Watson v The Chief Executive of The Department of Corrections

• Jurisdiction: New Zealand
• Judge: Mallon J
• Judgment Date: 25 August 2016
• Neutral Citation: [2016] NZHC 1996
• Docket Number: CIV-2016-409-247
• Court: High Court
• Date: 25 August 2016

UNDER the Judicature Amendment Act 1972

IN THE MATTER OF an application for judicial review of the refusal to allow a meeting between a victim with a journalist present

BETWEEN

Scott Watson

Applicant

and

The Chief Executive of the Department of Corrections

Respondent

[2016] NZHC 1996

CIV-2016-409-247

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

Application for judicial review of the respondent Department of Correction's decision to refuse to allow a journalist to attend a meeting between the applicant Watson and the deceased victim's father — Watson was serving a sentence of life imprisonment, with a minimum non parole period of 17 years, for the murders of Olivia Hope and Ben Smart — he had exhausted his appeal rights and an application for the Royal Prerogative of Mercy had been declined — the journalist was allowed to be present as facilitator but was not allowed to write an article about it — Corrections had declined the request under s109 Corrections Act 2004 (approvals) on the grounds the journalist had already interviewed the applicant and the request failed to articulate why a further visit by a journalist should be granted — consideration of s14 New Zealand Bill of Rights Act 1990 (freedom of expression) — whether the decision was unreasonable.

Counsel:

K H Cook and C B Morrall for Appellant

D J Perkins and T P Westaway for Respondent

JUDGMENT OF Mallon J

Table of contents

Introduction	[1]
The background	[5]
The present matter	[16]
The law	[23]
The right to freedom of expression	[23]
The statutory power at issue	[27]
A balancing approach	[34]
Intensity of review	[35]
Review of the decision in this case	[36]
Appropriate remedy	[52]
Result	[55]

Introduction

1 Scott Watson is serving a sentence of life imprisonment, with a minimum non parole period of 17 years, for the murders of Olivia Hope and Ben Smart. He is into his eighteenth year of that sentence. He has always maintained his innocence. He has exhausted his appeal rights and an application for the Royal Prerogative of Mercy has been declined. He is able to make another application but needs new evidence in order to do so.

2 With that purpose in mind, Mr Watson was interviewed by Michael White, a journalist, at Rolleston prison where he is serving his sentence. The interview took place following approval ultimately granted by the respondent (Corrections), after a High Court decision overturning Corrections' initial decision to decline the request. 1

3 Corrections have since granted permission for Mr Watson to receive a visit from Gerald Hope, the father of Olivia, with Mr White present as facilitator. This permission has been granted on the basis that Mr White does not attend the meeting in his professional capacity as a journalist and he does not record the interview nor write an article about it. Mr Watson challenges this aspect of the decision.

4 The challenge is brought by way of an application for judicial review. The ground of review is unreasonableness.

The background

5 On New Year's day in 1998 Olivia Hope and Ben Smart disappeared from Endeavour Inlet in the Marlborough Sounds, following a New Year's eve gathering at Furneaux Lodge. Their bodies have never been found.

6 Mr Watson, who had also been attending the New Year's festivities at Furneaux Lodge, was convicted of their murders at a trial in 1999. On the advice of

his lawyers he exercised his right to silence at the trial. He has, however, always steadfastly denied his involvement in Olivia and Ben's disappearance

7 Mr White was a reporter with The Marlborough Express at the time Olivia and Ben disappeared. He was assigned to the case when it was upgraded to a homicide investigation. In that capacity he liaised with the parents of Olivia and Ben on a regular basis. He also assisted Gerald Hope in conducting shoreline searches for any trace of Olivia and Ben. He was in charge of The Marlborough Express reporting staff when Mr Watson was arrested and then tried for the murders of Olivia and Ben.

8 Mr White has maintained an interest in the matter. In 2007, as it was approaching the 10 year anniversary of Olivia and Ben's disappearance, he began researching a feature story on the case for North & South magazine where he is currently employed. As part of his research he approached Mr Hope, with whom he had continued to have contact in the intervening years in Mr Hope's role as councillor and then Mayor of Marlborough. Following Mr White's approach, they discussed the case on several occasions. In those conversations Mr Hope was critical of the police investigation and the trial process and expressed a wish, an offer which he had made previously, to meet face-to-face with Mr Watson to hear his views. Mr Hope's comments, and the comments of others involved in the case, were published in the November 2007 issue of North & South.

