Whittingham

[2013] NZHC 1726

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

T.1/1955 [2013] NZHC 1726

UNDER  Criminal Procedure Rules 2012

IN THE MATTER             of an application for a copy of the transcript of SENGA FLORENCE WHITTINGHAM'S trial

BETWEEN  KERIN FREEMAN Applicant

Judgment:                10 July 2013

JUDGMENT OF FOGARTY J

[1]      By letter of 21 May 2013, Mr Kerin Freeman applied to obtain a copy of the transcript of Dr Senga Whittingham’s trial in 1955, more than 50 years ago.

[2]      Dr  Whittingham was  found  guilty of  the  manslaughter of  John  William Saunders.  John Saunders was killed by a bullet from a .303 rifle that was held by Dr Whittingham.  The jury returned its verdict of not guilty of murder but guilty of manslaughter,  and  added  a  “strong  recommendation  that  utmost  leniency  be extended to the accused because [we] consider that firearm was accidentally discharged.”

[3]      Dr Whittingham was sentenced to three years imprisonment by McGregor J.

[4]      Rule 6.10 of the Criminal Procedure Rules 2012 applies. It provides:

Re Whittingham [2013] NZHC 1726 [10 July 2013]

6.10     Matters to be taken into account

(1)      A Judge may deal with any request or application that requires permission of a Judge or the court to be given on the papers or at an oral hearing, and may grant access in whole or in part and subject to any conditions the Judge thinks appropriate.

(2)       In determining a request or an application under this rule, the Judge must consider the nature of, and the reasons for, the application or request and take into account each of the following matters that is relevant to the application, request, or objection:

(a)      the right of the defendant to a fair hearing: (b)      the orderly and fair administration of justice:

(c)       the protection of confidentiality, privacy interests (including those of children and other vulnerable members of the community), and any privilege held by, or available to, any person:

(d)      the principle of open justice, namely, encouraging fair and accurate reporting of, and comment on, trials and decisions:

(e)      the freedom to seek, receive, and impart information:

(f)       whether any document to which the application or request relates is subject to any restriction under rule 6.9:

(g)      any other matter that the Judge thinks just.

On the facts of this case, s 6(2)(c), (d) and (e) apply.

[5]      Dr Whittingham lives in Australia.  In response to a request for access to the file by a relative of the victim, Dr Saunders, and not otherwise for publication, Dr Whittingham responded:

I am now 85 years old and for close to 60 years I have felt remorseful and, on  many  occasions,  emotionally  exhausted.    It  has  been  an  enormous struggle for me to rebuild and sustain a useful life, one in which I have tried hard to make some positive contribution to the community.

...

... I have been deeply traumatized by the behaviour of a small section of people associated with the media in New Zealand who have sought my trust and then gone to extreme lengths to target my vulnerabilities and to test the patience of those around me...

[6]      In my view, Dr Whittingham is a vulnerable member of the community.  She has served her prison sentence.  She is now in the latter stages of her life, entitled to some peace.

[7]      The application of rr 6.10(2)(d) is informed, I think, by the decision of the Supreme Court in Rogers v Television New Zealand Ltd.1    That was a case where Mr Rogers had been found not guilty of murder in December 2005.  After the trial, the issue was whether or not Television New Zealand could be restrained from using a police evidentiary video recording an interview of Mr Rogers which was held inadmissible.   In the course of the judgment, the members of the Supreme Court examined privacy interests of the acquitted person.   The majority held that the balance between the public interest in open justice and understanding why evidence

had been excluded against the privacy of the acquitted person was in favour of open justice in allowing the videotape to be broadcast. McGrath J said:

[118]    [118] Open justice provides critical safeguards in the operation of the criminal justice process. The ability of the public to attend, and the media to report on, what transpires during a criminal trial provides the transparency in the process that is crucial to fulfilment of the protected right to a “fair and public hearing by an independent and impartial court”. But it has also been recognised that the public interest served by openness in the administration of justice goes beyond protecting the fundamental rights of those charged with a criminal offence. Openness also helps meet the need to preserve public confidence in the legal system. As Woodhouse P said in Broadcasting Corporation of New Zealand v Attorney-General:

