IN THE SUPREME COURT OF NEW ZEALAND
SC 68/2006
[2007] NZSC 91
BETWEEN NOEL CLEMENT ROGERS
Appellant
AND TELEVISION NEW ZEALAND
LIMITED
Respondent
Hearing: 14 December 2006
Court: Elias CJ, Blanchard, Tipping, McGrath and Anderson JJ
Counsel: M J Corry and J Edgar for Appellant
W Akel and T J Walker for Respondent
Judgment: 16 November 2007
JUDGMENT OF THE COURT
The appeal is dismissed with no order for costs.
REASONS
Para No
Elias CJ [1]
Blanchard J [45]
Tipping J [59]
McGrath J [76]
Anderson J [140]
ELIAS CJ
[1] Can Television New Zealand Limited be restrained from using a police
evidentiary video in a proposed broadcast? That is the question for determination on
the appeal. The video records a July 2004 police interview with Mr Rogers. It
contains admissions that he was responsible for the death of Kathy Sheffield in 1994.
It shows a re-enactment of the way in which Mr Rogers in the interview says he
killed her. Mr Rogers was found not guilty of Ms Sheffield’s murder in December
2005. The jury had evidence of a number of confessions made by Mr Rogers. They
included evidence by police witnesses of a similar re-enactment and admissions by
Mr Rogers in 2001 when he described cutting Ms Sheffield’s throat “like a sheep”
after initially stabbing her in the chest, in the manner also described in the 2004
video. The jury did not however have the 2004 video played to them. It had been
ruled inadmissible by the Court of Appeal on the basis that it had been made in
“such a substantial breach of proper standards” under the New Zealand Bill of Rights
Act 1990 that its use in evidence would be “unprincipled”.1
[2] Television New Zealand was given a copy of the video shortly after it was
made by the police officer in charge of the case. It is not at all clear that he had
authority to provide the video to the company, but that question has not yet been
resolved. It is critical to understanding the legal status of the video and in particular
whether it is confidential information. Nor has the basis upon which Television
New Zealand received the video from the police been determined. Again, the
circumstances in which the video was supplied are critical to whether Television
New Zealand is itself under any duty of confidence in relation to it. There is an
unresolved dispute on the evidence about whether the use Television New Zealand
proposes to make of the video accords with the conditions upon which the video was
provided to it.
[3] Television New Zealand proposes to use the excluded video in a
documentary which will ask whether the admissions made on the video by
Mr Rogers have the appearance of truth or delusion (the explanation given by the
1 R v Rogers [2006] 2 NZLR 156 at para [73].
defence at trial for the other confessions which were in evidence). Inevitably, the
thrust of the documentary will question whether the acquittal of Mr Rogers was
justified and whether the jury might have found him guilty if the video had been
shown to them. Mr Rogers seeks to restrain the use of the video in this way. He
says such use would injure his privacy and dignity and would impede his efforts to
rebuild his life by calling into question the jury verdict. He raises concerns about his
safety, pointing to anger and threats directed against him in the Northland
community from which he comes. He says the broadcast of the video would deprive
him of effective vindication of his New Zealand Bill of Rights Act entitlements to a
lawyer and to refrain from making statements, which the Court of Appeal held to
have been breached by the police conduct in making the video.
[4] In the High Court, a Full Court comprising Venning and Winkelmann JJ
granted Mr Rogers an injunction restraining Television New Zealand from
broadcasting the whole or any part of the video.2 The Court also required Television
New Zealand to deliver up to the Court all copies of the video it held. The injunction
was granted on the basis that broadcast of the video would amount to wrongful
interference with Mr Rogers’ privacy, a wrong held to be actionable under the tort
recognised by the Court of Appeal in Hosking v Runting.3 The Court entertained the
application for injunction without requiring pleadings to be filed, as the High Court
Rules require. That course was unfortunate. It has inevitably led to uncertainty as to
the basis of the claims and the facts upon which they rest. It has no doubt
contributed to the fact that the police have not been joined as a party to the
proceedings, which has I think inhibited proper analysis of the case and appreciation
of the important public interest considerations at stake. The injunction was not an
interlocutory one, such as would have preserved the status quo until trial of the claim
of injury to privacy on proper pleadings. It was final relief appropriate to meet a
substantive determination of rights.
[5] The Court of Appeal allowed an appeal by Television New Zealand.4 It set
aside the orders made in the High Court. O’Regan and Panckhurst JJ, in a joint
2 Rogers v Television New Zealand Ltd (2005) 22 CRNZ 668.
3 [2005] 1 NZLR 1.
4 Television New Zealand Ltd v Rogers [2007] 1 NZLR 156.
judgment, accepted that Mr Rogers had an expectation of privacy in the video once it
had been ruled inadmissible at trial. They held however that the public interest in the
information it contained outweighed any privacy interest of Mr Rogers. William
Young P, while concurring in that conclusion, doubted whether there was sufficient
expectation of privacy in the video to support a claim in tort on the principles
recognised in Hosking v Runting.
[6] Mr Rogers appeals further by leave to this Court. The ground approved is
whether the Court of Appeal erred in setting aside the orders made by the Full Court.
I am of the view that the orders made by the Full Court should not have been made
in the form granted. The Full Court was not in a position to grant substantive relief,
as it purported to do. The underlying competing claims for privacy and the defence
of public interest should not have been considered in the absence of pleadings and on
a summary basis which left unresolved conflicts of evidence critical to the legal
position and the overall merits. The President of the Court of Appeal was right to be
troubled by the fact that the Full Court had determined “on a substantive basis” that
the proposed publication would amount to the tort of breach of privacy and had
treated the hearing as “the substantive trial of the proceedings”.5 It seems to me
however that there is the same vice in the Court of Appeal’s conclusion that
Television New Zealand had established a defence of legitimate public concern
which outweighed the injury to Mr Rogers’ privacy.
[7] I am of the view that the proceedings in the High Court and Court of Appeal
have gone astray and that the case should be remitted for further consideration by the
High Court. It would be open to the High Court to expedite the substantive hearing
on proper pleadings and completion of any further interlocutory steps. I would hold
the position by interlocutory injunction until further order of the High Court in
the meantime.
[8] I do not consider that the appeal can be disposed of at this stage on the
hypothetical basis of an application to access the video through the court record.
5 At paras [106] – [107].
That approach would leave the status of the video in the hands of Television
New Zealand unresolved on no very principled basis and assumes court control of a
copy on no very sound foundation.6 More importantly, it would I think be wrong to
pre-empt the substantive determination of important and well-arguable legal rights
by resorting to such strategem. In addition, the unresolved and disputed facts are
highly relevant to any discretion to grant access. Nor do I think that, except in
exceptional circumstances, this Court should act as decision-maker of first and last
resort in the exercise of a discretion in respect of which a trial judge is generally
acknowledged to have a particular advantage.7
[9] As mine is a minority view, I give my reasons briefly. Because some of the
facts I think important are not stressed in the fuller account given by McGrath J, it is
however necessary for me to refer to the background. And since other members of
the Court have expressed views on the proper scope of claims for privacy and the
considerations relevant to access to court records (matters which it is unnecessary for
me to consider on the view I take), I record my reservations. It should not be
necessary to say that open justice and freedom of information are fundamental
considerations. But I do not think the first is significantly engaged in the present
controversy, for reasons I explain. And both are necessarily affected in any
particular case by other fundamental principles, including the interests of privacy and
confidence, and the public interests in the proper exercise of police powers,
vindication of breached rights, the administration of justice, and the re-integration as
private citizens of those who have been publicly tried. These are important matters
which deserve more measured consideration.
Background
[10] Mr Rogers’ uncle, Lawrence Lloyd, was convicted in 1995 of manslaughter
in respect of the death of Ms Sheffield. From 2001, largely as a result of pressure
6 Stevenson J in Vickery v Nova Scotia Supreme Court (Prothonotary) [1991] 1 SCR 671 at p 682
raised questions about the property in exhibits. On one view, exhibits remain the property of
the party producing them and in many cases they are not retained on the court file after delivery
of judgment.
7 R v Mahanga [2001] 1 NZLR 641 at para [36] (CA) per McGrath J.
from Mr Lloyd’s family and admissions to them by Mr Rogers, the police reinterviewed
Mr Rogers, who had been questioned at the time of the earlier police
investigation in 1994. He made further admissions of responsibility to them in
interviews in November and December 2001. In one of these interviews, Mr Rogers
participated in a visit to the scene of the death and there described in some detail
how he said he had killed Ms Sheffield by cutting her throat. This reconstruction
was not filmed.
[11] The police were initially sceptical about the confessions. They seem to have
thought that the confessions of responsibility were false because they did not fit with
police understanding of the facts. They may have been wary of a background of
family pressure on Mr Rogers. No further steps were taken until a statement made to
the police by a cousin about a further confession caused a new investigation to be
undertaken by a fresh police team headed by Inspector Taare. Mr Lloyd’s conviction
was quashed by consent by the Court of Appeal in 2004 and a new trial was
ordered.8 Mr Lloyd had by then already served eight years of his sentence of 11
years and had been released on parole in January 2002. The Crown elected not to
proceed with the retrial of Mr Lloyd. By that stage, the investigation led by
Inspector Taare had formed the view that Mr Rogers was responsible for
Ms Sheffield’s death, as members of the family had maintained.
[12] The video was made by the police as a record of an interview and
reconstruction of the events with Mr Rogers as part of the further investigations and
for potential use as evidence. At the time it was made Mr Rogers had been charged
with murder and was in custody. His counsel had asked the police to have no
contact with Mr Rogers at which he was not present. Without notice to counsel, the
police arranged for Mr Rogers to be taken from prison for three days for the
purposes of the interview and reconstruction at the property at which Ms Sheffield
died. The video was ruled by the Court of Appeal to be inadmissible as evidence at
trial, overruling on the question of admissibility the decision of Cooper J in the
High Court.9
8 R v Lloyd (CA 72/02, 25 August 2004, Chambers, Williams and Panckhurst JJ).
9 R v Rogers (High Court, Auckland, CRI 2004-004-013121, 2 August 2005).
[13] The Court of Appeal took the view that Mr Rogers had been denied his rights
under the New Zealand Bill of Rights Act to consult and instruct a lawyer10 and to
refrain from making any statement.11 It ruled the video inadmissible on the basis
that its procurement was in “such a substantial breach of proper standards” under the
Bill of Rights Act that its admission would be “unprincipled”.12 The differentlyconstituted
Court of Appeal in the present appeal seems to have thought that an
explicit “Shaheed” balancing13 would have been a more conventional way to have
dealt with the question of admissibility.14 But elements critical to such balancing
were identified and considered by the Court in excluding the evidence. The Court
plainly considered the breach to be very serious. The video was not essential to the
Crown case because, as the Court of Appeal noted, although “important”, it was “not
the sole evidence in support of the charge”.15 (The admissible evidence of course
included the other confessions, including the detailed explanation in the 2001
interview of how the killing was said to have been carried out.) The seriousness of
the breach and the non-essentiality of the evidence are identified in Shaheed as
important considerations in striking the appropriate balance on exclusion
of evidence.
[14] It is worth remembering in connection with the exclusion of confessional
evidence that apparently reliable confessional evidence has led to significant
miscarriages of justice.16 That is the experience behind the strict requirements of the
New Zealand Bill of Rights Act. Blanchard J, in the leading judgment in Shaheed,
accepted a difference between real evidence and confessional evidence when
considering exclusion.17
[15] Before the Court of Appeal ruling and shortly after the video was made, a
copy had been given by Inspector Taare, the police officer in charge of the
investigation of the homicide, to Television New Zealand. A Television
10 Sections 23(1)(b) and 24(c).
11 Section 23(4).
12 At para [73].
13 R v Shaheed [2002] 2 NZLR 377 (CA).
14 At paras [27] and [127] per O’Regan and Panckhurst JJ.
15 At para [73].
16 For a summary of the reasons why defendants may make false confessions, see R v Oickle
[2000] 2 SCR 3 (per Iacobucci J).
17 R v Shaheed at para [151].
New Zealand reporter and cameraman had been present when the police brought
Mr Rogers from prison to the property where Ms Sheffield was killed, for the
purposes of the reconstruction. How they came to be there has not been explained.
