Gosnell v R [2014] NZHC 2235 (16 September 2014)

Last Updated: 3 October 2014

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2011-009-014294 [2014] NZHC 2235

GAVIN JOHN GOSNELL

v

_{THE QUEEN}

Application:	22 August 2014
Judgment:	16 September 2014

JUDGMENT OF GENDALL J (Dealt with on the papers)

Introduction

[1] Gavin John Gosnell (Mr Gosnell) was found guilty by a jury and convicted in this Court of murder following a trial that took place between 8 April 2013 and

16 April 2013. Earlier, he had pleaded guilty to one charge of offering indignities to a dead human body.

[2] Mr Gosnell has applied to this Court seeking access to the audio recording of a pre-trial application hearing on 12 February 2013, and the audio recording of his jury trial. These are effectively the notes of evidence in audio format. The application was made in writing to the Registrar by letter dated 14 August 2014, though not received until 22 August 2014.

[3] This application requires determination of two issues:

(a) Does a defendant in a criminal trial have a right to access such material?

GOSNELL v R [2014] NZHC 2235 [16 September 2014]

(b) If so, should Mr Gosnell be granted access?

Outcome

[4] I have reached two general conclusions with regard to the issues in this application:

(a) Notes of evidence (or transcript) are documents within the meaning of the Criminal Procedure Rules 2012 and therefore form part of the Court record.

(b) The Court has a wide discretion to ensure that access is granted only in appropriate circumstances, and only to appropriate documents, on whatever conditions are necessary to achieve this.

[5] Applied to the present case, in the absence of reasons from Mr Gosnell supporting his application and addressing why a printout of the transcript in each case (which I understand he may have) is inadequate, I am not prepared to set in motion the mechanics that would precipitate Mr Gosnell being furnished with the audio recordings he seeks. For clarity, I note that even with reasons, it is far from certain that the information would be provided.

[6] My reasons follow.

Does a defendant in a criminal trial have a right to access the notes of evidence?

The access regime

[7] By r 6.5(1) of the Criminal Procedure Rules 2012, “[t]he prosecutor and the defendant in a criminal proceeding, and their lawyers, may access the court file during or after the completion of the criminal proceeding.” This is subject to the discretionary qualification to that right in r 6.5(2)(a) and the mandatory qualification in r 6.5(2)(b).

[8] The relevant definitions are provided in r 6.1:

access means to search, inspect, or copy under the supervision of an officer of a court

court file means a collection of documents in the custody or control of the court that relate to a criminal proceeding.

Document does not include –

(a) notes by or for a judicial officer for his or her personal use; or

(b) any material that relates to the administration of the court

[9] From the interpretation section, three important points emerge: (a) access (including the right to copy) confers rights that are subject to supervision of an officer of the Court; (b) the court file is comprised of documents; but (c) notes that are made “by or for” a judicial officer are not documents and therefore do not form part of the Court file. Relevantly, I also observe that the rules do not require

preparation of any material not already in existence.¹

[10] For completeness I record at this juncture, that by operation of the Criminal Procedure Act 2011, s 5 and the Criminal Procedure Rules, r 1.4(2), there can be little question that an audio recording, or more importantly the information contained in that recording, is a document for the purpose of the rules.

[11] In this context it becomes immediately apparent that resolution of the first issue turns on whether the notes of evidence are a document, thereby forming part of the Court record, or whether they are subject to the exclusionary rule on the basis they are made by or for the Judge for his or her own personal use. If the notes of evidence are a document, then the only question that remains relevant is whether I ought to exercise my discretion to refuse access.

Are the notes of evidence “documents” as defined by the 2012 rules?

[12] A plain English interpretation of the exclusion to the definition of the term document seems to support a conclusion that the notes of evidence are documents, and thereby form part of the Court record. The notes are today prepared by the National Transcription Service, not the Judge, or his or her associate. Moreover, the

_{purposes for which the notes of evidence are prepared are clear. A copy is provided}

¹ Criminal Procedure Rules 2012, r 6.2(2).

to the Judge. Counsel for the defence and prosecution are given a copy, and they are often disseminated to the members of the jury. In addition, very often they will be reviewed on appeal. The wide use to which the notes are put is wholly commensurate with the prima facie position that there is nothing privileged or confidential in what passes in open Court.²

