H (CA534/2017) v R [2017] NZCA 494

H (CA534/2017) v R [2017] NZCA 494 [31 October 2017]`ORDER PROHIBITING PUBLICATION OF NAME, ADDRESS,OCCUPATION OR IDENTIFYING PARTICULARS OF APPELLANTPURSUANT TO S 200 CRIMINAL PROCEDURE ACT 2011.ORDER PROHIBITING PUBLICATION OF THE JUDGMENT AND ANYPART OF THE PROCEEDINGS (INCLUDING THE RESULT) IN NEWSMEDIA OR ON THE INTERNET OR OTHER PUBLICLY AVAILABLEDATABASE UNTIL FINAL DISPOSITION OF TRIAL. PUBLICATION INLAW REPORT OR LAW DIGEST PERMITTED.NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION ORIDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BYS 203 OF THE CRIMINAL PROCEDURE ACT 2011.IN THE COURT OF APPEAL OF NEW ZEALANDCA534/2017[2017] NZCA 494BETWEEN HAppellantAND THE QUEENFirst RespondentTHE CHIEF EXECUTIVE OF THEMINISTRY FOR VULNERABLECHILDREN (ORANGA TAMARIKI)Second RespondentHearing: 12 October 2017Court: Gilbert, Venning and Wylie JJCounsel: G H Vear and R E V Slade for AppellantJ E L Carruthers for First RespondentS J Leslie for Second RespondentJudgment: 31 October 2017 at 3.00 pmJUDGMENT OF THE COURTA The application for leave to appeal is granted.B The appeal is allowed.C The application for non-party disclosure is remitted to the District Courton the basis set out at [50] in the judgment.D Order prohibiting publication of name, address, occupation oridentifying particulars of the appellant pursuant to s 200 of the CriminalProcedure Act 2011.E Order prohibiting publication of the judgment and any part of theproceedings (including the result) in news media or on the internet orother publicly available database until final disposition of the trial.Publication in law report or law digest permitted.____________________________________________________________________REASONS OF THE COURT(Given by Wylie J)Introduction[1] The appellant, H, faces 19 charges of sexual offending against thecomplainant, A. The offending is alleged to have occurred at one house between1 January 2015 and 14 July 2015, and at another house between 14 July 2015 and29 November 2015. At the time, H was aged 19 to 20 years; A was aged 10 to 11years.[2] H denies the offending, and maintains that the allegations made by A arefalse. He claims that A is a self-confessed and habitual liar.[3] H has applied for non-party disclosure from the Ministry for VulnerableChildren (Oranga Tamariki) (the Ministry) under the Criminal Disclosure Act 2008(the Act).[4] The Ministry holds voluminous documentation in relation to A. It hasaccepted that some of the information held by it may have some bearing on thealleged offending.[5] Judge McGuire in the District Court at Manukau, together with his researchcounsel, considered the information held by the Ministry. The Judge found that therewas some limited relevant information but declined to order that any of it bedisclosed.1[6] H seeks leave to appeal Judge McGuire's decision, pursuant to s 33 of theAct. He submits that the Judge:(a) erred by taking into account the probative value of the informationheld when assessing whether or not it is relevant;(b) failed to consider the various ways in which the information held bythe Ministry could be relevant;(c) failed to consider his fair trial rights; and(d) failed to consider whether disclosure could be made subject toconditions.Background facts[7] A has had a troubled upbringing and she has had extensive contact with theMinistry. She was placed in the care of her sister and her sister's partner. H isrelated to the partner. He used to visit each of the houses occupied by A, her sisterand the partner frequently, and he would reside with them from time to time. Theoffending is alleged to have occurred while he was staying at one or other of thehouses.[8] A request was made to the Ministry for disclosure of the information it heldabout A on 23 June 2017. The Ministry declined the application on the same day. Itconfirmed, however, that it does hold information in relation to A.1 [H] v Chief Executive of the Ministry of Vulnerable Children (Oranga Tamariki) DC ManukauCRI-2016-092-14573, 8 September 2017 [District Court decision].