The filming Television New Zealand undertook of the reconstruction was at a
distance and was of poor quality. Television New Zealand later asked
Inspector Taare for and was given a copy of the police video. The video would seem
to have been confidential information in the hands of the police,18 although its exact
status has not been determined to date by the courts which have considered the
matter. Whether Inspector Taare had authority to give the video to Television New
Zealand has not been established. On its face, some explanation for the action seems
necessary if it is to be reconciled with the Police Regulations 1992. They require
police officers to observe secrecy in relation to information obtained through their
duties unless the release of such information serves some proper police purpose.19
Similarly, in protection both of confidentiality and good public administration the
common law requires police officers to maintain confidence in information obtained
in the course of their duties unless release of the information serves some proper
operational purpose.20
[16] The basis upon which Television New Zealand received the video is
controversial upon the affidavit evidence and has not been resolved. It is
acknowledged to have been provided upon conditions. In themselves the imposition
of conditions as to use may be thought indicative of an assertion by the police of
confidentiality in the video and would be relevant to the knowledge of Television
New Zealand if confidence in respect of it is claimed. There is disagreement about
the conditions. Inspector Taare has deposed that the arrangement at the time the
video was supplied was that Television New Zealand was not to broadcast the video
until such time as Mr Rogers had been convicted of murder. (There seems to have
been some expectation that he would plead guilty.) He deposes that later, after the
video was ruled inadmissible by the Court of Appeal, he advised Television
New Zealand it could not be used “in any material way”. On either of these bases,
18 Hellewell v Chief Constable of Derbyshire [1995] 1 WLR 804 at p 810 (HC) per Laws J.
19 Regulation 7.
20 In relation to confidentiality, see Hellewell at pp 810 – 811 per Laws J. In relation to good
public administration, see R v Chief Constable of North Wales Police ex p AB [1999] QB 396 at
pp 409 – 410 per Lord Bingham CJ (HC); p 429 per Lord Woolf MR (for the CA).
the proposed broadcast could arguably be restrained as a breach of confidence, at
least by the police and probably by Mr Rogers.21 Television New Zealand does not
accept such restrictions were imposed however. Mr Wells, a television producer for
Television New Zealand, says the original understanding was that the video could be
used in a broadcast when the trial was over, whether or not a guilty verdict resulted.
He acknowledged that after the jury had retired there was a variation of the
arrangement by which broadcast would be delayed following a guilty verdict to
allow rights of appeal to be exercised and would be delayed in the eventuality of a
hung jury until after retrial. He said it remained understood that broadcast could
follow an acquittal.
[17] It is impossible to read these apparently casual arrangements, and the
disagreement about them, without a sense of unease. Information gathered as part of
their duties is not information police officers are entitled to deal with as they see
fit.22 They cannot provide it or withhold it from private interests at whim. There
must be some criminal justice or operational reason for its use. There may well be
good explanation for what happened. It is however impossible to know because of
the preliminary stage the proceedings have reached.
Substantive determination was premature
[18] It was understandable that the initial application for injunctive relief by
Mr Rogers was rushed. He learned on a Sunday two days after his acquittal that the
video was to be used in a broadcast that same day. His counsel made an oral
application for interlocutory injunction which was heard on a Pickwick basis.23 The
application was granted by Winkelmann J, the trial Judge, pending further
consideration at a hearing on notice. It was commendable that the Full Court
expedited a hearing four days later, on 15 December, and that it delivered its
decision so promptly on 22 December. But it was unfortunate that the hearing was
permitted to proceed under r 624 of the High Court Rules without a statement of
21 On the basis discussed by Lord Goff in Attorney-General v Guardian Newspapers Ltd (No 2)
[1990] 1 AC 109 at p 281.
22 Ex p AB at pp 409 – 410 per Lord Bingham (HC) and p 429 per Lord Woolf MR; Hellewell at
p 810 per Laws J.
23 An ex parte application at which the respondent is present.
claim, as r 628 required. Pleadings would have enabled proper identification of the
basis of the claim and would have brought important issues into focus. They include
the status of the video and the authority on which it came into the possession of
Television New Zealand. Proper constitution of the claim would also have focused
attention on whether the claim was appropriate for summary determination and, if
not, whether Mr Rogers’ position should have been protected by interlocutory
injunction in the meantime.
[19] It was argued on behalf of Mr Rogers that Television New Zealand could be
restrained from broadcasting the video on three bases:
? to prevent Television New Zealand tortiously injuring the privacy of Mr Rogers
? in application of the Court’s powers under s 138 of the Criminal Justice Act 1985
? to provide vindication for the breaches of the New Zealand Bill of Rights Act
which led to exclusion of the video from evidence at trial.
[20] Although I am of the view that the Court of Appeal was right to set aside the
permanent injunction, I think it was necessary for it to consider whether the position
should have been held by interlocutory injunction to enable these claims to be
properly constituted and heard in the High Court. The decision of the Court of
Appeal amounted to a summary rejection of the underlying substantive claims. It
was effectively a strike-out of the indicated claims. The Court is not to be criticised
for this approach on the way the matter was presented to it. But I think the urgency
of the initial application may have obscured appreciation on appeal that summary
dismissal was warranted only if there was clearly no prospect that the appellant
could succeed at trial in obtaining an injunction to prevent broadcast. And, in that
assessment, allowance needed to be made for the lack of pleadings and the novelty
and importance of the legal issues raised. If summary rejection of the claims was not
open, the Court of Appeal should have considered whether an interlocutory
injunction should have been granted until trial, on the principles applicable to such
temporary relief. As it is, I am left with the view that there may well have been
an injustice.
[21] Only one of the suggested bases for claim was, I think, appropriate for
summary rejection. I think it clear that the argument based on s 138 of the Criminal
Justice Act could not be used to grant Mr Rogers the relief he sought. Section 138
provides powers to forbid publication of reports of evidence or submissions at any
hearing. It is a power ancillary to hearing which has no application to the video in
the possession of Television New Zealand, as all members of this Court agree.
[22] The other bases for claim were not however appropriate for similarly
peremptory resolution for two reasons. First, the claims in privacy and for
vindication of breaches of the New Zealand Bill of Rights Act are clearly not
untenable as a matter of law. Although the facts which would substantiate a claim
have not been formally pleaded, they are sufficiently identified (even if some remain
unresolved) on the evidence before the Court. And in these under-developed areas
of law it would be wrong to be definite about the boundaries of claim. Secondly,
since the substantive relief sought depends ultimately on balancing disparate
interests, it is not possible to be confident that the balance falls one way or the other
until all interests are identified and their strength can be assessed in context. That
stage has not yet been reached. Indeed, on the face of it there are a number of
serious questions affecting the public interest which need to be addressed but which
so far appear to have been overlooked in an over-simplistic analysis which pitches
the private interests of Mr Rogers against the public interest in freedom of access to
information. Other public interests need also to be brought into the balance.
(i) The scope of the claims
[23] Dealing first with the scope of the underlying claims, I think it unfortunate
that without pleadings and proper identification of the issues the courts have been led
into expressions of opinion on the scope of the tort of privacy and the defence of
public interest. This Court should I think resist being drawn on the same basis into
expressing views on such questions. They have so far been explored only slightly in
New Zealand case law. In Hosking v Runting, Gault and Blanchard JJ emphasised
that the scope of the tort they there recognised required consideration on a case by
case and fact-specific basis.24 They did not purport to establish the limits of the tort
in all circumstances. I do not agree therefore with the suggestion made by
McGrath J at para [99] that it should be accepted for present purposes that the limits
of the tort of privacy are those stated in the majority opinions of the Court of Appeal
in Hosking v Runting, even though the parties were apparently content to approach
the matter on that basis.
[24] Hosking v Runting was a very different case from the present one. It had
none of the background circumstances of confidence or questions about proper use
of police authority which are present here. In Hosking v Runting, Gault P and
Blanchard J recognised that privacy overlapped with confidence. Indeed, they took
the view that the right of action of breach of privacy was “essentially the position
reached in the United Kingdom under the breach of confidence cause of action”.25 It
would therefore not be right in my view at this preliminary stage to ignore the
“overlapping” claim in confidence.
[25] In view of developments in other jurisdictions since Hosking v Runting was
decided, it is necessary to be cautious. I believe this Court should, for example,
reserve its position on the view expressed in Hosking v Runting (applying a test
suggested by Gleeson CJ in Australian Broadcasting Corporation v Lenah Game
Meats)26 that the tort of privacy requires not only a reasonable expectation of privacy
but also that publicity would be “highly offensive”. The test has been doubted by
members of the House of Lords in Campbell v MGN Ltd.27
[26] As indicated, Hosking v Runting did not purport to answer all questions about
liability where privacy interests are adversely affected. One that remains open and
which is of significance in the present case is the time at which expectations of
privacy must be assessed. Members of this Court seem to be of the view that the
relevant expectation of privacy must have been present at the time the video was
filmed.28 On the approach they take, that view largely determines the question of
24 At para [118].
25 At para [148].
26 (2001) 208 CLR 199.
27 [2004] 2 AC 457 at paras [94] – [96] per Lord Hope; para [22] per Lord Nicholls.
28 At para [48] per Blanchard J; para [63] per Tipping J; paras [104] and [105] per McGrath J.
expectation here because it must have been understood by Mr Rogers that the
interview could be admitted in evidence in the public forum of the Court. (Indeed,
the standard police caution warns as much.) The Court of Appeal took a different
view of the time at which an expectation of privacy should be assessed. O’Regan
and Panckhurst JJ considered the expectation at the time the video was ruled
inadmissible, and as a result concluded that there was a reasonable expectation of
privacy in it.29 The Canadian Supreme Court case of Vickery v Nova Scotia Supreme
Court (Prothonotary)30 (which was also concerned with post-trial publication of an
interview ruled inadmissible at trial) and the English cases of R v Chief Constable of
North Wales Police ex p AB31 (concerning the provision of information about the fact
of conviction, after prisoners had served their sentences) and Hellewell v Chief
Constable of Derbyshire32 (where the question concerned the use of a photograph
taken by the police with consent in the course of an inquiry) consider expectations of
privacy at the time of proposed publication. I mention these differences to indicate
that there are important points in issue which have not yet been resolved in
New Zealand law and which should not be resolved by this Court on a summary
basis. A conclusion that Mr Rogers can have no expectation of privacy in the video
may be inconsistent with the overseas authorities. I think it premature.
[27] Given the absence of proper identification of issues in the case, I also take the
view that the assertion of privacy should not be treated as precluding a potential
public law claim against the police. An interest in privacy can provide standing for
public law remedies, as the Ex p AB litigation illustrates. And where a third party
obtains information in breach of public law obligations, duties of confidence may
arise directly between the third party and the person affected by breach of public
law duties.33
[28] Nor do I think it is appropriate to determine on a peremptory basis what is or
is not sufficient vindication of established breaches of the New Zealand Bill of
29 At para [52].
30 [1991] 1 SCR 671.
31 [1999] QB 396 (HC and CA).
32 [1995] 1 WLR 804 (HC).
33 The basis upon which such confidence can arise outside a confidential relationship between the
parties is discussed by Lord Goff in Attorney-General v Guardian Newspapers Ltd (No 2) at
p 281, in a passage relied upon by Gault P in Hosking v Runting at para [27].
Rights Act. Vindication is contextual. And the scope of the relief available for
breach of rights guaranteed under the Bill of Rights Act depends upon the harm
suffered, as Baigent’s Case illustrates.34 It would I think be wrong to conclude that
exclusion of evidence is always complete redress for breach of ss 23 and 24 of the
Bill of Rights Act. Such conclusion is not required by existing authority in
New Zealand and is a point of considerable importance which should not be resolved
within the limitations of the present appeal.
[29] It is far from clear that exclusion of evidence is full vindication of the rights
here found to be breached. They are expressed in the New Zealand Bill of Rights
Act as stand-alone entitlements, not simply as rights instrumental in securing fair
trial or any other consequential interest. They provide freedom from oppression by
those exercising authority and recognise the vulnerability of those detained or
questioned, a vulnerability demonstrated by experience.
[30] In addition, consequential damage may include not only unfairness at trial but
also damage to interests of privacy and public interests such as the encouragement of
co-operation with the police. It is convenient to note here that I do not think this
Court should assume without more that police-facilitated media access to evidentiary
videos would not have an adverse impact on cooperation with the police. William
Young P in the Court of Appeal was prepared to accept there could be a deterrent
effect (although he thought such consideration had “comparatively little to do with
privacy”).35 There is an affidavit before the Court by experienced defence counsel
that she would not advise participation in such video interviews if the material could
end up being broadcast on the decision of the police officer in charge. Any apparent
police practice (as referred to in R v Mahanga)36 could not be determinative. The
public interest in the wider aspects of the administration of justice prompts care.
[31] There may be further public interest in the re-integration into the community
of those who have been interviewed by the police. They may be convicted
offenders,37 those who have been investigated and not charged, or those who have
34 Simpson v Attorney-General [Baigent’s Case] [1994] 3 NZLR 667 (CA).
35 At para [119].
36 [2001] 1 NZLR 641 (CA).
37 As in Ex p AB and Hellewell.
stood public trial and been acquitted.38 In Vickery, Stevenson J for the majority of
the Supreme Court of Canada made the point that those who have stood trial must do
so publicly but:39
[s]omeone who has been accused and convicted on the basis of selfincriminating
evidence obtained in violation of his Charter rights should not
be made to bear the stigma resulting from unrestricted repetition of the very
same illegally obtained evidence.
[32] Nor is it clear that the Court would not be able to grant relief against
Television New Zealand for breach by the police of the New Zealand Bill of Rights
Act. Duties of confidence can arise in respect of unrelated parties, as indicated at
para [27]. Television New Zealand may not be directly bound by the Bill of Rights
Act, but whether the courts can grant injunctive relief against it may turn on the basis
upon which it obtained the video from the New Zealand Police, who clearly are so
bound. Those circumstances remain contentious.
[33] The Court, which is bound by the New Zealand Bill of Rights Act, should be
careful not to complete or exacerbate the harm caused by breach of the rights secured
under it. I do not think it is right that the question of vindication of the breaches of
the Bill of Rights Act rights should be determined on the present appeal.
