R v Corkran [2023] NZHC 2743 (29 September 2023)

Last Updated: 10 October 2023

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CRI-2021-083-1688 [2023] NZHC 2743

THE KING

v

JOHN RICHARD JAMES CORKRAN

	On the Papers
Counsel:	M Wilkinson-Smith for Crown R Lithgow KC and A Jeremich for Defendant
Judgment:	29 September 2023

JUDGMENT OF ISAC J

[Access to court documents]

Introduction

• [1] On 14 August 2023 I granted Mr Jimmy Ellingham, a journalist from Radio New Zealand, access to “Mr Corkran’s police or other statements held on the Court file”, subject to the material first being referred to me to ensure compliance with the scope of the access granted.¹

• [2] Subsequently, on 28 August 2023, Mr Ellingham emailed the Registry to clarify the scope of his request:

For clarity’s sake I wish to view and take notes of witness statements,

including from Mr Corkran or police officers who had spoken to him or were

¹ R v Corkran [2023] NZHC 2181 at [15]–[16].

R v CORKRAN [2023] NZHC 2743 [29 September 2023]

involved in the prosecution, copies of the indictment, and any documents or advice to the Crown or police about bringing the charge.

(emphasis added).

• [3] On 5 September 2023, I issued a minute in the following terms:

I had taken [Mr Ellingham’s] request to have been directed to Mr Corkran’s statements, rather than the statements of any proposed Crown witness. Given the sensitive matters likely set out in those statements and the complainants’ privacy interests, it is appropriate that the Crown provide a response to the request, including the request for access to legal advice. I have already granted the request for access insofar as it relates to Mr Corkran’s police or other statements held on the Court file, which should be facilitated in accordance with the direction at [15]–[16] of my judgment.

Once I have responses from the parties I will address the other aspects of Mr Ellingham’s request for access.

• [4] On 11 September, the Crown advised that it had no objections to the request for access to the court file, subject to one complainant who had indicated they did not support media access to their statements or publication of their name.

• [5] I approach the request insofar as it relates to access to Court documents beyond those dealt with in my former judgment as a new request.

Relevant legal principles

• [6] Third party access to documents contained in a court file is governed by the Senior Courts (Access to Court Documents) Rules 2017 (the Rules). The principles relating to access to court documents were set out in my previous judgment:²
  • [7] Determining requests for access involves a broad balancing exercise. Rule 12 requires the Court to consider the nature of, and the reasons given for, each request. I must also consider the following matters insofar as they might be relevant:

(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:

² At [6]–[8].

(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.

• [8] Rule 13 acknowledges that different interests hold different weight in the balancing exercise at various stages of a criminal proceeding. In particular, in applying r 12, I 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.

• [7] In Crimson Consulting Limited v Berry, the Court of Appeal considered an application for access to court documents in relation to a civil proceeding that had settled prior to trial.³ In the High Court, Palmer J considered that media interests should be granted access to redacted versions of the pleadings but declined to provide access to the evidence and memoranda on the court file. On appeal the Court noted that the r 12 factors do not represent a hierarchy; no one factor, including the principle

³ Crimson Consulting Ltd v Berry [2018] NZCA 460, [2019] NZAR 30.

of open justice, predominates.⁴ It follows that there is no presumption in favour of disclosure of information. The Court went on to conclude that the Judge had struck the right balance of r 12 factors:⁵

We find ourselves in agreement with Palmer J’s assessment that to allow access to the redacted statement of claim and statement of defence and refuse access to the evidence and memoranda on the Court file strikes the correct balance. Commercial sensitivity is maintained, there is no undue interference with the privacy of the parties, and the public confidence in the administration of justice can be maintained, while the nature of the dispute and thus the business of the Court can be known by the public. There is nothing in the allegations and denials that has a particular pejorative or personal flavour. The need to have transparency in Court proceedings is met by redaction and access.

• [8] In APN New Zealand Ltd v Banks, Wylie J declined access to the court file, including witness statements, prior to a criminal trial. His Honour observed that the defendant should not be subjected to a trial by media,⁶ and that issues of admissibility and confidentiality weighed against access at that stage.⁷ The Judge went on to note the risks involved in publication of untested allegations prior to trial, in particular the possibility of unbalanced reporting:⁸

The public interest, however, lies in ensuring that evidence communicated to the court at trial is then communicated publicly. Access to and the publication prior to trial of untested, and, at least in part, potentially inadmissible material, does not serve the principle of open justice.