[9] An application for an order granting a hearing to determine whetherinformation held by the Ministry should be disclosed to H was made, pursuant to s24 of the Act, on 23 June 2017. The application sought a hearing in relation to thefollowing:(a) All information held relating in any way to the allegation ofoffending by the defendant against the complainant from 16th August2004 onwards;(b) All information held relating in any way to the allegation ofoffending by any other person(s) against the complainant from 16thAugust 2004 onwards;(c) All information held regarding the complainant which may have abearing in any way on the matter currently before the court,including all recorded information regarding her living and carearrangements, behaviour, education, psychological and/or cognitiveassessments, comments made by her or about her, and anyinformation of A lying or being dishonest about any matter — inparticular:(i) Any information around the complainant demonstratingbehavioural problems (including but not limited todishonesty or sexualised behaviour) prior to thecommencement of the alleged offending (1/1/2015-29/11/2015) before the court;(ii) Any information which may have a bearing on the veracityof the complainant; and(iii) Any information that may have a bearing on any defence thedefendant wishes to advance.[10] We were told from the bar that subparas (i), (ii) and (iii) in para (c) wereadded following discussion between H's counsel and Ministry representatives.[11] The s 24 application was considered by Judge McNaughton at a trial calloveron 29 June 2017. The Judge granted the application and directed that a non-partydisclosure hearing, pursuant to s 27 of the Act, be held on 9 August 2017.[12] On 19 July 2017 the Ministry requested that consideration be given to theappointment of an amicus to review the information held by it, because it comprisedsome 7,400 pages. This request came before Judge McGuire on 28 July 2017.[13] We have the transcript of the hearing which took place on 28 July 2017. TheCrown was represented at the hearing. So were H and the Ministry. The Ministryadvised that, in the usual course of events, it would have had one of its officersreview the information held by it to assist in identifying whether it containedanything of potential relevance, but given the quantity of material held, this had notoccurred. Notwithstanding the limited scope of the application before him and theearlier direction made by Judge McNaughton, Judge McGuire:(a) expressed surprise at the non-party disclosure application — herecorded that he had "stared at" it "in disbelief";(b) said that he was "horrified" by the application; and(c) raised concerns of a public policy nature, for example queryingwhether the criminal disclosure regime put in place one set of rulesfor those who have had dealings with the Ministry, and another set ofrules for others.The Judge did not deal with the Ministry's request. Rather he determined that hewould peruse the documents himself. The hearing scheduled for 9 August 2017 wasvacated.[14] Submissions were filed on behalf of H on 11 August 2017. Insofar as we areaware, no submissions were filed by the Crown or the Ministry. The parties were notgiven the opportunity to call evidence. There was no further hearing.[15] On 8 September 2017, Judge McGuire's decision was issued.District Court's decision[16] Judge McGuire stated that, with the assistance of research counsel, the 7,400pages of information made available by the Ministry had been "considered".2 He setout the categories of information sought by H, detailed the charges he faces, and2 District Court decision, above n 1, at [2].referred to s 29 of the Act. The Judge then recorded that he had identified a limitednumber of documents that he considered "rank for disclosure", namely:3(a) a single hand-written page relating to A's feelings about the allegedoffending and what she should have done about it. The Judgeconsidered that this document met "the relevance test of s 7 and s 8 ofthe Evidence Act [2006]".4 However, he determined that it should notbe disclosed as it did not contain anything not already covered in A'sevidential interview, and because of the importance of preserving trustbetween social workers and vulnerable children;(b) a disclosure by A that she had been told by her mother to lie about thefact that her mother had driven without a licence; and(c) a "Joint Investigation Plan" that contains a seven-line account of whatthe complainant says happened. It also sets out details of "who [was]to do what".5 The Judge again declined to direct disclosure of thisdocument, as he considered it contained nothing that was "relevant forthe purpose of ss 7 and 8 of the Evidence Act", and for the reasons setout in s 29(1) and (3) of the Act.6 The Judge noted that the JointInvestigation Plan refers to a medical examination of A. He recordedhis assumption that the doctor's report had already been disclosed.Application for leave to appeal[17] H, the Crown and the Ministry each have the right to appeal against JudgeMcGuire's decision made under s 29 of the Act.7 The decision was made on8 September 2017, and the appeal was brought by H within the requisite 10 workingday period specified in the Act.83 At [7].4 At [7].5 At [12].6 At [12].7 Criminal Disclosure Act 2008, s 33(2).8 Section 33(5)(b).