R v D

[2023] NZHC 538

IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY

I TE KŌTI MATUA O AOTEAROA WHAKATŪ ROHE

CRI-2019-042-450

[2023] NZHC 538

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 D CRI-2019-042-450

Hearing:	On the papers
Judgment:	17 March 2023

JUDGMENT OF McQUEEN J

[Access for Court Documents]

Introduction

[1]                 Dr Nichola Tyler has applied to the Court for access to a criminal file from 2019, pursuant to the Senior Courts (Access to Court Documents) Rules 2017. That file is R v D (CRI-2019-042-450).

The request

[2]                 Dr Tyler is a Senior Lecturer in Forensic Psychology at the School of Psychology at Te Herenga Waka | Victoria University of Wellington. Dr Tyler is the Principal Investigator within a team of researchers at Te Herenga Waka | Victoria University of Wellington and the University of Kent who are undertaking a research project which aims to develop knowledge about adults who engage in arson in Aotearoa New Zealand. They will compare the characteristics of these individuals with a matched sample of non-arson cases over a similar timeframe. They hope to develop socio-culturally informed assessment and treatment protocols to be used in

R v D CRI-2019-042-450 [2023] NZHC 438 [17 March 2023]

the assessment and rehabilitation of such persons. Dr Tyler has sought access to a number of criminal files in the Nelson District Court registry, but requires permission from the High Court in relation to R v D, as it was a High Court proceeding.

[3]                 Dr Tyler has provided a short outline of the study, and the way in which the information sought is proposed to be used. This outline provides:

What is involved?

We are contacting your Honour to request permission to access records for convicted arson cases heard in your Court between 1st January 2017 and 31st December 2021 for the purposes of the research, under the Court Access Rules. If permission to [access] these cases is granted, a member(s) of the research team would arrange a date/time to visit the court to review and code the requested records (a list of variables we will be coding for is included with this information sheet). De-identified information from the court records will be coded directly into an electronic codebook.

To maintain confidentiality, identifiable information (e.g., names, addresses) will not be recorded in the dataset, case numbers will be replaced with a unique ID, and data will be collected on password protected electronic devices and directly entered into the online codebook (hosted in Qualtrics) to reduce risk of data being compromised during transportation, and then downloaded and stored securely on University approved platforms.

[4]                 The information sought includes a wealth of personal detail about persons who have been convicted of arson offences, as well as the details of their offending and sentences. The ‘de-identified’ data collected is to be aggregated and analysed by the research team, to answer their research questions.

[5]                 The study itself is funded by the Royal Society of New Zealand | Te Apārangi and has been approved by Te Herenga Waka | Victoria University of Wellington Human Ethics Committee. Adherence to ethics and confidentiality agreements will be required of those involved in the research project.

Discussion

[6]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.

[7]These are the documents to which Dr Tyler is entitled by right to access.

[8]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.

[9]                 These are the documents which Dr Tyler requires the permission of a Judge to access, and therefore to which rr 11, 12 and 13 apply.

[10]              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 11(3) requires that a copy of a request must promptly be provided to the

parties to the proceeding (or their lawyers), but r 11(4) permits a Judge to dispense with this requirement if it would be impractical to require notice to be served.

[11]              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.

[12]Rule 13 requires that, in applying r 12, the Court have regard to:

…

(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.

[13]              The Court file contains both documents to which Dr Tyler is entitled and documents to which she is not entitled, as of right. I have considered the requirements of r 11 and the matters noted in rr 12 and 13, including the principle of open justice, the protection of confidentially and privacy interests and the nature of the research project and the manner in which data will be collected from the court file.

Outcome

[14]              In sum, the research project proposed by Dr Tyler and her research team has a valuable purpose and appears to be carefully thought-out. Such research plays an important role in developing new understanding and responses to offending.

[15]              I consider that in the circumstances, it is not practical to require notice of the request to be served on the parties or their lawyers. The nature of this request, to use anonymised information in the context of a heavily controlled academic research project, to my mind alleviates the concerns that may otherwise arise in relation to parties’ confidentiality and privacy interests and the general provision that notice of requests should be provided to parties or their lawyers.

[16]              I am satisfied that Dr Tyler and her research team should have access to the entire court file they have requested, subject to compliance with the outline provided to the Court (which includes how data will be collected and used) and the following conditions:

(a)Dr Tyler and her research team are not to remove any of the documents on the court file from the registry, or make copies of those documents; and

(b)Dr Tyler and her research team are not to publish any information that identifies any persons involved in the proceeding to which the court file relates.

[17]              On this basis, Dr Tyler may liaise with the registry to identify a suitable time for the court file to be viewed.

McQueen J