Para No
Introduction [1]
The material which is sought [12]
How the video images came about [15]
The videotapes continue to excite attention [32]
The judgment of Simon France J [38]
Discussion
The standard of review [46] An error of principle? [47]
Privacy [54]
Freedom of information [68]
Balancing the interests [70]
The guidelines [71]
The assurance [79]
Conclusion [84]

Introduction

[1] In 1985, the first Rainbow Warrior was in the Pacific, representing Greenpeace and leading a group of yachts campaigning against French nuclear testing at Muroroa Atoll in the Tuamotu Archipelago of French Polynesia. Poignantly, the Rainbow Warrior was named after a Cree Native-American prophecy that stated, “when the world is sick and dying, the people will rise up like Warriors of the Rainbow”.
[2] On 10 July 1985, the Rainbow Warrior was moored at Auckland. Two explosives were attached to the hull by operatives of the French intelligence service (DGSE). The bombs were detonated and the ship sunk, resulting in the death of Fernando Pereira, a Greenpeace photographer.
[3] The bombing attracted widespread international interest, and intense media focus. It gave rise to diplomatic and political difficulties.
[4] The two appellants in the appeal before us were arrested on 12 July 1985, after a swift police investigation.
[5] Unsurprisingly, the Rainbow Warrior incident has become iconic in New Zealand history, not just because it involved a bombing resulting in the loss of life in New Zealand, but also because it highlighted New Zealand opposition to nuclear testing in the Pacific.
[6] Television New Zealand Limited (TVNZ) decided to make in 2005 a 20^th anniversary documentary about this incident. TVNZ wants to include in that documentary footage from a videotape of the criminal proceedings in which the appellants pleaded guilty to manslaughter.
[7] We will detail the manner in which this videotape came into existence later in this judgment, but for present purposes we note that TVNZ applied for leave:

To search, inspect, and copy all or any part of the record of the criminal proceedings ... and, in particular, the videotape of the committal proceedings.

[8] A number of prior attempts had been made to obtain access to this videotape for media purposes, or for the purposes of private research. All of those attempts were unsuccessful, for one reason or another. But on this - the sixth - attempt at gaining legal access to the footage, on 23 May 2005 Simon France J in the High Court at Auckland authorised the “searching and copying of the videotapes taken at the time of committal and guilty plea [of the appellants]” under the Criminal Proceedings (Search of Court Records) Rules 1974 (which we will call the “Search Rules”). No restriction was placed on the use to which the copying might be put. The judgment of Simon France J is now reported at [2005] DCR 640.
[9] The Judge conveniently summarised his conclusions at [92] of that judgment as follows:

I am not satisfied that the public interest is outweighed individually or cumulatively by the privacy interests of the respondents or by the circumstances under which the tape was created. Without repeating what has gone before, I note I have been most influenced by the significance of the event in New Zealand history, the essentially public nature of a plea, and the corresponding lack of privacy, and the reality that the very existence of the Search Rule discretion is because the respondents consented to the tape becoming part of the Record. This seems to me to lessen unfairness issues. I reject the proposition that to authorise copying would bring the administration of the New Zealand legal system into disrepute. I have also seen as relevant the subsequent actions of the respondents in themselves contributing to the public interest by publishing books on it.

[10] Monsieur Mafart and Madame Prieur appeal against the determination of Simon France J. A stay of proceedings was granted by the Judge until further order of this Court.
[11] In the High Court, the Crown abided the decision of the Judge, and counsel before us did not consider it necessary for the Crown to be present. That is consistent with what was said in the Supreme Court when it was determined that this Court has jurisdiction to hear this appeal. Sir Thomas Eichelbaum said, “The contest is between private parties, the Crown not being involved” ([2006] NZSC 33 at [56]).

The material which is sought

[12] Although the phrase “videotapes” conjures up the notion of quite extensive footage, it was common ground before us that what is sought to be copied by TVNZ and utilised in its programme is only a very brief segment of one minute 20 seconds comprising the images when Monsieur Mafart and Madame Prieur appeared in the courtroom at Auckland and pleaded guilty.
[13] It is also common ground that what is depicted in that segment is, and has always been, in the public domain. What actually happened is a matter of public knowledge. Indeed, as will become apparent later in this judgment, the appellants themselves have written about those events in published books.
[14] The subject matter of what is in dispute is therefore something which, for want of a better term, we will call the “visual images” of the appellants pleading guilty to manslaughter arising out of the Rainbow Warrior bombing.

