IN THE COURT OF APPEAL OF NEW ZEALAND
I TE KŌTI PĪRA O AOTEAROA
ACT 1982
CA252/2018
[2018] NZCA 466
BETWEEN
JARED DEYS
Appellant
AND
THE QUEEN
Respondent
CA330/2018
BETWEEN
RYAN NEIL TREWEEK
Appellant
INFORMATION
AND
THE QUEEN
Respondent
Court:
Kós P, Miller and Brown JJ
Counsel:
B A Crowley for Appellant Deys (CA252/2018)
S J Gill for Appellant Treweek (CA330/2018)
C A Brook for Respondent
Judgment:
30 October 2018 at 11.00 am
(On the papers)
JUDGMENT OF THE COURT
The application for disclosure of parts of the Jury Trials Bench Book is declined.
____________________________________________________________________
DEYS & TREWEEK v R [2018] NZCA 466 [30 October 2018]
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REASONS OF THE COURT
(Given by Miller J)
[1]
This judgment addresses an application for disclosure of excerpts from the Jury
ACT 1982
Trials Bench Book to Mr Dey’s counsel before the hearing of his impending appeal
against conviction. Prior to summing up at trial, the District Court Judge, Judge Kelly,
cited the Bench Book in support of her decision about how she should sum up on the
elements of the offence of aggravated robbery.1 The Judge contrasted several
decisions of this Court,2 and the Bench Book, with a decision relied on by
the appellant’s counsel (also of this Court),
Feterika v R.3
[2]
The Ministry of Justice has denied counsel’s request for the Bench Book.
Counsel for Mr Deys, Mr Crowley, contends that, given that the Judge relied on
the Bench Book as containing authoritative statements of law, it ought be disclosed as
INFORMATION
a matter of natural justice. Crown counsel, Ms Brook, responds that its disclosure is
moot given that the appeal will focus on whether the Judge gave the correct directions
as a matter of law.
[3]
We agree with the Crown’s submissions. Our reasons can be shortly stated.
[4]
A public right to access information relating to the courts and the judiciary is
provided for in the District Court Act 2016 and the Senior Courts Act 2016. The Bench
Book is being sought pursuant to s 236 of the District Court Act, but the provisions
allowing for access in both Acts are materially similar. A distinction is drawn in
the District Court Act between access to court information, which is permitted in
accordance with rules of court; access to judicial information, which is not permitted
(either under the Act or other legislation, such as the Official Information Act 1982);
and access to Ministry of Justice information, which is permitted in accordance with
legislation providing for or regulating access to government information.
1
R v Treweek [2018] NZDC 3734.
2
At [9], citing
Edwards v R CA60/00, 25 July 2000;
R v Galey [1985] 1 NZLR 230 (CA); and
R v Joyce [1968] NZLR 1070 (CA).
3
Feterika v R [2007] NZCA 526.
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[5]
In our view the Bench Book comprises judicial information. The categories of
judicial information includes “judicial communications not relating to particular
cases”.4 This properly describes the Bench Book.
ACT 1982
[6]
Further, whether the Judge erred in her summing up turns on the law as set out
in the decisions of this Court referred to. The Bench Book itself is not authoritative,
and it is apparent from what she said that it follows the authorities which she
considered should be followed. Accordingly it will not assist the argument one way
or the other.
[7]
We recognise that bench books are published in other jurisdictions. There is
merit in such a resource being available to the profession, provided it is kept current.
Unfortunately the judiciary does not have the resources needed to keep the Jury Trials
Bench Book current. It serves as a primer for judges, who are expected to rely on their
INFORMATION
own knowledge of the law and the assistance of counsel to ensure that directions are
correct.
Result
[8]
The application for disclosure of parts of the Jury Trials Bench Book is
declined.
Solicitors:
Crown Law Office, Wellington for Respondent
4
District Court Act 2016, sch 1, categories of “judicial information”.
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