(ii) Open justice, freedom of information, and the other interests engaged
[34] Whether substantive injunctive relief is ultimately available depends on a
balance between the different interests engaged. Three matters are relied upon by
the majority in this Court in concluding that injunctive relief could not be available
on substantive determination. They are the approach taken to prior restraint in
defamation cases (which is suggested to be analogous), and the transcendent interests
of open justice and freedom of information. These considerations overlap.
[35] I accept that the requirement that court proceedings be conducted in public is
essential to the maintenance of confidence in the courts and the rule of law. As
foreshadowed, I do not consider that the interests of open justice are properly
38 As in Vickery.
39 At p 685.
determinative here. The trials of Mr Lloyd and Mr Rogers and the interlocutory
arguments which preceded them have been conducted in public, in hearings to which
the news media were admitted. The decisions as to the admissibility of the video are
publicly available. The decision of Cooper J in the High Court, ruling the video
admissible, contains a description of what it contains. Access to the video itself is
not necessary to permit others to make up their own minds whether the Court of
Appeal was right to exclude the video (or to dispel any mischievous suggestion that
restraining Television New Zealand from broadcasting the video is prompted by
concerns to protect the courts from criticism). The decision of the Court of Appeal
on admissibility did not turn on whether the video was compelling or believable or
obtained by direct oppression, considerations in respect of which the contents of the
video could well be relevant to the decision to exclude.40 Here, the exclusion was
based on breaches of the New Zealand Bill of Rights Act which preceded the making
of the video and which are not illuminated by viewing it. Indeed, the Court of
Appeal did not view the video at all in making its decision that the police breaches of
the Bill of Rights Act were so substantial that it would be “unprincipled” to admit it.
The circumstances that led the Court to that view are set out in its judgment. The
correctness of the Court’s decision can be fully considered in its own terms. There is
no question of protection of the judicial process from question. It has been openly
conducted throughout. The important principle of open justice would not in these
circumstances be impeded by protection of privacy or confidences in the video.
[36] I accept that restraining the broadcast of the video would restrict the right
contained in s 14 of the New Zealand Bill of Rights Act to “seek, receive, and impart
information and opinions of any kind in any form”. Section 14 affirms art 19 of the
International Convention on Civil and Political Rights. The exercise of the right in
art 19 is expressed to “carry with it special duties and responsibilities”. It is subject
to such restrictions as are necessary “for respect of the rights or reputations of
others”. As Keith J pointed out in Hosking v Runting, one limit given content by the
40 Oppression was the basis of the violation in the Canadian case of Vickery. Even so in that case
publication was restrained to protect the privacy of the accused following the quashing of his
conviction and the entry of an acquittal.
Convention is the freedom from arbitrary or unlawful interference with privacy.41 In
Campbell, Lord Nicholls emphasised that the right of freedom of information does
not have priority over other rights. That was the basis on which he rejected the
“highly offensive” test for restraining publication. He considered it gave an
unwarranted weighting to an unqualified freedom of expression.42
[37] Other rights and interests which may qualify the right under s 14 are the
rights under ss 23 and 24 of the Bill of Rights Act held to have been breached here
by the police conduct which led to the obtaining of the video. Their observance and
vindication are matters of public importance. It is proper to take into account the
protection of these rights in considering whether and to what extent it is necessary to
limit freedom of information or expression in the particular case. And in Vickery the
protection of the Charter right violated was the reason the Supreme Court, by a
majority, held that the confessional video should not be broadcast. In permitting
publication the court may complete the harm resulting from breaches of rights the
court is bound to uphold.
[38] In defamation cases, courts have been alert to the impact on s 14 of prior
restraint where interlocutory restraint is sought before trial, especially if the
publisher has indicated reliance on truth, qualified privilege, or honest opinion. In
such cases there is a greater willingness to decline interlocutory relief and rely on
vindication through damages, should the plaintiff succeed at trial. As Gault P and
Blanchard J pointed out in Hosking v Runting, however, a claim for privacy differs
from a claim for protection of reputation in defamation. As in confidence, the harm
is in the disclosure, which may be of information that is true. The analogy with
interlocutory restraint in defamation proceedings is imperfect and needs to be treated
with caution. Injunctive relief may well be appropriate.43 Whether freedom of
information considerations should prevail depends on the circumstances of the
particular case and all interests properly engaged. There are public interests in play
here beyond the simple clash in issue in Hosking v Runting.
41 At para [180].
42 At para [134].
43 As Gault P and Blanchard J in Hosking v Runting acknowledge at para [149].
[39] In Hosking v Runting the harm suggested for breach of privacy was regarded
by the Court as remote and speculative. The photographed images showed no more
than could have been seen by anyone present on the street and the privacy interest
was not considered to be high. The publication, like that in the Kingston matter
there referred to, “was unaccompanied by any private details or material that might
embarrass or inconvenience the child” whose privacy was in issue.44 Here, on the
other hand, it is acknowledged that publication will be harmful to Mr Rogers. The
concerns he has expressed cannot be dismissed as remote and speculative.
[40] There is public as well as private interest in the re-integration of Mr Rogers
after the inevitable notoriety resulting from his public trial and acquittal. In Ex p AB
Lord Bingham described it as “not acceptable” that those who had completed their
sentences should be “harried from parish to parish like paupers under the old
Poor Law”:45
It is not only in their interest but in the interest of society as a whole that
they should be enabled, and if need be helped, to live normal, lawful lives.
Similarly, it is in the interest of society as a whole that those who have stood public
trial and been acquitted should not be harassed by publication of information
obtained in breach of rights. The risks of harassment after trial were acknowledged
by Stevenson J for the majority in the Canadian Supreme Court in Vickery:46
Those subjected to judicial proceedings must undergo public scrutiny of
what is said at trial or on appeal and contemporaneous discussion is
protected, but different considerations may govern when the process is at an
end and the discussion removed from the hearing context.
…
Fair, accurate, contemporaneous reports are likely to be balanced, to display
the full context, and to expose the arguments on both sides. The subsequent
release and publication of selected exhibits is fraught with risk of partiality,
with a lack of fairness. Those policy considerations which form our attitude
towards the openness of the administration of justice are relevant to an
application such as this. Nugent cannot escape from proceedings in which
he was involved, nor from the fair and accurate reporting of them, but the
courts must be careful not to become unwitting parties to his harassment by
44 At para [168].
45 At p 414.
46 At pp 684 – 685.
facilitating the broadcasting of material which was found to have been
obtained in violation of his fundamental rights.
[41] Whether these considerations should prevail if the court hearing the
substantive claim gets to the point of considering relief is not something I express
any view on. What matters for present purposes is that the claims for privacy and
confidence are serious ones and the risk of real harm is high. There are questions
touching on the administration of justice in relation to police actions and the role
played by Television New Zealand which are relevant to the merits of the claim and
which cannot be resolved without investigation of the facts.
[42] Whether substantive injunctive relief is ultimately appropriate depends on
balancing disparate interests. It is not in my view possible to come to a clear view
on the necessary outcome of the substantive claim for injunctive relief on the basis of
summary consideration and without resolution of the conflicts in evidence about
matters highly relevant to the eventual balance to be struck. In particular, it is
difficult to see that any balancing of interests can properly be undertaken without
resolving key conflicts on the affidavit evidence filed as to the circumstances in
which Television New Zealand came into possession of the video and the conditions
it accepted as to its use.
In the interim, the position should be held by interlocutory injunction
[43] For the reasons given, I would allow the appeal and remit the substantive
claim to the High Court. On that basis, the interim position needs consideration. If
the matter had been considered as one for interlocutory relief, as was appropriate, it
would have been addressed on the basis of conventional principles applicable to such
relief, not distinctly discussed by the Full Court or the Court of Appeal. Of
particular importance would have been the extent to which a decision to grant or
withhold interlocutory relief would determine the substantive proceedings. That
consideration here favours restraint. If the video is used as proposed, any privacy or
confidentiality in it is lost.
[44] I am of the view that if the matter were to be remitted the balance of
convenience would clearly favour interlocutory restraint on publication. I accept that
the video conveys more information to viewers than appears in the descriptions of it
in the public domain, but the facts are largely within the public domain and comment
upon them is not restricted. It is the additional depiction which will cause the harm
to Mr Rogers. The video was obtained in breach of his rights under the
New Zealand Bill of Rights Act. It was excluded and therefore did not need to be
answered at trial, as the other confessions were to the apparent satisfaction of the
jury. He is therefore open to the claim that he would have been convicted if the
video had been admitted in evidence, undermining his acquittal and impeding his reintegration
into society. The circumstances in which the video came into the hands
of Television New Zealand are not known. On the face of things they may well give
rise to a claim of confidence which would be pre-empted by publication at this stage.
No urgency in publication is put forward. I would grant an interlocutory injunction
restraining the publication of the video until further order of the High Court, on
remission to it of the claim.
BLANCHARD J
[45] I gratefully adopt McGrath J’s account of the facts and of the court processes
in this case. The Court of Appeal has found that the videotape was made in breach
of the rights of Mr Rogers under ss 23 and 24 of the New Zealand Bill of Rights Act
1990. The Court ruled that the consequence of the breach should be that the
evidence on the tape was not admissible at his trial.47 Should the breach of his rights
receive further vindication in the form of an order denying Television New Zealand
Ltd (TVNZ) the ability to broadcast any part of the tape? Or is the likelihood of
some prejudice to Mr Rogers, including disturbance to that aspect of his right to
privacy often called the right to be let alone, outweighed by the requirements of open
justice – the general right of the public to know what has occurred in a courtroom –
and by TVNZ’s right to receive and impart information in accordance with s 14 of
the Bill of Rights Act?
47 R v Rogers [2006] 2 NZLR 156.
[46] A disturbing feature of the case is the manner in which the tape came into the
hands of TVNZ. That feature has attracted very little attention in the lower courts.
In releasing a copy of the tape to TVNZ the police would appear to have acted
beyond their powers, in that their action does not appear to have been taken with a
view to investigating the death of Ms Sheffield or prosecuting the case against
Mr Rogers. However, the police and TVNZ do not seem to have been afforded the
opportunity of giving an explanation. I have considered whether the proceeding
should be remitted to the High Court for this to occur. But as, for the reasons I shall
give, I am of the view that TVNZ would have succeeded if the proceeding were an
application by it under the rules governing search of court records in criminal cases48
for access to a videotape held by the High Court, I prefer to deal with the matter on
that hypothetical basis and avoid further delay in resolving the case. In this way any
improper advantage which may in fact have been obtained by means of the
circumstances in which the tape came into the possession of TVNZ is negated. I
therefore examine and determine the matter as if the application were by a
broadcaster which had never had possession of the tape. Proceeding on that basis, I
am of the view that TVNZ should be permitted to use the tape. I can briefly explain
how I come to that conclusion.
[47] Someone who has been acquitted at a criminal trial – against whom the
Crown case was not proved to the requisite high standard – cannot expect to be
thereby freed from public discussion of the events which led to the trial and at the
trial itself, though they may of course have the benefit of the law of defamation if
anyone asserts that they were in fact guilty of the crime of which they have
been acquitted.
[48] Mr Rogers claims that his privacy will be invaded by any broadcasting of the
videotape. I do not accept that proposition. Anyone who agrees to be interviewed
for the purpose of a criminal investigation, and in that connection elects to make a
statement to the police, cannot persuasively claim to have had a reasonable
expectation of privacy concerning that occasion. The very purpose of the police,
which must be well understood by the person who makes the statement, is to obtain
material from the statement with a view to putting it in evidence before a court,
48 Criminal Proceedings (Search of Court Records) Rules 1974.
where it will become public knowledge. It is fanciful to suggest in this day and age
that the maker of such a statement will not know this or will be influenced in
deciding whether or not to make a statement by the belief that the evidence may
possibly be ruled inadmissible and will then not be given in court. As a court record
it will remain available for search in accordance with the rules. Further, persons
suspected of offending are unlikely to be deterred from giving videotaped interviews
by the apprehension that the tapes might be publicly broadcast by television. The
Court of Appeal in R v Mahanga49 rightly saw the suggestion that suspects might be
deterred as a speculative proposition. It observed that there had at the time of that
case been recent incidents in which the police had themselves facilitated access to
such interviews, which indicated that they had no such concerns. The conduct of the
police in the present case in making a copy of the tape available to TVNZ reinforces
that observation.
[49] Obviously enough, a refusal to grant Mr Rogers the relief he seeks (or, on the
basis on which I am approaching this case, to allow the broadcaster access to the
tape) will be to his disadvantage. It does not “wind the clock back” by putting him
where he would have been if no breach of his rights had occurred. In the
circumstances, which included grave breaches of Mr Rogers’ rights to the assistance
of counsel and to be silent, the tape should never have come into existence. But Mr
Rogers has already had a very large measure of vindication by means of the order of
the Court of Appeal which prevented the content of the tape being admitted in
evidence against him at his trial. Normally that is the only vindication necessary for
a breach of this nature. There will usually be little or no further publicity and so no
residual prejudice to a defendant who, post trial, may well have an expectation of
being let alone. In this case, however, it must be assumed there will be prejudice to
Mr Rogers if the tape is broadcast, but that has to be balanced against other
important considerations, namely TVNZ’s right to freedom of expression under s 14
of the Bill of Rights Act and, rather more significantly in the particular
circumstances, the principle that the administration of criminal justice should be
done openly. The Court of Appeal remarked in Mahanga,50 and I agree, that
openness in the operation of the criminal justice system provides a form of judicial
49 [2001] 1 NZLR 641 at para [44].
