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High Court of New Zealand Decisions |
Last Updated: 23 January 2018
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NOT TO BE PUBLISHED IN NEWS MEDIA OR ON INTERNET OR OTHER PUBLICLY ACCESSIBLE DATABASE UNTIL FINAL DISPOSITION OF TRIAL. PUBLICATION IN LAW REPORT OR LAW DIGEST PERMITTED. FURTHER SUPPRESSION ORDERS ARE OUTLINED AT [118] OF THIS JUDGMENT.
IN THE HIGH COURT OF NEW ZEALAND WANGANUI REGISTRY
CIV 2009-483-000127
UNDER Section 68 Evidence Act 2006
IN THE MATTER OF THE NEW ZEALAND POLICE
v
K and W
BETWEEN THE NEW ZEALAND POLICE Plaintiff
AND JOHN JAMES CAMPBELL First Defendant
AND INGRID MARIEKE LEARY Second Defendant
AND CAROL ANN HIRSCHFELD Third Defendant
AND HANNAH ROSE STORY Fourth Defendant
AND ZOE JOAN DUFFY Fifth Defendant
Hearing: 30 June 2009 (at Auckland) Counsel: L C Rowe for Plaintiff
J G Miles QC and DCE Smith for Defendants
J N Bioletti for K (granted leave to intervene)
M A Kennedy for W (granted leave to intervene) Judgment: 7 August
2009
INTERIM RESERVED JUDGMENT OF RANDERSON J
This judgment was delivered by me on 7 August 2009 at 11 am, pursuant to r 11.5 of the High Court Rules
Registrar/Deputy Registrar
POLICE V CAMPBELL And Ors HC WANG CIV 2009-483-000127 []
Solicitors: Crown Solicitors, PO Box 441, Wanganui 4540
Russell McVeagh, PO Box 8, Auckland
J Bioletti, PO Box 105546, Auckland 1143
Counsel: J G Miles QC, PO Box 4338, Auckland 1140
M A Kennedy, PO Box 6955, Auckland 1141
Introduction
[1] On 2 December 2007 the Waiouru Army Museum was burgled. Some 96
medals were stolen including nine Victoria Crosses.
The police say that a
conservative estimate of the value of the medals is a sum in excess of $5.7
million.
[2] There was an immediate public outcry about the loss of the medals.
Many regard them as an important part of New
Zealand’s heritage
since they were bestowed for acts of valour by New Zealanders in successive
world wars.
[3] The burglary and the taking of the medals was the focus of intense
media attention both in New Zealand and overseas. Large
sums of money by way
of reward were offered for information leading to the conviction of the
offenders and the recovery of the medals.
Negotiations conducted through an
Auckland barrister (Mr Christopher Comeskey) resulted in the recovery of the
medals. Some were
returned on 18 January 2009 and the remainder on 15 February
2008.
[4] On 21 February 2009 an interview was broadcast on TV3’s
“Campbell Live” news and current affairs programme.
The presenter,
the first defendant Mr John Campbell, interviewed a person described only by the
fictitious name “Robert”
who claimed to be one of the burglars of
the Army Museum responsible for the taking of the medals. The image of the
person interviewed
was disguised so he could not be identified. It later
transpired that the person interviewed was an actor playing the part of the
person claiming to be the burglar. But it is not in dispute that the interview
closely followed a transcript of an audio interview
conducted earlier in the day
by Mr Campbell with a man who claimed to be one of the burglars.
[5] Mr Campbell and others employed by TV3 who were connected with the interview were spoken to by the police with a view to obtaining evidence about the identity of the burglar. All those interviewed declined to disclose information about the identity of the person interviewed.
[6] After making further inquiries, the police charged two men (K and
W) with the burglary. The case against them is entirely
circumstantial. The
police now apply by way of originating application for an order under s 68
Evidence Act 2006 compelling Mr Campbell
and the other four defendants named in
this proceeding to answer questions and produce documents at depositions with a
view to ascertaining
the identity of the person interviewed on 21 February 2008.
The defendants resist the application on the ground that, as journalists,
they
are not compellable to give evidence disclosing the identity of an
informant.
[7] The essential contest in this case is between two important aspects
of the public interest. The first is the public interest
in the investigation
and prosecution of crime and the second is the public interest in the free flow
of information and the protection
of journalists’ sources.
The Evidence
[8] The evidence before the Court comprises affidavits filed by the
plaintiff and the defendants. The evidence on behalf of
the New Zealand Police
substantially comprises two affidavits by Detective Inspector C J Bensemann who
is the officer- in-charge
of the police investigation into the burglary. His
affidavits describe the negotiations with Mr Comeskey in relation to the return
of the medals, detail the nature of police inquiries to date (including
interviews with the defendants in this proceeding), and outline
the evidence the
police have gathered so far in relation to the prosecution of K and
W.
[9] According to Detective Inspector Bensenmann’s evidence, [suppressed].
[10] [Suppressed].
[11] The police have issued a summons to Mr Comeskey for the purposes of
the prosecution against K and W but Mr Comeskey has made
it clear he is not
willing to disclose the identity of his clients and is claiming legal
professional privilege. No determination
has been made about the admissibility
of Mr Comeskey’s evidence.
[12] Detective Inspector Bensemann details the results of police
surveillance of
[suppressed].
The TV3 Interview
[13] The police understand that the interview with the person claiming to be one of the burglars took place at the Duxton Hotel on the afternoon of 21 February 2008. Security footage taken at the Duxton Hotel on that day shows the defendants Mr Campbell, Ms Leary and Ms Hirschfeld entering and leaving the hotel that afternoon. All three are associated with TV3 in various capacities. [Suppressed].
Police interviews with Mr Campbell and Ms Leary
confirm that they were first contacted by a male who acted as an
intermediary. Mr Campbell said he was contacted the following day
by a
different man who gave him an address to go to. Mr Campbell went to that
address and the interview was recorded on an MP3
player. Mr Campbell did not
disclose the address but Ms Hirschfeld told the police that it was the Duxton
Hotel. Ms Duffy (another
TV3 employee) confirmed to the police she booked the
hotel for the interview.
[14] It is not in dispute that Mr Campbell and others
associated with TV3 promised the person interviewed that they
would not reveal
his identity. Only Mr Campbell and Ms Leary were present during the interview
which was recorded and later transcribed
by Ms Leary. The police are in
possession of the transcript of the audio interview but Ms Leary has stated that
the digital record
of the interview has been deleted from the recording
device.
[15] A feature of the evidence is the steps taken by Mr Campbell to
satisfy himself that the person interviewed was one of the
persons responsible
for the theft of the medals. Mr Campbell put the matter this way in his
affidavit:
Because of the history of an individual claiming responsibility for the
burglary, apparently untruthfully, I was concerned to ensure
that the person who
I was interviewing was, in fact, who they claimed to be – ie, one of the
persons responsible for the theft
of the medals. I therefore asked this person
to tell me something that only the perpetrator would know. Robert gave me some
information,
which I verified with a third party, and I was accordingly
satisfied that Robert was a person responsible for the theft of the medals.
It
was crucial for me to be sure in my own mind that I was interviewing the real
thief.
[16] Mr Campbell also spoke on talk-back radio about this aspect of the
matter the day after the interview. In answer to the
question “Did he
steal them?” Mr Campbell is recorded as responding as follows:
Yeah. Absolutely no, no doubt in my mind. And I did two things to check
that. First of all I said to me [sic] you’ve got
to tell me something
that only the perpetrator would know which he did with great gusto and, in fact,
his description of what
he did was, you know, compelling but we
weren’t allowed to use that be it’s a specific method that he said
was
particular to him and it would narrow the list of suspects.
