NOTTINGHAM v R [2019] NZCA 188

NOTTINGHAM v R [2019] NZCA 188 [30 May 2019]NOTE: DISTRICT COURT ORDER PROHIBITING PUBLICATION OFNAMES, ADDRESSES, OCCUPATIONS OR IDENTIFYING PARTICULARSOF CRIMINAL HARASSMENT COMPLAINANTS REMAINS IN FORCE.IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA472/2018[2019] NZCA 188BETWEEN DERMOT GREGORY NOTTINGHAMAppellantAND THE QUEENRespondentCA492/2018BETWEEN THE QUEENAppellantAND DERMOT GREGORY NOTTINGHAMRespondentHearing: 20 May 2019Court: Kós P, Peters and Mander JJCounsel: Mr Nottingham in personC A Brook for the CrownJ G Krebs as counsel to assist the CourtJudgment: 30 May 2019 at 11 amJUDGMENT OF THE COURTThe application is declined.____________________________________________________________________REASONS OF THE COURT(Given by Kós P)[1] After a lengthy jury trial in Auckland, the appellant was found guilty oftwo charges of breaching non-publication orders and five charges of criminalharassment. He was sentenced to 12 months' home detention and 100 hours'community work.1[2] The Solicitor-General has appealed Mr Nottingham's sentence on the basis itis, she says, manifestly inadequate. Mr Nottingham has appealed both conviction andsentence. These appeals are to be heard by Criminal Appeal Division on 25 June 2019.[3] On 13 March 2019 Mr Nottingham filed an application seeking orders forfurther disclosure from non-parties and the Crown pursuant to "the salient provisionsof the Criminal Procedure Act 2011".[4] The non-party disclosure application was considered by this Court anddeclined in a judgment dated 14 May 2019.2 This judgment deals with the applicationagainst the Crown. In practical terms this is an application underthe Criminal Disclosure Act 2008.[5] The relevant provisions of that Act are ss 14 and 30:14 Request for additional disclosure(1) At any time after the duty to make full disclosure has arisen undersection 13, the defendant may request that the prosecutor disclose anyparticular information, identified by the defendant with as muchparticularity as possible.(2) The prosecutor must disclose information requested by the defendantunder subsection (1) unless—(a) the information is not relevant; or(b) the information may be withheld under section 15, 16, 17, or18; or(c) the request appears to be frivolous or vexatious.(3) If a request under subsection (1) is declined by the prosecutor undersubsection (2), the prosecutor must, as soon as is reasonablypracticable after making the decision to decline the request, informthe defendant of that decision, together with—1 R v Nottingham [2018] NZDC 15373.2 Nottingham v R [2019] NZCA 154.(a) the reason for the decision; and(b) if the defendant so requests, the grounds in support of thatreason, unless the giving of those grounds would itselfprejudice the interests protected by section 15, 16, 17, or 18and (in the case of the interests protected by section 18) thereis no overriding public interest.(4) Nothing in this section limits the duty to disclose information undersection 13.30 Court order for disclosure of information(1) The defendant may apply to the court for an order that a particularitem of information or type of information in the possession or controlof the prosecutor be disclosed on the grounds that—(a) the defendant is entitled to the information under section 12,13, or 14, as the case may be, and—(i) the prosecutor failed to disclose the information; or(ii) the prosecutor refused under section 14, 16, 17, or 18to disclose the information, and—(A) none of the reasons described in section 16,17, or 18 for which information could bewithheld applies to the information; or(B) in the case of a refusal under section 17,the information ought to have been disclosedunder section 17(3); or(C) in the case of a refusal under section 18,the information ought to have been disclosedunder section 18(2); or(b) even though the information may be withheld under this Act,the interests protected by the withholding of that information areoutweighed by other considerations that make it desirable, in thepublic interest, to disclose the information.(2) If the court is satisfied, on an application made under this section, thatthe defendant is entitled to the disclosure of any particular item ofinformation or type of information, or that any particular item ofinformation or type of information should be disclosed tothe defendant under subsection (1)(b), the court may order that theitem or type of information be disclosed to the defendant.(3) An order made under this section may be made subject to anyconditions that the court considers appropriate.Application[6] The application against the Crown covers 12 discrete topics some of which areextensive in nature. The nature of the topics is set out in sufficient detail below, wherewe record, verbatim, the Crown's response to the application.[7] Mr Nottingham contends that this information is relevant and necessary todue consideration of the appeals on 25 June because the police did not properlyinvestigate the complaints made against him and there was a conspiracy includingpolice officers to "fit [him] up". The documents will assist him "build layers to showhow the investigative process went awry".Response[8] The Crown response is substantive and substantial, and we set it out in full:8. In summary, the Crown opposes the application in its entirety on thegrounds the information sought does not exist; Mr Nottingham is notentitled to the information under ss 12 to 14 of the CDA;the information has been properly withheld; or the information has infact been disclosed. Specifically:8.1 Information regarding fingerprinting (para 5).All information held regarding fingerprinting has beendisclosed. For Mr Nottingham's reference, the relevantdocuments were disclosed on 3 July 2015 (at pages 50 and 51of the material disclosed on that date, appearing in thedisclosure index at line 58) and 27 May 2015 (at pages 50 to56 of the material disclosed on that date, appearing in thedisclosure index at line 51).8.2 Text message (para 6). This has been disclosed. Phone datafrom 2Degrees Sim card 64222030400, which includedcommunications between [Mr J] and Dermot Nottingham,was disclosed on 22 April 2015 on