Photographer loses balloon tragedy case

The Somerset Road site of the fatal hot air balloon crash in Carterton. File photo / NZME.

A photographer who captured the fatal Carterton hot air balloon tragedy has lost an application to overturn a coroner's decision to release some of his images to the media.

Geoffrey Walker, a photographer for 30 years, had a long-standing agreement with the balloon company to shoot pictures of the hot air balloon rides to sell to passengers after the flights. He was following the balloon ride when it hit electricity lines and crashed into farm land near Carterton in January 2012.

He called emergency services and captured the final moments of the balloon and all 11 people on board as it crashed and went up in flames.

He then arranged with police to take photographs of the scene as police evidence, agreeing that ownership and copyright of the photos leading up to that point were his, but the ones after that would belong to police.

Mr Walker submitted all his images from that day to police to use as evidence, and they were subsequently given to the coroner for an inquest held earlier this year.

Coroner Peter Ryan initially suppressed all images, but later overturned that decision to allow four selected photographs to be released to the media. However, Mr Walker challenged that decision, taking it to the High Court, saying it breached his copyright and the coroner had erred in his decision.

In his application to the court, his legal team said: "There is an assumption that the absence of a suppression order positively prohibiting publication is the presence of a right to publish what is otherwise protected property."

However, Justice Alan MacKenzie ruled the public has a right to view evidence presented at an inquest.

"Because every inquest must be open to the public, it follows that any evidence given at an inquest is also open to the public," he said in his decision, released today.

Owning copyright of an image "does not confer a privilege or immunity preventing a witness from giving evidence", Justice MacKenzie said.

"Copyright is therefore not a ground for refusing to produce a document under compulsion. That reinforces the conclusion that copyright is not a relevant consideration for the making public of evidence which is voluntarily produced."

However, he noted that "nothing in this decision is intended to express any view on whether, when copies of the photographs are made available to any media organisation, any use of them will be protected by the Copyright Act 1994."

A Transport Accident Investigation Commission (TAIC) report into the crash found errors made by pilot Lance Hopping, 53, ultimately resulted in the fatal crash on the day.

It also established he had cannabis in his system at the time of the accident.

The release of the photos has been postponed until 5pm on November 4 to allow for a potential appeal to be lodged.