R v Bennett HC Auckland CRI 2009-292-59

[2010] NZHC 1319

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2009-292-000059

THE QUEEN

v

B

Hearing:         23 July 2010

Appearances: K J Glubb and S A Mandeno for Crown

C H B   for Prisoner
C Bradley for TVWorks Limited

Judgment:      23 July 2010

Reasons:        27 July 2010

REASONS FOR JUDGMENT OF VENNING J

Solicitors:           Crown Solicitor, Auckland

Copy to:            C H B  , Auckland

C Bradley, TVWorks Ltd, Auckland

R V B HC AK CRI-2009-292-000059  23 July 2010

[1]      In a result judgment delivered on 23 July 2010 I declined TV3’s request for access to the DVD recording the police interview with the prisoner B  . These are the reasons for that judgment.

The application

[2]      The application is made under r 13(2)(b) Criminal Proceedings (Access to Court  Documents)  Rules  2009.    The  DVD  record  is  within  the  definition  of document in the Rules which includes exhibits and video recordings and records in electronic form.

[3]      The  applicant  seeks  the  DVD  to  play it  in  a  current  affairs  programme investigating the circumstances of the offending in this case.

[4]      The application is opposed by both the Crown and counsel for the prisoner, on the following grounds:

•         the age of the prisoner;

•the   personal   circumstances   of   the   prisoner   as  discussed   in   a psychiatric report from Dr Duff;

•         that the DVD interview was obtained in the first instance for use in

Court;

•         the prisoner does not consent to its use or further distribution;

•the DVD interview does not disclose any admission of guilt in this case;

•there is sufficient background in the summary of facts to which the prisoner pleaded guilty and in the transcript of the DVD interview itself.

•there is no need to access the DVD itself to accurately report the circumstances of the offending;

•disclosure would be a disincentive to people in the prisoner’s situation making statements to the police.

[5]      The matters to be taken into account on an application such as this are set out in r 16 as follows:

16       Matters to be taken into account

In determining an application under rule 13, or a request for permission under rule 8 or 9, or the determination of an objection under those rules, the Judge or other judicial officers or Registrar 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 a document to which the application or request relates is subject to any restriction under rule 12:

(g)       any other matter that the Judge, other judicial officer, or Registrar thinks just.

[6]      In her helpful submissions Ms Bradley accepted that the exercise for the Court is one of balancing the relevant factors rather than a presumptive approach: Mafart v TVNZ;1 R v Mahanga;2   TVNZ v Rogers.3

[7]      Ms Bradley relied in particular on the majority decision in Rogers and the recent decision of Randerson J in R v Burton.4   In Burton the Judge ruled TV3 could have access to video surveillance footage from the prison showing the accused Mr Burton pursuing the victim of the attack up and down the landing outside the prison cells in D block.  The Judge was satisfied that the interests of open justice and the freedom to seek, receive and impart information substantially outweighed any counterbalancing considerations.

Decision

[8]      In the present case the particularly relevant considerations are:

•         the orderly and fair administration of justice;

•         the protection of the prisoner’s privacy interests;

•the principle of open justice, namely, encouraging fair and accurate reporting of, and comment on, trials;

•         the freedom to seek, receive and impart information.

[9]      The consideration of the orderly and fair administration of justice raises the issue of whether media access to the evidentiary DVD in this case might have an adverse impact on an accused’s co-operation with the police in future cases.

1      Mafart v TVNZ [2006] 3 NZLR 18 at [7].

2      R v Mahanga [2001] 1 NZLR 641 (CA) at [32].

3      TVNZ v Rogers [2008] 2 NZLR 277 (SC) at [115].

4      R v Burton HC Auckland CRI-2008-044-010515, 19 February 2010.

[10]     In Rogers the Chief Justice was prepared to accept that there could be a deterrent effect, particularly where, as in that case, an affidavit was before the Court from defence counsel that she would not advise participation in video interviews if the material could end up being broadcast subsequently.  While that was not a view that the majority of the Court in Rogers ascribed to, it remains a proper consideration in an appropriate case.

