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 the interests of justice may require the departure from the general rule, they are limited.

Again, as the Supreme Court said in Erceg:2

[t]he courts have declined to make non-publication or confidentiality orders simply because the publicity associated with particular legal proceedings may, from the perspective of one or other party, be embarrassing … or unwelcome
… . This has been put on the basis that the party seeking to justify a confidentiality order will have to show specific adverse consequences that are exceptional, and effects such as those just mentioned do not meet this standard. We prefer to say that the party seeking the order must show specific adverse consequences that are sufficient to justify an exception to the fundamental rule, but agree that the standard is a high one.

[5]    The matters raised by Mr Tarrant do not support the orders he seeks. They do not meet that high standard. Mr Tarrant may understandably prefer his personal information not be aired in the courtroom, but his application for judicial review raises that very situation. The case cannot be understood without reference to it. The fact that aspects of it may be humiliating or embarrassing to him is not sufficient.

[6]    Next, the Courts regularly hear applications for judicial review of the way prisoners are treated by Corrections. While I understand the point Mr Simmonds makes, there is a degree of circularity to it in that the matters need to be aired in order to address Mr Tarrant’s concerns. The suggestion that publicity of this particular claim may prejudice Mr Tarrant or affect the way he is treated by Corrections is somewhat speculative and without an evidential foundation. Mr Tarrant’s conditions of imprisonment will be considered by this Court in the context of this application for judicial review. Corrections, the other respondent, and Mr Tarrant himself will, subject to appeal, be bound by the decision of the Court. Indeed Corrections is of course bound by its statutory and regulatory obligations.

[7]    For those reasons I decline the request by Mr Tarrant that the matter be heard effectively “in camera”. The hearing will remain open to the media and the public.

[8]    Radio New Zealand has applied to take photographs and to record the hearing. As discussed with the Radio New Zealand representative given the participants to the

2      At [13] (footnotes omitted).

hearing the application to take photographs is no longer pursued. In relation to the application to record the hearing I grant that application on the basis that it is consistent with the interests of justice to ensure accurate reporting of the proceedings this morning.

Venning J