[1] This is an appeal from a decision of Nicholson J (R v Jackson HC WHA TO3-1921 4 June 2004). In that decision, Nicholson J determined that the first respondent (TV3) would be permitted to copy a videotape of a police interview with the appellant (Mr Jackson) and include parts of it in a television documentary which TV3 proposed to broadcast nationally.
[2] It was intended that the television documentary would be broadcast on Monday 7 June 2004, but on Sunday 6 June 2004 Nicholson J granted a stay of the order made on Friday 4 June 2004 until the conclusion of an intended appeal by Mr Jackson against the 4 June 2004 order.
[3] That appeal was filed on 9 June 2004 and was heard by this Court on 21 April 2005. The second respondent, the Crown supported the appeal. The Crown had taken a neutral stance in the High Court.

Background

[4] Nicholson J had presided over Mr Jackson’s trial. On 26 May 2004, just before the commencement of the trial, he had granted permission to TV3 to film the trial in accordance with the In-Court Media Coverage Guidelines 2003 (the Guidelines). In the judgment under appeal, Nicholson J summarised the background as follows:

[2] Mr Jackson was charged with the murder of his partner. There was no dispute that Mr Jackson killed the victim by shooting her with four shots from a shotgun. After the homicide there was a lengthy video interview in which Mr Jackson explained that he was obliged to kill the victim because she was the devil who was appearing in the form of his previous partner. There was going to be no dispute about the basic facts of the homicide. The defence were seeking a verdict of not guilty on account of insanity. Mr Smith [the prosecutor] intended to call formal police evidence about the homicide and the video interview. Mr Gotlieb intended to call a psychiatrist. For the reasons which I gave in my judgment of 26 May 2004, I granted the application.

[3] At the hearing on 26 May 2004, Mr Gotlieb raised the issue of a request by TV3 to be able to copy direct form the exhibit of Mr Jackson’s police video interview and to broadcast parts of that video. He said that that was opposed. Mr Allan was not aware of that request and asked that consideration of it be adjourned until after the video had been played at the trial. I considered that it was appropriate to defer decision on that application until after I had seen the video during the trial. I said that I would at the conclusion of the trial hear such an application and decide it, giving the opportunity for submissions to be made.

[4] At the trial on 28 May 2004, the prosecution called Detective Sergeant Robertson who gave uncontested evidence about the circumstances leading up to the homicide and the homicide itself. The second and final prosecution witness was Detective Sabin who spoke of his interview with Mr Jackson some hours after the homicide. He produced the video recording of the approximately one hour long video interview with the accused.

[5] The defence called Dr Alexander Simpson, consulting psychiatrist, who gave evidence based upon the information which he had received which included viewing the police video interview and from speaking with Mr Jackson himself, that Mr Jackson suffered from the serious mental illness of schizophrenia and at the time of the homicide was labouring under disease of the mind to such an extent as to render him incapable of knowing that his act of shooting his partner was morally wrong. Dr Simpson’s evidence was not challenged by the Crown in cross-examination or by the calling of other medical evidence.

[6] After an adjournment of approximately an hour and a half the jury returned a verdict of not guilty of murder on account of insanity. I then ordered pursuant to s 115(1)(b) of the Criminal Justice Act 1985, that Mr Jackson be detained in a hospital as a special patient under the Mental Health (Compulsory Assessment & Treatment) Act 1991.

High Court judgment

[5] The High Court hearing was conducted at short notice to accommodate TV3’s wish to broadcast the documentary a few days after the hearing. All three counsel participated by telephone link. Counsel for the Crown said that the Crown abided the decision of the Court. The application was opposed by counsel for Mr Jackson.
[6] Nicholson J referred to the decision of this Court in R v Mahanga [2001] 1 NZLR 641, in which a similar request by Television New Zealand Limited had been declined in the High Court, and that decision was upheld in this Court. Nicholson J noted that this Court had said in the Mahanga case that decisions of this kind come down to the exercise of judicial discretion and require a balancing process in considering conflicting interests. Nicholson J said that the matters to which he had particular regard were those stated in Guideline 2(2) of the Guidelines, namely:

(a) The need for a fair trial;

(b) The desirability of open justice;

(c) The principle that the media have an important role in the reporting of trials as the eyes and ears of the public;

(d) The importance of fair and balanced reporting of trials;

(e) Court obligations to the victims of offences;

(f) The interests and reasonable concerns and perceptions of victims and witnesses.