[17] Mr Campbell went on to say on talk-back radio that he had
telephoned Mr Comeskey who confirmed that the details
given to him by the person
interviewed were details that only the perpetrator would know.
[18] Ms Leary states in her affidavit that there was nothing distinctive
about the person interviewed. She is not sure if she
would recognise him again.
Mr Campbell makes no such claim and says he did not obtain the name
of the person. Mr Campbell
told the police he knew the identity of one of the
intermediaries and was confident he knew the identity of the other but was not
willing to disclose who they were.
The Content of the Interview
[19] The interview begins with “Robert” agreeing with the
proposition that he was one of the people involved in “pinching”
the
medals. He said he was surprised with the extent of the public reaction and
realised that the medals had “enormous sentimental
value”. He told
Mr Campbell that “we” decided that the medals would be returned
without those responsible being
detected. He was approached by a third person
and he eventually met Mr Comeskey. Through him, the medals were
returned.
“Robert” expressed his regret to “everyone in New
Zealand”. He had been surprised at the media coverage
and the extent to
which other people had “tried to jump on board”. He specifically
denied that C had been involved.
[20] In the talk-back radio interview Mr Campbell gave the
following day, Mr Campbell expressed the opinion that the
man interviewed was a
professional burglar who “was a little bit proud” of the
“consummate crime” he had
executed. He suspected he did not like C
“raining on his parade”. Mr Campbell went on to say he suspected
that the
person had stolen the medals in order to get a reward or some
reimbursement.
Other Police Evidence Tending to Identify K and W as the
Offenders
[21] [Suppressed]. [22] [Suppressed]. [23] [Suppressed]. [24] [Suppressed].
[25] [Suppressed]. [26] [Suppressed]. [27] [Suppressed].
Significance of the Disputed Evidence to the Police Case Against K and
W
[28] Viewed overall, my assessment of the police case against K and W is that it is relatively weak. [Suppressed].
At least at this stage, the forensic evidence is weak.
[29] As to the link between K, Mr Comeskey and the return of the medals, an inference could be drawn that K was one of those responsible. But the inference could equally be drawn that K was an intermediary with no direct involvement with the burglary. Mr Comeskey’s claim to legal professional privilege has yet to be determined but, on the face of things, it may be difficult to oblige Mr Comeskey to
disclose the identity of a client. Finally, it is notoriously difficult to
have evidence of
[suppressed] introduced in a case
like this. There is scant material before the Court to suggest
that any such application is likely to be successful.
[30] In these circumstances, the identity of the person confessing to be
one of those responsible when interviewed by Mr Campbell
is a highly relevant
and significant piece of evidence. Without it the police case against K and W
could not be regarded as anything
more than relatively weak.
[31] [Suppressed].
[32] Subsequent to the hearing, I sought clarification from counsel for the defendants as to whether privilege was claimed in relation to the identification of the Duxton Hotel as the place where Mr Campbell’s interview took place on
21 February 2008. Counsel has confirmed that privilege is not claimed for
those facts. Counsel advises that TV3 would provide a
non-journalist witness to
confirm those facts. A witness from TV3 would also provide a transcript of the
audio interview and a
transcript of the reconstructed video as
televised.
[33] TV3’s willingness to confirm these facts is important because, when combined with [suppressed], there is a sound factual
basis to enable a jury to infer that K was the person
interviewed.
[34] There is a further potential weakness in the police case against K
and W.
[Suppressed]
The Reasons Advanced by the Defendants for Resisting the Request to Disclose the
Identity of the Informant
[35] The defendants provided affidavits from Mr Campbell, others
associated with TV3, as well as an independent and experienced
media consultant
Mr Gavin Ellis. Mr Campbell confirms in his affidavit that there was an
extraordinary amount of public interest
in the theft and return of the medals
which he accepted represented heroic feats achieved by New Zealanders in the
service of their
country. In conducting the interview, he sought to provide
the audience with a unique insight into the mind and motivations of
someone
claiming to have been involved in the theft and the return of the medals. He
confirms he promised to protect the identity
of the person interviewed. He
described himself as being totally confident that he could honour the assurance
given. He was aware
that the law had changed and that journalists now had a
recognised statutory immunity allowing them to protect a source. His
understanding
was that the immunity should operate in all but the most limited
circumstances.
[36] Mr Campbell states in his affidavit that he believes very strongly in his responsibilities as a journalist. These include the honouring of promises made in the course of his work, which he regards as vital to his integrity as a journalist. The trust of those with whom he deals in the course of his work is essential and form the basis of his reputation and standing in the profession. Mr Campbell gives an example of a working relationship with a particular person who has acted as an informant on a
number of public issues. The relationship relies heavily on a guarantee
that the informant’s identity will not be disclosed.
Without that
assurance, Mr Campbell says the stories obtained from this and other sources
would not be revealed. If he were compelled
to disclose the identity of
informants, he would not, in future, feel confident in giving an assurance of
protection and the trust
which informants place in him would be adversely
affected. He suggested that the threshold for compulsion must be set at the
highest
possible level which he identified as occurring only where the
protection of life was at stake.
[37] Mr Campbell also points to the practical difficulty that an assurance
of protection is normally given prior to an interview
at which time the
information to be given is not known. Since the circumstances did not involve
risk to life or property and the
medals have been returned, Mr Campbell does not
consider he ought to be compelled to disclose the identity of the person
interviewed.
[38] Ms Leary and Ms Hirschfeld express similar views in their affidavits
stating that the interview would not have been secured
but for the promise to
protect the identity of the person interviewed.
[39] Mr Ellis discusses a number of rules which he regards as fundamental
if a request for confidentiality is made to a journalist.
Any guarantee to
protect the source of the information should be made prior to the
interview, otherwise a journalist
would not feel bound by a request for
anonymity made after an interview. Where an undertaking is given, it is treated
as binding.
The agreement is not limited to the naming of the source but also
includes the disclosure of information likely to lead to
identification.
[40] Given what Mr Ellis describes as the solemn nature of such an agreement, a journalist must consider the matter carefully before acceding to the request for confidentiality. In particular, the journalist must be satisfied that the source is likely to have direct knowledge of the matter under discussion and does not have ulterior motives that might distort, obscure or mislead. Furthermore, the subject matter must be of sufficient public interest to justify a guarantee of confidentiality and must not be otherwise obtainable through attributed sources.
[41] Mr Ellis refers to the watchdog role provided by journalists as a
check on the power of the state and of other organisations
or individuals whose
actions affect the community. He expresses the view that, at times, this role
can be effectively discharged
only by providing protection to individuals who
have evidence of any such abuse of power but who would suffer consequences as a
result
of disclosure of their identity.
[42] While accepting that the present case is not one in which
TV3 was performing any role as a watchdog, Mr Ellis
expresses the view that the
media also serve the public by contributing to a shared understanding of a wide
range of values and issues
of common interest. He deposes that there is wide
acceptance of the “virtuous circle” within which the media can serve
an important and useful function. Even if the information appears to fall
outside the “virtuous circle” the promise of
protection must
nevertheless be honoured. Not to do so would undermine the principle of source
protection; would adversely affect
the ability of a journalist to discharge his
or her civic role; would give rise to a chilling effect if informants doubted
the journalist’s
willingness or ability to protect identity; the use of
the expression “guarantee” would ring hollow if the public perceives
that journalists can be forced to give up the identity of a source; and the
breaking of an agreement would violate the level of trust
engendered in the
relationship between the journalist and the source.