a USB external hard drivecontaining electronic disclosure.8.3 Means of obtaining the text message (para 7). This has beendisclosed. The production order for communications with[Mr J] was disclosed on 24 April 2015 at pages 2019 to 2026and appears in the disclosure index at line 24.8.4 Requests for older communications data (para 8).The information sought does not exist. No such requests weremade by the Police.8.5 Crown/Police Guidelines (para 9). Mr Nottingham is notentitled to this information under ss 12 to 14 of the CDA. It isnot relevant, particularly as evidence was given (by way ofcross examination, and not in dispute) about the limitationson obtaining historical data. Whether there arePolice Guidelines to that effect, and whether they are accurateor not, is irrelevant.8.6 Communications with [Mr B] (para 10). Some of theinformation sought does not exist; that which does exist hasbeen disclosed. Detective Sergeant gave evidence at trial(repeating evidence given at a pretrial hearing) that his onlycontact with [Mr B] was receiving a phone call from him toadvise he had commenced civil proceedings against LaudaFinem. There has been no contact with [Mr B]'s lawyer butDS Litherland did have contact with a lawyer appointed bythe Court in civil proceedings involving [Mr B], AndrewGilchrist, at Mr Nottingham's request. Thosecommunications were disclosed by the Crown on 22December 2017.8.7 Communications with named persons (para 11). In respect of[Mr H] and [Mr G], there have been no communications andthe information sought therefore does not exist. [Ms H] is oneof the victims of Mr Nottingham's offending. Daniel Groveis her lawyer. There were obviously a number ofcommunications between the Police, Crown prosecutor, [MsH] and her lawyer, as the Police and Crown were required tokeep all victims updated with the progress of the prosecution.Mr Nottingham is not entitled to non-evidentialcommunications between the Police/Crown and victims. Allevidential material in respect of [Ms H] has been disclosedand of course she gave evidence at trial. The Police alsoserved a production order on Mr Grove and receivedinformation from him as a consequence. The productionorder was disclosed on 22 April 2015 (at pages 2052 – 2085,line 26 of the disclosure index). The material received underthe production order was disclosed on 27 May 2015 (at pages9 – 33, line 45 of the disclosure index).8.8 Communications with [Mr R] and [R Ltd] ([Mr R]'semployer) (paras 12(a)(i)-(v)). Mr Nottingham is not entitledto the information sought. [Mr R] was not a witness at trial(although he had made a statement and was at one stageanticipated to be called). Information about hiscommunications with Police is not relevant. By way ofcontext, Mr Philip Nottingham (Mr Nottingham's brother)unlawfully, and in breach of a direction by the court, provided[R Ltd] with information about [Mr R]'s criminal convictions.Mr Philip Nottingham also made complaints tothe South African authorities complaining about [Mr R]'songoing employment. That is what prompted thecommunications between [R Ltd] and the Police, it had norelevance to the charges against Mr Nottingham.8.9 Communications with the South African Real Estate AgentsAuthority Board and [Ms K] (paras 12(a)(vi)-(ix)).There have been no such communications and theinformation sought therefore does not exist.8.10 Statements of [Mr J] (para 13). [Mr J] has made twostatements to the Police. The first was made in the course ofa separate investigation, unrelated to the current charges.Mr Nottingham is not entitled to that statement as it is notrelevant. The second statement was made in the course of theinvestigation of the current charges and it was disclosed on17 December 2015 (at pages 51-55, line 81 of the disclosureindex). There are no "notes" relating to either statement.[Mr J] was not a witness at trial.8.11 Disclosure of a separate police file (para 14). This file relatesto the other investigation in which [Mr J] made a statement.Mr Nottingham is not entitled to disclosure of that file as it isnot relevant to this proceeding.8.12 Privileged communications (para 15). Mr Nottinghamappears to accept this information is privileged. It hastherefore been properly withheld under s 16(1)(j) of the CDA.(footnotes omitted)Discussion[9] As noted earlier, the Crown submission is substantive and substantial. It is alsocompelling. If the material now sought was relevant to culpability, it should have beensought and obtained before or at trial. If relevant to penalty, it should have been soughtand obtained before sentencing. Be that as it may, what matters most here is its utility(if any) to the appeals pending in this Court.[10] As to that, Mr Nottingham has entirely failed to persuade us that any of thematerial now sought is necessary for the due conduct of the appeals:(a) No case for further disclosure can be made in relation to items thateither do not exist or have already been disclosed. Those are items 5,6, 7, 8, 10, some of 11, some of 12, and some of 13.3(b) Mr Nottingham has neither established the relevance of the remainingitems 9, 11, 12, 13 and 14, nor the necessity for their disclosure for the3 The numbering is the paragraph numbers in the quotation at [8].due conduct of the appeals. In particular we note that neither Messrs Jand R gave evidence at all. Ms H did, but anyevidential communications with her have been disclosed.[11] We are satisfied, also, that item 15 has been duly withheld under s 16(1)(j) ofthe Act. We did not understand Mr Nottingham to contend otherwise.[12] This application is, therefore, an ill-assessed distraction from the issues onappeal. These must focus on the admissibility of the evidence adduced, the inferencesproperly to be drawn from that evidence and the directions given by the trial Judge,rather than on evidence neither before nor capable of being before the Court, or thebackground motives of those who did or did not give evidence, to the extent that wasnot already put in evidence. There is a limit. It has long since been crossed in thisapplication.Result[13] The application is declined.Solicitors:Crown Law Office, Wellington for Respondent in CA472/2018 and Appellant in CA492/2018