Television New Zealand Limited v Thurgood HC Auckland CRI-2009-055-2162

[2011] NZHC 624

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2009-055-2162

UNDER  the Criminal Proceedings (Access to Court

Documents) Rules 2009

BETWEEN  TELEVISION NEW ZEALAND LIMITED

Applicant

ANDCARY GRANT THURGOOD Respondent

Hearing:         11 March 2011

Appearances: H Wild for Television New Zealand Ltd

K J Glubb for Crown

Judgment:      11 March 2011

JUDGMENT OF COOPER J

ON APPLICATION FOR ACCESS TO COURT DOCUMENTS

This judgment was delivered by Justice Cooper on

11 March 2011 at 3.30 p.m., pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Date:

Solicitors:

Meredith Connell, Crown Solicitors, PO Box 2213, Upper Shortland Street, Auckland 1140

Copy to:

H Wild, Television New Zealand Ltd, PO Box 3819, Auckland 1140

TELEVISION NEW ZEALAND LIMITED V THURGOOD HC AK CRI-2009-055-2162 11 March 2011

[1]      In a letter dated 4 March 2011, Television New Zealand has sought access to various Court documents relating to the trial of Mr Thurgood who was convicted on

7 December 2010 of murder and of attempting to pervert the course of justice.  On 3

March  2011  I sentenced  him  to  life  imprisonment  and  ordered  that  he  serve  a minimum term of 19 years.

[2]      Television New Zealand Ltd now seeks access to a video interview that he gave to the police, CCTV footage and a recording of a message that he left on the deceased’s answer phone.  All of these were played to the jury in open Court at the trial.   To the list of items mentioned in the letter, an audio recording of another interview with the police was added at the hearing of this application.

[3]      The applicant’s letter also lists various exhibits which it is sought to either film or photograph, including the murder weapon and other incriminating evidence that was associated with the crime.

[4]      Mr Kaye has indicated in writing that the application is not consented to, but that Mr Thurgood abides the decision of the Court.   Mr Glubb has appeared in opposition to the application on behalf of the Crown.

[5]      The issue advanced by Mr Glubb relates only to the interviews given by Mr Thurgood to the police.   As to that, the concern raised is that release of the recordings of the interviews might well have a general “cooling” effect on police interviews, if suspects become aware of media access to such recordings.  In an e- mail to the Registrar dated Tuesday 8 March 2011, he suggested as an alternative that it  might  be  possible  for  the  applicant  to  have  access  to  the  transcript  of  the interviews.

[6]      In the circumstances that the applicant has certain deadlines that it wishes to meet, I arranged to hear counsel at short notice and I am grateful to Mr Glubb for making itself available to deal with the matter on that basis.

[7]      Ms Wild relies on R v Mahanga[1]  where McGrath J, delivering the judgment of the Court of Appeal, made reference to a similar concern to that now raised by Mr Glubb, which had in turn been referred to by Anderson J in Television New Zealand Ltd v R.[2]   At [44] McGrath J wrote:

[44]      Both Judges also gave weight to what they saw as risks of harm to the administration of justice if privacy interests were not accommodated in relation to police interviews of accused persons. Anderson J referred to his earlier decision in Television New Zealand Ltd v R [1996] 2 NZLR 462 in which he expressed concern that persons suspected of offending might be deterred from giving videotaped interviews by the apprehension that the tapes might be publicly broadcast by television. He thought it highly unlikely that everyone who might otherwise consent to a videotaped interview would consent if they knew there was a possibility that such interview might be reproduced in the living-rooms of the nation. Impact on the administration of justice generally, or in the particular case, will often be an important factor to consider in the balancing process. It is of course also important however that weight not be attached to speculative propositions. The Crown supported the concern that there might be a lessening in cooperation by suspects with the police if such applications as the present were granted which would be contrary to the public interest. On the other hand there are recent incidents in which the police have themselves facilitated access to videotaped interviews with suspects, which may indicate they have no such concern. No evidence was put before the Judge or this Court supporting the Crown's argument on these matters. In those circumstances we have doubts whether any real weight could be given to this factor.

[1] R v Mahanga [2001] 1 NZLR 641.

[2] Television New Zealand Ltd v R [1996] 2 NZLR 462.

[8]      I have this morning offered Mr Glubb the opportunity of further time in which he might be able to obtain evidence that the chilling effect on which he seeks to  rely and  which  the  Court  of Appeal  has  effectively described  as  speculative (without evidence), is in fact real.  He has not sought that that course be followed and indeed, reminded of what was said in R v Mahanga, while not consenting to the present application he has responsibly accepted that he cannot really justify the concern as a matter of fact.

[9]      In the absence of evidence, I do not see  how the concern can be given any weight.  Certainly, as a proposition not based on evidence, I find it difficult to accept that the possibility of future broadcasting of a video-taped interview might cause a person suspected of a serious crime not to give an interview that he or she would

otherwise have given.  It is more likely in my view that the suspect’s mind would be

on other matters at the time.   I am also mindful that, since R v Mahanga was decided, there have been other cases where the police have apparently facilitated the making available of such interviews.

[10]     There was no other issue raised by Mr Glubb in opposition to the application. I note that the intended programme appears, from Television New Zealand Ltd’s application, to be one that is to be made with the full co-operation of members of the deceased’s family, and given Mr Thurgood’s stance there does not seem to me any basis to reject the application in terms of privacy interests or the other matters mentioned in r 16(c) of the Criminal Proceedings (Access to Court Documents) Rules 2009.  I note also that all of the material to which access is sought was dealt with in open Court at the trial, which was concluded in December last year.

[11]     In these circumstances, granting the application will be in accordance with the principle of open justice and encouraging fair and accurate reporting of, and comment on trials (r 16(d)), and the freedom to seek, receive and impart information (r 16(e)), while not having any impact on Mr Thurgood’s right to a fair hearing (r 16(a)), or on the orderly and fair administration of justice (r 16(b)).

[12]     I have therefore decided that the application should be granted, and it is granted accordingly.

[13]     As noted above, I will treat the application as extending also to the audio recording of an interview given by Mr Thurgood to the police as well as the video interview.  I direct that:

(a)      Insofar as the application relates to recorded materials (the interviews, the CCTV footage and the answer phone recording) the relevant exhibits can be made available to Television New Zealand Ltd on the basis of Ms Wild’s undertaking given to the Court that they will be returned unaltered within 24 hours.

(b)The exhibits to which access has been sought are to be examined, and if desired filmed or photographed at the Court by arrangement with the Registrar. They are not to leave the Registry.

[14]     I draw the applicant’s attention to the order that I previously made prohibiting the  publication  of  the  names  or  identifying  particulars  of  the  deceased’s  four children.