The Crimes Amendment Act 2003 and the Government Communications Security Act 2003 – An Interrelated History

In 1999 the Government introduced the Crimes Amendment Bill (No 6). The Bill contained, among a large number of other changes to the law, provisions relating to computer crimes. The changes proposed seemed reasonable and were designed to address some issues that had been identified by the Law Commission in its 1999 report “Computer Misuse”.

Then a new Government introduced Supplementary Order Paper No 85 which radically changed the landscape not only of computer crime by adding a provision criminalising unauthorised access to computer systems (without associated dishonest acts or intentional damage) but also addressing changes to the provisions of the Crimes Act relating to crimes involving privacy and the circumstances under which law enforcement and intelligence agencies might be exempted from the proposed unauthorised access to computer systems provisions.

In the process the potential for state surveillance, enabled by digital technology, was expanded and it also became necessary and desirable for an organisation that had been involved in intelligence gathering, the GCSB, to have statutory recognition and oversight. While the Legislature followed up on enacting the GCSB Bill – a process that took some two years – the Crimes Amendment Act languished until its enactment in mid-2003.

It has long been my view that had it not been for the addition of the unauthorised access offence in SOP 85, it may not have been necessary for the GCSB to have moved into the picture and indeed it may not have been necessary – at least at that time – for it to have had its own legislation. But in a startling example of the law of unintended consequences that seemed to have been the case.

I decided, since I had a little time on my hands, to have a closer look at the history of the two pieces of legislation and their interrelationship. I based my research on the various Bills, Supplementary Order  Papers, Debates from Hansard and materials and reports I had in my own possession which I gathered at the time. The lack of on-line material from the Government prior to 2003 meant that some of my researches had to follow alternative sources. I should also add that my researches did not include any policy documents so the introduction of the GCSB Bill relies on the statements of Michael Cullen MP in Hansard when the Bill was first read.

I think that it can be inferred from the material that I have put together that the changes proposed by SOP 85 resulted indirectly in the passage of the GCSB Act 2003. Although SOP 85 set out prescriptions whereby the GCSB may be exempted from criminal liability for accessing computer systems (and these were stated as exemptions rather than authorisations) it obviously became necessary for the GCSB to have statutory recognition. The importance of this was pointed out by the Privacy Commissioner Mr Bruce Slane in his submission on the Crimes Amendment Bill (No 6) in December of 2000.

The other related issue was the way in which some of the scope of the powers of the GCSB and other authorities were extended by changes to definitions that allowed digital systems to be included in search and surveillance activities. Further enabling of such activities came into effect with the passage of the Telecommunications Interception Capability Act 2004.

I want to make it clear that in putting together this information and writing it up I am acting, as Christopher Isherwood put it, as  “a camera with its shutter open, quite passive, recording, not thinking.” although I do offer some conclusions on the evidence and raise some questions on the wider issues of the nature of liberty in the Digital Paradigm and whether, with the constant disruptive change that characterises that Paradigm, our understanding of liberty may change from Jefferson’s Enlightment agrarian ideal to something else.

A further point must be made. I have incorporated a number of quotations from Members of Parliament in Hansard. Keith Locke MP features regularly. The use of his speeches or of any other Member should not be taken as an endorsement of the political views of that member or of his or her party. As I said, “I am a camera”.

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Lessons from “The Newsroom”

The excellent Aaron Sorkin created series “The Newsroom” is presently screening on Soho. In Series 2, Episode 3 (Willie Pete) the following exchange takes place between Will McAvoy (Jeff Bridges) and Charlie Skinner (Sam Waterson)

Will: There’s a third option,It involves having faith in my mission to civilize… The bitchiness has to stop, Charlie. We’re inhaling it like it’s a carbon emission blowing out the exhaust pipe of the crosstown bus we’re stuck behind… All it takes is one great man. A friend of the angels… There are things we can do, Charlie. Things that we can do everyday. Things that are free. We can be one inch nicer to each other. An inch more polite. We can be decent.”

