R v ABC
[2014] NZHC 8
•10 January 2014
REDACTED JUDGMENT PURSUANT TO ORDER OF COURT AND ORDER PROHIBITING PUBLICATION OF PARAGRAPHS [13]–[17] OF THE JUDGMENT IN NEWS MEDIA OR ON THE INTERNET OR OTHER PUBLICLY AVAILABLE DATABASE UNTIL FURTHER ORDER OF THE COURT. PUBLICATION IN LAW REPORT OR LAW DIGEST PERMITTED.
NOTE: PUBLICATION OF NAME(S), ADDRESS(ES), OCCUPATION(S) OR IDENTIFYING PARTICULARS, OF COMPLAINANT(S) PROHIBITED BY S 203 OF THE CRIMINAL PROCEDURE ACT 2011.
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI 2013-055-001107 [2014] NZHC 8
THE QUEEN
v
"ABC"
Hearing: On the papers. Counsel:
F Cuncannon for Crown
R J Earwaker for AccusedJudgment:
10 January 2014
[REDACTED] JUDGMENT OF TOOGOOD J
[Media request by New Zealand Herald for access to documents on file]
This judgment was delivered by me on 10 January 2014 at 4:00pm pursuant to Rule 11.5 High Court Rules
Solicitors/Counsel:
Crown Solicitor, Auckland
R J Earwaker, Barrister, Auckland
R v "ABC" (Redacted) [2014] NZHC 8 [10 January 2014]
Introduction
[1] Consideration of this matter raises an issue about the adequacy of the reasons to be given in support of an application for access to documents on the Court’s file in a criminal proceeding. The decision may be of some significance to news media organisations who wish to seek access to documents held on Court files in criminal proceedings. I have chosen, therefore, to issue a judgment which can be available publicly, subject to certain restrictions related to the particular facts of this case, rather than dealing with the matter by Minute.
[2] The accused is due to be tried in this Court on six counts of causing grievous bodily harm with reckless disregard and two counts of neglect of a child, the alleged victims of the offending being two of her children. The trial is scheduled to begin on
7 July 2014.
Applicable law
[3] A representative of The New Zealand Herald has written to the Registrar requesting access to all written statements on the Court file and the summary of facts. The request was made on 18 December 2013, purportedly under r 13(2) of the Criminal Proceedings (Access to Court Records) Rules 2009, but those rules were revoked by r 9.1 of the Criminal Procedure Rules 2012 which came into force on 1
July 2013. The relevant provisions for access to the Court file, or documents in the custody or control of the Court that relate to a criminal proceeding, are now comprised in Part 6 of the Criminal Procedure Rules 2012. I propose to deal with the application under the provisions of that part.
[4] Rule 6.4 provides that, subject to r 6.9, every person has the right to access the permanent Court record under Part 7.1 The permanent Court record of this case does not contain the information sought by the applicant. Access to the documents sought in this application is governed by r 6.6.
[5] In accordance with the procedure prescribed by r 6.6(5), the Registrar served a copy of the request on counsel for the accused and for the Crown. Following
1 Criminal Procedure Rules 2012, r 6.4(1)(a).
receipt of memoranda indicating that both the Crown and the defence object to the disclosure sought, the Registrar has referred the objections and the request to me as Duty Judge.2
[6] Rule 6.6(6) requires me to deal with the request in accordance with r 6.10, which provides:
6.10 Matters to be taken into account
(1) A Judge may deal with any request or application that requires permission of a Judge or the court to be given on the papers or at an oral hearing, and may grant access in whole or in part and subject to any conditions the Judge thinks appropriate.
(2) In determining a request or an application under this rule, the Judge must consider the nature of, and the reasons for, the application or request and take into account each of the following matters that is relevant to the application, request, or objection:
(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.
Inadequate statement of reasons for request
[7] Rule 6.6(4) requires that a request for access should give the reasons for the request. In this case, the reason given on behalf of the applicant is that “(t)he principles of open justice apply.” An assertion by the applicant that the principles of open justice apply is merely a statement of one of the applicable principles under
r 6.10(2);3 it does not describe the applicant’s reasons for making the request.
