03/02/2020
50 Police
Slater v Blomfield [2014] NZHC 2221; [2014] 3 NZLR 835 (12 September 2014)
v Campbell, above n 19.
made rests upon the party seeking to displace the presumption of non-disclosure.51
This onus does not import any particular standard of proof, rather it involves “an evaluative judgment of fact
and degree”.52 The applicant must provide the relevant evidential material for that evaluative judgment,
although if both sides have filed affidavits the matter can be considered on the basis of all the information
available. Randerson J observed:53
The presumptive right to the protection should not be departed from lightly and only after a careful weighing
of each of the statutory considerations.
[106] A Court in considering an order under s 68(2) having determined that s 68(1) is engaged, must then
carry out the weighing of the public interest factors identified in the section. Randerson J helpfully set out the
process to be adopted in applying s 68(2),54 which I gratefully apply and adapt for the purposes of this
exercise. In carrying out this exercise I will follow a five step process considering:
(a) The issues to be determined in the proceeding;
(b) The public interest in the disclosure of the identity of the source in the light of the issues to be
determined, if any;
(c) The likely adverse effects of disclosure on the informant or any other person, if any;
(d) The public interest in the protection of communication of facts and opinion to the public by the news
media and the ability of the news media to assess sources of facts, if any; and
(e) Whether factor (b), if it exists, outweighs factors (c) and (d).
[107] In carrying out this process, a court has to consider and weigh matters of fact. This arises in an
interlocutory context, where there is limited ability to test and explore factual assertions. A court has no
alternative but to assess the facts as
51
52
53
At [86].
At [87] citing R v White (David) [1988] NZCA 55; [1988] 1 NZLR 264 (CA) at 268.
At [93].
54 Police
v Campbell, above n 19, at [103].
presented, and make robust findings in a manner akin to dealing with facts in interim injunction and freezing
order applications, and other interlocutory and pre-trial processes. In doing so it must be sensitive to the fact
that the evidence has not been tested as in a trial.
[108] The Court must also be sensitive to the view, expressed by some commentators, that fair trial rights
particularly in a civil contest should not always prevail over journalistic protection.55
www.nzlii.org/nz/cases/NZHC/2014/2221.html
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