CE OF ORANGA TAMARIKI — MIN FOR CHILDREN v P (CA565/2018) [2019] NZCA 403

CE OF ORANGA TAMARIKI — MIN FOR CHILDREN v P (CA565/2018) [2019] NZCA 403 [2 September2019]ORDER PROHIBITING PUBLICATION OF NAME, ADDRESS,OCCUPATION OR IDENTIFYING PARTICULARS OF P PURSUANT TOS 200 CRIMINAL PROCEDURE ACT 2011.NOTE: PUBLICATION OF NAMES, ADDRESSES, OCCUPATIONS ORIDENTIFYING PARTICULARS OF COMPLAINANTS PROHIBITED BYSS 203 AND 204 OF THE CRIMINAL PROCEDURE ACT 2011.NOTE: HIGH COURT SUPPRESSION ORDERS IN [2018] NZHC 2336REMAIN IN FORCE.IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA565/2018[2019] NZCA 403BETWEEN CHIEF EXECUTIVE OF ORANGATAMARIKI — MINISTRY FORCHILDRENAppellantAND P (CA565/2018)First RespondentTHE QUEENSecond RespondentHearing: 14 August 2019Court: French, Collins and Wild JJCounsel: S P Jerebine and L V MacKay for AppellantNo appearance for First RespondentR K Thomson for Second RespondentK H Cook as counsel to assist the CourtJudgment: 2 September 2019 at 2.30 pmJUDGMENT OF THE COURTA The appeal, which is moot and inappropriate for hearing, is dismissed.B There is no order as to costs.C Order prohibiting publication of name, address, occupation or identifyingparticulars of P pursuant to s 200 Criminal Procedure Act 2011.____________________________________________________________________REASONS OF THE COURT(Given by Wild J)[1] This was to be a moot appeal. The question for decision, as stated by the Courtin a minute issued on 5 December 2018 (the Minute) was:1Is broader "family dynamics" a proper reason at law to require disclosure ofdocuments relating to non-complainants for the reasons given in the judgmentof Mander J?[2] This appeal had its genesis in concerns by the appellant Oranga Tamariki (OT)as to the breadth of disclosure ordered by Mander J in the trial of the first respondent,P.2 OT's concerns focussed on the Judge's interpretation of the relevance criterion ins 29(1)(a) of the Criminal Disclosure Act 2008 (the CDA). OT was also concerned asto the manner in which P's application for disclosure was initially granted byGendall J, pursuant to s 25 of the CDA.[3] Some 2,955 pages of documentation were provided by OT to the Court.Counsel reached agreement as to about half these documents. Mander J orderedfurther disclosure of approximately 2,000 pages of documents. OT had to locate,assemble, redact and disclose this documentation — a very significant administrativetask.[4] P was charged with a number of violent and sexual offences against the eldestthree of his six children and against his former partner. The charges spanned the period2000–2014. Eventually, in order to preserve the trial fixture, the complainants agreedto the disclosure to P of the documentation Mander J had ordered OT to disclose.1 Chief Executive of Oranga Tamariki — Ministry for Children v [P] CA565/2018, 5 December2018 at [5] and [8].2 R v [P] [2018] NZHC 2336.[5] As this Court noted in the Minute, the complainants' agreement to disclosureof the OT documentation rendered this appeal moot, so that it could be abandoned.3As the Minute recorded, OT favoured the appeal proceeding as it wanted the Court toaddress its concerns as to the breadth of disclosure ordered by Mander J and by judgesin other cases where OT was ordered to disclose documents. The question set out in[1] above was the Court's attempt to synthesise OT's concerns as expressed tothe Court in submissions. We understand the Minute resulted from a comparativelybrief teleconference with counsel.[6] P's trial then proceeded and he has been convicted of the charges he faced.Ms Thomson informed us that the documentation Mander J had ordered OT to disclosehad been relevant in P's trial. For OT, Ms Jerebine accepted this meant she would besubmitting that Mander J erred in ordering disclosure of documents which had provedrelevant at trial. Not an easy proposition.[7] When this appeal came on for hearing before us, we had the benefit of detailedwritten submissions from OT, from the Crown, and from Mr Cook assisting the Court.In his submissions, Mr Cook reminded us of the established principles governing mootappeals. Applying those principles, he submitted this appeal was not one the Courtcould appropriately and helpfully entertain. The Court could not give the questionstated in the Minute a categorical answer which would hold good, regardless of thefactual context. Thus, Mr Cook submitted the answer to the question is "yes, in theappropriate case".