Stuff Ltd v Coroner's Court at Palmerston North

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Stuff v Coroner’s Court

243

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Stuff Ltd v Coroner’s Court at Palmerston North

High Court Palmerston North CIV-2018-454-14; [2018] NZHC 2556 12 July; 28 September 2018
Grice J
Privacy – Prohibition of publication orders – Review of Coroner’s Order –

15 Whether relevant considerations taken into account – Whether “general claim to privacy” refers to information involved or concerns about publication – Whether reviewable error to fail to consider “undue harm” in relation to personal privacy – Whether failure to consider public availability of certain information error of law – Nature of interim orders in Coronial context –
20 Coroners Act 2006, ss 71, 71A, 74 and 75 – New Zealand Bill of Rights Act 1990, s 14 – Family Court Act 1980 – Care of Children Act 2004 – Criminal Procedure Act 2011, ss 200, 201 and 202.

Mr Hanzlik died after setting himself alight outside Parliament. His death was referred for inquiry to the Coroners Court. The issues canvassed at the inquest
25 would likely involve his family situation, his relationship with his former wife (V), and their children. On 29 November 2017, the Coroner made interim orders prohibiting publication of any evidence given or submissions made at or for the purposes of any part of the proceedings of the inquiry, the name or any particulars likely to lead to the identiﬁcation of V or the children, or
30 photographs of V or the children. Stuff applied for review of the orders on the basis, ﬁrst, that the Coroner applied the wrong test by ﬁnding that the ground of personal privacy was engaged without undue harm ﬁrst being established and in the circumstances V had consented to an interview, and second, that the Coroner had failed to consider relevant factors in weighing the ground of

personal privacy against freedom of expression.
Held: 1 Two limbs had to be considered before granting a prohibition order. First, the Coroner had to be satisﬁed that the prohibition was in the interests of one of the speciﬁc grounds set out in s 74 of the Coroners Act 2006, being the interests of justice, decency, public order, or personal privacy. Second, the

40prohibition had to be a demonstrably justiﬁed limit on open justice and the right to impart information, having balanced the competing interests. A prohibition order was more likely where there had been heavy and disputed criticism of the applicant. Here, since the inquest was not completed, the extent of any criticism was not yet apparent and in that context interim orders were more likely (see

[6], [7], [8], [9], [10], [11]).
Gravatt v The Coroner’s Court at Auckland [2013] NZHC 390, [2013] NZAR 345 applied.
Matenga v Coroners Court at Dunedin [2014] NZHC 2994, [2015] NZAR 289 considered.

High Court [2019]

2 The High Court’s jurisdiction to hear the application derived from s 75 of the Coroners Act. In general terms, the principles of judicial review applied. An error of law, irrelevant consideration, unconsidered relevant consideration, a matter of procedural unfairness, or unreasonableness had to be found. The

facts and merits were otherwise for the Coroner (see [24], [25]). 5

Gravatt v The Coroner’s Court at Auckland [2013] NZHC 390, [2013] NZAR 345 applied.
3 The Coroner had taken into account that V had given consent for an interview and allowed photographs to be taken, and the subsequent withdrawal

of that consent. The Coroner was not required to undertake an inquiry into the 10

disputed facts surrounding the interview. The Court would not intervene in the absence of a reviewable error (see [30], [31], [32]).

4 A general claim to privacy was not sufficient for the purposes of s 74 of the Coroners Act. A claim to privacy required consideration of how detailed or

intimate the facts involved were, not the concerns given as to why the 15

information should remain private. The inquest would involve consideration of highly personal sensitive information including about the custody of children, domestic violence, and protection orders, that went well beyond a general claim to privacy (see [34], [35], [36], [37], [38], [39], [40], [41], [42]).

Gravatt v The Coroner’s Court at Auckland [2013] NZHC 390, [2013] 20
NZAR 345 considered.
5 Buckley v Coroners Court in Christchurch had concerned the different ground of “the interests of justice”. It would be inappropriate to import the criminal test of “undue hardship” into the context of the Coroners Court, which

was more akin to a civil jurisdiction. The Coroner did not err by failing to 25

consider whether the publication would cause “undue hardship” (see [43], [44], [45], [46], [47], [48]).

