Full judgment: WatsonvCEDepartmentofCorrections.pdf

Introduction

[1] In the early hours of 1 January 1998, two Blenheim teenagers, Ben Smart and Olivia Hope, were dropped off at a boat by a water taxi driver and never seen again. The following year, Scott Watson was convicted of their murders and is currently serving a life sentence at Rolleston Prison with a minimum period of imprisonment of 17 years. [ R v Watson HC Wellington T2693-98, 26 November 1999. ]

[2] Mr Watson has steadfastly protested his innocence since his arrest. However, he has exhausted his appeal rights and an application for the Royal Prerogative of Mercy has been rejected.

[3] Mr Watson’s conviction has not been without controversy. Mr Watson says “[b]ooks and articles have been written about my trial and conviction that agree that I should not have been found guilty”. Similarly, the affidavit evidence of Mr Michael White, a journalist, says:

I have increasingly become unsettled by Mr Watson’s conviction, given the amount of evidence that has altered or come to light since his trial. At the time of his conviction, knowing what the jury had been presented with, I believed the correct verdict had been reached. ...

However, subsequently there has been a great deal of new information, evidence and analysis which calls into question … the grounds on which he was convicted.

[4] Given Mr White’s interest in the case, Mr Watson’s lawyer approached Mr White to see if he was willing to interview Mr Watson in prison, and perhaps write a feature regarding his case. However, that required the permission of the Chief Executive of the Department of Corrections. Permission was sought and was declined.

[5] Mr Watson now applies for judicial review of the Chief Executive’s decision on the basis that it is unreasonable in a public law sense. He argues that the right of freedom of expression has been abrogated in favour of protecting the victims from further media coverage. However that latter consideration is an “illusory goal”. Mr Watson says that the focus on protection has resulted in a decision which so disproportionately weights the interests of the victims to be left alone, against Mr Watson’s freedom of speech, and against the public’s right to have debate about the correctness and transparency of our justice system, that this Court should intervene.

[6] Put simply, this case is about whether the decision to decline permission for the face-to-face interview was unreasonable in the sense that it “goes beyond the range of responses open to a reasonable decision-maker” having regard to the context in which the decision was made, including considerations such as the right to freedom of expression as affirmed in the New Zealand Bill of Rights Act 1990 (NZBORA).

My decision

[7] I have allowed Mr Watson’s application for judicial review. Although I go on to set out my reasoning in detail, it can be summarised as follows:

(a) The right to freedom of expression as affirmed in s 14 of NZBORA is of vital constitutional significance in any functioning democracy.

(b) That right is not unlimited. In the present context, where the applicant is a prisoner, fetters on that right can be demonstrably justified for two primary reasons:

(i) the need to ensure that the security and good order of prisons can be maintained;

(ii) as a component of the punishment for committing a crime of sufficient gravity to result in imprisonment.

(c) In this case I had to consider whether the Chief Executive’s decision could be said to be a demonstrably justifiable fetter on Mr Watson’s right to freedom of expression as a serving prisoner.

(d) I have found it is not for the following reasons:

(i) the decision is only to prohibit one mode of communication with the journalist, Mr White;

(ii) the Chief Executive has expressly said Mr Watson can communicate with Mr White through written correspondence;

(iii) the adverse effect on the victims of having Mr Watson assert he was wrongly convicted, is inevitable however he expresses that view. The mode of communication will not alter that.

(iv) no reasons other than the effect on the victims are identified as justifying the decision;

(v) the purpose of the interview is to allow a journalist to investigate Mr Watson’s assertion that he is a victim of a miscarriage of justice. That is recognised as a circumstance which, in a free society, points strongly in favour of permitting communication.

[…]

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