[43] In Mr Ellis’ view, there are only two circumstances in which a
guarantee of anonymity may in good conscience be breached
by a journalist. The
first is where a person may suffer actual harm or a serious crime may be
committed unless the journalist discloses
the identity of the source to
appropriate authorities. The second is where the journalist later becomes aware
of ulterior motives
which, if known at the outset, would have led to the
journalist to decline to give any promise of anonymity.
[44] Mr Ellis concludes by saying a journalist must accept there may be consequences in maintaining silence. He sees this as a price that journalists must be prepared to pay in order to preserve the integrity of a “convention that is a vital tool in investigative reporting in the public interest”.
[45] In response to the affidavit of Mr Ellis, the police obtained
evidence from Mr Steven Price, a barrister specialising in
media law and a
lecturer in that subject at Victoria University. Mr Price is well qualified
academically in both law and journalism
and has some experience as a working
journalist. His evidence analyses the nature and extent of the “chilling
effect”
described by Mr Ellis. He concludes that while it is very likely
there will be some sort of chilling effect if disclosure of a journalist’s
source is directed, it is impossible to identify the existence of such an effect
with any certainty, and if identified, to establish
how great its impact may
be.
[46] Mr Price bases his view on a substantial body of research which he
describes in his evidence. He notes that the incidence
of subpoenas being
issued to journalists is extremely low in New Zealand. He attributes this in
part to the reluctance by the media
to reveal their sources and similar
reluctance by the police to formally involve the media in criminal proceedings.
He observes
that, in considering whether to reveal information to the media, a
potential source of information is likely to weigh up a number
of factors. Any
chilling effect might be strongest where the possibility of the identity of the
source being revealed in court is
present in the mind of the source. In the
end, Mr Price expresses the opinion that sources are most likely to be chilled
if there
is a pattern of high profile court ordered disclosure and particular
informants perceive that a court might compel disclosure in
their
case.
[47] While accepting there is no empirical evidence to support his view,
Mr Price ventured the opinion that most of the ordinary
business of
off-the-record conversations will be substantially unaffected. The approach
adopted by informants in deciding whether
to reveal certain information is
likely to be based on their perception of the similarities between their case
and others where disclosure
has been ordered.
[48] As to the grounds upon which a journalist might breach an undertaking as to confidentiality, Mr Price noted, based on overseas research, that most journalists agree they might breach such a promise in order to save lives; some would breach a confidence to prevent an innocent person being convicted; and some would voluntarily provide the authorities with confidential information to help secure a conviction for a significant crime.
[49] The views of Mr Ellis and Mr Price are valuable in illuminating the
issues. The importance of protecting journalists’
sources is
clearly recognised but Mr Price’s evidence highlights the
difficulties inherent in making any empirical
assessment of the extent of
the chilling effect Mr Ellis fears. At best, the nature and extent of any such
effect must be assessed
as a matter of intuition taking into account the
circumstances of the particular case; the frequency with which the
court
is willing to require disclosure; the level of any threshold established;
and the circumstances in which the court will order disclosure.
The lower the
threshold established, the greater the frequency of court-ordered disclosure and
the higher the level of publicity
attracted to the making of such orders, the
greater any chilling effect may be.
The Protection of Journalists’ Sources
[50] Over the last 30 years, the law in New Zealand has seen a steady
evolution in the development of protections available to
journalists against
being compelled to disclose confidential sources of information. Any
protection at common law was limited,
falling well short of any recognised
privilege: Attorney-General v Clough [1963] 1 QB 773, 792;
Attorney-General v Mulholland [1962] 2 QB 477, 489-490 and British
Steel Corp v Granada Television Ltd [1981] AC 1096, 1169. If the Court
considered that the ultimate interest of the community in justice being done
outweighed the respect
due to confidence in the profession, then the journalist
was obliged to answer.
[51] A limited but well-established exception known as the newspaper rule was developed in terms of which, in defamation proceedings, a newspaper or other news medium could not be forced to disclose their source of information: Broadcasting Corporation of New Zealand v Alex Harvey Industries Ltd [1980] 1 NZLR 163(CA). The overriding justification for the newspaper rule was said to be the public interest in the dissemination of information. However, the rule did not extend beyond the interlocutory phases of discovery and interrogatories. A similar rule applied at the interlocutory stages of a breach of confidence action: European Pacific Banking Corp v Television New Zealand Ltd [1994] 3 NZLR 43, 48 (CA).
[52] Section 35 Evidence Amendment Act (No 2) 1980 conferred a
statutory discretion on the Court to excuse any witness
from answering
any question or producing any document on the ground that, to do so, would be a
breach by the witness of a confidence
that the witness should not be compelled
to breach. Any such confidence could arise from the special
relationship existing
between the witness and the source of the information
or document. This section included, but was not confined to, journalists
who
may wish to protect the identity of their sources.
[53] By subs (2), the Court was required to consider whether the public
interest in having the evidence disclosed to the Court
was outweighed, in the
particular case, by the public interest in the preservation of confidences
between the relevant persons and
the encouragement of free communication between
them. The subsection required the Court to have regard to the likely
significance
of the evidence to the resolution of the issues in the proceeding;
the nature of the confidence and of the special relationship;
and the likely
effect of the disclosure on the confidant or any other person. The Court of
Appeal held in R v Howse [1983] NZLR 246, 251 that the legislature had
conferred a discretion to weigh the competing public interest bearing on each
particular
case, having regard to broad criteria. Clearly, a balancing process
was envisaged.
[54] The section has been applied in several New Zealand cases including: R v Cara and Kelman HC AK CRI 2004-004-6560 2 June 2004; R v Patel HC AK CRI 2004-004-14009 27 October 2005; and R v Patel HC AK CRI 2004-004-1409
3 November 2005. In Cara and Kelman, Potter J stated at
[35]:
...The Court must weigh the competing public interest in freedom of
expression, pursuant to which the Courts have long recognised
that sources of
information accessed by the media may require protection otherwise the flow of
information on which freedom of speech
relies may well be curtailed or may
cease; and the interest of an accused person and of society generally in
ensuring a fair trial
for those charged under the law.
[55] Similarly, in the second of the Patel cases, Rodney Hansen J
stated at [35]:
The public interest in the media’s ability to publish without hindrance and, for that purpose, to protect any obligation of confidence that exists, is of fundamental importance. It is not to be lightly overridden.
[56] In the United Kingdom, s 10 Contempt of Court Act 1981 confers a
qualified protection in different terms from our former
s 35. Section
10 of the United Kingdom legislation provides:
No court may require a person to disclose, nor is any person guilty of
contempt of court for refusing to disclose, the
source of information
contained in a publication for which he is responsible, unless it be
established to the satisfaction
of the court that disclosure is necessary in the
interests of justice or national security or for the prevention of disorder or
crime.
[57] The differences between the previous position at common law and
under s 10 are discussed by Lord Diplock in Secretary of State for Defence
& Anor v Guardian Newspapers Ltd [1985] 1 AC 339 at 345-350 (HL). The
protection conferred upon journalists in relation to disclosure of sources of
information under
this section is much wider than at common law. In particular,
the protection exists in favour of the journalist unless the party
seeking the
information establishes to the satisfaction of the Court that disclosure is
“necessary” for any of the three
purposes identified in s 10.
