Taylor v Commissioner of Police

[2018] NZHC 2202

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2015-404-2095

[2018] NZHC 2202

IN THE MATTER

of an application by a non-party for access to Court records

UNDER

the Senior Courts (Access to Court Documents) Rules 2017

BETWEEN

PHILIP TAYLOR, a reporter for the New Zealand Herald

Applicant

AND

COMMISSIONER OF POLICE BRETT EDWARD EDWARDS JOHANNA EDITH EDWARDS

Respondents

Hearing:

(On the papers)

Appearances:

M R Harborow and H E Savage for Commissioner

D P H Jones QC for Brett Edwards and Johanna Edwards P Taylor for NZME Publishing Ltd

Judgment:

24 August 2018

JUDGMENT OF BREWER J

Solicitors:

Meredith Connell (Auckland) for Commissioner

Connell & Connell (Auckland) for Brett Edwards and Johanna Edwards Bell Gully (Auckland) for NZME Publishing Ltd

TAYLOR v COMMISSIONER OF POLICE [2018] NZHC 2202 [24 August 2018]

[1]                  Mr Edwards was prosecuted by the Ministry of Primary Industries for breaches of the Fisheries Act 1996. He was eventually convicted of three charges of knowingly acting in contravention of the Fisheries Act to obtain a benefit.

[2]                  On 7 September 2015, the Commissioner of Police applied (inter alia) for civil forfeiture orders over property associated with Mr Edwards and his wife pursuant to the Criminal Proceeds (Recovery) Act 2009. Eventually, the Commissioner and Mr and Mrs Edwards reached a settlement agreement. The agreement, by mandate of s 95 of that Act, required the approval of the High Court. The High Court must be satisfied, before approving any settlement, that it is consistent with the purposes of the Act and the overall interests of justice. This is an important check on what might otherwise be an opaque exercise of a public function.

[3]                  On 4 July 2017, Woolford J approved the proposed settlement, and in his Minute of that date set out the basic terms of the settlement.

[4]                  Just over a year later, on 17 July 2018, Lang J began hearing an appeal against a District Court decision to grant media access to the District Court file relating to the prosecution brought by the Ministry of Primary Industries. Counsel for the parties to the appeal gave responsible attention to the District Court file and agreed on materials to which the media should have access. They pointed out to Lang J that some of the material on the file had been ruled inadmissible as evidence because the searches which obtained the material had been carried out in an unreasonable manner. Justice Lang agreed that since the material largely consisted of uncontested assertions by the prosecution, it would be unfair and inappropriate for the material to be released into the public domain.

[5]                  On 17 August 2018, as Duty Judge, I received an application by Mr Taylor, a reporter for the New Zealand Herald, for access to documents on the Court file containing the application by the Commissioner of Police for civil forfeiture orders, to which I have just  referred.  Counsel  for  the  Commissioner  and  for  Mr  and Mrs Edwards had filed a joint memorandum. They agreed that Woolford J’s Minute of 4 July 2017 approving the settlement between the parties should be disclosed to Mr Taylor. Since Woolford J referred to the parties’ joint memorandum proposing the

settlement, they consented also to Mr Taylor having access to the joint memorandum. However, they submitted:

The parties note that the joint memorandum contains reference to the hand written records located by the Ministry of Primary Industries during the search of Mr Edwards’ home address at 77A Pukaki Road, Mangere, Auckland on 19 September 2013 (known as the sewer documents). The content and analysis of the sewer documents have previously been withheld from the media by this Court. In an appeal against the District Court’s decision to make information on the Court files available to the media, Lang J held it would be unfair and inappropriate for material containing untested allegations to be released into the public domain. This category of documents included the sewer documents. The parties are content for Mr Taylor to have access to the joint memorandum, provided he does not publish any content or analysis of the sewer documents, consistent with Lang J’s orders. It appears Mr Taylor appreciates this restriction, as noted in his request. It follows that Mr Taylor may not publish the Commissioner’s profit forfeiture figure [redacted] given it was calculated on the basis of the sewer documents.

[6]                  In my Minute of 17 August 2018, I communicated to the parties that I do not agree it follows necessarily that because of Lang J’s ruling, Mr Taylor may not publish the Commissioner’s profit forfeiture figure. I gave the parties and Mr Taylor an opportunity to comment.

[7]                  I have now received a further joint memorandum from the parties. They continue to oppose Mr Taylor publishing the profit forfeiture figure. Their reasons are:

[a]The profit forfeiture figure “is based exclusively on the sewer documents”.

[b]The profit forfeiture figure, therefore, constitutes analysis of the content of the sewer documents.

[c]To publish the profit forfeiture figure would be contrary to the orders made by Lang J.

[d]Mr and Mrs Edwards have never had the opportunity to contest the profit forfeiture figure.

[e]The public interest does not extend to publication of the profit forfeiture figure because that sum has never been the subject of judicial pronouncement.

[8]                  I  have  also  received  a  memorandum  from  the  solicitors  representing  Mr Taylor’s employer.1 The overall submission is that the public has a right to know the profit alleged by the Crown in a context such as this one.

Decision

[9]                  The context against which I must decide Mr Taylor’s application is that the Commissioner of Police exercised a public function in a matter relating to criminal justice. The settlement agreement was not a private one in the sense it involved only the commercial interests of the parties. The Commissioner was acting as a public officer. Justice Woolford had to consider whether the High Court should approve the settlement as being consistent with the purposes of the Criminal Proceeds (Recovery) Act 2009 and the overall interests of justice.

[10]              Parliament intended that settlement agreements must be taken out of the privacy of the negotiating room and into the public space of the High Court. Of course, a Judge may decide to limit public knowledge of the contents of, and background to, a settlement agreement if that is necessary in the interests of justice. Here, Woolford J did not make any order restricting public knowledge of the exercise he undertook. In reaching his decision, he had to have regard to the calculated profit forfeiture figure.

[11]Justice Lang’s decision came a year later and in a completely different context.

[12]              I look at Mr Taylor’s application in the context of the Commissioner’s application under the Criminal Proceeds (Recovery) Act 2009. In my view, while it is appropriate for the context and analysis of the “sewer documents” to be kept confidential, as is submitted by counsel for the parties in the passage quoted by me at

[5] above, the same is not so for the Commissioner’s profit forfeiture figure.  That

figure was relevant to Woolford J’s decision and the public is entitled to know it. This

1      NZME Publishing Ltd.

is consistent with the principles of open justice (including the encouragement of fair and accurate reporting of, and comment on, Court hearings and decisions). It is in accordance with the important democratic freedom to seek, receive and impart information.

[13]      I grant Mr Taylor’s application subject to the restrictions set out in the passage quoted at [5] above, save that the profit forfeiture figure may be published also.

[14]      I think it possible the parties might wish to appeal this Judgment. Accordingly, publication of the profit forfeiture figure may not occur before 31 August 2018. Obviously, if an appeal is taken, the parties will have to seek an interim non- publication order to apply after that date.

Brewer J