Charlie: Maybe,but in the meantime we should just keep lying.

It was what Will said at the end of his dialogue that attracted me. The observation that we can be nicer, more polite, decent. The clear inference is that in many of our dealings with one another we are not.

This caused me to reflect. Aaron Sorkin’s shows tend to do that. In many ways “The Newsroom” and The West Wing” are idealised versions of TV journalism and US Presidential politics – not as they necessarily are, but what they could be. The reflection was not so much on journalism but upon the way that we behave towards one another and what new and mainstream media convey to us in terms of behaviour and what may or may not be the norm. (I am going to avoid the use of the words “appropriate” or “acceptable” because they come with a load of value-ridden excess baggage)

Let’s think for a moment about what Will said. Perhaps using a word like “nice” isn’t the best (A very good friend of mine used to object when it was used in the wrong way) but it conveys the message, especially when coupled with “polite” and “decent”. I don’t think that this is necessarily a matter of etiquette, but it is a question of what used to be described as good manners – something lacking in many respects these days. Good manners, treating people nicely, decently and politely all has to do with respect. Some might claim that many people are undeserving of respect, but I respectfully disagree. We are human beings together on the planet. We are social beings and irrespective of how good or bad individuals might be they all, as counsel (now a Judge) once said to me, people of worth. The fact of their existence means that in some way they may enrich the lives of others and bring something to the table. And for that every human being, every person is entitled to respect – respect for their being, for their individuality, for their identity and for their character. As I say, many people may do terrible things but we should respect them for their humanness and their existence.

I think that a lot of the problems that we see today flow from the fact that we are not taught to respect others, nor do we understand why we should. This starts from the derogatory exchange that one might have with another in a supermarket checkout to a horrible exhibition of bullying – and bullying – that most disrespectful of conduct – occurs not only in the school yard but through all strata of society.

Much of the exchange between Will and Charlie was in the context of the news media but it was more than that. It was against a backdrop of an audience at a candidates debate who booed a serviceman – a person who had put his life on the line for his country – who wanted the “gays in the military” issue addressed. But I won’t look at the news media context. I think that what Will had to say in that arena speaks for itself.

There are many areas where those who should know better respond in an ungracious way to others – who aggressively challenge, who interrupt, who denigrate, especially when they have the last word, who are abusive, unkind, disrespectful, uncaring of the distress that they might cause to others. The examples are legion – those who force their way into a lane on the motorway and who won’t wait in the queue and think that a flipped off wave justifies their behaviour. Those who insist on carrying on phone conversations while travelling on the motorway (not only disrespectful and unsafe but unlawful as well) and holding up traffic. Those who park across a driveway while collecting their kids from school and who, when politely asked to move, tell their interlocutor to F*** off. And that is just in the context of road use. The level of confrontation, of aggression that we experience in our day to day lives is quite extraordinary and concerning. Is it any wonder that our kids reflect what they see.

The only thing is that the problem with kids and their aggressive behaviour is recognised as bullying and we cry out that we must do something about it without realising that the problem lies within ourselves. We have met the enemy – as Pogo said – and he is us. We set the examples and then we complain about it when we see those behaviours reflected in our kids.

I wonder in the long run whether or not Will’s ideal of being a little nicer, more decent, kinder is just that – an ideal. And as I have been writing this – and it has been a piece that I have picked up and put down – I have struggled with dealing with a theme that requires a critical examination of behaviour in order to find a way forward for improvement. And then I came across a piece in the New York Times Magazine for 7 August 2013. It is by Joel Lovell and it is entitled “George Saunders’ Advice to Graduates”. 