Establishing whether such disclosure is necessary is regarded as a question of
fact.
[58] The approach to s 10 of the United Kingdom legislation was discussed
again by the House of Lords in X Limited v Morgan Grampian Ltd [1991] 1
AC 1, and, in particular, by Lord Bridge. Lord Bridge emphasised at 44 that the
task of the Court:
... will always be to weigh in the scales the importance of enabling the ends
of justice to be attained in the circumstances of the
particular case on the one
hand against the importance of protecting the source on the other hand. In this
balancing exercise it
is only if the judge is satisfied that disclosure in the
interests of justice is of such preponderating importance as to override
the
statutory privilege against disclosure that the threshold of necessity will be
reached.
[59] Lord Bridge went on to identify a number of relevant factors.
Significantly for the present case, Lord Bridge said at 44:
One important factor will be the nature of the information obtained from the source. The greater the legitimate public interest in the information which the source has given to the publisher or intended publisher, the greater will be the importance of protecting the source. But another and perhaps more significant factor which will very much affect the importance of protecting the source will be the manner in which the information was itself obtained by the source. If it appears to the court that the information was obtained
legitimately this will enhance the importance of protecting the source.
Conversely, if it appears that the information was obtained
illegally, this will
diminish the importance of protecting the source unless, of course, this factor
is counterbalanced by a
clear public interest in publication of
the information, as in the classic case where the source has acted for the
purpose
of exposing iniquity.
[60] Later, English jurisprudence began to be influenced by the Convention for the Protection of Human Rights and Fundamental Freedoms (Rome) 4 November
1950; TS 71 (1953); Cmd 8969 and, in particular, the right to freedom of expression conferred by article 10. In Ashworth Hospital Authority v MGN Limited [2002] UKHL 29; [2002] 1 WLR 2033, the House of Lords adopted the following passage from the European Court of Human Rights decision in Goodwin v United Kingdom (1996) 22
EHRR 123 at [39]:
"The court recalls that freedom of expression constitutes one of the
essential foundations of a democratic society and that the safeguards
to be
afforded to the press are of particular importance. Protection of journalistic
sources is one of the basic conditions for press
freedom, as is reflected in the
laws and the professional codes of conduct in a number of Contracting States and
is affirmed in several
international instruments on journalistic freedoms.
Without such protection, sources may be deterred from assisting the press in
informing the public on matters of public interest. As a result the vital public
watchdog role of the press may be undermined and
the ability of the press to
provide accurate and reliable information may be adversely affected. Having
regard to the importance
of the protection of journalistic sources for press
freedom in a democratic society and the potentially chilling effect an order
of
source disclosure has on the exercise of that freedom, such a measure cannot be
compatible with Article 10 of the Convention unless
it is justified by an
overriding requirement in the public interest."
[61] In Ashworth, Lord Woolf CJ (with whom Lord Oliver
and Lord Lowry agreed) said at [38] that:
The same approach can be applied equally to section 10 now that article 10 is
part of our domestic law.
[62] At [39], Lord Woolf endorsed the approach to s 10 adopted by Lord
Bridge in
X Limited v Morgan-Grampian (Publishers) Ltd (see [58]
above).
[63] At [61], Lord Woolf adopted a further passage from the decision of the European Court in Goodwin at [40] of its judgment to the effect that the “necessity” for any restriction of freedom of expression must be “convincingly established” and
that “limitations on the confidentiality of journalistic sources call
for the most careful scrutiny by the Court”. Lord
Woolf added at
[62]:
Furthermore, I would also adopt Mr Browne's contention that any restriction on the otherwise unqualified right to freedom of expression must meet two further requirements. First, the exercise of the jurisdiction because of article
10(2) should meet a "pressing social need" and secondly the
restriction should be proportionate to a legitimate aim which is
being
pursued.
[64] Finally, at [66], Lord Woolf said:
The situation here is exceptional, as it was in Financial Times
Ltd v Interbrew SA [2002] EWCA Civ 274 and as it has to be, if disclosure
of sources is to be justified.
[65] On the facts, the House of Lords found that disclosure of the source
of leaked medical records was proportionate and justified.
The disclosure of
the medical records in question was wrongful and increased the danger to the
care of patients. It was necessary
to identify and punish the source in order
to deter the same or similar wrong-doing.
[66] The chilling effect of court orders requiring the disclosure of
press sources has been discussed by Laws LJ at the Court
of Appeal level in
Ashworth Hospital Authority v MGN Ltd [2001] 1 All ER 991 at
[101]:
It is in my judgment of the first importance to recognise that the potential vice—the 'chilling effect'—of court orders requiring the disclosure of press sources is in no way lessened, and certainly not abrogated, simply because the case is one in which the information actually published is of no legitimate, objective public interest. Nor is it to the least degree lessened or abrogated by the fact (where it is so) that the source is a disloyal and greedy individual, prepared for money to betray his employer's confidences. The public interest in the non-disclosure of press sources is constant, whatever the merits of the particular publication, and the particular source. The suggestion (which at one stage was canvassed in the course of argument) that it may be no bad thing to impose a 'chilling effect' in some circumstances is in my view a misreading of the principles which are engaged in cases of this kind. In my judgment, the true position is that it is always prima facie (I can do no better than the Latin) contrary to the public interest that press sources should be disclosed; and in any given case the debate which follows will be conducted upon the question whether there is an overriding public interest, amounting to a pressing social need, to which the need to keep press sources confidential should give way.
[67] This passage was approved by Lord Woolf in the House of
Lords in Ashworth (above) at [66]. As a footnote, compliance with the
order revealed only the name of a journalist who refused to name his source.
Proceedings commenced against him ultimately failed to obtain an order requiring
him to disclose the identity of his source: Mersey Care NHS Trust v Ackroyd
(No. 2) [2006] EWHC 107; upheld on appeal: [2007] EWCA Civ 101.
[68] It is clear from the English cases and the decision in Goodwin
that the courts in those jurisdictions have accepted that, without statutory
protection, journalists’ sources may be deterred
from assisting the press
to inform the public on matters of public interest. In turn, it has been
accepted that the public watchdog
role of the press might be
undermined.
[69] Counsel referred to two recent articles relating to the
protection of journalists’ sources: Janice Brabyn
“Protection
Against Judicially Compelled Disclosure of the Identity of News Gatherers’
Confidential Sources in Common
Law Jurisdictions” (2006) 69(6) MLR
895-934; and Ruth Costigan “Protection of Journalists’
Sources” [2007]
Public Law – Autumn 464. These articles are helpful
to the extent that they discuss the relevant authorities in the United
Kingdom
and some other jurisdictions. The authors each emphasise the need for
exceptional or truly compelling circumstances in
order to override the
protection of journalists’ sources. Ms Brabyn advocates what she describes
as “constitutional imperative/weighted
balancing protection” for
confidential news sources: 932. At 933-934 she concludes:
As to other types of case, absent physical safety or truly compelling law enforcement/national security concerns, constitutional imperative source protection would normally prevail in criminal cases arising out of the disclosure or publication only. In criminal cases unconnected with the disclosure, no news gatherer should wish or be permitted to remain silent about information that has a real chance of preventing a person suffering physical harm or wrongful conviction. Sometimes, swearing that the defendant was not the news gatherer’s source may be sufficient. Sometimes, and subject to taking all possible steps to ensure the news gatherer’s and the source’s safety, identification of a source may be strictly necessary. Most credible sources will understand this. Otherwise, the public interest in protecting news gatherer/confidential source relationships would still prevail.
