R v Ormsby-Turner - [2023] NZHC 2678

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]…

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 Ormsby-Turner

Details

AGLC: R v Ormsby-Turner [2023] NZHC 2678
Case: [2023] NZHC 2678
Decision Date: 26 September 2023

CaseChat Overview and Summary

The case of R v Ormsby-Turner involves a decision by Cooke J in the High Court of New Zealand, New Plymouth Registry, concerning the release of certain court documents related to the defendant's sentencing. The primary legal issues were whether reports prepared for sentencing could be released to police for further investigation, and whether sentencing submissions and related reports could be made available to the media. The Crown sought access to the reports for investigating potential dishonesty and perverting the course of justice, while a media representative sought access to the submissions and reports for a feature story on youth offending.

Cooke J first addressed whether the Senior Courts (Access to Court Documents) Rules 2017 applied to information already in the possession of the Crown solicitor. The judge found that while the Rules regulate access to the Court file, the inherent jurisdiction of the Court also applies to information held by counsel. The inherent jurisdiction was deemed to control the integrity of criminal proceedings, including preventing investigations that could interfere with Court processes. The judge concluded that allowing police access to the sentencing reports could undermine the frankness required in interactions between report writers and the defendant, potentially interfering with the judicial process.

Furthermore, the judge considered the balance between the public interest in investigating alleged offending and the potential interference with ongoing judicial processes. Given the appeal against the sentence, the judge found it inappropriate to allow police access to the reports. The judge suggested that after the appeal, it might be appropriate to allow an investigation, but with care to avoid over-investigating matters arising in criminal proceedings.

Regarding the media application, the judge found that the reports contained sensitive and personal information about the young offender and that releasing them would be inappropriate. The written submissions, although part of an open process, contained more sensitive information not highlighted in oral submissions. The judge concluded that the balance between open justice and privacy had already been struck in the sentencing decision, particularly given the young age of the offender and the ongoing appeal. Therefore, the media application was also declined.

Orders