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Court of Appeal of New Zealand |
Last Updated: 7 December 2011
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IN THE COURT OF APPEAL OF NEW ZEALAND
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CA213/00
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BETWEEN
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TELEVISION NEW ZEALAND LTD
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Appellant
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AND
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THE QUEEN
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First Respondent
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AND
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GENESIS JAMES MAHANGA
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Second Respondent
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Hearing:
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11 October 2000
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Coram:
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Keith J
Tipping J McGrath J |
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Appearances:
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W Akel and C E Sheehy for the Appellant
D J Boldt for the Crown M Dyhrberg and N S Leader for the Second Respondent |
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Judgment:
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28 November 2000
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JUDGMENT OF THE COURT DELIVERED BY McGRATH
J
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Table of Contents |
Paragraph No
Introduction and Summary [1]
Background [3]
The Television Guidelines [7]
The Criminal Records Search Rules [12]
Submissions of Counsel [14]
Open Justice and Freedom of Expression [17]
Open justice following trial and sentencing [23]
The framework for considering applications [30]
The balance in this case:
i) Open justice and freedom of expression [38]
ii) Privacy [41]
iii) Administration of Justice [44]
Conclusion [45]
Introduction and Summary
[1] In this appeal, on the one side, are the principles of open justice and freedom of expression and, on the other, the power and responsibility of Judges to regulate their courts. The principles of open justice and freedom of expression entitle the press to carry out their critical, indeed constitutional, role of reporting fully the proceedings of the courts, subject of course to the rules for the exclusion of the public or the suppression of publication, in both cases for specified reasons. Do the principles also entitle the press, either generally or in the particular circumstances of this case, to reproduce as fully as technology allows the evidence adduced and, in particular, does a television broadcaster have the right to replay the videotape of a police interview with a suspect, the tape having been played in open court as part of the evidence?
[2] We conclude that the principles of open justice and freedom of expression do not directly govern the exercise by Judges of their powers to regulate the proceedings of their courts in circumstances such as these. Those principles are essentially fulfilled by the Court being open to the public and by the media being able to report the proceedings in established ways without restriction. But the values reflected in the principles are relevant to the exercise by Judges of their supervisory powers when requests are made for access to court records, including evidence. In the circumstances of this case we regard the orders made in the High Court, refusing to release or to allow the copying and playing of the videotape, as within the scope of judicial discretion. The appeal is accordingly dismissed.
Background
[3] The trial took place at Auckland during August 2000 of Genesis Mahanga on a charge of the murder of his stepson. Mr Mahanga was tried in conjunction with his partner who faced a charge of the manslaughter of her son. The child had died from blood loss through severe bruising caused by beatings he had received from Mr Mahanga. Mr Mahanga was convicted by the jury of murder, and his partner of manslaughter.
[4] During the trial the Crown played a videotape of an interview with Mr Mahanga by the Police in the course of their inquiries into the death of the child. No such interview of his partner was shown to the jury. The appellant, Television New Zealand Ltd, had been given permission by the trial Judge to televise the trial. The partner gave evidence which was filmed by the appellant as part of its Court coverage. Mr Mahanga did not give evidence in person. The appellant did however film the television monitor while it was showing Mr Mahanga’s taped interview.
[5] The appellant produced a documentary programme on child abuse and associated deaths of children at the hands of care-givers. In addition to its news coverage of the trial it wished to use excerpts from the videotaped interview of Mr Mahanga in this documentary. Although it had filmed the videotaped interview, when it was shown at the trial, its cameras at the time had no direct audio link-up with the Court’s video playing equipment. The result was distortion of the recorded sound. The appellant accordingly sought access to the Court’s videotape, in order to dub the television videotape or make its own copy of the Court’s videotape, for the purposes of its documentary.