Buckley v Coroners Court in Christchurch CSU2017-CCH-145, 20 March 2017 distinguished.
6 The Coroner had failed to consider a relevant consideration; that some of 30

the information was already in the public domain, including information related to Mr Hanzlik’s death, a general indication that he was having Family Court trouble, and his criminal cases. This failure led to an unjustiﬁably broad order.

However, it was less clear what information about V and the children was already in the public domain, and an order prohibiting identifying information 35

about them was a demonstrably justiﬁed limit on the freedom of expression. It was also relevant that the prohibition order was an interim order. At the pre-inquest stage, interim orders may need to be more ﬂexibly granted to ensure that a party’s position was preserved. Accordingly, the interim orders were

varied such that publication of Mr Hanzlik’s name and the circumstances of his 40

death (to the extent earlier recognised by the Coroner in partial exemptions under s 71A) were not included. In addition, the Court made an order prohibiting publication of the judgment until the ﬁnal decision of the Coroners Court and further order of the High Court (see [52], [53], [58], [59], [61], [64],

[66], [67], [68]). 45

R v X (No 2) [2015] NZHC 1245 considered.
Ryan v Auckland District Health Board HC Auckland CIV 2007-404-6177, 5 December 2008 considered.

Result: Application allowed to extent necessary to vary interim orders.

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Other cases mentioned in judgment

Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374 (HL).
Hanzlik v R [2015] NZHC 2068.

Peters v Davison [1999] 2 NZLR 164 (CA).
Victim X v Television New Zealand Ltd [2003] 3 NZLR 220 (CA).

Application

This was an application under s 75 of the Coroners Act 2006 to review an interim order of the Coroner prohibiting publication.

RKP Stewart for the applicant.
No appearance for respondent (with leave).
MG Coleman as amicus.

GRICE J.

Table of contents

Cur adv vult

Para no

Introduction  [1]
Amicus curiae  [5]
Relevant law  [6]

The inquest  [13]
Decision of Coroner  [17]
Jurisdiction to review the prohibition  [24]
Ground one: Personal privacy  [26]
Interview with V  [28]
General claim to privacy  [33]
Undue harm  [43]
Ground two: Balancing test  [49]
What information is public and was this considered?  [52]
The nature of interim orders  [60]
The breadth of the order [64]
Result [65]

Introduction

[1] Mr Hanzlik died after he set himself alight outside Parliament. Media reports at the time included a statement from a person who had spoken to
35Mr Hanzlik shortly before his death. They said Mr Hanzlik had said he had lost his children and he was frustrated with the Family Court system. Mr Hanzlik had been seen protesting and carrying signs outside the Court of Appeal across the road from Parliament before he staged his protest outside Parliament. Early media reports included these details and the pictures of placards he was holding

immediately before his self-immolation.
[2] Mr Hanzlik’s death was referred for inquiry to the Coroners Court. His death remains only a suspected suicide. The issues canvassed at the inquest will

High Court (Grice J) [2019]

likely include the circumstances leading to Mr Hanzlik’s protest and subsequent self-immolation. This will involve his family situation and his relationship with his former wife, V and their children.

On 29 November 2017, the Coroner made interim orders in relation to V and the children in the course of the formal inquiry into Mr Hanzlik’s death. 5 The interim orders prohibit:1
(a)    the making public of any evidence given or submissions made at or for the purposes of any part of the proceedings of the inquiry;
(b)    the making public of the name, and any particulars likely to lead to the identiﬁcation of Mr Hanzlik’s former wife or children;  10
(c)    the making public of photographs of Mr Hanzlik’s former wife   and
children.
Stuff Ltd (Stuff) is a media organisation and seeks a review of the orders on the basis that:
(a)    the Coroner applied the wrong test by ﬁnding that the ground of     15
personal privacy was engaged without undue harm ﬁrst being established and in the circumstances V had consented to an interview; and
(b)    the Coroner failed to consider relevant factors in weighing the ground
of personal privacy against freedom of expression.  20

