28 Sep 2021

Murder victim's sister in battle to access court documents

8:21 am on 28 September 2021

A woman whose brother was murdered feels she's in a perpetual battle to access documents about his shocking death. Why is it so hard for victims to get information out of the justice system?

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Photo: RNZ/Vinay Ranchhod

Court has become a familiar place for Monique* in the months and years since her brother was murdered and his killer brought to justice. She's stepped into those cool judicial spaces more than a dozen times now, but whenever the gruesome details of her brother's death are discussed, her mind goes blank with distress, anger, or shock. It makes her feel light-headed to hear his killer speak, or to listen to the voices of strangers discussing the last minutes of his life. Her heart thumps, adrenaline floods her body, and sweat begins to prick her skin.

"You feel shell-shocked," she says. "It's like someone's dropped a bomb in front of you. I have been in a car crash before, and it was like the car smashing into me all over again.

"You're so very emotional, [and] you're not taking in what's said. You're in a space of 'What just happened there?'"

When the hearing ends, it's like Monique wasn't there. It would help if she could take notes or record during proceedings so she could look back and remember what happened, but unless you're a member of the media, you're banned from doing so.

She's her family's spokesperson, and it's up to her to help everyone navigate the court process. So each time she leaves court and walks back into the outside world, she's battered not just by the physical and emotional after-effects of the stress, but also by confusion and worry over what important legal details she's missed.

"My family is so very broken, and I'm the one functioning the best-and I'm not functioning well at all," she says.

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How can she guide them and advocate for her dead brother when she can't remember what's gone on in court? With court closed to recording, the only way to find out what's happened is to get official court documents to help her understand, explain it to her family and figure out the next steps.

And herein lies the problem. It may seem a relatively straightforward administrative process, and indeed New Zealand courts' own rules make it seem so. But she, and many more victims spoken to by RNZ, struggle to get them.

Court staff give her conflicting information, or don't reply to emails and calls. Judges take months to respond.

"You need to be a qualified professional to get information about your own case. Once you've been through this you think, 'My God, this system cannot be any worse for a victim'," she says. "The only thing they're not doing is throwing the victim in jail and blaming them, but they are doing everything but."

Having to work so hard to access information about her own brother's death feels like further victimisation of victims, she says. It feels like she's being told to shut up, don't ask anything and accept everything without question, like a child.

"They just make every step of the process hard for [victims]. You jump through hoops, you do all the right things, you ask for the information. You still don't get it. You get radio silence, you get ignored. You ask again, you make a phone call. Nope. Still radio silence. It's just beyond a joke. It's beyond disrespectful."

She is currently waiting for documents she applied for several months ago, but has yet to even get an acknowledgement of her application. A lawyer once took pity on her and helped her, pro bono, to obtain a set of documents when her initial application, submitted several months before, was mysteriously lost.

Monique doesn't have a regular lawyer. She doesn't have the funds to engage someone at hundreds of dollars an hour to help her navigate a system she never dreamed she'd be stuck in.

"I sold my f***in' oven to pay for a lawyer."

***

Why do victims like Monique find it so hard to access court records, especially when the issue has ostensibly been dealt with? Years ago the government asked the Law Commission to investigate court access rules and in 2006, the Commission presented its report, Access to Court Records, to the then-courts minister Rick Barker. It found many of the hurdles blocking access to court documents were unjustified and recommended increased access to court records, calling for "a more open and clear regime".

"In places the current access rules resemble a dog's breakfast," Law Commission president Sir Geoffrey Palmer said at the time. "They are often unclear, vary from one jurisdiction to another, and some courts have no access rules at all." He said information should be shared "as far as practicable".

The report recommended a new Court Information Act be set up covering all court record information held by a court, based on a presumption of open access to court records. The Law Commission said it should only be limited by "principled reasons for denying access", such as the protection of sensitive information, particularly in cases involving children or vulnerable people, and court orders or statutory prohibitions on the release of information. An ombudsman could be appealed to in disputes over access to information, but only in disputes over non-case records-a judge's decision could not be overruled.

