Walker v Coroners Court at Wellington [2014] NZHC 2645 (28 October 2014)

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UNDER THE	Judicature Amendment Act 1972
IN THE MATTER OF	An application for review
BETWEEN	GEOFFREY ALLAN HENRY WALKER Plaintiff
AND	THE CORONERS COURT AT WELLINGTON First Defendant THE ATTORNEY-GENERAL OF NEW ZEALAND Second Defendant TELEVISION NEW ZEALAND LIMITED Third Defendant

Hearing:	6 October 2014
Counsel:	M T Scholtens QC and D A Ewen for Plaintiff J E Hodder QC and H Wild for Third Defendant First and Second Defendants abide decision of the Court
Judgment:	28 October 2014

[1] On 7 January 2012, a hot air balloon on a scenic flight hit electricity lines and crashed in a farm paddock near Carterton. All 11 people on board (10 passengers and the pilot) were killed. The Coroner has opened an inquiry into those deaths under pt 3 of the Coroners Act 2006 (the Act).

[2] Mr Walker is a professional photographer who makes his living from photography and has been involved with the industry for some 30 years. He had a long standing arrangement with the pilot and operator to take photographs of the operator’s balloon rides to make them available for passengers to purchase after the flight. He acted as an independent operator in this activity.

[3] During the flight that morning, he followed the balloon taking pictures. After receiving a radio call from the pilot telling him where the landing would be, he drove towards that spot. He stopped some distance away from the intended landing site to photograph the landing from that position. He saw the balloon contact electricity lines and catch fire. He alerted emergency services by a 111 call. He took photographs of events as they unfolded. After the balloon hit the ground, he drove to the crash site and continued photographing what was happening.

[4] Subsequently, at the request of the detective in charge of the scene, Mr Walker took further photographs of the site, before the balloon envelope was moved to assist in the search for bodies. In agreeing to the police request to take photographs, Mr Walker discussed with the detective ownership of the photographs. As Mr Walker puts it, they amicably concurred that the photographs taken up to that point were his and subsequent photographs taken under police direction were theirs.

[5] When Mr Walker left the site, he went to the Masterton Police Station to make a statement and to provide the police with his files for use in the investigation. He downloaded all the photographs onto a police photography computer, both those taken earlier and the images taken at the request of police. Mr Walker says that it was quite clear that the earlier images were his and the police would have use of them for the purposes of the investigation only.

[6] On 12 January 2012, soon after the inquiry was opened, the Coroner issued a decision noting that the earlier photographs had been taken by Mr Walker and had been handed to police to assist with the investigation. The Coroner recorded that the photographs and digital images had been accepted into evidence for the purposes of the inquiry. He made an order under s 74 of the Act prohibiting the making public of those photographs. The order was made on the grounds that the Coroner was satisfied that it is in the interests of justice, decency, or personal privacy, to prohibit publication of that evidence. He reserved the right to vary the terms of the order at any time if he considered it appropriate.

[7] The Coroner decided to hold an inquest into the deaths. Shortly before the hearing of that inquest started, on 13 May 2014, Mr Bradwell, a reporter for TVNZ, sought the Coroner’s permission to publish a small number of the photographs which, if released, would be broadcast on TVNZ’s news bulletins and published on its website. The application was subsequently amended to refer to four photographs only, the selection of which was to be at the discretion of the Coroner, to represent four stages in the flight which Mr Bradwell identified. The Coroner advised all counsel involved with the inquest of the application and gave an opportunity for submissions.

25 July 2014 in which he held that the direction given earlier under s 74 of the Act should not apply to the four photographs which he identified. He gave the following directions:

28 July 2014, and therefore publication of the selected photographs will remain prohibited until that time.

[9] At the hearing on 28 July 2014, the four photographs were produced by counsel assisting the Coroner as exhibits, in accordance with the direction at paragraph 27. The Coroner, at the request of counsel for Mr Walker, extended the delay to the order’s operation, to allow time for Mr Walker to file an application for review of his decision. The time in paragraph 30 has been further extended to the date of delivery of this judgment.

