TAYLOR v COMMISSIONER OF POLICE [2018] NZHC 2202

TAYLOR v COMMISSIONER OF POLICE [2018] NZHC 2202 [24 August 2018]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECIV-2015-404-2095[2018] NZHC 2202IN THE MATTER of an application by a non-party for access toCourt recordsUNDER the Senior Courts (Access to CourtDocuments) Rules 2017BETWEEN PHILIP TAYLOR, a reporter for theNew Zealand HeraldApplicantAND COMMISSIONER OF POLICEBRETT EDWARD EDWARDSJOHANNA EDITH EDWARDSRespondentsHearing: (On the papers)Appearances: M R Harborow and H E Savage for CommissionerD P H Jones QC for Brett Edwards and Johanna EdwardsP Taylor for NZME Publishing LtdJudgment: 24 August 2018JUDGMENT OF BREWER JSolicitors:Meredith Connell (Auckland) for CommissionerConnell & Connell (Auckland) for Brett Edwards and Johanna EdwardsBell Gully (Auckland) for NZME Publishing Ltd[1] Mr Edwards was prosecuted by the Ministry of Primary Industries for breachesof the Fisheries Act 1996. He was eventually convicted of three charges of knowinglyacting in contravention of the Fisheries Act to obtain a benefit.[2] On 7 September 2015, the Commissioner of Police applied (inter alia) for civilforfeiture orders over property associated with Mr Edwards and his wife pursuant tothe Criminal Proceeds (Recovery) Act 2009. Eventually, the Commissioner and Mrand Mrs Edwards reached a settlement agreement. The agreement, by mandate of s 95of that Act, required the approval of the High Court. The High Court must be satisfied,before approving any settlement, that it is consistent with the purposes of the Act andthe overall interests of justice. This is an important check on what might otherwise bean opaque exercise of a public function.[3] On 4 July 2017, Woolford J approved the proposed settlement, and in hisMinute of that date set out the basic terms of the settlement.[4] Just over a year later, on 17 July 2018, Lang J began hearing an appeal againsta District Court decision to grant media access to the District Court file relating to theprosecution brought by the Ministry of Primary Industries. Counsel for the parties tothe appeal gave responsible attention to the District Court file and agreed on materialsto which the media should have access. They pointed out to Lang J that some of thematerial on the file had been ruled inadmissible as evidence because the searcheswhich obtained the material had been carried out in an unreasonable manner. JusticeLang agreed that since the material largely consisted of uncontested assertions by theprosecution, it would be unfair and inappropriate for the material to be released intothe public domain.[5] On 17 August 2018, as Duty Judge, I received an application by Mr Taylor, areporter for the New Zealand Herald, for access to documents on the Court filecontaining the application by the Commissioner of Police for civil forfeiture orders,to which I have just referred. Counsel for the Commissioner and for Mr andMrs Edwards had filed a joint memorandum. They agreed that Woolford J's Minuteof 4 July 2017 approving the settlement between the parties should be disclosed toMr Taylor. Since Woolford J referred to the parties' joint memorandum proposing thesettlement, they consented also to Mr Taylor having access to the joint memorandum.However, they submitted:The parties note that the joint memorandum contains reference to the handwritten records located by the Ministry of Primary Industries during thesearch of Mr Edwards' home address at 77A Pukaki Road, Mangere,Auckland on 19 September 2013 (known as the sewer documents). Thecontent and analysis of the sewer documents have previously been withheldfrom the media by this Court. In an appeal against the District Court'sdecision to make information on the Court files available to the media, Lang Jheld it would be unfair and inappropriate for material containing untestedallegations to be released into the public domain. This category of documentsincluded the sewer documents. The parties are content for Mr Taylor to haveaccess to the joint memorandum, provided he does not publish any content oranalysis of the sewer documents, consistent with Lang J's orders. It appearsMr Taylor appreciates this restriction, as noted in his request. It follows thatMr Taylor may not publish the Commissioner's profit forfeiture figure[redacted] given it was calculated on the basis of the sewer documents.[6] In my Minute of 17 August 2018, I communicated to the parties that I do notagree it follows necessarily that because of Lang J's ruling, Mr Taylor may not publishthe Commissioner's profit forfeiture figure. I gave the parties and Mr Taylor anopportunity to comment.[7] I have now received a further joint memorandum from the parties. Theycontinue to oppose Mr Taylor publishing the profit forfeiture figure. Their reasonsare:[a] The profit forfeiture figure "is based exclusively on the sewerdocuments".[b] The profit forfeiture figure, therefore, constitutes analysis of thecontent of the sewer documents.[c] To publish the profit forfeiture figure would be contrary to the ordersmade by Lang J.[d] Mr and Mrs Edwards have never had the opportunity to contest theprofit forfeiture figure.[e] The public interest does not extend to publication of the profitforfeiture figure because that sum has never been the subject of judicialpronouncement.[8] I have also received a memorandum from the solicitors representingMr Taylor's employer.1 The overall submission is that the public has a right to knowthe profit alleged by the Crown in a context such as this one.Decision[9] The context against which I must decide Mr Taylor's application is that theCommissioner of Police exercised a public function in a matter relating to criminaljustice. The settlement agreement was not a private one in the sense it involved onlythe commercial interests of the parties. The Commissioner was acting as a publicofficer. Justice Woolford had to consider whether the High Court should approve thesettlement as being consistent with the purposes of the Criminal Proceeds (Recovery)Act 2009 and the overall interests of justice.[10] Parliament intended that settlement agreements must be taken out of theprivacy of the negotiating room and into the public space of the High Court. Of course,a Judge may decide to limit public knowledge of the contents of, and background to,a settlement agreement if that is necessary in the interests of justice. Here, Woolford Jdid not make any order restricting public knowledge of the exercise he undertook. Inreaching his decision, he had to have regard to the calculated profit forfeiture figure.[11] Justice Lang's decision came a year later and in a completely different context.[12] I look at Mr Taylor's application in the context of the Commissioner'sapplication under the Criminal Proceeds (Recovery) Act 2009. In my view, while itis appropriate for the context and analysis of the "sewer documents" to be keptconfidential, as is submitted by counsel for the parties in the passage quoted by me at[5] above, the same is not so for the Commissioner's profit forfeiture figure. Thatfigure was relevant to Woolford J's decision and the public is entitled to know it. This1 NZME Publishing Ltd.is consistent with the principles of open justice (including the encouragement of fairand accurate reporting of, and comment on, Court hearings and decisions). It is inaccordance with the important democratic freedom to seek, receive and impartinformation.[13] I grant Mr Taylor's application subject to the restrictions set out in the passagequoted at [5] above, save that the profit forfeiture figure may be published also.[14] I think it possible the parties might wish to appeal this Judgment. Accordingly,publication of the profit forfeiture figure may not occur before 31 August 2018.Obviously, if an appeal is taken, the parties will have to seek an interim non-publication order to apply after that date.________________________________Brewer J