R v Mouat - [2017] NZHC 2493

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 Defendant

Judgment:

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 Those rules have now been replaced by the Senior Courts (Access to Court Documents) Rules 2017 (the Rules) and I will treat the application as having been made under those rules.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…

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: [2017] NZHC 2493
Decision Date: 11 October 2017

CaseChat Overview and Summary

The High Court of New Zealand, New Plymouth Registry, presided over by Justice Churchman, dealt with an application for access to documentation in the case of The Queen versus Susan Elizabeth Mouat. The applicant, Kelly Dennett, sought access to the "summary of facts [and] all statements given by Susan Mouat throughout the investigation" on behalf of the New Zealand Herald and NZME. Counsel for the Crown, J M Marinovich, did not oppose the release of the summary of facts and the transcript of the interview of 19 October 2016, but raised concerns about releasing transcripts of earlier statements due to their reference to the evidence of two mental health professionals, which was disclosed to the Police without the defendant’s informed consent. Counsel for the defendant, E R Fairbrother QC, opposed parts of the application, arguing that earlier statements do not form part of the case against the defendant and there is no legitimate public interest in them.

The court applied the Senior Courts (Access to Court Documents) Rules 2017 in deciding the application. Rule 11(7) grants the Judge discretion to grant or refuse the request, subject to any conditions the Judge considers appropriate. Rule 12 lists factors to consider, including the administration of justice, the right to a fair trial, the right to privacy, the principle of open justice, and the protection of confidentiality and private interests. Rule 13 stipulates that after the substantive hearing, the protection of confidentiality and privacy interests has greater weight than during the substantive hearing. The court balanced the principle of open justice against the defendant's privacy interests, deciding that releasing other statements would breach her confidentiality and privacy interests, particularly those concerning her and the deceased's daughter.

Justice Churchman determined that the summary of facts and the 19 October 2016 transcript of interview should be provided to satisfy the principle of open justice, while maintaining the suppression order in relation to the identification of or reference to the defendant and deceased’s daughter. Access to any other statements was declined to protect the defendant’s confidentiality and privacy interests.

Orders