[70] Ms Brabyn acknowledges however that news media have public interest
responsibilities which she expresses in the following
terms at 932:
The point is all news gatherers who argue for special protection for news
gatherer/confidential source relationships need to take
their public interest
responsibilities very seriously. They need to be vigilant to ensure that news
gathering serves rather than
threatens liberal democracy, that is, that the
public benefits of publishing on confidentiality terms clearly outweigh the
public
and private costs of both the publication of the material and any
subsequent disclosure or nondisclosure of sources. Such disinterested
vigilance is both the justification for and the price of special protection for
news gatherer/confidential source relationships.
[71] In her article, Ms Costigan urges the Courts to give fuller effect
to what she calls the “primacy” of freedom
of expression and laments
the continuing influence of the common law balancing approach. She concludes at
486-487:
The courts have responded to the requirements of the HRA. It has been
established that the exceptions in s.10 CCA must correspond
to the
legitimate aims in Art.10(2), that the Strasbourg test of necessity must be
applied, and that a disclosure order must be
a last resort. But the continuing
influence of the common law balancing approach, with insufficient recognition
that since the HRA
the exercise is one of judgment, means that these
requirements are not in every respect implemented appropriately and to a
sufficiently
demanding standard. The jurisprudence conveys the sense that for
the journalist to keep the protection of s.10, the source must
have acted out of
conscience, the story must be clearly in the public interest, and the journalist
must be of good standing and have
acted responsibly. If there is weakness at
any one of these points, the courts are likely to come down on the
claimant’s side.
Concrete harm to the claimant’s legal interests
wins out against intangible injury to freedom of expression. Yet the cost
of
incremental intrusion on the free flow of information is so high that compelling
journalists to identify their sources should
be truly exceptional. The relevant
Recommendation of the Council of Europe Committee of Ministers identifies the
following as potentially
capable of overriding the public interest in the
confidentiality of journalists’ sources: the protection of human life, the
prevention of major crime, and the defence of someone accused or convicted of a
major crime. The contrast with domestic law, which
continues to authorise
disclosure orders simply for a private company to dismiss an employee, is stark.
There is a pressing need
for the courts to give full effect, whilst not adopting
an absolutist position, to the primacy of freedom or expression, for as Laws
L.J. has identified, “it is always prima facie ... contrary to
the public interest that press sources should be
disclosed”.
The Public Interest in the Investigation and Prosecution of
Crime
[72] No authority is needed for the proposition that there is a strong
public interest in the investigation and prosecution of
crime. The defendants
rightly concede as much. In the particular context of s 10 Contempt of Court
Act 1981 (UK) the House of
Lords in In re Inquiry under the Company
Securities (Insider Dealing) Act 1985 [1988] AC 660 was called upon to
deal with the meaning of the expression “prevention of ...
crime” in s 10.
Lord Griffiths (with whom the other Law Lords agreed)
said at 705:
The phrase the “prevention of ... crime” carries, to my mind,
very different overtones from “prevention of a crime”
or even
“prevention of crimes”. There are frequent articles and programmes
in the media on the prevention of crime.
The subject on these occasions is
discussed from many points of view including the social background in which
crime breeds, detection,
deterrence, retribution, punishment, rehabilitation and
so forth. The prevention of crime in this broad sense is a matter of public
and vital interest to any civilised society. Crime is endemic in society and
will probably never be eradicated but its containment
is essential. If crime
gets the upper hand and becomes the rule rather than the exception, the collapse
of society will swiftly
follow. By identifying “prevention of ...
crime” as one of the four heads of public interest to which the
journalist’s
privilege may occasionally have to yield, I am satisfied that
Parliament was using the phrase in its wider and, I think, natural
meaning,
rather than in the restricted sense for which the appellant
contends.
[73] By reference to s 10, the House of Lords found there was no
reasonable excuse for a journalist to refuse to disclose the
identity of his
sources of information for the purposes of an inquiry under the Financial
Services Act 1986 into apparent contraventions
of the Companies Securities
(Insider Dealing) Act 1985.
[74] The public interest in the investigation and prosecution of crime is
not limited to particular crimes but extends to the
public interest in the
prevention of crime generally.
The Genesis of s 68 Evidence Act 2006
[75] Mr Rowe for the plaintiff provided a helpful summary of the background to the development of s 68. In 1994, the Law Commission issued a discussion paper
entitled Evidence Law: Privilege (Preliminary Paper No 23). The Law
Commission noted at para 338 that the enactment of the New Zealand Bill of
Rights Act 1990 arguably gave scope to base
journalistic privilege on the right
to freedom of expression guaranteed by s 14. The Commission went on to say at
para 339:
The Commission takes the view that on balance there is a case for according
privilege to journalists’ confidential sources of
information.
Nevertheless, it has to be circumscribed with some care, and there appears to be
no room for any “absolute”
privilege which would prevent the courts
from looking into individual cases to see whether the privilege is justified.
The question
is whether the existing common law principles afford a sufficient
protection, or, if not, whether the matter requires specific legislation,
or
whether it is enough that confidentiality may be protected under the general
discretionary powers afforded by statute.
[76] The Law Commission went on to propose that s 35 Evidence Amendment
Act (No 2) 1980 be retained with some modifications.
It was suggested that the
free- flow of information (and by implication, the freedom of the
press) should be declared
to be a matter of public interest. At
para 354 the Law Commission suggested that additional guidelines could
include:
• The court should take into account the nature of
the proceeding.
[77] In 1999, the Law Commission published its Evidence Report
(Report 55 – Vol 1 – Reform of the Law). The Commission
proposed a specific section (then s 66) to create a specific
qualified privilege
for journalists’ confidential sources. The Commission stated at para 301
of the report that:
The protection of journalists’ confidential sources of information is
justified by the need to promote the free-flow of information,
a vital component
of any democracy.
[78] The Commission went on to note at para 302 that an express qualified privilege which put the onus on the person seeking to have the source revealed, was preferable to a general discretion. It was said that:
This would give greater confidence to a source that his or her identity would
not be revealed.
[79] The section then proposed was in substantially similar terms to the
present s 68 as enacted. Apart from minor drafting
changes, the only
substantial change made to s 68 upon enactment was the addition of subs
(5) containing certain definitions.
Section 68 Evidence Act
[80] Section 68 provides:
68 Protection of journalists' sources
(1) If a journalist has promised an informant not to disclose
the informant's identity, neither the journalist nor
his or her employer is
compellable in a civil or criminal proceeding to answer any question or produce
any document that would disclose
the identity of the informant or enable that
identity to be discovered.
(2) A Judge of the High Court may order that subsection (1) is not to
apply if satisfied by a party to a civil or criminal
proceeding that, having
regard to the issues to be determined in that proceeding, the public interest in
the disclosure of evidence
of the identity of the informant
outweighs—
(a) any likely adverse effect of the disclosure on the informant or
any other person; and
(b) the public interest in the communication of facts and opinion to
the public by the news media and, accordingly also, in
the ability of the news
media to access sources of facts.
(3) The Judge may make the order subject to any terms and conditions
that the Judge thinks appropriate.
(4) This section does not affect the power or authority of the House of
Representatives.
