R v Shepherd

[2024] NZHC 3601

NOTE: PUBLICATION OF NAMES OR IDENTIFYING PARTICULARS OF COMPLAINANTS PROHIBITED BY S 139 OF THE CRIMINAL JUSTICE ACT 1985.

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CRI-2009-454-13 CRI-2007-054-13

[2024] NZHC 3601

IN THE MATTER	of an application to access documents on Court file
CT and DM Applicants

Hearing:	On the papers
Appearances:	F Brailsford
Judgment:	28 November 2024

JUDGMENT OF McHERRON J

[1]    CT and DM seek access to court documents in R v Shepherd (CRI-2009-454- 13, CRI-2007-054-13), in which they were both complainants. This is a concluded criminal matter. The file had a complex procedural history, with severed charges, requiring two trials and re-trials in each, resulting in four trials. but for the purposes of this application, it is treated as one file. Apart from the applicants, there were several other complainants whose details are mentioned in the file.

[2]    The applicants have made three previous requests for documents from this file.1 Those requests were either for the release of their own testimony, or for

1      See Re Application by Feroze Brailsford for access to court file [2023] NZHC 2855 [11 October 2023] [Judgment of Radich J]; D (Application granting permission to disclose identity of complainant to certain persons) HC Palmerston North, CRI-2009-454-13, 13 August 2024

R v SHEPHERD (Access to Court documents) [2024] NZHC 3601 (28 November 2024)

permission to disclose such testimony to specific people and groups. The previous requests for documents were dealt with on a without notice basis. In the most recent application, La Hood J stated:2

[7]     I am also satisfied that it is appropriate to grant the request to access  on a without notice basis. Mr [T] seeks access to information and documents of which he is intimately familiar as they relate to evidence and statements he has given in respect of his criminal complaint against Mr Shepherd. There cannot therefore be any confidentiality or privacy concerns in respect of    Mr Shepherd in Mr [T] having access to the documents. I also consider that granting access is consistent with Mr [T]’s freedom to seek, receive and impart information about himself. He seeks the documents to pursue potential civil claims for abuse he is alleged to have suffered and should have access to Court documents that may assist in that claim.

Background to the request

[3]    The offending against DM occurred in 1994, and CT alleged offending against himself in 2007. In 2009 and 2010, Mr Shepherd was found guilty of sexual violation and indecent assault against DM, and not guilty of indecent assault against CT.

[4]    Mr Shepherd does not have name suppression,3 and was sentenced to a substantial period of imprisonment for the charges he was found guilty of against DM and against another complainant.4

[5]    In making the request, the applicants rely on their previous applications, the interests of justice, and the Senior Courts (Access to Court Documents) Rules 2017 (Rules). Access to the documents may assist them in advancing settlement negotiations and/or proceedings in respect of sexual offending and alleged sexual offending by Mr Shepherd.

[6]    The applicants initially sought access to documents related to Mr Shepherd’s testimony, including written statements and transcripts. They now seek to expand their joint application to include access to either:

(Minute of La Hood J); C (Access to  Documents)  HC Palmerston  North,  CRI-2009-454-13,  26 September 2024 (Minute of La Hood J).

2      C (Access to Documents) HC Palmerston North, CRI-2009-454-13, 26 September 2024 (Minute of La Hood J).

3      Suppression was originally in place due to the requirements for re-trials, but the Court understands it has since lapsed. Permanent suppression is in place for the complainants.

4      R v Shepherd HC Palmerston North CRI-2009-454-13, 15 September 2010.

(a)the entire High Court file; or

(b)the charge sheets, all transcripts, all judgments, decisions, directions and orders, and all written submissions, memoranda and applications.

The Rules

[7]    Although CM and DT were complainants and witnesses in a criminal proceeding and have a genuine and material interest in the proceeding, they are not parties. Therefore, the request cannot be determined under r 9 of the Rules.5

[8]    Determination of a request for access to documents that are not accessible as of right is governed by r 11, which states (relevantly):

11Any person may ask to access documents

(1)This rule applies if a person is not entitled to access a document relating to a proceeding or an appeal under rule 8 or 9.

(2)A person may ask to access any document by providing the Registrar of the relevant court registry with a letter, an email, or any other written form of request that—

(a)identifies the person and gives the person’s address; and

(b)sets out sufficient particulars of the document to enable the Registrar to identify it; and

(c)gives reasons for asking to access the document, which must set out the purpose for which the access is sought; and

(d)sets out any conditions of the right of access that the person proposes as conditions that he or she would be prepared to meet were a Judge to impose those conditions (for example, conditions that prevent or restrict the person from disclosing the document or contents of the document, or conditions that enable the person to view but not copy the document).

…

(7)A Judge may—

(a)grant a request for access under this rule in whole or in part—

(i)without conditions; or

5      Senior Courts (Access to Court Documents) Rules 2017, r 9.

(ii)subject to any conditions that the Judge thinks appropriate; or

(b)refuse the request; or

(c)refer the request to a Registrar for determination by that Registrar.

(8)Without limiting the powers in subclause (7), the Judge may refuse a request for access under this rule solely for the reason that the request does not comply with subclause (2)(a), (b), (c), or (d).

