COMMISSIONER OF POLICE v CHAN [2019] NZHC 1864

COMMISSIONER OF POLICE v CHAN [2019] NZHC 1864 [2 August 2019]NOTE: PUBLICATION OF THE ADDRESS OF THE PROPERTYRESTRAINED IS PROHIBITED: SEE [18] AND [20] OF THIS JUDGMENT.IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECIV-2019-404-000745[2019] NZHC 1864UNDER the Criminal Proceeds (Recovery) Act 2009BETWEEN COMMISSIONER OF POLICEApplicantAND DA SHENG CHANFirst RespondentLU LUSecond RespondentDA SHENG CHAN, LU LU andOAKLAND TRUSTEES LIMITED in theircapacity as Trustees of the FTLM TrustThird RespondentsHearing: 1 August 2019Counsel: K Eastwood for the ApplicantK E Hogan for the RespondentsJudgment: 2 August 2019JUDGMENT OF EDWARDS JThis judgment was delivered by me on 2 August 2019 at 11.00 ampursuant to r 11.5 of the High Court Rules.Deputy RegistrarCounsel: K E Hogan, AucklandSolicitors: Meredith Connell (Office of the Crown Solicitor), AucklandCopy To: S Hurley, Auckland[1] Mr Hurley, a court reporter with the New Zealand Herald, applies for access tothe court file. Specifically, he seeks access to the Commissioner of Police'sapplication for restraining and other orders, judgments, orders, and minutes on thecourt file. Access is sought so that a fair and accurate news report of theCommissioner's application may be made.[2] The Commissioner does not oppose the application, but both respondents do.The first respondent, Mr Chan, is currently facing criminal charges. He submits thathis fair trial rights may be prejudiced by detailed publicity of this proceeding. Thesecond respondent, Ms Lu, does not face criminal charges, but nevertheless opposesthe application on the basis that she, Mr Chan, and their dependents are entitled toprivacy.[3] This proceeding is a civil proceeding. Restraining orders were made on20 May 2019. In accordance with a joint memorandum of counsel dated 14 June2019, orders relating to the sale of a house, and an assets forfeiture order in respect ofsome cash, were made on 17 June 2019. Applications for forfeiture orders over theother property have yet to be made, and are unlikely to be made prior to resolution ofthe criminal charges faced by Mr Chan.Legal framework[4] The application is governed by the Senior Courts (Access to Court Documents)Rules 2017 (Access Rules). Rule 8(1) provides that every person has a right to accessthe formal court record relating to a civil proceeding.[5] The formal court record is defined to include all the documents sought byMr Hurley (judgment, order, minutes of the court), with the exception of theCommissioner's application. The joint memorandum of counsel dated 14 June 2019falls outside this definition also.[6] Rule 5(1) of the Access Rules provide that the rules do not affect the court'sinherent power to control its own proceedings. Rule 5(2) specifically provides that aJudge may direct that judgments, orders, documents or files of any kind may not beaccessed without the permission of the Judge.[7] Rule 12 sets out factors to be taken into account in considering a request foraccess. That rule provides:12 Matters to be consideredIn determining a request for access under rule 11, the Judge mustconsider the nature of, and the reasons given for, the request and takeinto account each of the following matters that is relevant to therequest 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 thedisclosure of any more information about the private lives ofindividuals, or matters that are commercially sensitive, thanis 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 ofthe community) and any privilege held by, or available to, anyperson:(e) the principle of open justice (including the encouragement offair and accurate reporting of, and comment on, court hearingsand decisions):(f) the freedom to seek, receive, and impart information:(g) whether a document to which the request relates is subject toany restriction under rule 7:(h) any other matter that the Judge thinks appropriate.[8] As Woolford J confirmed in Commissioner of Police v Li, none of the r 12factors have primacy, and there is no hierarchy of considerations.1 The considerationsare mandatory to the extent they are relevant, but not all matters will necessarily berelevant.[9] The approach to balancing the r 12 factors depends on the stage of theproceeding. Rule 13 provides as follows:13 Approach to balancing matters consideredIn applying rule 12, the Judge must have regard to the following:1 Commissioner of Police v Li [2018] NZHC 1566 at [24] citing Greymouth Petroleum HoldingsLtd v Empresa Nacional des Petróleo [2017] NZCA 490, [2017] NZAR 1617 at [21].