R v McIsaac HC Auckland T002911

[2001] NZHC 1287

IN THE HIGH COURT OF NEW ZEALAND
AUCKLAND REGISTRY T002911

THE QUEEN
v

JOSHUA WIREMU McISAAC

Hearing in Chambers: 27 November 2001

Counsel: S J E Moore for Crown
M A Edgar for Prisoner

Judgment: 18 December 2001

JUDGMENT OF SALMON J

Solicitors:
Crown Solicitor, DX CP24063, Upper Shortland Street, Auckland
M A Edgar, PO Box 6462, Wellesley Street, Auckland

[1] At the depositions stage the Crown applied for, and was granted, an order pursuant to Rule 2(4) of the Criminal Proceedings (Search of Court Records) Rules 1974 prohibiting publication of the depositions or evidence, either written or oral, of certain listed witnesses until further order of the Court.

[2] That order has been extended from time to time and subsists up to the giving of this judgment.

[3] At the sentencing of Mr McIsaac the Crown asked for the order to be made permanent. There were a large number of representatives of the media at the sentencing. When the issue of the non publication order was raised I enquired of the media representatives present whether any of them wished to make submissions on the application or to instruct counsel to make such submissions. Nobody present wished to take that course.

[4] After the sentencing was complete I heard submissions from the Crown in support of the application. Mr Edgar, on behalf of Mr McIsaac, abides the decision of the Court. I reserved my decision on the application.

[5] In Television New Zealand v R [1996] 3 NZLR 393 the Court of Appeal considered the circumstances in which it was appropriate to make an order prohibiting the publication of evidence. The Court noted that the starting point was the principle that in the absence of compelling reasons to the contrary criminal justice is to be public justice. The Court also noted the first of the principles declared in the Victims of Offences Act 1987, that Judges and others who deal with victims should treat them with courtesy, compassion and respect for their personal dignity and privacy. Except in the case of murder the definition of “victim” does not include members of the immediate family, but nonetheless I am of the view that their feelings are also entitled to consideration and respect.

[6] As the Court said in the case referred to above, the basic principles of open and public justice and of freedom of expression are subject to limits. In that case the Court was influenced by the fact that a significant part of the information in respect of which prohibition was sought was already in the public domain.

[7] Upon examining the order made earlier I was concerned that it was expressed more widely than was necessary. The Crown has now submitted an amended application and am satisfied that the material referred to in that document may appropriately be the subject of an order under Rule 2(4).

[8] In general the evidence which is now the subject of the application is irrelevant to the facts upon which the plea of guilty and the subsequent sentencing were based. The interests of privacy, therefore, outweigh the public interest in disclosure. There is no public interest, therefore, in it being available for production.

[9] I am prepared, with one minor amendment, to make the orders sought in the Crown’s application of 7 December 2001. Accordingly, I make an order in terms of that application with the following amendment. In paragraph 5 the words, “application and any order made” are deleted, because there is no reason to suppress the actual order.

[10] I record for the benefit of those reading the amended application or the order that the deleted portions of evidence are only a very small part of the total evidence in this case.