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…

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.

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Details

Case: [2024] NZHC 3601
Decision Date: 28 November 2024

CaseChat Overview and Summary

CT and DM, complainants in a concluded criminal case against Shepherd, applied for access to the entire High Court file, which includes charge sheets, transcripts, judgments, and written submissions. This application follows previous requests by the applicants for access to their own testimonies and permission to disclose such testimonies to specific entities. The Court, in previous applications, granted access without notice, recognising the applicants' freedom to seek, receive, and impart information. The applicants argue that access to the documents is necessary for potential civil claims and settlement negotiations related to the alleged sexual offending by Shepherd. The Court considered the Senior Courts (Access to Court Documents) Rules 2017 and the relevant factors, including the orderly and fair administration of justice, the right to a fair trial, the protection of privacy and confidentiality, and the principle of open justice. The Court noted that while the criminal proceedings have concluded, the privacy and confidentiality interests of Shepherd still weigh against the applicants' interests. Despite this, the Court found that the applicants' interests in accessing the documents for potential civil claims and settlement negotiations outweighed Shepherd's privacy and confidentiality interests. The Court granted access to the file under specific conditions, including prohibiting the publication of the material and limiting the disclosure of the documents to specified entities for the purpose of advancing discussions concerning redress or issuing proceedings. The Court also imposed conditions to protect the privacy of other complainants and ensure that the disclosed information is kept confidential. The Court directed the Registry to provide copies of the judgment to the Palmerston North Crown Solicitor and Shepherd.

McHerron J granted the applicants access to the entire High Court file, subject to specific conditions. The applicants' solicitors are permitted to attend the Court to review the file and obtain copies of individual documents. The applicants are prohibited from publishing any of the material from the file but may disclose documents and/or information from it to specified entities and individuals for the purpose of advancing discussions concerning redress or issuing proceedings. The Court also imposed conditions to protect the privacy of other complainants and ensure that the disclosed information is kept confidential.

Orders