R v Ormsby-Turner
[2023] NZHC 2678
•26 September 2023
IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY
I TE KŌTI MATUA O AOTEAROA NGĀMOTU ROHE
CRI-2022-043-937
[2023] NZHC 2678
THE KING v
TANA ORMSBY-TURNER
Appearances: C E Clarke for the Crown K Pascoe for the Defendant Judgment:
26 September 2023
JUDGMENT OF COOKE J
(Access to Court documents)
[1] This judgment deals with two residual matters arising from these criminal proceedings, namely:
(a)An application by the Crown that certain reports on the Court file be released to police under the Senior Courts (Access to Court Documents) Rules 2017 (the Rules) for the purposes of a further investigation by police into the defendant’s conduct.
(b)An application by a media representative under the Rules that the sentencing submissions, and all reports prepared for sentencing, be released.
R v ORMSBY-TURNER [2023] NZHC 2678 [26 September 2023]
Relevant circumstances
[2] On 12 July 2023 I sentenced the defendant to 12 months’ home detention and a further 12 months of standard post-detention conditions following his guilty plea to one charge of wounding with intent to cause grievous bodily harm.1 The defendant was 16 at the time of the offending and was 17 at the time of the sentence. The Crown has appealed against this sentence.
[3] In the period leading up to the sentencing, reports had been prepared for the purpose of sentencing and made available to the Crown solicitor. These included pre- sentence reports from Probation Services (who in turn referred to underlying information from community sources), a cultural report under s 27 of the Sentencing Act 2002, and a report by a psychiatrist of a kind that can be ordered under s 38 of the Criminal Procedure (Mentally Impaired Persons) Act 2003 but which was privately commissioned in the present case. Amongst the matters addressed by the report writers was the defendant’s association with the Mongrel Mob gang through his family, and his suggested desire and/or ability to disassociate himself from the gang.
[4] In the period leading up to sentencing the police executed a search warrant at the defendant’s bail address. On executing the search warrant they located gang patches in a closet, and also identified that the defendant had a tattoo of the gang patch on his back. In addition police presented at sentencing recordings of calls that had been made from the defendant to his brother in prison which were inconsistent with the suggestion that he wished to disassociate himself from the Mongrel Mob.
[5] At sentencing the Crown argued that the information that had been gathered demonstrated that the defendant had not been honest with the report writers in indicating a desire to disassociate himself from the gang. The Crown contend that the defendant has been lying to the report writers, and that he has engaged in conduct that potentially involved an attempt to pervert the course of justice.2
1 R v Ormsby-Turner [2023] NZHC 1817.
2 Potentially giving rise to a charge for misleading justice under ss 108–117 of the Crimes Act 1961.
[6] Prior to sentencing, one of the report writers, Dr Knight, provided a further report in relation to the alleged dishonest statements by the defendant. He said in his further report, for example:
I do not know if Tana lied to me or not. If Tana did lie to me, that does not surprise me. Many patients and defendants have lied to me over the years. If Tana did lie to me, that does not invalidate everything that he said to me. Sometimes patients and defendants struggle to tell the whole truth at an initial interview. In my experience, repeated interviews with a patient might help me to get closer to the truth of their experience, as I build trust and rapport with them.
It is clear that Tana did lie to the interviewers who prepared the section 27 Sentencing Act 2002 report on him. In my opinion, the lie that Tana told about his tattoo does not invalidate the entire content of that report.
In my previous report on Tana dated 19th April 2023 I summarised some of the evidence that has been placed before various courts in Aotearoa regarding the tendency that adolescents have to act impulsively and make unwise decisions. It is within this context that I view Tana’s dishonesty. He is not yet mature enough to take full responsibility for his actions and talk honestly about those actions. This does not mean that his moral compass is damaged beyond repair. Rather, it means he needs the guidance of wise adults to help him do better.
[7] It was in this context that the Crown made an application for the release of the information held by the report writers to police for the purposes of investigating this potential offence. At the sentencing I timetabled the filing of further submissions on this point as it raised a separate matter that needed consideration by the Court.
