THE KING vJOSEPH WILLIAM JOHNSON CHEA BRATTLE-HEMARA HAENA

[2023] NZHC 3630

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

I TE KŌTI MATUA O AOTEAROA TE PAPAIOEA ROHE

CRI-2017-054-850

CRI-2017-054-2016 [2023] NZHC 3630

THE KING

v

JOSEPH WILLIAM JOHNSON CHEA BRATTLE-HEMARA HAENA

Hearing:

On the Papers

Counsel:

S Baker for Crown

C Stevenson and S Parry for Johnson E Hall and R O’Hagan for Hemara

Judgment:

12 December 2023

JUDGMENT OF ELLIS J

[1]    In my recent costs judgment I made an order under s 202 of the Criminal Procedure Act 2011 prohibiting the publication of the name, address, occupation or identifying particulars of the person referred to in my decision as “Witness A”.1 Because of that order it was necessary to make a number of redactions to the judgment. Although there was a dispute about the necessary extent of the redactions, in light of the important public interests at stake, I ultimately adopted the approach advocated by Police.

1      R v Johnson [2023] NZHC 2948.

R v JOHNSON & HEMARA [2023] NZHC 3630 [12 December 2023]

[2]    One of the redactions made was to the date of a meeting with Witness A attended by (amongst others) the Palmerston North Crown solicitor, Mr Vanderkolk. While that date by and of itself was unlikely to have identified Witness A there was a concern about a potential jigsaw effect. As I have said the approach adopted was a cautious but, in my view, warranted one.

[3]    As a consequence of my judgment, Mr Richard Lincoln—a member of the public—has filed a memorandum asking to have the date of this meeting disclosed to him. The reasons and ambit of Mr Lincoln’s request are set out in his memorandum to the Court:2

2.The petitioner is a concerned member of the public who, following the delivery of the Court’s decision in this matter on 20 October 2023, suspects that BENJAMIN VANDERKOLK committed an offence under s 117 of the Crimes Act 1961 (attempting to pervert the course of justice) because he instructed a member of the New Zealand police to conceal his own and his junior associate prosecutor’s attendance at a meeting with a prison informant. See para 150 of substantive decision.

3.The petitioner requests suppressed details of the date, and location of the meeting in order to particularise a charging document for an intended private prosecution.

[4]    Mr Lincoln does not cite any legislative foundation for his request, but I am prepared to treat it as an application made pursuant to the Senior Courts (Access to Court Documents) Rules 2017 (the Rules).

[5]    Under r 8(3) of the Rules, the public is entitled to access any judgment of the court given in a criminal proceeding, but r 8(4) makes it clear that permission from a judge is always required to access documents that would enable the identification of a person in respect of which a suppression order has been made.3 Rule 6 also makes it clear that any right of access conferred by the rules is subject to any court order prohibiting access or publication.

2 As well as at para [150], the meeting was referenced at paras [151], [152], [189], [192(d)], [230] and at footnote 118. The location of the meeting is not referenced in the judgment but is on the Court record.

3      Senior Courts (Access to Court Documents) Rules 2017, rr 6 and 8(4)(d).

[6]    In a case where there is no right to access (as here) an application for access is governed by r 11, which provides:

11       Any person may ask to access documents

(1)This rule applies if a person is not entitled to access a document relating to a proceeding or an appeal under rule 8 or 9.

(2)A person may ask to access any document by providing the Registrar of the relevant court registry with a letter, an email, or any other written form of request that—

(a)identifies the person and gives the person’s address; and

(b)sets out sufficient particulars of the document to enable the Registrar to identify it; and

(c)gives reasons for asking to access the document, which must set out the purpose for which the access is sought; and

(d)sets out any conditions of the right of access that the person proposes as conditions that he or she would be prepared to meet were a Judge to impose those conditions (for example, conditions that prevent or restrict the person from disclosing the document or contents of the document, or conditions that enable the person to view but not copy the document).

…

(7)A Judge may—

(a)grant a request for access under this rule in whole or in part—

(i)without conditions; or

(ii)subject to any conditions that the Judge thinks appropriate; or

(b)refuse the request; or

(c)refer the request to a Registrar for determination by that Registrar.

(8)Without limiting the powers in subclause (7), the Judge may refuse a request for access under this rule solely for the reason that the request does not comply with subclause (2)(a), (b), (c), or (d).

[7]In accordance with r 11(3), Mr Lincoln’s request was referred to the parties.

[8]Counsel for Messrs Hemara and Johnson do not oppose the application.

[9]    The Crown and Police oppose the request on the basis that the public interest reason for the redaction (their continuing ability to protect the identity of confidential informants  and,  so,  the  administration   of   justice   more   broadly)   outweighs Mr Lincoln’s interest in the date and location of the meeting.

Discussion

[10]   Although rr 12 and 13 set out the matters that must be considered when determining a request for access under r 11, those rules are of limited application in the face of an express suppression order, as exists here. In my view the request falls to be determined primarily by balancing the competing public interests involved, namely:

(a)the public interest in members of the public being able to bring a private prosecution;4 and

(b)the public interest in maintaining the anonymity of prison informant witnesses where a guarantee of anonymity was (and, more generally, is) integral to that witness’s assistance to Police.

[11]   The short point is that, notwithstanding the public interest in enabling private prosecutions, the suppressed information sought by Mr Lincoln is not necessary for him to do that. While a charging document must contain sufficient particulars to fully and fairly inform a defendant of the substance of the offence alleged,5 Mr Lincoln can draft such a document with reference to the relevant passages from the substantive (redacted) judgment. He does not need the date and location of the meeting to achieve his purpose. In the event of any difficulty in that regard this judgment can, I suppose, be prayed in aid.

4      See the discussion in S v Vector Ltd [2020] NZSC 97, [2021] 1 NZLR 1 at [39]–[41].

5      Criminal Procedure Act 2011, s 17(4); in theory, Mr Lincoln’s charging document could also be filed as a representative charge—there is enough unredacted information to work out that the meeting must have occurred sometime in January or February 2018.

[12]   In those circumstances, and given that providing the suppressed details to a member of the public would undermine the permanent suppression order in place for Witness A, Mr Lincoln’s application must be declined.

Ellis J

Solicitors:
Crown Law, Wellington