By Anna Longdill
Appeal against High Court refusal to allow Police access to reports and affidavits on court file – Senior Courts (Access to Court Documents) Rules 2017 – inherent jurisdiction – was the Crown Solicitor under an implied undertaking not to provide documents to the Police? – did the judge err in the exercise of the inherent jurisdiction?
Police v Ormsby-Turner [2025] NZCA 30
On 3 August 2022, Tana Ormsby-Turner (then aged 16), his older brother TJ and another associate, Hamiora Laupama, (all affiliated with the Mongrel Mob) had a confrontation with Rei Marshall, a prospect of another gang. TJ inflicted a fatal stab wound to Marshall’s chest. Ormsby-Turner struck Marshall multiple times on the head with a wooden hammer, causing fractures to the head and other injuries. Following Marshall’s death, the three men took steps to hide evidence of the offending.
Ormsby-Turner pleaded guilty to wounding with intent to cause grievous bodily harm and being an accessory after the fact to murder. Sentencing was scheduled for 12 July 2023.
Prior to sentencing, in March and April 2023, a number of reports on Ormsby-Turner were filed with the High Court, including a pre-sentence report, a cultural report and a privately commissioned psychiatric report. The reports recorded Ormsby-Turner as saying he had left the Mongrel Mob and was “intent on leading a gang-free and more pro-social life”. His parents expressed similar sentiments to report writers.
The Police started an investigation. They were advised that Ormsby-Turner had become a patched member of the Mongrel Mob. On 27 June 2023, Police executed a search warrant at his bail address and confirmed that Ormsby-Turner had a new, large Mongrel Mob tattoo across his back. He was also in possession of a number of Mongrel Mob patches.
On 4 July 2023, the New Plymouth Crown Solicitor applied to the High Court on behalf of the Police for access to the reports, along with affidavits from Ormsby-Turner’s parents filed in support of a previous bail variation application.
The application recorded the documents would be used for the purposes of an ongoing police investigation into the alleged offending of Ormsby-Turner and his parents for attempting to pervert the course of justice in relation to providing false information to the court.
On 12 July 2023, Cooke J sentenced Ormsby-Turner to 12 months’ home detention. The Crown appealed this sentence to the Court of Appeal (which subsequently allowed the appeal and increased the sentence to two years and 10 months’ imprisonment).
On 26 September 2023, Cooke J declined the Police’s application for access to the court documents. He concluded the issue of releasing the documents fell to be determined under the High Court’s inherent jurisdiction. Drawing an analogy with civil proceedings, the judge found there was an implied undertaking that the Crown Solicitor would use the information only for the purposes of the criminal proceedings for which it was obtained, and this prevented the Crown Solicitor from providing the documents.
He did not consider it appropriate to grant the Police access either under the inherent jurisdiction or under the Rules so the Police could conduct an inquiry into a matter still before the courts (the sentence appeal was yet to be determined).
After the appeal judgment was delivered, the Police renewed their application to access the documents. On 9 February 2024, Cooke J declined the application again, stating that there wasn’t a strong public interest in pursuing the investigation (as any proven offending could not lead to any material change in Ormsby-Turner’s prison sentence) and he was “not persuaded” that this was “an appropriate case to pursue a further investigation into what happened”.
The Police appealed both decisions.
Applicable principles: Senior Courts (Access to Court Documents) Rules 2017, rules 11, 12, 13 – inherent jurisdiction – was the Crown Solicitor under an implied undertaking not to provide documents received in the course of criminal proceedings to the Police for the purpose of investigating potential offending? (no, the prohibition on the use of discovered documents for a collateral purpose is a long standing principle in the civil context but no basis to extend it to the criminal context, where there is a high public interest in disclosure for the purpose of discovering crimes and ensuring that already-occurred crimes are punished appropriately) – did the judge err in the exercise of the inherent jurisdiction? (yes, the judge relied heavily on his view that there was not a strong public interest in pursuing the investigation. The decision whether to prosecute is the role of the executive branch of government, not the courts. Good reasons exist for observing constitutional boundaries. The same logic applies to the Police in their role investigating offending that may culminate in a prosecution. There is an inherent public interest in allowing the Police to have evidence to investigate and prosecute potential offending. The judge also overlooked the fact that the investigation was not just into Ormsby-Turner’s conduct, but also that of his parents)
Held: The appeal is allowed. The High Court is to provide the Police with the documents requested in their 4 July 2023 application.
Note: The court was clear that judges considering applications under the Rules should not assume a supervisory approach as to the merits of an investigation or prosecution:
“[58] Beyond that, in our view a Judge considering an application under the Rules should not take on a supervisory approach as to the overall merits of an investigation or the prosecution of a certain class of offending. That is a matter for the Police. In this case as Mr Auld submitted, the Judge’s view on the merits of the investigation effectively and in our view incorrectly, marked its end.”
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