Taylor v Attorney-General

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2017-485-802

[2022] NZHC 3493

BETWEEN
ARTHUR WILLIAM TAYLOR

Plaintiff

AND

ATTORNEY-GENERAL

Respondent

Hearing: On Papers

Counsel:

Plaintiff in Person

S M Kinsler and D M A Wiseman for Respondent

Judgment:

16 December 2022

JUDGMENT (No 4) OF ISAC J

[Application to publish discovered material]

Introduction

[1] Following release of Taylor (No 3) v Attorney General,1 Mr Taylor has renewed an application for leave to publish (and otherwise use) video footage discovered by the defendant during the course of the proceeding.

[2] The background to the application and the issues it raised prior to delivery of my substantive judgment are set out in my decision in Taylor (No 1) v Attorney-General.2 As my substantive decision had not yet been delivered, I concluded that the interests of justice favoured declining Mr Taylor’s application at that time. However, I concluded:3

1      Taylor v Attorney-General [2022] NZHC 3170.
2      Taylor v Attorney-General (No 1) [2022] NZHC 1825 at [1]–[14].
3      Taylor v Attorney-General [2022] NZHC 1825.

TAYLOR v ATTORNEY-GENERAL [2022] NZHC 3493 [16 December 2022]

[53] Mr Taylor’s application to rescind the confidentiality order is declined. The order will remain in place pending judgment. Thereafter, leave is reserved to Mr Taylor to apply again to have it rescinded. As I have indicated, at that point in time it may be unlikely that the order should continue to subsist.

[3] Now that my substantive judgment has been delivered, Corrections once again opposes Mr Taylor’s request to use the video footage. It says publication risks identification of Corrections staff in a context where “Mr Taylor maintains his criticism of the staff to an audience that will not have read the judgment, or media reporting on the judgment, exonerating those individuals of wrongdoing”. In addition, Mr Taylor is said to have demonstrated “a tendency to be untruthful when it comes to describing the transfer [from Waikeria Prison]”. Finally, Corrections emphasises the principle of open justice has already been served, in that the footage has been played at a public hearing.

[4] In response, Mr Taylor emphasises that in Taylor v Attorney-General (No 1) I had indicated that it might be expected that once judgment had been delivered the reasons for continuing the confidentiality order would cease to apply. He emphasises the importance of his right in s 14 of the NZ Bills of Rights Act 1990—freedom of expression—and refers to high authority emphasising the personal and constitutional risks that attach to any unjustified limit on that right.4

Consideration

[5] With the delivery of my judgment, I am not satisfied there remains a proper basis to prevent Mr Taylor using or publishing the video footage. Afterall, he is the central focus of all of it. While Corrections may have a concern over any accompanying commentary or opinion Mr Taylor may express when using the footage, he is entitled to express his views whether they are accurate or not.

[6] Corrections are on stronger ground in relation to the personal and privacy interests of Corrections officers identified in the footage. Balancing their individual interests, given that their images were captured in the course of their employment and disclosed to Mr Taylor under the compulsion of a discovery order, I consider it

4 Brooker v Police [2007] NZSC 30, [2007] 3 NZLR 91 at [40] per Elias CJ.

appropriate to direct that the faces of Corrections staff should be pixilated. That is a matter which ought to be capable of resolution between the parties.

Conclusion and Result

[7] Mr Taylor’s application is granted, subject to a requirement to pixilate the faces of Corrections staff.

Isac J

Solicitors:
Meredith Connell, Auckland for Respondent

In Taylor v Attorney-General, Arthur William Taylor sought permission to publish video footage obtained during a legal proceeding. The case was heard in the High Court of New Zealand, Wellington Registry. The footage, discovered by the defendant, was central to the litigation but had been subject to a confidentiality order. Taylor argued for the release of the footage, citing his right to freedom of expression under the New Zealand Bill of Rights Act 1990. The Attorney-General, on behalf of Corrections, opposed the application, citing concerns about the identification of staff members and potential inaccuracies in Taylor's commentary.

The court needed to balance Taylor's right to freedom of expression against the privacy interests of Corrections staff members appearing in the footage. It also had to consider whether the principle of open justice had been adequately served by the footage being played in a public hearing. Furthermore, the court had to determine whether any unjustified limit on Taylor's right to freedom of expression would pose personal or constitutional risks, as emphasised by high authority.

After delivering the substantive judgment, the court concluded that there was no longer a proper basis to prevent Taylor from using or publishing the video footage, given that he was the central focus. However, the court recognised the legitimate privacy interests of the Corrections officers and directed that their faces should be pixilated. This decision allowed for a balance between Taylor's right to freedom of expression and the privacy rights of the Corrections staff. The court granted Taylor's application, subject to the condition that the faces of Corrections staff be pixilated.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established