[7] The Judge said that he took into account the privacy aspects that had been put forward by counsel for Mr Jackson, Mr Gotlieb, though he did not say what these matters were. However it is apparent from the arguments addressed to us that they related to the fact that Mr Jackson had been remanded to the Mason Clinic after his trial and was mentally ill (he had been diagnosed with paranoid schizophrenia), he had not been in a position to give an informed consent to the use of a video by TV3, his conduct during the videotape interview illustrated the extent of his mental illness and the screening of the video would have a negative impact on his rehabilitation and recovery.
[8] The Judge said that the conduct of Mr Jackson during the interview gave insight into, and understanding of Mr Jackson’s state of mind at the relevant time and the basis on which the jury found him not guilty on the grounds of insanity. He said the impression he got when watching the video was one of understanding and concern for Mr Jackson’s turmoil, and added:

To view the video is not to be a morbid voyeur at Bedlam, but to witness a fellow human being struggling with the affliction of mental disturbance.

[9] The Judge said that if Mr Jackson had given evidence then he probably would have ordered that Mr Jackson not be filmed in accordance with Guideline 11 of the Guidelines. But he said it would rob the parts of the video interview which were to be broadcast of cogency if it was a requirement that Mr Jackson’s face be disguised during the broadcast. Accordingly he did not make such an order.
[10] The Judge concluded that the balance favoured granted TV3’s application, and he did so. He noted that any broadcast by TV3 must be in the context of fair and balanced reporting of the trial.

New evidence

[11] Mr Gotlieb sought to adduce evidence in support of the appeal from Dr Simpson, the clinical director of the Mason Clinic who had testified for the defence at Mr Jackson’s trial. Dr Simpson deposes that Mr Jackson is still undergoing treatment for his paranoid schizophrenia. He says that the video shows that Mr Jackson was acutely psychotic and very disturbed behaviourally, emotionally and cognitively at the time of the interview. He expresses the view that Mr Jackson would not have been competent to fully appreciate the Bill of Rights warning given to him by the officer conducting the interview. Dr Simpson says that he has considerable experience through his role at the Mason Clinic in seeing the effects of publicity on the rehabilitation of those with serious mental illnesses who have committed homicide. He says repeated media publicity is a major extra burden on the person concerned and that it acts as an impediment to rehabilitation.
[12] Mr Gotlieb said that, as the matter had been brought on for hearing at very short notice in the High Court, he had not had the chance to give the High Court Judge the benefit of Dr Simpson’s views.
[13] On behalf of TV3, Mr Allan opposed the grant of leave to adduce the affidavit from Dr Simpson. He said that if that affidavit were to be adduced then he sought leave to adduce an affidavit from the father of the victim of the shooting by Mr Jackson, in which the father says that the victim’s family had willingly participated in the preparation of the TV3 documentary and knew that TV3 wished to use part of the videotaped interview with Mr Jackson in that documentary. He says that the victim’s family want the documentary to be broadcast.
[14] We have decided that it is appropriate to grant leave to the admission of both affidavits in this case. We think that the views of Dr Simpson are informative and relevant to the weight to be given to the interests of the privacy of the subject of the videotaped interview when the balancing exercise required to be undertaken in terms of this Court’s decision in Mahanga is undertaken. It is similarly relevant to the question of the impact of the screening on Mr Jackson’s rehabilitation.
[15] Mr Allan argued that Mr Gotlieb could have sought an adjournment in the High Court if that he been required. While we acknowledge that is the case, we think it is clear from the way the High Court proceeding was conducted that both the Judge and all counsel, including Mr Gotlieb, went to some lengths to accommodate the urgency of the application in view of the desire of TV3 to broadcast its documentary a matter of days after the High Court hearing. In those circumstances we do not thing it is fair to give too much weight to the fact that evidence from Dr Simpson could have been adduced in the High Court. In view of its obvious relevance we think it is appropriate that it be admitted in this Court so that it can be considered now.
[16] Having granted leave in relation to Dr Simpson’s affidavit, we also do so in relation to the affidavit from the father of the victim, as we accept that, if Dr Simpson’s affidavit had been adduced in the High Court it is probable that an affidavit from the victim’s family would also have been adduced there.

Basis of High Court order

[17] There was some debate in this Court as to the source of the power exercised by the High Court Judge in granting permission to TV3 to screen parts of the video interview. This arose partly because Nicholson J referred to the matters which he took into account as being those in Guideline 2(2) of the Guidelines, which could be construed as indicating that the Judge was dealing with the matter under the Guidelines.
[18] However, there is nothing in the Guidelines dealing with post-trial applications for permission to obtain a copy of and/or use an exhibit from a criminal trial. As this Court made clear in Mahanga at [12], such applications are made under the Criminal Proceedings (Search of Court Records) Rules 1974 (SR1974/58) (the Search Rules).
[19] We are satisfied that the decision of Nicholson J was an exercise of the power provided in r 2(5) of the Search Rules which requires that the leave of a Judge be obtained before any file, part of a file or document relating to criminal proceedings be searched, inspected or copied. The term “document” is defined to include all exhibits produced in evidence, and it is clear that the videotape of the police interview with Mr Jackson was an exhibit in the present case.

