COLIN HOWARD COOTE v NEW ZEALAND POLICE [2013] NZHC 2155

COLIN HOWARD COOTE v NEW ZEALAND POLICE [2013] NZHC 2155 [23 August 2013]IN THE HIGH COURT OF NEW ZEALANDNESLON REGISTRYCIV-2013-442-287[2013] NZHC 2155UNDER Part 19 of the High Court Rules 2008IN THE MATTER OF an application for leave to use documentsin another proceedingBETWEEN COLIN HOWARD COOTEApplicantAND NEW ZEALAND POLICERespondentTeleconference: 23 August 2013Counsel: D R Kalderimis for ApplicantNo appearance for RespondentJudgment: 23 August 2013JUDGMENT OF WILLIAMS J[1] I issued a minute on this matter on 21 August 2013 directing that the application be heard by teleconference today.[2] The applicant applies for leave to utilise documents discovered in separate civil litigation (now discontinued – CIV-2011-442-122) in criminal proceedings against him. He is charged with an offence against s 220 of the Crimes Act for failing to deal with funds held by a joint venture company in accordance with the requirements of the venture. He withdrew sums totalling $135,000 from thecompany's accounts. The documents are in two categories:(a) documents the applicant says demonstrate that the funds withdrawn were moneys he lent to the joint venture and that he was entitled to repayment; and(b) documents the applicant says demonstrate that Mr Royd was helping the promoters of the venture to conceal undisclosed profits of $500,000.[3] The applicant says these documents are relevant to his defence because they provide a lawful basis for the withdrawals and because they go to Mr Royd'scredibility and/or veracity. Any questions of admissibility will be dealt with by the District Court Judge at trial.[4] Rule 8.30(4) of the High Court Rules provides that documents discovered and inspected in proceedings under those rules may not be utilised for any other purpose. The authorities are however clear that with the leave of this court, that prohibition may be relaxed: see Wilson v White; Colin Crest Homes Plc v Marks.1Similar principles are considered in New Zealand in Telstra New Zealand Limited v Telecom New Zealand Limited2 in which this court took the view that leave would require special circumstances.[5] There can be no doubt that special circumstances exist in this case. I am satisfied that the material that is sought to be utilised is relevant and potentially probative in the criminal proceedings such that to deny the defendant the right to utilise it would be to compromise his fundamental fair trial right.[6] I note also that, despite having been served with the material, the police indicate they take no position on the application.[7] It is in order therefore for me to grant leave pursuant to r 19.10 to the applicant to commence his application by way of originating application, and to grant the application accordingly.___________________________Williams J1 Wilson v White; Colin Crest Homes Plc v Marks [1987] 3 WLR 293; [1987] 2 All ER 1074 (HL).2 Telstra New Zealand Limited v Telecom New Zealand Limited (2000) 14 PRNZ 541.