[6] Initially one of the appellant’s producers applied during the course of the trial to Rodney Hansen J, the trial Judge, to have access to the original videotape which was in the custody of the Court as one of the trial exhibits. The trial Judge refused permission to copy the original videotape. He also ordered the appellant not to broadcast any part of the videotaped interview which had been televised when shown in Court. A further formal application to copy the videotape of the interview was made on behalf of the appellant by its solicitors after conclusion of the trial. It was heard by Anderson J who, in a reserved decision delivered on 29 September 2000, dismissed the application. The appeal is against this decision.
The Television Guidelines
[7] In New Zealand there is no statutory regime which, as such, governs television coverage of trials and other court proceedings. There are, however, advisory guidelines for in-Court expanded media coverage, developed following a three year pilot project, in terms of which, and, subject always to the discretion of the presiding Judge, permission may be granted to televise court proceedings. The current guidelines, which were approved by the judiciary, are accordingly intended to provide a consistent framework for allowing in-court media coverage, without impinging on an individual Judge’s charge of and responsibility for the conduct of particular proceedings in Court. The guidelines are supported by a Voluntary Code of Conduct for the Media drawn up with the agreement of media representatives.
[8] The present (May 2000) guidelines for coverage by television media, so far as relevant to this appeal, provide that:
6. Witnesses and Parties
(ii) An accused will not have an absolute right to object to being photographed while in the dock or when permitted to be seated outside the dock (as distinct from giving evidence).
An accused who objects to being photographed when in the dock may have the objection determined by the Judge on discretionary grounds.
In determining such an objection there is to be a presumption (subject however to the Judge’s discretion) that an accused who objects to being photographed in the dock may nevertheless be photographed at any time during the first 15 minutes of any hearing day, but not during the taking of the verdict, when giving evidence or during the passing of sentence, if objecting to being photographed at those times.
In a situation where an accused is not to be photographed in court, the use of any out-of-court film or photography of any person who is subject to pictorial protection is not permitted but the use of historical footage will be allowed if it predates the date of arrest, subject to contempt issues.
B. 7. Any witness or party who objects to having their testimony directly reported by television coverage shall have the matter determined by the Judge.
B. 10. Any television coverage shall fully respect and shall not infringe the confidentiality of Counsel’s papers and of their discussions with each other and with parties and witnesses, and shall not include any pictures of trial exhibits unless express permission of the Judge is first obtained. (Emphasis added)
[9] The protection of an accused while giving evidence is expressed in equivocal terms. Guideline B.6(i) provides that any objecting witness, including an accused, shall have pictorial or voice protection of their identity while giving evidence, implying that is the limit of the protection available. Guideline B.6(ii) provides that an accused does not have an absolute right to object to being photographed while in the dock, “as distinct from giving evidence.” The final words here rather suggest an accused does have a right to object to being filmed while giving evidence. The apparent disharmony between B.6(i) and B.6(ii) may be resolved in practice by trial judges not allowing, at all, the filming of accused persons who object, while they are giving evidence. A Judge's power to do so is of course part of the inherent power to regulate the proceedings of the Court and is over-riding. There is of course a presumption in guideline B.6 that the accused may be photographed while in the dock during the first 15 minutes of any day: “but not...when giving evidence”.
[10] The relevance of guideline 10 lies in its latter part. The status of the videotape of the interview played at Mr Mahanga’s trial is that it is an exhibit in the trial. Accordingly, in terms of that guideline, the permission given to the appellant to televise the trial of Mr Mahanga and his partner did not extend to filming the playing of the videotape in court, although, as indicated above, that was done, presumably inadvertently, by the appellant. It was no doubt with the requirements of guideline B.10 in mind that the trial Judge later ordered that this part of the material televised in the courtroom not be broadcast by the appellant.
