THE COMMISSIONER, THE NEW ZEALAND POLICE v HANCOX [2021] NZHC 100

THE COMMISSIONER, THE NEW ZEALAND POLICE v HANCOX [2021] NZHC 100 [5 February 2021]IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYI TE KŌTI MATUA O AOTEAROATE WHANGANUI-A-TARA ROHECIV 2016-485-1010[2021] NZHC 100UNDER the Criminal Proceeds (Recovery) Act 2009IN THE MATTER OF an application under sections 46, 50 and 55BETWEEN THE COMMISSIONER, THE NEWZEALAND POLICEApplicantAND DONALD JOHN HANCOXFirst RespondentDENISE ISOBEL HANCOXSecond RespondentBANK OF NEW ZEALANDFirst Interested PartyIAG NEW ZEALAND LIMITEDSecond Interested PartyOn the papersJudgment: 5 February 2021JUDGMENT OF MALLON J[1] In 2016 Donald Hancox was convicted for defrauding a secondary school atwhich he worked of $375,237.45. He was sentenced to two years and three months'imprisonment. The Commissioner of Police subsequently applied for forfeiture ofassets under the Criminal Proceeds (Recovery) Act 2009. Restraining orders weresought and granted pending determination of that application. Forfeiture orders weresubsequently granted by consent. The orders involved the sale of a property registeredin the names of Donald and Denise Hancox and forfeiture of a portion of the proceedsof that sale.[2] On 23 August 2019 a Stuff reporter (Wendy Murdoch) applied for access to"[t]he Commissioner's applications, any documents in opposition, affidavit evidence(redacted if necessary), memoranda from counsel, plus minutes, orders, and judgmentsof the court". It had earlier been confirmed to Ms Murdoch that she could have accessto the court record as of right, but for other material a timetable for submissions wasput in place.1[3] The formal court record comprises judgments, orders or minutes of the Court.2It does not include applications, notices of opposition, affidavits or memoranda ofcounsel. In submissions for Mr Hancox, release of this material was opposed on thebasis that the applications contained allegations and the factual basis on which theywere made was contained in affidavit evidence that was disputed and had not beentested. The settlement reflected that Mr Hancox accepted his share of the proceedsfrom the sale of the property should be forfeited given his offending (this was less thanthe sum that had been sought), the Commissioner's acceptance that it may not havebeen able to prove its full application at trial, and that Mrs Hancox was an innocentparty. The submissions relied on Crimson Consulting Ltd v Berry in support of itsposition.3[4] It appears that Mrs Hancox's position was that Ms Murdoch's applicationshould await consideration after the sale of the restrained property. This was becausethere was an interim suppression order applying to the fact that the property being soldwas subject to the Criminal Proceeds (Recovery) Act. The Commissioner was neutralon Ms Murdoch's application except that it agreed with the submissions forMrs Hancox that it should be considered after the sale of the restrained property andonce civil forfeiture had occurred.1 The Commissioner, The New Zealand Police v Hancox HC Wellington CIV-2016-485-1010,12 August 2019 at [3].2 Senior Courts (Access to Court Documents) Rules 2017, r 4.3 Crimson Consulting Ltd v Berry [2018] NZCA 460.[5] Ms Murdoch submitted that access should be granted to all the material shesought with redactions for any contested matter. She submitted that, as Mr Hancoxhad pleaded guilty, at least some of the affidavit evidence must have been accepted.She submitted that the subject matter was already in the public arena (several Stuffand Dominion Post articles had been published about the case) and the CrimsonConsulting case was of a different nature with quite different public interest values.[6] It appears that no formal determination of the media application was made. Itappears to have been accepted that, beyond access to the formal record, the applicationshould await the sale to avoid prejudicing the amount received in the sale throughpublicity that it was a forced sale. The forfeiture order was finalised on 17 April 2020following the sale of the property.[7] On 1 December 2020 counsel for Mrs Hancox filed a memorandum setting outher position on the outstanding media application. It is unclear from the file whatprecipitated this. In any event, Mrs Hancox's position was effectively that accessshould be restricted to the formal court record relating to details of the sale of thehouse. As to any further access, it was submitted that the public interest was higherduring the criminal phase of the proceedings than it was now; and that Mrs Hancox,as an innocent party, had the right to move on and to be forgotten now that Mr Hancoxhad been punished and the family home had been sold to compensate the complainantin the criminal case. Counsel went on to say that if the intended use of the materialcould be clarified then it may be that any further formal opposition would not benecessary.[8] Ms Murdoch responded on 2 December 2020. She said that she was contentto have access to the formal record, and details as to the address and sale price of theproperty, the deductions made, the amount that was returned to the college and whenthat occurred if that information is not included in the formal record. She would alsoappreciate having access to anything else that might be relevant to understanding theproceeding. She said she did not know why her application was not considered earlier,but the delay in that occurring should not alter how the application was determined.She also said that the information was sought for normal journalistic purposes and itwas not appropriate for counsel or the court to have some role in vetting how theinformation would be used.[9] The parties had the opportunity to respond to Ms Murdoch's position. ForMrs Hancox, her position was maintained. The Commissioner was content to abidethe Court's decision. It appears that no response was received by Mr Hancox. Thefile was referred to me as Duty Judge this week, this being the first week of theresumption of usual (non-urgent) court business.[10] It is unclear why Ms Murdoch's application languished for as long as it did.However, it is apparent from Ms Murdoch's 2 December 2020 submission that herinterest in reporting on the matter remains. There is a public interest in the outcomeof the civil forfeiture procedure, including whether the school recovered some or allof their losses from Mr Hancox's fraud and, if so, when and how much. From myperusal of the file, the formal record appears to provide these details. She is entitledto the formal record as of right.4[11] If Ms Murdoch wishes to have access to more of the file in order to understandthe proceeding, she may do so. I accept that any media publicity about the matter maybe a source of stress for Mrs Hancox, but that will be so regardless of whetherMs Murdoch has access to the formal record only or has wider access. I am wellsatisfied that the principle of open justice and the freedom to seek, receive and impartinformation outweigh the confidentiality and privacy interests of the parties eventhough the criminal and civil proceedings have now concluded.5 I also agree withMs Murdoch that the Crimson Consulting case was of a different nature with quitedifferent public interest values than this one. It may well be that the allegations in thesupporting affidavit are not all accepted, but they relate to a criminal case where thefactual basis on which the conviction and sentencing proceeded was public.Ms Murdoch is a highly experienced court reporter and will know to take into accountany difference between the allegations in the affidavit and that factual basis.4 Senior Courts (Access to Court Documents) Rules 2017, r 8(1).5 Rules 12(d)-(f) and 13(c).[12] Accordingly, Ms Murdoch may have access to the formal court record. If shewishes to have access to the documents to which she originally sought access, in orderto assist her to understand the formal record, she may do so.Mallon J