But the government never investigated a Court Information Act, and there is no evidence the issue made it to a select committee as the government initially said it would. Instead, the Courts of New Zealand's Rules Committee, which decides court processes, brought in a new set of court rules 11 years after the report.

The rules created a general right to access the formal court record of criminal or civil cases. But to access anything beyond that-including transcripts, affidavits and evidence presented-you need permission. The rules set out the matters a judge must consider when responding to an application for court documents, including the protection of confidentiality and privacy interests and the principle of open justice.

Applicants have no right to a response and there is no time frame a court must aim for in fulfilling the request.

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University of Canterbury law professor Ursula Cheer says the court rules require judges to balance all of the requirements in deciding whether to release documents.

"They have to weigh up what they've got in front of them, weigh up and take into account the context and the time that the request has been made, what stage the trial might be at in relation to the case.

"So there is certainly a possibility that in the system, requests made in relation to the same process may lead to different results."

Prof. Ursula Cheer, dean of the school of law at the University of Canterbury

Ursula Cheer Photo: supplied

The rules state that justice is at its most open during a 'substantive hearing', such as a trial, and more in favour of less transparency either side of that, as the weight of confidentiality and privacy are increased- a malleable, U-shaped curve of transparency at different times of the court process.

Cheer says she can't see a better way than the existing rules to manage access to documents.

"I don't think there's an easier or magic way that a black and white list can be set out saying - in these circumstances judges must do this or, and so on."

Rosemary Riddell, a retired Family Court judge currently in the headlines for her book To Be Fair: Confessions of a District Court Judge, says under the rules she always gave permission for people to access court documents, and she did it as quickly as possible.

"Delays in justice are no justice at all," she says.

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Photo: supplied

Still, sometimes there can be delays when court staff fail to forward a request to a judge, she says, and other times judges who move around the country may take a long time to return to a court where a request for documents has been filed.

She says she was always aware how crucial it was for her to grant access to documents, but accepts judges are all individuals with different judgement.

"I think it's really important that people, especially victims, find out why the judge concluded what he or she did. The judge will have set out the reasons why, that the evidence reached the threshold of beyond reasonable doubt, and may have commented on the evidence, especially if a child gave evidence-in years to come the child is entitled to absorb that information."

***

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Photo: RNZ/Vinay Ranchhod

In our offender-based justice system, where victims have little voice other than as witnesses, entering the court system can be a profound shock. It takes time and knowledge for victims to understand the procedures that so heavily impact their futures.

Linda* has spent the past few years dealing with the trauma of discovering her young son was being sexually abused. To make matters worse, the culprit was her partner, the boy's father.

The waves of legal proceedings that have come since - interviews, hearings, Family Court, a trial, sentencing, appeals - have all combined to destroy her emotionally and financially, and leave her son traumatised.

"It's like you're pushed off a cliff, and it feels like we're still falling," she says. During her ex-partner's sentencing, Linda was present by video, and gave her victim impact statement, which she says was one of the most traumatic things she's ever had to do.

But after the sentencing, something the judge had said nagged at her. Prohibited from taking notes and deafened by stress, she couldn't remember what it was.

"There's this muscle in the back of my head that goes tight, and I can't take any information in. I just feel sick," she says. "Because all I can hear is this roomful of people who've never met me, never met my child, discussing his private parts and things that have happened to him [and] making decisions on things that impact our future, and we have no control over it."

That meant Linda struggled to understand what was happening around her as strangers dispassionately argued about details that will define the rest of her and her boy's lives.

"You don't really hear what the judge is saying," she says. "You get little bits of it, but they refer to the abuse, and it just shuts you down.

"It's like a ringing in the ears. It's total stress. It's deafening. You can't think straight."

Afterward, she asked her court victim advisor about how to get sentencing notes to find out what was said, but the advisor didn't respond to her email. She asked the detective on the case. She asked court staff directly. She asked through her Family Court lawyer.

"In all cases I was somewhat redirected, or certainly there wasn't a clear process or direction to how to apply," she says.

Finally, after weeks of unanswered enquiries, she got hold of a court registrar who sent her through the formal application form to request court documents. She filled it in and sent it to another court victim advisor, who was covering Linda's original advisor's leave, and who advised Linda that she'd wait to put it in front of the judge until the first advisor came back from holiday.

