R v Hudson

[2015] NZHC 2221

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI-2008-078-372 [2015] NZHC 2221

THE QUEEN

v

STEPHEN THOMAS HUDSON

On the papers
Judgment:	15 September 2015

JUDGMENT OF MALLON J

[1]      Mr White, a senior writer for North & South magazine, applies for access to the court file in this matter.  He wishes to read the file including, but not limited to, notes and briefs of evidence and the trial transcript if available.   He proposes to examine these documents at the High Court at Wellington.  His purpose at this stage is to research the murder of Mr Pike and Mr Hudson’s conviction for that murder.

[2]      Enquiries have been made with the defendant and the family of the deceased. They have no objection to the request.

[3]      Enquiries have also been made with one of the principal witnesses for the Crown.  This witness was in the car during the events leading up to the murder of Mr Pike.   She did not have name suppression at the trial.   However an order was made for pixelation of her face and distortion of her voice.   One aspect of her evidence was also suppressed.  This witness now seeks name suppression if access to the court file is to be granted.  She is very concerned about her name being brought

into the public arena again.  She says that her life has moved on significantly: she

R v HUDSON [2015] NZHC 2221 [15 September 2015]

has a new child, new employment and a new circle of friends (none of whom are aware of her past).  She says that if her name were published in connection with this matter it would cause her, her partner and her children, unnecessary difficulty and stress.

[4]      In addition to these enquiries, to consider the request it has been necessary to carry out a review of the file.   It is a large one, contained in several boxes.   The review has indicated that there were extensive suppression orders relating to the names of a number of witnesses and aspects of their evidence.  Two witnesses sought anonymity orders.1   These orders were not granted even though the Judge accepted that their safety was likely to be endangered if their identities were disclosed.  That was because the Judge considered that the orders sought would endanger fair trial rights.  Suppression orders were, however, made in respect of these witnesses.   In

addition there was material provided to the Judge which is sealed and is not to be opened other than by a High Court Judge.  There were also orders prohibiting still photography for the duration of the trial and an order pixelating all defence witness images.

[5]      In June 2015 the Court received a request from another party seeking access to this and other files.    That application was declined because of the suppression orders relating to witnesses, that it was not possible to gauge whether some material in the evidence might now identify the witnesses and there was no particular public interest underlying the application.2

[6]      An  application  for  access  to  a  court  file  is  governed  by  the  Criminal Procedure Rules 2012. An application can be granted in whole or in part and subject to any conditions the Judge thinks appropriate.3   In determining the request the Judge must consider the nature of, and the reasons for, the request.  The Judge must also take into account other relevant matters including the protection of confidentiality

and privacy interests of any person, the principle of open justice, the freedom to

1      Evidence Act 2006, s 112.

2      Re: An application by M Kalaugher for access to certain files (Minute) HC Wellington, 8 June

2015.

3      Criminal Procedure Rules 2012, r 6.10(1).

seek, receive and impart information and any other matter the Judge thinks just.4   A person cannot access a document, unless the Judge permits it, which (amongst other things):5

(a)       identifies  or  enables  the  identification  of  a  person  where  that  is forbidden by an enactment or order of the Court; or

(b)was received, or is a record of what was said, while members of the public were excluded by an enactment or order of the Court.

[7]      The principle of open justice and the right to seek, receive and impart information are factors which support Mr White’s request.  There is, however, a need to  balance  those  factors  with  the  confidentiality  and  privacy  interests  of  the witnesses.  There are strong confidentiality and privacy interests in this case given the matters set out in [3] and [4].  I am concerned that it will not be possible to grant access on conditions that will ensure compliance with the various suppression orders and protect the safety of the witnesses.  It would be a very extensive exercise for the Court to review the file carefully to remove all suppressed material from the file. The request does not provide a sufficient public interest to require this.

[8]      In these circumstances the application is declined.

Mallon J

4      Rule 6.10(2).

5      Rule 6.9(3)(c) and (d).