R v Q

[2014] NZHC 2945

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2013-090-005262 [2014] NZHC 2945

THE QUEEN

v

Q & M

Hearing:	On the papers
Judgment:	25 November 2014

JUDGMENT OF WINKELMANN J

This judgment was delivered by me on 25 November 2014 at 2.15 pm pursuant to

Rule 11.5 of the High Court Rules.

Registrar/ Deputy Registrar

R v Q & M [2014] NZHC 2945 [25 November 2014]

[1]      Mr and Mrs Dudley request that a copy of the court file in this proceeding be released to Ms Ruth Money, whom they have appointed their representative under the Victims’ Rights Act 2002.  The application is made on the basis that as parents of the deceased they are the victims in this case, and that they need the information to help them to move forward. They say that allowing access is the humane thing to do and is in the spirit of open justice.  They submit that given the Court proceedings have concluded, allowing them access will do no harm. Instead, it will help them with their healing and understanding.  In the future their son Stephen’s siblings may also wish to understand details of the proceeding, and Mr and Mrs Dudley suggest that access to this material will help.

[2]      The Crown does not oppose the request, subject to the Court imposing appropriate conditions and restrictions.  It suggests that it is appropriate to withhold documents containing personal information relating to Q and M.   It identifies specifically several psychological reports, pre-sentence reports and other material that contains information falling into this category.  The Crown also submits that the documentation  should  be  released  on  the  condition  that  there  is  no  further distribution or publication of the information.

[3]      Mr Mansfield for M opposes the application.   He expresses concern that given the identity of the agent nominated by the Dudleys, Ms Ruth Money, the purpose of the request is simply to facilitate another agency having access to the material.  Ms Money is associated with the Red Raincoat NZ Trust and the Sensible Sentencing Trust.   He opposes the application,  but says that if a more focused application was made, in terms of the information and documents to which access is sought, that opposition would be reviewed.  If there is to be disclosure, he submits that  directions  should  be  made  limiting  the  use  and  any  publication  of  the documents.

[4]      Mr Munro for Q also opposes the application, for similar reasons to those put forward by Mr Mansfield.  Mr Munro submits that disclosure should be subject to a condition that the documents be read in the presence of the Crown and not copied or taken from the viewing room.

Framework for accessing court documents under the Criminal Procedure Rules 2012

[5]      Access  to  court  documents  in  criminal  proceedings  is  governed  by  the Criminal Procedure Rules 2012.  Rule 6.8(1) provides that any person may request access to the court file after a proceeding has been completed, which is after all applicable appeal periods have expired as they have here.   Requests are made in writing, identifying the document or court file sought, and giving reasons for the application.

[6]      Rule 6.10(2) sets out matters which a Judge must consider when addressing such an application.  It provides as follows:

6.10  Matters to be taken into account

…

(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; and

(g)       any other matter that the Judge thinks just.

[7]      The approach required is then to consider the nature of the request and its reasons, and then consider the relevance and weight of the various factors listed in sub-rule (2).   These factors are to be weighed against each other in determining whether to grant a request or refuse it, in part or whole, and subject to any condition the Court thinks fit.

Analysis

[8]      The Dudleys advance good reasons for seeking access to the file.  Although they were probably kept well-informed and consulted by the Crown during the court process, that was at a fraught time, and in a different context.   It is quite understandable that they wish to have time to reflect upon the material at the conclusion of proceedings.

[9]      I weigh in favour of granting the application the principle of open justice. Although reasons for the sentence were given in my decisions, the victims have a legitimate  interest  in  viewing  the  evidence  and  arguments  I  relied  upon.    The Dudleys  seek  to  better  understand  the  process  and  the  sentencing  decisions  by having access to the material.  That seems to me to be an appropriate application of the principles of open justice.

[10]     The right to seek, receive and impart information and opinions is drawn from s 14 of the New Zealand Bill or Rights Act 1990.  That consideration favours the grant of access in this case.

[11]     However, there is material on the file which was not before the Court or relied upon in sentencing and should not be released.   This includes the unsworn witness statements gathered by Police in the course of their investigation.   The statements were not evidence relied upon by the Crown.   The contents of the statements were not given in open Court, and were not tested by cross-examination. As  agreed  by  all  parties,  the  sentencing  proceeded  on  the  basis  of  the  agreed statement of facts.

[12]     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.

[13]     A further consideration is the existence of name suppression for both Q and M.  It is important to ensure that the grant of access does not facilitate publication of the name or identifying particulars of Q and M.

[14]     Balancing these various considerations I am satisfied that Mr and Mrs Dudley should be allowed access to the parts of the Court file relevant to name suppression, charge and sentence, but on conditions that will prevent publication of Q and M’s names and to prevent re-publication or further distribution of the material.  I exclude from the material in this category to which access is granted private information, such as psychologists’ reports and pre-sentence reports.  I also exclude the witness statements not produced in evidence.

[15]     Access to the following component parts of the file is therefore granted: (a)  Judgments, minutes and sentencing notes.

(b)Indictments,     amended     indictments,     applications     to     amend indictments, informations and summaries of fact.

(c)      Formal written statements of Dr Paul Morrow and Professor A C Thomas, both provided in support of applications for leave to amend indictments.

(d)The sentencing submissions and the affidavits of M and Q filed in support of those submissions.   However, the psychologist’s report attached to Q’s affidavit should be omitted from the information provided to the Dudleys.

(e)      Application for name suppression, including submissions.  However, the psychologist’s report attached to the memorandum should be redacted,  and  any  portions  of  the  report  included  in  submissions should also be redacted.

[16]     All information released should have names and identifying particulars of

Q and M redacted.

[17]     All information that is released is released on the condition that there will be no publication in any form of the documents by either the Dudleys or Ms Money, and that they not be further distributed beyond the Dudleys or Ms Money.

[18]     The application for access is declined in respect of:

(a)      Any applications  for variation  of bail.    Such  applications  contain private information and are not relevant to the issue of the nature of the charges, name suppression or the sentence.

(b)       The witness list, and various unsworn witness statements.

(c)      Other miscellaneous applications on the file, such as numerous applications for access to court records by media and applications to film.  This material is irrelevant to the purpose for which the Dudleys seek access.   There would be an administrative burden in redacting those documents, which is not therefore justified in the circumstances.

[19]     Finally, the issue arises as to the status of Ms Money.   Ms Money is a representative of both the Red Raincoat NZ Trust and the Sensible Sentencing Trust. However she is not seeking access in that capacity.   The Dudleys say they have appointed  her  their  representative  under  the  Victims’ Rights Act  2002,  but  the provisions  in  that Act  dealing  with  the  appointment  of  representatives  have  no application to the present case.  Nevertheless I accept the Dudleys’ basic point that they seek assistance in understanding the documents.   I am satisfied that the imposition of conditions should be sufficient to meet the concerns raised on behalf of Q and M.

[20]     In  addition  to  the  conditions  set  out  above,  I  impose  the  condition  that Ms Money is to provide a written undertaking to the Registrar before the material is released to her.  The undertaking is to be to the effect that Ms Money will not further distribute or publish the information contained in the court file, and will only use the information for the purposes of discussing it with the Dudley family.