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High Court of New Zealand Decisions |
Last Updated: 6 July 2018
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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
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CIV-2017-404-2149
[2018] NZHC 1561 |
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UNDER
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The Criminal Proceeds (Recovery) Act 2009
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BETWEEN
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COMMISSIONER OF POLICE
Applicant
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AND
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WAYNE STEPHEN DOYLE
First Respondent
HARATA RAEWYN PAPUNI
Second Respondent
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Hearing:
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On the papers
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Counsel:
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MR Harborow and MJ Hammer for applicant
RM Mansfield and SR Lack for respondents and interested parties
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Judgment:
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27 June 2018
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JUDGMENT OF FITZGERALD J
[As to media access to Court file]
This judgment was delivered by me on 27 June 2018 at 3:30 pm, pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Date...............
Solicitors: Meredith Connell, Auckland To: Dominion Law, Auckland
Commissioner of Police v Doyle [2018] NZHC 1561 [27 June 2018]
Introduction
[1] Mr Savage, who reports for the New Zealand Herald, has applied to access several affidavits filed in these proceedings. The Commissioner of Police consents to the release of the affidavits (subject to certain suppression orders). The respondents and interested parties oppose the application.
[2] The proceedings have been brought under the Criminal Proceeds (Recovery) Act 2009. Restraining orders have now been made by consent. A forfeiture application has not, to date, been filed. There is also a prospect of a criminal proceeding being brought by the Ministry of Social Development.
[3] The issue for determination is whether access should be given to any of the affidavits sought in the present circumstances, and if so, on what terms.
Background
[4] The Commissioner of Police initially sought restraining and examination orders on a without-notice basis. Those applications were granted by Venning J on 22 September 2017.1 On-notice applications were then filed and served on the respondents and interested parties. Though initially opposed, Powell J granted the applications by consent on 3 May 2018. The Commissioner has indicated a forfeiture application may be pursued but it is yet to be filed. The respondents deny the assertions advanced by the Commissioner and confirm their intention to oppose forfeiture, if or when it is applied for.
[5] Mr Savage first applied to access certain documents on the Court file after Venning J granted the initial orders. On 8 December 2017, Palmer J declined that request, but granted access to Venning J’s judgments dated 22 September 2017, which were available as of right.2 That access was subject to ongoing suppression orders. Palmer J allowed applications for access to be renewed after 27 April 2018 — by which point the respondents were expected to have filed affidavits in opposition to the
2 Commissioner of Police v Doyle [2017] NZHC 3049.
on-notice applications. As it happens, no such affidavits were filed, as the matter was resolved by consent.
The application
[6] Mr Savage seeks access to the affidavits which provided evidence in support of the restraining orders initially granted by Venning J, together with any affidavits filed by the Police subsequent to the without-notice orders granted by his Honour. Mr Savage also seeks access to any affidavits filed on behalf of Mr Doyle in opposition to the application for restraining orders though, as noted above, none were actually filed.
[7] Mr Savage’s application contends the nature of these proceedings attract significant public interest, such that access ought to be granted to enable research for a potential news story. Mr Savage advances his application on the basis that the principle of open justice applies.
[8] Mr Savage notes the Ministry of Social Development investigation, and suggests that if required, access be declined to affidavits given by Ministry of Social Development staff, to protect Mr Doyle’s fair trial rights.
The parties’ positions
[9] Subject to certain issues of suppression, the Commissioner consents to the release of the available affidavits. The Commissioner submits the proceedings have moved on since Palmer J issued judgment and the material sought is no longer “untested”. Given the real and legitimate public interest in the proceedings, and the deterrent purposes of the Criminal Proceeds (Recovery) Act 2009,3 the Commissioner submits the affidavits should be made available.
[10] The respondents are opposed to the application for three principal reasons:
3 See s 3(2)(b).
(a) first, the proceedings are at an early stage and, in advance of discovery, the respondents have had little opportunity to learn of or respond to the Commissioner’s allegations;
(b) second, there will be opportunities to report on the proceedings if the Commissioner advances a forfeiture application, at which time the respondents will have the ability to respond fully to the allegations; and
(c) third, as the Ministry of Social Development is investigating whether to bring criminal charges, reporting may prejudice fair trial rights.