2 Rule 6.6(5)(c).
3 See r 6.10(2)(d).
[8] Court proceedings are generally open to the public,4 but the right of members of the public to attend a court hearing is subject to the power of the judge to clear the court.5 Accredited representatives of the news media, however, have the right to attend and observe court hearings in criminal proceedings, including hearings in chambers, from which members of the public may be excluded, subject to only a few restrictions.6 Furthermore, members of the news media may report on what occurs during a hearing subject only to statutory limitations or orders made by the Court in specific cases in the interests of justice. By these rights, news media representatives carry out their responsibilities as the eyes and ears of the public. The right of the news media to observe and report underpins “open justice”, the right of members of the public to know what goes on in the courts, which is enshrined in s 14 of the New Zealand Bill of Rights Act 1990.
[9] In a criminal trial, evidence which complies with the admissibility rules – that which is relevant and fairly adduced – is given publicly and subjected to scrutiny under cross-examination. It is on the basis of such evidence that verdicts in criminal cases are reached.
[10] But the Court’s file in a criminal proceeding frequently, if not usually, contains other information which may relate to the proceeding but which may not form any part of the admissible evidence which is subsequently given at trial. Such material may comprise information about the fitness of an accused person to stand trial, or information relevant to questions of bail or procedure which may be of a prejudicial nature and not be admissible at a trial. The file is likely to contain other documents such as evidential statements of what it is believed the witnesses will say but which may be subject to objection and pre-trial rulings as to admissibility.
[11] In the interests of balancing the principle of open justice against the right of an accused person to a fair trial7 and against privacy rights, the public and news media representatives do not have broad rights of access to information held on a
Court file which has not been, and may never be, referred to in open court. While
4 Criminal Procedure Act 2011, s 196(1).
5 Ibid, ss 196(3) and 197.
6 Ibid, ss 197–199.
7 New Zealand Bill of Rights Act 1990, s 25.
r 6.10 allows a Judge to grant a request to access such information, the rule requires a Judge to take into account the nature of, and the reasons for, the application and such of the matters set out in paragraphs (a) to (g) of r 6.10(2) as may be relevant to the application or any objection. Such a balancing exercise8 cannot be undertaken if the reasons for the application are not given or are inadequately expressed.
[12] Importantly in cases such as this, an application for access needs to demonstrate to the Court a sufficient basis for allowing access to information which would not be available publicly except in the course of a trial. I am inclined, therefore, to dismiss the present application on the ground that no reason has been given for it.
Other factors
[13] (Omitted pursuant to order of the Court at [20](c) below.) [14] (Omitted pursuant to order of the Court at [20](c) below.) [15] (Omitted pursuant to order of the Court at [20](c) below.) [16] (Omitted pursuant to order of the Court at [20](c) below.) [17] (Omitted pursuant to order of the Court at [20](c) below.) Decision
[18] For these reasons, I dismiss the application.
Consequential orders
[19] There is automatic suppression of the identities of the child complainants in this case, pursuant to s 204 of the Criminal Procedure Act 2011. It does not appear from the file that a consequential suppression order has been made under s 200(1) of
the Act on the ground that publication of the accused’s name may lead to the
8 Schenker AG v Commerce Commission [2013] NZCA 114, affirming Commerce Commission v
Air New Zealand Ltd [2012] NZHC 271.
identification of the children, and none is sought. However, to ensure no inadvertent breach of s 204, I have anonymised the name of the accused who shall be identified in the intituling by the initials “ABC” only.
[20] As applicant, The New Zealand Herald is entitled to know the full reasons for this decision, but the accused’s right to a fair trial may be prejudiced if there is general publication of the matters and reasons given at [13]–[17] of this judgment. Accordingly, I direct that:
(a) a copy of the full version of this judgment shall be distributed to the Crown and defence counsel, and to The New Zealand Herald, and may be distributed to members of the judiciary, their research clerks and other Ministry of Justice employees;
(b)until the further order of the Court, paragraphs [13]–[17] inclusive of this judgment shall not be published except in law reports and law digests; and
(c) a redacted version of this judgment, omitting paragraphs [13]–[17]
inclusive, shall be issued and may be distributed publicly.
Toogood J
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