R v G

[2023] NZHC 1211

ORDER PROHIBITING PUBLICATION OF NAME, ADDRESS OR IDENTIFYING PARTICULARS OF DEFENDANT. THIS ORDER DOES NOT PROHIBIT THE PUBLICATION OF THE DEFENDANT’S DIAGNOSES (INCLUDING FASD AND INTELLECTUAL DISABILITY). SEE PARA [52] OF R v G [2023] NZHC 1048.

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2021-044-002849

[2023] NZHC 1211

THE KING

v

G

Hearing:

[On the Papers]

Appearances:

H D L Steele and J D Dalton for Crown

A C Cresswell and S J Galler for Defendant

Judgment:

23 May 2023

JUDGMENT OF EDWARDS J

This judgment was delivered by me on 23 May 2023 at 3.30 pm.

Registrar/Deputy Registrar

Solicitors/Counsel:

Meredith Connell (Office of the Crown Solicitor), Auckland A C Cresswell, Auckland

S J Galler, Auckland

Copy To:

Radio New Zealand, Auckland

R v G [2023] NZHC 1211 [23 May 2023]

[1]                 Amy Williams, a journalist with Radio New Zealand, seeks access to the Department of Corrections psychological report referred to in the decision permanently suppressing the defendant’s name and identifying details.1

[2]                 The application is opposed by the defendant, the Crown, and the Department of Corrections.

[3]                 The application falls to be considered under the Senior Courts (Access to Court Documents) Rules 2017. Rule 12 provides that in determining a request for access, a Judge must consider the nature of, and the reasons given for, the request and take into account those relevant matters listed in the rule. Those matters which are relevant in this case include:

(a)the protection of confidentiality and privacy interests (including those of vulnerable members of the community) and any privilege held by or available to any person;2 and

(b)the principle of open justice (including the encouragement of fair and accurate reporting of, and comment on, court hearings and decisions).3

[4]                 Rule 13 provides guidance on how the matters set out in r 12 are to be balanced. After the substantive hearing, open justice has greater weight in relation to documents that have been relied on in a determination than other documents. However, the protection of confidentiality and privacy interests has greater weight than would be the case during the substantive hearing.4

[5]                 The Department of Corrections report was prepared following a psychological assessment of the defendant. It was prepared for the prison service (not the Court) to assist with his management and treatment pathway. The defendant gave his consent to disclosure for the specific purpose of supporting his name suppression application. He did not consent to wider publication.

1      R v G [2023] NZHC 1048.

2      Senior Courts (Access to Court Documents) Rules 2017, r 12(d).

3      Senior Courts (Access to Court Documents) Rules 2017, r 12(e).

4      Senior Courts (Access to Court Documents) Rules 2017, r 13(c).

[6]                 Ms Williams says that disclosure of the report will provide important context for the defendant’s complex health conditions, and the case is in the public interest.

[7]                 The nature of the report means that privacy and confidentiality interests are fully engaged in this case. As noted by the Department of Corrections, the psychological report holds considerable personal information directed towards the defendant’s rehabilitation. The Department of Corrections expresses a concern that release of that personal information may undermine the trust and confidence by the defendant in Corrections’ treatment, and the wider efforts to engage him in rehabilitative activities. For the reasons outlined in the permanent name suppression decision,5 the defendant’s rehabilitation and reintegration are important to ensuring the protection of the defendant, and the public from harm. The public and confidentiality interests require protection in this case.

[8]                 Those interests need to be balanced against the principle of open justice. That principle is already served by publication of the defendant’s diagnoses, including his FASD and his intellectual disability. The link between these conditions and the sentence he received, and the decision permanently suppressing his name, are set out in the sentencing notes6 and suppression judgment.7 Access to further detailed personal information of the nature set out in the Department of Corrections’ report is not required to provide further context. I consider the principles of open justice are met by the reporting of those judgments.

[9]                 In the circumstances, I decline the request for access to the Department of Corrections’ psychological report.

Edwards J

5      R v G [2023] NZHC 1048 at [40]–[43].

6      R v G [2023] NZHC 434.

7      R v G [2023] NZHC 1048.