R v Tauroa

[2020] NZHC 727

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

I TE KŌTI MATUA O AOTEAROA WAIHŌPAI ROHE

CRI-2018-225-000004

[2020] NZHC 727

THE QUEEN

v

PIHAMA JOHN TAUROA

Hearing:	On the papers
Counsel:	S N McKenzie and W T Chapman for the Crown S A Saunderson-Warner for the Defendant
Judgment:	8 April 2020

JUDGMENT OF NATION J

Introduction

[1]                 Blair Jackson of Stuff Ltd has requested access to the cultural report filed in relation to Mr Tauroa’s sentencing. Mr Tauroa opposes the application.

Relevant law

[2]                 Mr Jackson’s application for access is under r 11, Senior Courts (Access to Court Documents) Rules 2017 (the Rules):

11   Any 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.

R v TAUROA [2020] NZHC 727 [8 April 2020]

(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

(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).

[3]                 Rule 12 provides the matters to be considered when determining a request under s 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:

(1)the orderly and fair administration of justice:

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

(3)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:

(4)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:

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

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

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

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

[4]                 I note that the Official Information Act 1982 and Privacy Act 1993 do not apply to court documents.

The application

[5]                 Mr Blair has filed the necessary form for an application for access to court documents. He identifies the documents he is seeking as “cultural reports filed by Saunderson-Warner on behalf of Mr Tauroa, as part of sentencing”. In response to the question of why he wants to look at the documents, he has written “public interest”.

Submissions

[6]                 Ms Saunderson-Warner, counsel for Mr Tauroa, submits the request gives inadequate particulars as to the reasons for seeking access to the document and the purpose for which access is sought, which are required under r 11(2)(c). She says there is no explanation of why access to a report about an individual’s personal, whānau and cultural history promotes the public interest.

[7]                 In regard to the matters in r 12, Ms Saunderson-Warner submits the principle of open justice is adequately met by the media being present in open court and reporting on the submissions and judicial remarks about the report. She adds that the media have access to the sentencing remarks which refer to extracts of the cultural report. Ms Saunderson-Warner contends the report contains material private to Mr Tauroa and his whānau, and that such privacy should be protected.

Consideration of similar cases

[8]                 I have been unable to find precedent for releasing cultural reports or similar to the media; in fact, quite the opposite. Given the Rules are relatively new, the majority of cases were decided under the Criminal Procedure Rules 2012, but the principles of privacy and open justice considered in those cases should still apply.

[9]                 In the cases R v Q & M and R v R, the Court declined to release mental health reports to the media alongside other parts of the court file that were released.1

[10]              In Police v Filipo, Newshub sought permission to view “the court file” of the defendant.2 The Judge granted access to some parts of the file but “for privacy reasons” refused access to two documents containing “specific material about the defendant, private to him, when he was much younger”.3

[11]              The applicants in Mediaworks TV v Blowers sought access to statements which had not been tendered in Court. Venning J said:4

1      R v Q & M [2015] NZHC 245; R v R HC Auckland CRI-2014-044-2080, 27 June 2014.

2      Police v Filipo [2016] NZDC 18681.

3 At [18].

4      Mediaworks TV v Blowers [2014] NZHC 3073 at [10].

The request for access to the statements (including the video statement) on the Court file is a request for information which has never been given in open Court. It is not necessary for the media to have access to those statements to satisfy the important principle of open justice. I do not consider the principle of open justice, and the media's role as the “eyes and ears” of the public reporting what takes place in Court supports the release of the material.

[12]              In R v Rahman, which was decided under the present legislation, the defendant was charged with murder but found to be unfit to stand trial.5 The media applied for access to documents, including expert reports regarding the defendant’s fitness to stand trial. In declining that application, Woolford J made the following remarks:

[38]      First, the reports on the court file and other documents contain extensive personal information about Ms Rahman. There are many expert reports, close to 30, and some of these are very detailed. Ms Rahman's privacy in this regard should be respected. Especially given there has not been a trial.

[39]      Second, in light of Ms Rahman's privacy interests, I consider the principle of open justice is satisfied by the access granted to my judgment of 8 May 2018. My judgment contains information about the charge and the prosecution history, including previous hearings as well as detailed extracts from the expert reports. That, in my view, should be sufficient to ensure fair and accurate reporting.

(footnotes omitted)

Discussion

[13]              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.

[14]              I am also satisfied that the right to privacy is more significant in this case than the public interest. Given the extent to which the report is relevant has already been discussed in the submissions and sentencing notes, there can be no public interest in viewing the balance of that report. It would not inform about the process of justice.  It would simply provide highly personal information about an individual. That

5      R v Rahman [2018] NZHC 1808.

information, however interesting it may be to the public, would not benefit the public interest if it were released.

Conclusion

[15]The application for access to the cultural report is declined.

Solicitors:

Preston Russell Law, Invercargill

S A Saunderson-Warner, Barrister, Dunedin.