... at trial, evidence will be given in context; it will be tested by the parties, and its relative weight and importance will be explored. The reporting of the evidence given at trial will necessarily result in more fair, accurate and balanced reporting than would be possible if material on the court file were presented, out of context, to the public through the media prior to trial. As I have already noted, allowing access now to the court file and allowing publication of that material would carry an inherent risk of imbalance and inaccuracy.

• [9] In BNZ Investments v Commissioner of Inland Revenue, Wild J said:⁹

⁴ At [16] and [32].

⁵ At [43].

⁶ APN New Zealand Ltd v Banks [2014] NZHC 915, [2014] NZAR 514 at [18].

⁷ At [21]–[22].

⁸ At [27] and [28] (citations omitted).

9. BNZ Investments Ltd v Commissioner of Inland Revenue HC Wellington CIV 2004-485-1059, CIV 2006-485-1028, CIV 2006-485-2084, CIV 2008-485-1056, 2 December 2009 at [33] and [36]. The High Court (Access to Court Documents) Amendment Rules 2009 have since been repealed and replaced by the Senior Courts (Access to Court Documents) Rules 2017.

If the documents in question have not been adduced in evidence, or have not been read by the court at some other (i.e. non-evidentiary) stage, the moral impetus behind “open justice” did not apply, because the material never entered the public domain.

...

Rule 3.16 [of the High Court (Access to Court Documents) Amendment Rules 2009] places the focus upon the nature of and reasons for the request and the factors outlined in the rule. This mirrors the approach taken by Courts in the United Kingdom and Australia. It is clear that the principle of open justice is paramount, effectively creating a presumption of disclosure. This presumption is easily displaced if the request is for documents that were not read in or read by the Court, because the principle of open justice rests on the premise that such documents have entered the public domain.

• [10] Similarly in Commissioner of Police v Doyle, Palmer J refused to provide media access to affidavits filed by the Commissioner before affidavits in reply were filed and served, noting that the affidavits sought “contain untested and unanswered allegations and could give an unbalanced impression of the issues and facts involved in the proceeding if made available without the affidavits in response”.¹⁰

• [11] Finally, in R v Q, Winkelmann J (as she then was) allowed only partial access to a court file.¹¹ Her Honour excluded from disclosure unsworn witness statements, because they were not given in open court and were never tested by cross-examination.¹² She also excluded confidential and private material in the file, such as the reports of psychologists and pre-sentence reports.¹³

Consideration

• [12] There are five relevant r 12 considerations in this case.

• [13] The first is the nature of, and reasons for, the request. Mr Ellingham’s application for access records that it is to “allow an accurate report of the allegations against the defendant” in light of the high public interest in the case.

¹⁰ Commissioner of Police v Doyle [2017] NZHC 3049 at [17].

¹¹ R v Q [2014] NZHC 2945.

¹² At [11].

¹³ At [12].

• [14] The second is the important constitutional principle of open justice, reflected in the freedom of expression enshrined in s 14 of the New Zealand Bill of Rights Act 1990 and r 12(e) and (f) of the Rules. The Supreme Court described the principle as “fundamental” to the common law system of civil and criminal justice:¹⁴

It is a principle of constitutional importance, and has been described as “an almost priceless inheritance”. The principle’s underlying rationale is that transparency of court proceedings maintains public confidence in the administration of justice by guarding against arbitrariness or partiality, and suspicion of arbitrariness or partiality, on the part of courts. Open justice imposes a certain self-discipline on all who are engaged in the adjudicatory process – parties, witnesses, counsel, Court officers and Judges. The principle means not only that judicial proceedings should be held in open court, accessible by the public, but also that media representatives should be free to provide fair and accurate reports of what occurs in court. The principle is one that generally works to create a presumption of disclosure. However the presumption is not insuperable.

• [15] Third, there are the privacy interests of those who provided statements to the Police, reflected in r 12(d).¹⁵ The witness’ evidence has not been given in open court and will not be given as the proceedings are now stayed. It follows that the statements have not been given in evidence on oath or tested by cross-examination. Those who observe criminal trials will know that seldom does the evidence of a witness perfectly reflect their pre-trial written statements; details are often added, some may be substantially qualified, while others may be changed or abandoned. Some may be found lacking in accuracy or veracity. The difference between a witness’ written statement taken before a trial and the evidence given at trial are to some extent reflected in the decisions noted at [7]–[11] above. Further, given no trial will ever take place, r 13(a) and (c) indicates that interests such as confidentiality, privacy and the orderly and fair administration of justice will tend to have greater weight than open justice (except where a document has been relied on in a determination).