Saunders has been described as a writers’ writer. In a profile published in the New York Times on 3 January 2013 the following was said

“Tobias Wolff, who taught Saunders when he was in the graduate writing program at Syracuse in the mid-’80s, said, “He’s been one of the luminous spots of our literature for the past 20 years,” and then added what may be the most elegant compliment I’ve ever heard paid to another person: “He’s such a generous spirit, you’d be embarrassed to behave in a small way around him.” And Mary Karr, who has been a colleague of Saunders’s at Syracuse since he joined the faculty in the mid-’90s (and who also, incidentally, is a practicing Catholic with a wonderful singing voice and a spectacularly inventive foul mouth), told me, “I think he’s the best short-story writer in English alive.”

Have a look at Saunders’ advice to graduates. It is not a hard read and the focus is on a very large regret. Saunders’ regret is associated with the issues that I am concerned about in this piece – lack of respect, niceness, politeness, decency, Saunders’ says that what he regrets most in life are failures of kindness. He puts it this way:

What I regret most in my life are failures of kindness. 

Those moments when another human being was there, in front of me, suffering, and I responded…sensibly.  Reservedly.  Mildly.

Or, to look at it from the other end of the telescope:  Who, in your life, do you remember most fondly, with the most undeniable feelings of warmth?

Those who were kindest to you, I bet.

It’s a little facile, maybe, and certainly hard to implement, but I’d say, as a goal in life, you could do worse than: Try to be kinder.

Now, the million-dollar question:  What’s our problem?  Why aren’t we kinder?

Here’s what I think:

Each of us is born with a series of built-in confusions that are probably somehow Darwinian.  These are: (1) we’re central to the universe (that is, our personal story is the main and most interesting story, the only story, really); (2) we’re separate from the universe (there’s US and then, out there, all that other junk – dogs and swing-sets, and the State of Nebraska and low-hanging clouds and, you know, other people), and (3) we’re permanent (death is real, o.k., sure – for you, but not for me).

Now, we don’t really believe these things – intellectually we know better – but we believe them viscerally, and live by them, and they cause us to prioritize our own needs over the needs of others, even though what we really want, in our hearts, is to be less selfish, more aware of what’s actually happening in the present moment, more open, and more loving.

So, the second million-dollar question:  How might we DO this?  How might we become more loving, more open, less selfish, more present, less delusional, etc., etc?

Well, yes, good question.

Unfortunately, I only have three minutes left.

So let me just say this.  There are ways.  You already know that because, in your life, there have been High Kindness periods and Low Kindness periods, and you know what inclined you toward the former and away from the latter.  Education is good; immersing ourselves in a work of art: good; prayer is good; meditation’s good; a frank talk with a dear friend;  establishing ourselves in some kind of spiritual tradition – recognizing that there have been countless really smart people before us who have asked these same questions and left behind answers for us.

Because kindness, it turns out, is hard – it starts out all rainbows and puppy dogs, and expands to include…well,everything.

One thing in our favor:  some of this “becoming kinder” happens naturally, with age.  It might be a simple matter of attrition:  as we get older, we come to see how useless it is to be selfish – how illogical, really.  We come to love other people and are thereby counter-instructed in our own centrality.  We get our butts kicked by real life, and people come to our defense, and help us, and we learn that we’re not separate, and don’t want to be.  We see people near and dear to us dropping away, and are gradually convinced that maybe we too will drop away (someday, a long time from now).  Most people, as they age, become less selfish and more loving.  I think this is true.  The great Syracuse poet, Hayden Carruth, said, in a poem written near the end of his life, that he was “mostly Love, now.”

I guess kindness is a term that encompasses niceness, politeness and decency – respect for others – you don’t have to like them, but they are human beings, they have their own sense of worth and dignity and are entitled, at the very least, to respect. And that respect can be manifested by a nice attitude, by polite speech and a polite attitude, by listening as well as talking and by decency of conduct. As Will said – we can be decent.  We live in hope.

Access to Court Documents in Criminal Proceedings

Court documents and files are valuable primary resources for the purposes of research and are an essential first stop for journalists covering court proceedings or following the course of a case from its inception through to its conclusion. But there are a number of competing interests that must be taken into account in considering whether or not there should be access to Court documents – both personal and systemic. This paper describes recent changes to the rules relating to access to court documents and files in criminal proceedings. It is an overview. Those who wish to investigate the matter further are referred to the Criminal Procedure Rules 2012.