How the video images came about

[15] In the mid-1980s the live recording of court proceedings was not practised in New Zealand. In more recent years New Zealand has been one of the more innovative jurisdictions in the British Commonwealth in this respect, and there are now Media Guidelines which have been carefully considered to control the televising of video footage of in-court events.
[16] How things unfolded in this instance was as follows. Monsieur Mafart and Madame Prieur had been charged with murder. The committal proceedings were physically transferred to the High Court at Auckland because of its more suitable facilities, although at that point the appellants remained within the jurisdiction of the District Court.
[17] There was intense media interest in the prospective committal proceedings. We were told that some 150 journalists, including a large number of international journalists, were on hand. Because of the number of people who wished to be present, it was originally envisaged that the proceedings would also be broadcast by way of closed circuit television (CCTV) into an adjoining courtroom. The appellants agreed to that course, but the possibility that the proceeding might be videotaped was not, at that time, raised with them.
[18] Simon France J found (at [6]) that the stated purposes of these arrangements were:

to enable the upstairs gallery of Courtroom 1, where the proceedings were actually being held, to be closed;

to facilitate media observation;

to assist security;

to allow prompt review of any security issues; and

to allow the accused to sit in a dock without a bullet-proof cage.

[19] The entire proceedings were in fact simulcast by a closed circuit video system into the adjoining courtroom. It is the associated videotapes which ultimately became part of the committal court record now held by the High Court at Auckland.
[20] The sequence of events at the proceeding consisted of amended informations being presented to reflect the change in the charge from murder to manslaughter, a statement from the Solicitor-General (Mr D P Neazor QC) explaining the reason for the amendment, the reading of the new informations, the taking of guilty pleas, and the reading of a summary of facts. The hearing was a brief one.
[21] Unfortunately, the circumstances under which the videotapes were made, and exactly what the terms of any orders relating to them were, has subsequently given rise to distinct contention. Indeed, a major plank in Mr Curry’s argument before us was that to allow this extract to be shown now would amount to an act of bad faith on the part of the New Zealand legal system.
[22] In Mafart v Gilbert [1986] 1 NZLR 434 Sinclair J in the High Court was called upon to review exactly what happened that day. He noted at 436, line 33 that:

It is obvious that the District Court Judge had many things on his mind in relation to this particular hearing ... he was concerned to ensure the safety of [Monsieur Mafart and Madame Prieur ] ... where consideration ... [had been given] to the use of a bullet-proof cage.

[23] In any event, on 30 October 1985 a formal order was made in relation to the filming of the proceedings in the court. But instead of it being a CCTV system which was authorised, the orders signed by the District Court Judge referred to a closed circuit video system, which created the videotapes in question. The appellants had not considered or agreed to this. Sinclair J said at 437 in Mafart v Gilbert (above):

The order of the Court of 30 October 1985 dealt with a number of matters and referred to the making of an order on 1 October 1985 pursuant to s 4A(2) of the District Courts Act 1947 for the hearing to be held at the High Court in Waterloo Quadrant, Auckland, and that so far as the filming was concerned, the following appears from the Court order:

“It is further ordered that authorisation is given to the installation of closed circuit video recording which may film in the Number One Courtroom and display the same in Number Two Courtroom for the use of accredited media during the deposition hearings.”

[24] It is common ground that this order was never served upon Monsieur Mafart, Madame Prieur, or their counsel. As Sinclair J said, “[O]ne would have expected that to have occurred in the circumstances of this case” (at 437). Counsel for the appellants knew nothing of the existence of that order until 8 April 1986 when a judicial conference was held in Auckland.
[25] There had also been a judicial conference on the morning of 4 November 1985 in Auckland. At that time it first became apparent that the appellants were prepared to plead guilty to manslaughter. There was a discussion of the consequences of such a plea. Sinclair J noted in Mafart v Gilbert at 437, line 25, that Judge Gilbert, in an affidavit made in that case, stated that in the course of that conference, “he [the Judge] made it clear that there would be only one videotape from each of the cameras and that they would remain his property and that they would be kept in his safe-keeping”.
[26] The videotapes were collected by the Registrar of the Court and delivered to the Judge in a sealed envelope.
[27] Sinclair J further commented in Mafart v Gilbert at 438, line 43:

When the discussions were originally held, just what was in Mr Curry’s mind and what was in the mind of [the Judge] in relation to closed circuit television certainly is not clear at this stage, and certainly it is unclear whether either or both of them had in mind that a permanent record would be made through the medium of the filming of the proceedings.