[10] There is, under s 75 of the Act, a right of review of a Coroner’s decision under s 74. That specific right of review might arguably not extend to all the matters raised. I need not address s 75 because this proceeding has been commenced as an application for judicial review under the Judicature Amendment Act 1972. Section 75 envisages that the review will be dealt with expeditiously. That principle has been applied to this application.

[11] The essence of the plaintiff’s claim is encapsulated in this paragraph from

11. At the heart of the plaintiff’s claim is the wrongful concatenation of the right of the media to report evidence given at the inquest, and a contended adjunct, their ability to publish the evidence as a result. There is an assumption that the absence of a suppression order positively prohibiting publication is the presence of a right to publish what is otherwise protected property.

[12] Briefly stated, the plaintiff’s submission is that, in giving the directions contained in paragraphs 28 and 29 of his minute of 25 July, the Coroner was required to go through two exercises, each with different tests. The first was to consider whether the making public of the photographs, produced in evidence at the inquest, should be prohibited under s 74. The second was to consider whether access to a digital copy of the photographs, as part of the Court record, should be granted to TVNZ. That required a different legal test, which the Coroner did not identify and apply. The plaintiff submits that the Coroner conflated the exercise of the two

[13] The plaintiff does not challenge the decision to revoke the s 74 prohibition. Rather, the plaintiff asserts that the absence of a prohibition under s 74 does not of itself give any person, in this case TVNZ, possession of copies of the photographs which have been produced as exhibits. He submits that the Coroner’s ruling recognised that, through the direction he gave at paragraph 29. The plaintiff’s contention is that in considering whether to permit copies of the photographs to be given to the media, considerations other than those in s 74 were relevant and ought to have been addressed by the Coroner. The plaintiff submits that the test to be applied by the Coroner on that issue is governed by the inherent powers of the Coroner to be exercised in a manner analogous with the Criminal Procedure Rules

2012 (the Rules). The Rules are said to be relevant by analogy, because s 117(1) of the Act provides that a Coroner has the same powers as a District Court Judge exercising jurisdiction under the Criminal Procedure Act 2011. Part 6 of the Rules regulates access to Court documents. Rule 6.6 deals with access to documents during proceedings. It requires a request for access, which is to be referred to a Judge. The Judge must take into account the matters listed in r 6.10. Those matters include, the plaintiff submits, the protection of the plaintiff’s intellectual property rights in the photographs.

[14] The purposes of an inquiry under pt 3 of the Act are set out in s 57. Those purposes need to be read together with the overall purpose of the Act set out in s 3. There is no express provision that an inquiry is, or is not, to be held in public, except that under s 85(1) an inquest held in the course of conducting an inquiry must be held in a place that is open to the public. That is subject to three specific

If satisfied that it is in the interests of justice, decency, public order, or personal privacy to do so, a coroner may prohibit the making public of—

(a) any evidence given or submissions made at or for the purposes of any part of the proceedings of an inquiry (for example, at an inquest); and

(b) the name, and any name or particulars likely to lead to the identification, of any witness or witnesses.

[15] That section applies to all stages of the inquiry process, including the holding of an inquest. The default position is that evidence at an inquest will be made public, unless an order prohibiting that is made. The Coroner’s initial order prohibited the making public of all of Mr Walker’s photographs. Paragraph 28 of the Coroner’s later direction excluded the four photographs in issue from that order. That later direction was given because the Coroner was satisfied that it is no longer in the interests of justice, decency, public order, or personal privacy to continue the prohibition in respect of those photographs.

[16] I do not accept the submission that a two stage process, involving both s 74 and (by analogy) r 6.6, is required before copies of documents which have been produced as exhibits at the inquest can be made available, as part of the evidence. Because every inquest must, under s 85, be open to the public, it follows that any evidence given at an inquest is also open to the public. The evidence includes exhibits produced at the hearing. The making of arrangements to facilitate public access in accordance with s 85 is an administrative matter, not requiring a further exercise of judicial discretion. A person seeking to exercise that public access need not make a request for access which must be separately considered by the Coroner.