(5) In this section,—
informant means a person who gives information to a journalist in the
normal course of the journalist's work in the expectation that the information
may be published in a news medium
journalist means a person who in the normal course of that person's work may be given information by an informant in the expectation that the information may be published in a news medium
news medium means a medium for the dissemination to the public or a
section of the public of news and observations on news
public interest in the disclosure of evidence includes, in a criminal
proceeding, the defendant's right to present an effective defence.
[81] Section 68 is found within subpart 8 of the Evidence Act entitled
“Privilege and Confidentiality”. This subpart
commences with
“Matters relating to interpretation and procedure” (ss 51 and 52)
and is then further subdivided under
the headings “Privilege” (ss 53
to 67) and “Confidentiality” (ss 68 to 70). Privilege is conferred
in
respect of communications with specified persons such as legal
advisers, mediators, ministers of religion, medical practitioners
and clinical
psychologists. A person upon whom such a privilege is conferred has the right
to refuse to disclose his or her communications
with these specified persons: s
53. Certain privileges may be waived or disallowed under ss 65 and 67
respectively.
[82] In contrast, s 68 is expressed in the form of an exemption from the
normal obligation of a witness to answer questions or
to produce documents in a
civil or criminal proceeding. Section 68 is focussed on the confidentiality of
the communication as well
as the status of journalist and informant as defined
in subs (5). Section 69 applies more generally to confidential communications,
irrespective of the occupation of the person to whom the communication may be
made. Unlike s 68, it does not confer an exemption
from compellability but
gives a discretionary power to a Judge to direct that confidential information
or communications not be disclosed.
[83] The Evidence Act 2006 appears to differentiate s 68 from the privileges conferred within ss 54 to 64. Section 68 takes the form of an exemption from compellability which, conceptually, may be distinguished from an entitlement to privilege: see the discussion in McNicol Law of Privilege (1992) at 10; J D Heydon (ed) Cross on Evidence (7th Australian Edition, 2004) at para 25005; and Mahoney et al The Evidence Act 2006: Act & Analysis (2007) at 68.02. The privileges conferred by the earlier provisions in subpart 8 belong to whoever is in communication with a person who falls into one of the designated categories (for example, the privilege
under s 54 belongs to the client, not the legal adviser). In contrast, the exemption from compellability under s 68 is conferred upon the journalist. Section 68 is
therefore better interpreted as conferring a protection or immunity to
journalists rather than a privilege. Indeed, such an interpretation
is
consistent with the heading of the section and the structure and language of the
subpart.
[84] Except to the extent specifically enacted in s 68, journalists are
competent and compellable witnesses in the same way as
any other witness. The
protection from compellability is limited and specific. It applies only where
a journalist has promised
an informant not to disclose his or her identity. The
protection is limited to exemption from the obligation to answer questions
or
produce documents that would disclose the identity of the informant or enable
that identity to be discovered. It does not extend,
for example, to the content
of any document or conversation between an informant and a journalist unless the
content would enable
the identity of the informant to be discovered. The limited
protection conferred by the statute is not absolute. It is qualified
by the
power given to a High Court Judge to order under s 68(2) that the protection
under s 68(1) is not to apply. While a journalist
may not be compelled to
disclose the identity of an informant by virtue of s 68(1), the journalist may
choose to do so if he or
she wishes.
[85] In this case it is common ground that:
• All of the defendants are “journalists” for the purposes
of s 68.
• The person interviewed was an “informant” within the meaning of the section.
• Mr Campbell and others associated with TV3 promised the person
interviewed that his identity would not be disclosed.
[86] The critical question for consideration is how the Court should
approach an application under subs (2). Three points are
straightforward:
• The starting point is that a journalist is not obliged to answer questions or produce documents that would disclose the identity of the informant or enable that identity to be discovered: s 68(1).
• The journalist’s prima facie immunity may be displaced by an order under s 68(2).
• The onus is on the party seeking an order under s 68(2) to satisfy
a High
Court Judge that such an order should be made.
[87] Generally, the expression “is satisfied” does not
import any particular standard of proof. In R v White (David) [1988] NZCA 55; [1988] 1
NZLR 264 McMullin J, delivering the judgment of the Court of Appeal, stated at
268:
...the phrase “it is satisfied” does not carry with it the
implication of proof beyond reasonable doubt and has not been
construed to have
this meaning in the many cases in which it has been considered. The Canadian
case referred to is an exception.
We would decline to follow it. The phrase
“is satisfied” means simply “makes up its mind” and is
indicative
of a state where the Court on the evidence comes to a judicial
decision. There is no need or justification for adding any adverbial
qualification to “is satisfied”: Blyth v Blyth [1966] AC
643. In that case the House of Lords rejected the view of the Court of Appeal
that “it is satisfied” means
“satisfaction beyond reasonable
doubt”. Lord Pearson said at p 676:
“The degree or quantum of proof required by the court before it comes
to a conclusion may vary according to the gravity of the
subject matter to which
the conclusion relates, but in relation to each subject matter the specified
conclusion is reached or not
reached by the end of the trial: the court either
is or is not satisfied upon each point.”
[88] Mr Miles QC on behalf of the defendants submitted that the consideration of the matters under s 68(2) does not involve the exercise of discretion and should not be regarded as a simple balancing exercise. He relied on the right of journalists not to be obliged to disclose their sources now being clearly recognised in s 68(1). He also relied on the article by Ms Costigan (above) where the author (at 467-471) discusses a number of authorities in which it was said that the assessment of whether disclosure of a journalist’s source is “necessary” under s 10 Contempt of Court Act
1981 (UK) is a question of fact and does not call for the exercise of
discretion.
[89] I am not persuaded by these submissions. There are clear differences between the language of s 10 of the Contempt of Court Act 1981 (UK) and s 68
Evidence Act. First, the New Zealand legislation does not use the word “necessary”, which is a pivotal factual inquiry in the judgment required under the United Kingdom provision. Secondly, the use of the word “outweighs” clearly requires the Court to undertake a balancing exercise. The Court must weigh the public interest in the disclosure of evidence of the identity of the informant against any likely adverse
effect of the disclosure on the informant or any other person and against the
public interest in the communication of facts and opinion
to the public by the
news media as well as the related issue of the ability of the news media to
access sources of facts. The court
may only make an order under s 68(2) if it is
satisfied that the public interest in the disclosure of evidence of the identity
of
the informant outweighs both the matters in s 68(2)(a) and (b).
[90] I accept however that the required balancing exercise is more in the nature of an evaluative judgment of fact and degree than the exercise of a discretion in the conventional sense: Austin, Nichols & Co Inc v Stichting Lodestar [2008] 2 NZLR
141 at [17] (SC).
[91] Mr Miles submitted that if the journalist’s protection
conferred by s 68(1) is to be adequately protected, then it
should not be
overridden except in unusual or exceptional circumstances. To support that
submission, he relied on the English and
European authorities already discussed.
I do not accept that submission. To do so would require a gloss to be applied
to the words
the legislature has chosen to use. If Parliament had intended that
disclosure of the identity of an informant should only occur
in truly
exceptional or compelling circumstances, it could easily have said so. It could
also, for example, have used the expression
“substantially”
outweighs in s 68(2). Parliament did not use any such expression.