[28] It seems plain enough that, so far as Mr Curry was concerned, as Sinclair J put it, “he was directing his mind to a closed circuit television system” (at 438, line 48), whereas “the District Court Judge considered that the video recording was his property and that they were not part of the Court records but part of the Judge’s personal record of the Court proceedings” (at 438, line 52).
[29] A few weeks after the guilty pleas, an application was made by the Broadcasting Corporation of New Zealand (BCNZ) to the presiding Judge for access to the videotapes. Monsieur Mafart and Madame Prieur objected, but the videotapes were nevertheless handed over. This led to an application for an interim injunction: Mafart v Gilbert (above). That interim injunction was upheld on appeal (see [1986] 1 NZLR 434 at 443 (CA)). BCNZ had wanted to play a documentary at the Cannes Film Festival about the Rainbow Warrior incident, and it in fact did so, but with all courtroom footage deleted.
[30] The substantive proceedings on that application were settled between the parties. The High Court then made consent orders. The videotapes were declared to be “documents” within the meaning of s 182 of the Summary Proceedings Act 1957. They were to be transferred to the High Court as part of the committal record.
[31] The orders so made then continued, as follows:

3. THAT upon receipt of the original videotape recording and any copies thereof the Registrar of the High Court of New Zealand at Auckland shall hold the same as part of the record of this Court in the matter of REGINA v. ALAIN MICHEL YVES MAFART and DOMINIQUE ANGELE FRANCOISE PRIEUR in S.No. 89/85 and S.No. 90/85 upon and subject to the provisions of the Criminal Proceedings (Search of Court Records) Rules 1974 and subject to the further directions of this Court.

4. FOR the purposes of Rule 2(4) and (5) of the Criminal Proceedings (Search of Court Records) Rules 1974 IT IS HEREBY ORDERED AND DIRECTED that:

(i) Any application by any person for leave to search, inspect or copy all or any part of the record of the committal proceedings referred to in this Order and held by this Honourable Court shall prior to any consideration thereof being made be notified by the Registrar of this Court to the applicants in these proceedings by their solicitors, Messrs Russell McVeagh McKenzie Bartleet & Co., Solicitors, Auckland.

(ii) No order granting leave to search, inspect or copy all or any part of the committal proceedings referred to in this order shall be made other than by a Judge of this Honourable Court and no such order shall be made by a Judge of this Honourable Court until such time as the applicants in these proceedings have been notified of the application to search, inspect or copy all or any part of the said record and have been given not less than 42 days notice of their rights to be heard on and to make submissions in respect of the application to search, inspect or copy all or any part of the said record held by this Honourable Court.

The videotapes continue to excite attention

[32] Thereafter, further applications were made to search the videotapes.
[33] The first was on 30 October 1987, by a then law student, Mr Colin Amery, now an Auckland barrister. Mr Amery was undertaking a thesis on the Rainbow Warrior case. Thorp J declined the application (Amery v Mafart [1988] NZHC 2; [1988] 2 NZLR 747 (HC)).
[34] On 28 April 1988, Gault J heard a revised application by Mr Amery (Amery v Mafart (No 2) [1988] NZHC 353; [1988] 2 NZLR 754 (HC)). That application was also declined.
[35] Mr Amery subsequently made a third application. On 1 March 2000 Randerson J declined that application (Amery v Mafart [2000] 3 NZLR 695 (HC)). That application related to a television documentary that was to be made on Mr Amery’s life; he had also had some involvement in a private prosecution that was stayed by the Solicitor-General.
[36] Randerson J, in effect “updating” the principles earlier enunciated by Thorp J, considered (at [15]) that the relevant principles are as follows:

(a) Court records are specifically excluded from the ambit of the Official Information Act 1982: s 2(6)(a). Any application for the search of criminal records therefore falls strictly under the rules.

(b) The principal purpose of the rules is to ensure that, from the conclusion of the trial, with its necessary publicity, the privacy of defendants will be protected by the Court unless there is some sufficient reason for disclosing material on the file: Amery v Mafart [No 1] at p 750.

(c) Where consent is granted, a condition should normally be imposed that the information obtained from the criminal records should not be used to identify the offender. Where such a condition cannot be met, an applicant will have to show strong reasons why the public interest requires disclosure of that information: Amery v Mafart [No 1] at p 751 and Amery v Mafart (No 2) at p 759.

(d) The very limited categories of information available to the public at large in terms of R 2(1) show that, in general, while the trial itself is open to the public, once the trial is completed, the record of the business conducted is not public property but is strictly controlled.

(e) A cautious approach is justified to the exercise of discretion under the rules: Amery v Mafart [No 1] at p 750.

(f) Whether sufficient reason exists to grant permission to search must in a broad sense be determined by the interests of justice. Relevant considerations include the principle of open Court and the right provided for by s 14 of the New Zealand Bill of Rights Act 1990 to seek, receive, and impart information. Those matters must however be balanced against issues of personal privacy and matters affecting the administration of justice generally: Television New Zealand Ltd v R [1996] 2 NZLR 462 at p 465 per Anderson J.

