Watson v Chief Executive of The Department of Corrections

• Jurisdiction: New Zealand
• Judge: Dunningham J
• Judgment Date: 04 June 2015
• Neutral Citation: [2015] NZHC 1227
• Docket Number: CIV-2015-409-000029
• Court: High Court
• Date: 04 June 2015

BETWEEN

Scott Watson

Applicant

and

Chief Executive of the Department of Corrections

Respondent

[2015] NZHC 1227

CIV-2015-409-000029

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

Application for judicial review of the decision of the Chief Executive (the CE) of the Department of Correction to deny permission to a journalist to interview a prisoner convicted of murder — prisoner denied committing murders but had exhausted all his appeal rights — alleged a miscarriage of justice — the CE refused permission for the interview(s) on basis that there would be distress caused to the victims' families and that there were other modes to communicate with the journalist such as a weekly 5 minute telephone call or letters — whether the decision to decline permission was unreasonable having regard to the (prison) context in which it was made, and to s14 New Zealand Bill of Rights Act 1990 (NZBORA) (freedom of expression)— whether the decision was aimed at controlling the mode of communication and was not rationally connected to the reason given for making it (to protect the victims from distress) — whether a prisoner's right to free speech could be fettered justifiably because of considerations such as the interests of the victims.

Appearances:

K H Cook and C B Morrall for Applicant

P T Rishworth QC and T Westaway for Respondent

JUDGMENT OF Dunningham J

Contents

Introduction	[1]
My decision	[7]
The request for an interview	[8]
The Chief Executive's decision	[12]
The regulatory framework	[12]
Consideration of relevant factors	[14]
How was the decision reached in light of the relevant considerations?	[20]
Unreasonableness as a ground of judicial review	[24]
Reasonableness depends on context — so what is the context?	[32]
Applying the principles in the context	[50]
The degree of interference with Mr Watson's right to freedom of expression	[50]
Uncertainty over what might be published	[57]
Importance of the interests of the victims	[60]
Conclusion	[69]
Relief	[71]

Introduction

1 In the early hours of 1 January 1998, two Blenheim teenagers, Ben Smart and Olivia Hope, were dropped off at a boat by a water taxi driver and never seen again. The following year, Scott Watson was convicted of their murders and is currently serving a life sentence at Rolleston Prison with a minimum period of imprisonment of 17 years. 1

2 Mr Watson has steadfastly protested his innocence since his arrest. However, he has exhausted his appeal rights and an application for the Royal Prerogative of Mercy has been rejected.

3 Mr Watson's conviction has not been without controversy. Mr Watson says “[b]ooks and articles have been written about my trial and conviction that agree that I should not have been found guilty”. Similarly, the affidavit evidence of Mr Michael White, a journalist, says:

I have increasingly become unsettled by Mr Watson's conviction, given the amount of evidence that has altered or come to light since his trial. At the time of his conviction, knowing what the jury had been presented with, I believed the correct verdict had been reached. …

However, subsequently there has been a great deal of new information, evidence and analysis which calls into question … the grounds on which he was convicted.

4 Given Mr White's interest in the case, Mr Watson's lawyer approached Mr White to see if he was willing to interview Mr Watson in prison, and perhaps write a feature regarding his case. However, that required the permission of the Chief Executive of the Department of Corrections. Permission was sought and was declined.

5 Mr Watson now applies for judicial review of the Chief Executive's decision on the basis that it is unreasonable in a public law sense. He argues that the right of freedom of expression has been abrogated in favour of protecting the victims from further media coverage. However that latter consideration is an “goal”. Mr Watson says that the focus on protection has resulted in a decision which so

disproportionately weights the interests of the victims to be left alone, against Mr Watson's freedom of speech, and against the public's right to have debate about the correctness and transparency of our justice system, that this Court should intervene

6 Put simply, this case is about whether the decision to decline permission for the face-to-face interview was unreasonable in the sense that it “goes beyond the range of responses open to a reasonable decision-maker” having regard to the context in which the decision was made, including considerations such as the right to freedom of expression as affirmed in the New Zealand Bill of Rights Act 1990 (NZBORA).