50 At para [18].
accountability to informed public opinion and an incentive to sound and principled
exercise of judicial power. Whenever information regarding a criminal proceeding is
suppressed that accountability and that incentive may be weakened.
[50] In Mahanga the Court in fact upheld the High Court’s refusal to give TVNZ
access to a videotape of Mr Mahanga’s police interview. It did so because the tape
had already been played at his trial, to which the public had at all times been
admitted. What the Court called the right to open justice had thereby been satisfied.
Granting TVNZ access to the tape would not have added to the substance of publicly
available information. The role of the media in informing the public, as an important
means of securing open justice, was for that reason not accorded significant weight.51
[51] The present case is different. The evidence of the tape was not made public
at the trial of Mr Rogers. To my mind, it is important that where evidence has been
excluded the public should afterwards be able to learn what that evidence was, and
why the jury was not permitted to know of it and to take it into account in arriving at
a verdict. The public may come to lack confidence in a criminal justice system
which, without very good reason, such as the desire to protect the reputation of a
victim,52 permanently suppresses such information. In the absence of information
about what a jury could not be told, a significant component will be absent from
public discussion concerning the operation of the legal system in the particular case.
Ill-informed commentary is likely to occur if the public is left to speculate about the
nature of the material in question and why it was excluded from the evidence seen
and heard by the jury. Such speculation is not in the interests of the administration
of justice. Suppression may itself promote distrust and discontent, as the Court of
Appeal pointed out in Television New Zealand Ltd v R.53
[52] Some of the information on the Rogers videotape has already been made
public through the High Court admissibility judgment.54 That might be seen as a
reason for concluding that the combination of the s 14 right and the open justice
51 At para [39].
52 See s 138 Criminal Justice Act 1985.
53 [1996] 3 NZLR 393 at p 397 per Keith J.
54 R v Rogers (High Court, Auckland, CRI 2004-404-013121, 2 August 2005). Other statements
containing admissions by Mr Rogers, not necessarily consistent with the videotape, were put in
evidence at the trial.
principle does not require the release of the tape to a broadcaster. In many cases a
description in a judgment of the inadmissible evidence will effectively paint the
whole picture. Open justice will not require more. But I am not satisfied that it will
do so in this very unusual case where the tape contains, as well as the verbatim
record of what Mr Rogers said, images of his reconstruction of the circumstances of
Ms Sheffield’s death. I agree with McGrath J’s conclusion that there is significantly
more information on the tape than in the textual description given by Cooper J.
Indeed, that is something of an understatement. The Court of Appeal judgment on
admissibility gives no account at all of the content of the videotape, save mentioning
that it included “a detailed account of the manner in which Mr Rogers killed
Ms Sheffield”.55 Cooper J’s judgment in the High Court on admissibility does give a
short account, in total dealing with the content in about one page of description,
including some brief quotations.56 In contrast, the full transcript is 11? pages and
the video itself is about 20 minutes long and shows Mr Rogers demonstrating to a
police officer the way in which he said Ms Sheffield was killed. While the images,
given their subject, are not especially dramatic – Mr Rogers’s demonstration is
almost matter-of-fact – they do have a dimension which obviously cannot be
captured by a judge’s summary.
[53] It may be suggested that the public do not need to know the content of the
videotape because the decision to rule it inadmissible was made on the basis of
events which preceded its creation. That is why the Court of Appeal’s judgment on
admissibility contained no description of that content. The tape did, however,
contain material which, if heard and seen by the jury, may have assisted the
prosecution case.
[54] I have said that this case is very unusual. It has attracted great public interest,
but not because the killing of Ms Sheffield was in itself out of the ordinary. It is an
unfortunate commentary on our society that it was, as an incident, simply another
homicide, seemingly as a consequence of consumption of alcohol and drugs. What
makes the case unique, in this country at least, is that, first, one man was found
guilty of the manslaughter of Ms Sheffield and years later was held to have been
55 At para [32].
56 At paras [62] – [65].
wrongly convicted and, then, another man was tried for her murder and acquitted,
notwithstanding what might have appeared to be a confession which was ruled
inadmissible. I am not indicating any doubt about the legal soundness of that ruling
when I say that public concern at this state of affairs is very understandable. It is
appropriate for the media, representing the public interest, to seek to scrutinise how
it has come about. In these circumstances the media, and through them the public,
should have all the relevant facts available.
[55] I entirely concur in the following observations of William Young P in the
Court of Appeal:57
[128] I agree that the underlying issues can be debated without the videotape
being shown on national television. But experience shows that arguments are
usually more easily understood where they are contextualised. An esoteric
argument about the way the New Zealand Bill of Rights Act is applied by the
Courts becomes far more accessible to the public if the implications can be
assessed by reference to the concrete facts of a particular case. In that context,
to prohibit the proposed broadcast of the videotaped confession and
reconstruction would necessarily have the tendency to limit legitimate public
discussion on questions of genuine public interest.
[56] The President added that there may be some public scepticism about the way
the criminal justice system as a whole has dealt with the case. He considered that in
this context it would be very damaging to the judiciary if the courts were perceived,
or could be portrayed, as seeking to shut down public discussion about what
happened. The important point the President was making, I think, is that if
confidence in the judiciary is diminished by such a perception or portrayal, the whole
of our system of justice is thereby damaged.
[57] In the present case, in which there may, rightly or wrongly, be public disquiet
about the outcome of the judicial process, it is proper that all the visual and oral
information on the videotape be publicly available.
[58] I would dismiss the appeal with the consequences as stated by McGrath J.
57 Television New Zealand Ltd v Rogers [2007] 1 NZLR 157.
TIPPING J
[59] The background to this appeal has been set out in McGrath J’s reasons. I
agree with him that Mr Rogers’ appeal should be dismissed. I do not propose to
comment on the circumstances in which Television New Zealand Ltd gained
possession of the videotape. I will regard those circumstances as having no
influence on whether TVNZ should be restrained from broadcasting the tape or
excerpts from it. Whether the police behaved improperly is not a matter I would
wish to address in the absence of properly pleaded allegations. There are also no
properly pleaded allegations against TVNZ in relation to its acquisition of the tape.
[60] Mr Rogers based his case for restraining TVNZ from broadcasting the tape
on three grounds. The first was the tort of invasion of privacy; the second was
s 138(2) of the Criminal Justice Act 1985; and the third was the need for further
vindication of the breach of his rights under ss 23 and 24 of the New Zealand Bill of
Rights Act 1990. Both for the reasons McGrath J has given and those which I give
later in these reasons, I am of the view that each of these three grounds must fail.
Strictly speaking that is all that needs to be said.
[61] It is nevertheless appropriate, for the reasons given by Blanchard J,58 to
examine the case on the premise that TVNZ did not have possession of the videotape
and was seeking access to it under the ordinary rules which apply to the search and
use of court records. TVNZ’s position is then the same as any other person seeking
to gain access to and use the tape for the purpose of a public broadcast. This
approach was signalled at the hearing and the parties were given an opportunity to
address it. There is sufficient material before the Court for the point to be
satisfactorily assessed on this basis. I will examine the matter in this way without
prejudice to what influence the circumstances in which TVNZ came into possession
of the videotape might have had on the outcome of this case if those circumstances
had been the subject of fuller factual and legal examination.
58 See Blanchard J’s reasons at para [46].
[62] When the case was heard in the High Court, Mr Rogers had not filed any
statement of claim, as he should have done. But the grounds upon which he sought
permanently to restrain TVNZ from broadcasting the video were articulated in some
detail in the application for the injunction which he sought. They did not include
any reference to breach of confidence or any other equitable or tortious basis for the
restraint. No application has been made for remission. Nor has Mr Rogers
expressed any concern that there was an evidentiary shortfall in his case.
[63] When Mr Rogers took part in the reconstruction which the videotape records,
he must have known that it was intended that the videotape would be shown to the
jury in a public courtroom. He must also have known that the public would thereby
become aware of what he was saying and doing during the reconstruction. Whether
he appreciated the prospect of excerpts from the tape being shown on national
television as part of the reports of the case or a later documentary is not known. I do
not consider Mr Rogers had any reasonable expectation of privacy in the
reconstruction or the videotape which recorded it, whatever date is taken for that
assessment. The Court of Appeal’s ruling that the evidence should be excluded
cannot alter the essentially public nature of the reconstruction exercise. We are not
dealing with private facts. Nor can the position here logically be any different if the
assessment is made at the time of the intended broadcast. Hence the tort of privacy
cannot assist Mr Rogers. The question whether restraint of the broadcast should be
ordered as further vindication of the breach of Mr Rogers’ rights is a separate issue.
[64] The videotape was ruled inadmissible at Mr Rogers’ trial for the reasons
which McGrath J has explained. In short, the police breached the right he had, as a
person charged, to counsel (ss 23 and 24 of the Bill of Rights Act) and his right to
silence (s 23). The ruling of the Court of Appeal does not, however, of itself mean
that the videotape became “inadmissible” for other purposes. The weight that should
be given to the inadmissibility of the videotape for the purposes of the murder trial,
when assessing the competing interests of TVNZ and Mr Rogers for present
purposes, is one of the central issues before us. How far should the breach of the
Bill of Rights Act which led to inadmissibility at the murder trial influence the use
which should be permitted of the videotape for other purposes?
[65] In my view the breach of Mr Rogers’ rights was fully vindicated by the order
preventing the videotape from being given in evidence at his trial. I do not consider
ss 23 and 24 of the Bill of Rights Act, which affirm the rights of persons arrested or
detained or charged with an offence, are designed to protect an accused person’s
privacy or reputational interests. Those interests are protected by the tort of invasion
of privacy and by the tort of defamation. Each of those torts represents a careful
working out of the public interests at stake, both generally and in the area of prior
restraint. Sections 23 and 24 and the closely related s 25 are designed to protect the
interests of those accused of crimes by ensuring that both police processes and trial
and pretrial processes are fair.
[66] Understandably, Mr Rogers made much of the fact that he was acquitted. An
acquittal is not, however, a declaration of innocence. It means no more than that the
case against the accused person has not been proved.59 An acquittal does not bar
allegations that the person concerned is actually guilty. Anyone making such an
allegation will of course be liable to pay damages in defamation unless they can
prove the truth of what they allege. It is a cardinal feature of defamation law that a
defendant who undertakes to justify (prove truth) will not be made the subject of
prior restraint by interim injunction unless the case for justification could not
possibly succeed.60 That view is seldom, if ever, taken against a responsible news
media organisation. The plaintiff has a remedy in damages if the plea of truth fails.
This approach to prior restraint in such cases has been carefully worked out so as not
to encroach in advance on rights to freedom of expression. The position is broadly
analogous in relation to the tort of invasion of privacy. In any broadcast of the
videotape or parts of it TVNZ will have to be careful to avoid giving the impression
that Mr Rogers is in fact guilty of the murder of which he was acquitted, unless
TVNZ is prepared to justify or run the risk of paying heavy damages.
[67] I come now to address the matter on the basis foreshadowed in para [61].
The rules relating to the search of court records envisage the balancing of competing
interests.61 It is difficult to posit a case in which the principle of open justice will
59 See R v Degnan [2001] 1 NZLR 280 at para [34] (CA).
60 See Gatley on Libel and Slander (10th ed, 2004), ch 25.6; Bonnard v Perryman [1891]
2 Ch 269; TV3 Network Services Ltd v Fahey [1999] 2 NZLR 129 (CA).
61 R v Mahanga [2001] 1 NZLR 641 at paras [32] – [33] (CA).
not, to a greater or lesser extent, be a factor in favour of release. It is therefore
generally appropriate to administer the rules on the basis that unless there is some
good reason for withholding the material concerned, members of the public, or at
least those with a bona fide purpose in obtaining the information, should be entitled
to it. The freedom of information culture which exists in New Zealand, and its
counterpart, the right to freedom of expression, both justify this general approach. In
practical terms the effect of this approach is that if the balance of competing factors
is even, the material in question should be released.
[68] What then is the case which Mr Rogers presents against disclosure?
Essentially his case rests on privacy considerations and a concern that the videotape
was brought into being in circumstances which breached his rights under ss 23 and
24 of the Bill of Rights Act. For reasons already mentioned I consider Mr Rogers’
privacy interests are not of great weight. The fact that prior restraint under the tort of
invasion of privacy is clearly not available does not of itself mean that Mr Rogers
cannot rely on privacy considerations to resist disclosure. But the absence of any
reasonable expectation of privacy suggests that any residual case in favour of
Mr Rogers’ privacy interests must be slight. Furthermore, the general subject matter,
that is, Mr Rogers’ confession to the murder, is already in the public arena. The
public already know that he confessed and that his confession was ruled
inadmissible. As counsel accepted, the privacy interest must therefore be found in
the manner and circumstances in which the confession was made rather than in the
confession itself. It is only the “enhancement” of the confession by showing “live”
the circumstances in which it was made that can be the basis of any privacy concern.
