BUSHBY v R [2016] NZCA 527

BUSHBY v R [2016] NZCA 527 [7 November 2016]NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION ORIDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BYS 139 OF THE CRIMINAL JUSTICE ACT 1985.IN THE COURT OF APPEAL OF NEW ZEALANDCA174/2015[2016] NZCA 527BETWEEN ANTHONY CHARLES BUSHBYAppellantAND THE QUEENRespondentCourt: Wild, French and Winkelmann JJCounsel: R Vigor-Brown for AppellantI R Murray for RespondentJ B Opie for Hauora WaikatoJudgment:(On the papers)7 November 2016 at 2.30 pmJUDGMENT OF THE COURTThe application for a non-party disclosure hearing is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Wild J)[1] Mr Bushby is appealing against his convictions following a trial before Judge Spiller and a jury in April 2013 on eight charges of sexual offending against one complainant, arising from several incidents between March 2009 and the end of that year,1 and then again in May 2011.2 Mr Bushby denied any sexual contact with the complainant in 2009. He defended the 2011 charges on the basis that the victim had told him she was 18 years old.[2] Judge Spiller sentenced Mr Bushby to four years and eight months'imprisonment and ordered him to pay $3,000 in reparation.3[3] In order to advance his appeal, Mr Bushby seeks an order for disclosure ofthe complainant's medical records by Hauora Waikato, which treated the complainant for her mental health problems. The appellant seeks this information for two, overlapping purposes:(a) because it goes to what Mr Vigor-Brown described as "the essential issue whether the complainant's delusional thinking influenced her narrative of the alleged offending"; and(b) because Dr Peter Dean, an experienced forensic psychiatrist who wasretained by the defence for Mr Bushby's trial, needed the informationnow sought to assist him in determining whether the complainant'sdelusional thinking influenced her narrative of the offending. Dr Dean needs the material if he is to give evidence on that question in support of this appeal and any retrial ordered.[4] A brief of evidence was prepared for Dr Dean, based on a report he had prepared. That brief of evidence included these two paragraphs:1 Three charges of having sexual connection with a young person under 16 (Crimes Act 1961, s 134(1)) and one charge of doing an indecent act on a young person under 16 (s 134(3)).2 Three charges of receiving commercial sexual services from a person under 18 years of age (Prostitution Reform Act 2003, s 22(2)) and one charge of entering into a contract for commercial sexual services with a person under 18 years of age (s 22(1)).3 R v Bushby DC Hamilton CRI-2011-019-6748, 18 April 2013.28. A review of [the complainant's] contemporary medical notes wouldhave assisted me in the assessment of her mental state at the time of the alleged offending and a formal psychiatric assessment would have assisted me to determine her current mental state.29. Ms Breen's report [she is a clinical psychologist from whom thepolice had retained a report before the trial] does not explore whether the Complainant has any delusional thinking and whether this influenced her narrative of the alleged offending. The psychologist was not provided with details of the allegations and did not address this issue.[5] Defence counsel ultimately decided not to call Dr Dean for the defence, assessing that he could not usefully add to the significant amount of information adduced from the complainant under cross-examination, and in re-examination, as to her mental health problems.The test for disclosure[6] There is some disagreement between counsel as to the statutory framework under which we should deal with this application. We think the correct approach is to treat the application for disclosure as having been made under the Criminal Disclosure Act 2008, with this Court's jurisdiction to order disclosure found ins 389(a) of the Crimes Act 1961.4 Section 389 of the Crimes Act contains therelevant "supplemental powers of appellate courts" to order the production of a document, and was in force at the time this proceeding commenced in September 2011, so continues to apply to this appeal: Criminal Procedure Act 2011, s 397. The Criminal Disclosure Act came into force on 29 June 2009. For proceedings commenced after 1 July 2013, s 389 of the Crimes Act was replaced by s 335 of the Criminal Procedure Act. Section 335(e), which empowers appellate courts to order the production of any document, has not replaced the relevant parts of the Criminal Disclosure Act but rather operates in tandem with them.[7] Section 24 of the Criminal Disclosure Act provides for the process of an application for a non-party disclosure hearing. Under s 25, the Court may grant the application if satisfied the information sought is likely to be held by the relevant person or agency and all or part of the information appears to be relevant.4 That is the approach this Court took in Polyblank v R [2013] NZCA 208 and most recently inS (CA539/2014) v R [2016] NZCA 518."Relevant" is defined in s 8 as information "that tends to support or rebut, or has a material bearing on, the case against the defendant".[8] Section 389(a) of the Crimes Act provides the Court with a discretion to orderthe production of anything connected with the proceeding if it "appears to the Court to be necessary for the determination of the case".