R v Milner [2015] NZHC 939 (6 May 2015)

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R v Milner [2015] NZHC 939 (6 May 2015)

Last Updated: 14 May 2015

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2011-009-012580 [2015] NZHC 939

THE QUEEN

v

HELEN ELIZABETH MILNER

Judgment: 6 May 2015

JUDGMENT OF GENDALL J (Access to Court Documents)

The application

[1] Ms Lee-Ann Cartier (Ms Cartier) the sister of the deceased in this matter, Mr Phillip Nisbett, applies to this Court for “release of all documents and files” held in respect of the trial of Ms Helen Milner (Ms Milner) on one count of attempted murder and one of murder.¹ Ms Milner had appealed that conviction and her sentence to the Court of Appeal but this appeal was dismissed. Ms Milner then sought leave from the Supreme Court to appeal that Court of Appeal decision, but that leave was refused.

[2] The stated grounds on which Ms Cartier now seeks access to the documents and files are:

(a) As a victim, access to the information is required to help her move forward by understanding the proceedings in their entirety, and that to

_{do so should be within her rights.}

¹ _{R v Milner [2014] NZHC 233.}

R v MILNER [2015] NZHC 939 [6 May 2015]

(b) Permitting access is the humane thing to do and would accord with the spirit of open justice and the “developing culture within the Justice sector that is supportive and emphatic to the victims of crime”.

(c) The trial was heard in “OPEN COURT” which meant any person was at the time able to view and hear the trial and that the system of justice is founded on open justice.

[3] Ms Cartier has previously made a similar application.² Previously I declined that application on the primary basis that Ms Milner still had avenues of appeal open to her. That position has since substantially altered. The Court of Appeal as I have noted has dismissed Ms Milner’s convictions for murder and attempted murder.³

The Supreme Court then refused leave to appeal on the grounds set out in the notice of appeal, but left open the possibility of a new leave application on the strength of fresh evidence.⁴ The Supreme Court in its decision also made mention of the possibility of a rehearing in the Court of Appeal if fresh evidence comes to light and an application for exercise of the Royal Prerogative of Mercy.⁵

[4] As Ms Milner’s appeals were unfolding at an appellate level, applications were made to access the Court file. In minutes dated 19 August 2014 and 25 August

2014 in the Court of Appeal, Ellen France J permitted a Mr Bayer to have access to copies of submissions and to read (but not be furnished with a copy) of the notes of evidence.⁶ Mr Glover, counsel for Ms Milner, prior to delivery of the Supreme Court’s judgment, also raised concerns over a television series which it seems is tangentially connected to this application.⁷ I take that aspect no further here however.

[5] On the present application before the Court, the Crown’s position is that it

_{would be unobjectionable to provide relevant information to Ms Cartier. It says that}

² _{R v Milner HC Christchurch CRI-2011-009-12580, 13 May 2014 (Ruling).}

³ _{Milner v R [2014] NZCA 366.}

⁴ _{Milner v R [2015] NZSC 38.}

⁵ _{Crimes Act 1961, s 406.}

6. Milner v R CA120/2014, 19 August 2014 (Minute); Milner v R CA120/2014, 25 August 2014 (Minute).

⁷ This was addressed in a minute delivered by the Supreme Court on 23 April 2015: Milner v R

SC88/2014, 23 April 2015 (Minute).

while Ms Milner may be seeking to pursue other avenues to attack her conviction, these are unlikely to come to fruition. However, the Crown’s position is specifically caveated as follows:

The Crown would be concerned if the information released were to [be] distributed wider than the immediate family of Ms Cartier. In particular the information should not be given to the media nor used for any purpose other than Ms Cartier requests. Any publishing of the information may affect fair trial rights in the unlikely event of a re-trial.

[6] Mr Glover, for Ms Milner, remains steadfast in his opposition to components of the file being released at all.

[7] Before addressing the present application, I also note that a Thomas Robins from KHF Media has sought to access the Court file for the purpose of writing a screenplay concerning “the Helen Milner case”. Mr Robins states:

Before I begin to write the screenplay I want to ensure that I have the facts of the case correct, for all parties concerned. In particular I am seeking access to the court transcripts and the summary of facts of the case. Indeed any information on this case will allow me to write this dramatic story in a way that is sensitive to those concerned whilst also enabling me to be factually accurate.

[8] I am unsure of the status of this application. It is not before me here. On this basis at this point I will not consider it further here.

Resolution

[9] On this access application generally, I traversed the substantive legal position in my earlier minute, noted at [3] above, and do not purport to undertake the same task again. I proceed on the basis that Part 6 of the Criminal Procedure Rules 2012 applies. My decision accords with those principles.

[10] This proceeding has progressed to a point where I consider it appropriate to permit Ms Cartier access to certain documents from the Court file. In particular, I think the principle of open justice and the freedom to seek information play an important role in the present application.

[11] As to fair trial concerns, the impartiality of both the appellate courts and the Governor-General is beyond reproach. Permitting Ms Cartier access to documents will have no bearing upon any decision that is required to be reached by the Court of Appeal, the Supreme Court or the Governor-General. Given the lengthy appeal processes that have been undertaken to date, in the unlikely event that a re-trial were

to be ordered in the future, fair trial risks can be adequately managed in my view.⁸

[12] I therefore grant Ms Cartier access to the following documents: (a) Summary of facts;

(b) Submissions of the Crown and Defence; (c) The Court Transcript of the jury trial; and

(d) My summing up for the trial and all submissions, judgments and minutes issued in relation to the trial and sentence, including my sentencing notes.

[13] Certain other documents from the file are not to be disclosed at this stage. In particular, when disclosing the above information, Registry should be particularly diligent to avoid disclosing:

(a) Expert psychological reports;

(b) Photographs, although leave is reserved at this point for Ms Cartier to make a further application for access to the Court record photographs if required.

_{(c) Third party references or material provided in confidence to the Court.}

⁸ I say unlikely as at this point because there is no live application before the Court, appeal rights have been exhausted, and the only appeal avenue remains a fresh leave application to the Supreme Court or seeking a rehearing in the Court of Appeal.

[14] I see no good reason why the restrictions suggested by the Crown as noted at [5] above should be imposed, given the stage this matter has reached and the highly unlikely event of any re-trial here.

Outcome

[15] Ms Cartier’s application to access Court documents is granted. The information to which she shall be permitted access is set out at [12] above subject to the matters noted at [13] above.

[16] I grant leave for any interested party to come back to the Court on 24 hours notice if any concerns arise with compliance.

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

Gendall J

Solicitors:

Raymond Donnelly & Co, Christchurch

Rupert Glover, Christchurch

Copy to Defendant