R v Murray
[2015] NZHC 1952
•18 August 2015
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2014-029-000756 [2015] NZHC 1952
THE QUEEN
v
MICHAEL THRIFT MURRAY
Hearing: 3-7, 10-14 August 2015 Appearances:
D G Johnstone and S McMullan for the Crown
M Dyhrberg QC and K Maxwell for the DefendantN Bremner on behalf of TVNZ A Gillies on behalf of TV3
Judgment:
18 August 2015
JUDGMENT OF WYLIE J
This judgment was delivered by Justice Wylie on 18 August 2015 at 9.30am
pursuant to r 11.5 of the High Court Rules
Registrar/Deputy Registrar
Date:………………………
R v MURRAY [2015] NZHC 1952 [18 August 2015]
Introduction
[1] Mr Murray has been found guilty of murder, and a conviction was entered on
14 August 2015. His trial commenced on 3 August 2015.
[2] Immediately before the trial commenced the Registrar received an application from a Mr Nick Baker of TVNZ. He sought to search the Court file and to obtain access to Mr Murray’s criminal history (if any). If there was a record of the criminal history on the file, he sought to copy it.
[3] I declined that application but indicated that I would re-consider it when a verdict was taken.
The application
[4] Notwithstanding that indication, on 13 August 2015, before the trial concluded, I received a further application from TVNZ. Once again it sought to search the Court file and access any criminal history that Mr Murray may have. The application stated that the purpose of the proposed search was to determine if Mr Murray has a criminal history, so that TVNZ could report quickly and accurately post-verdict. It was said that the speed with which events are reported online, and the demands on journalists in the wake of a verdict, make a post-verdict search difficult, if not impossible.
[5] On the same day, a similar application was received from a Ms Gillies, on behalf of Mediaworks – TV3.
[6] After I had heard the respective closings from counsel, but before I summed up, I heard both applications in chambers, in the presence of the accused.
[7] Ms Bremner, a reporter with TVNZ, appeared in support of the application. There was no appearance by the applicant, Mr Baker, or by the solicitor named on the application. Ms Bremner emphasised the difficulty that media organisations face post verdict. She confirmed that TVNZ would approach the matter responsibly and
undertook that it would not put any criminal record in the public domain prior to verdict.
[8] Much the same submissions were made by Ms Gillies, a reporter with TV3.
[9] Ms Dyhrberg opposed the application. She submitted that it was premature to allow media access to any criminal record that Mr Murray may have, and reiterated the view she had expressed when the matter first came before me, namely that the appropriate time to consider such an application is at sentencing.
[10] Mr Johnstone for the Crown was content to abide the decision of the Court. He did however comment there had been no reference to any convictions Mr Murray may have in the course of the trial. He accepted that there could be no issue of prejudice, because the fact of any criminal history that may exist would not be before the jury, but pointed out that there could be privacy concerns for Mr Murray.
[11] I advised the media that the applications were declined. I indicated that I would give my reasons in writing. I now give those reasons. I have done so by way of a judgment so that my decision will be in the public domain.
Analysis
[12] Criminal conviction histories are compiled by the records unit of the Ministry of Justice.
[13] The Ministry of Justice is an agency as that word is defined in the Privacy Act 1993. The information privacy principles set out in that Act apply and the Ministry is required to ensure that information collated by it is protected against access, use, modification or disclosure, except with its authority.1 Information relating to an individual’s convictions also falls within the definition of the words “law enforcement information” contained in s 110 of the Act, and as such, conviction histories can be made available to the public sector agencies identified in
schedule 5 to the Act.2
1 Privacy Act 1993, s 6, principle 5(a)(ii).
2 Sections 110 and 111, Schedule 5.
[14] Neither TVNZ nor TV3 are public sector agencies identified in Schedule 5 and the applications were made under r 6.8 of the Criminal Procedure Rules 2012. The provisions in part six of those Rules govern the procedure which is applicable when access is sought to criminal files. Access applications can in some situations be dealt with by the Registrar. They can also be referred to a judge. In the present case, and for obvious reasons, the applications were referred to me.
[15] When a request to access a document on a criminal file is referred to a judge, r 6.10 applies. It provides as follows:
6.10 Matters to be taken into account
(1) A Judge may deal with any request or application that requires permission of a Judge or the court to be given on the papers or at an oral hearing, and may grant access in whole or in part and subject to any conditions the Judge thinks appropriate.
(2) In determining a request or an application under this rule, the Judge must consider the nature of, and the reasons for, the application or request and take into account each of the following matters that is relevant to the application, request, or objection:
(a) the right of the defendant to a fair hearing: (b) the orderly and fair administration of justice:
(c) the protection of confidentiality, privacy interests (including those of children and other vulnerable members of the community), and any privilege held by, or available to, any person:
(d) the principle of open justice, namely, encouraging fair and accurate reporting of, and comment on, trials and decisions:
(e) the freedom to seek, receive, and impart information:
(f) whether any document to which the application or request relates is subject to any restriction under rule 6.9:
(g) any other matter that the Judge thinks just.