The Judges speak and act on behalf of the community. They necessarily exercise great powers in order to discharge heavy responsibilities. The fact that they do it under the eyes of their fellow citizens means that they must provide daily and public assurance that so  far  as  they can  manage it  what they do  is  done efficiently if possible, with human understanding it may be hoped, but certainly by a fair and balanced application of the law to facts as they really appear to be. Nor is it simply a matter of providing just answers for individual cases, important though that always will be. It is a matter as well of maintaining a system of justice which requires that the judiciary will be seen day by day attempting to grapple in the same even fashion with  the  whole  generality  of  cases.  To  the  extent  that  public confidence is then given in return so may the process be regarded as fulfilling its purposes.

...

[120]    There  are  statutory provisions  permitting  exceptions  to  openness which allow, and at times require, the courts to suppress reports of certain evidence and to prohibit identification of offenders and witnesses in certain

1      Rogers v Television New Zealand Ltd [2008] 2 NZLR 277 (NZSC).

circumstances. These exceptions are, however, all administered from a starting point that emphasises the importance of open justice and freedom of expression. Orders prohibiting publication of evidence, submissions or even a court’s judgment will also be made where that is necessary to protect prejudicial material from affecting the fairness of a trial. Those reasons generally disappear once a trial has concluded. Thereafter a strong onus lies on any person seeking to continue a prohibition on publication to show grounds that justify that course.

[121]    In general the public, including the media, have full access to court proceedings as and when they take place. In reporting on the processes of the courts, the media are restricted in what they may say only to the extent that rules permit exclusion of the public or suppression of publication of any matters  for  specified  reasons.  Such  access  enables  full  reporting  by  the media in traditional ways of what takes place in court. This degree of access usually fulfils the values of open justice and the right to freedom of expression on which the media are entitled to rely in reporting court proceedings.

[8]      It should be noted that these are statements of principle.   They are to be applied in context.  There are circumstances in which the public interest in access to the record of a trial may be overbalanced by protection of vulnerable persons.  The Criminal Procedure Rules reflect this balance.  It is also important to note that the core value of the principle of open justice is to protect the criminal justice process “during a criminal trial”.  See the opening two sentences of [118] above.  This purpose has been in no way qualified.  I do not think it is qualified in this case, in respect of a trial which occurred more than 50 years ago.  Furthermore, the context of this application is whether or not the transcript of the trial should be provided now,  or  after  Dr  Whittingham’s  death.    For  these  reasons,  I  do  not  think  that r 6.10(2)(d) should be given significant weight in the exercise of judgment in this application.

[9]      Section  6(2)(e),  the  freedom  to  receive  and  impart  information,  is  the principle which collides with (c) in the facts of this case.

[10]     The High Court only protects information when there are good reasons to do so.  It does so regularly to protect vulnerable members of society.  Usually they are the victims.   But part of the system of justice is that, when sentences have been served, the convicted person is entitled to re-enter the community.  In different circumstances that might entitle a degree of protection of privacy and protection from being exposed to the media spotlight.

[11]     There is no direct public interest in an examination of this trial.   In this particular case the applicant wants to compare the outcome of Dr Whittingham’s trial, where she was found guilty of manslaughter, with the outcome of the trial of Frederick  Foster  who,  in  Auckland  in  1955,  shot  his  ex-girlfriend,  Sharon Skiffington. He was sentenced to death and was hanged.

[12]     It  is  beyond  the  scope  of  this  judgment  to  examine  whether  there  are similarities, and what the differences are between the cases which led to different jury verdicts.

[13]     It  is  my  judgment  that  on  the  facts  of  this  case  the  vulnerability  of

Dr Whittingham justifies refusing this application, during her lifetime.

[14]     It  is  my  judgment that  this  is  one  of  those  cases  where  the  request  of Dr Whittingham is reasonable. It seems plain that she has no objection to the release of this information upon her death.  Upon her death the whole story will truly be a matter of history, which can be examined without further emotional trauma.

[15]     The application is dismissed.  This is a judgment of the High Court.  There is a right of appeal.

Copy to:

K Freeman, Bay of Plenty