[13] On this basis alone I am inclined to the view that the notes of evidence form part of the Court record and are thereby amenable to the access regime contained in Part 6 of the Criminal Procedure Rules 2012. This view has support.³ In this respect, if the notes of evidence were not intended to fall within the ambit of the definition of document in r 6.1, it would be simple enough to have inserted a sub rule to the effect that “document” does not include the relevant transcript:

[14] A final supporting factor as I see it is provided by previous iterations of the rules.⁴ These all point to the conclusion that the notes of evidence do in fact form part of the Court record. Absent some overt manifestation of intent by the draftsperson of the 2012 rules to the contrary, I would be slow to hold that the broad definition of Court Record as contained in the Criminal Procedure Rules 2012 somehow now implicitly excludes the notes of evidence, or that the exclusion to the definition of document now encompasses the notes of evidence.

[15] On this aspect, I note however the words of Kós J in Penrose v Police regarding in particular a historical analysis of the notes of evidence taken in criminal trials:⁵

There is a misapprehension among criminal appellants about the status of the record of the evidence, and submissions. What are transcribed are the Judge's notes of evidence. Originally this simply comprised notes taken by the Judge himself in his notebook. If needed on appeal, the Judge's notes would be typed up. Then in the first decade of the twentieth century, trials came to be

² R v Hawkins HC Auckland T240/91, 28 April 1992 at 5, citing In Re Worswick Robson v

Worswick (1888) 38 Ch 370 at 372, as adopted in R v Philpott HC Wellington T74/90, 14

_{February 1991 at 4.}

3. R v Moses (No 2) HC Auckland CRI-2009-004-1388, 19 May 2011 at [2]; Re Stace [2013] NZHC 3037 (where the proposition was implicitly accepted); R v Philpott HC Wellington

T74/90, 14 February 1991; Law Commission Access to Court Records (NZLC R93, 2006) at

_[11].

⁴ Criminal Proceedings (Search of Court Records) Rules 1974, r 2(9); Criminal Proceedings

_{(Access to Court Documents) Rules 2009, r 3.}

⁵ Penrose v Police [2013] NZHC 2757 at [27].

typed up by the Judge's associate, sitting beside the Judge, as the evidence was delivered. Later, carbon copies came to be provided for counsel. The first Judge's associate to type evidence as it was delivered was Hubert Ostler in 1903. He later became a Supreme Court Judge himself. The idea then caught on among the other (male) associates. Associate-typed simultaneous transcription continued for the next 104 years. It was an imperfect process. Swift-speaking counsel (and witnesses) would be barked at (often by the associate) to “slow down”. Every 10-15 minutes there would be a pause as new sheets of paper (and carbon) would be loaded. But it gave the associate's fingers a break. As it happens I was looking at one such transcription, dating back to 1976, on the day I heard the present appeal. It is far from complete. It is replete with abbreviation and numerous non-essential words are simply omitted. In the early 1990's associates moved onto word processors, and the days of carbon copies, and blackened fingertips, ended. But abbreviation, exceptions and pauses (so the associate's fingers could rest) continued. Verbatim the notes were not. There was no record of the exchanges between Bench and Bar. Any record of these was to be found only in the Judge's notebook, if at all. Since the advent of “For The Record” full trial recording, in about 2007, much more accurate and complete transcriptions of evidence are available, at the price of a slight time lag. In this case, and unusually, it included transcription of exchanges between Bench and Bar, Williams J having ordered this to be done. The extent of transcription required is a matter within the discretion of the Court, subject to Part 6 of the Criminal Procedure Rules 2012.

(citations omitted)

[16] I agree with these remarks of Kós J insofar as they relate to the historical position but, with respect, disagree to the extent they support any proposition that the notes of evidence today belong solely to the Judge. I think the short answer is reflected in judgments such as that of the Court of Appeal in R v Cunningham,⁶ where the following observation was made:⁷

Courts must respond to advances in technology and embrace all the opportunities which advanced methods can provide, subject in all cases to the underlying requirement of fairness.

[17] The undeniable reality is that today, in an era of modernity, the notes of evidence are prepared neither by the Judge nor by his or her agent. Neither are the notes of evidence prepared for the exclusive domain of the Judge. They are much more widely disseminated, on a routine basis, than was ever the case in times past. This reality is borne of the technology of which the Courts in this Country are now

_{possessed. The irresistible conclusion to be thereby drawn in response to such}

⁶ _{R v Cunningham [2008] NZCA 569.}

⁷ At [39].

technological advancement is that the notes of evidence are “documents” that

comprise a component of the Court record.

