Access to Court files: Camera shy French agents oppose release of videotape footage of Rainbow Warrior committal proceedings - Mafart & Prieur v TVNZ

The Court of Appeal has been asked to prevent the release of videotape footage showing the committal proceedings of the two French Agents, Alain Mafart and Dominique Prieur. The footage was taken in 1985 and has been subject to a non-search order since the mid-1980s. TVNZ requested access to the material so that it could incorporate parts of it into a documentary film it was preparing for the 20th anniversary of the sabotage of the Rainbow Warrior. Mafart and Prieur opposed TVNZ's application for access to the relevant material.

TVNZ sought leave of a High Court judge to search and copy the video tapes so that they might be included in a documentary film for broadcast. Notice was given to the appellants, who objected. Simon France J heard the application and directed the Registrar of the High Court to make the video tapes available to TVNZ for inspection and copying.

Mafart and Prieur appealed.

However, the Court of Appeal considered there was a very real issue as to whether it had jurisdiction to hear an appeal against a grant of leave to search, inspect and copy the criminal records of a court. As that very issue had been raised but left undetermined by the Court of Appeal on at least two previous occasions, R v Mahanga [2001] 1 NZLR 641 and Jackson v Canwest TVWorks Ltd, the Court of Appeal directed that the issue be argued and determined before dealing with the appeal substantively.

Accordingly, the Court of Appeal's judgment was confined to the issue of jurisdiction.

President Anderson indicated that in his view a jurisdictional issue arose because of the difficulty in identifying the nature of a Judge's decision to grant leave pursuant to rules 2(3) and (5) of the Criminal Proceedings (Search of Court Records) Rules 1974. He considered that the Court needed to ask whether such a decision is:

1. an administrative one made pursuant to a statutory power of decision vested in a Judge;
2. or a judicial decision in proceedings and, if it is, is it in the nature of a criminal or a civil order?

After an extended analysis, Anderson P came to the conclusion that the order made by Simon France J could not be considered a judgment or decree or order in civil proceedings and that it must either have the character of a judgment, decree or order in criminal proceedings or the character of a purely administrative decision. In either case an appeal from it would not lie to the Court of Appeal. In Anderson P's view, the Court did not have jurisdiction to entertain Mafart and Prieur's appeal.

Chambers and O'Regan (delivering a joint judgment) considered that the appeal could be disposed of simply. They both considered that Simon France J's decision could not be the subject of an appeal under s 66 of the Judicature Act 1908, as that section authorises appeals only in civil proceedings: Re Victim X [2003] 3 NZLR 220. Nor did they consider that Parliament had conferred any right of appeal under the Crimes Act or any other Act.

Neither Chambers J nor O'Regan J found the fact that there is no right of appeal to the Court of Appeal surprising. They gave three reasons for this lack of surprise:

1. A decision as to whether court records can be inspected is, in the High court context, a very low level decision, that being reflected in the fact that generally speaking it is made by the registrar.
   
   
2. The rules themselves provide for a right of appeal in normal circumstances - to a High Court judge.
   
   
3. It is essentially a matter for the High Court as to how it keeps its records and to whom access should be permitted.

Having regard to these reasons, Chambers and O'Regan JJ said it was by no means surprising that Parliament did not see the Court of Appeal as needing to exercise supervisory control of the High Court's record-keeping function. Mafart and Prieur sought leave to appeal to the Supreme Court and this has now been granted. At the time of writing, this final appeal has not yet been determined.

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