[69] I accept that from Mr Rogers’ point of view the enhancement dimension is a
material factor. I have carefully considered the weight which should be given to it. I
have also considered whether further vindication of the breach of Mr Rogers’ rights
requires the Court to restrain TVNZ. I do not consider that is so. The purpose for
which the relevant rights exist has been fully vindicated. Mr Rogers can never be
retried. The further jeopardy in which he may stand, if the videotape is screened, is
reputational. But, as I have said, a verdict of acquittal is not a complete bar to future
allegations of guilt, however dangerous they may be for their maker.
[70] I have also carefully borne in mind the submission that Mr Rogers wishes to
be able to rehabilitate himself without further public intrusion and scrutiny. His
submission is that it would be unfair to interrupt or set back the rehabilitative process
which he has undertaken over the past 18 months. It is important in this respect to
remember that the issue which must ultimately be addressed is whether the High
Court was right to deny TVNZ the ability to screen the video. At that time the
verdict had very recently been given and TVNZ was intending to screen its
programme in close proximity to the conclusion of the trial. Had that been done the
effect on Mr Rogers would have tended to merge with the effect of the trial itself and
its associated publicity. The fact that nearly two years have now elapsed will
naturally cause Mr Rogers greater personal cost. But that is the result of his having
taken steps to prevent TVNZ from showing the video. He cannot be in a better
position now than when the matter was before the High Court.
[71] On the other side of the ledger there are strong points which favour allowing
TVNZ to broadcast the videotape. The public have a legitimate interest in being
informed about the whole course of the investigation and the trials in relation to the
death of Ms Sheffield. Two people have been charged and ultimately neither has
been found guilty. The Court of Appeal differed from the High Court over whether
the videotape should be admitted in evidence. The conduct of the police in setting
up the reconstruction in circumstances which led to its being declared inadmissible is
also a justified subject of public scrutiny, as is whether the Court of Appeal was
correct in reversing the High Court.
[72] It was said in argument that the public did not need to see the videotape when
they already have the judgments of Cooper J and the Court of Appeal explaining
their differing conclusions as to whether the videotape should be admitted. I do not
consider that argument carries much weight. In the first place the showing of the
videotape is what is important for a visual medium like television. In the second I do
not consider that legitimate public debate about the admissibility ruling and the
circumstances of the case generally can take place effectively without the public
being fully informed by access to the video itself. I say that because the public are
entitled to be satisfied that the courts have, in their judgments, fairly portrayed the
substance of what Mr Rogers said and did during the videotaped reconstruction. The
public are also entitled to assess for themselves whether the law generally and its
application to this case strike the right balance between vindicating breaches of the
Bill of Rights Act and the effective prosecution of crime. I am not expressing any
view about that issue myself. I am simply pointing out that this is a matter of
legitimate public interest and unless the videotape is released the public will be less
than fully informed. Only if the case for withholding the material in question is of
sufficient strength should the public have to consider the matter on a less than fully
informed basis.
[73] Concerns were also expressed that TVNZ might wish to present the video or
selected aspects of it in a “sensationalist” rather than a dispassionate and balanced
way. That argument invites the Court both to speculate and to enter into the murky
waters of presentational censorship and editorial control. I would decline the
invitation. The videotape should either be made available to TVNZ or it should not.
Matters of presentational and editorial judgment should be left where they belong. If
it transpires that there are concerns about how the videotape has been used, they can
be addressed by recognised causes of action or by reference to the Broadcasting
Standards Authority.
[74] One final point should be mentioned. The courts must be careful in cases
such as the present lest, by denying access to their records, they give the impression
they are seeking to prevent public scrutiny of their processes and what has happened
in a particular case. Any public perception that the courts are adopting a defensive
attitude by limiting or preventing access to court records would tend to undermine
confidence in the judicial system. There will of course be cases when a sufficient
reason for withholding information is made out. If that is so, the public will or
should understand why access has been denied. But unless the case for denial is
clear, individual interests must give way to the public interest in maintaining
confidence in the administration of justice through the principle of openness.
[75] After balancing all the competing considerations, I have reached the view
that the balance comes down clearly on the side of allowing TVNZ to use the
videotape in its proposed programme. Mr Rogers’ privacy and allied personal
interests are relatively slender as against freedom of information concepts and the
presence in this case of a legitimate public interest in how the law has operated.
Mr Rogers has not, in my view, demonstrated that there is good cause for
withholding the video from TVNZ.
McGRATH J
Introduction
[76] In 2005 the appellant, Mr Rogers, was tried by a jury for the murder in 1994
of Kathy Sheffield. Prior to the trial, in the course of a police interview at the site of
the homicide, he had admitted to killing her. The Crown’s intention was that a
videotape of the interview should be played to the jury at the trial but, on a pretrial
application, the admissibility of the videotape was challenged by Mr Rogers. The
Court of Appeal decided that the interview had been conducted in breach of
Mr Rogers’ rights under the New Zealand Bill of Rights Act 1990, as a person
charged, to have the assistance of counsel and to be silent.62 It held that the
videotape should not be admitted at the trial. The trial on the murder charge
proceeded and Mr Rogers was acquitted.
[77] Soon after the interview, and well before the trial, the respondent, Television
New Zealand Ltd (TVNZ), obtained a copy of the videotape from the police.
Immediately after his acquittal Mr Rogers learned that TVNZ proposed to broadcast
a current affairs programme concerning the death of Ms Sheffield and subsequent
court proceedings relating to the homicide. The programme was to include excerpts
from the videotape of the police interview.
[78] Counsel for Mr Rogers immediately took steps to restrain TVNZ from
including any images from the videotape in its programme. He was successful in the
High Court, but the Court of Appeal reversed that decision on appeal. The issue
directly raised in Mr Rogers’ appeal to this Court is whether he has a right to prevent
TVNZ from broadcasting the videotape on the ground that the broadcast would
62 R v Rogers [2006] 2 NZLR 156.
breach his rights to privacy.63 A copy is, of course, already in the possession of
TVNZ. If it is decided that he has no enforceable privacy rights a further issue arises
as to whether the Court has any jurisdiction to control the future use of the videotape.
If there is such a jurisdiction, the Court must decide the basis on which it should be
exercised in this case.
[79] In this Court Mr Corry, on behalf of Mr Rogers, based his argument that the
videotape should not be broadcast on three grounds. The first ground was centred on
the tort of privacy. The second was that broadcast should be prevented using
s 138(2) of the Criminal Justice Act 1985. The third ground was that further
vindication was needed for the breach of Mr Rogers’ rights under ss 23 and 24 of the
Bill of Rights Act. I address the first and third grounds in this judgment. The
second ground, under section 138(2) of the Criminal Justice Act, cannot succeed.
This section confers on a court the power to control what may be published
concerning what has happened in court. It cannot be used by a later court to prevent
the broadcast of evidence which was introduced in earlier separate proceedings. In
other words, the power to forbid the publication of evidence conferred in
subs 138(2), in the context of s 138 as a whole, can only sensibly relate to evidence
in a proceeding the court is then hearing.
Background
[80] In September 1994 the body of Kathy Sheffield was found in a shallow grave
on the property of Mr Lawrence Lloyd at Mangonui in Northland. He was charged
with her murder. At his trial, in 1995, he was acquitted of murder but convicted of
manslaughter and sentenced to 11 years imprisonment.
[81] In August 2004 the Court of Appeal gave Mr Lloyd leave to appeal against
his conviction out of time. The Court allowed his appeal by consent and quashed his
63 The basis of Mr Rogers’ proceeding was that the broadcast of the videotape would be a
wrongful publication of private information under principles stated in Hosking v Runting
[2005] 1 NZLR 1 (CA).
conviction for manslaughter.64 Mr Lloyd subsequently pleaded guilty to a charge of
improperly offering an indignity to the dead body of Ms Sheffield.
[82] The appellant, Mr Rogers, is the nephew of Mr Lloyd. Mr Rogers had
originally been interviewed by the police about the homicide in September 1994 and
was further interviewed on three occasions in the latter part of 2001, when the police
were conducting a fresh investigation into the circumstances of Ms Sheffield’s death.
In the course of these interviews Mr Rogers confessed to having murdered
Ms Sheffield. He visited the property where she was killed with the police and
indicated where he believed he had disposed of a knife. Because, however, they saw
inconsistencies between his admissions and known facts concerning the homicide,
the police decided not to charge Mr Rogers at that time.
[83] During 2003 Mr Rogers was interviewed once more in the course of a further
police investigation, this time headed by Inspector Taare, and he was interviewed
again on 15 March 2004. On the latter occasion he told the police that his
admissions in 2001 had come to him in a dream but later, in the same interview, he
repeated his confession and described the circumstances of Ms Sheffield’s death in
some detail. He also told the police that he had thrown cloth that he had used to
clean up blood down a long-drop toilet. The police undertook excavation and
located blood-stained clothing at the bottom of what had been a toilet on
the property.
[84] On 30 June 2004, nearly ten years after her death, Mr Rogers was charged
with the murder of Ms Sheffield.
[85] The following morning Mr Rogers appeared in the Auckland District Court
on the murder charge. Counsel representing him, Mr Corry, spoke with Inspector
Taare prior to the Court sitting and asked him not to have any further conversations
with Mr Rogers without first notifying counsel. Nevertheless, Inspector Taare and
another police officer met with Mr Rogers in prison during the day without
informing Mr Corry. On encountering Mr Corry, when leaving the prison, they
maintained that they had not discussed the case with Mr Rogers. Mr Corry wrote to
64 R v Lloyd (CA 72/02, 25 August 2004, Chambers, Williams and Panckhurst JJ).
Inspector Taare the next day reiterating his earlier request that he cease to have
contact with Mr Rogers.
[86] The police officers also spoke to Mr Rogers the following day, when he
asked that they get a message to his aunt, a Mrs Lloyd, asking her to contact him.
The message was passed on and on 4 July 2004 Mrs Lloyd told the police that, in a
telephone conversation with her, Mr Rogers had confessed to murdering
Ms Sheffield. Subsequently, after she and another relation had visited Mr Rogers in
prison, a visit facilitated by the police, Mrs Lloyd advised Mr Taare that Mr Rogers
wished to be taken by the police officers to Mangonui and that he would assist the
police with their investigation. Mrs Lloyd was provided with, and later obtained
Mr Rogers’ signature on, a form of consent which the police had prepared, to his
being taken to Mangonui to assist the police with their inquiries.
[87] On 13 July 2004 Mr Rogers was taken by the police from prison to the
property at Mangonui. There he participated with a detective sergeant in a
reconstruction of the events leading to the death of Ms Sheffield, which the police
recorded on videotape. In the course of the reconstruction, Mr Rogers gave a full
description of what happened in response to questions. He admitted that he had
killed the victim, saying that he had initially inflicted stab wounds to Ms Sheffield’s
stomach and that, after she had fallen to the ground, he had cut her throat. He
demonstrated on the detective what he was describing, with gestures, which were
recorded on the videotape. Reporters, a field producer, and a cameraman from
TVNZ were also present on the property during the reconstruction, separately
filming what was happening from a distance. The following day the appellant was
taken back to prison in Auckland.
[88] Later, Inspector Taare was approached by the TVNZ producer and asked to
provide a copy of the police videotape. Inspector Taare agreed. The police provided
TVNZ with a copy of the tape in late July 2004. There was a difference between
Inspector Taare and the producer concerning what conditions were placed by
Mr Taare on when TVNZ might broadcast the tape. It is, however, common ground
that they agreed it was not to be broadcast before the conclusion of the criminal
proceedings that had been brought against Mr Rogers.
[89] Prior to his trial in the High Court Mr Rogers challenged the admissibility of
the videotaped record of the reconstruction at Mangonui. On 2 August 2005
Cooper J ruled that the videotape was admissible evidence.65 Mr Rogers appealed to
the Court of Appeal against the High Court’s ruling. In its judgment the Court of
Appeal accepted the submissions made on behalf of Mr Rogers.66 The Court decided
that the reconstruction at Mangonui amounted to a breach of an arrangement which
the police had reached with Mr Rogers’ counsel concerning any further interviews.
It also found that the police had not told Mr Rogers why they wanted him to go with
them to Mangonui for a three-day period. At the time he agreed to go Mr Rogers
was in a position of distinct vulnerability. The Court decided that Mr Rogers had not
waived his right to silence, nor his right to counsel, in agreeing to go to the place
where Ms Sheffield had been killed and assist the police with their inquiries there.
His protected rights had been breached by the police in such a substantial manner
that admission of the important evidence of what took place at Mangonui would be
unprincipled. Mr Rogers’ appeal was accordingly allowed and the videotape held to
be inadmissible at his trial.
[90] At Mr Rogers’ trial the Crown called evidence of other admissions he had
made. Mr Rogers’ defence was that these were the result of his confusing elements
of what had been a dream with reality. This confusion, he said, had led him to make
false admissions to the police about having murdered Ms Sheffield. On Friday
9 December 2005, following a five-week trial, the jury acquitted Mr Rogers
of murder.