[11] Whether and how to implement the guidelines in any trial is a matter for the trial judge to decide. It is certainly the case, however, that the guidelines recognise the sensitivity of filming an accused while giving evidence. In passing we observe that the sensitivity is not necessarily removed by subsequent pixilation of the image or voice distortion both of which, in the case of an accused, can leave viewers with an unfair impression
The Criminal Records Search Rules
[12] Access by the public to files of the Court in proceedings under the Crimes Act 1961 is controlled by the Criminal Proceedings (Search of Records) Rules 1974 which are made under s409 of the Crimes Act 1961 and the Judicature Act 1908. Rule 2 is headed: “Search of Court Records” and stipulates in R2(1), 2(2) and 2(3) that the public, individual and joint defendants respectively in a criminal proceeding may as of right search, inspect, or copy certain specified records or material on the file. None of these provisions however is of assistance to the appellant.
[13] Rule 2(5), so far as relevant, provides:
Except as expressly provided in subclauses (1) to (3) of this rule no person may search, inspect or copy, or be issued with a copy of, -
...
(b) Any file, or part of a file, or document relating to a criminal proceeding without the leave of a judge and subject to such conditions as the judge may impose.
For the purposes of the rule “document” includes all exhibits produced in evidence: (R2(9)(b)). The videotape is accordingly an exhibit and is probably also part of the criminal file in terms of R2(5)(b). It follows that R2 confers on a judge a discretionary power to permit copying of the videotape of the police interview with Mr Mahanga that is in the custody of the Court and prohibits copying without such permission. Application for leave to copy may be made on an informal basis: R2(6).
Submissions of Counsel
[14] Mr Akel for the appellant submitted that in exercising the discretion under R2(5) the Judge’s starting point should be the importance of freedom of speech and open judicial proceedings. Together these gave the public a right to see and hear what the jury and members of the public present saw and heard in open court. He relied also on s138(1) of the Criminal Justice Act 1985 which stipulates that every court sitting which is dealing with any criminal proceedings shall, subject only to contrary statutory provision, be open to the public. He argued that refusal of the application would amount to suppression of evidence which in the context was permissible only if the interests of justice required under s138(2)(a). Mr Akel also emphasised that the right of freedom of expression under s14 of the New Zealand Bill of Rights Act 1990 includes “the freedom to seek, receive, and impart information” which, he said, should guide the decision of the judge in a case such as the present. He also argued that recognition of the principle of open justice, under s25(a) of the Bill of Rights, should, in the electronic age, enable the television medium to record and report the reality of what had taken place in court.
[15] Limitations on such rights, counsel argued, had to be such as were justifiable in a democratic society under s5 of the Bill of Rights. The privacy interests of Mr Mahanga, as a convicted person, did not meet that test, he having been warned at the time of submitting to the interview that it might be used against him and, in any event, its private character was lost once it was played in court. He pointed out there had been no police opposition in the High Court to the application by the appellant and the police had facilitated television access to such videos in other cases.
[16] The Crown argument focussed on the question of the jurisdiction of this Court to hear the appeal. Concern was however also expressed by Mr Boldt that the public interest in bringing criminal offenders to justice might be harmed if potential defendants became unwilling to assist police with inquiries into suspected offending by submitting to videotaped interviews. Such reluctance might develop because of a concern that what was said in a recorded interview might be later be shown not only in court but to a television audience. No evidence was presented to substantiate the Crown’s concern but it was supported by Ms Dyhrberg, counsel for the second respondent Mr Mahanga. She suggested that under the current television guidelines an accused (along with all other witnesses) had absolute protection, if desired, from being filmed while giving evidence, a point which we have already addressed. She argued that the same policy had been applied by the High Court in this case arguing that the constraint and discomfort of the prospect of the police interview being played to a public television audience was just as much a reality as that of being televised giving evidence at trial. She suggested the consent an accused gave to the police interview was confined to its subsequent use in Court proceedings. Any subsequent showing on national television would go well beyond that.
Open Justice and Freedom of Expression
[17] The proposition that open justice and freedom of expression were denied by the refusal of the appellant’s applications by both the trial Judge and later Anderson J underpins the appellant’s argument in this appeal. The principle of open justice in the context of criminal proceedings is declared by s25 of the Bill of Rights Act to be:
25 Minimum standards of criminal procedure - Everyone who is charged with an offence has in relation to the determination of the charge the following minimum rights:
(a) The right to a fair and public hearing by an independent and impartial court.
