WATSON v THE CHIEF EXECUTIVE OF DEPARTMENT OF CORRECTIONS [2015] NZHC 718 [16 April 2015]

WATSON v THE CHIEF EXECUTIVE OF DEPARTMENT OF CORRECTIONS [2015] NZHC 718 [16 April 2015]IN THE HIGH COURT OF NEW ZEALANDCHRISTCHURCH REGISTRYCIV 2015-409-000029[2015] NZHC 718BETWEEN SCOTT WATSONApplicantAND THE CHIEF EXECUTIVE OFDEPARTMENT OF CORRECTIONSRespondentHearing: 14 April 2015 (By way of telephone conference)Appearances: K H Cook for ApplicantP T Rishworth QC for RespondentJudgment: 16 April 2015JUDGMENT OF DUNNINGHAM J[1] Mr Watson, the applicant, is serving terms of imprisonment for the murder of Ben Smart and Olivia Hope. He is seeking judicial review of the decision of the Chief Executive of the Department of Corrections declining permission for a North and South Magazine journalist, Mr White, to interview him.[2] The respondent's decision, conveyed to Mr White in a letter dated 18 December 2014, was that while he was aware of Mr Watson's right to exercisefreedom of speech and to involve the media in publishing his claim to innocence, he was also required to consider "the effect of the interview on other persons, including the protection of their interests". In that regard he said, "I have spoken to Mr Hopeand Mrs Smart. Neither support the interview taking place". Taking all relevantfactors into account he therefore declined the application.[3] Mr Watson has applied to review that decision on the grounds it was unreasonable and was a disproportionate response to whatever issues were perceived to arise by the meeting occurring.[4] When providing affidavit evidence in opposition to the application for review, the respondent filed both a redacted and an unredacted version of an affidavit from Vincent Patrick Arbuckle, the Deputy Chief Executive (Corporate Services) at the Department of Corrections who, under delegated authority, made the decision to decline the interview.[5] The redacted version of the affidavit which has been served on the applicant, deletes that part of Exhibit VA3 which comprises the summarised content of a telephone call to Mr Gerald Hope, the father of one of the victims, and of a telephone call to Mary Smart, the mother of the other victim. Their views were solicited pursuant to reg 109(1)(a) of the Corrections Regulations 2005 which requires the Department, when considering a request for permission to interview orrecord a prisoner, to consider "the need to protect the interests of people other thanthe prisoner concerned".[6] The redacted material comprises four paragraphs, two relating to the phone call with Mr Hope and two to the phone call with Mrs Smart. The first, and longer paragraph in respect of each phone call simply summarises the explanation for the call which was given by Mr Arbuckle to the individual being contacted. I note, at the outset, and Mr Rishworth QC did not dispute, that these parts of the redacted material do not engage any obligation of confidentiality and there was no obvious basis for saying those two paragraphs should be redacted. The second paragraph in relation to each call briefly summarised the individual's response which, in eachcase, did not support the interview proceeding as proposed.[7] The unredacted version was filed with the Court and counsel for the respondent sought, and obtained on an interim basis, an order under r 3.9(3) of the High Court Rules that no person access the affidavit of Vincent Arbuckle dated 13 March 2015 without permission of a Judge. That order remains on foot. Counsel for the respondent also explained that he would serve on counsel for the applicant the affidavit of Mr Arbuckle containing the redacted annexure and would be prepared to personally provide counsel for the applicant with a copy of the unredacted version on condition that counsel for the applicant:(a) receives an irrevocable instruction from the applicant that the applicant will not seek to see the unredacted material; and(b) gives an undertaking not to provide the unredacted material to the applicant or any other person.[8] The issue for me to determine today was whether the unredacted affidavitshould be served on the applicant's counsel and, if so, whether that should be on the terms proposed by the respondent, or any other terms.The arguments[9] Helpfully, counsel filed submissions prior to the telephone conference. The respondent explained that exhibit VA3 which contains the redacted material, comprises the standard form completed by the Department when considering the request for permission to interview Mr Watson. The same document had previously been provided to Mr Watson in redacted form pursuant to an Official Information Act 1982 request. The reason for withholding the content of the telephone interviews with Mr Hope and Mrs Smart was based on s 29(1)(a) of the Privacy Act 1993 which allows an agency to refuse to disclose information requested pursuant to principle 6, if "the disclosure of the information would involve the unwarranteddisclosure of the affairs of another individual or of a deceased individual".[10] Reference was also made to s 9(2)(a) of the Official Information Act which provides, as another reason for withholding information, where it is necessary to"protect the privacy of natural persons".[11] Mr Rishworth argued that by a combination of general principles and specific statutory provisions dealing with:(a) how evidence is generally adduced in civil proceedings;(b) the statutory requirements to consider victims privacy and dignity; and(c) fair trial considerations for both parties;it was appropriate to proceed on the basis of the redacted affidavit which wouldachieve "a fair hearing on all relevant and appropriate evidence". If counsel wished to see the unredacted affidavit, that could be done so on the basis of the undertakings sought.