Mr Greer. The principles of open justice is met without the disclosure of this information (which is specific to Mr Greer’s proceedings) in light of the nature of Mr Nuku’s request and the general information to which he has already been provided access.

[25]   I reject Mr Nuku’s submission that the redacted section about Ms Whelan’s professional background ought to be left unredacted on the basis it is “discoverable”.

6      Though not identified by the respondent, Mr Groves’ affidavit is covered by the same objection.

The respondent does not owe Mr Nuku discovery and his request is made under the access to court documents regime and not the discovery regime.

[26]   Finally, I note in relation to Mr Nuku’s request for access to documents discovered pursuant to Cooke J’s order at [42(c)] that these are not documents held by the Court. They have been provided to Mr Greer for the purposes of his litigation but the Court does not retain a copy unless it has been led as evidence in the proceeding. The Court cannot grant Mr Nuku access to documents it does not possess.

Result

[27]   I make orders for access as per [15], [19], [20], [22] and [25] accordingly. I further order that the documents provided to Mr Nuku are to be used by him solely for the purpose of his proceeding and are not to be disclosed to any third party for any other purpose.

Mallon J