Non Raceday Inquiry – Decision as to Media Application dated 3 November 2023 – John McInerney

1. A penalty hearing in relation to this matter took place online on 30 October 2023.

2. On the morning of the hearing, the Adjudicative Committee received a late media application made orally by Mr Michael Morrah of Newshub.

3. The Adjudicative Committee granted Mr Morrah’s application in part, as to note taking, and reserved its Decision as to two further requests:

a. That Mr Morrah be provided a copy of a recording of the hearing.

b. That Mr Morrah be provided a copy of the Summary of Facts.

4. Submissions were invited by the parties by 1 November 2023 and Mr Morrah, the Applicant.

5. Submissions were also received on behalf of Greyhound Racing NZ as Third Party.

6. Mr Parry, for the Informant, advises that the Informant has no objection to the release of the Summary of Facts and the recording of the hearing, noting there was no video recording, and the recording consists of audio only.

7. Mr Evans, for the Respondent, opposes the release of the Summary of Facts and the recording.

8. Mr Kaye, for Greyhound Racing NZ (GRNZ) also opposes the release of both the Summary of Facts and the recording.

APPLICANT’S SUBMISSIONS

9. Mr Morrah, in his submissions, notes that the Respondent has admitted the charges, and as such, the Summary of Facts in this case should be supplied to members of the media as per normal process in the Courts if such request was made.

10. Mr Morrah further highlights that provision of the Summary of Facts ensures accurate balance and fair reporting of the case.

11. More generally, Mr Morrah highlights that journalists play an important role as the eyes and ears in the public, so they can gain an understanding of what happens during a Court of judicial process.

12. Mr Morrah highlights that nothing in relation to the hearing on 30 October 2023 was suppressed by the Adjudicative Committee.

13. Lastly, Mr Morrah highlights that the Respondent is one of the country’s most high profile and successful Greyhound Trainers, and as such there is high degree of public interest in knowing what occurred at the hearing, seeing the hearing from each party and knowing what submissions were made by each of the parties.

RESPONDENT’S SUBMISSIONS

14. Mr Evans, in submissions, accepts that normally in the interests of fair and accurate reporting, Summary of Facts should be made available to the media.

15. However, Mr Evans is critical of the lack of regard for the integrity of the judicial process to date, and draws the Adjudicative Committee’s attention to the Newshub coverage that occurred on the evening of 30 October 2023.

16. Mr Evans summarises the news report, in particular, comments made in that report by members of the SAFE and Greyhound Protection League groups (GPL), which Mr Evans submits amount to an attempt to influence the Adjudicative Committee as to the outcome of penalty.

17. The coverage in Mr Evan’s submissions goes far beyond the limited scope of direction the Adjudicative Committee made at the conclusion of the penalty hearing as to a story based on notes of the hearing.

18. Mr Evans emphasises the added risk given the limitations of the Adjudicative Committee’s jurisdiction to deal with matters of contempt, going as far as to suggest that the comments of representatives of SAFE and GPL effectively amounted to an attempted subversion of judicial process, and had they taken place in the context of the Criminal Courts, may have resulted in serious action being taken by a Presiding Judge.

GRNZ SUBMISSIONS

19. Mr Kaye, for GRNZ, notes there are no specific Rules concerning applications by media for access to Adjudicative Committee documents, and this is derived from the Adjudicative Committee’s power to regulate its own procedure under Rule 4, Schedule 3, Greyhound Racing NZ Rules of Racing (the Rules).

20. Mr Kaye notes that the Adjudicative Committee must regulate its procedure in a manner consistent with the objectives of the Rules, which includes an obligation on the Adjudicative Committee to exercise and perform its duties, powers and functions in a manner consistent with the Rules of natural justice.

21. The Courts’ Rules for dealing with media access to Court hearings and documents provide a useful framework for considering this application in Mr Kaye’s submission.

22. The Adjudicative Committee’s attention is drawn to Rule 12 of the District Court (Access to Court Documents) Rules 2017, which sets out a series of considerations in granting such access. Mr Kaye notes the objective of Rule 12 is to provide access to Court information, but to ensure that access does not prejudice the Defendant’s right to a fair hearing.

23. Additionally, Mr Kaye observes that the Courts have significant powers under the Contempt of Court Act 2013 to compel compliance with the terms in which access to Court information is provided and to punish any breaches of the terms of access.

24. GRNZ’s primary concerns are to the right to a fair penalty hearing and ensure that any information provided to media organisations such as Newshub do not prejudice the Respondent’s right to a fair penalty hearing.

25. Mr Kaye is also critical of Newshub’s reporting of Monday 30 October 2023, and submits that Mr Morrah’s application is compromised by his use of information obtained at the penalty hearing to prejudice the Respondent’s right to a fair penalty hearing.

26. It is submitted by Mr Kaye that the Adjudicative Committee is now placed in an invidious position and that Newshub’s reporting of the penalty hearing has prejudiced the Respondent’s right to a fair penalty hearing, as a result of speculative comments made in the report as to the disqualification period the Adjudicative Committee may impose.

27. Mr Kaye submits the Adjudicative Committee should be free to deliberate on the Respondent’s penalty without being swayed by media reports that are strongly critical of the Adjudicative Committee’s anticipated Penalty Decision.

28. Mr Kaye submits that Newshub was free to report on the penalty hearing, but not to impugn on the Adjudicative Committee’s Penalty Decision through allowing SAFE and GPL to attempt to sway that Decision via the media. Similarly, the Respondent is entitled to have their submissions on penalty considered free from uninformed and biased media reports as to proposed penalty.