(a) before the substantive hearing, the protection ofconfidentiality and privacy interests and the orderly and fairadministration of justice may require that access to documentsbe limited:(b) during the substantive hearing, open justice has—(i) greater weight than at other stages of the proceeding;and(ii) greater weight in relation to documents relied on inthe hearing than other documents:(c) after the substantive hearing,—(i) open justice has greater weight in relation todocuments that have been relied on in a determinationthan other documents; but(ii) the protection of confidentiality and privacy interestshas greater weight than would be the case during thesubstantive hearing.Analysis[10] As Ms Lu does not face criminal charges, her opposition to the applicationrelies on:(a) the right to defend civil proceedings without the disclosure of any moreinformation about the private lives of individuals than is necessary tosatisfy the principle of open justice; and(b) the protection of other confidentiality and privacy interests (includingthose of her children).[11] I do not consider that these interests outweigh the right in r 8 to access theformal court record. There is a strong public interest in knowing the outcome of civilproceedings for restraint and forfeiture of property that weighs in favour of disclosurein this case. Disclosure of documents on the court record is the minimum required tosatisfy the principle of open justice.[12] Furthermore, there are no specific confidential or privacy interests whichwould warrant access to those documents being declined. The only exception to thatis the address of the property the subject of the sale order. Ms Lu, and her children,currently reside in that family home. Publishing that detail is not necessary to satisfythe principle of open justice in this case. Mr Hurley says, as a matter of decency, theNew Zealand Herald would not publish that in any respect and he does not oppose acondition prohibiting publication of the address.[13] In addition to the grounds raised by Ms Lu, Mr Chan says that granting theapplication will compromise his fair trial rights. Mr Chan faces charges relating to themanufacturing and possession of a class A drug and a charge of participating in anorganised criminal group. His trial in the District Court is set down for March 2020.[14] The opposition to the application would be on stronger grounds if access wassought to the affidavits on file. Those affidavits contain allegations against therespondents that have yet to be tested. However, Mr Hurley does not seek access tothese affidavits. This distinguishes this case from others where access to affidavitswas declined in similar circumstances.2[15] Nevertheless, there is a concern that reporting on the orders made in thisproceeding may be misconstrued as admissions of criminal offending by therespondents. Ms Hogan submits that this concern is compounded in this case becausePalmer J's sealed orders record them as being made by consent, rather than beingunopposed. Further, the orders themselves do not accurately reflect the pragmaticapproach adopted by the respondents in this proceeding, while still maintaining theiropposition to the allegations of criminal offending.[16] I consider that these concerns are met by the obligation on media to ensurereports are fair and balanced. Mr Hurley indicates that the difference between the civiland criminal proceedings will be drawn in his article, and he intends to reiterate thatMr Chan has pleaded not guilty to the criminal charges. To assist in ensuring that thereporting is accurate, fair and balanced, I consider disclosure of the Commissioner'sapplication should also be made. The orders and minutes on the court file need to beunderstood in context, and disclosure of the Commissioner's application will providethe necessary information to ensure that occurs.2 Commissioner of Police v Doyle [2017] NZHC 2308.[17] The specific concerns about the basis upon which the orders were made maybe addressed by disclosure of the joint memorandum of counsel dated 14 June 2019.That joint memorandum records the respondents' position and gives further context asto why that position was taken. The balancing of the r 12 factors weighs in favour ofdisclosure of this joint memorandum also to ensure fair, balanced and accuratereporting.[18] It follows that the application for access should be granted and the jointmemorandum of counsel disclosed in addition. Access is granted on the condition thatthere is no publication of the address of the property restrained.Result[19] Mr Hurley is granted access to the following documents:(a) Minute of Venning J (dated 20 May 2019);(b) On notice application for restraining and further orders (dated 29 April2019);(c) Joint memorandum of counsel (dated 14 June 2019);(d) Minute of Palmer J (dated 17 June 2019);(e) Sale order (dated 17 June 2019);(f) Assets forfeiture order (dated 17 June 2019).[20] Access is granted on the condition that there is no publication of the address ofthe property referred to in these documents.___________________Edwards J