There are two types of documents that can be requested under the access to court document rules; documents that can be accessed as of right and those which require court permission. It is important to note that the media do not have any special rights regarding access to court documents; the media’s rights are the same as those of the public.
Access to court information is governed by various legislative provisions, as well as orders and directions set down by the court, such as (but not limited to):
The Senior Courts (Access to Court Documents) Rules 2017 and District Court (Access to Court Documents) Rules 2017 essentially mirror one another. The Official Information Act 1982 does not apply to court records.
In general, and subject to any specific exceptions in the rules such as rule 6 and rule 7, court orders or statutory restrictions, everyone has a right to access the following regarding criminal proceedings:
In civil proceedings:
And for Appeals:
However for criminal proceedings, without limiting rule 6(a)(external link), a person may access the following documents only if a Judge permits the person to do so:
(a) any pre-trial judgment, order, or minute in a criminal proceeding, including any bail judgment, order, or minute:
(b) any document containing evidence of a complainant or of a person who gives or intends to give propensity evidence:
(c) electronically recorded documents of interviews with a defendant:
(d) any document that identifies, or enables the identification of, a person if the publication of any matter relating to the person’s identity (such as the person’s name) is forbidden by an enactment or by an order of the court or a Registrar:
(e) any document received, or any record of anything said, in a proceeding while members of the public are excluded from the proceeding by an enactment or by an order of the court:
(f) any document containing evidence provisionally admitted into evidence and any document containing evidence that has been ruled inadmissible by the court. Court staff are unable to give you any information about a criminal case where the defendant has not yet appeared in court. This is to allow for the possibility of suppression being ordered by the judge at the first appearance or because automatic suppression may apply. This includes confirming whether or not a particular person has charges pending.
If you do not attend a hearing in person and would like information relating to the proceedings, you need to make a request for information in accordance with the relevant search rules. Once a matter has been brought before the court, the only information that court staff can give you without reference to the search rules is the date set down for the next appearance.
All search requests should be directed to the registrar. Because the procedure varies in different jurisdictions, if in doubt we advise you to contact the court registry or the Ministry’s media team for advice about how to make an application.
However, in general any person who wishes to access documents should seek such access under rule 10 & 11. While you may request access to documents orally, the registrar can request that you make your application in writing depending on the type of document. There is an application form available on the media centre of the Ministry of Justice’s website which many registries accept but a written request can also include by a letter or email. The requirements are that the written request:
(a) identifies which legislation you are requesting the document(s) under;
(b) identifies the person and gives the person’s address; and
(c) sets out sufficient particulars of the document to enable the Registrar to identify it; and
(d) gives reasons for asking to access the document, which must set out the purpose for which the access is sought; and
(e) sets out any conditions of the right of access that the person proposes as conditions that he or she would be prepared to meet were a Judge to impose those conditions (for example, conditions that prevent or restrict the person from disclosing the document or contents of the document, or conditions that enable the person to view but not copy the document).
Members of the media should make applications carefully, addressing issues that are likely to arise, and be prepared to receive objections and to respond in writing to those objections, explaining why access should be ordered despite that objection.
The registrar will organise service of the informal application on the relevant parties. Any person who wishes to object must give written notice of that objection to the Registrar within the required time.
The judge (or the registrar in some matters) will make the decision on the search application. The judge or the registrar may grant the application, request further information or pass to counsel for comment before a final decision is made.
Under rule 12 of the rules, in deciding on application for access a Judge must consider the following matters:
(a) the orderly and fair administration of justice:
(b) the right of a defendant in a criminal proceeding to a fair trial:
(c) the right to bring and defend civil proceedings without the disclosure of any more information about the private lives of individuals, or matters that are commercially sensitive, than is necessary to satisfy the principle of open justice:
(d) the protection of other confidentiality and privacy interests (including those of children and other vulnerable members of the community) and any privilege held by, or available to, any person:
(e) the principle of open justice (including the encouragement of fair and accurate reporting of, and comment on, court hearings and decisions):
(f) the freedom to seek, receive, and impart information:
(g) whether a document to which the request relates is subject to any restriction under rule 7:
(h) any other matter that the Judge thinks appropriate.
Members of the media who are seeking access to court documents should bear these factors in mind. None has any automatic greater weight than the other, although the relevance of these factors will vary from case to case.
Members of the media should also be aware of rule 13 which differentiates between applications for documents before the substantive hearing, where the protection of confidentiality and privacy interests and the orderly and fair administration of justice may require access to be more limited, the substantive where open justice has greater weight and the period after the substantive hearing where in relation to documents other than relied on in a determination, the protection of confidentiality and privacy has greater weight.
Statutory provisions and suppression orders (or automatic suppression) may restrict the information that may be published. A judge may place restrictions on how you use or publish information you have access to. They can also restrict access to certain documents such as victim impact statements and psychiatric reports.
If you are granted permission to search, inspect or copy a court file, you can expect to be supervised by a court staff member. It is extremely likely that you will be required to go into court to see the documents, the documents will not be supplied to you in an electronic format.
Judges’ personal notes are not governed by the District Court (Access to Court Documents) Rules 2017 or the Senior Courts (Access to Court Documents) Rules 2017 and are not available for search or inspection.
The Senior Courts (Access to Court Documents) Rules 2017 and the District Court (Access to Court Documents) Rules 2017 have replaced Part 6 of the Criminal Procedure Rules 2012, Part 3 of the District Court Rules 2014 and Sub Part 2 of Part 3 of the High Court Rules 2016, and now govern the access to court documents in the criminal and civil jurisdictions of the District Court and the Senior Courts. The Rules are published here.(external link)
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