R v The Queen
[2015] NZHC 778
•21 April 2015
ORDER PROHIBITING PUBLICATION OF THE JUDGMENT AND ANY PART OF THE PROCEEDINGS (INCLUDING THE RESULT) IN NEWS MEDIA OR ON THE INTERNET OR OTHER PUBLICLY AVAILABLE DATABASE UNTIL FINAL DISPOSITION OF TRIAL. PUBLICATION IN LAW REPORT OR LAW DIGEST PERMITTED.
NOTE: PREVIOUS ORDER PROHIBITING PUBLICATION OF NAME, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS OF THE DEFENDANT PURSUANT TO S 200 CRIMINAL PROCEDURE ACT 2011
REMAINS IN PLACE.
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2006-070-453 [2015] NZHC 778
THE QUEEN
v
R
CRI-2013-404-279
CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS
v
R
Hearing: On the papers Judgment:
21 April 2015
JUDGMENT OF WINKELMANN J [on application to access court file]
R v R, Chief Executive Department of Corrections v R – Media Access [2015] NZHC 778 [21 April 2015]
[1] Ms Kelly Dennett from Fairfax Media has requested access to “the entire case file including the Extended Supervision Order hearing application between the Department of Corrections and the defendant and any hearings related to a breach of parole conditions or a breach of release conditions”.
[2] The application encompasses two separate files:
(a) CRI-2013-404-279 (the application for an extended supervision order); and
(b) CRI-2006-070-453 (the file relating to the defendant’s trial,
conviction and sentence for his offending in 2005)
Reasons access sought and counsel’s response
[3] Fairfax seeks access for the purpose of researching a story, which may be published by Fairfax media. Fairfax says it will observe the suppression orders in place and will report on the material obtained once the case has been disposed of, or name suppression has been lifted.
[4] The Crown has no objection to the request, but notes that insofar as any document may refer to the “Tauranga victims” by name, they all have name suppression.
[5] Defence counsel oppose permission being granted altogether on the basis that there are a number of documents on the file that relate to sensitive issues such as the defendant’s mental health. There are also documents that refer to evidence that is disputed as part of the pre-trial admissibility issues and parole documents which contain sensitive and personal information.
Rules to be applied
[6] Access to court documents in criminal proceedings is governed by the
Criminal Procedure Rules 2012. Rule 6.4 gives a general right of access to: (a) the permanent court record under Part 7; and
(b) any published list providing notice of a hearing; and
(c) any judgment, order, or minute of the court given in a criminal proceeding, including any record of the reasons given by a judicial officer; and
(d) any judicial officer’s sentencing notes.
[7] That right of access is subject to r 6.9, which provides that access to those documents can only be provided with the permission of a judge in certain circumstances, including if the document indentifies or enables the identification of a person if the publication of the person’s name is forbidden.
[8] 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.
[9] 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.
[10] 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.
Previous Applications
[11] There have been three other recent applications for access to parts of either of these court files.
[12] The first was an application by Mr Fisher of the New Zealand Herald to access to be the conviction and sentence file (CRI-2006-070-453). Justice Brewer granted limited access in relation to this file on the following terms:1
[a] He may have a copy of the permanent Court record, as defined in
Part 7 of the Criminal Procedure Rules 2012;
[b] He may read the notes of evidence and request a copy of any part or parts of them. His request will be granted subject to the payment of any usual charges and subject to the redaction of the names of any of the child complainants. I make this stipulation simply to protect the children from being identified to any person other than Mr Fisher who might later read the copies. The statutory protections for those children apply regardless;
[c] Mr Fisher may not inspect the mental health reports, nor the victim impact statements. These are to be kept confidential.
[13] Justice Brewer considered that allowing this limited access was appropriate because the existing suppression orders protected the defendant’s right to a fair trial and because he accepted Mr Fisher’s assurance that he would not seek to publish any
material until after resolution of the current charges.
1 R v R HC Auckland CRI-2014-044-2080, 27 June 2014.
[14] The second and third applications were considered by Asher J.2 They were applications by Mr Fisher from the New Zealand Herald and TVNZ. The New Zealand Herald applied for access to all documents on the court file for the extended supervision order application (CRI-2013-404-279), TVNZ applied for access to the psychologist’s report that was prepared to inform the extended supervision order hearing. Justice Asher refused both of these requests, considering that there was no compelling reason to allow access. The file in relation to the extended supervision order is not large, and it is not necessary for the media to have access to it in advance of and in anticipation of suppression being lifted. It contains information that the defendant would want to keep confidential.
Analysis
[15] As the present application relates to both the initial conviction and sentencing file and the extended supervision order file, the application encompasses both the material that Asher J refused access to and the material that Brewer J allowed limited access to. I proceed on the basis that there is no distinguishing factor between the New Zealand Herald’s applications and the present application. It would therefore be wrong in principle to grant a different level of access to Fairfax. Moreover, I have satisfied myself that the approaches taken by both Asher and Brewer JJ are consistent with principle in the particular circumstances of this case and meet the objections raised by the defendant. I therefore grant Fairfax access to those parts of the conviction and sentence file from 2006 that Brewer J granted access to on the same conditions. Access to the balance of that file, and to the entirety of the extended supervision order file is declined.
Conclusion
[16] Fairfax is granted access to the following parts of the CRI-2006-070-453 (the trial and sentencing) file:
(a) The permanent Court record, as defined in Part 7 of the Criminal
Procedure Rules 2012;
2 Chief Executive of the Department of Corrections v R [2014] NZHC 1526; Chief Executive of the Department of Corrections v R [2014] NZHC 1621.
(b)Ms Dennett from Fairfax may read the notes of evidence and request a copy of any part or parts of them. Her request will be granted subject to the payment of any usual charges and subject to the redaction of the names of any of the child complainants. This stipulation protects the children from being identified to any person other than Ms Dennett who might later read the copies. The statutory protections for those children apply regardless.
[17] There is to be no publication of any material obtained from search of these files until after resolution of the current charges.
[18] Access to the remainder of the CRI-2006-070-453 file and the CRI-2013-
404-279 is refused.
Suppression
[19] There are existing name suppression orders in relation to this proceeding. They remain in place. There is to be no publication of the defendant’s name in relation to these proceedings.
[20] The content of this judgment addresses the existence of the defendant’s previous convictions. I therefore make a further order prohibiting publication of any part of the proceedings (including the result) in news media or on the internet or other publicly available database until final disposition of the trial. This order is necessary to protect the defendant’s fair trial rights.
This judgment was delivered by me on 21 April 2015 at 4.30 pm pursuant to
Rule 11.5 of the High Court Rules.
Registrar/ Deputy Registrar
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