R v Corkran

[2023] NZHC 2181

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

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

CRI-2021-083-1688

[2023] NZHC 2181

THE KING

v

JOHN RICHARD JAMES CORKRAN

On the Papers

Counsel:

M Wilkinson-Smith for Crown

R Lithgow KC and A Jeremich for Defendant

Judgment:

14 August 2023

JUDGMENT OF ISAC J

[Access to court documents]

Introduction

[1]    In a judgment of 26 June 2023, I granted a permanent stay of proceedings against Mr Corkran on the basis that it would not be possible for him to receive a fair trial.1

[2]    Mr Jimmy Ellingham, a journalist at Radio New Zealand, applies for access to the court file, and in particular “witness statements and any police or other statements made by the defendant”. The stated purpose for the request is to “allow an accurate report of the allegations against the defendants, and high public interest in the case”.2

1      R v Corkran [2023] NZHC 1602 (reissued 28 June 2023).

2      Application for access to court documents, dated 11 July 2023.

R v CORKRAN [2023] NZHC 2181 [14 August 2023]

Mr Ellingham records that he is content to abide by any conditions of access set by the Court.

[3]    Mr Corkran opposes the application, at least in  part.  In a memorandum of    1 August 2023 his counsel, Mr Lithgow KC, requested that the court not release:

(a)personal medical and psychiatric records and

(b)any identifying information by way of names and contact details of him and his family.

1. The Crown takes a neutral stance on the application.

Principles relating to access to court documents

[5]    Requests for access to court documents are governed by the Senior Courts (Access to Court Documents) Rules 2017 (the Rules).

[6]    The applicant is a third party to the proceeding and his request does not come within the scope of r 8(3), which outlines the general rights of the public to access documents in criminal proceedings. The application therefore falls to be determined under r 11. Rule 11(7) provides the Court with a wide discretion to grant or refuse a request for access in whole or in part, and subject to any conditions considered appropriate.

[7]    Determining requests for access involves a broad balancing exercise. Rule 12 requires the Court to consider the nature of, and the reasons given for, each request. I must also consider the following matters insofar as they might be relevant:

(a)the orderly and fair administration of justice:

(b)the right of a defendant in a criminal proceeding to a fair trial:

(c)the right to bring and defend civil proceedings without the disclosure of any more information about the private lives of individuals, or matters that are commercially sensitive, than is necessary to satisfy the principle of open justice:

(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:

(g)whether a document to which the request relates is subject to any restriction under rule 7:

(h)any other matter that the Judge thinks appropriate.

[8]    Rule 13 acknowledges that different interests hold different weight in the balancing exercise at various stages of a criminal proceeding. In particular, in applying r 12, I must have regard to the following:

(a)before the substantive hearing, the protection of confidentiality and privacy interests and the orderly and fair administration of justice may require that access to documents be limited:

(b)during the substantive hearing, open justice has—

(i)greater weight than at other stages of the proceeding; and

(ii)greater weight in relation to documents relied on in the hearing than other documents:

(c)after the substantive hearing,—

(i)open justice has greater weight in relation to documents that have been relied on in a determination than other documents; but

(ii)the protection of confidentiality and privacy interests has greater weight than would be the case during the substantive hearing.

Consideration

[9]    I am satisfied that the interests of both the applicant and Mr Corkran and his family can be accommodated if access is granted subject to conditions.

[10]   Mr Ellingham has a legitimate interest in accessing the court file. The considerations in r 12(e) and (f)—the principle of open justice (including the encouragement of fair and accurate reporting of, and comment on, court hearings and decisions) and the freedom to seek, receive, and impart information—clearly favour

granting access. That is especially so given the public interest in the proceedings, and in circumstances where there will be no substantive public hearing of the allegations.

[11]   While Mr Lithgow raised strong concerns about the prospect of further media reporting, and the impact that may have on Mr Corkran who is now very unwell, those concerns are likely to arise regardless of whether the application for access is granted.

[12] Furthermore, it is apparent from Mr Lithgow’s memorandum that the main concern of Mr Corkran and his family is in maintaining their privacy and protecting Mr Corkran from undue stress in the final stages of his life. These interests are reflected in the orders sought by Mr Lithgow, identified above at [3].

[13]   It does not appear from  Mr Ellingham’s  request  that  he  seeks  to  obtain Mr Corkran’s personal medical or psychiatric reports, or identifying information of him or his family members. Nor is it clear that such information is likely to be contained  within  statements  made  by  Mr Corkran   (which  are  the   focus  of   Mr Ellingham’s request). There is certainly no suggestion that he or any member of the media intends to approach Mr Corkran or his family in relation to the proceeding.

[14]   Nevertheless, for the avoidance doubt, given the need to protect the confidentiality and privacy interests of Mr Corkran and his family,3 I consider it is appropriate to make conditions restricting the use of any sensitive personal information in question.

Conclusion and result

[15]   Mr Ellingham’s application for access to Mr Corkran’s police or other statements held on the Court file is granted. To the extent those statements may contain any information concerning Mr Corkran’s personal medical or psychiatric records, or any identifying particulars concerning a member of Mr Corkran’s family, I direct that Mr Ellingham must not take notes or make copies of, publish, disseminate or otherwise distribute any such information.

3      Senior Courts (Access to Court Documents) Rules 2017, rr 12(d) and 13(c)(ii).

[16]   I also direct that before any material from the Court file is made available to Mr Ellingham that it is first referred to me to ensure compliance with the scope of access that I have granted.

Isac J