[9] Two features of this application are of particular importance. The first is that this is an application for non-party disclosure. The test to be applied on applications for non-party disclosure is a stringent one and is stricter than the Crown's disclosureobligations. It takes into account privacy interests.5 In Polyblank v R this Court stated the test in the following terms:6[10] the power to order third-party discovery under s 389(a) "is not lightly to be exercised". The need for caution arises from a number offactors, including:(a) the importance of finality in litigation, which is recognised by the fact that generally evidence will not be permitted to be adduced on appeal unless fresh, cogent and credible;(b) the need to ensure that only inquiries that are truly necessary to the fair disposal of the appeal are undertaken;(c) the need to protect confidentiality and prevent harassment of victims; and(d) the need for the efficient dispatch of the Court's business.[11] All of these factors are required to be considered in the overall context of a text which emphasises the interests of justice.[10] Second, Mr Bushby has already been convicted of the relevant charges so the low pre-trial relevance threshold7 does not apply. In post-conviction applicationsthere is a higher relevance threshold, requiring the applicant to lay a "realistic evidentiary foundation".8 The information sought must be relevant to a ground ofappeal such that it could impugn the safety of the appellant's convictions.5 See R v Medcalf [2013] NZCA 333 at [6] and S (CA539/2014) v R, above n 4 at [4].6 Polyblank v R, above n 4, at [10]–[11], see also Kumar v R [2015] NZCA 460 at [52].7 M v R [2015] NZCA 587 at [16], citing Wi v R [2009] NZSC 121, [2010] 2 NZLR 11 at [8].8 R v Nepia CA32/2000, 3 October 2000 at [18].Application[11] Given the nature of Mr Bushby's defences, as outlined in [1] above, thecentral issue in Mr Bushby's trial was whether the complainant's account wascredible and reliable. As we have mentioned, the jury heard a considerable amount of evidence about the complainant's mental health. Specifically, the jury heard thatfrom around the time of the 2009 offending she suffered from bulimia and depression; she was first taken to see a doctor about her mental health when she was 15 years old; she suffered visual and auditory hallucinations, including visions about witches; she had been diagnosed with some form of psychosis and was on medication for this and for depression; and she was receiving various forms of medical intervention for her mental health problems.[12] The following extracts from the transcript give the flavour of the evidence:Q Okay. What do you understand first episode psychosis to be?A Um, me to believe a lot of things and just hallucinate and have nightmares a lot.Q So that makes you believe a lot of things that aren't true. Is thatright?A What do you mean by that?Q Well is that what you're saying? Is that what you say psychosis is, believe a lot of things that aren't true?A Well as I say if someone told me that, you know, a cup that was seethrough wasn't see through I'd probably believe them if they put itin a decent way, yes.Q So it's seeing things that aren't there?A Yeah.Q Yeah. And hearing things that aren't there, is that right?A Yes.Q And it was in 2009 when you were 15 that you were first taken to themental health doctor about this, wasn't it?A Yes.Q It's about the time when you stopped seeing Mr Bushby is when you were diagnosed, isn't it?A Yes.Q You had been having visual and auditory hallucinations?A Yes.Q Yes, seeing things that weren't there, people in the TV. Is that true?Are you nodding?A Yes.Q Yes, hearing things that are not there, voices?A Yes.Q You were having visions also, weren't you?A Yes.Q Yes, what sort of visions?A About witches.Q About witches.A And a man.Q Witches and a man. How often are you having these visions?A I can't remember.Q You're not very well in early 2009, were you?A No.Q No, and you were given medication?A Yes.Q Fluoxetine?A Yes.Q Olanzapine?A Yes.Q Do you know what those drugs do?A No.Q` Do you know what Fluoxetine is?A Antidepressant.Q Antidepressant, yes. And do you know what Olanzapine is?A Antipsychotic drug, I don't know.Q So antipsychotic drug?A Yeah.[13] Mr Vigor-Brown submits all this evidence was a "lay person's discussion between trial counsel and the complainant" insufficient to enable the jury to consider whether the complainant's delusional thinking influenced her account of theoffending. It is for that reason that he maintains Dr Dean needs to see thecomplainant's medical records held by Hauora Waikato.[14] We are unable to see how access to the complainant's medical records could assist Mr Bushby's appeal. We have outlined in [11] the nature of the informationthe jury had about the complainant's mental health difficulties around the time of theoffending, and given two examples of it in [12]. The evidence was extensive and provided ample foundation for the defence submission that the complainant was not a credible and reliable witness, but one who had made false allegations as a result of her mental health problems. We do not see how further information about thecomplainant's psychosis could materially assist an assessment by a jury of the complainant's credibility and reliability. The power conferred on this Court bys 389(a) is not designed to enable an appellant to conduct a general investigation into the availability of a particular ground of appeal.9 Mr Bushby's application falls wellshort of the relevance threshold outlined in [7] and [10] above.[15] Additionally, we are anxious to avoid any unnecessary re-victimisation of the complainant as a result of having her medical records inspected. The Polyblank test provides that confidentiality and the need to protect harassment of the victim are matters to be taken into account. Those important public policy considerations also weigh against disclosure in this case.9 See R v Nepia, above n 8, at [18].Result[16] Mr Bushby's application under s 24 of the Criminal Disclosure Act for anon-party disclosure hearing is dismissed.Solicitors:Crown Law Office, Wellington for RespondentBuddle Findlay, Wellington for Hauora Waikato