A v Police [2018] NZHC 2586 (3 October 2018)

Last Updated: 5 November 2018

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CRI-2018-485-61 [2018] NZHC 2586

	BETWEEN	A Appellant
On the papers	AND	NEW ZEALAND POLICE Respondent

Counsel :	E A Hall for Appellant Crown Law Office for Respondent T C Goatley and H Young for NZME. Publishing Ltd
Judgment:	3 October 2018 at 11.30 am

JUDGMENT OF GRICE J (Application by media for access to documents)

[1] NZME. Publishing Ltd (NZME), is the publisher of the New Zealand Herald, Herald on Sunday and other media publications. On 6 August 2018, it applied to revoke interim suppression of A’s name in proceedings in the District Court. It was granted.¹ A has appealed the order revoking name suppression.

[2] The appeal is due to be heard on 9 October 2018 in this court. NZME will be represented by counsel. It supports the revocation of interim name suppression. It anticipates it will be necessary to address the nature of the appeal rights and it says the issues on appeal may be different to those which arose at the first instance.

¹ New Zealand Police v A CRI-2018-096-001277, Minute of Judge A I M Tompkins dated 6 August

_2018.

A v NEW ZEALAND POLICE [2018] NZHC 2586 [3 October 2018]

[3] NZME has applied for access under r 11 of the Senior Court (Access to Court Documents) Rules 2017 for access to any documents filed in relation to this appeal. This includes, but is not limited to the following documents:

(i) Notice of appeal;

(ii) Memorandum of reply;

(iii) Submissions and authorities and evidence filed by the parties;

(iv) All relevant judgments, decisions and rulings of any Court;

(v) The affidavit evidence (if any) filed in support of the now revoked interim suppression order.

[4] NZME says receipt of that material is essential for the timely filing of submissions in opposition and integral to the proper exercise of NZME’s right to be heard under s 210 of the Criminal Procedure Act 2011. This provides:

210 Standing of members of media

(1) This section applies to—

(a) a person who is reporting on the proceedings and who is either subject to or employed by an organisation that is subject to—

(i) a code of ethics; and

(ii) the complaints procedures of the Broadcasting

Standards Authority or the Press Council; and

(b) any other person reporting on the proceedings with the permission of the court.

(2) A person to whom this section applies has standing to initiate, and be heard in relation to, any application for a suppression order, and any application to renew, vary, or revoke a suppression order.

[5] Section 283 of the Criminal Procedure Act 2011 deals with the right of audience on appeal, and provides:

283 Right of appeal against decision on suppression order

(1) A person specified in subsection (2) may appeal under this subpart to the first appeal court against a decision of a court—

(a) to make or refuse to make a suppression order; or

(b) to renew, vary, or revoke a suppression order under section 208. (2) The persons who may appeal are—

...

(c) a member of the media to whom section 210(1) applies.

[6] NZME undertakes to receive the documents set out in [3] above for the purposes of the hearing only and not publication. Any specific issues as to non- publication will be dealt with at the hearing.

[7] The NZ Police do not oppose the application.

[8] A, through Ms Hall, says:

(a) Members of the media falling within the definition of s 210 of the Criminal Procedure Act 2011, have the right to bring a first appeal against a decision in relation to a suppression order.

(b) This opportunity be heard on appeal is available notwithstanding that the newspaper was not a party to the appeal.²

(c) The clear intention of the Criminal Procedure Act 2011 was to expand the rights of the media by conferring express statutory rights in addition to the ability to seek leave from the Courts.³

(d) It accepts that the Court may hear from NZME.

[9] A, however, says the police are represented by the Crown and the arguments that would be made by the media are well known to the Crown and the defence. In

² Robertson v New Zealand Police [2015] NZCA 7.

³ Robertson, above at n 2, at [29].

addition, Ms Hall says the application for name suppression was an interim one not a final name suppression. The matter is still before the District Court. The next stage is a sentencing indication on 1 October 2018.

[10] A submits that NZME ought not to be granted access to inspect the court file other than the judgment, decisions and the ruling of any court as well as the notice of appeal and submissions.

[11] A is concerned about sensitive materials which may be traversed in affidavit evidence, given that the matter is still before the Court for determination. A says the media ought to be restricted in their review of that material, or at least if access is permitted it should be with suppression of any publication of the material until further orders.

[12] There are two affidavits filed. One by A and the other is from a colleague of

A’s. Both go directly to the issues in the appeal.

[13] In the circumstances, it would be difficult for NZME to make informed submissions without viewing those affidavits. Accordingly, I am of the view that, subject to conditions, it should have access to those for the purposes of the hearing. The issues raised by Ms Hall as to the affidavits may be addressed by appropriate conditions.

[14] Ms Hall for A suggested that if the affidavits were to be made available to NZME, there should be a restriction on NZME and a suppression on publication until the ambit of any suppression orders may be explored. I propose putting those restrictions on NZME’s access to the affidavit evidence.

[15] I direct that NZME be granted immediate access to the following documents:

(a) Notice of appeal;

(b) Memorandum of reply;

(c) Submissions, authorities and evidence filed by the parties (both in relation to the District Court proceedings and the appeal);

(d) All relevant judgments, decisions and rulings of any Court; and

(e) Affidavit evidence filed in support of the now revoked interim suppression order.

[16] The documents are subject to the following conditions:

(a) they be used only for the purposes of the hearing of the appeal; and

(b) are not to be published until further order of the Court.

[17] As the submissions of A and NZ Police have been timetabled and should have by now been filed, I direct that NZME file and serve written submissions together with copies of any authorities referred to by midday on 8 October 2018.

Solicitors:

Crown Law Office, Wellington

Bell Gully, Auckland

Grice J