Introduction

The changes to criminal procedure in New Zealand that have followed the introduction of the Criminal Procedure Act 2011 have necessitated changes to the rules surrounding access to Court documents in criminal proceedings.

The rules relating to such access were set out in the Criminal Proceedings (Access to Court Documents) Rules 2009.These have been supplanted by the Part 6 of the Criminal Procedure Rules 2012. I have discussed access to Court documents in an earlier post  and have covered civil and criminal proceedings. This purpose of this post is to describe the current rules relating to access to Court documents in criminal proceedings following the changes made by the 2012 Rules.

The 2009 Rules approached access to court documents in criminal proceedings on a staged approach, and the level of access depended upon which stage the proceedings had reached. Cases that were proceeding to trial by jury had an intermediate committal stage before trial. The prosecution had a discretion whether or not to lay a charge indictably in many cases which meant that an accused automatically went to trial before a jury, and had no choice in the matter. Some charges, such as aggravated robbery, were purely indictable. Once again, an accused had no choice in electing either trial by jury or trial before a Judge alone. That has all changed under the Criminal Procedure Act. An accused has no right of trial by jury where the charge carries a maximum sentence of less than two years imprisonment (a Category 2 offence). Only the most serious cases (Category 4 offences) will now automatically go before a jury. For what are called category 3 cases unless an accused elects trial by jury, the case will be dealt with by a Judge alone. There is no preliminary hearing or committal hearing that existed under the Summary Proceedings Act. These new changes to procedure meant that the “stages approach” under the 2009 Rules was no longer applicable.

The Definitions

One of the most important definitions is that of a “criminal proceeding” because it recognises the changes brought about by the Criminal Procedure Act. A criminal proceedings is defined as a proceeding under the Criminal Proceeding Act and includes all steps in such a proceeding including the sentencing of a defendant. It includes bail proceedings, proceedings under the Criminal Investigations (Bodily Samples) Act 1995, proceedings under the Criminal Proceedings (Mentally Impaired Person) Act 2003, extradition proceedings and the Parole Act 2002. Included are any proceedings under Parts 4 -6 of the Crimes and International Criminal Court Act 2000 and proceedings under any other enactment to the extent (if any) determined by a Judge. Included are appeals or originating applications to any court under the Criminal Procedure Act 2011 or the Bail Act 2000.

The 2012 definition of a “document” differs from the 2009 definition but more in the means of expression than in any substantive way. The 2009 Rules defined “document” as any written material in the custody or control of the court that relates to a criminal proceeding, whether or not kept on a court file; including  documentary exhibits, video recordings, records in electronic form, films, photographs, and images in electronic form excluding notes made by or for a Judge for his or her personal use and any material that relates to the administration of the court.

The 2012 definition is exclusionary. It states that a document does not include judicial notes for personal use and material that relates to the administration of the Court. The Criminal Procedure Act has an extensive definition of a document and reads as follows:

“Document

(a)means a document in any form (including, without limitation, a document in an electronic form); and

(b)includes, without limitation, any of the following:

(i) any writing on any material:

(ii) information recorded or stored by means of a tape recorder, computer, or other device:

(iii) material subsequently derived from information recorded or stored in the manner described in subparagraph (ii):

(iv) labels, markings, or other writing that identifies or describes any thing of which it forms part, or to which it is attached by any means:

(v) books, maps, plans, graphs, or drawings:

(vi) photographs, films, negatives, tapes, or any other device in which 1 or more visual images are embodied so as to be capable (with or without the aid of some other equipment) of being reproduced”

This is a very wide definition and it is meant to be. Part of the purpose of the Criminal Procedure Act was to prepare the way for the paperless court. Thus electronic “documents” and computer generated information are included. Information stored on any other device could conceivably include images recorded on a DVD but the status of visual images is specifically dealt with in (b)(vi).