[11]     There is a further overlay to this factor in the present case.  Ms B   has pleaded guilty.  It is not unreasonable to suggest that one of the factors influencing a plea of  guilty might  be the desire to  avoid  the publicity associated  with  a full defended hearing.  That provides further support for the present opposition.  I put it no higher than to accept these issues are to be considered in the balance with other considerations, but I accept on their own, may not be sufficient to refuse access.

[12]     The privacy interests of Ms B   are also a relevant consideration in this case.  Again, while in Rogers the majority rejected the proposition that Mr Rogers’ could have had any reasonable expectation of privacy, the Court did acknowledge the possibility of such privacy interests.

[13]     In the present case there is an important additional factor, the age of the prisoner.  At the time of the interview Ms B   was 16.  She was not a mature criminal offender.  This was the first time she had been spoken to by the police on DVD.  There are strict provisions in the Children, Young Persons and their Families Act to ensure the process of interview is fair:  s 215 et seq.  Those considerations lend weight to the privacy interests of the prisoner.

[14]     Next, while the principles of open justice, the freedom to impart information, and to encourage fair and accurate reporting of and comment on trials are important considerations, they have, to a large degree, been addressed in this case.  Following the guilty pleas, the media were present during sentence and, albeit for a very limited time, and, on strict conditions, were able to have both a still photographer and television camera in Court.  The access by the media to the sentencing process in that way and the ability to depict the prisoner Ms B   was permitted in an attempt to

balance the media’s right of access and to be the ears and eyes of the public with the interests of Ms B  .

[15]     Further the media have had access to the summary of facts and can have access to the transcript of the DVD interview.  It is not necessary to encourage fair and accurate reporting of the circumstances of the offending for the DVD interview itself to be provided.   In Rogers and Burton,  the photographic record  provided coverage of the reconstruction and the offence itself.  By contrast, the present DVD is limited to the police questioning of the prisoner (during which she denied responsibility for lighting the fatal fire).

[16]     In the present case, however, the determining factor which in my judgment weighs against the request for access to the DVD is the community’s interest in the prisoner’s rehabilitation.  As the Chief Justice observed in Rogers there is a public as well  as  private  interest  in  the  reintegration  of  an  offender  after  the  inevitable notoriety resulting from the trial.   That is a particularly important factor in the present case.   Dr Duff has provided a psychiatric report to the Court.   In it she expresses the opinion that Ms B   appears to derive some pleasure in the notion of being famous for being bad.   She says that any reinforcement of the violent offending  that  resulted  in  the  death  of  the  deceased  in  this  case  would  not  be advisable and, in Dr Duff’s view, would tend to reinforce or support Ms B  ’s attention seeking behaviour.  Related to this is Dr Duff’s concern that the prisoner’s underlying personality disorder and dysfunctional patterns of behaviour that led to the offending may be reinforced by such publicity and she may derive enjoyment from it.

[17]     Ms Bradley suggested that the programme would air within a week or 10 days of the sentencing so the effect would be limited given the existing publicity from sentencing.   However, I do see a difference between the sentencing exercise which was required as a result of the judicial process and the further investigative reporting or programme that may follow thereafter, be it one or two weeks later.  The prisoner may well accept and be able to cope with a limited form of publicity associated with the sentencing process but to have further publicity concerning her in

a television programme or documentary after that event is more likely to reinforce the various concerns that Dr Duff referred to.

[18]     Overall, Dr Duff considered that further publicity would be more likely to glorify violence in the prisoner’s imagination and be likely to have long term repercussions that may affect her as she matures and responds to rehabilitation and therapy.

[19]     The risk of that negative outcome leads me to conclude, on balance, the request for access to the DVD should be declined.

[20]     For those reasons the application was declined.

[21]     No order for costs.

Venning J