R v Exley - [2023] NZHC 3309

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

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

CRI-2022-035-121

[2023] NZHC 3309

THE KING

v

DAMON JOHN EXLEY

Hearing: On the papers

Counsel:

J G Avia for Crown

S S Pohiva for Defendant

Judgment:

21 November 2023

JUDGMENT OF RADICH J

(Application for access to court documents)

[1] Damon Exley pleaded guilty to charges of unlawful taking of a motor vehicle1, burglary2 and escaping lawful custody.3 He pleaded not guilty to, but was convicted by a jury of, charges of abduction for the purposes of sexual connection,4 assault with a weapon5 and sexual violation by rape.6

[2] A journalist with Stuff has applied under the Senior Courts (Access to Court Documents) Rules 2017 (the Rules) for access to court documents relating to Mr Exley’s escape from prison.

1      Crimes Act 1961, s 226(1)(a).
2      Crimes Act, s 231(a).
3      Crimes Act, s 120(1)(a).
4      Crimes Act, s 208(1)(b).
5      Crimes Act, s 202C(1)(b).
6      Crimes Act, s 128.

R v EXLEY [2023] NZHC 3309 [21 November 2023]

[3] In this decision, I consider the request on the basis of the matters that are to be taken into account under rr 12 and 13 of the Rules.

The documents requested and the reasons for the request

[4] The documents to which access is sought are expressed in the following way in the application:
-The full summary of facts, which encompasses the charges related to Mr Exley’s prison escape – offending he pleaded guilty to before standing trial on rape and abduction charges.

-The photo booklet, excluding any sensitive photographs such as those that might identify the victim.

-Any statements / interviews Mr Exley gave after his arrest, including a copy of his recorded interview with police.

-Any relevant witness / victim statements that were provided to police.

[5] The reasons for the request have been expressed in the following way in the application:
I’m an investigative journalist with Stuff, specialising in crime and justice issues. The abduction and rape of a woman by an inmate who’d escaped from prison is of very high public interest. I want to scrutinise how Mr Exley came to escape from prison, allowing him to reoffend in a very serious manner. Reporting of the matter in full will bring the matter out into the open, and hopefully help to ensure an incident like this doesn’t happen again in the future. The documents I’ve requested will aid me in doing this. I submit that my request is inline with the principles of open justice, and will allow for the fair and accurate reporting of the matters at hand.

The provisions and principles to be applied

[6] Under r 11 of the Rules, a Judge may grant a request for access to documents with or without conditions. In doing so, the Judge needs to consider the matters outlined in rr 12 and 13. Rule 12 is in the following terms:
12 Matters to be considered
In determining a…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2023] NZHC 3309
Decision Date: 21 November 2023

CaseChat Overview and Summary

In this case, a journalist from Stuff has applied for access to certain court documents pertaining to the escape of Damon John Exley from lawful custody. Exley had previously pleaded guilty to charges including unlawful taking of a motor vehicle, burglary, and escaping lawful custody, but was convicted by a jury of additional charges such as abduction for the purposes of sexual connection, assault with a weapon, and sexual violation by rape. The application seeks access to documents related to Exley's escape from prison, including a full summary of facts, a photo booklet, statements and interviews Exley gave after his arrest, and any relevant witness or victim statements. The journalist's aim is to scrutinise how Exley managed to escape from prison and to report on the matter, asserting that it is of high public interest and will help prevent similar incidents in the future. The Crown does not oppose the application, but counsel for the defendant opposes the greater part of it.

The legal issues before the court revolve around the application of the Senior Courts (Access to Court Documents) Rules 2017. The court must consider the nature of the request and the reasons provided, balancing various factors including the orderly and fair administration of justice, the rights of the defendant to a fair trial, the protection of privacy and confidentiality, and the principle of open justice. The court also needs to determine whether the documents requested are subject to any restrictions and whether their release would unduly prejudice any party. In this case, the court must weigh the principle of open justice against the need to maintain the fair administration of justice and the protection of Exley's right to a fair trial.

The court found that the application was primarily focused on documents relating to Exley's escape from prison, which had already been pleaded guilty to. The documents used at Exley's trial did not pertain to his escape and were redacted accordingly. Information about the escape was contained in portions of the summary of facts and the transcript of Exley's evidential interview, but not in the photo booklet or the victim's evidential interview. The court concluded that until Exley's sentencing hearing, which was scheduled for 1 February 2024, the information about his escape should not be released to the public to avoid prejudicing the administration of justice and Exley's right to a fair trial. The court determined that those parts of the documents that related to Exley's escape could be released after the sentencing hearing but not before.

The final orders of the court were that the documents relating to Exley's escape from prison, specifically those parts of the summary of facts and the transcript of Exley's evidential interview, could be released after Exley's sentencing hearing on 1 February 2024. Until then, the release of these documents would not be appropriate to ensure the fair and orderly administration of justice and to protect Exley's right to a fair trial.

Orders