[8] In addition, following the sentencing an accredited media representative made an application under the Rules for access to submissions and reports. The application says:
I am looking to develop a feature story based on this case, looking at youth offending and how the justice system considers the needs of the offenders like Mr Ormsby-Turner, despite the obvious risk factors present. I would like to see the documents to provide a full picture, as a basis for further investigation and other reporting.
[9] In light of this further request I asked the parties to address the media request at the same time as addressing the submission on the Crown application.
[10]I have now received the written submissions.
The Crown application
[11] I deal first with the Crown application which is advanced as an application under the Rules. The application is opposed by the defendant.
Framework for addressing application
[12] There is a preliminary issue about the application which has not been addressed in the parties’ submissions. It concerns the framework for addressing the application, and in particular whether the Rules are applicable, or regulate the access to the information the police seek in this case. The relevant documentation in question is already in the possession of the Crown solicitor for the purposes of sentencing. Is an application to inspect the Court file required in these circumstances, and what approach should the Court take to the request for access to this information? This question does appear to have been fully addressed in earlier authorities.
[13] In L v Family Court at Dunedin police officers were seeking access to information on a Family Court matter related to charges of manslaughter of a child who was the subject matter of the proceedings.3 Police approached counsel for the child who in turn applied under the Family Court Rules for access to the Family Court file. Although this is not recorded in the judgment counsel for the child may already have had those documents in his possession. Hansen J said:4
… if a person wishes to bring an application pursuant to [the Family Court Rules] it should be made by that person directly to the Family Court and not through an intermediary such as counsel for the child.
[14] The approach accordingly adopted appears to be that information held by counsel concerning a proceeding that the police wish to access as part of their investigation into suspected offending should be addressed in an application to the Court to inspect the Court file even though the information may be in the possession of counsel. But in Simes v Legal Services Commissioner the issue was whether the Legal Services Commissioner could obtain information concerning a Family Court proceeding directly from counsel, or whether an application to search the Court file
3 L v Family Court at Dunedin HC Dunedin CP2/03, 9 April 2003.
4 At [19].
was required.5 There the High Court held that seeking information directly from counsel did not involve a search of the Court file.6
[15] Whilst both cases involved a file in the Family Court, which are normally considered to be more sensitive in nature, that does not seem to be an important distinction on this issue. The definition of “access” in r 4, and the related rules in the Rules, contemplate the inspection of information that is actually on the Court file, rather than being in the possession of counsel.
[16] In any event the approach adopted in Simes v Legal Services Commissioner seems to me to be the appropriate one here. I do not consider that an application under the Rules is necessarily required in relation to information that is already in the possession of the Crown solicitor. A question nevertheless arises whether the Crown solicitor can release information to police for the purposes of such an investigation — that is, to use it for other than the purpose of the proceeding for which it was obtained. If the police did want to search the Court file for information that was on the Court file then an application under the Rules would be appropriate. But here we are dealing with reports that are already in the possession of the Crown solicitor, aspects of which have been referred to during the course of a sentencing hearing and in the sentencing decision. I consider it potentially artificial to consider this as a fresh application to have access to documents on the Court file. Indeed I understood Ms Clarke to have advised that she had already released some information to police for the purposes of obtaining the search warrant that I have referred to above.
[17] I have not been provided any direct authority on the point, but it seems to me that the Court regulates this position by exercising the inherent jurisdiction. This jurisdiction controls important aspects of the integrity of a criminal proceeding, such as media reporting and the ability to make orders to prevent such reporting.7 That includes the overlap with other regimes, such as access to court files for information concerning a criminal proceeding.8 Here information was initially obtained by the
5 Simes v Legal Services Commissioner [2017] NZHC 2331.
6 At [48].
7 See Re Siemer [2021] NZSC 50; Siemer v Solicitor-General [2013] NZSC 68, [2013] 3 NZLR 441.
8 See Stuff Ltd v AK [2020] NZHC 3010.
Crown solicitor from the defence and Probation Services in connection with the criminal proceeding. I consider that there is an implied undertaking that counsel will receive and use that information only for the purposes of the criminal proceeding especially during the course of the proceedings. Although that principle is usually referred to in relation to civil proceedings in the High Court, it arises as part of the inherent jurisdiction of the Court which is part of the criminal jurisdiction as well.9
Relevant considerations
[18] As with the exercise of the inherent jurisdiction in other contexts, including the use of it to make suppression orders, the inherent jurisdiction exists to protect the Court’s processes. Those processes have the capacity of being undermined if investigations are undertaken by bodies such as the police in a way that could interfere with the Court’s processes.
