R v C HC Auckland Cri-2008-092-16723

[2009] NZHC 2579

This case has been anonymized

ORDER PROHIBITING PUBLICATION OF NAMES OR IDENTIFYING PARTICULARS OF THE PARTIES AND THE CHILDREN.

FURTHER SUPPRESSION ORDERS ARE AT [10]-[12] OF THIS JUDGMENT.

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2008-092-016723

THE QUEEN

v

C

Hearing:         2 December 2009 (On the Papers)

Appearances: A R Burns and A J F Perkins for the Crown

L Hughes for the Prisoner

Judgment:      2 December 2009

JUDGMENT OF DUFFY J

This judgment was delivered by Justice Duffy on 2 December 2009 at 4.45 pm, pursuant to

r 11.5 of the High Court Rules

Registrar/Deputy Registrar
Date:

Solicitors:    Meredith Connell P O Box 2213 Shortland Street Auckland 1140 for the Crown Public Defence Service P O Box 76715 Manukau City Manukau 2241 for the Prisoner

Copy To:    L van der Stoep (Deputy Chief Reporter, Sunday Star-Times) P O Box 1327

Auckland 1140

R V C HC AK CRI-2008-092-016723  2 December 2009

[1]      Leigh van der Stoep, the Deputy Chief Reporter of the Sunday Star-Times (the applicant) has  made a request to view  the file of Artwell C  ,  an offender who has pleaded guilty to and been convicted of infecting another with a disease, namely the Human Immunodeficiency Virus (HIV).   He is due to be sentenced in 2010.  The applicant’s request to view the file is made on the basis that Mr C   has pleaded guilty, and viewing the file would help the applicant to confirm exact spellings of names, details and dates of the offending.  The applicant ends the request with the plea that the principle of open justice prevails.

[2]      Since Mr C   has pleaded guilty to the offence on which he was charged, the applicable rules in the Criminal Proceedings (Access to Court Records) Rules 2009 are rr 6 and 13.  Rule 6 applies to accessing the formal Court record (as defined in r 3), and r 13 applies to accessing other documents in this criminal proceeding.

[3]      Access to the formal Court record under r 6 is subject to r 12 (see r 6(1)), which authorises the Judge to limit or restrict access to, or publication of information relating to a criminal proceeding.  Whenever a Judge is exercising any discretionary authority under the rules relevant to permitting an applicant to access criminal proceedings, a Judge should take into account the matters set out in r 16.

[4]      Before the request for access was referred to me, the Registrar referred the request to the Crown and to Mr C  ’s counsel.  The Crown does not oppose the request.   Mr C  ’s counsel, Ms Hughes, has advised that there is no general opposition to the request, but Ms Hughes has helpfully mentioned the potentially harmful impact on the victim, who is Mr C  ’s wife, if information which leads to her identification is disclosed to the applicant.

[5]      It is important that the principle of open justice recognised in r 16(b), r 16(d) or r 16(e) does not do injury to persons who are involuntarily drawn into the scope of a criminal proceeding.  Protection of confidentiality and the privacy interests of such persons  is  recognised  in  r  16(c).     Ms  Hughes  has  suggested  that  neither Mr C  ’s name nor his ethnic background is publicised at this time, through a concern that any such publication would also result in the indirect publication of

the victim’s identity.  Since the couple have one child, and the victim has a second child, any publication might also lead to the identification of the children.

[6]      Ms Hughes states that the main objection to the media’s request to view the file is that:

By   identifying   our   client,   it   may   indirectly   identify   his   wife   (the complainant).  While they do not have the same surname, their community (Zimbabwean African refugees) is relatively small, and HIV still has a great deal of prejudice attached to it.

[7]      Although the Crown has not objected to the applicant’s request, there is nothing to inform me that the Crown has made enquiries of the victim to obtain her view, either on the applicant having access to information relating to the criminal proceeding,  or  on  the  full  publication  of  information  about  Mr  C  ’s identity and race, and whether that would have a detrimental impact on her, or the children.

[8]      Mr C  ’s criminal offending has caused the victim to suffer a HIV infection.  She should not have to suffer the additional burden of having her health condition publicised, simply as an indirect result of media interest in the offending and the offender.  She should be given the opportunity to express a view on the issue before any information that could have this effect is disclosed to the applicant.

[9]      I consider that before either full access to the information relevant to the criminal proceeding, or publication of such information occurs, the victim’s views must be obtained.   Under r 13(5), an applicant to a request to access criminal proceedings must give notice to anyone adversely affected.  I consider that the victim qualifies as someone who may be adversely affected, if the applicant is granted access to the information sought.

[10]     Until  such  time  as  the  Court  is  informed  of  the  victim’s  views  on  the applicant having access to information in the criminal proceeding, I am not prepared to allow access to any information on the Court file that might directly or indirectly lead to the identification of the victim or the children.

[11]     However,  under  r  13(6),  a  Judge  may  dispense  with  the  requirement  of notice, if satisfied it would be impracticable to require notice to be given.   I understand that there is some urgency about the request.  I am prepared, therefore, to deal with the applicant’s request now in part, without requiring service on the victim. But the consequence is that access will not be permitted to any information that might directly or indirectly lead to the identification of the victim or her children. Save for that restriction, the media have permission to access information in this criminal proceeding that is covered by r 6 and r 13.

[12]    No one appears to have addressed the need for any suppression orders preventing publication of information identifying the victim or the children.  Because the issue requires immediate attention, I propose to make temporary orders suppressing the publication of the names and identifying particulars, or any other such information that may lead to the identification of the victim and her children, until such time as I have heard from the Crown and Mr C   on this issue.  If the  parties  or  the  applicant  want  to  be  heard  on  the  question  of  whether  the temporary suppression orders made today should remain in place until the sentencing of Mr C  , they should file and serve a memorandum setting out their stance on the imposition of temporary suppression orders.   Timetable directions for the filing of the memoranda are set out below.

[13]     I  expect  counsel  to  be  prepared  to  address  the  question  of  permanent suppression of the same information at the sentencing of Mr C  .   If the applicant wants to be heard on this issue, it should let the Criminal Registry know before the sentencing takes place.

Timetable orders in respect of temporary suppression orders

[14]     I direct that within five working days of the date of this judgment, the Crown is to file a memorandum advising the Court as to what protection, if any, the victim would seek of her privacy and that of her children.   Service is to be effected on Mr C   and the applicant.

[15]   Mr C   has five working days from receipt of the Crown’s memorandum to file and serve a memorandum setting out his stance.  Service is to be effected on the Crown and the applicant.

[16]     The applicant has five days from receipt of the last filed memorandum to file and serve a memorandum setting out its stance.

[17]     I consider that the procedure I have set out above should be the first step towards involving the victim, and that this is best done through the Crown contacting her, and reporting back to the Court on her stance.  This can perhaps be done through the officer in charge of the prosecution case, with whom I expect she would have developed some rapport.  If the victim seeks to have an active role in the question of the applicant having full access to the Court file, and with any subsequent full publication of information obtained, that can be indicated in the Crown’s memorandum.   Following any such indication, I propose to direct the applicant to file and serve on the victim, and the parties to the criminal proceeding, an interlocutory application setting out the orders it seeks from the Court, and the grounds for making any such orders.

[18]     I anticipate that any issues regarding permanent suppression of information which could lead to the identification of the victim and her consideration will be resolved at the time of the sentencing of Mr C  .

Duffy J