Commissioner of Police v Larsen

[2015] NZHC 1728

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CIV-2015-419-199 [2015] NZHC 1728

UNDER

the Criminal Proceeds (Recovery) Act

2009

BETWEEN

THE COMMISSIONER OF POLICE Applicant

AND

CHRISTINE MARY LARSEN First Respondent

KARINA RAEWYN LARSEN Second Respondent

Hearing:	On the papers
Appearances:	T C Tran for applicant D S Quinn for respondents
Judgment:	27 July 2015

JUDGMENT OF WOODHOUSE J [application for access to Court documents]

This judgment was delivered by me on 27 July 2015 at 4 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

THE COMMISSIONER OF POLICE v LARSEN [2015] NZHC 1728 [27 July 2015]

[1]      The  New  Zealand  Herald  newspaper  has  requested  access  to  all  of  the documents on file in this proceeding. The reasons given in the request are:

Open justice and public interest.  The defendants [sic] have pleaded guilty to charges under the Health Practitioners Competence Assurance Act.

[2]      The  applicant  in  this  proceeding,  the  Commissioner  of  Police,  takes  “a

neutral position” on the request.

[3]      The respondents oppose the request.  Their grounds of opposition are set out in a reasonably comprehensive memorandum from their counsel.  For reasons I will come to, I do not intend to refer to any of the detail in this memorandum.  However, the New Zealand Herald is entitled to a copy of the memorandum on condition that its contents are not published, or otherwise made publicly available, pending further order of this Court.   I am unsure whether the solicitors for the respondents have served a copy of the memorandum on the New Zealand Herald.  If not, it should be served.

[4]      The request is to be determined in accordance with rr 3.5 to 3.16 of the High

Court Rules and, in particular, rr 3.9 and 3.16.

[5]      The central consideration on this application is the provisions of r 3.16.  This rule directs the Court to consider the nature of, and the reasons for, the request for access to the documents, and to take into account six matters that are specified.  One of those matters is expressed as follows:

The  principle  of  open  justice,  namely,  encouraging  fair  and  accurate reporting of, and comment on, court hearings and decisions:

[6]      The Court of Appeal in Schenker v Commerce Commission considered the application of r 3.16 in some detail.1  This was on an appeal from this Court against a decision of Asher J  declining a request by a non-party for access to  the Court

documents.2     The nature of the proceeding in that case, and the reason for the

1      Schenker v Commerce Commission [2013] NZCA 114.

2      Commerce Commission v Air New Zealand Ltd [2012] NZHC 271.

request, were both quite different from the proceeding in this case and the reasons for the request.  However, the principles stated by the Court of Appeal, in upholding the High Court’s decision, do of course apply. The Court of Appeal held that none of the six matters listed in r 3.16 has a particular priority over any other matter.  This means, as a matter of construction of the rule, that the principle of open justice, being the third matter in the list in r 3.16, does not have any particular priority.  As the Court said, “the relevance and weight to be given to each matter will depend on the context of the particular request under r 3.9”.

[7]      For  two  essential  reasons  I  have  concluded  that  the  request  should  be declined at this stage, but the New Zealand Herald is entitled to make a further request in circumstances I will outline.

[8]      The first reason is that I am satisfied that the respondents, at this stage of the proceeding,  are entitled  to  confidentiality for the reasons  recorded  in  paragraph

3(d)(ii) of their memorandum. This proceeding is one where respondents are entitled to seek to reach an agreement with the Commissioner of Police.   The Criminal Proceeds (Recovery) Act 2009 makes express provision for this.  Publicity given to matters contained in the Court documents in this proceeding could jeopardise that entirely legitimate objective.

[9]      The second reason for declining the request at this stage is that one of the reasons for the request is the fact that the respondents have pleaded guilty to charges under the Health Practitioners Competence Assurance Act.  That fact is correct, but those charges, although clearly relevant to the present proceeding, do arise in an entirely separate criminal proceeding.   The present proceeding is a civil one with considerations relevant to access to Court documents being different from those that arise in a criminal proceeding, and whether or not the defendants in the criminal proceeding have pleaded guilty.

[10]     Although I am declining the request at this stage of this proceeding, the request is an entirely proper one and provision needs to be made, as I indicated earlier, for a further request for access to the Court documents.   There is no information available to me as to the amount of time that may be required for the

respondents to seek to come to arrangements with the Commissioner of Police.  But given the nature of what is involved it may take some months rather than weeks.  I will therefore make an order on terms allowing for this uncertainty.

Result

[11]     The request of the New Zealand Herald for access to the Court documents in this proceeding is declined at this date.

[12]     The New Zealand Herald has leave to make a further request at the expiration of two months from the date of this judgment.

[13]     If there is a further request for access to the Court documents, whether by the

New  Zealand  Herald  or  by another  non-party,  any  continued  opposition  by the respondents must be supported with affidavit evidence.

Woodhouse J

Solicitors:

Almao Douch, Hamilton
Purnell Jenkison Oliver, Thames

Copy to:

The New Zealand Herald