THE COMMISSIONER OF POLICE v ZAGROS [2023] NZHC 220

THE COMMISSIONER OF POLICE v ZAGROS [2023] NZHC 220 [17 February 2023]IN THE HIGH COURT OF NEW ZEALANDCHRISTCHURCH REGISTRYI TE KŌTI MATUA O AOTEAROAŌTAUTAHI ROHECIV-2018-409-669[2023] NZHC 220BETWEEN THE COMMISSIONER OF POLICEApplicantAND SAMI ZAGROSFirst RespondentHYPER TRADE LIMITEDSecond RespondentANZ BANK NEW ZEALAND LIMITEDFirst Interested PartyANDRE FRANCIS JAMESSecond Interested PartyHearing: (Determined on the papers)Counsel: S J Mallett for ApplicantA M S Williams and K E Bucher for First RespondentJudgment: 17 February 2023JUDGMENT OF EATON J[1] Mr Kenny on behalf of Stuff Limited has applied under the Senior Courts(Access to Court Documents) Rules 2017 for access to "the documents on the file,including any Court issued judgments and approved documentation from thecommencement to the conclusion of the case".[2] The application relates to proceedings brought by the Commissioner ofNew Zealand Police against Mr Zagros seeking an assets forfeiture order or a profitforfeiture order. Since these proceedings were issued, Mr Zagros has pleaded guiltyand been sentenced for serious drug offending.1[3] The present proceedings were resolved by a judgment I issued on 9 February2023 following a consent memorandum signed on behalf of the Commissioner ofPolice and by Mr Zagros.2 The application for a profit forfeiture was abandoned andan asset forfeiture order was made.[4] Mr Kenny's application describes his reasons for seeking the access to Courtdocuments being of public interest, given the connection of this case to the criminalprosecution of Mr Zagros.Legislative framework[5] An application to access a Court file is governed by the Senior Courts (Accessto Court Documents) Rules 2017.[6] Insofar as the present application seeks access to a judgment of the Court, r 8provides that in a civil proceeding every person has the right to access the formal Courtrecord.3 This is a civil proceeding and the formal Court records includes anyjudgment, order or minute of the Court.4 I consider Mr Kenny's application to accessevidence filed in support of the applications as having been made under r 11 and,therefore, r 12 is applicable. Rule 12 states:12 Matters to be consideredIn determining a request for access under rule 11, the Judge must consider thenature of, and the reasons given for, the request and take into account each ofthe following matters that is relevant to the request or any objection to therequest:(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 disclosureof any more information about the private lives of individuals, or1 R v Zagros [2022] NZHC 2874.2 Commissioner of Police v Zagros [2023] NZHC 162.3 Senior Courts (Access to Court Documents) Rules 2017, r 8.4 Above n 3, r 4.matters that are commercially sensitive, than is necessary to satisfythe principle of open justice:(d) the protection of other confidentiality and privacy interests (includingthose 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 andaccurate 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 anyrestriction under rule 7:(h) any other matter that the Judge thinks appropriate.and; Rule 13 which relevantly provides:13 Approach to balancing matters consideredIn applying rule 12, the Judge must have regard to the following:(a) before the substantive hearing, the protection of confidentiality andprivacy interests and the orderly and fair administration of justice mayrequire that access to documents be 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 in thehearing than other documents:(c) after the substantive hearing,—(i) open justice has greater weight in relation to documents thathave been relied on in a determination than other documents;but(ii) the protection of confidentiality and privacy interests hasgreater weight than would be the case during the substantivehearing.[7] Ms South, on behalf of the Commissioner, does not oppose the application.Mr Williams, on behalf of Mr Zagros, does not oppose the release of my judgment butopposes the release of the supporting evidence on the grounds that personalinformation is recorded within the supporting evidence.Analysis[8] Mr Kenny is entitled access to a copy of my judgment and all minutes issuedin the process. The judgment records the specific assets the subject of the assetsforfeiture order. That order was made by consent.[9] Because this case was resolved short of a defended hearing, the supportingevidence filed by the Commissioner has not been tested in Court. Beyond the evidencesummarised in the judgment, it has not been necessary for the Court to consider theevidence filed. In those circumstances, I do not consider it appropriate for Mr Kennyto have access to the affidavit evidence.Result[10] Mr Kenny is granted access to all judgments and minutes on the file but accessto the supporting evidence is declined....................................................Eaton JSolicitors/Counsel:Crown Solicitor's Office, ChristchurchAnselm Williams, Christchurch