Amicus curiae

The Coroners Court has indicated it intends to abide by the decision of the Court. It was granted leave not to appear at this hearing. V and her children did not retain counsel to appear on this matter. An amicus curiae was appointed

to act as the contraindicator. Ms Coleman takes that role. 25

Relevant law

Where there is the potential for a prohibition or name suppression order, the principles of open justice and the freedom of expression under s 14 of the New Zealand Bill of Rights Act 1990 must be principle considerations. In

Gravatt v The Coroner’s Court at Auckland (Gravatt), Whata J created a 30

three-step threshold enquiry to ensure that open justice and the freedom of expression were properly protected in this context:2

(a)    there must be statutory authority to suppress;
(b)    the authority must, where possible, be interpreted and exercised consistently with freedom of expression; and            35
(c)    even where those two qualifying conditions exist, any discretionary
infringement of that freedom must be justiﬁed.

Under s 74 of the Coroners Act 2006 (the Act), there is statutory authority to prohibit publication. Section 74 of the Act provides:

74 Coroner may prohibit making public of evidence given at any part 40

of inquiry proceedings
If satisﬁed that it is in the interests of justice, decency, public order, or personal privacy to do so, a coroner may prohibit the making public of—

Minute of Coroner Nagara CSU-2017-WGN-377, 29 November 2017 at [34].
Gravatt v The Coroner’s Court at Auckland [2013] NZHC 390, [2013] NZAR 345 at [43].

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(a) any evidence given or submissions made at or for the purposes of any part of the proceedings of an inquiry (for example, at an inquest); and
(b) the name, and any name or particulars likely to lead to the

identiﬁcation, of any witness or witnesses.
[8] In line with the decision in Gravatt, the power in s 74 must be interpreted and exercised as consistently as possible with the right to freedom of expression. As such, two limbs must be addressed before a prohibition order is granted:
(a) Whether the Coroner is satisﬁed the prohibition is in the interests of one of the speciﬁc grounds set out in s 74 of the Coroners Act 2006; and
(b) Whether the prohibition of publication on that ground is a demonstrably justiﬁed limit on open justice and the right to impart
information, having balanced the competing interests.
[9] Under the ﬁrst limb of this test, the relevant s 74 ground would be that of the personal privacy of V and the children. Whata J in Gravatt was of the view that personal privacy related to personal facts in respect of which there is a reasonable expectation of privacy. It follows that the more intimate the facts,

20 the more compelling the case for limits to be placed on general open justice principles.3
[10]     If the ﬁrst limb is established, the Coroner must then undertake the balancing exercise and consider whether the prohibition is a justiﬁed limit on open justice. To this end, the decision-maker is required to articulate clear and
25 speciﬁc reasons for the making of prohibition orders. The relevant factors for and against must be assessed on a “ﬁne-grained” basis.4
[11]     Under the Gravatt approach, a prohibition order may be more likely if there has been heavy and disputed criticism of the applicant.5 On the facts of the present case, the inquest is not completed therefore the extent of any
30 criticism will not be apparent until determination by the Coroner. This is relevant when considering whether a prohibition order is to be made, as it follows that interim prohibition orders are more likely to be made in this context.
[12]     In Matenga v Coroners Court at Dunedin, Kós J refused to make an
35interim non-publication order in relation to Mr Matenga who was a Corrections Officer and was to give evidence at an inquest.6 The Judge emphasised that an order prohibiting publication under s 74 should be exceptional. In that case, the
perceived risk to Mr Matenga’s personal safety was considered insufficient to grant an interim nonpublication order. The evidence in support of     the
40 application was speculative, Mr Matenga’s wife’s name was already in the public arena and any physical risk to Mr Matenga was a matter for his employer to deal with.7

