R v Milner - [2015] NZHC 939

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2011-009-012580 [2015] NZHC 939

THE QUEEN

v

HELEN ELIZABETH MILNER

Judgment: 6 May 2015

JUDGMENT OF GENDALL J (Access to Court Documents)

The application

[1] Ms Lee-Ann Cartier (Ms Cartier) the sister of the deceased in this matter, Mr Phillip Nisbett, applies to this Court for “release of all documents and files” held in respect of the trial of Ms Helen Milner (Ms Milner) on one count of attempted murder and one of murder.1 Ms Milner had appealed that conviction and her sentence to the Court of Appeal but this appeal was dismissed. Ms Milner then sought leave from the Supreme Court to appeal that Court of Appeal decision, but that leave was refused.

[2] The stated grounds on which Ms Cartier now seeks access to the documents and files are:

(a) As a victim, access to the information is required to help her move forward by understanding the proceedings in their entirety, and that to
do so should be within her rights.

1 R v Milner [2014] NZHC 233.

R v MILNER [2015] NZHC 939 [6 May 2015]

(b)Permitting access is the humane thing to do and would accord with the spirit of open justice and the “developing culture within the Justice sector that is supportive and emphatic to the victims of crime”.

(c) The trial was heard in “OPEN COURT” which meant any person was at the time able to view and hear the trial and that the system of justice is founded on open justice.

[3] Ms Cartier has previously made a similar application.2 Previously I declined that application on the primary basis that Ms Milner still had avenues of appeal open to her. That position has since substantially altered. The Court of Appeal as I have noted has dismissed Ms Milner’s convictions for murder and attempted murder.3
The Supreme Court then refused leave to appeal on the grounds set out in the notice of appeal, but left open the possibility of a new leave application on the strength of fresh evidence.4 The Supreme Court in its decision also made mention of the possibility of a rehearing in the Court of Appeal if fresh evidence comes to light and an application for exercise of the Royal Prerogative of Mercy.5

[4] As Ms Milner’s appeals were unfolding at an appellate level, applications were made to access the Court file. In minutes dated 19 August 2014 and 25 August
2014 in the Court of Appeal, Ellen France J permitted a Mr Bayer to have access to copies of submissions and to read (but not be furnished with a copy) of the notes of evidence.6 Mr Glover, counsel for Ms Milner, prior to delivery of the Supreme Court’s judgment, also raised concerns over a television series which it seems is tangentially connected to this application.7 I take that aspect no further here however.

[5] On the present application before the Court, the Crown’s position is that it

would…

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.

Continue reading R v Milner

Details

AGLC: R v Milner [2015] NZHC 939
Case: [2015] NZHC 939
Decision Date: 6 May 2015

CaseChat Overview and Summary

Ms Lee-Ann Cartier, the sister of Phillip Nisbett who was killed by Helen Milner, applied to the Christchurch Registry of the High Court for release of all documents and files from Ms Milner's trial on charges of attempted murder and murder. Ms Milner had unsuccessfully appealed her conviction and sentence to the Court of Appeal and leave to appeal to the Supreme Court. Ms Cartier sought access to the documents to help her understand the proceedings and move forward, and on the basis of the principle of open justice. The Crown was unobjectionable to providing relevant information to Ms Cartier but cautioned that it not be distributed more widely. Ms Milner's counsel opposed the release of any documents.

The court held that it was appropriate to permit Ms Cartier access to certain documents from the Court file, including the summary of facts, submissions of the Crown and Defence, the Court Transcript of the jury trial, and the judge's summing up, trial submissions, judgments, minutes and sentencing notes. However, certain other documents such as expert psychological reports and photographs were not to be disclosed at that stage. The court saw no good reason to impose restrictions suggested by the Crown on the dissemination of the information, given the stage the matter had reached and the unlikely event of any retrial.

The court granted Ms Cartier's application to access Court documents, subject to the restrictions noted above. Any interested party was granted leave to return to the Court on 24 hours notice if any concerns arose with compliance.

Orders