THE HUMAN RIGHTS REVIEW TRIBUNAL & ORS Respondents

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1 NOTE: ORDER OF THE HUMAN RIGHTS REVIEW TRIBUNAL AND OF THE HIGH COURT PROHIBITING PUBLICATION OF NAMES, ADDRESSES OR IDENTIFYING PARTICULARS OF THE SECOND, THIRD AND FOURTH RESPONDENTS AND THE SECOND RESPONDENT'S PARTNER REMAIN IN FORCE. IN THE COURT OF APPEAL OF NEW ZEALAND CA772/2013 [2014] NZCA 264 BETWEEN AND THE SENSIBLE SENTENCING GROUP TRUST Appellant THE HUMAN RIGHTS REVIEW TRIBUNAL & ORS Respondents Hearing: 19 June 2014 Court: Counsel: Judgment: Stevens, Wild and Miller JJ B P Henry and P Templeton for Appellant SRG Judd for Director of Human Rights Proceedings (Fifth Respondent) 25 June 2014 at 10 am JUDGMENT OF THE COURT A The appeal is dismissed. B The appellant is to pay the costs of the fifth respondent (the Director of Human Rights Proceedings) for a standard appeal on a band A basis with usual disbursements. THE SENSIBLE SENTENCING GROUP TRUST V THE HUMAN RIGHTS REVIEW TRIBUNAL & ORS CA772/2013 [2014] NZCA 264 [25 June 2014]

2 REASONS OF THE COURT (Given by Wild J) Introduction [1] This is an appeal against a judgment of the High Court striking out an application for judicial review filed by the appellant in the High Court. 1 In a judgment delivered on 18 October 2013, Goddard J struck out that application because it could not succeed. The appellant says it could. Background [2] In April 2010 a man we will call A lodged a complaint with the Privacy Commissioner under the Privacy Act He said that his privacy had been unlawfully interfered with by the police and by the appellant, the Sensible Sentencing Group Trust. [3] A had been convicted in 1995 of five charges of sexual offending against two young girls in 1975 (four of the charges) and 1978 (the fifth charge). A said the District Court had made an order permanently suppressing his name. In 2009 an employee of the police unlawfully obtained, by downloading it from the police database, a copy of A s criminal record and provided it to A s employer. [4] That unlawfully obtained criminal record was also given to the appellant. The appellant posted details of A s name, convictions and sentence on its website. At the request of A s solicitor, those details were removed but the appellant subsequently again posted them on its website. [5] A s solicitor again wrote to the appellant requesting the removal of those details. That letter also made this request for personal information: We note your Trust s website states that your Trust obtained information regarding our client s offending from Court documents supplied and made available at the Christchurch Court. In light of the above, please urgently provide us with copies of these Court documents. Please also urgently 1 The Sensible Sentencing Group Trust v The Human Rights Review Tribunal [2013] NZHC 2720 [High Court judgment].

3 advise us who furnished your Trust with copies of our client s Court documents. [6] The appellant did not respond to that request. The details of A s convictions remained on the appellant s website. [7] Those details were removed by the appellant in May 2010 after it received a letter from the Privacy Commissioner advising that an investigation had commenced following A s complaint. But the appellant again published details of A s convictions on its website in early April [8] Having investigated A s complaint, the Assistant Commissioner advised A that he considered the appellant had interfered with A s privacy by breaching information privacy principles 6, 8 and He advised that he had referred the case to the Director of Human Rights Proceedings (the Director) pursuant to s 77(2) of the Privacy Act 1993 so that the Director could decide whether to institute a proceeding against the appellant under s 82 of the Act. [9] The Director commenced a proceeding in the Human Rights Review Tribunal (the Tribunal) in April The Director s statement of claim alleges the appellant contravened information privacy principles 6, 8 and 11 and also s 66 of the Privacy Act (which defines actions constituting an interference with the privacy of an individual). In setting out the background to A s convictions the statement of claim alleged: 5. [A] was granted name suppression in respect of these convictions. [10] The statement of claim seeks the following relief: 1. A declaration that the [appellant] has interfered with the privacy of [A], and 2. An order directing the [appellant] to make available to [A] the personal information the subject of the request, and 3. Damages in such sum as the Tribunal considers just to compensate [A] for the interference with his privacy. 2 These principles are in s 6 of the Privacy Act 1993.