The document definition is a generic one in that it appears in many other statutes. In many respects it is representative of McLuhan’s “rear view mirror” approach and it ignores the developing technological realities of information retention. Document connotes a physical medium upon which information is stored. It is a term readily understood by the parchment, paper and pen or print paradigm but has little meaning for the Digital Paradigm. As I have observed elsewhere, in the Digital Paradigm a document is in fact a process in that a document does not “exist” as a coherent entity on a digital storage device. This is recognised in part in (b)(ii) and (iii) where the word “information” is used. In fact “information” as a subset of a “document” reverses what is really important within the Digital Paradigm. The focus of the definition should be upon “information”. If the word “document” is to be retained (and I see no reason why it should be other than a hat-tip to the past) it should be defined as information recorded in any form. After all, it is the record that is important.

The Rules apply to documents while they are in the custody or control of the court and until they are transferred to Archives New Zealand. There is no obligation to prepare a document that is not in existence at the time the document is sought. (6.2 ). As was the case in the 2009 Rules any Judge making a decision under the Rules or any appeal against such decision is made within the civil jurisdiction of the Court, rather than the criminal jurisdiction. (6.3)

Rule 6.4 provides for a general right of access. It is subject to Rule 6.9 (which provides for restrictions on access and is discussed below).  The general right of access is to:

• the permanent court record (which is provided for under Part 7 of the Rules
• any published list providing notice of a hearing
• any judgment, order, or minute of the court given in a criminal proceeding, including any record of the reasons given by a judicial officer
• any judicial officer’s sentencing notes.

However, the court may direct that judgments, orders, or sentencing notes not be accessed without the permission of the court. That decision is one made on a case by case basis.

A request for access may be made orally to a Registrar. If the request relates to a document which requires the Court’s permission to access or which is subject to Rule 6.9  (for discussion – see below) the Registrar may require that the request be made in writing and identify the requested document and give the reasons for the request. This introduces what could be described as a combination of the “Rumsfeldian Paradox”  and “Catch 22” in that the person seeking access cannot specify the document to which access is sought unless he or she knows that such a document exists and can only be aware of the existence of that document by searching the Court file.

The Permanent Court Record

What is the “permanent court record”?  The permanent court record is provided for in Rules 7.1 and 7.2 of the Rules. It is probably best described by understanding what it contains. Rule 7.2 sets that out.

The permanent court record for a court at any place must record such of the following particulars relating to each charge filed in the court as are applicable:

(1) the name and place of the court:

(2) the judicial officer or Registrar who presided over each hearing:

(3) the jurisdiction exercised:

(4) the particulars in relation to the name provided under section 16(2)(e) of the Criminal Procedure Act:

(5) the name of any private prosecutor who commences a proceeding:

(6) the particulars of the defendant provided under section 16(2)(a) of the Criminal Procedure Act:

(7) a description of the charge, including—

(a) the enactment creating the offence; and

(b) the date on which the offence was alleged to have been committed; and

(c) whether the charge is a representative charge or an alternative charge; and

(d) the date the charging document was filed; and

(e) the date and other details of any appeal relating to the charge:

(8) the Attorney-General’s consent (if required) to the charge being filed:

(9) in the case of a private prosecution, any directions and orders by a Judge relating to the filing of a charge:

(10) hearing dates:

(11) remand dates:

(12) pleas entered and changes of plea:

(13) form of trial (Judge-alone or jury trial):

(14) place of trial:

(15) any warrant issued in respect of a defendant or witness:

(16) the outcome of any application for bail:

(17) dismissal or withdrawal of a charge:

(18) order for a retrial or rehearing:

(19) transfer to a different court or venue:

(20) determination of the charge, including—

(a) verdict (guilty or not guilty):

(b) acquittal on ground of insanity:

(c) substitution of one offence for another offence:

(d) outcome of special pleas:

(e) leave decision for any appeal:

(f) stay of prosecution:

(g) jury verdict, and whether unanimous or by majority:

(h) deemed conviction under section 376:

(21) orders made on appeal:

(22) warnings given under any enactment:

(23) suppression orders:

(24) costs orders:

(25) orders for a bond to keep the peace:

(26) orders made under section 375 of the Act for payment of a fine and costs in an infringement offence case:

(27) any other judgment or order (other than the reasons for the judgment or order).