Linda said, "Please don't wait." The advisor waited. By the time the first court victim advisor came back, she said "I'll put it in front of the judge, but the judge is on holiday and won't be back for four weeks."

By then it had been a few months since Linda had first asked for the notes after sentencing. Someone told her to call the Sensible Sentencing Trust, who applied for the notes as well. The trust received them before Linda did, and forwarded them to her. When Linda eventually received her own copy from the court the notes had been heavily redacted with no explanation; the trust's had not.

"I'm the mum of the victim and I get a redacted version of the sentencing notes? What the f*** is that about? What are they trying to protect?"

When Linda finally got to read through the unredacted version, she realised the thing that had been nagging at her during sentencing was that the judge had ruled her ex-partner would not be placed on a sex offenders' register. The judge thought it unlikely he would offend again because he didn't have access to their child anymore. However, the judge also noted that another report showed the man was at high risk of reoffending, having shown no remorse, responsibility, and exhibiting complete denial of what he'd done.

This all bothered Linda a lot. What was to stop this nightmare happening again, to another family and child, if he wasn't on a sex offenders' register?

"Myself and my family feel, well, he's of an age where he can have more children," Linda says. "He's certainly of an age where the next woman that he meets can have children."

She thought he should be placed on a register, and that the judge's decision not to do so should be appealed. She then found out the Crown can appeal a sentence, but the notice of appeal had to be filed within 20 working days. She counted. She'd received her copy of the notes 75 days after her former partner was sentenced, so it was too late to even try to talk to the Crown Prosecutor about an appeal.

Linda says the process of finding out what happened in your own or your family member's court trial shouldn't be that difficult, and that it prevents people from wholly participating in the justice process.

"Having the sentencing notes were essential to being able to comprehend and then formalise thoughts around how satisfactory we felt the sentence was," she says.

"You don't get a lawyer to help you understand what's going on or help you navigate or tell you what to expect. You don't know how it works. You don't know the language people are using. You don't know the rules."

That hasn't been the only delay for Linda in accessing court information. A similar thing happened after the trial. Neither she nor her son attended in person; the stress would have been too much. Instead, they gave evidence via video link. They saw none of the trial.

But that had big repercussions for her and her son's recoveries. She doesn't know what evidence he gave, and she doesn't know the details of what abuse happened to him. He only tells her fragments of detail about what his father did, and she doesn't want to press him on it and traumatise him further.

Her son still loves his dad, she says. But he's terrified of him.

"He's really confused about what happened. He is still working out that [the abuse] was wrong, because it was so normalised for him."

Without those court records she first asked for back in April - the Crown prosecution summary and judge's judgment - she has no story for her boy, or for herself; no narrative of how the justice system worked or didn't; no idea why his father wasn't convicted of all charges.

"How we ended up at this place is important to know," Linda says. "I do need to have those [documents], because one day my little boy is going to grow up and he's going to ask, 'What happened?' And I don't know."

Linda finally heard something about that April application in September. She's still not allowed to see the judgment, because her ex-partner has filed an appeal in the Supreme Court, and giving her the judgment could affect his fair trial rights.

***

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Photo: RNZ/Vinay Ranchhod

There's a growing body of evidence showing victims are dissatisfied with the justice system. A 2019 Victim Support study showed 59 percent of victims had no faith in it, and justice advisory group Te Uepū Hāpai i te Ora published a report in 2019 saying victims felt unheard, re-victimised and let down. A Chief Victims Advisor survey provided to the government in August 2019 showed the majority of victims - 63% - had a poor or very poor experience of the system.

The Sensible Sentencing Trust supports victims of homicide and serious violent and sexual crimes. One of its 11 official goals is to ensure victims have better access to court records and case files.

The trust says the court document application process is unnecessarily slow, prolongs victims' healing and adds to the trauma of the initial crime. The trust has worked with many victims or their remaining family who have had difficulty accessing their case files or sentencing notes, which are usually already given in open court.

Sensible Sentencing Trust spokesperson Jess McVicar says that's concerning given the presumption of openness and natural justice that should operate.