[16] I address each matter in turn, starting with the reasons for the applications.
[17] The applications were made primarily to assist TVNZ and TV3, so that they could report promptly on the case, when a verdict was reached. The applications
were made to make the reporters’ jobs easier and to enable them to put accurate
information in the public domain when they reported on the verdict.
[18] In effect, the applications assumed that Mr Murray’s prior convictions (if any) should properly be put in the public domain post verdict, whether or not they had been referred to in the course of the trial. For the reasons which follow, I considered that this assumption was unsound.
[19] I did not consider, under r 6.10(2)(a), that Mr Murray’s right to a fair hearing was relevant in the context of the applications. Both media organisations were prepared to undertake that they would not put the information in the public domain until a verdict was available. There was no suggestion that the information could fall into the hands of the jurors before they retired to consider their verdict.
[20] I did however consider, under r 6.10(2)(b), that there were implications for the orderly and fair administration of justice. It has become relatively common journalistic practice to publicise, after a verdict, a record of a defendant’s criminal convictions, frequently under the heading of “what the jury didn’t know”, or the like. Although I raised the issue with them, neither Ms Bremner nor Ms Gillies were able to offer any sound rationale for this type of reporting. I do not consider that publication of such information promotes the orderly and fair administration of justice. Rather it seems to me that it could potentially undermine the fair administration of justice, by inviting the public to “second guess” any verdict – particularly if the verdict were that the defendant is not guilty.
[21] Rule 6.10(2)(c) specifically required me to consider the protection of confidentiality, and privacy interests, and any privilege held by, or available to any person. This must extend to Mr Murray, and in my judgment his privacy interests were a factor to be weighed.
[22] As I have already noted, the Privacy Act applies to information collated by the Ministry of Justice about an individual’s criminal convictions. I accepted that the media has an important role to play as the “eyes and ears” of the public who are not at court. Media organisations are generally entitled to report on what takes place
in court hearings, but that does not mean that they should be entitled to report on information that is not presented at trial in open court.3
[23] In the present case there was no reference to any convictions Mr Murray may have during the course of the trial.
[24] A court file in criminal proceedings will frequently contain information which relates to the proceeding, but which is not admissible in evidence at trial.4 It is not routine for a defendant’s criminal history to be placed on his/her court file. Normally the Registry will only access a defendant’s criminal history if a defendant is found guilty. That is because normally any criminal history is relevant primarily to the sentencing process. It may be that on occasion, a defendant’s criminal history
will be on the file for other reasons, for example, where it is produced by the police in opposition to a bail application, or where it is produced by the Crown, as part of an application to admit propensity evidence. In such situations, the criminal history is put before the court not as part of the trial process itself, but rather in the course of a preliminary application, which may or may not be open to the media, and which, in any event, is likely to be subject to strict non-publication orders.
[25] In my judgment, the media did not have a right of access to such information;
nor did the media have any entitlement to publish such information.
[26] I accepted that the principle of open justice, recognised in r 6.10(2)(d), and the freedom to seek, receive and impart information recognised in r 6.10(2)(e) are important, but considered that they are not unrestrained.
[27] An individual’s privacy rights, both during and after trial is an important consideration. Privacy rights can be outweighed by the greater interest of the public in open justice during the course of a trial. Once a criminal trial has concluded, however, there can be more room to recognise individual privacy interests when an
application is made to access court documents.5
3 Mediaworks TV v Blowers [2014] NZHC 3073 at [10].
4 R v ABC [2014] NZHC 8 at [10].
5 R v Mahanga [2001] NZLR 641 (CA) at [32] and [41].
[28] At the time the applications were made in the present case, and I declined them, the trial had not been concluded. Nevertheless it seemed to me that Mr Murray’s privacy rights prevailed because any convictions he may have had not been placed in the public domain in the course of the trial.
[29] Ms Bremner did assert that it is commonplace to allow the media access to criminal histories, prior to verdict. I am not aware that that is the case, but even if it is, I am not persuaded by any argument relying on such practice. The principle of open justice recognises that the media’s principal role is to report on what happens during the course of a hearing. In Mr Murray’s case, the media was given full access to the hearing without objection by the Crown or the defence. There was extensive reporting on the same. The media were able to both report and comment on the trial and they did so. I do not see that the principle of open justice goes further and requires that the media have access to material which prima facie attracts an expectation of privacy and which has not been put in issue in open court.
[30] In my judgment a defendant with a criminal history has an expectation of privacy in relation to the same. If and when a defendant is found guilty, it may be that his or her criminal history will become relevant, and it may be referred to, in sentencing, in open court. If that happens, there will no longer be any expectation of privacy, but prior to verdict, defendants are entitled to expect that their private information will not be released to the media.
[31] Accordingly, I declined the applications.
Solicitors/counsel:
Crown Solicitor, Auckland
Ms Dyhrberg QC, Auckland
Copies to: TVNZ
TV3
Wylie J
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