(Emphasis added)

[37] Randerson J said the information was already in the public arena and that “nothing new” would be added by granting the application. The proposition that the public had a “right to see” was rejected as lacking in substance: the “right to see” was satisfied by the open justice rules applying to the trial process itself.

The judgment of Simon France J

[38] The High Court Judge noted that, against the background of unsuccessful applications which had been made by media and other persons with respect to this section of the videotape, any new search application had to be considered “unpromising”.
[39] However, as to the law, the Judge was distinctly influenced by the consideration that a subsequent decision of this Court in R v Mahanga [1999] NZCA 281; [2000] 1 NZLR 641 had, to an appreciable extent, overruled the earlier High Court decisions, insofar as they had identified “the protection of privacy” as the primary purpose of the Search Rules.
[40] Mr Mahanga was convicted of murder. His trial was filmed by TVNZ. One item of evidence was a videotaped interview of the accused conducted by the police. The showing of this videotape during the trial was recorded by TVNZ. However the result was of poor quality. So TVNZ applied for access to the original videotape for use in a documentary. Access was refused by a High Court Judge and TVNZ appealed to this Court.
[41] In its decision, this Court held that the application of the principles of open justice and freedom of expression was satisfied by the Court being open to the public and by the media being able to report proceedings in established ways without restriction. Those principles did not therefore directly govern the exercise by Judges of their powers to regulate Court proceedings in circumstances such as obtained in Mahanga. The application was governed by the Search Rules, which require a Court to weigh the competing interests presented in any particular application. The purpose of those rules was not to protect the privacy of defendants in the absence of strong reasons for allowing access, but to confirm and enhance the Court’s supervisory powers over material held on court files and to rationalise the way requests for access were dealt with. Factors such as the principle of freedom of information, the policy of the Official Information Act 1982, the protection of individual privacy, and the protection of the administration of justice in not deterring offenders from giving videotaped interviews were all to be weighed in exercising the discretion. The passage of time and changes in circumstances could alter the balance, and could justify fresh applications.
[42] In Mahanga, the videotape of the interview itself was an exhibit. In terms of the advisory guidelines on televising court proceedings the permission given to film the proceedings had not extended to filming the videotape. TVNZ could tell people exactly what the accused had said in the course of the interview, and granting access to the videotape would not enhance the amount of publicly available information. Furthermore, there was a significant difference in the impact on privacy between playing an interview in court where it could of course be observed by the media and playing it on nationwide television. The Court in Mahanga saw the particular interests which were to be balanced in that case as being open justice and freedom of expression; privacy; and the administration of justice. This Court held that the Judge had considered all the relevant factors and could not be said to have been plainly wrong. The decision reached was accordingly within the Judge’s discretion and would not be disturbed.
[43] Given that decision, Simon France J thought (and we think rightly) that he should approach the application before him without treating the so-called “privacy interest” as pre-eminent.
[44] The Judge considered at [55] that a “visual record of a plea by [the appellants] is a matter of public interest. ... Being able to see something is qualitatively different to simply knowing it has happened”. The Judge saw “little privacy value in this recording. Pleading guilty to serious criminal offending seems to me to be quintessentially a public occasion” (at [62]). The Judge further considered that there was nothing in the present media guidelines “to suggest a higher level of privacy should be accorded to the guilty plea than [the Court] was willing to recognise” (at [71]). At least as between those factors the Judge saw the public interest in release as outweighing any privacy interests, subject to any disabling “unfairness” considerations.
[45] As to the circumstances under which the videotape came to be made, the High Court Judge accepted at [79] that “initially there were assurances as to confidentiality by the [District Court] Judge”. But Simon France J considered that was countered by the fact that not that long thereafter “an agreement was reached whereby the videotapes became an official part of the Court record and subject, like anything else, to the [Search Rules]” ([81]). He considered that the circumstances “under which the videotapes came into existence remain a relevant consideration in the exercise of discretion. However, I accord them only such weight as would tip the balance in an otherwise even case” ([83]). The Judge could see no force in an argument that in effect the media guidelines were being “retrospectively applied” because (by consent) the videotapes had come under the guidelines.

Discussion

The standard of review

[46] Both counsel accepted at the outset of the hearing before us that this was a discretionary decision by Simon France J. Accordingly the standard of review to be employed in this Court is whether the Judge made an error in principle; whether he took into account irrelevant considerations or excluded relevant considerations or whether it can be said that he was plainly wrong. This is a difficult standard of review to surmount.

An error of principle?

