R v Exley

[2023] NZHC 3309

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

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

CRI-2022-035-121

[2023] NZHC 3309

THE KING

v

DAMON JOHN EXLEY

Hearing:

On the papers

Counsel:

J G Avia for Crown

S S Pohiva for Defendant

Judgment:

21 November 2023

JUDGMENT OF RADICH J

(Application for access to court documents)

[1]                 Damon Exley pleaded guilty to charges of unlawful taking of a motor vehicle1, burglary2 and escaping lawful custody.3 He pleaded not guilty to, but was convicted by a jury of, charges of abduction for the purposes of sexual connection,4 assault with a weapon5 and sexual violation by rape.6

[2]                 A journalist with Stuff has applied under the Senior Courts (Access to Court Documents) Rules 2017 (the Rules)  for  access  to  court  documents  relating  to  Mr Exley’s escape from prison.

1      Crimes Act 1961, s 226(1)(a).

2      Crimes Act, s 231(a).

3      Crimes Act, s 120(1)(a).

4      Crimes Act, s 208(1)(b).

5      Crimes Act, s 202C(1)(b).

6      Crimes Act, s 128.

R v EXLEY [2023] NZHC 3309 [21 November 2023]

[3]                 In this decision, I consider the request on the basis of the matters that are to be taken into account under rr 12 and 13 of the Rules.

The documents requested and the reasons for the request

[4]                 The documents to which access is sought are expressed in the following way in the application:

-The full summary of facts, which encompasses the charges related to Mr Exley’s prison escape – offending he pleaded guilty to before standing trial on rape and abduction charges.

-The photo booklet, excluding any sensitive photographs such as those that might identify the victim.

-Any statements / interviews Mr Exley gave after his arrest, including a copy of his recorded interview with police.

-Any relevant witness / victim statements that were provided to police.

[5]                 The reasons for the request have been expressed in the following way in the application:

I’m an investigative journalist with Stuff, specialising in crime and justice issues. The abduction and rape of a woman by an inmate who’d escaped from prison is of very high public interest. I want to scrutinise how Mr Exley came to escape from prison, allowing him to reoffend in a very serious manner. Reporting of the matter in full will bring the matter out into the open, and hopefully help to ensure an incident like this doesn’t happen again in the future. The documents I’ve requested will aid me in doing this. I submit that my request is inline with the principles of open justice, and will allow for the fair and accurate reporting of the matters at hand.

The provisions and principles to be applied

[6]                 Under r 11 of the Rules, a Judge may grant a request for access to documents with or without conditions. In doing so, the Judge needs to consider the matters outlined in rr 12 and 13. Rule 12 is in the following terms:

12 Matters to be considered

In determining a request for access under rule 11 the Judge must consider the nature of, and the reasons given for, the request and take into account each of the following matters that is relevant to the request or any objection to the request:

(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:

(g)whether a document to which the request relates is subject to any restriction under rule 7:

(h)any other matter that the Judge thinks appropriate.

[7]                 In r 13, the approach the Judge should follow is explained with particular reference to whether the application is made before or after a substantive hearing.

[8]                 In considering the application, I have applied the general approach described in Livingston v Livingston which, although considered under the previous High Court Rules relating to access to court documents, remains relevant to the present Rules.7 In Livingston, Ellis J considered the need to show a recognisable and legitimate public or private interest, the need for an understanding of the interests that the applicants have in the file, the importance of considering the protection of the parties’ confidentiality and privacy interests and freedom of expression, and the freedom to seek, receive and impart information.

Consideration of the application

[9]                 The Crown does not oppose the application. Counsel for the defendant opposes the greater part of it.

[10]              The difficulty with the application is that it is confined to documents relating to Mr Exley’s prison escape; the offending to which he has pleaded guilty. As is described in the reasons for the request, the applicant wants to scrutinise how Mr Exley came to escape from prison.

7      Livingston v Livingston [2015] NZHC 2575, generally at [8]–[37].

[11]              None of the documents used at Mr Exley’s trial relate to his escape from prison. The documents were redacted to remove any reference to the prison escape because the offending to which he had pleaded guilty could not properly have been considered in the course of the determination by the jury of the matters to which he had pleaded guilty. Therefore, those documents do not fall within the terms of the request.

[12]              Information on Mr Exley’s escape from prison is contained primarily in portions of the summary of facts and of the transcript of Mr Exley’s evidential interview. Neither the photo booklet nor the victim’s evidential interview contain information about his escape, except in indirect ways. It is not in my view appropriate for information on Mr Exley’s escape from any of these documents to be made available until after Mr Exley’s sentencing, on 1 February 2024.

[13]              Until that time, when the prison escape will be dealt with openly in Court, the orderly and fair administration of justice, in r 12(a), needs to outweigh the principle of open justice in r 12(e) and the freedom to seek, receive and impart information in  r 12(f).

[14]              As r 13(a) provides, in applying r 12, I am to have regard to the principle that, before the substantive hearing, the fair administration of justice (among other things) may require that access to documents be limited.8 Under r 4, the substantive hearing means, if a defendant pleads or is found guilty, the sentencing hearing.

[15]              Accordingly, those parts of the documents mentioned in [12] that relate to  Mr Exley’s escape can be released after his sentencing hearing. But it would not be appropriate for that to occur beforehand.

Radich J

Solicitors:

Crown Solicitor, Wellington for Crown Ord Legal, Wellington for Defendant

8      See also GFD LLP v Melview (Kawarau Falls Station) Investments Ltd (in rec) [2012] NZHC 677.