[18] Leave to appeal to this Court is required.9 The considerations relevant to thegrant of leave are well-settled.10[19] The grant of leave in this case is not opposed by the Crown, except in relationto the merits of the proposed appeal, and we consider that leave should be granted.The appeal concerns the disclosure of documents which may affect H's fair trialrights, and the extent of any disclosure needs to be resolved prior to H's trial.Submissions[20] Ms Vear, on behalf of H, submitted that Judge McGuire erred in assessingrelevance under s 29(1) of the Act. She noted that he referred to ss 7 and 8 of theEvidence Act, and not the definition of relevance contained in s 8 of the Act. Shealso argued that it appears from the Judge's decision that he considered only onecategory of documents sought — namely those in relation to A's alleged propensityto lie. She noted that the Judge did not set out in his decision whether or notinformation in the other categories is contained in the Ministry's files. She alsoargued that the Judge failed to refer to H's fair trial rights, or to the other mandatoryconsiderations set out in s 29(3) of the Act.[21] Mr Carruthers, for the Crown, accepted that Judge McGuire's decision can beread as suggesting that he incorporated an assessment of the probative value of thematerial he was considering when undertaking his assessment of relevance unders 29(1), but submitted that it is unlikely that he in fact did so. He further argued thatthe Judge was aware of the various categories of information H was seeking, and thatthere is no basis to conclude that he improperly confined his analysis of thedocuments.[22] Ms Leslie, for the Ministry, criticised the width of H's application. Shereferred to the Ministry's role and its statutory responsibilities, and submitted that itis vital that the Ministry has access to all potentially relevant information relating tovulnerable children so that it can carry out its statutory functions. She argued thatthe court must take into account the nature and extent of the reasonable expectation9 Section 33(3)(a).10 R v Leonard [2007] NZCA 452, (2007) 23 CRNZ 624; Hohipa v R [2015] NZCA 73 at [27].of privacy in that information, and that privacy interests should be at their highestwhen medical or similar records are sought, or where the person whose records aresought is vulnerable. She argued that there is a public interest in protecting theconfidences of vulnerable children, and in ensuring that information collected for thepurpose of determining their necessary care and protection should not be used tore-victimise them in court hearings. She accepted, however, that in some cases theMinistry's records will contain material that is relevant to a criminal proceeding, andthat on occasion a defendant's fair trial rights will outweigh privacy interests and theassociated public interest in the non-disclosure of material held by the Ministry. Sheargued that where an application is for discrete categories of documents that areknown to exist, relevance can be squarely addressed, but that where disclosure issought on a very broad basis, an application should be declined on the basis that it iseffectively a "fishing expedition". She submitted that there was no error inJudge McGuire's decision.Analysis[23] In our judgment, H's application for non-party disclosure has miscarried atmultiple levels.The application[24] First, we consider that the application made by H is inappropriately wide.[25] Relevantly, s 24 of the Act provides as follows:24 Application for non-party disclosure hearing(3) The application must—(a) describe with as much particularity as possible theinformation that the defendant seeks to have disclosed, andstate the name of the person or agency that the defendantalleges holds the information; and(b) set out the grounds on which the defendant relies to establishthat the information is relevant; and(c) contain written evidence indicating that the defendant hasmade reasonable efforts to obtain the information from theperson or agency that the defendant alleges holds theinformation.[26] We have set out the categories of information sought by H above at [9]. Wehave not been given a copy of the application or of any other materials filed with it,and we do not know the grounds asserted as required by s 24(3)(b).