[92] While the statute does not give any specific guidance as to the relative weight to be attached to the elements which must be assessed under s 68(2), the trend of authority both in New Zealand and in the United Kingdom is to attach substantial weight to freedom of expression in a broad sense as well as in the narrow sense of encouraging the free-flow of information and the protection of journalists’ sources. This is evident from the authorities already mentioned. Their importance is underlined by the enactment of s 14 New Zealand Bill of Rights Act guaranteeing freedom of expression. It is also illustrated in previous authorities dealing with the grant of search warrants seeking materials from the premises of the media: Television New Zealand Ltd v Attorney-General [1995] 2 NZLR 641, 648 (CA).
[93] The Court should approach its task from the starting point that the
journalist’s protection is established by s 68(1)
and that any order under
s 68(2) is therefore a departure or exception from this initial position. The
presumptive right to the
protection should not be departed from lightly and only
after a careful weighing of each of the statutory considerations.
[94] It was submitted that a high threshold should be set in order to
protect the journalist’s sources. Given the structure
and language of s
68, I decline to set any such threshold. To adopt a threshold of
serious threat to life or property,
for example, would amount to an
inappropriate fetter on the statutory task of weighing the factors identified by
s 68(2). Guidelines
of the type suggested in evidence may be adopted by
journalists for their own purposes but they cannot be permitted to control or
influence the approach mandated by the statute which will inevitably be
fact-dependent. As Lord Bridge expressed it in X Limited v Morgan Grampian
Limited (above) at 49:
Any rule of professional conduct enjoining a journalist to protect his
confidential sources must, impliedly if not expressly, be subject
to whatever
exception is necessary to enable the journalist to obey the orders of a court of
competent jurisdiction.
[95] The public interest in the disclosure of the identity of a informant
is not defined except in the limited sense described
in s 68(5) mentioned below
at [99]. But s 68 operates in the context of “proceedings before any
court” (s 68(1)) and
the relevant public interest is in disclosure in that
setting: (s 68(2)). The relevant public interest in disclosure must therefore
be taken to include the investigation or prosecution of crime, the importance of
which is described in [72] to [74] above.
[96] In considering the weight to be attached to the public interest in the disclosure of the evidence of the identity of the informant in a case such as this, it will ordinarily be relevant to consider whether, in the circumstances of the case, other means are available to obtain the information sought. That is because the journalist’s protection should not normally be overridden if the public interest in the disclosure of the identity of the informant can be satisfied by an alternative route. Where the prosecuting agency has sufficient evidence of the identity of the informant
from other sources, it is unlikely an order would be made: see R v Cara
and Kelman
(above).
[97] The Court will also assess the significance to the prosecution case
of the information sought. Where the prosecution has
sufficient evidence to
secure a conviction without the disclosure of the identity of the informant, one
would expect an order to
be declined. On the other hand, the more crucial the
identity of the informant is to the prosecution case, the greater the weight
to
be attached to the public interest in the disclosure of the evidence of
identity. The evidence in question need not be essential
or critical but it
must at least be important and not merely desirable or “nice to
have”.
[98] In a case such as this, the Court would also take into account the
importance of the charge. A prosecution for a minor offence
is unlikely to
carry the degree of public interest that would attach to the prosecution of a
serious charge.
[99] In a criminal proceeding, the public interest in the disclosure of
evidence includes the defendant’s right to present
an effective defence:
s 68(5). This is presumably intended to require the Court to consider a
defendant’s fair trial rights
when weighing the public interest in favour
of an order. For example, in the Patel decisions (above) the Court
required disclosure of materials to enable the credibility of an informer to be
effectively challenged.
Section 8(2) Evidence Act similarly requires the Court
to consider the right to present an effective defence. So too, s 25(a)
and (e)
New Zealand Bill of Rights Act.
[100] On the other side of the ledger, the Court is obliged to
consider under s 68(2)(a) any likely adverse effect
of the disclosure on the
informant or any other person. This could involve, for example, consideration
of whether the informant
or any other person is likely to suffer some form of
harm if the identity of the informant is disclosed. It might also embrace an
adverse effect on the journalist such as a risk of physical harm or damage to
property.
[101] The Court must also consider under s 68(2)(b) the specific public interest identified in the communication of facts and opinion to the public by the media and
the public interest in the ability of the media to access sources of facts.
Here, the Court would consider, amongst other things,
whether the effect of an
order would be likely to have the chilling effect referred to in the evidence.
Such an effect could be
specific to the informant in the particular case or more
generally as tending to deter members of the public from communicating
confidential material to the media. While any potential impact of this kind
may be difficult to quantify, the courts and the
legislature have specifically
recognised the public interest in preserving the ability of the media to
access sources of fact.
A person who, for example, confidentially discloses
evidence of corruption or wrong-doing in public or private institutions or
the
whereabouts of an abducted child is not to be discouraged by the risk of his or
her identity being disclosed by order of the
Court. The Court would also take
into account the potential to undermine the ability of the media to access
information if orders
under s 68(2) were lightly or frequently made.
[102] Even if the Court is satisfied that the public interest in disclosure
outweighs the matters identified in s 68(2)(a) and (b),
it does not follow that
an order under s 68(2) must be made. The Court “may” make such an
order. If it does, the Court
may make the order subject to any terms
and conditions the Judge thinks appropriate: s 68(3). It should be noted
that
an order made under s 68(2) does not require disclosure. Its effect is to
order that the privilege against disclosure in s 68(1)
does not apply. The next
step would be for the prosecutor to subpoena the journalist. As already
mentioned, the admissibility
of the journalist’s evidence would still
be open to challenge on the grounds of relevance, reliability, unfairness or
otherwise.
[103] In summary, the steps to be followed by a Judge in considering an
order under s 68(2) are to:
a) Determine whether s 68(1) is engaged and the protection applies.
c) Weigh the public interest factors identified in s
68(2).
informant outweighs the matters in both s 68(2)(a) and (b), the Court may make an order.
The Present Case
[104] The first two steps just identified are established. It is accepted
that the privilege under s 68(1) applies and the relevant
issue at K and
W’s trial will be whether they are identified as the burglars. In my
judgment, the public interest in the successful
prosecution of the offenders is
high. Burglary is a serious crime attracting a maximum term of imprisonment of
10 years. This
was a particularly serious burglary involving the breaking and
entering of public premises and the removal of extremely valuable
property.
The medals have a high monetary value but, more importantly, they reflect and
symbolise the nation’s pride in acts
of valour by New Zealand soldiers.
Bringing those responsible to justice is very much in the public interest. The
fact that the
medals were returned may reduce any penalty ultimately received by
those responsible but does not diminish the strong public interest
in
prosecuting those involved as a deterrent to them and others who may be
similarly minded.
[105] It is not in dispute that the crime attracted major and widespread
public concern for the reasons already elaborated. It
is common ground that
both the burglary and the return of the medals were the subject of intense media
scrutiny within New Zealand
and overseas, highlighting the level of public
concern over the incident. I accept that it is important to distinguish between
mere
public curiosity or sentiment and the broader public interest contemplated
by s 68(2), but the extent of publicity in this case reflects
the public’s
concern to prevent burglaries of this kind and to see the successful prosecution
of the offenders. Such concerns
are legitimate matters of public
interest.
[106] As noted at [30], the identity of the person interviewed by Mr Campbell is a highly relevant and significant piece of evidence. Without that evidence, my assessment is that the police case against K and W is relatively weak, as already
noted. Mr Miles submitted that a confession to a crime (of whatever
magnitude) could never be sufficiently exceptional to outweigh
the public
interest in maintaining a journalist’s protection from disclosure of
sources. I do not accept that submission.