9 Mr White was also well known to Mr Watson's family. Following publication of the November 2007 article Mr Watson's father contacted Mr White. He indicated that Scott was willing to meet with Mr Hope but at that time his application for the Royal Prerogative of Mercy was in the process of being prepared. When that application was rejected in July 2013, Mr Watson's father again approached Mr White to inquire if Mr Hope was still willing to meet with Scott. Mr White contacted Mr Hope who confirmed that he remained willing to do so. Both Mr Watson and Mr Hope wished to have Mr White present if the meeting could be arranged and to record what was said. They recognised the meeting could be emotionally charged and difficult to remember accurately after the event. Mr White then contacted Mr Cook, Mr Watson's lawyer, to see if a meeting could be arranged.

10 On 9 October 2013 Mr Cook contacted Corrections requesting a visit with Mr Watson (the first request). He advised the visit would be attended by Mr Hope and Mr White, as well as Mr Watson's counsel. Corrections declined this request on 18 February 2014. The letter advising of the decision noted that Corrections was required to consider the effect of the proposed meeting on other persons. It went on to say:

… a person who would be profoundly affected is Mr Hope. I have spoken to Mr Hope to obtain his view. He has advised me that since the recent publicity surrounding the proposed meeting he has reconsidered his position. He is now of the view that Mr White's involvement, and the possibility of a magazine article following the meeting, would not be helpful. He would now prefer not to involve Mr White and seeks a private meeting with Mr Watson instead. On balance that was the decisive consideration.

11 As Mr Cook subsequently understood matters, Mr Hope had agreed to exclude Mr White because Corrections had not regarded Mr White's presence as desirable. Corrections was informed that Mr Hope had reconsidered his position and now supported the meeting taking place with Mr White present. However, on 19 March 2014, Corrections again declined the request for Mr White to be present on the basis of the views of other victims.

12 Mr Watson then invited Mr White to interview him without Mr Hope present. The parties contemplated that a meeting with Mr Hope might take place subsequently. Accordingly, on 16 November 2014 Mr Cook sought permission from Corrections for a “meeting (likely more than one)” between Mr Watson and Mr White (the second request). Corrections declined this request on 18 December 2014. In declining the request Corrections advised it had taken into account that neither Mr Hope nor Mrs Smart (the mother of Ben Smart) supported the interview taking place and this was the decisive factor.

13 Mr Watson challenged the decision on the second request via a judicial review proceeding filed on 27 January 2015. That challenge was heard in the High Court on 20 May 2015. The Court's decision was delivered on 4 June 2015. 2 It considered there was no rational basis for declining the request. The decision on the

second request was quashed and Corrections was directed to reconsider the decision in light of the Court's judgment

14 On 1 July 2015 Mr Cook was advised that Corrections was not appealing the Court's decision and Mr Watson and Mr White could provide any further information they wished in support of the application before Corrections made a fresh decision. Mr Cook provided a letter dated 17 July 2015 from Mr White confirming that Mr White's request to visit Mr Watson remained unchanged. On 28 August 2015 Corrections reconsidered the decision and advised that the request was granted subject to a number of conditions. There were then discussions over the conditions, leading to the interview taking place over three dates in October 2015 at Rolleston Prison.

15 Mr White then published a 17 page article in the December 2015 issue of North & South magazine, entitled “Scott Watson, The interview.” Mr White describes the public and media interest that followed as being greater than any story he has written in his 20 year career as a journalist. Sales of this issue were double the average monthly readership of 250,000, with thousands more reading the online publication. As a result of this publicity, a “docudrama” on the case is being finalised with funding from New Zealand On Air. New witnesses have come forward. Others have reinforced earlier doubts they had expressed. Offers of assistance have also been forthcoming. In addition, Mr Hope again expressed his desire to meet with Mr Watson. This led to the decision that is presently at issue.

The present matter

16 On 10 December 2015 Mr Cook applied to Corrections for a meeting to be organised between Mr Hope and Mr Watson with Mr White to act as a facilitator (the third request). This request noted that this had been the intention for some time. It also referred to Mr White's intention...