[12] In support of his submissions he argued that the decision to redact theevidence was "supported if not mandated by the Victims' Rights Act 2002", because the parents were victims in terms of the definition in that Act, and that Act contained, at s 15, express reminders of the obligations to maintain the privacy of a victimunder the Privacy Act 1993. Furthermore, s 7 of the same Act required the victim's "dignity and privacy" to be respected.[13] While he acknowledged that the Victims' Rights Act 2002 did not add to rights in the Privacy Act 1993 nor confer any further enforceable legal rights, by allowing the status quo to be maintained (that is, having the redacted affidavit as well as access by counsel to the unredacted affidavit if appropriate undertakings were given), the relevant interests that arise in the hearing of this matter were sufficiently accommodated.[14] Mr Rishworth also noted that the Conduct and Client Care Rules made under the Lawyers and Conveyancers Act 2006 accommodated what was proposed in that, while a lawyer must normally disclose to a client all information that the lawyer has, or acquires, that is relevant to the matter in respect of which the lawyer is engaged, that is not necessary where informed consent has been given to non-disclosure (which implicitly would be the case if access to the unredacted affidavit was given on the basis of the undertaking sought).1[15] Alternatively, s 69 of the Evidence Act 2006 can be engaged, which allows a judicial direction that a confidential communication not be disclosed in a proceeding. In that case, the Judge may balance, on the one hand, the harm to the "particular relationship" against, on the other hand, the public interest in disclosure. Under1 Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008, r 7.3(a).s 69(3)(e) the Judge must consider the availability of means of preventing or restricting public disclosure of the evidence if the evidence is given which would justify, in this case, the making of a direction that the proceeding take place on the basis of the undertakings sought.[16] The applicant, on the other hand, began by invoking both the principles of open justice and natural justice, as key aspects of the rule of the law in a democracy. Through Mr Cook, he argued that if the respondent did not want the applicant to see the material then it was for "the respondent to justify a position which is a deviationfrom the fundamental norm", that the applicant should know the complete nature of the evidence before the Court and so he can scrutinise how that evidence affected the eventual decision.[17] Citing Official Solicitor v K, Mr Cook noted that the ordinary principles of a judicial enquiry included the rules that justice should be done openly, that it should be done only after a fair hearing, and that judgments should be given only upon evidence that is made known to all parties. 2[18] Similarly Mr Cook referred to Bank Mellat v Her Majesty's Treasury, where Lord Neuburger said:3[3] Even more fundamental to any justice system in a modern, democratic society is the principle of natural justice, whose most important aspect is that every party has a right to know the full case against him, and the right to test and challenge that case fully. A closed hearing is therefore even more offensive to fundamental principle than a private hearing. At least a private hearing cannot be said, of itself, to give rise to inequality or even unfairness as between the parties. But that cannot be said of an arrangement where the court can look at evidence or hear arguments on behalf of one party without the other party ("the excluded party") knowing, or being able to test, the contents of that evidence and those arguments ("the closed material"), or even being able to see all the reasons why the court reached its conclusions.[19] Mr Cook argued that in this case no indication was given as to why the evidence of what was said in the telephone calls with Mr Hope and Mrs Smart was so confidential that it could not be disclosed. It also appeared that no thought had2 Official Solicitor v K [1965] AC 201.3 Bank Mellat v Her Majesty's Treasury (No 2) [2013] UKSC 38, [2014] AC 700.been given to any other methods (such as suppression from publication) which may involve less deviation from the open justice principle. Furthermore, no thought had been given as to how the Judge determining the substantive matter would be able to give appropriate reasons to those interested in the outcome without referring to the material.[20] Mr Cook argued that neither the Official Information Act 1982 or the Privacy Act 1993 precluded this evidence being made available to the applicant. The question to be asked when refusing disclosure under the Privacy Act is whether it involves the unwarranted disclosure of the affairs of another individual and that clearly involves an evaluation. The Victims Rights Act 2002 adds nothing to the issue, as it essentially redirects the enquirer to the Privacy Act and considerations of whether the disclosure is unwarranted. Similarly, s 69 of the Evidence Act again requires a balancing exercise and Mr Cook asserted that there was nothing raised to justify a confidentiality order in this case.[21] Mr Cook concluded by saying that "[g]iven the centrality of the victimsviews to this whole issue they should be disclosed to counsel on an ordinary basis".Discussion[22] While I accept that the privacy interests of individuals, including victims, must be respected by entities such as the respondent, considerations of whether it is appropriate to disclose personal information must be reconsidered where proceedings are on foot in a Court. Privacy principle 11, which places limits on disclosure of personal information, permits non-compliance with that principlewhere it is "necessary for the conduct of proceedings before any court". Thus, adecision that is made about non-disclosure of private information for the purposes of an Official Information Act request will normally need to be revisited when that information is directly relevant to the conduct of proceedings (as it is here, because itis incorporated in the respondent's affidavit evidence for hearing and because it was one of the considerations that was balanced in arriving at the impugned decision).