APN New Zealand Limited v Banks [2014] NZHC 915 (6 May 2014)

Last Updated: 6 May 2014

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2012-085-009093 [2014] NZHC 915

APN NEW ZEALAND LIMITED

v

_{JOHN ARCHIBALD BANKS}

Hearing:	2 May 2014
Appearances:	D Fisher in Person D Jones QC for the Respondent P Dacre QC for the Crown
Judgment:	6 May 2014

[RESERVED] JUDGMENT OF WYLIE J (Media application)

This judgment was delivered by Justice Wylie on 6 May 2014 at 11.30 am

Pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

_Date:

APN NEW ZEALAND LIMITED v BANKS [2014] NZHC 915 [6 May 2014 ]

[1] The defendant, the Honourable John Banks, faces one count of transmitting a return of electoral expenses, knowing it to be false in a material particular. The charge is brought pursuant to s 134 of the Local Electoral Act 2001, as it stood in

2010.

The Application

[2] On 15 April 2014, Mr D Fisher, a senior writer for the New Zealand Herald, which paper is published by the applicant, APN New Zealand Limited, sought an order under the Criminal Proceedings (Search of Court Records) Rules 2009, allowing him to search, inspect and copy “a document on the court file”.

[3] The application was forwarded to Mr Jones QC, as counsel for the respondent, Mr Banks, and to the Crown. On 17 April 2014, the Crown indicated that it would abide the decision of the Court, subject to one condition relating to the publication of a prospective witness’ name. On 23 April 2014, Mr Jones filed a memorandum, opposing the application.

[4] On 28 April 2014, I issued a minute advising that I was not prepared to deal with the application on the papers, directing Mr Fisher to identify what document(s) on the court file he wished to search, and instructing the Registrar to set the application down for an oral hearing.

[5] Mr Fisher filed a memorandum identifying the documents he wishes to search and copy on 30 April 2014. He indicated that he wishes to inspect and copy all of the various documents that were referred to in my reserved judgment dealing with Mr Banks’ s 347 application which issued on 7 April 2014. He also seeks to inspect and copy all other materials on the court file filed since the committal hearing in October 2013, to date.

[6] The oral hearing was held on 2 May 2014.

Submissions

[7] Mr Fisher filed comprehensive written submissions, and he spoke to those submissions. He noted that there has been no restriction on publication in these proceedings to date and suggested that there can be no fair trial concerns, given that the trial will be heard by me sitting as a Judge alone. He argued that there is no risk to the orderly and fair administration of justice in the matter being fully reported, and that the media have a right to seek, receive and impart information, pursuant to the New Zealand Bill of Rights Act 1990. He submitted that there is no reason in principle why the background to this case should not be fully reported. He put it to me that it is in the interests of open justice that the Court should exercise its discretion and grant the application.

[8] Mr Jones submitted that there is no legitimate reason why access to the court documents should be allowed at this time. He agreed with Mr Fisher that the media, including the New Zealand Herald, have been able to fully report on the proceedings to date. He argued that, at trial, the documents that are the subject of the application are likely to be traversed either in whole or in part in open Court. He submitted that, subject to any restrictions I may then impose, the media will be free to report on the proceedings as they unfold in court, and that this will necessarily be the most fair, accurate and balanced record of the proceedings that is available. He submitted that should the New Zealand Herald now be given access to the documents sought, there is a risk that fair and accurate reporting of the trial could be undermined. It was his overall submission that the orderly and fair administration of justice, and the principle of open justice, namely to encourage fair and accurate reporting of trials, outweigh other considerations in this case, and that the application should be declined.

Analysis

[9] This application is governed by the Criminal Proceedings (Access to Court Documents) Rules 2009. The documents sought comprise, primarily, witness statements obtained either by the police, or by a Mr McCready, when he was seeking to obtain Mr Banks’ committal through a company known as New Zealand Private

Prosecution Services Limited. Mr Fisher is also seeking access to the transcript of

Mr Banks’ audio interview by the police.

[10] The documents sought go beyond the “formal court record”, as those words are defined in r 3 of the relevant rules. There is no general right of access to them. Rule 8 does not apply. Nor does r 9. Rather, the permission of the court is required. The application has properly been brought pursuant to r 13. Mr Fisher has identified the documents sought by him, insofar as he is able to do so, and he has given reasons for his application. Pursuant to r 14(1), I may refuse the application, or grant it either in whole or in part, either with or without conditions.