[47] We are not persuaded that there was an error of principle on the part of Simon France J. Mahanga plainly did correct the impression created by the earlier High Court authorities that “the protection of privacy” was the principal purpose lying behind the Search Rules, or was otherwise the “predominant” consideration in applications of the kind at issue in this case. The correct position (as identified by Simon France J) is that in a search application under the Rules all relevant factors have to be considered.
[48] We also note the views of the Supreme Court of New Zealand in an earlier appeal in this proceeding ([2006] NZSC 33) wherein the Chief Justice, in giving judgment for herself and for Blanchard and McGrath JJ said (at [7]):

Public access to court files, both in respect of current and completed cases, must be considered in the context of contemporary values and expectations in relation to freedom to seek, receive and impart information, open justice, access to official information, protection of privacy interests, and the orderly and fair administration of justice. The basis upon which access is permitted can raise important points of principle, the application of which may be deserving of appellate scrutiny, as is indicated by a number of recent Court decisions.

[49] The New Zealand Law Commission has recently released its report, Access to Court Records (NZLC R93 2006). The report suggests that the presumption of accessibility which characterises the Official Information Act 1982 should be strongly recognised in this area of criminal record search rules.
[50] The report recommends an appropriate mechanism (a set of rules) for the detailed regulation of the access to information in court records. This would need to be consistent with the presumption of accessibility and the reasons that justify withholding information. These rules would be set out in schedules to the new Court Information Act or in subordinate legislation.
[51] We draw attention to this report, both for its intrinsic importance, and because the underlying philosophy behind the Law Commission proposals does not detract from the philosophy underpinning the decision of this Court in Mahanga involving a balancing of various interests of which privacy is one but not the predominant one.
[52] In this particular case we consider that there are clearly two sets of competing interests: privacy interests and what, for convenience, we will call freedom of information interests. Mr Curry urged on us that there is also a third kind of interest to be considered: the integrity of the administration of the justice system itself, but for reasons we will come to shortly, we see that as being of little moment in this particular case.
[53] Lord Bingham of Cornhill has suggested that “reconciliation” of the privacy and freedom of information interests involves “one of the most difficult and sensitive areas of judgment” (“Human Rights in the New Millennium”, reproduced in Bingham The Business of Judging (2000) at 165). Further, where privacy ends and free expression begins, can realistically only be determined in the particular instance. As Lord Bingham said, “it is very difficult, and probably unwise to offer any opinion in advance about where the line is likely to be drawn” (Ibid).

Privacy

[54] It was plainly open to Simon France J to conclude that there was no real force in the privacy factor in this particular case. Not only was it open to the Judge, but in our view he was plainly right as to the minimal weight to be accorded to that factor in this instance.
[55] First, as the Judge rightly said, “Pleading guilty to serious criminal offending seems to me to be quintessentially a public occasion”.
[56] Secondly, the Judge was entitled to accord “significance” to the publications of the appellants. For our part, if anything, the Judge may not have accorded that factor as much weight as we would have.
[57] In France, Dominique Prieur published, in collaboration with Jean-Marie Pontaut, a book entitled, Secret Agent (Fayard, 1995). Her own account (by the translation which was introduced in evidence in the High Court) of what occurred that fateful day in November 1985 is as follows:

Trial and prisons

Page 187

As before, the prison van crosses Auckland at high speed, with its sirens blaring, and we sweep into the garage of the High Court. The Police lead us straight away down the long underground corridors, under the court room, which we know well and where there is a line of cells. We go up a small stair case and emerge, as we had the first time, into the full glare of the court room and into the dock. A little dazzled, I can make out the judge in front of me and the lawyers who are sitting on the side. I also notice, from the corner of my eye, in the first row, Joel [Prieur - her husband] to whom I make half a gesture. In the fog of the moment I don’t pay any attention to the public or to the journalists who are there. Daniel [Soulez-Lariviere] will tell me later that there were 147 journalists who had come from around the world to cover the trial. However, only a dozen could actually be present at the hearing; the others follow the events from outside of the court room on a screen.

I had just put on the translation headphones when the Solicitor General, Neazor (the prosecutor) rises to his feet. He

Page 188

announces that the prosecution has agreed to amend the charges. From now on we are only being charged with involuntary homicide (manslaughter) and “causing deliberate damage with explosives”. Daniel [Soulez-Lariviere] has succeeded! The silence that reigned is disturbed by mutterings, a sign that some have already understood what is about to happen.

Daniel [Soulez-Lariviere] and Gerard Curry smile discretely. The court clerk then turns to us and asks us whether we wish to plead guilty or not guilty. There is immediate silence once again. I feel that everyone is staring at me, but I wait in turn for the translation, involuntarily raising the suspense. Then, in a voice which I hope is as clear as possible, I answer first:

“Guilty”

I hear Alain [Mafart] booming the same reply.