My decision

7 I have allowed Mr Watson's application for judicial review. Although I go on to set out my reasoning in detail, it can be summarised as follows:

• (a) The right to freedom of expression as affirmed in s 14 of NZBORA is of vital constitutional significance in any functioning democracy.

• (b) That right is not unlimited. In the present context, where the applicant is a prisoner, fetters on that right can be demonstrably justified for two primary reasons:

  • (i) the need to ensure that the security and good order of prisons can be maintained;

  • (ii) as a component of the punishment for committing a crime of sufficient gravity to result in imprisonment.

• (c) In this case I had to consider whether the Chief Executive's decision could be said to be a demonstrably justifiable fetter on Mr Watson's right to freedom of expression as a serving prisoner.

• (d) I have found it is not for the following reasons:

  • (i) the decision is only to prohibit one mode of communication with the journalist, Mr White;

  • (ii) the Chief Executive has expressly said Mr Watson can communicate with Mr White through written correspondence;

  • (iii) the adverse effect on the victims of having Mr Watson assert he was wrongly convicted, is inevitable however he expresses that view. The mode of communication will not alter that.

  • (iv) no reasons other than the effect on the victims are identified as justifying the decision;

  • (v) the purpose of the interview is to allow a journalist to investigate Mr Watson's assertion that he is a victim of a miscarriage of justice. That is recognised as a circumstance which, in a free society, points strongly in favour of permitting communication.

The request for an interview

8 Mr White, as a reporter at the Marlborough Express, covered the initial disappearance of Ben Smart and Olivia Hope, and the subsequent arrest and trial of Scott Watson in 1999. He has maintained a continuing interest in the case. In late 2007 he took another look at the case, and wrote an extensive feature in North & South magazine.

9 In terms of the events leading to this proceeding, Mr White's involvement was initially to attend as a third party to a meeting between Mr Hope, the father of Olivia Hope, and Mr Watson. However, the Department of Corrections declined Mr White's presence at such a meeting. Subsequently, Mr Watson, through his lawyer, Mr Cook, approached Mr White to see if he was willing to interview him and write an article on his case. Mr White was prepared to do that, but only on the basis that he would not consent to any “restrictions, editing or conditions by Mr Watson or Mr Cook”, saying “[t]his writer has no opinion on Mr Watson's guilt or innocence. There is evidence that can support both arguments”.

10 The exchanges between Mr White and Mr Cook resulted in a request being made of the prison manager to allow an interview or meeting (likely more than one) between Mr Watson and Mr White. The reasons for the request were set out in a letter from Mr White to Mr Cook which was attached to the application. The letter said, among other things:

I am aware of Mr Watson's unwavering position of innocence and his attempts to prove this. I am also aware that his avenues for proving that a miscarriage of justice has occurred are limited at this stage.

Thus I am interested in visiting Mr Watson and speaking to him. This may require more than one visit and interview.

However, I stress that if this can be arranged, any final decisions as to whether I write a story for North & South magazine will be taken by myself in conjunction with my editor. At all times we would control the content of any story and will not accept any conditions on this.

Can I also be clear, there will not be, nor would there ever be, any payment made by North & South, its parent company Bauer Media, or myself, for this or any interview.

11 Mr Vincent Arbuckle, the Deputy Chief Executive of the Department of Corrections, acting under a delegation from the Chief Executive, declined the request on 9 December 2014. He advised Mr White of that decision by letter dated 18 December 2014, the crux of which provides:

I am aware of the importance of Mr Watson's right to exercise freedom of speech and to seek to involve the media in publishing his claim to innocence.

Under the Corrections Regulations I am required to consider the effect of the interview on other persons, including the protection of their interests. I have spoken to Mr Hope and Mrs Smart. Neither support the interview taking place.

On balance, taking all of the relevant factors into account, I have declined your application.

The Chief Executive's decision

The regulatory framework

12 The Chief Executive's decision to decline permission for the interview was not made in a vacuum. There are restrictions upon interviews and recordings of prisoners. These are set out in regs 108 and 109 of the Corrections Regulations 2005 as follows:

108 Restrictions on interviews and recordings

• (1) Without first obtaining the written approval of both the chief executive and the prisoner concerned, no person may—

  • (a) interview a prisoner, for the purpose of—

    • ...