[27] Relevance goes to the heart of a non-party disclosure application, and here,the application is so wide as to make any assessment of relevance difficult if notimpossible. By way of example:(a) The complainant, A, was born on 16 August 2004. The applicationseeks all information held relating in any way to allegations ofoffending against A or bearing in any way on the matter before theCourt from the date of her birth. The offending is not alleged to haveoccurred until, at the earliest, 1 January 2015. It is difficult to seewhat relevance information relating to A's life that is not at leastreasonably proximate to the alleged offending could have.(b) Paragraph (b) of the application seeks all information held relating inany way to "the allegation" of offending by any other persons fromthe date of the complainant's birth. There is nothing to suggest thatthere is any allegation of offending by others.(c) The application — in both paras (a) and (b) — requests "allinformation held relating in any way to ". This casts the net verywide.(d) The application — in para (c) — seeks "all information held regardingthe complainant which may have a bearing in any way on the matter"before the court. This is so wide as to be meaningless. It cannot beproperly assessed by the Ministry as the body holding the informationor by the District Court when determining the non-party disclosureapplication.(e) Paragraph (c)(iii) seeks any information which may have a bearing onany defence H wishes to advance. H is under no obligation todisclose his defence,11 but the way in which his application has beendrafted puts the Ministry and the Court in an impossible position.They cannot be expected to hazard a guess as to what H might wish toadvance at trial.[28] We agree with Ms Leslie that an application in very broad terms invites theconclusion that it is nothing more than a fishing expedition, and that the applicanthas no proper grounds on which to rely in seeking to establish that the informationsought is relevant. A non-party disclosure application which is no more than afishing expedition is not permitted.12[29] A very wide application places the non-party in a difficult position. It isrequired to identify materials it holds that correspond to the information sought. Itcan be called on by the court to advise in this regard, and to comment on the likelyrelevance of the information to the anticipated proceedings.13 It cannot, however,apply for costs, and must itself bear the costs of compliance.The s 25 hearing[30] Section 25 of the Act provides as follows:25 Determination of application for non-party disclosure hearingIf a defendant makes an application in accordance with section 24,the court may grant the application if—(a) it is satisfied that all or part of the information that thedefendant seeks—(i) is likely to be held by the person or agency that thedefendant alleges holds the information; or11 M v R [2015] NZCA 587, (2015) 27 CRNZ 807 at [17].12 Alshamani v Auckland District Health Board [2017] NZCA 388 at [2]–[3]; S (CA539/2014) v R[2016] NZCA 518; Kumar v R [2015] NZCA 460; Polyblank v R [2013] NZCA 208.13 Criminal Disclosure Act, s 24(5).(ii) is likely to be held by another person or agency; and(b) all or part of the information appears to the court to berelevant.[31] Both Ms Vear and Ms Leslie submitted that, ideally, the scope of anyapplication made should be considered when it first comes before the court unders 25.[32] We agree that generally this will be appropriate. The section gives the courtthe discretion to grant an application, but only if, among other things, all or part ofthe information sought appears to the court to be relevant. The court at this stage hasa gatekeeper role. It must necessarily make an enquiry — albeit a low-level enquiry— into this threshold issue before determining whether or not to grant theapplication for a non-party disclosure hearing.[33] At the s 25 stage, the court will not necessarily have submissions from theperson or agency said to hold the information. As noted above, the court does havethe power under s 24(5) to seek and consider written submissions from that person orentity, if it believes, among other things, that that person or entity has knowledge ofthe information's likely relevance to the proceedings. Faced with a wide-rangingapplication, it will often be appropriate for the court undertaking the s 25 preliminaryhearing to call for written submissions from the person or agency alleged to hold theinformation before reaching its preliminary conclusion on the apparent relevance ofthe information sought.