There is then an enormous ‘brouhaha’ in the court room. Those in attendance seem stupefied [stunned]. The judge, Ron Gilbert, who is presiding over the proceedings, silences the public with an authoritative gesture and the Solicitor General reads a brief summary of the case. “The Crown’s (the prosecution’s) inquiries reveal that the accused had no other role other than to support those who planted the bombs and whose identities have not yet been established,” he explains. Victory! Daniel [Soulez-Lariviere] has won! We will only be judged for manslaughter (involuntary homicide). We can hold out some hope. I look at Joel [Prieur] in triumph. But an internal voice

Page 189

reminds me that the sentence has not yet been imposed ... Too early to celebrate!

As if he was following my thoughts, the judge, Ron Gilbert, then speaks and fixes the fateful day of 22 November as the date for the verdict. 18 days time ... Then he brings an end to the proceedings. It’s over. Everyone seems astonished: the public seems hesitant to leave. Alain and I had hardly regained our spirits when the police lead us hurriedly back underground. I don’t even have time to see my husband again. I only meet Daniel [Soulez-Lariviere] and Mr Curry who embrace and congratulate me.

“All has gone as well. The verdict will be good. That’s certain!”, they reassure me, before the police wagon takes us back to the prison.

[58] Monsieur Alain Mafart also published a book, in collaboration with Jean Guisnel, called Secret Journal of a Combat Diver - from the Rainbow Warrior to Arctic Ice (editions Albert Michel SA, 1999). Monsieur Mafart’s account of what occurred is as follows:

Page 192

... The hearing ... before the High Court is very brief. For us it is the main event since our arrest. The transfer [from prison to the court] takes place in a concert of sirens under the “protection” of heavily armed, elite police. The prison van drops us off in a little cell that communicates directly with the court room via a spiral staircase. We are told to go up and enter, brutally, in the middle of the court room, onto a stage. Silence is immediate and all eyes turn to us, the curious beasts who no one had yet seen. All these curious glances makes me feel very uneasy. The court room is beautiful with dark and majestic wooden panelling. I force myself to concentrate, trying to ignore the weighty public interest. Conscious of that embarrassment, Celia Caughey comes up to us and whispers a few consoling words, which are most welcome in this rather destabilising environment.

In the first row of public seating, behind us, I notice the Head of Greenpeace, David McTaggart, and the head of the Police enquiry, Allan Galbraith. French and international press reporters are present and are in such great numbers that the building had to be altered, with TV screens set up in neighbouring rooms so that all the members of the press could watch the spectacle. In front of us are our New Zealand lawyers. On the side, Joel Prieur, Dominique’s [Prieur’s] husband is sat next to Daniel [Soulez-Lariviere]. This last person does not defend us officially, as he is not qualified at the New Zealand bar. He dominates the situation. In this auditorium no one suspects the strategy that he has concocted. The Court is declared open. Judge Ron Gilbert enters, looking extremely formal, wearing a robe and an Elizabethan-style wig. I have the impression of being a mutineer from the bounty ... but that in this case the gallows would not be erected in the village square. Three courteous phrases are exchanged between Judge and our lawyers, the charges are read to us and the Court asks us whether we plead guilty or not guilty, our replies are clear “Guilty!”. With that one word the trial is at an end.

There is total surprise amongst the journalists. As soon as they realise what has happened, they rush outside on their telephones all of a sudden breaking the oppressive silence and solemnity of the court room. Against all expectation, they have just found out, dumbfounded, that the huge trial that was due to take place had, in some way, evaporated before their eyes, in one instant and without warning. They now knew that as far as the judicial phase was concerned, our affair was closed. On 4 November [1985], we knew the verdict: “10 years” the judge, the Honourable Judge Davison, declared. Even if Maitre Soulez-Lariviere had forewarned me, it is still a massive blow: we had not avoided the maximum sentence, but at least I know, with the remission of sentences, that I would probably get away with only half of that time. I place all my hope in a vigorous effort by France to get us out of this black hole. Optimist by nature, I always believe that something positive can come out of the worst moments that a man can live. I will now be able to test, hour by hour, the validity of that principle.

