The King v Terry Kawhiaiti Byford Angela JONNA Ngataki
[2024] NZHC 2633
•13 September 2024
IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY
I TE KŌTI MATUA O AOTEAROA TE PAPAIOEA ROHE
CRI-2006-054-557
[2024] NZHC 2633
THE KING v
TERRY KAWHIAITI BYFORD ANGELA JONNA NGATAKI
On the papers Counsel:
B D Vanderkolk for Crown P Kayne for Byford
P Coles for Ngataki
Judgment:
13 September 2024
INTERIM JUDGMENT OF ISAC J
[Access to court documents]
Introduction
[1] Angela Anderson (previously known as Angela Ngataki) applies for access to court documents in this proceeding. Ms Anderson was a defendant who stood trial for two weeks in the High Court at Palmerston North on charges of possession of a class A drug for supply, possession of firearms and possession of explosives. At the conclusion of the trial Ms Anderson was convicted and sentenced to five years’ imprisonment.1
1 R v Ngataki [2008] NZCA 215 at [1].
R v BYFORD & NGATAKI [2024] NZHC 2633 [13 September 2024]
[2] The documents which Ms Anderson seeks are identified in her notice of application as follows:
1.My entire criminal files.
2.All correspondence and judgments refusing clean slate.
3.All hearing records, disclosures, transcripts and decisions on file.
[3] Ms Anderson goes on to say that the purpose of her request is that a “serious miscarriage of justice” has occurred, and she was not informed of the ability to obtain a discharge without conviction under s 106 of the Sentencing Act 2002. The documents sought are required “to quash my criminal convictions”, and she submits a question of law exists “regarding how the wording of the Clean Slate Act is interpreted”.
Applicable principles
[4] The Senior Courts (Access to Court Documents) Rules 2017 set out a framework for making access applications and for decisions granting or declining them. The Court of Appeal summarised the framework in Crimson Consulting Ltd v Berry in the following terms:2
[11] Under the Rules every person has a right to access the formal record relating to a civil proceeding and to certain specified documents in criminal proceedings. The formal court record in civil proceedings is defined in r 4 and includes judgments, orders and minutes, but does not include pleadings or affidavits...
[12] Access to documents that do not fall under the general right to access can be sought by any person by a written request to the Registry. There are certain matters which must be specified, including the reasons for asking for access to the document. The Registrar must give a copy of the request to the parties to the relevant proceeding and parties who wish to object must give written notice of that objection to the Registrar, setting out the grounds of objection. It is an informal procedure. The application is then put before a judge. The judge may grant or refuse a request or may grant a request subject to conditions. Alternatively, the judge may refer the request to a Registrar for determination by that Registrar.
[13] …[U]nder r 12 the judge “must consider the nature of, and the reasons for, the request” and take into account each of the matters set out that is relevant to the request or any objection to the request. Those matters are:
2 Crimson Consulting Ltd v Berry [2018] NZCA 460; [2019] NZAR 30. Footnotes omitted.
(a)the orderly and fair administration of justice:
(b)the right of a defendant in a criminal proceeding to a fair trial:
(c)the right to bring and defend civil proceedings without the disclosure of any more information about the private lives of individuals, or matters that are commercially sensitive, than is necessary to satisfy the principle of open justice:
(d)the protection of other confidentiality and privacy interests (including those of children and other vulnerable members of the community) and any privilege held by, or available to, any person:
(e)the principle of open justice (including the encouragement of fair and accurate reporting of, and comment on, court hearings and decisions):
(f)the freedom to seek, receive, and impart information:
(g)whether a document to which the request relates is subject to any restriction under rule 7:
(h)any other matter that the Judge thinks appropriate.
[5] Under the Rules, there are three different approaches to the balancing process under r 12 depending on the stage the proceeding is at. Those stages, and the respective approaches, are set out in r 13:
13 Approach to balancing matters considered
In applying rule 12, the Judge must have regard to the following:
(a)before the substantive hearing, the protection of confidentiality and privacy interests and the orderly and fair administration of justice may require that access to documents be limited:
(b)during the substantive hearing, open justice has—
(i)greater weight than at other stages of the proceeding; and
(ii)greater weight in relation to documents relied on in the hearing than other documents:
(c)after the substantive hearing,—
(i)open justice has greater weight in relation to documents that have been relied on in a determination than other documents; but
(ii)the protection of confidentiality and privacy interests has greater weight than would be the case during the substantive hearing.
[6] As the Court observed, there is no presumption in favour of disclosure, and there is no hierarchy in terms of the r 12 factors. The balancing exercise envisaged requires consideration in the context of both the particular proceeding and the application.
Consideration
[7] The purpose of the access request is to enable the applicant to challenge her criminal conviction. As the trial is over, the proceeding falls to be considered under r 13(c), where open justice has greater weight in relation to documents that have been relied on in the determination of the trial than other documents, but the protection of confidentiality and privacy interests has greater weight that would be the case during the substantive hearing.
[8]Given:
(a)the information retained on the court file is, essentially, Ms Anderson’s personal information;
(b)in large part formed evidence given at a public hearing; and
(c)the purpose of the request—
I am clearly satisfied it is appropriate to grant the application. The fair administration of justice and the right of a defendant in a criminal proceeding to a fair trial are the paramount considerations in r 12.
[9] However, the court file contains information which appears to concern the interests of Ms Anderson’s then co-defendant, Mr Byford, and some of that material is unlikely to have been made available to Ms Anderson during her trial. Regardless, it is not within the scope of her application and I would not grant access to such information had it been sought.
[10] Accordingly, it is appropriate to restrict the extent of disclosure to ensure that it falls within the scope of the request and is comprised of material that Ms Anderson was aware of or received during the trial. I make orders to that effect below.
Conclusion and Result
[11] Ms Anderson’s application for access to court documents is granted subject to the following conditions:
(a)I direct that the case files are to be reviewed by a Registrar to identify any documents that may be subject to a claim to privacy by Ms Anderson’s former co-defendant, Mr Byford;
(b)In addition, any papers which do not fall within the scope of the request, relate to the jury or jury members, or which are the private notes of a judge or the internal communications of case officers within the Court registry, are not to be disclosed.
[12] Once the file has been reviewed, and the appropriate papers copied for release, they are to be returned to me or another judge for approval before they may be released to Ms Anderson.
[13] This judgment is interim only, and may be subject to revision or recall should the Registrar’s review of the Court file identify matters that require further consideration or modification of the orders made.
Isac J
Solicitors:
Crown Law, Palmerston North
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