[18] Openness in the operation of the criminal justice process provides critical safeguards against injustice. It provides a form of judicial accountability to informed public opinion and an incentive to the sound and principled exercise of judicial power. Open justice is also widely regarded as improving the quality of Court testimony, disinclining witnesses to tell other than the truth: Edmonton Journal v Attorney-General of Alberta (1989) 64 DLR (4th) 577, 535-538 per Wilson J. The value of open justice is of particular importance in the context of a criminal trial where the liberty of the subject is affected. Protection of the individual is a major purpose of open justice in all trial contexts. A further purpose is the maintenance of public confidence in the judicial system which flows from making it more transparent and comprehensible to the public. This is important in reassuring those associated with both accused and victims that a trial has been conducted fairly and the accused treated justly. The principles and attributes of open justice have been recognised and applied by this Court in such decisions as Broadcasting Corporation of New Zealand v Attorney-General [1982] 1 NZLR 120, 122-123, 127-128 and 132, and Television New Zealand Ltd v R [1996] 3 NZLR 393, 396-397. In the latter case the important support given the principle of open justice by the right to freedom of expression as declared by s14 of the Bill of Rights Act was also acknowledged (at p398).
[19] The principle is given more particular legislative effect by s138 Criminal Justice Act which stipulates that, except as is otherwise provided in the section or other enactments:
....every sitting of any court dealing with any proceedings in respect of an offence shall be open to the public.
[20] The concern for open or public justice is not diminished by the exceptions provided for by s138 and s140 which enable a court to forbid publication of reports of evidence, submissions and the name and identifying particulars of offenders, witnesses and others connected with criminal proceedings. This Court has emphasised that in exercising the discretionary power of suppression of names of offenders under s140 the starting point is the importance of freedom of expression and open judicial proceedings: R v Liddell [1995] 1 NZLR 538, 546-57. In relation to suppression the prima facie presumption is always in favour of openness: Lewis v Wilson and Horton [2000] NZCA 175; [2000] 3 NZLR 546, para 41; Television New Zealand Ltd v R [1996] 3 NZLR 393, 395.
[21] In Attorney-General v Leveller Magazine Ltd [1979] AC 440 Lord Diplock said of the content of open justice:
The application of this principle of open justice has two aspects: as respects proceedings in the court itself it requires that they should be held in open court to which press and public are admitted and that, in criminal cases at any rate, all evidence communicated to the court is communicated publicly. As respects the publication to a wider public of fair and accurate reports of proceedings that have taken place in court the principle requires that nothing should be done to discourage this. (at p450; cited by Cooke J in the Broadcasting Corporation of New Zealand case at pp127-128).
[22] There is accordingly no doubt that privacy interests of accused persons are generally displaced by the need for a public judicial process while that process runs its course. As it was put by the Supreme Court of Canada:
“Public access to and reporting of those proceedings is a price that he and any other accused must pay in the interests of ensuring the accountability of those engaged in the administration of justice.”
Vickery v Nova Scotia Supreme Court (1991) 64 CCC (3rd) 65, 94 per Stevenson J. In the present case however the criminal trial of Mr Mahanga has concluded. What must be considered is the relevance of and weight to be given the principle when information is sought for use following the conclusion of judicial process.
Open justice following trial and sentencing
[23] The issue in this appeal is whether, on an application made following the trial and sentencing of Mr Mahanga, the judicial discretion should have been exercised in favour of the appellant permitting it access to and to take a copy of a videotaped police interview produced as an exhibit and thus forming part of the Court file. The purpose for which access is sought is broadcast of excerpts as part of a television documentary on child abuse. The argument advanced by the appellant requires us to address the application of freedom of expression and open justice in that context.