The injunction proceeding
[91] On Sunday 11 December 2005 Mr Rogers learned that TVNZ intended to
broadcast a current affairs programme that evening concerning the circumstances of
Ms Sheffield’s death, and the subsequent court processes. The programme would
65 R v Rogers (High Court, Auckland, CRI 2004-004-013121, 2 August 2005).
66 R v Rogers [2006] 2 NZLR 156.
include footage from the police videotape. It would specifically question whether
the reconstruction and confession shown on the videotape was fantasy or a dream on
the part of Mr Rogers.
[92] Later that day Winkelmann J heard, on a Pickwick basis, and granted an oral
application by Mr Rogers for an interim injunction to restrain TVNZ from
broadcasting the programme. On 15 December 2005 Venning and Winkelmann JJ,
sitting as a Full Court of the High Court, heard argument from counsel for
Mr Rogers and TVNZ, and from Mr Miles QC as amicus curiae, on whether a
permanent injunction should issue. No statement of claim had been filed in the
interim and the case proceeded to its urgent substantive hearing on that basis. The
appellant had, however, filed an application for a permanent injunction and the
respondent a notice of opposition, both with particularised grounds. Each was fully
aware of the other’s position.
[93] Senior counsel also appeared for the Commissioner of Police at the hearing
on 15 December but was granted leave to withdraw. The police have accordingly,
by their own choice, taken no further part in these proceedings.
[94] The High Court Judges delivered a reserved judgment on 22 December
2005.67 They held that Mr Rogers had established the requirements for a claim in
tort against TVNZ based on interference with his privacy. The Court decided that
once the tape had been ruled inadmissible at his trial, Mr Rogers had a reasonable
expectation of privacy in relation to its future use. This included a belief that the
tape would not be released by the police to the media and that the Courts would
regulate any future public use.68 In this respect the High Court was influenced by the
fact that the videotape was the product of breaches of Mr Rogers’ protected rights
which amounted to substantial breaches of proper standards of police conduct.69
This finding established the first element of the tort of breach of privacy.
67 Rogers v Television New Zealand Ltd (2005) 22 CRNZ 668.
68 At para [48].
69 At para [50].
[95] The High Court went on to find that any public broadcast of the tape would
be offensive to an objective and reasonable person, which satisfied the other
necessary element of the tort.70 A public television broadcast would amount to
harassment of Mr Rogers, given that he had been acquitted of the charge of murder.
The Court also rejected a submission that the defence of legitimate public concern
was available to TVNZ, saying that the criminal justice process concerning the
charge against Mr Rogers had been open and transparent throughout and that the
content of the videotape would not add to public debate or scrutiny of the Court of
Appeal judgment.71 For these reasons the Court made an order permanently
restraining TVNZ from broadcasting the whole or any part of the recorded statement
taken from Mr Rogers on 13 July 2004. TVNZ was also required to deliver up all
copies that it held of the videotape. These orders finally determined the proceeding
in the High Court.
[96] TVNZ appealed to the Court of Appeal, which unanimously allowed the
appeal and set aside the orders made against TVNZ.72 In their reasons for judgment
O’Regan and Panckhurst JJ said they had not been persuaded to differ from the High
Court’s view of Mr Rogers’ expectation of privacy or the offensive nature of any
future broadcast of the videotape.73 Legitimate public concern, however, as the High
Court recognised, had to be balanced against Mr Rogers’ privacy right, as a matter of
proportionality. O’Regan and Panckhurst JJ inclined to the view that Mr Rogers’
privacy interest did not prevail over the countervailing open justice considerations.
What in the end was decisive for O’Regan and Panckhurst JJ in allowing the appeal
was that, in the circumstances of the case, the requirements for there to be a prior
restraint of TVNZ had not been met.74 Nor did their Honours see that there was any
basis for the making of a suppression order under s 138 of the Criminal Justice
Act 1925.75
70 At para [60].
71 At para [71].
72 Television New Zealand Ltd v Rogers [2007] 1 NZLR 156.
73 At paras [55] and [69].
74 At para [96].
75 At para [102].
[97] In a separate concurring judgment, William Young P doubted that what was
shown on the videotape was of a sufficiently private or personal character to found a
legal claim for interference with his privacy. The President, however, agreed with
the majority judgment that, if the images were of a sufficiently private nature, the
defence of legitimate public concern applied in the circumstances.
Was there a breach of privacy rights?
The parameters of the privacy tort
[98] In Hosking v Runting a majority of three Judges of the Court of Appeal held
that there is a right of action at common law in New Zealand, separate from that for
breach of confidence, for wrongful publication of private information.76 The
majority held that two requirements must be satisfied for this tort action to succeed.
First, there must be facts in existence in respect of which the plaintiff has a
reasonable expectation of privacy.77 Facts meeting this criterion are conveniently
referred to, as in Hosking, as “private facts”. Secondly, the publicity given to those
private facts must be of a kind that an objective reasonable person would consider
highly offensive.78 Even where these elements are established, if the information in
question is a matter of legitimate public concern that justifies its publication, this
will provide a defence to any claim. The burden of proof of this defence is on the
defendant and it is not available where the matter is of no more than general interest
or titillation, or gives rise to curiosity.
Are the facts private?
[99] It is unnecessary for this Court to give any detailed consideration to the Court
of Appeal’s decision in Hosking v Runting in this case. Accepting for present
purposes, as the parties did, that there is a privacy tort, the limits of which are stated
76 [2005] 1 NZLR 1.
77 Per Gault P and Blanchard J at para [117] and Tipping J at para [249].
78 Per Gault P and Blanchard J at para [117]. Tipping J at para [259] preferred to express the
second element as requiring a publication that “would in the particular circumstances cause
substantial offence” (emphasis added).
in the judgments of a majority of the Court of Appeal in that case, it is plain that the
circumstances of Mr Rogers’ case do not fit within them. In particular, it is
necessary for Mr Rogers to establish the private nature of the factual information
which he seeks to protect in his claim. For the reasons that follow, I am satisfied he
is unable to do so.
[100] For there to be a reasonable expectation of privacy in relation to a fact it
cannot be known to the world at large at the time of publication. It may, however, be
known to some people.79 In his written submissions in this Court Mr Corry
formulated the private fact element as being the visual representation of Mr Rogers
making this confession, emphasising matters of personal detail in the depiction of
Mr Rogers’ demeanour. These include his facial and verbal expressions, gestures,
posture and comportment. This formulation of the private facts was, no doubt,
tailored to overcome the difficulty that there is widespread public awareness that
Mr Rogers confessed to murder to the police, and that he did so on more than one
occasion. Mr Corry’s argument, however, is that the additional detailed information
concerning Mr Rogers’ demeanour, which would be conveyed by a televised
broadcast of the tape, is not at present in the public domain and that this constitutes
the private facts on which the claim for breach of privacy is based.
[101] It is well recognised that, in general, photographic images may contain
significantly more information than textual description.80 This is especially so with
sequential images on a videotape which will often portray graphically intimate and
personal details of someone’s personality and demeanour. Indeed this is so in
respect of the images on the videotape in the present case.
[102] Accordingly, I accept that the detail of Mr Rogers’ actions and demeanour
during the police interview and reconstruction of the circumstances of
Ms Sheffield’s death is not disqualified from being a private fact. These aspects are
not factual matters of which the public is presently aware.
79 Per Gault P and Blanchard J at para [119].
80 Campbell v MGN Ltd [2004] 2 AC 457 at para [31] per Lord Nicholls and para [72] per
Lord Hoffmann; Douglas v Hello! Ltd (No 3) [2006] 1 QB 125 at paras [105] and [106] (CA)
per Lord Phillips MR.
[103] The evidence before the High Court provides a full and adequate basis upon
which to determine the privacy interests of Mr Rogers. I accept that the broadcasting
of the tape following his acquittal would cause Mr Rogers embarrassment and hurt.
It would also affect his reputation and efforts to rebuild his life after being acquitted
of murder. The overall effect on him of any broadcast which includes images from
the tape is that the public are more likely to ask the question whether he would have
been convicted had the tape been shown to the jury. Mr Rogers’ strong desire that
he be free from this sort of public intrusion on his private life is a legitimate
privacy interest.
[104] It is nevertheless difficult to categorise what he does not want the public to
see as private. The videotape is of events which took place during a police
investigation into the possible criminal responsibility of Mr Rogers for a serious
crime. His participation was always likely to lead to the showing of the recorded
events, as part of the Crown’s evidence against him, at a public trial attended by the
media and any member of the public minded to do so. These circumstances in
themselves strongly indicate that Mr Rogers had no reasonable expectation of
privacy in relation to the recorded events at the time they took place.
[105] Ultimately, the tape did not become part of the Crown’s evidence at the trial.
That was not on account of any acknowledgement of the private character of what
was depicted. It was rather because the Court of Appeal decided that the
circumstances leading up to the confession were such that Mr Rogers’ right to
silence and his right to legal advice had been breached and that the interests of
justice required that the tape be excluded from his criminal trial. The Court’s
judgment does not convert the public character of the events depicted into something
that is private. The original purpose of making the videotape contemplated its
prospective public use. The Court of Appeal’s ruling on admissibility did not alter
that. Accordingly Mr Rogers could have no reasonable expectation of privacy at any
time in relation to events shown on the videotape and the claim for breach of privacy
must fail on that ground alone.
[106] Mr Akel also argued on behalf of TVNZ that the defence of legitimate public
concern applied because, in the circumstances, even if the private fact element were
satisfied, the interests of freedom of expression and open administration of justice
warranted the broadcast of the tape. It is not necessary to address the point in view
of my finding that Mr Rogers had no reasonable expectation of privacy in relation to
the interview and re-enactment. I will consider later the relevance of freedom of
expression and open justice to other issues that the case raises.
A right to broadcast the videotape?
[107] It appears that the parties and their legal advisers have assumed that, outside
of a claim for breach of privacy, once TVNZ had obtained possession of videotapes
of police interviews with suspects no issue could arise concerning its right to
broadcast them following the conclusion of the criminal proceedings. I do not accept
this perception of the limits of the High Court’s powers, at least in the present case.
[108] Once a videotape of an evidential interview by the police of a person
suspected of involvement in criminal offending, or of a reconstruction of a suspected
crime, is submitted to the Court, the tape becomes part of that Court’s record. This
is so whether the tape comes in as an exhibit during trial, or earlier on an application
to exclude it from the evidence. The videotape remains part of the Court’s record,
even after the particular court process has come to an end, as it did in the present
case when Mr Rogers was acquitted.
[109] The High Court usually exercises supervisory powers in relation to its record
of a criminal proceeding through the Criminal Proceedings (Search of Court
Records) Rules 1974.81 No rules have, however, been made in relation to public use
of material forming part of the court’s record where access to it has been
independently obtained. It may be that in these circumstances the court has inherent
powers to supervise and protect its records.82 For reasons which I now explain,
however, it is not necessary in the present case to consider that question.
81 R v Mahanga [2001] 1 NZLR 641 at para [12] (CA).
82 This possibility was not addressed by the Court of Appeal in its discussion in Hunt v A
(CA 114/06, 6 August 2007) at paras [51] – [55] per Hammond J for the Court.
[110] What the police did was to put evidential material in the hands of a media
organisation prior to a trial. The result of this action was to put the videotape outside
of the control of the High Court where the Court would normally have had such
control under its search rules. It is doubtful whether the police even had power to act
in this manner. There is no apparent link to that power of the police which arises
from their duty to detect offenders and bring them to justice.83 Nor do the police
actions appear to lie within any other aspect of police authority that arises from
statute or the common law.84 On the material before us, authority for passing on the
evidential videotape to the media can only lie within the residual freedom that
government officials have to do things without legal authorisation. The existence of
this “third source” of authority has been recognised by the courts.85 It has also
received persuasive, although not universal, support in academic writing.86
Assuming that the residual freedom exists as a distinct source of authority for
government action, it is clear that its scope is confined by any conflicting statutory or
common law rules that apply.87 In the present case, what the police did may have
been in breach of the Police Regulations 1992. Regulation 7 imposes on the police a
general duty to observe secrecy in relation to information coming into the possession
of members. One exception enables police to release information to the extent
necessary for the police to do their duty.88 As police interests were not represented
before us, I refrain from making any finding on whether the exception would apply
83 There is no general statutory statement of police functions in New Zealand. Sections 5, 6 and
57A of the Police Act 1958 recognise that the powers and duties of constables at common law
apply to sworn members of the police. At common law “[t]he paramount duty of the Police is
to prevent crime and to detect and bring offenders to justice”: Laws of New Zealand, Police,
para [44].
84 Laws of New Zealand, Police, para [44].
85 Malone v Metropolitan Police Commissioner [1979] Ch 344 at p 367; R v Gardiner (1997) 15
CRNZ 131 at p 134 (CA).
86 Harris, “The ‘Third Source’ of Authority for Government Action” (1992) 109 LQR 626 and
“The ‘Third Source’ of Authority for Government Action Revisited” (2007) 123 LQR 225;
Elliott, The Constitutional Foundations of Judicial Review (2001), pp 167 – 171. For the
contrary view see Aronson, Dyer and Groves, Judicial Review of Administrative Action (3rd ed,
2004), pp 328 – 329 and Taggart “‘The Peculiarities of the English’: Resisting the
Public/Private Law Distinction” in Craig and Rawlings (eds), Law and Administration in
Europe (2003) 107, pp 115 – 116.