29. Mr Kaye opposes the application on the basis that the reporting to date has already prejudiced the Respondent’s right to a fair penalty hearing and there is little basis for expecting Mr Morrah not to repeat the process in respect of the use of the Summary of Facts and the recording of the penalty hearing.

30. Mr Kaye further submits that Newshub is an experienced media organisation that can be expected to be familiar with Media Reporting Rules in the Courts, and suggests that Newshub would also be aware of the lack of powers of the Adjudicative Committee to enforce any media reporting obligations in respect to its hearings.

31. Mr Kaye submits that the weakness in the Adjudicative Committee’s powers of enforcement is a factor the Adjudicative Committee should have regard to in considering whether to grant the application.

RELEVANT LAW

1. In terms of the powers of the Adjudicative Committee in these circumstances, r 173C(1) of the Rules provides that the Rules of Practice and Procedure in Schedule 3 of the Rules to apply to the Adjudicative Committee. There are no specific Rules in Schedule 3 concerning applications by the media to access Adjudicative Committee documents.

2. r 4 provides that subject to the Rules, the Adjudicative Committee may regulate its procedure and conduct any hearing in any manner they consider fit.

3. Where any matter is not otherwise provided for in the Rules, the Adjudicative Committee shall have the jurisdiction to make such orders or give such directions it considers consistent with the objective set out at r 3.1 of Schedule 3.

4. r 3.1 states:

3. Objective

3.1 The objective of the rules, as they apply to any proceeding before the Adjudicative Committee or Appeals Tribunal, is to promote the just, fair, speedy, and inexpensive determination of the proceeding.

5. r 5 further provides:

5. Natural justice

5.1 The Adjudicative Committee and Appeals Tribunal must exercise and perform their duties, powers, and functions in a manner consistent with the rules of natural justice.

6. It is often emphasised that it is a fundamental Rule of the common law that administration of justice take place in an open Court.

7. In John Fairfax & Sons Ltd v Police Tribunal of New South Wales (John Fairfax & Sons Ltd v Police Tribunal of New South Wales [1986] 5 NSWLR 465 at 476-477 per McHugh JA), as endorsed by the New Zealand Supreme Court is Erceg (Erceg v Erceg [2016] NZSC 135, [2017] 1 NZLR 310 at [13]). It was held there can only be a departure from this Rule where its observance would frustrate the administration of justice, or some other public interest for whose protection Parliament has modified the Open Justice Rule. The principle of open justice also requires that nothing should be done to discourage the making of fair and accurate reports of what goes on in a Courtroom.

8. Accordingly, an order of prohibiting the publication of evidence is only valid if it is necessary to secure the proper administration of justice in proceedings before it. Moreover, an order prohibiting publication of evidence must be clear in its terms and do no more than is necessary to achieve the due administration of justice.

9. The making of the order must also be reasonably necessary; and there must be some material before the Court upon which it can reasonably reach the conclusion that it is necessary to make an order prohibiting publication. The party seeking the order must show specific adverse consequences that are sufficient to justify an exception to the fundamental Rule.

DECISION

32. The Adjudicative Committee acknowledges the fundamental Rule that the administration of justice take place in the open. The Adjudicative Committee notes Mr Morrah’s submission that the circumstances of the case have attracted a level of public interest and that journalists play an important role in that.

33. However, the Adjudicative Committee must balance those factors against ensuring the proper administration of justice.

34. The Adjudicative Committee expresses on the strongest of terms, its displeasure at aspects of reporting that occurred on 30 October 2023. The Adjudicative Committee accepts the submissions of Mr Evans and Mr Kaye that it would be difficult to construe the commentary of SAFE and GPL as anything other than an attempt to improperly influence the Adjudicative Committee’s outcome as to penalty, on which it was still deliberating at the time.

35. This is a serious intrusion on the proper administration of justice, and the Adjudicative Committee agrees with the submissions that had such actions taken place within the purview of the Courts, the parties responsible for those comments would likely be facing serious consequences.

36. The Adjudicative Committee also observes that Newshub, as an established and respected member of the media landscape, would be expected to be very familiar with Court reporting protocols and guidelines. It was indeed reckless to broadcast commentary as to the ultimate penalty while the Adjudicative Committee was still deliberating on that matter.

37. The Adjudicative Committee also notes the increased risk it holds in deriving its powers as a matter of statute and regulation, being powers that are much more limited than those of the Courts, and as such, the Adjudicative Committee has limited ability to sanction actions of this nature.

38. The Rules provide, (as a default), that hearings of the Adjudicative Committee are open to the public, unless an application is made by either party (or the Adjudicative Committee’s own motion), that such hearing should be heard in private. It is likely the actions of SAFE and GPL in this instance will now be used in support of applications for hearings be heard in private.

39. Having regard to all the circumstances, and considering the competing interests, the Adjudicative Committee declines the application for access to the Summary of Facts and provision of the recording of the hearing. It does so for several reasons:

a. In the Adjudicative Committee’s view, the Decision released in this matter can provide an adequate summary of the submission of the parties, and the outcome.

b. The manner of reporting which has taken place to date, coupled with the limited powers of the Adjudicative Committee to sanction breaches of media guidelines, do not give the Adjudicative Committee sufficient confidence that such ancillary materials will be used appropriately in reporting.

c. While a penalty hearing took place, Counsel for both parties deferred to some degree to written submissions. As such, any recording of the hearing may not necessarily present an accurate picture of the full submissions of the respective parties.

d. Both the Informant and Respondent have rights of Appeal of the Adjudicative Committee’s Decision, and it is important that those rights as to any Appeal Hearing are properly preserved.