3 At [72].
4 At [82].
5 At [61].
6 Matenga v Coroners Court at Dunedin [2014] NZHC 2994, [2015] NZAR 289. 7 At [8]–[13].

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The inquest

High Court (Grice J)

[2019]

If a death is self-inﬂicted, or there is reasonable cause to suspect it was, there are restrictions on the information that can be published.8 The Chief Coroner may grant an exemption to those restrictions.9
Limited exemptions of this nature were made on 22 September 2017 and 5 28 November 2017. These exemptions allowed publication of the information that the deceased had set himself alight resulting in burns that led to his death; that this occurred on or near the forecourt of Parliament grounds in Wellington;

the person had a placard; and that the date was proximate to the general election. The exemption granted on 28 November 2017 permitted the media to 10 describe the death as a suspected suicide.

The interim orders subsequently made by the Coroner on 29 November 2017 dealt with the evidence and submissions in the inquiry and the publication of the names and identifying particulars of V and her children.

The Coroner said:10 15

This is an interim order and is to be reviewed at the time the ﬁndings in this inquiry are completed, or earlier on application by any party with sufficient interest in the inquiry.

All three of these orders were made following applications by media representatives and were made without formal hearings. It appears that V was 20

consulted in relation to all three of the applications and had opposed the

exemption orders.

Decision of Coroner

In her 29 November 2017 decision, the Coroner noted:
(a)    the ages of the deceased’s children;  25
(b)    that V had indicated she was concerned about the effect of further publication on the children;11
(c)    that V had previously been interviewed by a journalist and provided a photograph for a story about Mr Hanzlik’s death;
(d)    that V had withdrawn her consent for publication of the interview she     30
gave and expressed concern about the possible identiﬁcation of the children and their likely resultant distress; and
(e)    that V did not speak English as a ﬁrst language and it appeared that her English is limited.
The Coroner said that she needed to determine whether there was at that 35

stage a sufficient justiﬁcation:12

... to infringe upon the principle of open justice and freedom of speech and make interim orders prohibiting publication ...

As to the ﬁrst limb of the Gravatt test, the Coroner considered personal privacy was the most relevant interest under s 74 of the Act. This was based on 40

Coroners Act 2006, s 71.
Section 71A.
Minute of Coroner Nagara, above n 1.
Evidence was before this Court, which had not been before the Coroner, covering the effects on the dependent children. It is not necessary to go into this in detail. The Coroner has recognised in general the detrimental effects on these children in her decision.
Minute of Coroner Nagara, above n 1, at [14].

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the reasonable expectation of V and the children of privacy in their domestic affairs at the preliminary stage of the inquiry. This was speciﬁcally in relation to Family Court Proceedings and other personal domestic issues.
[20] The Coroner concluded that the subject of some, if not all, of the Family
5 Court proceedings and personal domestic issues would be personal facts in respect of which there is a reasonable expectation of privacy.
[21] The Coroner then noted the tight rules around publication under the Family Court Act 1980. She noted that access to the Family Court ﬁles had been granted to Ms MacDonald (the journalist who had interviewed V) by the

Family Court on the condition that the children and V were not to be identiﬁed.
[22] As to the second limb of the Gravatt test, although the Coroner recognised that that Mr Hanzlik’s death and its circumstances were a legitimate matter of public interest, and that justice must be seen to be done, she also noted that at the pre-trial stage “...there does not seem to be a need to

15 demonstrate to the public that justice has been done where the Court has not resolved the issues ...”.13
[23] The Coroner said that the principles of open justice were less engaged in the present case, as pre-inquest was comparable to a pre-trial stage and the principle in Ryan was applicable. The Coroner determined that here the
20 personal facts involving V and the children should “quite reasonably” be expected by them to remain private and this outweighed the principles of open justice.14

Jurisdiction to review the prohibition

[24] Under s 75(2) of the Act, a person affected by a s 74 prohibition can
25 apply to the High Court to “review” the refusal or prohibition. The powers of the High Court are contained in s 75(4) as follows:
(4)The Judge may (as the case requires), in the Judge’s absolute discretion and on any ground the Judge thinks ﬁt,—
(a) conﬁrm the refusal, or revoke it and issue an authority; or