[59] These passages, out of the mouths of the appellants themselves, are very significant. They do not portray humiliation in front of onlookers. If anything, there appears to have been vast relief and even a sense of “victory” that the appellants would “only be judged for manslaughter”.
[60] “Privacy” is a difficult and often amorphous concept. The phrase cannot be used in a vacuum. It always requires closer examination, to see just exactly what is being said to be intruded upon. Obviously, in today’s circumstances some degree of “rubbing up against” the conditions of modern life is inevitable. So generally speaking, in whatever area of the law a “breach of privacy” is said to have occurred, courts and statutes have required that the intrusion must be to an unreasonable extent upon the personal affairs of the individual concerned (see, for instance, principle 4, s 6 of the Privacy Act 1993). In Hosking v Runting [2004] NZCA 34; [2005] 1 NZLR 1 Tipping J said (at [259]) the act complained of must “cause substantial offence to a reasonable person”; and in Australian Broadcasting Corporation v Lenah Game Meats (2001) 208 CLR 199 Gleeson CJ said (at [42]), “The requirement that disclosure or observation of information or conduct would be highly offensive to a reasonable person of ordinary sensibilities is in many circumstances a useful practical test of what is private.” (Emphasis added.)
[61] That said, one aspect of privacy is that it is necessary to protect everybody from misinterpretation or misportrayals.

A liberal state respects the distinction between public and private speech because it recognizes that the ability to expose in some contexts parts of our identity that we conceal in other contexts is indispensable to freedom. Privacy is necessary for the formation of intimate relationships, allowing us to reveal parts of ourselves to friends, family members, and lovers that we withhold from the rest of the world. It is, therefore, a pre-condition for friendship, individuality and even love.

(See Rosen, The Unwanted Gaze (2000) at 11.)

[62] One of the complaints made - with considerable force - against contemporary media is that what it routinely does in forming mental pictures is to use synecdoche: the portrayal of a part for the whole. (See Miller The Anatomy of Disgust (1998)). It is a common and lamentable part of entering the public gaze that the media tends to promote one salient feature of an incident (often glorified as a 30-second sound byte), with unfortunate and unfair results. Not the least is a refusal (or at least a misportrayal) which fails to respect the fact that people may well be different in private than in public.
[63] We mention these sort of factors out of fairness for the appellants, and because we are aware of the compelling impact of scorn, hate, and disgust that unwise or unthinking media exposure can have for individuals. (See generally Nusbaum Hiding from Humanity: Disgust, Shame and the Law (2004).) Hence, if there was any evidence that what was being resorted to by TVNZ was something designed to humiliate, or even if it might have had that effect in relation to the appellants, then that would be a matter for grave concern. But on their own writings, in this instance the appellants seem not to have been afflicted by any concerns of that kind. There is no evidence at all of any kind of intrusion here of a humiliating variety. On the contrary, Simon France J thought that this is more of a case of the appellants “seeking to control the type of coverage and ensuring publicity occurs on their terms” ([75]).
[64] Mr Curry argued that even if there is no, or little, harm of the kind we have just canvassed, there could well be harm in this case, arising from the constant “repetition” of this rather iconic image over visual media, perhaps around the world. And this, he said, in a context in which privacy interests will usually be stronger with the passage of time, so that there has been, in effect, a “cleaning-of-the-slate”.
[65] In cases of this kind the media observably seize on “iconic” moments, and not infrequently replay them over and over again - routinely in promotional “trailers” for a programme. To choose a recent example, how many times was Zinedine Zidane’s now infamous “head-butt” played, as a ten-second time-slot during and after the World Cup? The visual media are not infrequently drawn to such things, like a moth to a candle.
[66] In this instance, the Judge had the advantage of viewing the particular videotape. We have not seen it. He took the view that no particular restrictions were required (as, for instance, by the prohibition of the use of the material in promotional trailers). We cannot say that he was plainly wrong.
[67] We accept that harm through repetition of a “cumulative” kind (as opposed to any “intrinsic” harm in a particular showing) may occur. However, that carries little weight in the present case. By the publication of their books, the appellants have, in effect, courted publicity for their perception of the events at issue. Their books are part of the permanent record of the events and in that sense speak forever. This not only diminishes any privacy interest that there may be in the visual image of those events but also tells against a finding of harm through constant repetition of the image, if that were to occur.

Freedom of information

[68] It is incontrovertible that this bombing was an extraordinary event in the history of New Zealand, and even internationally. It involved covert criminal activity by the security forces of one state on a friendly state’s territory, and against the friendly state’s interest. It is an event that has been, and will remain, important in New Zealand’s history. As time passes, there will be new generations of New Zealanders who have not lived through the Rainbow Warrior affair and so will not have personal knowledge of it. Their knowledge of this important event in New Zealand’s history will come through what they are told, through what they read and through what they see in the visual media.
[69] A visual image of the kind at issue in this case may be a very powerful mechanism for conveying information about events. Who can forget the graphic force of the film images of the defendants in the dock at Nuremberg? In this case, this is not just any defendant pleading guilty - whatever might be said about other cases, this was an act of historically great significance. There is a strong public interest in conveying the information in the visual image not simply by way of the written or spoken word, but by way of the image. The image will have an impact that the spoken or written word will not, and that is precisely why contests of the present kind sometimes surface in the law (see Gaines Contested Culture: The Image, the Voice, and the Law (1991)).

