Tarrant v Attorney-General - [2024] NZHC 98

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2023-404-000457

[2024] NZHC 98

IN THE MATTER of an application for judicial review

UNDER

the Judicial Review Procedure Act 2016

BETWEEN

BRENTON HARRISON TARRANT

Applicant

AND

ATTORNEY-GENERAL

First Respondent

DEPARTMENT OF CORRECTIONS

Second Respondent

Hearing: 7 February 2024

Appearances:

T A Simmonds for Applicant

A M Powell and K E E Whiting for Respondents

Judgment:

7 February 2024

ORAL RULING (1) OF VENNING J

Solicitors: Crown Law Office, Wellington Counsel: T A Simmonds, Auckland
Copy to: Media

TARRANT v ATTORNEY-GENERAL [2024] NZHC 98 [7 February 2024]

[1] The applicant, Brenton Tarrant, has applied for judicial review. He seeks to review his classification of an “at-risk prisoner” and the subsequent conditions of his imprisonment and supervision by Department of Corrections.

[2] Mr Tarrant has requested that media and public be excluded from the Court during the hearing of this substantive application for judicial review. He does so for two principal reasons as explained by counsel, Mr Simmonds. First, the subject matter of the application is intensely personal and will cause him humiliation, embarrassment and distress, and secondly, he considers that any publicity may prejudice his situation within the prison, including particularly how Corrections may treat him if this application and his complaints receive publicity. He is concerned, as Mr Simmonds explained, that Corrections will not relax his conditions if there is any publicity and will seek to justify the non-relaxation of those conditions on the basis that it will be necessary to see how he reacts to the media publicity about him and this application. Mr Simmonds notes it has been some months since Mr Tarrant has featured in the media.

[3] The starting point is the principle of open justice. As the Supreme Court said in the case of Erceg v Erceg:1
The principle of open justice is fundamental to the common law system of civil and criminal justice. It is a principle of constitutional importance, and has been described as “an almost priceless inheritance”. The principle's underlying rationale is that transparency of court proceedings maintains public confidence in the administration of justice by guarding against arbitrariness or partiality, and suspicion of arbitrariness or partiality, on the part of courts. Open justice “imposes a certain self-discipline on all who are engaged in the adjudicatory process — parties, witnesses, counsel, Court officers and Judges”. The principle means not only that judicial proceedings should be held in open court, accessible by the public, but also that media representatives should be free to provide fair and accurate reports of what occurs in court. Given the reality that few members of the public will be able to attend particular hearings, the media carry an important responsibility in this respect. The courts have confirmed these propositions on many occasions, often in stirring language.

1 Erceg v Erceg [2016] NZSC 135 at [2] (footnotes omitted).

[4] While there are circumstances recognised by the Supreme Court in which…

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.

Continue reading Tarrant v Attorney-General

Details

AGLC: Tarrant v Attorney-General [2024] NZHC 98
Case: [2024] NZHC 98
Decision Date: 7 February 2024

CaseChat Overview and Summary

In the matter of Tarrant v Attorney-General, the applicant, Brenton Tarrant, sought a judicial review of his classification as an "at-risk prisoner" and the conditions of his imprisonment and supervision by the Department of Corrections. The application was heard in the High Court of New Zealand at Auckland, with the hearing taking place on 7 February 2024. Brenton Tarrant, represented by T A Simmonds, applied for the media and public to be excluded from the court during the hearing, citing personal humiliation and potential prejudice to his situation within the prison. The Attorney-General, along with the Department of Corrections, opposed the application and was represented by A M Powell and K E E Whiting.

The court considered the principle of open justice, which is fundamental to the administration of justice, ensuring transparency and public confidence. While acknowledging Tarrant's concerns, the court noted that the principle of open justice allows for transparency in court proceedings, and exceptions to this rule are limited and require specific adverse consequences. The court found that Tarrant's request for confidentiality did not meet the high standard required to justify such an exception. The court also noted that the application for judicial review inherently involves public airing of Tarrant's personal information, which is necessary to address his concerns about his treatment by Corrections.

The court declined Tarrant's request to hold the matter "in camera" and maintained that the hearing would remain open to the media and the public. The court granted Radio New Zealand's application to record the hearing, considering it consistent with the interests of justice for accurate reporting.

The court's decision underscores the importance of the principle of open justice while balancing individual privacy concerns. The court ultimately ruled that the open hearing was necessary to ensure transparency and public confidence in the judicial process.

Orders