[24] The first point, which concerns both rights, is that the trial and sentencing of Mr Mahanga was for its entire course open to the public in all respects. No information was suppressed because all that transpired in the course of the judicial process could be observed by the news media and reported to their audience. This immediately distinguishes the present case from R v Liddell and Lewis v Wilson & Horton, where, at the time of sentencing, information, in particular the names of the offenders, had been suppressed from publication by order of the Court. Likewise in the second 1996 Television New Zealand Ltd case the trial judge had suppressed the name of a proposed witness and the substance of the intended evidence. It was in that different context that this Court, in each of these decisions, emphasised that the starting point was the importance of freedom of speech and open judicial proceedings (Liddell p546, Lewis para 41, Television New Zealand Ltd p395).
[25] Where however nothing has been suppressed, and the judicial process has concluded, the issue arises whether the values of open justice and freedom of speech in relation to a trial have been satisfied. In Nixon v Warner Communications Inc and others [1978] USSC 59; 435 US 589 (1978) the Supreme Court of the United States addressed the scope both of the guarantee of freedom of speech under the first amendment , and of the guarantee of a public trial under the Sixth Amendment to the Constitution of the United States. The Court did so in proceedings brought by broadcasters to obtain access to and play tape recordings of conversations that had taken place in the White House office of the former President of the United States. The tape recordings had been played during the trials of several of the President’s former advisers on charges of conspiracy to obstruct justice in connection with the Watergate investigation. This was in open court in the presence of the juries, and members of the public. Transcripts of these tapes had been circulated to those present and had been widely publicised in the media.
[26] In delivering the judgment of the majority of the Supreme Court, Powell J acknowledged the line of authority affirming the constitutional right of the press to publish information obtained in court proceedings, but emphasised that there was no question of a truncated flow of information to the public concerning the trials of the Watergate defendants. He acknowledged that the press was “the information-gathering agent of the public”, which allowed it to report what it had learned and the public was entitled to know, but importantly added the qualification in relation to freedom of speech: “the First Amendment generally grants the press no right to information about a trial superior to that of the general public”.
[27] In relation to the relevance of the open justice principle, specifically the Sixth Amendment guarantee of a fair trial, Powell J, citing Black J in an earlier case, said:
while the guarantee of a public trial...is a safeguard against any attempt to employ our Courts as instruments of persecution, it confers no special benefit on the press. ...Nor does the Sixth Amendment require that the trial - or any part of it - be broadcast live or on tape to the public. The requirement of a public trial is satisfied by the opportunity of members of the public and the press to attend the trial and to report what they have observed. That opportunity abundantly existed here. (At p610)
[28] In Vickery v Nova Scotia Supreme Court (supra), Stevenson J in delivering the majority judgment of the Supreme Court of Canada was “inclined to agree with Powell J that the requirement of a public trial was satisfied by the opportunity to attend and report on a trial”. The majority of the Court refused to allow release to a journalist of audio tapes containing an alleged confession of a convicted person to the killing of a victim where the conviction had been set aside on appeal and an acquittal entered.
[29] The appellant was, and is, free to inform its television audience exactly what Mr Mahanga said in the course of the police interview, the videotape having been played in open court. We agree with the view expressed in Nixon v Warner Communications Inc that this satisfies the right of freedom of expression. Under s14 of the Bill of Rights, freedom of expression includes “the freedom to seek, receive, and impart information and opinions of any kind in any form”, but that does not confer any right to acquire information, let alone in the form in which a person wishes to use it. Here the videotape was played in open court at a trial to which the public was at all times admitted. That satisfies the right to open justice.
The framework for considering applications
[30] Section 409 of the Crimes Act enables Rules to be made that regulate practice and procedure in proceedings under the Crimes Act. The Criminal Records Search Rules are made under that provision and provide the framework within which applications for leave to search Court records are considered. The scheme of the Rules is that they confer a right to search, inspect, and copy certain specified categories of information on the file. Availability of other information is subject to application and the exercise of judicial discretion, in particular under R2(5). The absence of any statement of principles for exercise of the discretion, in either the Rules or the enabling Act, points to the intention to confer a broad judicial discretion as to whether leave should be granted.