[23] Once the personal information is relevant evidence then, in my view, the enquiry becomes that contained in s 69 of the Evidence Act, where the interests of confidentiality (if any) are weighed against the interests of conducting a fair trial in accordance with natural justice and the wider public interest. The Court has a variety of tools which it can employ to protect genuinely confidential information so that it is only made available to as wide a group of recipients as necessary to ensure justice is done, while still ensuring the protection of legitimately confidential information.[24] I begin with the issue of whether the redacted information is truly confidential. While Mr Rishworth suggested that should simply be assumed from the context, I do not think that is the case. First, as I have already explained, the twoparagraphs which summarise the Department's explanation of the purpose of the telephone call contain no personal information or confidential information. They should not have been redacted.[25] Secondly, when I consider Mr Hope's comments, his comment that he did notsupport the interview is clearly not confidential, as that is reported in the 18 December 2014 letter to Mr White. Furthemore, Mr White has provided his own further affidavit sworn on 27 March 2015 which records that Mr Hope has recounted to Mr White what his response to Mr Arbuckle was. That response, recorded in Mr White's affidavit, is consistent with the second observation recorded in theunredacted summary of the telephone conversation. It does not appear that either of the views expressed by Mr Hope on the proposed interview were intended to be confidential in the circumstances.[26] In respect of Mrs Smart's summarised comments, the fact she is opposed to the interview is not confidential, as that is summarised in the 18 December letter. It is also not clear to me that she made her supporting comments on the understanding that they would be kept confidential nor, on their face, do they reveal any particularly intimate or deeply personal views or information that could not obviously have been intended to be conveyed to any other party than Mr Arbuckle. In saying that, clearly there will be times when information is provided to an agency such as the respondent that is expressly or implicitly given in confidence, includingwhere it contains information of an intimate or personal nature. In those circumstances, it may well be appropriate to prevent evidence of that nature being seen by either the public, or even by the parties to the litigation, without appropriateprotections. However, on the face of it, nothing in Mrs Smart's summarisedresponse to Mr Arbuckle strikes me as being of such a personal or confidential nature that it requires the stringent level of protection from disclosure which is sought by the Department, including not being shown to the applicant.[27] Even if Mrs Smart's reported comments to Mr Arbuckle were expressly or implicitly intended to be confidential, they form part of the body of evidence before the Court and are clearly relevant to the decision in dispute. I can see no reason, having seen the comments, to afford them the stringent protections sought by the respondent. In other words, in the exercise of my discretion, I do not see the comments as being of such a personal nature that any privacy interests should outweigh the usual position that the parties are entitled to see the evidence which was relevant both to the decision to decline the request for an interview, and to thisCourt's ultimate decision on whether that was a proportionate and reasonable decision having regard to all relevant considerations.[28] However, in respecting the privacy interest of the victims I am willing to make orders to ensure the unredacted version of the affidavit is not circulated more widely without further order of the Court.[29] The purpose of the following directions is to ensure the applicant can see and can discuss with his counsel the contents of the unredacted affidavit, but that the unredacted version of the affidavit should not be made available on any broader basis without the leave of the Court.[30] I therefore direct that:(a) counsel for the respondent is to be served with an unredacted version of the affidavit subject to providing the undertaking at (b)(ii) below;(b) the privacy considerations of the victims who were contacted by telephone are to be protected by:(i) the continuation of the order under r 3.9(3) of the High Court Rules that no person access the unredacted affidavit of Vincent Arbuckle dated 13 March 2015 without the permission of a Judge;(ii) counsel for the respondent must, prior to receipt of the unredacted affidavit, give an undertaking to retain it at all times in his custody and not to make or provide a copy or copies of the unredacted affidavit to the applicant or any other person in any form, whether in hard copy or electronically.[31] Leave is reserved to counsel for either party to revert to the Court for further directions if any practical difficulties arise out of complying with these directions. If it appears likely that the redacted material will be referred to in any subsequent judgment, I also reserve leave to the respondent to seek such suppression orders (if any) as he considers appropriate.Solicitors:K H Cook, ChristchurchCrown Law, Wellington