[11] Rule 16 sets out the matters I must take into account. Relevantly, it provides as follows:

16 Matters to be taken into account

In determining an application under rule 13... or the determination of an objection under those rules, the Judge... must consider the nature of, and the reasons for, the application or request and take into account each of the following matters that is relevant to the application, request, or objection:

(a) the right of the defendant to a fair hearing: (b) the orderly and fair administration of justice:

(c) the protection of confidentiality, privacy interests (including those of children and other vulnerable members of the community), and any privilege held by, or available to, any person:

(d) the principle of open justice, namely, encouraging fair and accurate reporting of, and comment on, trials and decisions:

(e) the freedom to seek, receive, and impart information:

(f) whether a document to which the application or request relates is subject to any restriction under rule 12:

(g) any other matter that the Judge, other judicial officer, or Registrar thinks just.

[12] In R v Burton,¹ Randerson J considered the approach to be taken under the

Rules and the r 16 criteria in respect of a media application for access to video surveillance footage that was produced during a trial. His Honour observed that r 16

¹ R v Burton HC Auckland CRI-2008-044-10515, 19 February 2010.

is intended to reflect the balancing approach taken under the earlier 1974 Rules, which was described by the Court of Appeal in R v Mahanga² and confirmed by the Supreme Court in Television New Zealand Ltd v Rogers.³

[13] The balancing approach was described in Mahanga in these terms:⁴

We conclude that the broad judicial discretion... is intended to be exercised by weighing the competing interests presented by any particular application. Any legitimate privacy concern raised by an accused person is one. The purpose for which access is sought, if known, may be relevant. The principle of open justice will often be important, especially when applications are made for access to Court records by the media. So will be the interests of administration of justice where there is a risk that they will be harmed by disclosure. In some cases fair trial rights may be affected and should be weighed. ...

[14] The principles of open justice and freedom to information were discussed in Rogers.⁵ McGrath J noted the importance of open justice as a critical safeguard in the operation of the criminal justice process. The ability of the public to attend, and the media to report on, what happens during criminal proceedings provide the transparency required to ensure that a trial has been conducted fairly. They also promote public confidence in the legal system. The media are entitled to rely on the

right to freedom of expression in reporting court proceedings. These principles, reflected in r 16(d) and (e), are required to be balanced with the other factors identified in the rule. While the relevant weight to be given to each factor will vary according to the facts, Tipping J observed that where the balance between competing factors is even, the importance of the principles of open justice and freedom to information means that the material in question should ordinarily be released.

[15] Once objection is taken to an application to access a court file, there is no particular onus. The broad judicial discretion must be exercised by weighing the competing interests presented by each individual application.⁶

[16] Against this background, I now turn to consider the respective arguments and the r 16 criteria.

² _{R v Mahanga [2001] 1 NZLR 641 (CA).}

³ _{Television New Zealand Ltd v Rogers [2007] NZSC 91, [2008] 2 NZLR 277 (SC) at [115].}

⁴ _{R v Mahanga, above n 2, at [32].}

⁵ _{Television New Zealand Ltd v Rogers, above n 3, at [117]–[121].}

⁶ Fairfax Media v Callaghan HC Auckland CRI 2010-004-17056, 15 July 2011 at [10].

Mr Banks’ right to a fair hearing

[17] I do not consider that Mr Banks would be deprived of a fair hearing in this Court were the application to be granted. The trial is to be heard by me, sitting as a Judge alone. There is no risk that a report in the media of the various documents on the court file could affect my views the one way or the other. I have already seen the documents in the context of Mr Banks’ application under s 347 of the Crimes Act

1961.

[18] While there is no risk that Mr Banks’ right to a fair hearing in this Court would be affected, there is, however, a risk that were access to be allowed and publication were to follow, Mr Banks would, in effect, have to face trial by the media, and on documents which have not yet been and may never be presented in Court. As Lord Reid observed in the United Kingdom as long ago as 1974:

[t]here has long been and there still is in this country a strong and generally held feeling that trial by newspaper is wrong and should be avoided.

This observation is equally appropriate in New Zealand and it continues to resonate, notwithstanding that it was made some 40 years ago.

The orderly and fair administration of justice

[19] A person charged with an offence is tried by the courts, and he or she is entitled to expect a fair and public hearing from an independent and impartial court. A defendant facing trial in a criminal matter can expect that his or her trial will be conducted in open court, and that, subject to any restrictions which may be imposed to protect fair trial rights, the media will report on the trial as it unfolds. It would not be helpful to the fair administration of justice if the media were to pre-empt a trial and fuel public debate by publishing prior to trial material which may never be presented in court, or which may be inadmissible.