[34] In the present case, Judge McNaughton directed a non-party disclosurehearing. The Ministry had concluded that the information held by it might havesome bearing on the offending alleged. The Judge must have been satisfied that allor part of the information had some apparent relevance. His decision has not beenappealed.[35] The s 25 determination was only a preliminary hearing into apparentrelevance. The issue of relevance is not foreclosed by the direction for a non-partydisclosure hearing. That hearing also calls for a determination of relevance and theissue could have been revisited at that hearing, if one had been held.The s 27 hearing[36] Relevantly, s 27 provides as follows:27 Non-party disclosure hearing(1) The following persons may call evidence or make submissions inany non-party disclosure hearing:(a) the prosecutor:(b) the defendant:(c) the person or agency who the defendant alleges holds theinformation sought by the defendant:(d) any person or agency who has been served with a copy ofthe application under section 26(1) or (2):(e) with the leave of the court, any other person who may beaffected by, or have an interest in, any order that the courtmay make under section 29.[37] Section 29 provides how non-party disclosure applications fall to bedetermined, but only "[a]fter the hearing under section 27".14[38] Here, Judge McGuire did not hold a s 27 hearing.[39] It is clear from the transcript of what occurred on 28 July 2017 that it was nota s 27 hearing. The parties were not in a position to proceed to the s 27 hearing onthat day. They were before the Court to consider the Ministry's request for theappointment of an amicus. None of them had prepared submissions for thenon-party disclosure hearing. Counsel for H and for the Crown did not have theirfull files with them. The Judge moved directly to deal with the matter under s 27(2)by indicating that he would himself examine the information held by the Ministry.He had that jurisdiction under s 27(2), but he erred by proceeding to a substantivedecision on the application under s 29 without hearing further from the parties.[40] The truncated process adopted was not in accordance with the Act. Theparties were not afforded the opportunity to make submissions on disclosure or to14 Section 29(1).call evidence on the issue. This was contrary to the status afforded to them bys 27(1); each had the right to call evidence and to make submissions. There shouldhave been a proper non-party disclosure hearing once the Judge had examined theinformation held by the Ministry.[41] We have other reservations about the way in which the Judge dealt with thematter.[42] Section 29(1) and (3) provide as follows:29 Determination of court following non-party disclosure hearing(1) After the hearing under section 27, the Judge may order the personor agency who holds the information to disclose it, or part of it, tothe defendant, subject to any conditions imposed under subsection(4), if the Judge is satisfied that—(a) the information or part of it is relevant; and(b) the disclosure of the information or part of it is necessary inthe public interest.(3) In addition to subsections (1) and (2), in determining whether toorder the disclosure of the information or part of the information tothe defendant, the Judge must take into account—(a) the extent to which the information will assist the defendantto properly defend the charge; and(b) the probative value of the information; and(c) the nature and extent of any reasonable expectation ofprivacy with respect to the information, including anyexpectation of the person to whom the information relates;and(d) the effect of the determination on the fairness of the trial orhearing process.[43] The Judge recited the application in his decision. He did not narrow it in anyway. He can only have determined relevance under s 29(1)(a) by reference to thecharges faced and the information sought. We repeat our comments above. Wecannot see how the Judge could properly have concluded that only three documentswere relevant, given the width of the application. We agree with Ms Leslie that thewidth of the application is such that all information held by the Ministry relating toA and her siblings is potentially within its scope. The Judge's finding that only threedocuments were relevant strongly suggests that he misconstrued the concept ofrelevance in determining the application.[44] The word "relevant" is defined in the Act as follows:8 Meaning of relevantIn this Act, relevant, in relation to information or an exhibit, meansinformation or an exhibit, as the case may be, that tends to support orrebut, or has a material bearing on, the case against the defendantJudge McGuire did not refer to this definition in his decision. Rather, he recordedthat the documents met the relevance test set out in ss 7 and 8 of the Evidence Act.