• [16] Fourth, there are the interests of a defendant charged with serious offences who has not had an opportunity to present their defence and are presumed innocent until the contrary is proven beyond reasonable doubt. In the present case, because I found Mr Corkran cannot receive a fair trial due to the effects of undue delay on his ability

¹⁴ Erceg v Erceg [2016] NZSC 135, [2017] 1 NZLR 310 at [2] per Arnold J (footnotes omitted).

15. This includes Mr Corkran, given he was spoken to by Police on a number of occasions as a potential witness.

to present a defence, the charges have been stayed and the allegations on which the Crown case is brought will never be the subject of a criminal trial. His interests are also a significant factor in determining whether access to witness statements for the purpose of reporting the allegations is appropriate.

• [17] Finally, there is the orderly and fair administration of justice, reflected in r 12(a). In the context of a criminal trial, open justice means reporting the evidence at the trial itself, not the pre-trial statements that might have been obtained by the prosecution in anticipation of the trial. This is all the more important in terms of fairness, because in our system of criminal justice a defendant is not required to call evidence, or to disclose the defence case, until the trial itself. These important elements of criminal procedure are a reflection of the presumption of innocence and the burden and standard of proof. It follows that in those rare cases where criminal proceedings are commenced but can never be concluded, the orderly and fair administration of justice may require limiting access to the evidence the Crown hoped to elicit at trial.

• [18] These factors pull in different directions. In particular, the principle of open justice (r 12(e)) and the right to receive information (r 12(f)) must be balanced against privacy interests of the witnesses, including Mr Corkran’s, (r 12(c)), and the orderly and fair administration of justice (r 12(a)).

• [19] As can be observed, the courts have been reluctant to disclose affidavits and witness statements that have not been put before an open court (and which contain allegations untested by cross-examination). The rationale for this is that “the principle of open justice rests on the premise that such documents have entered the public domain”.¹⁶

• [20] Mr Ellingham’s interest in the witness statements is, quite rightly, to ensure accurate reporting of the allegations made by the complainants. But any such report would inevitably lack balance despite his best efforts, because Mr Corkran’s response to those allegations will not be available to him. Moreover, there has already been extensive public reporting of the allegations relating to mistreatment at Lake Alice, including discussion of them at the pre-trial hearing before me and as a consequence

¹⁶ BNZ Investments Ltd v Commissioner of Inland Revenue, above n 9, at [36].

of the Royal Commission of Inquiry into Abuse in State Care. So the weight to be attached to the principle of open justice and the freedom to receive information must be considered in light of the extensive information already available to the public.

• [21] Mr Corkran’s previous statements to Police occupy a slightly different space. The statements were an aspect of the procedural background that led me to permanently stay the proceeding.¹⁷ There is a public interest in the media being able to access those statements in order to interrogate counsel’s submissions and my reasons.

• [22] A further factor pointing away from disclosure is Mr Corkran’s declining health. As noted in my judgment staying the proceedings, Mr Corkran is dying.¹⁸ Mr Lithgow KC has submitted that Mr Corkran’s mental health has been adversely affected by the prosecution and his family are concerned about the impact of further reporting on his health. Mr Corkran is not in any position to respond to allegations publicly, or otherwise defend himself in the court of public opinion.

• [23] When considering these factors in the round, the balance tips against the disclosure of the requested Crown witness statements. Mr Ellingham’s application to access these documents is therefore dismissed. However, in order to ensure proper significance is given to the principle of open justice, I consider it is appropriate to provide Mr Ellingham with access to:¹⁹

(a) the Crown charge notices; and

(b) any Crown legal advice held on the Court file.

Isac J

¹⁷ R v Corkran, above n 1, at [13].

¹⁸ At [29].

¹⁹ I have also considered providing the Crown’s summary of facts (subject to appropriate redactions in relation to the names and identifying particulars of the complainants) in the same way that the redacted pleadings were released in Berry (discussed above at [7]). Ultimately, however, I decided that this was inappropriate for the same reasons that I have declined to grant access to the Crown witness statements. Here, there is no statement of defence, and no counterpoint to ensure fair and balanced reporting apart from Mr Corkran’s denial of the charges and the presumption of innocence.