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.
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.
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:
(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.
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