[31] We do not regard the confinement in R2(5) of the earlier unqualified right of access to limited categories of information on the Court file as mandating a restrictive approach to exercise of the discretion. Nor do we accept that the principal purpose of the Rules is to ensure that, following conclusion of the trial process, the privacy of defendants should be protected by the Court in the absence of strong reason for providing access to Court records. Such a purposive element was seen, in particular, by Thorp J in Amery v Mafart [1988] NZHC 2; [1988] 2 NZLR 747,750 and has been referred to in subsequent cases. However in R v Philpott (14 February, T74/90, Wellington) Eichelbaum CJ said the principal motivation for enactment of the Rules was to confirm and enhance the Court’s supervisory powers over the material held on Court files and to rationalise the basis for dealing with requests for access. While, in his view, the applicant had to show some sufficient reason for granting access, the Court’s discretion required a balancing exercise.
[32] We conclude that the broad judicial discretion under R2(5) is intended to be exercised by weighing the competing interests presented by any particular application. Any legitimate privacy concern raised by an accused person is one. The purpose for which access is sought, if known, may be relevant. The principle of open justice will often be important, especially when applications are made for access to Court records by the media. So will be the interests of administration of justice where there is a risk that they will be harmed by disclosure. In some cases fair trial rights may be affected and should be weighed. Apart from the last mentioned, each of these values is relevant to the present case.
[33] It will also often be necessary, in the exercise of the discretion, to have regard to the principle of freedom of information. It is a principle closely linked to freedom of expression. In Amery v Mafart Thorp J rightly rejected a submission that the philosophy of the Official Information Act 1982 was excluded from matters to be taken into account in the exercise of the judicial discretion under the Criminal Search Rules. It is true that s2(6) of the Official Information Act, for the avoidance of doubt, excludes Courts from the classification of Departments and organisations which are subject to the Act. There was however no restrictive purpose behind the exclusion. The question of access to information held by Courts and judicial bodies was outside of the terms of reference of the Committee on Official Information whose reports led to the Official Information Act 1982. In commenting on the clause in its draft bill which became s2(6) of the Official Information Act, the Committee made clear that it had not given any consideration to that question: “Towards Open Government”, Supplementary Report of Committee on Official Information (1981) pp63-64.
[34] The effect of R2(5) is to leave disclosure of records of the Court to the supervision of judges, subject to the terms of any controlling statutes or regulations. But the purposes of the Official Information Act, and the principle that information shall be made available unless there is good reason for withholding it, stated in ss4 and 5 respectively, should, in marginal cases, influence the exercise of judicial discretion. This will be of practical importance when the same information to which access is sought from Court records is concurrently held by Departments or organisations which are subject to the Official Information Act and its supervising regime. Such an approach to access to Court records is in harmony with the social policies underlying the Official Information Act which, as this Court has recognised, reflect the general contemporary movement towards open government in New Zealand: Fletcher Timber v Attorney-General [1984] NZCA 11; [1984] 1 NZLR 290,296,302; Brightwell v ACC [1985] 1 NZLR 132,139,146.
[35] The conferment of a broad judicial discretion plainly excludes the application of arguments based on a common law right of access to judicial records, as Gault J held in Amery v Mafart (No 2) [1988] NZHC 353; [1988] 2 NZLR 754,757. Such a common law right has been the basis of the approach of the North American Courts (in particular in Nixon v Warner Communications Inc and another [1978] USSC 59; 435 US 589 (1978) and Vickery v Nova Scotia Supreme Court (1991) 64 CCC (3rd) 65,94. In Nixon v Warner Communications the United States Supreme Court recognised that the common law of the United States in this area had moved in a different direction from that of other countries. It is clear however that a right of access to judicial records does not form part of the common law of New Zealand.