4 [11] With his statement of claim the Director filed an application seeking an interim order, pursuant to ss 95 and 107(3)(b) of the Human Rights Act 1993, prohibiting publication of A s name and other details. [12] In a decision delivered on 22 April 2013, the Chairman of the Human Rights Review Tribunal made the interim orders sought by the Director, pending further order of the Tribunal or of the Chairperson. 3 [13] The Human Rights Act gives the appellant rights both to seek a review by the High Court of the Tribunal s interim orders (s 96) and to appeal them (s 123(1)). Instead of exercising either of those rights the appellant applied to the High Court for judicial review of the interim orders. Application for judicial review [14] These are the two paragraphs in the appellant s statement of claim seeking judicial review which are relevant to this appeal: 13. There were no permanent suppression orders made in the criminal proceeding in favour of [A]. 14. The [Tribunal] is acting unlawfully in that: a) The [Tribunal] has no jurisdiction to hear [A s] claim; b) [A] has no standing to bring the claim before the [Tribunal] or any other forum; and c) The acceptance of jurisdiction in the interim decision was made by the [Tribunal] on a material mistake(s) of fact. [15] The allegations in paragraph 14 that the Tribunal had acted unlawfully are particularised. The gist of the particulars is that s 139 of the Criminal Justice Act 1985 was not intended to protect a perpetrator of serious criminal offences, but rather the victims of the offending. 3 Director of Human Rights Proceedings v The Sensible Sentencing Group Trust [2013] NZHRRT 14.

5 A has no standing to bring the claim before the Tribunal [16] As Goddard J pointed out, the proceeding before the Tribunal was brought by the Director, not by A. 4 Her Honour held that the Director had duly exercised his discretion to bring the proceeding which was accordingly properly before the Tribunal. 5 [17] Mr Henry did not challenge this part of the judgment, no doubt because it is patently correct. The Tribunal has no jurisdiction to hear the proceeding [18] Dealing with this allegation, Goddard J noted the opposing assertions as to whether there was an order of the District Court suppressing A s name at the times the appellant published it. 6 Those opposing allegations are set out in [9] and [14] above. The Judge then recorded both counsel s acknowledgment: 7 that if the suppression order cannot be proved, any other issues arising for argument, such as whether the Trust is an agency which is excluded by its activities as a news medium under s 2(1)(b)(xiii) of the Act; and whether Principles 6 and 8 have any application, will essentially fall away. [19] The Judge noted it appeared the District Court s file relating to the charges against A in 1995 has unfortunately been destroyed. 8 She referred to ss 139 and 140 of the Criminal Justice Act and then to the Chairman s decision making the interim orders. She set out part of the decision in which the Chairman reviewed the conflicting information before him as to whether A s name was suppressed when the appellant published it. [20] Goddard J concluded: [24] The Tribunal undoubtedly has jurisdiction to hear and determine the proceeding currently before it as this has been properly brought. Whether it can ultimately determine the Information Privacy Principle breaches alleged will, however, depend on proof of an existing suppression order High Court judgment, above n 1, at [14]. The Director s power to bring a proceeding before the Tribunal is in s 82(2) of the Privacy Act. At [15]. At [17] [18]. At [19]. At [20].

6 [25] In conclusion, I am satisfied that it is premature to entertain any purported review of the Tribunal when it has not yet made the critical determination. There is in fact currently nothing to review. This ground of review therefore cannot succeed. [21] Without referring to Goddard J s judgment, Mr Henry submitted to us that the Tribunal lacked jurisdiction to make the interim orders because it had no jurisdiction to challenge or go behind the District Court s record. Then Mr Henry submitted that the short point on appeal is that the Tribunal lacked jurisdiction to correct the District Court s record. He added that the District Court has all the tools to clear up whether the record is accurate. Consequently, A should take steps in the District Court to determine the correct state of its record. [22] In making those submissions Mr Henry relied on s 184 of the Criminal Procedure Act 2011 which provides: 184 Permanent court record (1) Courts conducting criminal proceedings must continue to maintain a permanent court record of the formal steps in those proceedings. (2) Courts must maintain the permanent court record in accordance with rules of court. (3) The permanent court record is, subject to the power of the court to amend it, conclusive evidence of the matters recorded in it. [23] Mr Henry submitted s 184 confirms that only the District Court can amend its record, and that what is in the record is conclusive. [24] In answer to a question from the Court, Mr Henry accepted that the appellant is challenging the merits of the Tribunal s interim orders. He elaborated by arguing that information privacy principles 6, 8 and 11 do not apply because the information about A s convictions was in the public arena because it was in the record of the District Court. Mr Henry contended that how that information got into the hands of the appellant was irrelevant because it was in the public domain anyway. [25] These disparate arguments are essentially unrelated to what Goddard J decided. We agree with Her Honour that the Tribunal did and does have jurisdiction to hear and determine the Director s proceeding.