87 The principal controlling statute is the Bill of Rights Act.
88 Regulation 7(2)(d). This reflects the common law restriction on rights of disclosure of
information by the police which are respectively discussed by Lord Bingham CJ at first instance
and Lord Woolf MR on appeal in R v Chief Constable of North Wales Police ex p AB [1999]
QB 396 at p 409 per Lord Bingham CJ and p 429 per Lord Woolf MR.
to excuse what happened in this case. It is sufficient to conclude that it is
questionable whether the police had any authority to hand over the tape to TVNZ.
[111] Regardless, however, of whether the police had authority to give the
videotape to the news media, for reasons I shall shortly explain I am satisfied that
their actions in this case amounted to an abuse of court process. As TVNZ had
actively sought the videotape, they were involved in those actions. It is well
established that the High Court has inherent ancillary powers to prevent abuse of its
processes.89 Those powers can be exercised “to defeat any attempted thwarting of
[the court’s] process”.90 This is so even if the abuse of court process takes place
after a trial, as long as the conduct would affect “the administration of justice as a
continuing thing”.91 The powers are limited, in that their scope is confined to what is
necessary to enable the court to act effectively in upholding the administration of
justice.92 The powers cannot be exercised in the general public interest if that
interest is not concerned with the due administration of justice at the time or in the
future. Within their limits, however, the powers can be exercised to control not only
those associated with particular proceedings but also the world at large.93
[112] What the police did amounts to an abuse of process because their actions
have impeded the Court’s power to protect an important part of its record. The
Court’s ability to regulate external use of evidential videotapes of police interviews
with suspects, created for the purpose of the criminal trial process, is crucial to its
ability to administer justice. The Court’s capacity to give due protection from
misuse of such material on the Court’s record to those who participate in its
processes is necessary to maintain public confidence in the integrity of
criminal trials.94
89 Taylor v Attorney-General [1975] 2 NZLR 675 (CA) at p 682 per Richmond J and p 689 per
Woodhouse J; Connelly v Director of Public Prosecutions [1964] AC 1254 at p 1296 per Lord
Reid and p 1301 per Lord Morris.
90 Connelly v DPP at p 1301 per Lord Morris.
91 Taylor v Attorney-General at p 677 per Wild CJ.
92 Mafart v Television New Zealand Ltd [2006] 3 NZLR 18 at para [17] (SC) per Elias CJ,
Blanchard and McGrath JJ.
93 Taylor v Attorney-General at p 689 per Woodhouse J.
94 Taylor v Attorney-General at pp 682 – 683 per Richmond J.
[113] In a case such as the present, these inherent powers would allow the
High Court to make orders in relation to the videotape that would enable it to
exercise the control that the Court would have had over its record had there been no
abuse of process. Such orders could include a prohibition on any broadcast of the
videotape without the Court’s permission. Once the Court has asserted its control, it
will be in a position to determine any applications for access to the videotape, as part
of the Court record, in the normal way. No separate proceeding is necessary. The
determination will involve the exercise of the Court’s discretion, applying the
principles outlined in relation to the judicial discretion under r 2(5) of the Criminal
Proceedings (Search of Records) Rules in R v Mahanga.95
[114] Mr Rogers did not proceed in this way but I consider it is now open to this
Court to consider whether broadcast of the videotape should be prohibited on this
basis. The relevant authorities and considerations on the merits were addressed in
argument before us as if an application had been made by TVNZ to search the Court
record and copy the videotape. There is an ample evidential basis for the
assessment. Accordingly, this Court is in as good a position as the High Court
would be if we referred the matter back to it for decision. It is also desirable that the
question of whether TVNZ may broadcast the tape is finally resolved without further
delay. I proceed to consider the position on that basis.
Weighing the competing interests
[115] The starting point is that there is no general right of access under
New Zealand law to material on a court’s record of a criminal proceeding.96 The
judicial discretion in relation to access, conferred by r 2(5), rather calls for a
balancing exercise. As the Court of Appeal said in R v Mahanga:97
We conclude that the broad judicial discretion under R 2(5) is intended to be
exercised by weighing the competing interests presented by any particular
application. Any legitimate privacy concern raised by an accused person is
one. The purpose for which access is sought, if known, may be relevant.
The principle of open justice will often be important, especially when
95 [2001] 1 NZLR 641 (CA).
96 Mafart v Television New Zealand Ltd at para [23] per Elias CJ.
97 At para [32].
applications are made for access to Court records by the media. So will be
the interests of administration of justice where there is a risk that they will be
harmed by disclosure.
Accordingly, it is necessary to consider the competing considerations that arise in
relation to the desire of TVNZ to broadcast the videotape.
[116] TVNZ is, of course, already in possession of a copy of the videotape and will
be able to broadcast it unless it is restrained. Freedom of speech is a directly
relevant factor. In that respect it must be borne in mind that the conclusion of the
criminal trial process in any case does not always bring finality in the eyes of the
public. Both convictions and acquittals can give rise to legitimate public interest,
debate and further scrutiny which freedom of expression will foster. As Gleeson CJ
has pointed out in another context:98
The idea that the investigation and exposure of wrongdoing is, or ought to
be, the exclusive province of the police and the criminal justice system bears
little relation to reality in Australia, or any other free society. There are
heavily governed societies in which the police and other public authorities
have the exclusive capacity to make, and pursue, allegations of misconduct;
but not in ours. Indeed, in our society allegations of misconduct are
sometimes made against the police and public officials.
Secondly, it may well be in the public interest that inaction on the part of the
police and prosecuting authorities be called publicly into question. It is
certainly in the public interest that it is open to be called into question.
[117] Often freedom of speech and open justice march together as closely related
factors in applications of this kind. This case, however, demonstrates that open
justice is a distinct consideration. It is primarily concerned with the sound
functioning of the judicial process in the public interest whereas freedom of speech
is more concerned with the free flow of information.
[118] Open justice provides critical safeguards in the operation of the
criminal justice process. The ability of the public to attend, and the media to report
on, what transpires during a criminal trial provides the transparency in the process
that is crucial to fulfilment of the protected right to a “fair and public
hearing by an independent and impartial court”.99 But it has also been
98 Australian Broadcasting Corporation v O’Neill (2006) 229 ALR 457 at paras [26] – [27].
99 Under s 25(a) of the Bill of Rights Act.
recognised that the public interest served by openness in the administration of justice
goes beyond protecting the fundamental rights of those charged with a criminal
offence. Openness also helps meet the need to preserve public confidence in the
legal system. As Woodhouse P said in Broadcasting Corporation of New Zealand v
Attorney-General:100
The Judges speak and act on behalf of the community. They necessarily
exercise great powers in order to discharge heavy responsibilities. The fact
that they do it under the eyes of their fellow citizens means that they must
provide daily and public assurance that so far as they can manage it what
they do is done efficiently if possible, with human understanding it may be
hoped, but certainly by a fair and balanced application of the law to facts as
they really appear to be. Nor is it simply a matter of providing just answers
for individual cases, important though that always will be. It is a matter as
well of maintaining a system of justice which requires that the judiciary will
be seen day by day attempting to grapple in the same even fashion with the
whole generality of cases. To the extent that public confidence is then given
in return so may the process be regarded as fulfilling its purposes.
[119] Open justice also provides incentives for self-discipline which foster the
sound and principled exercise of judicial power. As well, it makes the judiciary
accountable to informed public opinion. These effects lead to greater public
understanding of the judicial process and, importantly, provide reassurance to both
the community, and those close to the accused and victims, that a trial has been
conducted fairly and the accused treated justly.101
[120] There are statutory provisions permitting exceptions to openness which
allow, and at times require, the courts to suppress reports of certain evidence and to
prohibit identification of offenders and witnesses in certain circumstances.102 These
exceptions are, however, all administered from a starting point that emphasises the
importance of open justice and freedom of expression.103 Orders prohibiting
publication of evidence, submissions or even a court’s judgment will also be made
where that is necessary to protect prejudicial material from affecting the fairness of a
trial. Those reasons generally disappear once a trial has concluded. Thereafter a
100 [1982] 1 NZLR 120 at pp 122 – 123 (CA). There are similar passages in the judgments of
Cooke J at pp 127 – 128 and Richardson J at pp 132 – 133. See also Television New Zealand
Ltd v R [1996] 3 NZLR 393 (CA).
101 Mahanga at paras [18] – [21].
102 In particular under ss 138 and 140 Criminal Justice Act 1985.
103 Lewis v Wilson & Horton Ltd [2000] 3 NZLR 546 at para [41] (CA).
strong onus lies on any person seeking to continue a prohibition on publication to
show grounds that justify that course.104
[121] In general the public, including the media, have full access to court
proceedings as and when they take place. In reporting on the processes of the courts,
the media are restricted in what they may say only to the extent that rules permit
exclusion of the public or suppression of publication of any matters for specified
reasons. Such access enables full reporting by the media in traditional ways of what
takes place in court. This degree of access usually fulfils the values of open justice
and the right to freedom of expression on which the media are entitled to rely in
reporting court proceedings.
[122] The media was, of course, able to fully report everything that happened at
Mr Rogers’ trial. The unusual feature of the present case, however, is that the
videotape of the reconstruction of events at Mangonui, part of which TVNZ wishes
to broadcast, did not form part of the evidence at the trial. This is because the Court
of Appeal decided that there was a breach of Mr Rogers’ protected rights and that the
interests of justice required that the tape not be shown to the jury. This raises the
question of whether the requirements of open justice, in relation to scrutiny of
judicial processes and also police actions in this case, will not be satisfied unless the
videotape is made available, in effect, for public broadcasting.
[123] In holding that the videotape would not be admitted at the trial, the Court of
Appeal was not influenced by what Mr Rogers was depicted as doing or saying in
the course of the alleged re-enactment. It did not consider his demeanour to be
relevant. The Court based its decision that Mr Rogers’ rights had been breached on
its finding that the police had given assurances to counsel that Mr Rogers would not
be further interviewed concerning the homicide unless his counsel was informed and
given the opportunity to be present. Nothing that occurred subsequently had relieved
the police of this commitment.105 In a sense it is not strictly necessary for the
videotape to be shown in order to put the reasons why it was not admitted into
evidence fully before the public. Further, as Mr Corry pointed out, there is a full
104 R v Dally (High Court, Wellington, T 99/89, 10 April 1990, Eichelbaum CJ) at p 3.
105 R v Rogers [2006] 2 NZLR 156 at paras [67] – [69].
report of what took place during the reconstruction at Mangonui in the admissibility
judgments of the Court of Appeal and Cooper J in the High Court.
[124] On the other hand, members of the public have a legitimate interest in being
fully informed of the nature of excluded evidence in order to make their own
assessments of the Court’s reasons for exclusion. For reasons already traversed,106
images on a videotape often contain significantly more information than a textual
description and that is so in this instance. Neither the reports of the events in the two
judgments, nor the transcript, provide the entirety of the information available in the
videotape of the re-enactment.
[125] In this instance open justice values weigh significantly in favour of allowing
the media to broadcast the videotape. Two persons were charged with
Ms Sheffield’s murder, their trials being held ten years apart. The outcome of the
process is that neither accused stands convicted. There is understandably a high
degree of public interest as to why this should be so. A factor contributing to this
situation is that the Court of Appeal determined it would be unjust in the
circumstances to admit Crown evidence which would have been relevant to the
charges against the appellant. Further media scrutiny of what happened in this case
may well extend to all aspects of the operation of the judicial process as well as how
the police conducted the investigation.
[126] On the other side of the scales, there are privacy interests raised by
Mr Rogers. The nature of these interests was aptly described in the Canadian
context in the words of Cory J in his dissenting judgment in Vickery v Nova Scotia
Supreme Court (Prothonotary):107
The … right to privacy … inheres in the basic dignity of the individual. This
right is of intrinsic importance to the fulfilment of each person, both
individually and as a member of society. Without privacy it is difficult for
an individual to possess and retain a sense of self-worth or to maintain an
independence of spirit and thought.
106 At para [101] above.
107 [1991] 1 SCR 671 at p 687.
[127] It is important to recognise that those interests do not have to meet the
requirements specified for the privacy tort in Hosking v Runting. Any legitimate
privacy interest of Mr Rogers is relevant to the balancing process the Court is
undertaking.108 I have already indicated in these reasons that I consider Mr Rogers
has a legitimate privacy interest.109 It is undoubtedly the case that Mr Rogers is in a
vulnerable position as a person who has been acquitted of a serious crime where
evidence of his guilt was not before the jury. The anxiety and stress that would
result from the broadcast of the videotape would be great.
[128] A factor which, Mr Corry says, weighs heavily in favour of Mr Rogers’
privacy interest is that the Court of Appeal has determined that Mr Rogers’
participation in the re-enactment was secured by police conduct which breached his
protected rights, as a person charged, to have the assistance of counsel and to be
silent. His argument is that prohibition of any public broadcasting of the tape is
necessary to uphold Mr Rogers’ privacy interests. It is therefore necessary to
consider the nature of remedies for breach of fundamental rights and the extent of the
remedy already given to Mr Rogers in the criminal proceedings for the breach of
his rights.