Rule 7.1 provides that the permanent court record must be kept by the Registrar of the Court at any place. It may be in hardcopy or electronic form. Entries must be made by the presiding judicial officer or by the Registrar of the Court and those entries or corrections must be authenticated by the judicial officer or the Registrar, although the original entry (where a correction has been made) must remain. As a matter of evidence, the contents of the permanent court record are provable by a certified copy or extract provided by a Registrar.

Prosecution and Defence Right of Access to the Court File

There are provisions for access to court documents by the prosecution or the defence.  Rule 6.5 provides that the prosecutor and the defendant in a criminal proceeding, and their lawyers, may access the court file during or after the completion of the criminal proceeding.

The material that may be accessed is wider than that provided under the general access provision. The scope of the access is to the court file.

However, the right provided by the Rule is not absolute and there are exceptions. A Judge may direct that the court file or any document relating to the criminal proceeding not be accessed by the prosecutor and the defendant or their lawyer without the permission of the court:

if there is more than one defendant in the criminal proceeding, a defendant or the defendant’s lawyer may access the court file or any document relating to the criminal proceeding only with the permission of the court.

As is the case with general access, request for access by prosecution or defence may be made orally to a Registrar. If the request relates to a document to which access may be restricted either by the exceptions provided in the Rule or under Rule 6.9, the Registrar may require that the request be made in writing and identify the requested document and give the reasons for the request.

Companies are also provided for in the Rule. If the defendant is a corporation, the right of the defendant to access the court file or any document may be exercised by a representative of the defendant who has been appointed in accordance with section 12 of the Criminal Procedure Act.

Access During Proceedings

I observed that under the 2009 Rules there was a “staged” approach to access. Under the 2012 Rules this approach is no longer necessary. Nevertheless, the 2012 Rules recognise that there may be circumstances where access to Court documents may need to be addressed circumspectly while proceedings are in train to protect fair trial rights and the proper administration of justice. Access during proceedings is covered by Rule 6.6.

The first thing is to define to time frame within which the Rule applies and it is from the commencement of the proceeding by the filing of a charging document until all applicable appeal periods for that proceeding have expired.

During that time frame, if any person other than a party to the proceeding wishes to access a document, a request for access must be made.

Not all documents may be accessed. The court may, on its own initiative or on request, direct that any document, or part of any document, relating to the proceeding not be accessed without the permission of a Judge.

The Request for Access

A request for access to any document during proceedings is made informally to a Registrar in writing. The request must identify the requested document and also give the reasons for the request.

Once a request has been made, the Registrar must promptly serve on the parties or their lawyers a copy of the request. A party who wishes to object must, before the relevant deadline (which is defined in Rule 6.7) give written notice of the objection:

• to a Registrar,
• to the person who made the request,
• and to the other parties or their lawyer.

Once an objection has been received the Registrar must promptly refer the objection and the request to a Judge. When a request is referred to a Judge, the matter is to be dealt with in accordance with rule 6.10.

Determining an Opposed Request for Access During Proceedings

Rule 6.10 sets out the process and the matters that a Judge must take into account in considering an opposed application for access to documents during proceedings.

The request or application may be dealt with “on the papers” or at an oral hearing. The Judge may order that access be granted in whole or in part and subject to any conditions that the Judge thinks appropriate

In determining a request or an application the Judge must consider

• the nature of, and
• the reasons for,

the application or request.

