R v Mouat
[2017] NZHC 2493
•11 October 2017
NOTE: ORDER PROHIBITING PUBLICATION OF NAMES OR IDENTIFYING FEATURES OF CHILD.
IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY
I TE KŌTI MATUA O AOTEAROA NGĀMOTU ROHE
CRI-2016-020-2911 [2017] NZHC 2493
THE QUEEN
v
SUSAN ELIZABETH MOUAT
Hearing: 11 October 2017 Counsel:
J M Marinovich for the Crown
E R Fairbrother QC for DefendantJudgment:
11 October 2017
JUDGMENT OF CHURCHMAN J [re media application (No. 3)]
[1] Kelly Dennett made an application on behalf of the New Zealand Herald and NZME for access to documentation in this matter on 10 October 2017. The documents that access was requested to were the “summary of facts [and] all statements given by Susan Mouat throughout the investigation”.
[2] The application was referred to counsel for the Crown and defence.
THE QUEEN v MOUAT [2017] NZHC 2493 [11 October 2017]
[3] A teleconference was convened on 11 October 2017 to hear submissions on the application.
[4] For the Crown, Mr Marinovich confirmed that there was no opposition to the summary of facts and the transcript of the interview of 19 October 2016 being provided, but was concerned that provision of the transcripts of earlier statements would involve reference to the evidence of two mental health professionals (a consultant psychiatrist and mental health nurse) which was apparently disclosed to the Police without the defendant’s informed consent. The original statements given by the defendant to the Police refer to the comments by her mental health professionals.
[5] Mr Marinovich also referred to the suppression order I had made in my Minute of 25 August 2017 suppressing the name of the daughter of the defendant and the deceased, and suppressing publication of any information likely to identify her or refer to her.
[6] Mr Fairbrother QC, for the defendant, opposed aspects of the application and, in relation to the statements, submitted:
The guilty plea was entered on the basis of the 19 October video interview. As a result of the guilty plea, the earlier statements do not form part of the case against the defendant and there is no legitimate public interest in them.
The law
[7] The application by Ms Dennett referred to it being made under the Criminal Procedure Rules. Those rules have now been replaced by the Senior Courts (Access to Court Documents) Rules 2017 (the Rules) and I will treat the application as having been made under those rules.
[8] Rule 11(7) provides that the Judge has a discretion to grant or refuse such a request, subject to any conditions the Judge considers appropriate. Rule 12 stipulates that the Court must consider the nature of and the reasons given for the request and
then take into account such of the following matters that is relevant to the request:1
1 Senior Courts (Access to Court Documents) Rules 2017, r 12.
(a) the orderly and fair administration of justice;
(b) the right of the 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 private 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;
(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.
[9] Rule 13 provides that the Judge must have regard to the fact that after the substantive hearing open justice has greater weight in relation to documents that have been relied on in the determination than other documents, but a protection of confidentiality and privacy interests has greater weight than would be the case during the substantive hearing.
[10] Rule 14 permits a Judge to determine a request for access in any manner the
Judge considers just.
Analysis
[11] In this case I have determined that the appropriate manner to deal with this application is to hold a hearing with counsel by way of teleconference and provide them with the opportunity to make submissions.
[12] The principle of open justice clearly requires provision of the summary of facts and I direct that be provided. The statement that was electronically recorded on
19 October 2016 is the statement upon which the prosecution is based. It is in the interests of open justice that a transcript of that be provided and I so direct.
[13] The application by Ms Dennett states:
There are no suppression orders in this case and once a case has been completed through the Courts, it is typical for access to Court files be given to journalists, particularly in cases of high public interest.
For the reasons detailed above, the claim that there have been no suppression orders in this case is incorrect. The suppression orders relating to identification of or reference to the deceased and the defendant’s daughter remain in effect.
[14] Because there was no trial in this matter, much of the material on the Police file was not relied upon. The summary of facts and transcript of the interview of
19 October 2016 are exceptions and have clearly been relied upon in support of the
Crown case; that is why it is appropriate that they be released.
[15] In relation to the other statements of Ms Mouat, r 12 of the Rules clearly anticipates the protection of confidentiality and privacy interests, including those of children, being a relevant matter for the Court.
[16] Rule 13(c)(ii) provides that after the substantive hearing the protection of confidentiality and privacy interests has greater weight than would be the case during the substantive hearing.
[17] Because the Rules only came into force on 1 September 2017 there has been little case law interpreting them. However, the issue of balancing the need for open justice against privacy and confidentiality considerations was considered by Venning J in a case under the Criminal Procedure Rules.2 That case also involved an application for access to statements which had not been tendered in Court. The Court said: 3
The important principle of open justice properly supports accredited members of the media having the right to be present and to report on what takes place in the Court. ... The request for access to the statements (including the video statement) on the Court file is a request for information which has never been given in open Court. It is not necessary for the media to have access to those statements to satisfy the important principle of open justice. I do not consider the principle of open justice, and the media’s role as the “eyes and ears” of the public reporting what takes place in Court supports the release of material.
2 Mediaworks TV v Blowers [2014] NZHC 3073.
3 At [9]−[10]
[18] In Mediaworks TV v Blowers, Venning J permitted access to the summary of facts and the victim impact statements only.
[19] In the present case, the defendant has clearly suffered from mental health issues and a report from Dr Young was attached to the information provided at the time the Court gave the sentence indication.
[20] I am satisfied that releasing copies of statements made by the defendant other than the statement made by her on 19 October 2016 would breach her confidentiality and privacy interests. To the extent that those statements refer to the defendant’s and deceased’s daughter, releasing them would also breach her confidentiality and privacy interests.
[21] I determine that open justice does not outweigh those privacy interests and decline to authorise access to any of the defendant’s statements other than the
19 October 2016 transcript of interview.
[22] In relation to that transcript and the summary of facts, the suppression order in relation to identification of or reference to the defendant and deceased’s daughter remains in effect.
Churchman J
0