[20] While it can be expected that responsible mass media will do their best to be fair, there is a risk that publication by less responsible media could be ill informed or slap dash. It might seek to influence the public. As Lord Reid observed, if people are led to think that it is easy to find the truth, disrespect for the processes of the law

could follow, and if the mass media are allowed to judge, unpopular people and unpopular causes will fare very badly.⁷

The protection of confidentiality, privacy interests, and privilege

[21] In the present case, much of the material on the court file was obtained by Mr McCready, when he was seeking to have Mr Banks committed. Understandably, the witness statements are not as sophisticated as one might expect, had they been obtained by the police. In some cases, there are multiple statements. For example, there are two witness statements from a potential Crown witness, Mr Hutchison; there is the transcript of the evidence he gave in the committal proceedings; there is an affidavit he filed following the judgment of Judge J P Gittos, given on 16 October

2013. Further, a number of the witness statements contain material which may be irrelevant, and which is, in some respects, confidential. There could well be objections to the admissibility at trial of some of the material if the Crown were to attempt to adduce it in evidence.

[22] The interests of third parties who have given witness statements should be respected, and protected.

[23] Further, were I to accede to the present application, the Court would lose control of the material requested. If the evidence will not form part of the Crown case, or may never be given in open court, then it should not be accessed by the media now.⁸

The principle of open justice

[24] The principle of open justice seeks to encourage the fair and accurate recording of, and comment on, trials and decisions.

[25] There can be no argument but that the principle of open justice has been well served to date in this case. No party has sought any significant restrictions on

_{publication to date. Indeed, somewhat unusually, and because this trial is to be}

⁷ _{Attorney-General v Times Newspapers Ltd [1974] AC 273 (HL) at 300.}

⁸ Fairfax Media v Callaghan, above n 6, at [30]–[31].

conducted before a Judge alone, my decision on the s 347 application was released to the media. Further, my minute in relation to Mr Banks’ application to obtain details of any prior convictions Mr Dotcom, who is a key Crown witness, may have, has been released to the media.

[26] There have been a large number of media applications in this case. Without objection by either party, all of those applications have been granted. Subject to Mr Banks’ fair trial rights, the public interest lies in having full access to my decision and to the court proceedings as and when they take place. Access will enable the media to fully report what takes place in Court. It will fulfil the principle of open justice, and encourage fair and accurate reporting of, and comment on, the trial.

[27] The public interest, however, lies in ensuring that evidence communicated to the court at trial is then communicated publicly.⁹ Access to and the publication prior to trial of untested, and, at least in part, potentially inadmissible material, does not serve the principle of open justice.

[28] I agree with Mr Jones, that at trial, evidence will be given in context; it will be tested by the parties, and its relative weight and importance will be explored. The reporting of the evidence given at trial will necessarily result in more fair, accurate and balanced reporting than would be possible if material on the court file were presented, out of context, to the public through the media prior to trial. As I have already noted, allowing access now to the court file and allowing publication of that material would carry an inherent risk of imbalance and inaccuracy.

The freedom to seek, receive and impart information

[29] The freedom to seek, receive and impart information enshrined in the

New Zealand Bill of Rights Act, while fundamental, is not unfettered. On occasion it needs to be curtailed.¹⁰

⁹ Attorney-General v Leveller Magazine Ltd [1979] AC 440 (HL) at 450; cited with approval in

_{Broadcasting Corporation of New Zealand v Attorney-General [1982] 1 NZLR 120 (CA) at 127.}

¹⁰ R v Burns (Travis) [2002] 1 NZLR 387 (CA); Gisborne Herald Co Ltd v Solicitor-General

[1995] 3 NZLR 563 (CA); Fairfax Media v Callaghan, above n 6, at [14].

[30] There is a high level of public interest in this proceeding. While I do not think that Mr Banks’ fair trial rights by a court are imperilled by this application, the high public interest, in my view, reinforces the need for fair, balanced and accurate reporting. For the reasons I have endeavoured to articulate above, that is best achieved if the media attends the trial, and reports on the evidence actually given at trial. That is the evidence against which Mr Banks will fall to be judged, not the material which is on the court file.

Restrictions under r 12

[31] This subparagraph has no application in the present case.

Other matters

[32] It is noteworthy that the New Zealand Herald, through Mr Fisher, made a request for a copy of the police interview of Mr Banks to the Ombudsman under the Official Information Act 1982. The Ombudsman recommended that a redacted statement be released to the Herald, and other parties seeking access to the same, once the court proceedings have been concluded. I cannot see any reason why that decision should be overtaken by a pre-emptive strike at this point. As I have already noted, in my judgment, were the requested material to be made available now, there is a risk that Mr Banks would have to face trial by the media, rather than by the court, and on material which may never be part of the case against him. In my clear view, that is inappropriate and unfair.

Result

_{[33] For the reasons I have set out, the application is declined.}

Wylie J