Submissions for Mr Jackson

[20] On behalf of Mr Jackson, Mr Gotlieb argued that Nicholson J had given inadequate weight to the privacy interests of Mr Jackson, and to the possible adverse effect on his rehabilitation. In oral submissions he modified that submission to say that the Judge had not taken these aspects into account at all (recognising that this was an appeal from the exercise of a discretion, and that it could not succeed on the basis that this Court took a different view of the weighting given to a particular factor).
[21] Mr Gotlieb said the Judge had erred in that he applied the criteria for the evaluation of applications under the Guidelines, rather than those applying to decisions under the Search Rules.
[22] Mr Gotlieb noted that the Judge had dealt with the privacy concerns in a single line in his judgment, and had not set out exactly what those concerns were. Mr Gotlieb also emphasised to us Dr Simpson’s views as to the adverse effect on Mr Jackson’s rehabilitation.
[23] Mr Gotlieb also said that there were grounds for concern about the way in which the material would be used in the TV3 documentary. He said that the Judge evaluated the video as a whole, but only selected parts of it would be shown in the documentary. He also referred to a trailer for the documentary which included a comment, “Is he mad? Or is he bad?”. He said this indicated that the documentary may portray a “distorted picture”: R v Pora (1996) 13 CRNZ 643 at 646.
[24] Mr Gotlieb acknowledged the need for open justice and the obvious public interest in an event such as a homicide. But he said that the interest of open justice had been met by the trial being televised, and there was no need for excerpts from the video interview to be included in a documentary to ensure open justice.
[25] Mr Gotlieb also argued that there would be concerns about the administration of justice if police video interviews were to be later screened on national television. In that regard he relied on the comment made in R v Pora at 646 that any move which deterred suspects from consenting to videotaped interviews with police would be against the public interest.

Submissions for TV3

[26] On behalf of TV3 Mr Allan emphasised the discretionary nature of the decision, and the need for appellate restraint. He submitted (correctly) that a discretionary decision should not be overturned on appeal unless the Judge acted on a wrong principle, failed to take into account a relevant matter, took account of an irrelevant matter or was plainly wrong. He said that many of the arguments raised on behalf of Mr Jackson went to the weight given to particular factors which would not justify the overturning of a decision on appeal.
[27] Mr Allan said that the Judge had taken into account Mr Jackson’s privacy interests. He said that these had been raised in the High Court and the Judge specifically said in his decision that he had taken them into account. But the Judge had ultimately determined that the points in favour of granting permission to use the videotape outweighed these privacy interests, and that was a view he was entitled to come to.
[28] In relation to rehabilitation, Mr Allan said that the Judge did not have Dr Simpson’s affidavit, and there was no indication that such an affidavit would have been forthcoming if more time were available. However, he said that the Judge was clearly concerned about the impact of the videotape, but determined that the videotape would promote understanding and concern rather than amusement and derision. Mr Allan also noted that Dr Simpson’s affidavit referred to effects on patients generally, rather than particularising it to Mr Jackson.
[29] Mr Allan said that TV3 had not told Justice Nicholson what the content of the proposed documentary was, and that it was not appropriate to do so now. He said it was for TV3, and TV3 alone, to determine how the documentary would be presented. However, it was subject to the constraints faced by all broadcasters, namely the law of defamation and the requirements of the Broadcasting Act 1989 in relation to standards.
[30] Mr Allan said there was no basis for concern about the administration of justice. He said there is no evidence of any adverse effect on the administration of justice either in this Court or in the High Court.

Submissions for the Crown

[31] On behalf of the Crown, Ms Crutchley supported the position taken by Mr Jackson. She accepted that this was a discretionary matter and that it would not be sufficient simply to question the weight given by the Judge to particular factors. However she said that the Judge had not taken into account some relevant matters. These were:

(a) The principle of open justice had already been served by allowing TV3 to film the trial;

(b) The purpose of the police video interview was for the use of it as evidence, not for public consumption;

(c) The special interests of this appellant, given his mental illness, needed to be assessed: Ms Crutchley argued that he needed protection in a way which would not apply to any other accused person giving evidence at trial.

Discussion

[32] We accept that the Judge said the factors which he took into account in exercising his discretion were those stated in the Guidelines, rather than the factors which this Court identified in Mahanga as being relevant to the exercise of a discretion under the Search Rules.
[33] The issues which arise under the Guidelines are not necessarily the same as those which arise under the Search Rules. The Guidelines are concerned with the reporting of a trial, where the principle of open justice is paramount: Re Victim X at 38. As Ms Crutchley pointed out, a decision under the Search Rules after the completion of a trial which has been open to the public and the media (and televised in full, in this case) is made after the principle of open justice has been observed.
[34] Decisions on applications under the Search Rules require the Court to weigh and balance the competing interests presented by the application: Mahanga at [32] and [36]. The Court identified the competing interests as follows at [32]-[33]:

[32]...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...