[18] The opinion expressed above is in no way intended to derogate from the importance of the exclusion. Materials genuinely prepared by or for the Judge for his or her own personal use (i.e. notes taken by him or her in the proceeding, draft judgments, material prepared by associates or clerks) will not meet the definition of “document” and will thereby not form part of the Court record.

[19] I record for completeness that in my view in the case of a defendant seeking a copy of the audio recording, issues of open justice⁸ often may not arise. They are participants in the process throughout and are privy to the minutiae of the trial and any antecedent or subsequent hearings. To them the process is an open one by any definition of that term.

[20] The question that now remains for determination is that of discretion. It is to this which I now turn.

Discretion

[21] The conclusion I have reached above is by no means the end of the analysis. Persons seeking access to the Court record need to bear this in mind. The Court retains a wide discretion⁹ pursuant to rr 6.5(2) and 6.10, which supplement and enhance the Court’s inherent supervisory jurisdiction¹⁰ to determine whether access is appropriate and, if so, whether conditions should be imposed. There are

compelling policy reasons for such an approach:

(a) The transcript of the proceedings could capture conversations that were never intended to be in the public domain. Not all words uttered in Court are part of the proceeding and there is a need to ensure that

_{only information intended to be so is provided.}

⁸ As to which refer Television New Zealand Ltd v R [2000] NZCA 354; [2001] 1 NZLR 641 (CA); Rogers v

_{Television New Zealand Ltd [2007] NZSC 9, [2008] 2 NZLR 277.}

⁹ _{Television New Zealand Ltd v R [2000] NZCA 354; [2001] 1 NZLR 641 (CA) at [35]–[36].}

¹⁰ R v Philpott HC Wellington T74/90, 14 February 1991 at 3.

(b) The transcript will often contain, or refer to, matters that are the subject of suppression. There is a need to ensure that there is not advertent or inadvertent breach of suppression through the operation of the access regime.

(c) Distribution of the record for one purpose may be wholly legitimate, while illegitimate or inappropriate for another. Care needs to be taken to ensure that if access is provided, the access does not result in any inappropriate use of the information.

(d) The nature of a transcript of Court proceedings is perceived to be an official and determinative record of those proceedings. However, the reality is that the notes of evidence are transcribed by a person, fallible like every human. In this context, there is scope for errors of interpretation and omission, and currently no real mechanism for review. Care needs to be taken in this respect.

[22] Applications for access such as this should therefore always be made to the Registrar in accordance with r 6.5(3), and then referred to a judge for determination, as is the time honoured process. In this way, the right of access contained in r 6.5(1) is merely a presumption, subject always to the overarching discretion of the Judge, and access in any case is by no means a given.

[23] The factors bearing upon the exercise of that discretion will inevitably differ according to whom is making the application and all the relevant circumstances. A defendant will normally have a stronger claim than some other participant in the hearing, and a participant in the hearing (i.e. a complainant or witness) will often have a stronger claim than someone wholly divorced from the proceeding. However, in every case the judge determining the application must bring his or her discretion to bear, viewing the application in the round, in order to determine whether access to the particular documents sought is appropriate.

[24] It is my preliminary view, without determining the issue, that requests for access to audio recordings are fraught with greater difficulties than applications for

access to a transcription of the oral evidence. An applicant would have to disclose persuasive reasons before I was moved to permit them to listen to the recording (such as, for example a substantiated suggestion that in some way the typed transcript did not properly record what was said), and even more compelling reasons before I was moved to a point where it would be appropriate to provide a copy of the audio. In terms of this application, Mr Gosnell has not nearly reached that point. No reasons at all for his request have been disclosed.

Conclusion

[25] For all the reasons contained above, Mr Gosnell’s application for a copy of the audio recordings is declined.

[26] That is not an end of this matter however. As I have already noted, my understanding is that Mr Gosnell may already have received typed transcripts of his trial and the pre-trial hearing in question. If however, this is not the case I direct first that Mr Gosnell is to be given a typed print out of the transcripts of his trial that took place from 8 – 16 April 2013 and the hearing of his pre-trial application on

12 February 2013, and secondly, that these are only to be used by Mr Gosnell for his personal purposes and not disseminated to any third party.

..................................................

Gendall J

Solicitors:

Raymond Donnelley & Co, Christchurch

Copy to defendant