(b) conﬁrm, modify, or revoke the prohibition.
[25] The High Court proceeds by way of “review”. Therefore, in general terms, the principles applicable to a judicial review apply here.15 An error of law, irrelevant consideration, unconsidered relevant consideration, matter of procedural unfairness or unreasonableness must be found.16 An assessment of

35 the facts and overall merits of the decision to prohibit publication is otherwise for the Coroner.17

Ground one: Personal privacy

[26] In relation to limb one of the s 74 test, Stuff says the Coroner erred in law by ﬁnding:

(a) the ground of personal privacy under s 74 was made out, as an interview with V had been consensually undertaken and the revocation of consent had not been critically examined;

13      At [29] citing Ryan v Auckland District Health Board HC Auckland CIV 2007-404-6177, 5 December 2008 at [14].
14 Minute of Coroner Nagara, above n 1, at [31].
15      Gravatt v The Coroner’s Court at Auckland, above n 2, at [37].
16      See Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374 (HL);
Peters v Davison [1999] 2 NZLR 164 (CA) at 180.
17      Gravatt v The Coroner’s Court at Auckland, above n 2, at [37].

High Court (Grice J) [2019]

(b) a general claim to privacy was sufficient; and

(c) that the ground of personal privacy was engaged without ﬁrst ﬁnding undue harm.

I will address each of these in turn.

Interview with V 5

Mr Stewart, for Stuff, argues that V voluntarily gave an interview and allowed photographs to be taken by Ms MacDonald. Ms MacDonald was also granted access by a Judge to the Family Court ﬁles involving Mr Hanzlik and

V. In the course of argument, amicus noted that permission had been given to

Ms MacDonald to access V’s Family Court ﬁles by the Family Court without 10

notice to either V or counsel appointed for the children. While these orders were made subject to conditions, Ms Coleman submitted that the welfare and best interests of the children, as required by the Care of Children Act 2004, were not sufficiently taken into account in making the order. That decision is

not before me here so no further comment is required. 15

In addition, V’s apparent withdrawal of consent conveyed to the Coroner had not been critically examined, nor referred to in the prohibition decision.
The interview apparently took place on 23 November 2017. On 28 November 2017 the Chief Coroner, in her decision concerning the granting

of a s 71A exemption,18 recorded that V no longer wanted the information she 20

had provided in the interview to be published and she opposed the granting of the exemption. There was no requirement on the Chief Coroner to put this to the journalist for further comment.

The decision of the Coroner of 29 November 2017 speciﬁcally refers to

the interviews, photographs and the fact that V had withdrawn her consent. The 25

Coroner did take this into account in making the interim orders prohibiting publication. The Coroner, however, was not required to undertake an inquiry into the disputed facts surrounding the interview.

An assessment of the facts and overall merits of the case is up to the Coroner.19 This Court will not interfere in the absence of a reviewable error. 30

General claim to privacy

Stuff argues that the Coroner was in error in accepting a general claim to privacy was sufficient to establish the ground of personal privacy under s 74 of the Act.
The Coroner noted that personal privacy refers to personal facts in 35

respect of which there is a reasonable expectation of privacy. She cited Gravatt

as follows:20

[72] In light of this general frame, I am of the view that personal privacy in this context refers to personal facts in respect of which there is a
reasonable expectation of privacy. A general claim to privacy will not be 40
suffıcient; but the more intimate the facts, the more compelling the case will be for limits to be placed on freedom of speech and open justice principles. Balanced against this, a genuine public interest or concern in those facts may outweigh even a strong privacy interest. In the ﬁnal
analysis, a Coroner must be satisﬁed that the infringement of freedom of 45
speech and open justice is justiﬁed on personal privacy grounds.

Coroners Act 2006.
Gravatt v The Coroner’s Court at Auckland, above n 2, at [37].
Gravatt v The Coroner’s Court at Auckland, above n 2.