[33] It will also often be necessary, in the exercise of the discretion, to have regard to the principle of freedom of information...

[35] Later, at [36] the Court said that there was no paramount interest: on each application, the Court had to determine which of the competing interests should prevail.
[36] However, it is apparent that, although the Judge referred to the Guidelines, he actually undertook the type of balancing exercise mandated by Mahanga. Indeed, he quoted the analysis at [36] in Mahanga in his judgment at [11]. It is clear that he did not treat open justice as a paramount consideration. Rather, he weighed that interest against Mr Jackson’s privacy interest. We are satisfied that the approach he took was in line with the approach required by Mahanga.
[37] We have carefully considered the evidence of Dr Simpson, which was not available to the High Court Judge, but we do not believe that it materially affects the outcome. Dr Simpson’s concern relates to the potential impact of any publicity about a particular crime, not just the screening of parts of a video interview. In any event, it is clear that the Judge was aware of the serious mental illness which afflicts Mr Jackson, and concerned about the possible effect of the screening of parts of the video interview on Mr Jackson’s interests. In the end the Judge made an assessment that viewing parts of the video would allow insight and understanding of his state of mind at the relevant time, and that the Court needed to be mindful of his privacy interest. We do not believe that the evidence of Dr Simpson would have led the Judge to a different assessment of the weight to be given to the privacy factors in the balancing exercise.
[38] We do not think that the Court should be influenced by the concerns expressed by Mr Gotlieb as to the possible content of the TV3 documentary, based on the publicity material which was circulated before the intended screening of the documentary last year. Ultimately, the issue for the Court is whether TV3 should be permitted to copy and use the videotape which was an exhibit at the trial. Once it is decided that TV3’s application should be permitted, it is not for the Court to determine how the material is used in the documentary: that is a matter for the broadcaster concerned, having regard to the legal constraints on it to which Mr Allan referred.
[39] We are satisfied that the Judge applied the correct test, did not omit to consider any relevant matter and did not take into account any irrelevant matter. There is clearly no basis for an assertion that his decision is clearly wrong. We conclude therefore that there is no basis for this Court to interfere with the exercise of jurisdiction by Nicholson J in this case.

Another copy of the videotape

[40] Counsel informed us that TV3 has in its possession a copy of the videotape of the interview which was provided to it by a Police officer. Notwithstanding this, it sought permission from Nicholson J for the use of the videotape which was an exhibit at the trial because that was a matter which had been raised in the context of its application to film the trial under the Guidelines. Mr Allan said this was done as a matter of courtesy because TV3 had effectively submitted to the Court’s powers under the Guidelines. Nicholson J dealt with the matter on the basis that what TV3 sought was permission to copy the Court exhibit and use it for its documentary. We have dealt with the matter on the same basis. Nicholson J was not asked to consider whether TV3 could have screened parts of the video interview using the copy of the videotape it received from the Police officer, and neither were we. We express no view on the issue.

Jurisdiction

[41] Mr Allan argued that this Court had no jurisdiction to hear an appeal from a decision of a Judge under the Search Rules. Mr Gotlieb argued that there was jurisdiction under s 66 of the Judicature Act 1908, and that stance was supported by Ms Crutchley on behalf of the Crown.
[42] In Mahanga, the Court did not find it necessary to consider a submission made on behalf of the Crown in that case that there was no jurisdiction in relation to the appeal. Since the decision in Mahanga, this Court has reiterated the “strictness of the long-established civil/criminal divide” in relation to s 66: Re Victim X [2003] 3 NZLR 220 at [29]. In that case the Court found that it did not have jurisdiction under s 66 to hear an appeal by the intended victim of an attempted kidnapping against an order made by the High Court Judge presiding over the trial of the kidnapper lifting an order suppressing the name of the victim.
[43] As we have determined that there is no basis to allow this appeal on the merits, we propose to follow the same course as that followed by the Court in Mahanga, and express no view on the jurisdiction issue. However, we should not be taken as indicating a belief that there is jurisdiction to entertain appeals of this kind: rather, we leave the matter for full argument in a case in which the decision on jurisdiction will affect the actual outcome of the appeal.

Result

[44] We dismiss the appeal.

Costs

[45] We make no order for costs.

Solicitors:
Bergseng & Co, Auckland for Appellant
Grove, Darlow & Partners, Auckland for First Respondent
Crown Law Office, Wellington for Second Respondent

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