7 [26] We reject Mr Henry s argument that the Tribunal, in making its interim orders, has somehow challenged, gone behind or corrected the record of the District Court. As the Court s record now available is incomplete, what the Chairman of the Tribunal did was look at the evidence before him as to what the Court had done, when it sentenced A, in terms of suppressing his name. That was perfectly proper for the Chairman, and was in no way inconsistent with s 184. [27] What was before the Chairman is the District Court s record, endorsed on the informations, of A s first three appearances before the District Court. This record shows that an interim order suppressing A s name was made by the Court upon A s first appearance. Nowhere in the available record was that interim order discharged. What is now missing from the Court s record is any record of what was said or done by the Judge who sentenced A. There is only a record of the sentence of imprisonment imposed. [28] A point Mr Judd made to us, which he readily accepted he had not made to the Chairman, is the effect of s 140(2) of the Criminal Justice Act: Any such order [prohibiting publication of the accused s details] may be made to have effect only for a limited period, whether fixed in the order or to terminate in accordance with the order; or if not so made, it shall have effect permanently. [29] If the District Court made no further order in relation to suppression of A s name, then Mr Judd is correct in submitting that the result is that the interim order made when A first appeared has permanent effect. On 23 June Mr Henry filed a memorandum drawing the Court s attention to the Law Commission s report Suppressing Names and Evidence, and that Report s recommendation that interim name suppression should be granted only for a finite period, to expire at the next appearance. 9 If anything, that recommendation reinforces our view, because it confirms that under s 140(2) interim name suppression orders did not expire at the appearance after they were made. [30] But it is sufficient for us to hold that it was open to the Chairman, on the evidence and submissions he heard, to find that the Director may be able to establish, 9 Law Commission Suppressing Names and Evidence (NZLC R109, 2009) at [3.68] [3.71].

8 at the substantive hearing, that A s name was suppressed when the appellant published it. [31] In [18] above, we noted Goddard J recording counsel s acknowledgment that the Director s case really turned on whether or not A s name was suppressed when the appellant published it. That is not at all the way Mr Judd put the matter to us. He submitted that the Director s case is not about whether or not A s name was suppressed, but about the way in which the appellant dealt with personal information about A. The Director s concern is about the rights of an individual when a police officer (or a member of any other state or private agency) wrongly downloads information about the individual and provides it to another person or agency, in this case the appellant. In that event, is it open to the appellant to post that personal information on the internet? Does the appellant first need to check the accuracy of the information? And does the appellant, if requested, need to tell the individual where they got the information from? Mr Judd submitted these are all important issues in the Director s proceeding important because what happened to A could happen to any New Zealander. The fact that the Director s proceeding concerns an individual convicted in 1995 of sexual offences is thus not the focus of the proceeding. [32] Mr Judd submitted these issues do not hinge on the existence of a suppression order. Indeed, Mr Judd submitted that it will not be necessary for the Director to prove A s name was suppressed when the appellant published it, in order to establish that the appellant breached information privacy principles 6, 8 and 11. In Mr Judd s submission, any suppression order will relate more to the remedies the Tribunal might grant. [33] Finally, Mr Judd submitted that it is not, and will not be, an answer for the appellant to say that the information it received about A s convictions was already in the public domain. That is because the source of the appellant s information was an unlawful downloading from the police database and not the District Court s record. This submission is obviously made against information privacy principle 11 which prohibits the appellant disclosing the information it received about AL unless it

9 believes, on reasonable grounds (b) that the source of the information is a publicly available publication. [34] We need not resolve these points. We have recorded them because counsel for the Director certainly did not acknowledge to us that the Director s proceeding turns on whether he can establish that A s name was suppressed when the appellant published it. When the Tribunal hears the Director s proceeding on 18 August 2014, it will need to decide whether the Director has proved the allegations in his statement of claim. Tribunal mistaken in accepting jurisdiction to make interim orders [35] Mr Henry made no separate submissions under this head. [36] We agree with Goddard J that the Chairman had the powers he exercised to make interim orders under ss 95 and 107(3)(b) of the Human Rights Act and s 89 of the Privacy Act. Those orders were properly made to preserve the position of the parties pending the Tribunal s substantive determination. Result [37] For the reasons we have given, we dismiss the appeal. [38] The appellant is to pay the Director s (fifth respondent s) costs for a standard appeal on a band A basis with usual disbursements. Solicitors: Shanahans, Family and Property Law, Auckland for Appellant Crown Law Office, Wellington for First Respondent