Balancing the interests

[70] In the absence of any distinctive harm to the appellants of the kind we have noted in [63] from which they ought to be protected, there is no justification for our courts to exercise something akin to a censorship role, or to encourage the use of the courts as, in effect, a public information filter. Indeed the Courts must be careful not to sanction unjustifiable limitations on the right of freedom of expression conferred by s 14 of the New Zealand Bill of Rights Act 1990. The particular acts complained of were in a public place; the nature and intrusiveness of the acts were minimal; and the goals of the surveillance were lawful, and indeed judicially sanctioned. This is particularly so where, as here, the act sought to be “filtered out” is of very great historical significance.

The guidelines

[71] Mr Curry argued that a third interest, the In-Court Media Coverage Guidelines 2003, ought to be accorded very great weight in this case. He argued that these were relevant because filming of the appellants in the dock at the time of the taking of their guilty pleas would not have been permitted if the standards set by the Guidelines for present day media coverage of trials had applied at the time of the appellants' court appearance. We do not accept that submission. For reasons we now turn to, we think this factor is of no real consequence in this case.
[72] In fact, the Guidelines were evolved approximately a decade ago now as to how, if at all, filming of criminal trials is to take place. That is, they were not in existence at the time of the Rainbow Warrior hearing.
[73] Guideline 9 currently provides as follows:

Subject to any protection granted to the accused as a witness under guideline 11, the accused may be filmed only:

(a) when giving evidence; or

(b) when sitting in the dock, for the first 15 minutes of any sitting day, except when, during that period, a verdict is being taken or a sentencing is underway; or

(c) at any time during the trial, including the time when the jury is taking a view or delivering its verdict, if the accused consents in writing through his or her counsel and the Judge does not prohibit such filming; or

(d) during sentencing, if the Judge grants leave.

[74] We agree with the High Court Judge that there is a difference between the situation at verdict (where the outcome is not known) from that of the entry of a guilty plea (where known steps are being carried out).
[75] The argument for the appellants is that Guideline 9(b) refers to “sitting in the dock” (emphasis added). Normally, an accused stands when giving a plea. However that term, in context, is utilised as being an occasion on which the accused may be filmed for the first 15 minutes of any sitting day. The purpose of the Guideline appears to be to enable media to get “early in the day” footage, but to minimise the intrusiveness of filming during the remainder of the Court day.
[76] A further argument advanced in the High Court, and again before us by Mr Curry, that these Guidelines should not be applied retrospectively, cannot meet the point that the material being under the Search Rules, the period of potential searching could span 60 years. And as the Judge rightly said, perceptions may well - indeed likely will - change during that 60-year period, giving rise to (as in this case) multiple applications to search.
[77] In the absence, at that time, of any guidelines - let alone any prescriptive rules - the Judge had to determine what course to adopt. We cannot now, in effect, judicially review the committal hearing Judge and say he was plainly wrong.
[78] We can see no force in this appeal point.

The assurance

[79] We entirely agree with Mr Curry that it would be utterly inimical to the administration of justice if a judicial assurance were given to accused persons, and then not acted upon. Nothing which falls from us in this section of the judgment should be taken as detracting from the importance of that principle, which we accept unreservedly.
[80] There are, however, two difficulties with the instant case.
[81] The first is a question of fact. Simon France J accepted that “initially there were assurances as to confidentially by the Judge”. But as the Judge also observed, “it is difficult from this distance to know the exact nature of the assurances” ([79]).
[82] It is understandable that even an arguable case on the facts would have supported the issue of an interim injunction (see Mafart v Gilbert at 445 per Cooke J), but that is not dispositive in this proceeding.
[83] The second point, and one which we think is fatal in the instant case, is that, for whatever reason, Mr Curry’s clients agreed to the videotapes becoming an official part of the Court record. As such the videotapes became subject to search and copying, on the appropriate legal principles. Put in another way, the basis on which the material was held changed. It was in this context that Simon France J said, we think rightly, that although some regard could still be had to the basis on which the videotapes came into existence, that factor has much less force, for present purposes.

Conclusion

[84] We cannot properly disturb the judgment under appeal. Indeed, we think the Judge was plainly right in the course he took.
[85] In the result, the appeal is dismissed.
[86] Counsel did not address us on the subject of costs. In the High Court Simon France J gave a preliminary indication that costs were not appropriate. We do not know what, if any, outcome there was on costs in the High Court. We take the view that costs should lie where they fall in this Court. The issues which were raised are of general public importance.

Solicitors:
Russell McVeagh, Auckland for Appellants
Simpson Grierson, Auckland for Respondent

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