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(Emphasis added)
[35]     It became clear at the hearing that there were two contradictory conceptualisations of what a “general claim to privacy” was.
[36]     The submissions advanced for V on this topic focused on the nature of
5 the information involved; speciﬁcally, that the Coroner had noted there were issues “...to do with domestic violence, protection orders, and family court proceedings causing Mr Hanzlik concern at the time of his death”.21 A “general claim to privacy” was interpreted as referring to the information itself.
[37]     However, Mr Stewart for Stuff interpreted a “general claim to privacy”
10 as referring to the concerns given as to why the information should remain private.
[38]     I believe the phrase adopted in Gravatt refers to how detailed or intimate the facts involved are. I am of this opinion for several reasons.
[39]     The full sentence in question in Gravatt reads “...A general claim to
15 privacy will not be sufficient; but the more intimate the facts, the more compelling the case will be for limits to be placed on freedom of speech and open justice principles...”.22 The second half of the phrase indicates that generality is related to the nature of the information; the more intimate those details the more compelling the case.
20 [40] In assessing an order for the prohibition of publication in the context of work place privacy Whata J noted that “...to the extent that revealing the names of the health professionals exposes facts about their professional conduct, not otherwise in the public domain, then prohibition of the publication of those identiﬁers may be justiﬁed on personal privacy grounds”.23 Again, this refers to
25 the details of the information and its public availability rather than concerns arising from its dissemination.
[41]     In the present case, the Coroner refers to how V and the children have a reasonable expectation of privacy in respect of their “personal and domestic affairs”.24   She speciﬁcally refers to concerns about domestic     violence,
30 protection orders, and Family Court proceedings later in the same paragraph. She ﬁnds it is “self-evident” that V and the children would have been parties to or the subjects of some if not all of those proceedings, and their involvement in and personal facts in respect of those proceedings must have a reasonable expectation of privacy over them.25 She ﬁnds that the Family Court   Judge’s
35 minute supports this as the publication of the names of V and children was prohibited.
[42]     Information about the custody of the children, domestic violence, and protection orders is highly personal sensitive information which a family can reasonably expect will remain private. The inquest will no doubt touch on the
40 Family Court proceedings involving V and the children. These personal facts go well beyond a general claim to privacy.
Undue harm
[43]     Mr Stewart submits that the “... Coroner was wrong to ﬁnd the ground of personal privacy was engaged in circumstances where no demonstrable undue

harm was established.” He relies on Buckley v Coroners Court in Christchurch

21 Minute of Coroner Nagara, above n 1, at [22].
22 Gravatt v The Coroner’s Court at Auckland, above n 2, at [72]. 23 At [76].
24 Minute of Coroner Nagara, above n 1, at [22]. 25 At [23].

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in which the Coroner declined to continue an interim non-publication order despite a claim that media articles might cause further distress and psychological damage to members of the deceased’s immediate family.26 The Coroner said in that case the ground of the interests of justice was not met. He approached his consideration of the ﬁrst limb in two stages as follows: 5

(a)    Was there a real and appreciable possibility a person will suffer harm as a result of publication? This required an analysis of evidence and an indication the risk was connected to publication, and
(b)    Was the harm an “undue hardship”? This hardship could not simply be
the risk of possible harm attendant on involvement in the justice     10
system, which is by its nature stressful, nor the consequences of grief or stress attendant on the Coronial process.

In Buckley, the Coroner used an analogy of the threshold required under ss 200 and 202 of the Criminal Procedure Act 2011 in the criminal jurisdiction. These provisions relate to suppression generally. 15
The ground for prohibition of publication considered in Buckley was the “interests of justice”.27 This was primarily because it was the name of the deceased that was sought to be prohibited from publication. The deceased’s family were concerned about the lasting psychological impacts on his children

if his name was published. The Coroner said he believed it was possible for 20

prohibition orders to be made in the “interests of justice” if a person was at risk of suffering harm if the publication of evidence before the Coroner was allowed.28 It was expressly noted by the Press in that case that they had no interest in Mr Buckley’s death beyond “...that which would ordinarily arise in

relation to sudden and unexpected deaths generally”.29 25

In Buckley, the Coroner was dealing with a different interest than in the present case. He did not suggest that “undue hardship” was required to establish other interest under s 74, nor even that it would always be required when considering the interests of justice. Its application was speciﬁc to the circumstances of that case. It would be artiﬁcial to import this test into the 30

present proceedings, as the ground here is that of “personal privacy” which, by

its nature, will involve consideration of different matters.

