R v Boyle
[2023] NZHC 1763
•7 July 2023
IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY
I TE KŌTI MATUA O AOTEAROA WAIHŌPAI ROHE
CRI-2019-025-002088
[2023] NZHC 1763
THE KING v
JOSEPH KEVIN BOYLE
Hearing: On the papers Counsel:
R Donnelly for the Crown
J M Ablett-Kerr KC for the Defendant
Judgment:
7 July 2023
JUDGMENT OF HARLAND J
Introduction
[1] On 1 June 2021, Nation J made a finding, in terms of s 20(1) of the Criminal Procedure (Mentally Impaired Persons) Act 2003 (the Act), that Mr Boyle was not guilty of the murder of his step-brother, James Clark by reason of his insanity.1 He also made an order, under s 24(1)(c) of the Act, that Mr Boyle was to be detained in a hospital as a special patient under the Mental Health (Compulsory Assessment and Treatment) Act 1992. No application was made for the continuing suppression of Mr Boyle’s name.
1 R v Boyle [2021] NZHC 1276.
R v BOYLE [2023] NZHC 1763 [7 July 2023]
[2] This judgment determines an application by TVNZ for access to the Court file to obtain copies of the reports obtained by the Court in respect of Joseph Boyle under s 38 of the Criminal Procedure (Mentally Impaired Persons) Act 2003.
The application
[3] Mava Moayyed, a reporter from TVNZ Sunday, made an application on 21 March 2023 for access to the Court file. Specifically, the request is made “for all section 38 reports completed about Mr Boyle that were used in the murder trial”. The reason for the application is as follows:
I am working with Joseph Boyle’s family on a story for TVNZ’s Sunday programme about the care Joseph received from Mental Health Services in Southland. These documents will help us understand the mental profile of Joseph and the reasons he was found not guilty of murder by reason of insanity.
[4] The application also states that Mr Boyle’s father, Kevin Boyle, has authority to act on his son’s behalf and has given TVNZ permission to request and obtain documents pertaining to this case. Contact details for Kevin Boyle were provided.
[5] Upon receiving the application, the High Court Registrar contacted Mr Boyle’s previous lawyer Ms Ablett-Kerr KC who indicated there was no objection to the application. Counsel for the Crown confirmed that they would abide the decision of the Court.
[6] The Court enquired whether there was authority for Kevin Boyle to act on behalf of his son Joseph. On 19 April 2023, Mava Moayyed emailed the Court attaching an email from Kevin Boyle, dated 24 January 2023, as follows:
To Whom it may concern
I, Kevin Joseph Boyle, give Mava Moayyed permission to act on Joseph’s behalf regarding any matters for e.g. mental health, correction, etc. I authorise the release of any reports and files pertaining to my son’s case requested by Mava Moayyed.
I have the authority to authorise the above.
[7] On 13 June 2023, the Court Registrar sent an email to Kevin Boyle seeking a copy of the relevant documentation providing him with the authority to act on behalf of his son. No reply has been received to this request.
Discussion
[8] The application is governed by the Senior Courts (Access to Court Documents) Rules 2017. Under r 11, any person may ask to access any document. “Access” means to search, inspect or copy under the supervision of an officer of the Court.2
[9] Rule 12 provides, in determining a request for access under r 11, the Judge must consider the nature of and the reasons given for the request and take into account the matters listed in r 12 that are relevant to the request or any objection to the request.
[10]The matters in r 12 relevant to this application are:
…
(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:
…
(h) any other matter that the Judge thinks appropriate.
[11] Rule 12(g) outlines certain enactments in respect of which a person may not access a document unless the Judge is satisfied there is good reason for permitting access or the person is a party to that proceeding. The enactments listed include the Mental Health (Compulsory Assessment and Treatment) Act 1992. Although the Court file for Mr Boyle does not relate to a proceeding under the Mental Health (Compulsory Assessment and Treatment) Act 1992, and order made upon disposition in respect of Mr Boyle by Nation J required him to be detained in a hospital as a special patient under that Act. This is a matter, in my view, relevant to r 12(h).
2 Senior Courts (Access to Court Documents) Rules 2017, r 4.
[12] It is instructive to consider how applications for access to such reports have been dealt with in other cases.
[13] In R v Rahman,3 media organisations including the New Zealand Herald sought access to expert reports assessing the defendant’s fitness to stand trial (psychological reports). Woolford J declined the application. He considered that the principle of open justice was satisfied by access to the judgment which contained extracts from the expert reports. This, he held, was sufficient to ensure fair and accurate reporting of the trial. The same position was taken by Gordon J in Horopapera v R4 in respect of an application for access to a “Confidential Psychological Report” and by Edwards J in R v G.5
[14] In R v Tauroa, an application was made for access to a report obtained by the defendant under s 27 of the Sentencing Act 2002. In this case, Nation J said the following:6
[13] The cultural report prepared for Mr Tauroa’s sentencing contains a substantial amount of extremely personal and private information. Where relevant, that information was presented in open court and can be found in the sentencing notes. As articulated in Blowers and Rahman, the principle of open justice has therefore already been satisfied. Given the highly personal nature of the cultural report, the privacy interests of Mr Tauroa must outweigh any considerations of open justice and freedom of information.
[14] I am also satisfied that the right to privacy is more significant in this case than the public interest. Given the extent to which the report is relevant has already been discussed in the submissions and sentencing notes, there can be no public interest in viewing the balance of that report. It would not inform about the process of justice. It would simply provide highly personal information about an individual. That information, however interesting it may be to the public, would not benefit the public interest if it were released.
[15] Mr Boyle is clearly a vulnerable member of the community in terms of r 12(d). Care must therefore be taken to carefully consider his interests in light of the fact that, tragically, he killed his step-brother. I mention this trying to be as sensitive as I possibly can towards the family but, inevitably, because of this particular fact, potential conflicts of interest arise and I have not been provided with any
3 R v Rahman [2018] NZHC 1808.
4 Horopapera v R [2022] NZHC 1410.
5 R v G [2023] NZHC 1211.
6 R v Tauroa [2020] NZHC 727.
documentation to support the legal basis to support Mr Kevin Boyle’s ability to act or consent on behalf of his son to the application.
[16] Further, I have not received any further information from Mrs Ablett-Kerr KC to support the basis for her brief email providing consent on behalf of Mr Boyle.
[17] But, in any event, the judgment deciding Mr Boyle was found not guilty due to insanity is published and contains considerable material that may be of assistance to the applicant, including reference to professional accounts and opinions about Mr Boyle’s mental state leading up to 8 December 2019 when he murdered his step- brother.
[18] I am not persuaded that the application should be granted. In this case and in my view, based on the information I have received, I consider r 12(d) has primacy and the principle of open justice is met by the publication of Nation J’s judgment.
Result
[19]The application is declined.
Harland J
Solicitors:
J M Ablett-Kerr KC, Barrister, Dunedin P R Law, Invercargill.
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