[36] In the end decisions are to be taken in the exercise of this discretion, where there are conflicting interests, by reference to a balancing process. In some cases in the past it has been suggested a cautious approach is warranted. We would prefer to describe the approach required as one which determines which of the competing interests applicable should prevail. Often the insights and observations of the trial judge will be of particular value even after the trial. The Rules do not stipulate the power must always be exercised by the trial judge. Generally, however, that will be helpful. The passage of time and changes in the circumstances can alter the balance and we see no jurisdictional or policy barrier to consideration of fresh applications for access to Court records when that is the case. Beyond that it is neither practicable nor appropriate for this Court to stipulate principles for the exercise of the discretion.
[37] Against that background we turn to discuss the particular interests which were to be balanced in deciding the present application.
The balance in this case:
i) Open justice and freedom of expression
[38] In the present case, the view of Rodney Hansen J, with which Anderson J agreed, was that:
Television representatives had full opportunity to be present and to witness the videotaped interviews in Court and have not been deprived of the opportunity to observe and record what was said.
[39] The weight given by both Judges to open justice and freedom of expression in the balancing exercise was clearly affected by the view that granting access would not add to the substance of publicly available information. Likewise the role of the media in informing the public, as an important means of securing open justice, was for that reason not accorded significant weight.
[40] We consider this approach to be sound in principle, reflecting the Judges’ view that the interests of open justice and freedom of speech had been fulfilled during the course of the trial. It provides the answer to the principal argument advanced by the appellant that the public were denied open justice or the appellant freedom of expression or indeed freedom of information. No question of justified limitation arises under s5 of the New Zealand Bill of Rights Act as rights were not materially limited by the refusal of the applications.
ii) Privacy
[41] Mr Akel submitted that Anderson J gave undue weight to the absence of informed consent and both the police interviewer’s and Mr Mahanga’s right to privacy. He said that although the videotaped interview may originally have been private, it lost that character once it was played in court. In a sense that is true but in our view it does not follow that the accused’s privacy interests ceased to exist. There is a significant difference in the impact on privacy between playing a videotape of a police interview in open court, where the media can observe and report what was said, and the playing of it, or excerpts, on national television. Furthermore, during the trial process the privacy interests of the accused will generally be outweighed by the greater interests of the public, and indeed all accused persons in open justice. But once a criminal trial has concluded there is more room to recognise individual privacy interests in applications such as the present. At this stage it is open to a Judge to be sensitive to the circumstances in which the videotape was created and played to the court. While we have not accepted that protection of individual privacy is the principal purpose of the Criminal Search Rules it is a legitimate factor to take into account in the balancing process.
[42] This case was one in which extended media coverage, for use both in television news broadcasts and a subsequent television documentary, was approved by the trial Judge. Much of the trial was filmed. As we have pointed out the guidelines recognise the sensitivity of filming an accused at the time he or she gives evidence, and trial judges may allow accused persons who object, not to be filmed at all while giving evidence. In this context both Judges considered it inappropriate if the contemporaneous or later screening of an evidential video were authorised by the Court.
[43] Both Anderson J and earlier Rodney Hansen J were certainly entitled to have regard to these factors and give them the weight they did in refusing the applications.
iii) Administration of Justice
[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 co-operation 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.
Conclusion
[45] The decision the subject of appeal called for the balancing of the interests of the applicant, Mr Mahanga’s privacy interests and interests in administration of justice. The appellant’s interest was in presenting information already in its hands with greater impact. That was an entirely legitimate interest but in the circumstances the applicant was not able to show that interests of open justice or freedom of expression gave it additional weight. On the other hand Anderson J was entitled to regard protection of privacy interests of Mr Mahanga, after the trial, as of importance which he did. We are less sure that the interests of administration of justice warranted the weight given them. Our overall conclusion in the appeal, however, is that Anderson J, like Rodney Hansen J before him, had regard to all the relevant factors and was not plainly wrong. The decision reached was accordingly within his discretion.
[46] In those circumstances it is not necessary for us to consider whether, as Mr Boldt contended, we have no jurisdiction in relation to the appeal.
[47] The appeal is dismissed. There will be no order for costs.
Solicitors
Simpson Grierson, Auckland, for
Appellant
Crown Law Office, Wellington
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