[8] After debating the efficacy of proceeding with this appeal with Ms Jerebine,we were driven to the conclusion that the Court should not entertain the appeal.However, the concerns that led OT to appeal are very real. Ms Jerebine told us thatthere has been a significant increase in applications under the CDA seeking orders thatOT disclose documents to the defence in criminal trials involving charges wherethe complainants are children and young people who are or have been in the care ofOT.3 Chief Executive of Oranga Tamariki — Ministry for Children v [P], above n 1, at [4].[9] OT's concerns are these:(a) Applications under s 24 of the CDA are being made without:(i) the particularity required by s 24(3)(a) — applicants are notmeeting the requirement that they "describe with as muchparticularity as possible the information [they seek] to havedisclosed"; and(ii) the applicant explaining why the information it seeks isrelevant: s 24(3)(b).(b) Courts are nevertheless granting, under s 25, applications which do notcomply with s 24(3)(a) and (b). Courts are thus granting applicationswhen they cannot have been satisfied that the disclosure ordered is ofrelevant documents and is not overly wide.(c) As a consequence, OT is being placed under a substantial andincreasing burden in complying with disclosure orders made unders 25. OT does not have the power to raise its concerns with the courtsmaking these orders. It has no right to be heard at the ss 24–25 stage(although the court may seek written submissions from OT pursuant tos 24(5)).(d) In their determinations under s 29 of the CDA, following the non-partydisclosure hearings pursuant to s 27, Courts are not giving properweight to:(i) the "material bearing" relevance threshold in ss 8 and 29(1)(a);(ii) the "necessary in the public interest" requirement in s 29(1)(b)in relation to:• disclosure by OT of information about non-complainantchildren;• avoiding trial delays caused while unnecessarily widedisclosure applications against OT are worked through;• avoiding any unnecessary administrative burden and costto OT (this cost is irrecoverable); and• avoiding eroding OT's ability to collect information fromand protect and support vulnerable children and youngpeople, by ordering disclosure of a broad range ofinformation;(iii) the privacy interests of vulnerable children and young peopleunder OT's protection in material sought to be disclosed:s 29(3)(c); and(iv) any effect non-disclosure would have on the fairness of the trial:s 29(3)(d).[10] If OT wishes this Court to address these concerns, we suggest it take thefollowing steps:(a) OT should select about three or four cases in which a court has madedisclosure orders under the CDA which OT considers are unnecessarilywide. These cases should include at least the following fact situations:(i) charges alleging historic sexual offending against a child oryoung person in OT's care;(ii) charges alleging recent sexual offending against a child oryoung person in OT's care; and(iii) charges alleging different offending against a child or youngperson in OT's care, for example, physical violence or abuse.(b) OT should file appeals in those cases and apply to this Court to havethe appeals heard together and expeditiously (so as to avoid delayingthe trials). In respect of expedition, the Court confirms its undertakingto give these appeals all possible priority.[11] In the event OT takes these steps, the Court renews its appointment of Mr Cookas counsel to assist the Court. Mr Cook's brief would then be to:(a) assist OT to ensure appropriate cases are selected — appropriate in thesense that they provide the optimum range of fact situations as a basisfor the Court to address OT's concerns;(b) identify, if possible, an appeal relating to disclosure ordered from aDistrict Health Board or other mental health provider which raisesconcerns similar to those of OT set out in [9] above — we suggestMr Cook does this in conjunction with the Crown, and if such an appealcan be identified, arrange for it to be heard together with OT's appeals;and(c) appear, as he did at the hearing on 14 August, to assist the Court, inparticular with argument contrary to that presented by OT and anymental health provider appellant.[12] The appeal, which is moot and inappropriate for hearing, is dismissed.[13] No order as to costs is sought or appropriate.[14] In order to protect the identity of the complainants, we make an orderprohibiting publication of the name, address, occupation or identifying particulars ofP pursuant to s 200 of the Criminal Procedure Act 2011.Solicitors:Crown Law Office, Wellington for Appellant and Second Respondent