In any event, it would be inappropriate to import the criminal test of “undue hardship” here. The Coroner’s Court is more akin to a civil jurisdiction.

In the criminal jurisdiction, different issues arise when considering open 35

justice.30 No “undue hardship” standard is referred to in s 74 of the Act. It is a test conﬁned to ss 200–202 of the Criminal Procedure Act 2011.31

I am of the view that the Coroner did not err by failing to consider whether publication would cause “undue hardship”.

Buckley v Coroners Court in Christchurch CSU2017-CCH-145, 20 March 2017 at [4] and [22].
At [34]; Coroners Act 2006, s 74. 28 At [34].
At [16].
By way of example see Victim X v Television New Zealand Ltd [2003] 3 NZLR 220, (2003) 20 CRNZ 194, (2003) 7 HRNZ 224 (CA) at [4], [36], and [48].
Matenga v Coroners Court at Dunedin, above n 6; Gravatt v Coroner’s Court at Auckland, above n 2. These were both decided after the Criminal Procedure Act 2011 came into force.

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Ground two: Balancing test

[49] As discussed above, once the Coroner has established that one of the relevant grounds in s 74 is engaged they must address whether a prohibition on that ground is a demonstrably justiﬁed limitation on the principles of open

justice and freedom of expression.
[50] Stuff says that the Coroner failed to consider that Mr Hanzlik’s name, the nature of his death, and that he had been involved in Family Court disputes with his ex-wife over their children, was publicly available information. Stuff submits that this relevant consideration was not taken into account or there was
insufficient account taken of it in the Coroner’s decision.
[51] In addition, Stuff argues that the prohibition of publication order is too wide and it is not a demonstrably justiﬁed limitation on its right of freedom of expression. It says the order should have been limited to information that was not already in the public domain.

What information is public and was this considered?
[52] The Coroner did not expressly consider whether information was in the public arena about Mr Hanzlik and his disputes within the Family Court. Nevertheless, she did recognise that there had been a previous decision by the Chief Coroner allowing aspects of the death to be reported by members of the
media.32
[53] This factor was not speciﬁcally referred to by the Coroner in her balancing exercise. I am of the view that the Coroner failed to consider a relevant factor in weighing the ground of personal privacy against Stuff’s right to freedom of expression.
This factor affected the breadth of the order imposed, which I deal with below.
[54] Prior publicity need not be a determinative factor in the criminal context when assessing whether a defendant should be granted name suppression.33 However, where the information was so public that “the horse has bolted” it
may a decisive factor. Even then, there may still be value in preventing further publicity if suppression is otherwise justiﬁed.34
[55] Information relating to Mr Hanzlik personally, his death, a general indication that he was having Family Court troubles and his criminal cases (such as his quashed convictions for breaching a protection order)35 is already
in the public domain. The proverbial horse has bolted in relation to that information.
[56] However, the situation is less clear in relation to what information is publicly available about V, her children, and the speciﬁc Family Court cases involving the family.

40 [57] In R v X, Simon France J expressly noted that if someone was interested enough they might be able to identify the defendant through educated guesses and then publish that information.36 That appears to hold true for this case. Basic reports of Mr Hanzlik’s troubles with the Family Court, his separation, loss of contact, religion, travel and nationality have been published. However,

these references are nonspeciﬁc. In fact, as it has subsequently turned out,

32 Minute of Coroner Nagara, above n 1, at [4]. 33 R v X (No 2) [2015] NZHC 1245 at [12].
34 At [12].
35 Hanzlik v R [2015] NZHC 2068.
36 R v X, above n 33, at [12].