[19] The reports here were commissioned as part of a sentencing exercise. They were directly commissioned by defence, but can also be Court ordered. Dr Knight’s report followed an interview by the defendant by a psychiatrist. To allow police access to this information, or to allow investigations of defendants involved in those processes, has the capacity to interfere with the judicial processes. The English and Welsh Court of Appeal addressed similar concerns when addressing the admissibility of what defendants may have said to Probation Officers in R v Elleray.10 The Court concluded that such statements were admissible, but said:
However, the fact that the evidence may be admissible in criminal proceedings does not mean that the fact that the admission was made in the course of an interview between an offender and a probation officer should be ignored. It is clearly important that there should be frankness in the exchanges between a probation officer and an offender as this furthers the role of the probation officer in the sentencing exercise. If it were to be the practice that the prosecution regularly rely upon what is said by an offender to a probation officer as evidence for further prosecutions then clearly this would have an adverse effect upon this need for frankness. Indeed a situation could soon arise where probation officers would be hampered in performing their important duty to assist the court in determining the correct sentence for offenders. So in the case of an admission the prosecution should first carefully consider whether it is right to rely upon evidence provided by a conversation between
9 See Telstra New Zealand Ltd v Telecom New Zealand Ltd (1999) 14 PRNZ 108 (HC); Taylor v Attorney-General [2021] NZHC 1546 at [36].
10 R v Elleray [2003] EWCA Crim 553, (2003) 167 JP 325 at 329. See also R v Secord [1992] 3 NZLR 570 (CA); R v G [2010] NZCA 283.
a probation officer and an offender and only rely upon it if they decide it is in the public interests so to do. … In deciding whether to exclude the evidence it is perfectly appropriate for the court to have in mind the contrast between the position that exists where an offender is interviewed by the police and that which exists when the offender is interviewed by a probation officer. The court should bear in mind the need for frankness between the offender and the probation officer; the fact that there may not be a reliable record of what was said; that the offender has not been cautioned; and that the offender has not had the benefit of legal representation.
[20] I consider that similar considerations, and a similar balancing exercise applies when the Court is considering the grant of leave to release or access the reports. This will involve considering all relevant circumstances, including the public interest in investigating the alleged offending, and accordingly the seriousness of that offending. The reasons for restricting access are perhaps more significant when the interviews are between a psychiatrist and the authors of cultural reports and the defendant. It is of importance that the interaction between such report writers and a defendant be full and frank. Any concern that what is said may be reviewed by police and subject to investigation may undermine this. For the police to investigate whether the statements made by the defendant in that setting were untrue, and involved an attempt to pervert the course of justice, has the capacity to cut across the judicial process and to be contrary to the interests of justice.
[21] A similar approach would apply if access to the information is sought under the Rules. When a substantive hearing is still to take place the approach in r 13(a) applies and it is less likely that access to Court documents will be permitted. There is greater prospect of allowing access to information after the proceeding has concluded under r 13(c). In any event the Court will be significantly influenced by the impact that access has on the integrity of the criminal process.
[22] The balance the Court is required to strike has been referred to in other cases concerning the application of the Rules. In R v District Court, Kaitaia the Court overturned a Family Court decision refusing access being given to a psychological report to counsel acting in criminal proceedings.11 But in P v P the Family Court declined to release a psychological report which the police sought access to.12 The
11 R v District Court, Kaitaia [1994] NZFLR 558, (1994) 12 FRNZ 225 at229.
12 P v P [1995] NZFLR 186, (1995) 12 FRNZ 675.
Court concluded that it was “… wrong in the run of cases for the Family Court to release a psychological report to and at the request of the police, either to assist in ongoing inquiries, or to form part of a file for proceedings which have been concluded for the moment”.13 Much will accordingly depend on the particular circumstances of the case.