Obviously, an admission of a trivial
crime would be unlikely to justify an order under s 68(2). But the crime
alleged here is far
from trivial. For the reasons already canvassed, it was in
fact a major burglary likely to attract a very serious penalty.
[107] The evidential value of a confession is invariably regarded as very
high in a criminal prosecution unless there is reason
to believe it may be false
or to have been improperly obtained. A confession may be challenged or
explained on various grounds
but, as an admission against interest, is rightly
regarded as carrying great weight in any prosecution. If the confession made in
the interview in question could be linked to one of the offenders, the strength
of the prosecution case against both K and W would
be transformed from its
present relatively weak state to one which has good prospects of
success.
[108] In the circumstances of this case, I am satisfied that the right of K
and W to present an effective defence is not a relevant
factor in terms of s
68(5). Counsel for K and W were granted leave to intervene in this proceeding.
Neither suggested the disclosure
was necessary to assist their defence of the
case. Indeed, they supported the defendants in opposing the application for the
order
sought by the police.
[109] Addressing the matters in s 68(2)(a), the disclosure of the identity of the person interviewed will adversely affect K if he is identified as that person. The prosecution case against him will be strengthened. Similarly for W if he can be linked with K as being involved in the burglary. But the legislature cannot have intended that the strengthening of the Crown case against K and W that would result from the making of such an order is the kind of harm contemplated. If the disclosure of the identity of the person interviewed is permitted, K and W could well be prejudiced, but not illegitimately so. The presentation of admissible evidence which strengthens the prosecution case cannot amount to illegitimate prejudice. If an order under s 68(2) is made, it remains open to K and W to challenge the admissibility of the evidence on other grounds, for example, that it was improperly or unfairly obtained.
[110] There is no evidence of any risk of harm to any person. Any damage
to the reputation or integrity of Mr Campbell as a journalist
is not likely to
be significant if his claim to privilege is set aside by court
order.
[111] The most significant matters to be weighed in opposition to the police
application are the public interest factors identified
in s 68(2)(b).
Here it is important to recognise the substantial weight ordinarily given to
the role of the media in the dissemination
of material to the public and to
consider the potential for the chilling effect described in the
evidence.
[112] A material consideration in the present case is that a confession to
the news media by the perpetrator of a serious crime
is a very unusual event.
Counsel were unable to recall a similar case. The usual case in
which the protection of
a journalist’s sources arises is where an
informant discloses evidence of wrong-doing by others, not by themselves. A
person
who confesses to a serious crime knowing that the confession will be
broadcast to the public takes a very serious risk even if promised
confidentiality. Such a person could not reasonably have a high level of
confidence that the Court would protect his identity.
Nor could a journalist
reasonably believe the identity of the source would inevitably be protected.
For these reasons, it
is reasonable to expect that the occasions on
which a similar situation will arise are likely to be rare.
[113] The chilling effect which concerns the defendants is likely to be
much less significant if the Courts, as in my view they
must, take a cautious
approach to setting aside the journalist’s protection giving due weight to
the presumptive right to protection
as well as to the importance of protecting
the identity of a journalist’s sources and freedom of expression. There
were few
cases involving journalists under s 35 of the Evidence Amendment Act
(No 2) 1980 and there is no reason to suppose this will change
under s 68 of the
2006 Act.
[114] I accept Mr Price’s evidence that the risk of journalists’ sources drying up for fear their identity will be revealed will be diminished if the frequency with which the Court makes orders under s 68(2) is low. When this factor is combined with the unusual (if not unique) circumstances of the present case, I find that the making of an
order under s 68(2) is unlikely to have any material or enduring effect on
the ability of the news media to access information or
to inhibit the
communication of facts and opinions to the public.
Conclusion
[115] I have reached the conclusion for the reasons discussed that the
significance of the evidence enabling the identity of the
informant to be
discovered and the public interest in the prosecution of this serious offending,
outweighs the factors identified
in s 68(2)(a) and (b) by a significant margin.
Prima facie, an order should be made under s 68(2) that the protection
available under s 68(1) is not to apply.
[116] Before reaching any final conclusion, it would be helpful to have
further submissions and to consider in more detail the evidence
relating to
identity which TV3 is willing to provide or which may not be protected by s
68(1) in any event. By that means, it may
be possible to conclude there is
sufficient evidence available to identify the informant without the need for an
order under s 68(2).
[117] I have already noted the willingness of TV3 to make a witness available to confirm that the interview in question took place at the Duxton Hotel on 21 February
2008 and to produce the transcripts of both the audio interview and the reconstructed interview as televised that day. That evidence has the potential, when combined with [suppressed], to
provide a proper factual basis to enable a jury to draw an inference as to
the identity of the person interviewed.
[118] Mr Rowe accepted that this evidence would be helpful, subject to a witness from TV3 being able to confirm the time of the audio interview [suppressed].
Mr Rowe also has concerns about the
admissibility of the evidence of the timing of the interview if the evidence is not given either by Mr Campbell or Ms Leary who were the only persons present when the interview was conducted. These issues need to be clarified.
[119] There is a further topic upon which evidence from a witness from TV3 could be helpful on the identity issue. [Suppressed].
Such evidence
may however give rise to admissibility issues. Strictly speaking, issues of
admissibility of evidence (as distinct from the application
or otherwise of s
68(1)) should be left to the trial Judge. But admissibility issues are relevant
to the decision I am called upon
to make.
[120] Another possibility counsel may care to consider is whether the
evidence issues can be dealt with on a staged basis. For
example, if agreement
could be reached on the evidence discussed in [117] and [118] above, an order
under s 68(2) might not be necessary
at this stage. Leave to apply could be
reserved to allow the issue to be revisited once the position becomes clearer
after depositions.
[121] This decision is issued on an interim basis. The Registrar is
requested to arrange a telephone conference before me as
soon as convenient to
discuss the manner in which this matter may best be concluded.
Suppression Orders
[122] This judgment is not to be published in news media or on the internet
or other publicly accessible database until final
disposition of the
trial of K and W. Publication in a law report or law digest is
permitted.
[123] The suppression orders made at the hearing on 30 June 2009 remain in
effect with slight alterations. They are repeated here
for
convenience:
a) There is to be no publication of any evidence identifying the informant referred to in the application or particulars which may lead to the identity of the informant and no publication of any of the facts
that the Crown rely upon in support of the charges against the two accused, K and W.
b) There is to be no publication of the names of the two accused or any identifying particulars.
c) There is to be no publication of any previous convictions of either of the accused.
d) There is to be no publication of the agreement entered into in between the New Zealand Police and Mr Chris Comeskey in February 2008 to secure the return of the medals alleged to have been taken from the museum at Waiouru on 2 December 2007.
e) These orders may be reviewed upon application made to this Court and may also be varied by application made to the District Court at depositions or at any subsequent trial.
f) The Court file in relation to this proceeding is not to be searched without the leave of a Judge.
g) The application before the Court may be described only in the following terms, namely that it was an application by the New Zealand Police for an order under s 68 of the Evidence Act 2006 compelling the five defendants named in this proceeding (Mr Campbell, Ms Leary, Ms Hirschfeld, Ms Story and Ms Duffy) to produce relevant information in respect of the depositions hearing, and any subsequent trial, in relation to the alleged burglary of the
Waiouru Army Museum on 2 December 2007.
Costs
[124] The issue of costs is
reserved.
A P Randerson J Chief High Court Judge
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