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details in several of these articles about V are incorrect. The public information concerning personal troubles and Family Court matters relating to V and her children are at best speculative. An interim prohibition order concerning V and her children should not be refused on that basis.

The personal facts involved here may include information about her life, 5 her religion, her name, her children’s names, where she lives, her marriage, Family Court proceedings, domestic violence and separation. At present, very little of this information is available publicly in any detail. It is also relevant that V has an unusual name which makes her and the children more easily

identiﬁable. V, her children, and their lives are peripheral to the inquiry into 10 Mr Hanzlik’s death.

I conclude that, in the circumstances of this case, interim prohibition of publication relating to identifying information about V and her children (subject to the modiﬁcation set out below) is a demonstrably justiﬁed limit on

the freedom of expression. The Coroner was correct in her evaluation. 15

The nature of interim orders

Another relevant factor is that the orders are interim. In her decision, the Coroner referred to Ryan v Auckland District Health Board.37 In that case,

Doogue AJ noted that the principle of open justice is engaged less strongly at

the pre-trial stage as “there does not seem to be a need to demonstrate to the 20

public that justice has been done where the Court has not resolved the issues between the parties”.38

Interim prohibition orders made by the Coroner’s Court may be reconsidered at any stage during the inquest and after its completion. At the

pre-inquest stage, interim orders may need to be more ﬂexibly granted to ensure 25

that a party’s position is preserved before a permanent prohibition of publication order is made. As Ellis J in J v Attorney General commented:39

... the law recognises that a litigant’s legitimate privacy and conﬁdentiality interests in the subject of a claim is considerably greater at the pre-trial stage... 30

This comment was made at an interlocutory stage of a civil claim against the Crown for historic sexual and physical abuse suffered by the plaintiffs while in state care.
The Coroner was correct in noting that at the pre-trial or inquiry stage

the principle of open justice is less strongly engaged. 35

The breadth of the order

As will be apparent, I am of the view that the interim prohibition on publication order is too wide given the publicity surrounding Mr Hanzlik’s death. Given that material has already been published, the interim order was too broad to be a demonstrably justiﬁed limit on the freedom of expression. For this 40

reason, I propose allowing the appeal to the extent necessary to allow the

publication of certain information relating to Mr Hanzlik.

Ryan v Auckland District Health Board, above n 13. 38 At [14].
J v Attorney General [2018] NZHC 1331 at [20].

3 NZLR

Result

Stuff v Coroner’s Court

255

[65] In relation to the Coroner’s Court inquiry into the death of Zdenek Hanzlik (CSU-2017-WGN-377), the interim orders numbered [34](i)–(iii) made by the Coroner in her decision of 29 November 2017 are revoked.

[66] In their place interim orders are made prohibiting:
(a)the making public of any evidence given or submissions made at or for the purpose of any part of the proceedings of the Coroner’s inquiry;
(b)the making public of the name and any name or particulars likely to lead to the identiﬁcation of V and her children; and
(c) the making public of photographs of V and her children.
[67] By way of clariﬁcation, the prohibition orders do not include the publication of Mr Hanzlik’s name and the circumstances of his death to the extent permitted by the partial exemptions granted by the Chief Coroner on 22 September 2017 and 28 November 2017.

15[68] In relation to these review proceedings, to ensure the above interim orders are not compromised, the following interim order is made: prohibiting publication of the judgment and any part of these proceedings (including the result) in news media or on the internet or other publicly available database until the ﬁnal decision of the Coroners Court on the prohibition order and

further order of this Court. Publication in Law Report or Law Digest permitted.
[69] If there are any further matters arising from these interim orders counsel are invited to make submissions within 14 days of the date of this judgment.
Reported by: David R Taylor, Barrister and Solicitor

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Citations

Stuff Ltd v Coroner's Court at Palmerston North [2018] NZHC 2556

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Matenga v Coroners Court at Dunedin [2014] NZHC 2994

[2018] NZHC 2556

28 September 2018