R v Butler T44/90

[2023] NZHC 599

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

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

T44/90

[2023] NZHC 599

UNDER	the Senior Courts (Access to Court Documents) Rules 2017
IN THE MATTER OF	an application for access to the Court file in R v David George Butler T/44/90

Hearing:	On the papers
Judgment:	24 March 2023

JUDGMENT OF McQUEEN J

[1]    Leanne McAra has applied to the Court for access to a criminal file from 1990 in which she was the complainant, pursuant to the Senior Courts (Access to Court Documents) Rules 2017. Ms McAra seeks access to all documents to which she is entitled, to help her further understand the proceedings. She has not proposed any conditions to access with which she would be willing to comply.

[2]Rule 8(3) provides:

(3)Every person has the right to access the following relating to a criminal proceeding, except as provided in subclause (4):

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

(b)any published list providing notice of a hearing:

(c)any judgment, order, or minute of the court given in the proceeding, including any records of the reasons given by a judicial officer:

(d)any judicial officer’s sentencing notes.

R v BUTLER T/44/90 [2023] NZHC 599 [24 March 2023]

[3]These are the documents to which Ms McAra is entitled by right to access.

[4]Rule 8(4) provides:

(4)Without limiting rule 6(a), a person may access the following documents in a criminal proceeding only if a Judge permits the person to do so:

(a)any pre-trial judgment, order, or minute in a criminal proceeding, including any bail judgment, order, or minute:

(b)any document containing evidence of a complainant or of a person who gives or intends to give propensity evidence:

(c)electronically recorded documents of interviews with a defendant:

(d)any document that identifies, or enables the identification of, a person if the publication of any matter relating to the person’s identity (such as the person’s name) is forbidden by an enactment or by an order of the court or a Registrar:

(e)any document received, or any record of anything said, in a proceeding while members of the public are excluded from the proceeding by an enactment or by an order of the court:

(f)any document containing evidence provisionally admitted into evidence and any document containing evidence that has been ruled inadmissible by the court.

[5]    These are the documents which Ms McAra requires the permission of a Judge to access, and therefore to which rr 11, 12 and 13 apply.

[6]    Rule 11 entitles a person to seek access to a Court document by way of written request that identifies the person, sets out the particulars of the documents so as to enable the Registry to identify it, gives reasons for asking for access to the document which must set out the purpose for which access is sought, and any conditions of the right of access that the person proposes as conditions he or she would be prepared to meet. Rule 12 sets out eight matters that the Court is required to consider. These matters are similar to the list of relevant matters found in the former r 3.16 of the High Court Rules that was revoked as from 1 September 2017 by r 19(2) of the Rules. Rule 13 provides guidance as to how the Court is to balance the matters set out in r 12.

[7]    I have reviewed the Court file, which contains documents to which Ms McAra is entitled as of right and documents for which a Judge’s permission is required. I have

considered the matters noted in r 12, including the principle of open justice, and the protection of confidentiality and privacy interests.

[8]    The registrar has attempted to contact the parties to the proceedings as required by r 11(3). The Crown does not object to Ms McAra having access. Mr Stapleton, who was counsel for the defendant in the proceeding in question, says that he is no longer acting for the defendant, and indicates that he has no way of contacting him. The registrar has not otherwise been able to locate the defendant. As such, and given the age of the proceeding, I consider that reasonable inquiries have been made and that it is therefore impractical in terms of r 11(4) to require notice of Ms McAra’s request to be served on the defendant.

Outcome

[9]    On balance, I am satisfied that Ms McAra should have access to the entire Court file, subject to compliance with the following conditions:

(a)Ms McAra is not to publish any of the material contained in the Court file;

(b)Ms McAra is not to make copies of any of the material, or disseminate such copies;

(c)Ms McAra may make notes relating to the material contained in the Court file; and

(d)Ms McAra is to be conscious of the privacy of those involved in the proceedings, by doing nothing that would impact their privacy unduly.

McQueen J