Application in the present case
[23] In the present case when considering the sentence I acknowledged that some of the things the defendant said to the report writers were not true, but I accepted the views of Dr Knight that the position was more complicated than the Crown submitted. The sentencing before this Court has been completed. But an appeal to the Court of Appeal has been filed by the Crown. The subject matter of the police investigation — the defendant’s statements to the report writers, whether they were honest, and the impact that they may have on the sentence ultimately arrived at — remains a live one in the judicial process. For that reason I consider it is not appropriate for access to be given to the documentation, either in the inherent jurisdiction or under the Rules, so that the police can conduct an inquiry into a matter that is still before the Courts.
[24] After the appeal is heard and determined there would be less reason to restrict the use of the information held by the Crown solicitor, or to prevent access to the Court file for the purpose of the investigation. But it would be appropriate to exercise some care in pursuing such an investigation. There is potential for police investigation into many matters that occur in criminal proceedings. For example, on each occasion where a defendant gives evidence denying offending at a trial where the defendant is subsequently convicted there is the prospect that the defendant will have committed perjury. I do not understand that to be regularly the subject of police investigation, however. Whilst I understand the perspective that the defendant may have not told the truth to the report writers in an attempt to manipulate a more lenient sentence in the present case, I see the position as more complex. Many assertions made by defendants at sentencing are not accepted. I do not apprehend there is necessarily a strong public interest in a further investigation of an alleged attempt to pervert the course of justice.
13 At 681.
[25] But that is only a preliminary view, and in any event the matter is still to be considered by the Court of Appeal. For present purposes, however, I consider that access to the Court file under the Rules, or through the Crown solicitor, should not occur.
Media application
[26] The second application is an application for the written submissions and relevant reports received by the Court at sentencing to be made available to a media applicant. These are appropriately addressed under the Rules in accordance with rr 12 and 13. The Crown opposed the application to the reports, but not in relation to the submissions. The defence opposed the application in both respects.
[27] In relation to the reports previous cases suggest that access can be declined under the Rules because of the character of the information in the reports. In R v Q & M Winkelmann J said:14
Some of the material on the file relating to sentence also falls into the category of confidential and private material. I refer in particular to the reports of psychologists, and the information gathered together and recorded in the pre- sentence reports. This material contains detailed and often highly personal information about Q and M’s backgrounds. To the extent they were relevant to sentence, I referred to them in my sentencing decision. I consider that material should not be released.
[28]Similarly in R v Tauroa Nation J held in relation to an s 27 report:15
The cultural report prepared for Mr Tauroa’s sentencing contains a substantial amount of extremely personal and private information. Where relevant, that information was presented in open court and can be found in the sentencing notes. As articulated in Blowers and Rahman, the principle of open justice has therefore already been satisfied. Given the highly personal nature of the cultural report, the privacy interests of Mr Tauroa must outweigh any considerations of open justice and freedom of information.
[29] In Horopapera, Simon and Mahuika v R the Court also recorded that the media organisation had properly withdrawn its application for the s 27 reports.16 And in R v
14 R v Q & M [2014] NZHC 2945 at [12].
15 R v Tauroa [2020] NZHC 727.
16 Horopapera, Simon and Mahuika v R [2022] NZHC 1410 at [17].
Rahman Woolford J declined an application for a psychologist’s report for such reasons.17
[30] I consider this approach is also appropriate in the present case. All of the reports contain sensitive and personal information concerning this young offender. I consider it would be inappropriate to release this information. Indeed it may undermine the rehabilitative features of the sentence to do so.
[31] The application in relation to the written submissions involves similar considerations. Whilst submissions are made in public in an open hearing, and there is legitimate reporting of what is said by counsel, written submissions can contain more sensitive information which is not highlighted by counsel in oral submissions precisely because of the sensitivity. I accept that there is a stronger case for release of these submissions because it was part of an open process. But in the present case there is a reasonably full record of the relevant information provided by way of submissions and in the reports referred to in the Court’s sentencing decision, and the appropriate balance has been struck between open justice and more personal information in the decision itself. That is particularly so when the sentence related to a young person, and where that sentence is being appealed to the Court of Appeal.
[32]For these reasons the media application is also declined.
Cooke J
Solicitors:
Crown Solicitors, New Plymouth
C&M Legal, New Plymouth for the Defendant
17 R v Rahman [2018] NZHC 1808 at [38].
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