[17] The two stage process contended for would lead to the possibility of conflicting decisions under s 74 and r 6.10. The criteria in those two provisions are different. Counsel for the plaintiff relies upon that difference to support the submission that separate tests must be applied. That might mean that an exhibit forming part of the evidence which does not justify a prohibition, on the application of the s 74 test, might justify a refusal of access, on the application of the test in r 6.10. I do not find that submission supportive of the proposition that two separate exercises of discretion are required. Rather, I consider that it points to the contrary conclusion. The potential incongruity of decisions over the extent of public access, in my view, points strongly against the proposition that two separate decisions are required. The public has access, as of right, to evidence presented at a public inquest, unless prohibited under s 74. The exercise of that right of access is not subject to the restrictions which apply to other coronial documents under s 29 of the Act, or to the inspection and copying of court records which have not been produced in open court.

[18] The Copyright Act 1994 deals expressly with the use of copyrighted material for the purposes of legal proceedings. Under ss 59 and 60 of that Act, copyright is not infringed by anything done for the purposes of, or of reporting, judicial proceedings, or the proceedings of public inquiries. Those provisions address, and resolve, the different interests of the holder of copyright, and the public, in respect of copyrighted material which forms part of the evidence given in proceedings to which those sections apply. They prescribe the copyright consequences of the admission of evidence at a public hearing. Those specific provisions mean that copyright will not generally be a relevant consideration in applying the “interests of justice” or “personal privacy” limbs of the s 74 test.

[19] A Coroner who conducts an inquiry has a broad discretion, to be exercised in accordance with the Act, as to what evidence is given at an inquiry (including an inquest).³In exercising that discretion in this case, the Coroner has decided, adopting the suggestion of TVNZ, that only four of the photographs taken by Mr Walker before the request from police are to be admitted in evidence. That means that, for all other photographs, Mr Walker’s copyright will subsist, unaffected by ss 59 and 60 of the Copyright Act 1994. There is no challenge to that aspect of the Coroner’s decision.

[20] There is a power, under s 120 of the Act, to require a person to supply information or documents. No s 120 notice was issued. Mr Walker was summoned to attend and give evidence at the inquest under s 117(3)(c) of the Act, but the photographs were not produced by him pursuant to that summons. They were produced by the police, to whom Mr Walker had earlier given the photographs. If the photographs had been required under a s 120 notice, the only grounds for refusing to comply with that notice would be those in s 121(2). Copyright does not confer a “privilege or immunity” preventing a witness from giving evidence, under s 121(2)(a). Copyright is not a matter likely to “prejudice the maintenance of the law”, under s 121(2)(c), because the law specifically provides the copyright consequences of the production of a document at a public hearing. Copyright is

_{therefore not a ground for refusing to produce a document under
compulsion. That}

reinforces the conclusion that copyright is not a relevant consideration for the making public of evidence which is voluntarily produced.

[21] Because of my decision that pt 6 of the Rules does not apply by analogy in this case, I need not consider whether copyright is a relevant consideration in considering a request for access under the Rules to documents on the Court file but not in evidence.

[22] I add for completeness that nothing in this decision is intended to express any view on whether, when copies of the photographs are made available to any media organisation, any use of them will be protected by ss 59 and 60 of the Copyright Act

1994. That will need to be determined in the circumstances which arise. [23] The application for review of the Coroner’s decision is dismissed.

[24] So that Mr Walker’s right of appeal against this judgment is not rendered nugatory, I direct that the postponement in paragraph 30 of the Coroner’s ruling of

28 July 2014 is extended to 5 pm on 4 November 2014. If, before then, an appeal is filed and served, the postponement is further extended until further order of the Court of Appeal.

High Court of New Zealand Decisions

Walker v Coroners Court at Wellington [2014] NZHC 2645 (28 October 2014)