[129] Article 2(3) of the International Covenant on Civil and Political
Rights provides:
Each State Party to the present Covenant undertakes:
(a) To ensure that any person whose rights or freedoms as herein
recognised are violated shall have an effective remedy…
[130] The obligation to give an effective remedy is reflected in the judgment of
Cooke P in Simpson v Attorney-General [Baigent’s Case].110 The Court of Appeal
was, in that case, addressing a pleaded situation in which the police officers who
entered the plaintiff’s property realised or should have realised that their warrant
probably contained the wrong address. In that context Cooke P said:111
108 Mahanga at paras [32] and [41].
109 See para [103] above.
110 [1994] 3 NZLR 667 at p 676 (CA).
111 At p 676.
Hitherto the main remedy granted for breaches of the rights and freedoms
has been the exclusion of evidence. But that has been because most of the
cases have concerned evidence obtained unlawfully; exclusion has been the
most effective redress and ample to do justice.
And later, after referring to s 3 of the Bill of Rights Act, he added:112
The Act is binding on us, and we would fail in our duty if we did not give an
effective remedy to a person whose legislatively affirmed rights have
been infringed.
[131] In Baigent’s Case the Court decided that the only effective remedy for the
plaintiff would be compensation. In general, an effective remedy will be one that
vindicates the right adequately, marking and redressing it wholly or in part. The
remedy should be proportionate to the breach but determined having regard to other
aspects of the public interest. In short it will be an appropriate remedy directed to
the values underlying the right. 113
[132] The present case concerned breaches of the rights of Mr Rogers, as a person
who had been arrested and charged, to have access to legal assistance and to refrain
from making statements to the police.114 The purpose of the rights involved is to
ensure that the person concerned will have a fair trial at a later date. The Court of
Appeal’s decision, that the appropriate remedy for the breach of these rights was the
exclusion of the videotaped evidence from the trial, clearly met that purpose. It fully
redressed the breach and thereby vindicated the right. While the Court was
obviously not contemplating the present circumstances, it must be acknowledged
that the fact the breach has already been redressed in a manner that meets the
purposes for which the right exists is relevant in the current balancing exercise.
Nevertheless, if the Court’s decision facilitates the public broadcast of the videotape,
the public may see that as undermining the Court of Appeal’s vindication of
Mr Rogers’ criminal process rights.
[133] This consideration leads directly to the question of whether the
administration of justice may be harmed if the Court grants permission for the
112 At p 676.
113 Martin v Tauranga District Court [1995] 2 NZLR 419 at p 428 per Richardson J (CA).
114 The rights arise under ss 23(1)(b), 23(4) and 24(c) of the Bill of Rights Act.
videotape to be broadcast. In a similar context the majority of the Supreme Court of
Canada in Vickery said of an acquitted accused:115
Nugent cannot escape from proceedings in which he was involved, nor from
the fair and accurate reporting of them, but the courts must be careful not to
become unwitting parties to his harassment by facilitating the broadcasting
of material which was found to have been obtained in violation of his
fundamental rights.
[134] While concern for potential harassment of an accused following the trial will
often be a relevant factor in deciding if exhibits are then to be made available to the
media, I have difficulty with seeing this passage in Vickery as providing general
guidance in cases such as the present. The relative weight to be given to privacy
interests must always depend on all of the circumstances, even where they involve a
vulnerable acquitted defendant.
[135] In this respect Wilson J of the Supreme Court of Canada has referred to:116
the importance of not allowing one’s compassion for [a] limited group of
people who are of particular interest to the public (because of who they are
or what they are alleged to have done) to undermine a principle which is
fundamentally sound in its general application.
The appellant has, of course, been fully and, in terms of the criminal process at least,
finally vindicated by his acquittal. Further public scrutiny of the circumstances can
never deprive him of that status.
[136] In the end, in the circumstances of this difficult case, I have reached the
conclusion, when balancing the conflicting interests, that the side of open justice
carries the greatest weight. Preservation of public confidence in the legal system is
directly relevant, because of the circumstances and outcome of the trials of the two
accused persons.117 There is a real risk of damage to public faith in the criminal
justice system if the circumstances that led the Court of Appeal to refuse to admit the
evidence are not fully transparent. It is a less than satisfactory response to reason
that the end is achieved because the Courts’ own descriptions of the events that are
depicted in the videotape are full and complete. Open justice strongly supports
115 At p 685.
116 Edmonton Journal v Alberta (Attorney-General) [1989] 2 SCR 1326 at p 1366.
117 As discussed in para [125] above.
allowing the media access to primary sources of relevant information rather than
having to receive it filtered according to what courts see as relevant. On the other
side of the scales, Mr Rogers’ rights have been breached but also vindicated during
the criminal justice process. At this stage they have much less weight.
[137] Accordingly, while the courts were entirely justified in suppressing the
contents of the videotape until the trial of Mr Rogers had concluded, on balance his
personal circumstances and associated rights do not provide sufficient reason for a
continuing prohibition on its publication.
Conclusion
[138] For these reasons, I would dismiss the appeal by Mr Rogers, with the result
that there is no longer any restraint on TVNZ preventing it from broadcasting a copy
of the evidential videotape.
[139] I would make no order for costs.
ANDERSON J
[140] This proceeding began exigently and was heard and determined by the
High Court with rapidity. But its speedy disposal was at the expense of structural
development. It was brought as an application for injunction pursuant to r 624 of the
High Court Rules, but did not comply with r 628 which stipulates commencement by
statement of claim and notice of proceeding in accordance with Part 2 of the rules.
[141] In consequence a number of potential issues escaped consideration. These
include how Mr Rogers came to be released from a prison where he was in custody
pursuant to a Court order; why Inspector Taare thought it appropriate to release
material acquired in the course of a police inquiry to a person who was not a member
of the police and in circumstances seemingly unconnected with the proper objectives
of the inquiry; why the police should not be a party to the suit; whether there were
public interest considerations in relation to the police conduct which would justify a
limitation on the public’s right to receive the information in issue; and whether the
police and TVNZ would be amenable to a suit founded on breach of confidence. A
range of private law remedies and public law principles warranted consideration.
[142] It is the case that the Penal Institutions Act 1954, which then applied, made
provision in ss 21 and 26 for temporary release or removal on Ministerial or judicial
authority;118 and that reg 7 of the Police Regulations 1992 provides some
dispensations from a prima facie requirement for the maintenance of secrecy by
members of the police. It cannot be assumed that what occurred in this case must
necessarily have been irregular. Nor, given the absence of the police as a party and
the paucity of evidence, would it be fair to suggest it was. One is left, however, with
a sense of unease. Instances of persons in custody being uplifted by the police, or
material obtained in the course of police inquiries being disseminated without
apparent justification, ought to be carefully scrutinised by lawyers and the courts.
[143] In the result, the case for Mr Rogers became formulated in the course of its
various judicial stages on the three bases referred to in the reasons for judgment
given by other members of this Court. These are breach of privacy, the application
of s 138 of the Criminal Justice Act 1985, and any entitlement to relief vindicating
Mr Roger’s Bill of Rights Act rights, which the Court of Appeal found had been
breached in the circumstances giving rise to the creation of the videotape in issue.
[144] As to the issue of breach of privacy I will assume, without wishing to be
taken as endorsing, the law as elucidated by the majority of the Court of Appeal in
Hosking v Runting.119 I share the concern expressed by the Chief Justice that the
jurisprudence of that case should not be regarded as settled. It was decided by a bare
majority and both the existence of the tort and the scope of it, if it continues to be
recognised, will fall to be reviewed by this Court in an appropriate case.
118 Now, ss 62 ? 65 of the Corrections Act 2004 and regs 26 ? 29 of the Corrections Regulations
2005 permit the chief executive of the department responsible for administering the Act to
authorise temporary release from custody or temporary removal from prison for a number of
purposes, including forensic ones.
119 [2005] 1 NZLR 1.
[145] I would not go as far as Blanchard J appears to in excluding the possibility of
a reasonable expectation of privacy on an occasion when a person agrees to be
interviewed by and makes a statement to the police for the purposes of a criminal
investigation. A good deal of police interviews must occur in circumstances which
are to some extent confidential. It may be intended or supposed that what is said will
not become evidence before a court, or if it is to become evidence that it will have
confidential features which a court may see fit to protect. It is true that in this
particular case, Mr Rogers had been charged with murder and he made his statement
in circumstances where it was obviously intended that his statement was going to be
put in evidence at his trial. But that does not mean that he can have no expectation
of privacy in relation to a different use in other circumstances. Unfortunately, the
way in which this litigation has developed means that this important issue, also, was
not adequately explored.
[146] As to s 138 of the Criminal Justice Act 1985, I cannot accept that this section
authorises a court to suppress publication of evidence that has been adduced before
another court. Subsection (1) endorses open justice for proceedings in respect of an
offence, subject to subss (2) and (3) which provide for exceptions in certain cases. It
is plain, however, that the power to make orders in derogation of the open justice
principle is only exercisable in respect of the matter which the court is then hearing.
It is not a remedial power to restrain the publication of information in a subsequent
civil proceeding.
[147] That brings me to the issue whether the Court should restrain publication of
the videotape in order adequately or further to remedy the breach of rights as found
by the Court of Appeal. The relevant rights were the right to consult and instruct a
lawyer120 and the right to refrain from making a statement.121
[148] In criminal proceedings breaches of such rights have conventionally been
remedied, if at all, by holding the evidential fruits of the breaches to be inadmissible
and excluding them from the evidence before the trial court. This case raises the
question whether such a response must always be treated as a sufficient remedy. I
120 Sections 23(1)(b) and 24(c) of the New Zealand Bill of Rights Act 1990.
121 Section 23(4) of the Bill of Rights Act.
think not. The remedies for breaches of the Bill of Rights Act rights and freedoms
must remain flexible and responsive to the features of particular cases. An action for
damages can be brought for breach of those rights.122 Thus, I would not exclude the
possibility, in an appropriate case, of damages being an available remedy in addition
to the exclusion of evidence in other criminal proceedings.
[149] In this case the further remedy sought is not damages against the police but a
limitation on the s 14 Bill of Rights Act rights of TVNZ to impart information, and
the right of all New Zealand residents to receive it. This is not a case such as
Re J (An Infant): B and B v Director-General of Social Welfare123 where the Court
had to resolve conflicting rights – the rights of parents under s 15 to manifest
religious belief, and the rights of their child under s 8 not to be deprived of life. It is
a case where a limitation of one right is sought in order to remedy a breach of
another one. The public was not in any way responsible for the breaches of Mr
Rogers’ rights. Nor was TVNZ.124 To limit the rights of the public and TVNZ, not
in order to protect Mr Rogers’ rights, but to provide additional remedy for their
breach by an unrelated party, would, in my opinion, be inconsistent with s 5 of the
Bill of Rights Act. It would be a disproportionate response to the breach of Mr
Rogers’ rights, given that he has had the significant remedy of exclusion of weighty
evidence from his criminal trial, and that he has not sought any civil remedy from
the police.
[150] That, however, is not the end of the story. The issue is not necessarily
confined to a remedial limitation on the public’s right to the information. The
circumstances are such as to warrant the examination of other possible reasons why a
limitation on the right to freedom of expression, through prohibiting publication of
the videotape, might be justified.
[151] I agree with the Chief Justice that this case should be remitted to the
High Court so that it can be properly developed and examined. There are too many
122 Simpson v Attorney-General [Baigent’s Case] [1994] 3 NZLR 667 (CA); Taunoa v Attorney-
General [2007] NZSC 70.
123 [1996] 2 NZLR 134 (CA).
124 TVNZ is a Crown entity company pursuant to s 7(b) and Schedule 2 of the Crown Entities Act
2004. Whether the Crown in right of the police can properly be equated with a Crown entity
company was not argued before us.
important issues of public importance for this inchoate case to be summarily
dispatched.
[152] On my approach it is inappropriate to attempt to resolve this appeal by the
technique of analogy with the Criminal Proceedings (Search of Records) Rules. Nor
do I share McGrath J’s confidence that the conduct of the police in handing over a
copy of the videotape, and of TVNZ in soliciting and accepting it, amount to an
abuse of Court process. McGrath J’s view is based on the conclusion that what
happened has impeded the Court’s power to protect its record. However, the tape
was handed to TVNZ in late July 2004 and did not form part of a Court record until
it was produced at the depositions hearing on 17 February 2005. If the Court does
have an inherent power exercisable contra mundum to regulate the use of duplicates
of material which ultimately become part of the Court record, why should it be
confined to evidential videotapes? They are only the obsolescent medium for the
particular information. There must be some underlying jurisdiction to constrain the
Bill of Rights Act right to freedom of expression. Absent the applicability of s 138
of the Criminal Justice Act I can see no regulatory jurisdiction other than those
founding the public and private law remedies I adverted to earlier in these reasons. I
would not encourage courts to arrogate to themselves, by a broad claim of inherent
power, a means of constraining Bill of Rights Act rights.
[153] I would allow the appeal, make an interim suppression order and remit the
case to the High Court for appropriate case management and trial.
Solicitors:
Public Defence Service, Auckland for Appellant
Simpson Grierson, Auckland for Respondent