"We're finding it so much harder to get any information that technically a victim should actually have the right to," she says.

McVicar says it should be "an automatic right" for victims to be promptly supplied with all the information they seek about a trial, free of charge. There's a $30 fee when you apply for documents, and the court can calculate their cost and charge the victim for that too, McVicar says it's unfair that families who've lost loved ones have to pay to access any information regarding the trial of the case.

"I believe that [it] should be up to the victim if they want to receive that information or not. And it should be a right, then they should have that option. But our system and our lawyers and our judges seem to make that decision, what they think is best on behalf of the community, and behalf of victims, which isn't right."

McVicar says although there is one set of rules applied to document requests, in practice there is no consistency between judges and their decisions.

Sensible Sentencing Group Trust Waikato victim advocate Karrin Coates says having access to court documents, such as sentencing notes, which explain a judges' reasoning for a particular sentence, is crucial for victims' understanding of the judiciary process.

She says for a victim, attending a sentencing and sitting in the same room as an offender is "traumatic" and they miss a lot of information.

"And the stress. It's terrible," she says. "They don't hear 98 percent of it, to be honest, because they're so traumatised.

"So the sentencing notes give them a sense of clarity. That's really important. And it gives them a sense of understanding, because our justice system is not a simple system.

McVicar says delays and problems accessing court documents not only prolongs stress and trauma but adds to victim dissatisfaction with the legal system.

"They already feel like they are trying to be pushed aside in the system on top of dealing with all the trauma of what's actually happened to them.

"When they're sitting in court, they're not allowed to show emotion, they have to sit there silent, they don't have a say, they have no input at all in the trial, even if there's something that's clearly not true, they don't have a say.

"And then they have to go through this process as well, where they've basically got to put in an application for the rights of information that was spoken about them or their family member.

"It's so bad and it's so hard for them to access anything. There's no one that can tell me that they are putting victims first in that situation."

***

Chief Justice Helen Winkelmann told RNZ she accepts access to court documents is an issue and one "we're very much concerned about". She says it's most likely a problem in the District Court, and says courts are aware of the issue and there is a review underway.

"And we are looking in the area of access to court documents generally, to create protocols to assist judges in dealing with them promptly and bring more consistency generally," she says.

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Chief Justice Helen Winkelmann Photo: Supplied

However, Justice Winkelmann says she wouldn't like to see statutory time standards imposed on judges and registrars responding to court document access requests.

"We've got a finite judicial resource, which is doing all sorts of things, including clearing a jury trial backlog," she says. "But that doesn't mean I don't accept the need for these matters to be dealt with promptly."

She says judge and registrar responses shouldn't be subject to individual whims and biases.

"It's actually quite a clear indication. And in fact there's quite a high level of statutory entitlement on the part of victims, so victims shouldn't really be experiencing delay or complication.

"I don't think what [RNZ] is describing sounds satisfactory, and the chief district court judge doesn't think it's satisfactory either."

Justice Winkelmann says victims can seek to review a decision if it's been by a registrar, and if it's made by a judge, they can appeal it.

In response to RNZ's enquiries, the District Court said in a statement that it recognised any delay in accessing court documents can be a source of frustration for victims.

"There are processes in place for dealing with applications in the court registry and, where required, by judges, and we recognise there are sometimes delays," the statement said.

"The reasons for this can include delay in registry or judicial consideration or in responses requested from parties or counsel. We are taking immediate steps to remind our judges of the relevant provisions of the Access rules and the importance of facilitating prompt access to documents by victims."

***

Having lost her brother to murder and battled through the legal system, Monique could be forgiven for wanting to focus on her own survival. But just as Linda knows one day her son will need to understand the facts of his abuse to make sense of what happened to him, Monique wants official court documents in part because her brother's children deserve thorough information not just about what happened to their dad, but also what happened to the man who killed him. She believes they need to know the story of how the law was delivered, in a country that's meant to pride itself on open justice.

"One day my brother's children will ask questions and one day they will have the right to answers - the official answers, not just my personal take on what happened," she says.

"If you don't have records you can't do anything - it leaves victims in the Bermuda Triangle."

*Names have been changed.

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