The Judge must also take into account each of the following matters that is relevant to the application, request, or objection:

(a) the right of the defendant to a fair hearing:

(b) the orderly and fair administration of justice:

(c) the protection of confidentiality, privacy interests (including those of children and other vulnerable members of the community), and any privilege held by, or available to, any person:

(d) the principle of open justice, namely, encouraging fair and accurate reporting of, and comment on, trials and decisions:

(e) the freedom to seek, receive, and impart information:

(f) whether any document to which the application or request relates is subject to any restriction under rule 6.9:

(g) any other matter that the Judge thinks just.

The list is not ranked in order of importance and the Judge must weigh each consideration. Pursuant to clause (g) the Judge may take into account other consideration that he or she may think just, so the list of matters is not exclusive.

If there are no restrictions on access imposed by a Judge or access is not restricted pursuant to Rule 6.9 and no objection has been received before the expiry of a relevant deadline or the parties or their lawyer earlier agree that a person be given access to the document, a Registrar must promptly give the person who made the request access to the document.

The Relevant Deadline

Where a request is made for access to a document during proceedings and where  a party or lawyer receives a copy of that request, relevant deadline means whichever of the following times is applicable:

(a)   if the copy of the request is received on a day on which a pre-trial hearing or the trial is proceeding, 3 pm on the first working day after the day on which the copy is received

(b)   if the copy of the request is received on any other day, 3 pm on the third working day after the day on which the copy is received.

The reason for the shorter time frame in clause (a) lies in the fact that a hearing (either a pre-trial or trial) is imminent, and there is some urgency in disposing of the application in a timely manner. Those pressures are not present in the circumstances envisaged by clause (b).

Access in Other Cases – Rule 6.8

The Rules make provision for access to the file or to documents “in other cases” and this Rule would apply  where the proceeding had concluded. I say that because it seems to me to be the only other alternative to access to documents when a case is proceeding. The Rule does not make it abundantly clear, but I think that it is implicit.

Rule 6.8 applies to requests for access to documents relating to criminal proceedings and to a court file by a person other than a party. The request may be made informally but in writing to a Registrar. The request must identify the document or the Court file to which access is sought.

The next phase is interesting. The application must be referred to a Judge. The language is directive. There is no discretion. Once the application has been referred to a Judge, that Judge may direct that the applicant file a formal application by way of an interlocutory or originating application. Alternatively the Judge may deal with the matter in the same manner as an opposed application under the rules relating to access during proceedings.

Once the matter has been referred to a Judge, the Judge may direct that the applicant requesting access serve a notice of the request on any person who, in the opinion of the Judge, may be adversely affected by the request although there is power to dispense with such service if it would be impracticable to do so.

There are no specific criteria that may guide the Judge as to the circumstances in which a formal application may be required, other than the matters referred to in Rule 6.10. The reason for that is that Rule 6.10(2) states:

“In determining a request or an application under this rule, the Judge must consider the nature of, and the reasons for, the application or request and take into account each of the following matters that is relevant to the application, request, or objection.”

Rule 6.10 (referred to as “this rule”) is engaged as a result of the language of Rule 6.10 (1) which states:

A Judge may deal with any request or application that requires permission of a Judge or the court to be given on the papers or at an oral hearing, and may grant access in whole or in part and subject to any conditions the Judge thinks appropriate.

Rule 6.8 requires consideration of the application by and with the permission of a Judge. It is that quality that makes Rule 6.10(2) applicable. Curiously enough and in contrast to the provisions of Rule 6.6 (access to documents during proceedings) an application must be referred to a Judge in every case. It could be argued that issues such as fairness of trial are no longer applicable. The proceedings have been concluded. The outcome is historical and the various documents on the file are essentially of historical interest only. On the other hand, the full court file contains a significantly larger quantity of information that the permanent Court record and the sentencing notes of a Judge. It will include a transcript of the evidence, exhibits, pre-recorded testimony of vulnerable witnesses, privilege information, pre-trial applications, memoranda of submissions of counsel and affidavit evidence that may have a bearing on cases yet to come before the Court. So the matter becomes a lot more complex than a mere historical record or what may be considered to be a “dead file”.

