K and G [2019] NZHC 854 [16 April 2019]

PUBLICATION OF NAMES AND IDENTIFYING DETAILS OF APPLICANTS PROHIBITED BY ORDER OF THIS COURT MADE ON 15 MARCH 2019

IN THE HIGH COURT OF NEW ZEALAND
WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA
TE WHANGANUI-A-TARA ROHE

CIV 2019-485-145
[2019] NZHC 854

BETWEEN

K and G
First Applicants

AND

K
Second Applicant

AND

THE GOVERNMENT INQUIRY INTO OPERATION BURNHAM AND RELATED MATTERS
First Respondent

AND

THE ATTORNEY-GENERAL
Second Respondent

[…]

JUDGMENT OF ELLIS J

[1] K, G and K (the applicants) once lived in two villages in Baghlan Province, Afghanistan. Those villages were, on 22 August 2010, the subject of an attack by New Zealand military personnel in an operation codenamed “Burnham”. It has subsequently been alleged that a number of civilian occupants of the villages were killed. It is alleged that the Operation involved breaches of international humanitarian law.

[2] On 11 April 2018, a Government Inquiry into Operation Burnham (the Inquiry) was established under the Inquiries Act 2013 (the Act). In accordance with the Act the Inquiry subsequently designated certain people with a specific interest in the Inquiry, including the applicants, as “core participants”. Messrs Hager and Stephenson (the authors of the book Hit & Run, which effectively triggered the Inquiry) are also core participants, as is the New Zealand Defence Force (NZDF). Under the Act, core participants have “the right to give evidence and make submissions to the Inquiry, subject to any directions of the Inquiry”.

[3] What has become a somewhat vexed issue is the scope and content of the applicants’ natural justice rights in relation to the Inquiry. The applicants have consistently maintained (for example) that the Inquiry be conducted in a way that meets (what they say are) New Zealand’s “right to life investigative obligations”. In general terms, they are critical of the Inquiry’s inquisitorial approach and its decision to question many witnesses in private and on a confidential basis. More specifically, they maintain that:

… their Counsel should be part of any closed hearing process, and indeed part of any evidence-gathering process. … this is their natural justice entitlement, required so that they may properly respond to and challenge evidence which contradicts their accounts. In particular, … they should be entitled to make full response and meaningful challenge to both past and likely future claims that they or their fellow villagers were enemy combatants or otherwise legitimate targets of, or during, Operation Burnham.

[4] The dispute about these matters came to a head with a formal Ruling made by the Inquiry in December 2018 which the applicants say precludes them from participating in the Inquiry in these ways. The applicants have now brought judicial review proceedings to challenge that ruling. They have also applied for interim relief which would prohibit the Inquiry from holding any further hearings pending determination of their substantive application for review. And in that context, the applicants have sought permission to administer interrogatories to the Inquiry. It is that application which is the subject of this judgment.

[…]

Discussion

[37] The position of the respondents and the interested parties was that, in terms of confidentiality concerns, the modified interrogatories were no better (and arguably worse) than the original iteration. Mr Martin pointed out that if (for example) a “whistle-blower” witness were identified as being employed by NZDF and the subject matter of his or her evidence identified, then NZDF would, almost certainly, be able to work out the identity of that witness. Providing such information would, again, undermine the confidentiality orders. The chilling effect, in terms of the Inquiry’s ability to obtain the co-operation of sensitive witnesses, is obvious.

[38] And even taking a more purposive approach to the interrogatories (by which I mean proceeding on the basis that they could be further amended to better reflect Mr Harrison’s argument summarised above) there are problems.

[39] Assuming for now that interrogatories can be sought in relation to an interlocutory application, I remain wholly unpersuaded that the interrogatories are necessary here. The short point is that the applicants have all the information they need to advance their application for interim relief.

[40] The applicants know that the Inquiry proposes to interview or hear evidence from witnesses falling within the first two categories noted at [33] above in private, in accordance with the processes foreshadowed in the Inquiry’s Protocol. And in the absence of any more specific information about numbers and timing the Court hearing the application for interim relief will necessarily proceed on the assumption that:

(a) some or even all of those interviews will occur and that some or all of that evidence will be taken before the hearing of the substantive application for review; and

(b) the content of the information/evidence provided during those interviews will be relevant to those parts of the TOR in which the applicants have a particular, and legitimate, interest and will be of a kind that they wish to test.

[41] The challenge for the applicants will be to persuade the Court that their position will have been irreparably prejudiced if they later succeed in their substantive review application and the Inquiry has already undertaken such interviews or heard such evidence. Relevant to that, of course, will be the recently announced extension of the Inquiry’s final reporting date to 31 December 2019.

[42] The application for leave to administer interrogatories is declined on the grounds that:

(a) requiring the questions as presently (re)drafted to be answered by the Inquiry would give rise to a real risk that confidential and sensitive information would be disclosed in breach of the Inquiry’s rulings, in circumstances where the validity of the applicants’ challenge to those rulings has yet to be determined; and

(b) even if the questions can be reframed to avoid the difficulty in (a), the information sought is not necessary in order for the applicants to advance their application for interim relief.

[43] I acknowledge that there may be some practical benefit in generalised information about numbers and timing being made available to the applicants in advance of the interim relief hearing. To take the most obvious example, if it were the case that no interviews or evidence of the kind with which they are concerned would take place or be taken prior to the July hearing then the need for interim orders would fall away. But that is a matter for the Inquiry. It is not a reason to compel the Inquiry to provide such information and I decline to do so.

[44] I did not hear from counsel about costs, which I would place in the 2B category. Rule 14.8 of the HCR would appear to apply, at least by analogy. If agreement cannot be reached, memoranda may be filed.

__________________________

Rebecca Ellis J

[Scoop copy of judgment: fileDecision_47.pdf]

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