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 23/30