Restrictions on Access – Rule 6.9

The final matter that must be covered in this overview is that of the circumstances where there may be restrictions on access imposed by a Judge. These are contained in Rule 6.9 and cover the circumstances where proceedings are on foot, and where proceedings have concluded.

Rights of access are not absolute and may be subject to any enactment, court order, or direction limiting or prohibiting access or publication and also to the payment of any prescribed fee for access. In the case of restrictions imposed by statute, unless the statute provides for access by judicial permission that restriction cannot be overridden by any permissions in the Rules. A court order may be made pursuant to the provisions of the Criminal Procedure Act and other prohibitions upon access or publication may have been made in the course of proceedings. In some cases such prohibitions may have been made as a result of an earlier application for access

In addition there are also a prescribed class of documents to which access may be granted only with judicial permission. These documents are:

(a) any document containing evidence of a complainant or of a person who gives or intends to give propensity evidence:

(b) electronically recorded documents of interviews with a defendant:

(c) any document that identifies, or enables the identification of, a person if the publication of any matter relating to the person’s identity (such as the person’s name) is forbidden by an enactment or by an order of the court or a Registrar:

(d) any document received, or any record of anything said, in a proceeding while members of the public are excluded from the proceeding by an enactment or by an order of the court:

(e) any document containing evidence provisionally admitted into evidence and any document containing evidence that has been ruled inadmissible by the court.

The documents that are specified in clauses (a) to (e) may be accessed with judicial permission. In such a situation, the provisions of Rule 6.10 setting out the matters to be taken into account would be engaged.

Comments

It may be seen from this overview that the only class of documents to which there is theoretically unrestricted access is the permanent court record, any published list providing notice of a hearing, any judgment, order, or minute of the court given in a criminal proceeding, including any record of the reasons given by a judicial officer and a judge’s sentencing notes.

However, even some of these documents may be restricted or may fall within Rule 6.9. Thus it cannot be said that there is an absolute right of access to court documents or any class of them.

Underlying the rules is a theme of judicial discretion which may restrict or limit access to court documents, although it should also be noted that the matters that must be considered by a Judge under Rule 6.10 include principles of open justice and freedom of expression. It is hard to see how the “fair trial” interest would be engaged if a criminal proceeding had been concluded, unless another person’s fair trial right was affected.

One important matter that a Judge must take into account is the person by whom a request is made, the nature of and reasons for a request. If a request is made by a news media representative, issues of openness of court proceedings, fair reporting of court proceedings, freedom of expression and the public interest may well weigh in favour of such an application.

The second matter relates to the method of access. Although the definitions provide for documents in electronic format, the sub-text of the rules is still rooted in the “Print Paradigm”.  Assume that a Court keeps all its records in electronic format. A request is made by a person who sits on the other side of the digital divide. How will the Court effect access in the absence of a computer or some form of electronic device which may read the Court record? That leads to a larger issue. How will access be provided in electronic format? What is the format in which the court “documents” are stored? Is this a format that is readily accessible by an ordinary digital device, reader or computer. Is the format compatible with proprietary reading programs?  If these problems are answered by providing the Court record in .pdf format how will this compromise the underlying integrity of the document and its metadata which may tell a story underlying the content that appears on the face of the document. Those involved in e-discovery will be well aware of the importance of accessing documents in native file format. It could well be that any issues surrounding the provision of court documents or records that are stored in electronic format could pose an obstruction to public access to court records and documents.

The Rules relating to access to court documents and files strike a balance between the principles of open justice on the one hand, and fair trial rights and privacy on the other. When criminal proceedings went through a larger number of procedural changes than are present under current legislation, there was a need for a staged process involving the weighting a different factors as a case proceeded through the system. The simplification of criminal proceedings following the enactment of the Criminal Procedure Act has resulted in a simpler set of rules relating to access to court files and documents.

The IT Countrey Justice

August 2013