[9]    Rule 12 sets out the matters that must be considered by the court in determining a request for access under r 11:

12Matters to be considered

In determining a request for access under rule 11, the Judge must consider the nature of, and the reasons given for, the request and take into account each of the following matters that is relevant to the request or any objection to the request:

(a)the orderly and fair administration of justice:

(b)the right of a defendant in a criminal proceeding to a fair trial:

(c)the right to bring and defend civil proceedings without the disclosure of any more information about the private lives of individuals, or matters that are commercially sensitive, than is necessary to satisfy the principle of open justice:

(d)the protection of other confidentiality and privacy interests (including those of children and other vulnerable members of the community) and any privilege held by, or available to, any person:

(e)the principle of open justice (including the encouragement of fair and accurate reporting of, and comment on, court hearings and decisions):

(f)the freedom to seek, receive, and impart information:

(g)whether a document to which the request relates is subject to any restriction under rule 7:

(h)any other matter that the Judge thinks appropriate.

[10]   Whether to grant access to court documents is an evaluative decision. No factor, including that of open justice, has paramountcy; a balancing exercise of all the relevant factors is required.6 Further guidance on this is provided in r 13:

6      Crimson Consulting Ltd v Berry [2018] NZCA 460, [2019] NZAR 30 at [16] and [30].

13Approach to balancing matters considered

In applying rule 12, the Judge must have regard to the following:

(a)before the substantive hearing, the protection of confidentiality and privacy interests and the orderly and fair administration of justice may require that access to documents be limited:

(b)during the substantive hearing, open justice has—

(i)greater weight than at other stages of the proceeding; and

(ii)greater weight in relation to documents relied on in the hearing than other documents:

(c)after the substantive hearing,—

(i)open justice has greater weight in relation to documents that have been relied on in a determination than other documents; but

(ii)the protection of confidentiality and privacy interests has greater weight than would be the case during the substantive hearing.

[11]   Finally, pursuant to r 5, the Rules also do not affect a court’s inherent power to control its own proceedings.

Analysis

[12]   This application is not as clear-cut as the previous applications by DM and CT determined by this Court. While DM and CT seek access to information and documents which they are most likely familiar with given their involvement in the trials, I must also weigh Mr Shepherd’s privacy and confidentiality interests. The criminal process has long concluded. The application is brought without notice, which while understandable in the circumstances, means Mr Shepherd has had no opportunity to respond.

[13]   I directed the Registrar to give a copy of the application and my minute of   18 November 2024 to the parties, giving them an opportunity to object to the application.

[14]   Mr Shepherd responded that, having taken legal advice, and on the understanding that the Court would make orders limiting how the material can be used, he has no objection to the application.

[15]   The Palmerston North Crown Solicitor responded that, as long as the complaints’ privacy interests are protected, the Crown is satisfied the statutory criteria are met and it does not oppose the application.

[16]   It appears that all the material to which access is sought was dealt with in open court at the trials. In many ways, its private character has been lost.7

[17]   I am satisfied the applicants have a genuine and material interest in all the documents sought. I am also of the opinion that the confidentiality and privacy interests of Mr Shepherd, even at this post-trial stage, can properly be weighed against the applicants’ freedom to seek, receive and impart information and to use the information in the manner proposed.

[18]   I am satisfied the orders sought are appropriate to allow the applicants to advance discussions concerning redress with/issue proceedings against specific named entities and individuals.

[19]   Because of the scope of the application (the entirety of the High Court file), it is impracticable to direct the Registry to provide the applicants with a full copy. Rather, I will make an order permitting a solicitor from Mr Brailsford’s firm to attend the Court and inspect the file and obtain copies of specific documents or excerpts of documents from the file.

[20]I therefore make the following orders:

(a)The applicants are granted access to the file of this proceeding. Their solicitors may attend the Court to review the entire High Court file and obtain copies of individual documents. They are not permitted to publish any of the material from the file, but are permitted to disclose

7      Television New Zealand v R CA 213/00, 28 November 2000 at [15].

documents and/or information from it to the following entities and individuals, for the purpose of advancing discussions concerning redress or issuing proceedings:

(i)The Ministry of Education.

(ii)The Marist Brothers.

(iii)The Auckland Diocese of the Catholic Church.

(iv)Mr Shepherd.

(v)The Board of Trustees of Hato Pāora.

(vi)The Hato Pāora Trust Board.

(vii)The Palmerston North Diocese of the Catholic Church.

(viii)The Human Rights Commission and any Tribunal or Court.

(b)Documents or information from the files may not be used for any other purpose without express permission being sought and obtained from this Court.

(c)In forwarding information or documents to any of the above named entities, the applicants are prohibited from disclosing the names or identifying details of any other complainants, apart from their own names/details.

(d)Further, those organisations must keep the information disclosed to them confidential and may only disclose it to those individuals within each organisation, or the organisation/individual’s legal advisers, who need to know that material for the purposes of considering and offering redress to the applicants.

(e)The applicants must provide a copy of these orders to any of the above entities or individuals to whom the information is disclosed so that they are aware of the conditions relating to forwarding information from the file.

[21]   I ask the Registry to forward a copy of this judgment to the Palmerston North Crown Solicitor and to Mr Shepherd.

McHerron J

Solicitors:
BV+A The Practice, Palmerston North for Crown