R v Dallison
[2023] NZHC 294
•24 February 2023
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CRI-2022-09-5239
[2023] NZHC 294
THE KING v
IAN WILLIAM DALLISON
Hearing: On the papers Counsel:
G J Burston and C T Hislop for Crown P L Borich KC for Defendant
A L Harding for NZME Publishing Ltd M van Beynen for Stuff Ltd
Judgment:
24 February 2023
JUDGMENT OF ISAC J
[Access to court documents]
Introduction
[1] In the evening of 4 August 2022, Mr Dallison drove to his landlord’s house and attempted to kill him using a firearm. Mr Dallison has pleaded guilty to charges of attempted murder, wounding with intent to injure and a series of firearms offences arising from those events. He is to appear for sentencing in the Christchurch High Court on 28 April 2023.
R v DALLISON [2023] NZHC 294 [24 February 2023]
[2] Mr van Beynen for Stuff Ltd and Mr Sherwood for NZME Publishing Ltd have each requested access to the following court documents:1
(a)Mr van Beynen requests access to all witness statements, including those of the victims; all photographs on the court file relating to Mr Dallison (including his firearms, vehicles, his appearance on the day of his arrest, and a dislodged bullet); Mr Dallison’s previous convictions; any psychiatric or psychological reports relating; and any pre-sentencing probation report.2
(b)Mr Sherwood seeks a copy of Mr Dallison’s police interview and any other statements provided to police.3 While he also sought a copy of the summary of facts, that has since been provided.
[3] Except for two documents, none of the material sought has been provided to the Court and access cannot therefore be granted under the Rules. Accordingly, the applications are dismissed insofar as they seek documents which are not on the court record.
[4] The two exceptions are the victim impact statements and Mr Dallison’s conviction history. The balance of the judgment deals with Mr van Beynen’s request for access to those documents.
[5] I have received helpful written submissions from all of the interested parties. In support of his request, Mr van Beynen says there is strong and legitimate public interest in the case, particularly given the profession and “elite” status of the defendant, a prominent and successful ophthalmologist. He submits that the principles of open justice and freedom of expression weigh strongly in favour of access being granted. Mr van Beynen says that release of the information will assist in writing full, accurate and factual articles about this serious crime.
1 In Minute (No 5) of Isac J dated 15 December 2022, I declined to grant access as sought for the time being, but left the door open for the applications to be renewed should that be appropriate.
2 Request for access to court documents, 12 December 2022; and Further request for access to court documents, 24 January 2023.
3 Request for access to court documents, 13 December 2022.
[6]Mr Borich KC for Mr Dallison opposes the requests.
[7] The Crown abides except insofar as the requests relate to the victim impact statements. Given the interests of the victims, the Crown opposes disclosure of their statements to media.
Principles relating to access to court documents
[8] Requests for access to court documents are governed by the Senior Courts (Access to Court Documents) Rules 2017 (the Rules).
[9] The applicants are third parties to the proceeding and their requests do not come within the scope of r 8(3), which outlines the general rights of the public to access documents in criminal proceedings.4 The applications therefore fall 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.
[10] 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 all of 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:
4 Moreover, r 8(4) provides that a person may not—without the permission of a Judge—be granted access to transcripts of interviews with a defendant or any document containing evidence provisionally admitted into evidence.
(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.
[11] 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
[12] I have no doubt that there is significant public interest in this case. As Mr van Beynen says, the seriousness of the offending coupled with Mr Dallison’s previous standing in the community, and the involvement of illegal firearms are all matters which the public are likely to have a genuine interest in. Accordingly, there is a strong interest in open justice and the freedom to seek, receive and impart information about the offending.
[13] However, I do not consider those interests are strongly engaged by the documents in issue. They certainly do not outweigh the victims’ expectations of privacy at this point in the criminal justice process or their privacy interests. The victim impact statements were provided to police for the purposes of sentencing and contain sensitive personal information. Whether that information becomes part of the public
record at the sentencing hearing in April 2023 remains to be seen and will be informed by their views. Access to the victim impact statements is therefore declined.
[14] Nor am I satisfied that it is necessary or appropriate to grant access to Mr Dallison’s criminal history. I do not consider there to be anything in the information sought relevant to the request, namely reporting on the present offending. As Mr Borich observes, if Mr Dallison has any previous convictions relevant to the present offending that will be addressed at the sentencing hearing. The request for the defendant’s previous convictions is declined also.
Result
[15]The applications for access to court documents are declined.
Isac J
Solicitors
Walker Street Chambers, Christchurch for Defendant Crown Solicitor, Wellington for Crown
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