03/02/2020 Slater v Blomfield [2014] NZHC 2221; [2014] 3 NZLR 835 (12 September 2014) Approach to s 68(1) [33] The only New Zealand decision in which s 68 has been considered in detail is that of Randerson J in Police v Campbell.20 His Honour examined the common law background prior to the enactment of the Evidence Act,21 and the genesis of s 68.22 23 His Honour commented that: Except to the extent specifically enacted in s 68, journalists are competent and compellable witnesses in the same way as any other witness. The protection from compellability is limited and specific. It applies only where a journalist has promised an informant not to disclose his or her identity. The protection is limited to exemption from the obligation to answer questions or produce documents that would disclose the identity of the informant or enable that identity to be discovered. [34] It can be seen from s 68(1) and the definitions in s 68(5) that a person seeking to invoke the protection must establish the following: (a) there has been a promise not to disclose the informant’s identity given by a journalist to that informant; 19 20 21 Police v Campbell [2009] NZHC 2632; [2010] 1 NZLR 483 (HC) at [83]. Police v Campbell, above n 19. At [50]–[74]. 22 At [75]–[79]. (b) the medium used by the journalist disseminates the information to the public or a section of the public; (c) what is disseminated is news and observations on news; and (d) the person claiming to be a journalist is a person who, in the normal course of that person’s work, might be given information by informants in the expectation that it will be published in a news medium. [35] The section is silent on the onus and standard of proof. There is clearly a burden on the person who is seeking to resist compellability by claiming to be a “journalist”, to put forward evidence to show that the criteria are met. Beyond that I do not consider that it is useful to carry out a consideration of the onus or standard of proof. Given the precisely stated criteria I would be inclined to see the exercise as an orthodox application of facts to a legal test. The relevant time [36] It is necessary first to establish the relevant period for the assessment of whether Whale Oil was a news medium and Mr Slater a journalist. It follows from the reference in s 68(1) to a “promise” being made for the provision of information that the time to consider whether a person is a journalist is when the information is www.nzlii.org/nz/cases/NZHC/2014/2221.html 8/30