[45] The definition in s 8 of the Act accords with the definition of relevance ins 7(3) of the Evidence Act.15 However, s 8 of the Evidence Act, referred to by theJudge, is not directed at relevance. It is directed at probative value and unfairprejudice — both admissibility issues. The question before a Judge at a s 27 hearingis whether the information should be disclosed for the purposes of the preparation ofa defence. That is conceptually different from a decision on whether identifiedrelevant evidence is admissible at trial.16[46] We agree with Ms Vear that it appears from the decision that the Judge, whenassessing the identified documents for relevance, factored their probative value intohis relevance assessment. In our judgment, he erred in doing so. Section 29(3)(b) ofthe Act does require that the probative value of the information sought beconsidered, but this is in addition to the relevance assessment required by s 29(1)(a).The Judge conflated the two issues, and he set the bar too high when undertaking thes 29(1)(a) assessment. He may well have excluded other relevant documents as aresult.[47] The Judge made no reference to the extent to which the information heidentified as relevant would assist H to properly defend the charges he faces. The15 M v R, above n 11, at [16].16 R v Medcalf [2013] NZCA 333 at [28].purpose of the Act is promote the fair, effective and efficient disclosure of relevantinformation, not only by the prosecution and the defence, but also by non-parties, forthe purposes of criminal proceedings.17[48] The Judge did cite privacy and confidentiality concerns in declining to directdisclosure of the documents he identified as relevant. He was entitled to do so:(a) Section 29(3)(c) of the Act refers to the nature and extent ofreasonable expectations of privacy in the information sought. Thiswill often be a relevant and important consideration. Privacyexpectations may, however, have to yield to fair trial considerations inappropriate cases, and the Act allows the Court to protect disclosedinformation by putting conditions on its disclosure.18(b) There is a public interest in protecting the confidences of vulnerablechildren. Confidences and privacy interests will be at their greatestwhere medical or similar records are sought,19 or where the personwhose records are sought is vulnerable.20 Material gathered by theMinistry from complainants in sexual offending cases will often fallwithin this category.21 These matters can be considered unders 29(1)(b). Again, however, the public interest in protectingconfidence, even of vulnerable children, may have to yield to fair trialconsideration in appropriate cases.[49] The Judge did not, however, refer to the effect his determination might haveon the fairness of H's pending trial. This was a mandatory consideration unders 29(3)(d) of the Act. The Judge should have recognised that fair trial rights are amatter of public interest that justify disclosure where they are engaged.2217 Criminal Disclosure Act, s 3(1).18 Section 29(4).19 Alshamani v Auckland District Health Board, above n 12, at [4]; S (CA539/2014) v R, aboven 12, at [7]; Kumar v R, above n 12, at [61]; H (CA319/2015) v R [2015] NZCA 400 at [49].20 S (CA539/2014) v R, above n 12, at [7]; Kumar v R, above n 12, at [61].21 See for example Polyblank v R, above n 12, at [13].22 Pham v R [2016] NZCA 445 at [24].Result[50] In our judgment, the non-party disclosure application must be remitted to theDistrict Court. The procedural requirements set out in s 26 of the Act should befollowed, to the extent that this has not already occurred, and a non-party disclosurehearing should take place in accordance with the requirements of the Act.[51] The application for leave to be appeal is granted. We allow the appeal, andremit the non-party disclosure application back to the District Court for re-hearing.[52] So as to protect the identity of A, we make an order prohibiting publication ofname, address, occupation or identifying particulars of the appellant pursuant tos 200 of the Criminal Procedure Act 2011.[53] For fair trial reasons, we make an order prohibiting publication of thisjudgment and any part of the proceedings, including the result, in news media or onthe internet or other publicly available database until final disposition of trial.Publication in a law report or law digest is permitted.Solicitors:Public Defence Service, Manukau for AppellantCrown Law Office, Wellington for First and Second Respondents