Legal framework
[11] There is no general right to access the affidavits in question, as they do not form part of the formal court record.4 Permission to access them is therefore discretionary and a Judge may grant the request in whole or in part, subject to any conditions thought necessary.5 The following matters to be considered under r 12 of the Senior Courts (Access to Court Documents) Rules 2017 (“Rules”) are relevant in this case:
(a) the orderly and fair administration of justice:
(b) the right of a defendant in a criminal proceeding to a fair trial:
(c) the right to bring and defend civil proceedings without the disclosure of any more information about the private lives of individuals, or matters that are commercially sensitive, than is necessary to satisfy the principle of open justice:
(d) the protection of other confidentiality and privacy interests (including those of children and other vulnerable members of the community) and any privilege held by, or available to, any person:
(e) the principle of open justice (including the encouragement of fair and accurate reporting of, and comment on, court hearings and decisions):
(f) the freedom to seek, receive, and impart information:
[12] A Judge may also take into account other matters considered relevant.6
4 Senior Courts (Access to Court Documents) Rules 2017, r 8.
5 Rule 11(7).
6 Rule 12(h).
[13] Rule 13 sets out the approach to be adopted to balancing the matters to be considered under r 12:
(a) Prior to a substantive hearing of a case, “the protection of confidentiality and privacy interests and the orderly and fair administration of justice may require that access to documents be limited”.7
(b) Conversely, during the substantive hearing phase, the principle of open justice has greater weight than at other stages of the proceeding, and greater weight in relation to documents relied on in the hearing than other documents.8
(c) After the substantive hearing, open justice has greater weight in relation to documents that have been relied on in a determination than other documents, but the protection of confidentiality and privacy interests have greater weight than would be the case during the substantive hearing.9
Discussion
[14] Palmer J observed that the starting point in determining Mr Savage’s earlier application for access was the principle of open justice.10 Though the principle is “fundamental to the common law system of civil and criminal justice”,11 it nonetheless may be departed from “to the extent necessary to serve the ends of justice”.12
[15] The present application seeks access to material on the Court file (well) prior to the substantive hearing phase. As such, the principle of open justice is only one of several factors to be taken into account pursuant to r 12. Further, r 13 highlights that
8 Rule 13(b).
9 Rule 13(c).
10 Commissioner of Police v Doyle [2017] NZHC 3049 at [13]. 11 Erceg v Erceg [2016] NZSC 135, [2017] 1 NZLR 310 at [2]. 12 At [3].
the principle of open justice will attract varying degrees of weight at different stages of a proceeding, having the greatest weight during the substantive hearing phase. As the Court of Appeal observed in Greymouth Petroleum Holdings Ltd v Empresa National Del Petróleo, the principle of open justice has less weight prior to the substantive hearing phase.13
[16] The Commissioner submits the proceeding “has moved on” since Palmer J declined the earlier access. From a purely procedural perspective that is true, but in my view the concerns expressed by the Judge continue to apply. Palmer J said:14
- [17] However, I do not consider the affidavits filed by the Commissioner should be made available yet. They contain untested and unanswered allegations and could give an unbalanced impression of the issues and facts involved in the proceeding if made available without the affidavits in response. They also contain information that may be relevant to the potential criminal charges referred to by the Commissioner. That information, unanswered and untested, may detrimentally affect the first respondent’s fair trial rights.
[17] The only substantive change in the proceeding since those observations were made is the resolution of the applications for restraining and examination orders by consent. That resolution, however, did not involve the respondents filing affidavit evidence. Nor did it involve the respondents passing comment on the truth or falsity of the allegations contained in the affidavit evidence for the Commissioner. As noted, the respondents deny the allegations advanced by the Commissioner. Rather, the respondents’ approach to the restraining orders (which are interim in nature) was a pragmatic approach, preserving their ability to challenge the Commissioner’s allegations in the context of a forfeiture application. As such, given the respondents have not challenged the applications, there is no “active dispute” before the Court.15 For these reasons, I accept the respondents’ submission that, in reality, the allegations remain untested and there is an ongoing risk they may give an unbalanced impression of the issues and facts involved.
14 Commissioner of Police v Doyle [2017] NZHC 3049.
15 See Whata J’s observations to this effect in judgment concerning a similar request for access in
Commissioner of Police v Borlase [2017] NZHC 2753.
[18] There is also an ongoing risk to fair trial rights. Counsel for both parties acknowledge the possibility that criminal charges may be laid. Nothing to date has reduced the risk identified by Palmer J.
[19] Finally, I do not accept the Commissioner’s submission that access ought to be granted in order to advance the deterrent purpose of the Criminal Proceeds (Recovery) Act 2009. That deterrent purpose, particularly when viewed in the context of those matters set out in r 12 of the Rules and the approach mandated by r 13, is suitably advanced by it being known that restraining orders were sought by the Commissioner and have been granted. Access to the detailed affidavit evidence filed in support of the applications is not required for that purpose.
Conclusion
[20] The application is accordingly dismissed. Further applications may be made in relation to the same material when or if further orders are applied for, or if there are variations to the existing orders — provided the concerns raised by Palmer J and reiterated here are alleviated by the circumstances of any new application.
Fitzgerald J
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