McMURTRIE v NEW ZEALAND POLICE [2020] NZHC 2522

McMURTRIE v NEW ZEALAND POLICE [2020] NZHC 2522 [25 September 2020]IN THE HIGH COURT OF NEW ZEALANDCHRISTCHURCH REGISTRYI TE KŌTI MATUA O AOTEAROAŌTAUTAHI ROHECRI-2020-409-000108[2020] NZHC 2522BETWEEN NIKITA MARIE McMURTRIEAppellantAND NEW ZEALAND POLICERespondentHearing: 9 September 2020Counsel: M Brus for the AppellantS Bicknell for the RespondentJudgment: 25 September 2020JUDGMENT OF DOOGUE JThis judgment was delivered by Justice Doogueon 25 September 2020.Registrar/ Deputy RegistrarDate:Solicitors:Public Defence Service, ChristchurchCrown Solicitor, ChristchurchIntroduction[1] The appellant, Ms Nikita McMurtrie, faces one charge of assaulting police,1and two charges of resisting police.2[2] The charges stem from a police callout on 16 May 2020. Ms McMurtrie'scounsel made an application for an order for disclosure of any notations in the PoliceNational Intelligence Application (NIA) in relation to Ms McMurtrie, and a record ofwho accessed them at the time of the alleged offending.[3] On 7 August 2020, Judge Brandts-Giesen declined the application, and thisappeal is against that decision.[4] On the morning of the hearing I was provided with a wad of papers that counselfor the respondent asserted amount to complete discovery of all relevant informationheld in their possession on the issued considered relevant by the appellant. I was nottaken though them in any detail by either party. Therefore, I do not know whetherthey represent complete disclosure of not.Background[5] The presumption of innocence applies to Ms McMurtrie, and at this stage thefacts I now recite remain allegations.[6] On 16 May 2020, an associate of Ms McMurtrie called 111 as she wasconcerned about Ms McMurtrie, who was intoxicated and behaving erratically.An ambulance was sent to the address to assess Ms McMurtrie, and police alsoattended.[7] After the ambulance staff had checked her, police offered Ms McMurtrie a ridehome several times. She repeatedly refused and become "irate" and "angrier andangrier". Ms McMurtrie was warned of the possibility of arrest and again offered a1 Summary Offences Act 1981, s 10; maximum penalty six months' imprisonment or a $4,000 fine.2 Section 23(a); maximum penalty three months' imprisonment or a $2,000 fine.ride home. Ms McMurtrie again refused and began to yell, scream, and verbally abusepolice.[8] At this stage, Constable Lowry advised Ms McMurtrie that she was underarrest for disorder, and told her to place her hands behind her back. She refused andtried to walk away. Constable Lamb assisted, but Ms McMurtrie continued to resistarrest. She was taken to the ground so that she could be restrained. On the ground,she moved her hand so that police could not handcuff her. She tried to kick the officers,and told them they were assaulting her.[9] Constable Calder, who had been collecting Ms McMurtrie's belongings frominside the house, heard screaming and came out to see Ms McMurtrie fighting withConstables Lowry and Lamb. He assisted in Ms McMurtrie's arrest, and thethree officers escorted her to the patrol car where she was placed in the back seat.Ms McMurtrie continued to kick at police.[10] As Constable Lowry placed her seatbelt on her, Ms McMurtrie spat, hittingConstable Calder's arm. Constable Calder placed a spit hood on Ms McMurtrie.Constable Lowry sat in the backseat of the patrol car to read to Ms McMurtrie herrights. When asked if she had any questions about her rights, Ms McMurtrie yelled"fuck you guys". She then dislodged the spit hood and spat at Constable Lowry,hitting her in the side of the face.[11] When Constable Lowry tried to restrain Ms McMurtrie, she bit the Constableon the arm. Ms McMurtrie only released when Constable Lowry forcibly removedher mouth. She continued to struggle until she was placed in the cell in thecustody suite.[12] Ms McMurtrie raises self-defence, and maintains that the police usedunnecessary and excessive force to arrest her while she was receivingmedical treatment.The application[13] On 3 August 2020, counsel for Ms McMurtrie sought disclosure of"all prior NIA notations in relation to Ms McMurtrie (and record of who accessedthese at the time of the alleged offending)."[14] The application was made under s 30 of the Criminal Disclosure Act 2008(the CDA), on the grounds that: [the] information is relevant under section 8 of the Act. The NIA record initself has a bearing in this case as counsel has instructions noting previousdealings with police in the context of mental health incidents (and the allegedoffending occurred in the context of a mental health callout).[15] The police opposed the application by email.The District Court decision[16] The matter was not set for hearing, instead the Judge issued a brief decisionthrough the Registry which read:The police say there are no records of interactions between police anddefendant concerning mental health issues. Without times and dates beingsupplied, I consider any relevance let alone probative value will involveresources of the police greater than issue warrants.Jurisdiction on appeal[17] Section 33 of the CDA applies. This states:33 Appeals(1) The prosecutor or the defendant may appeal against a decision of acourt under section 30 or 31.(3) An appeal under this section –(b) may, in any other case, be made to the High Court with theleave of that court.(4) Subpart 2 of Part 6 of the Criminal Procedure Act 2011 applies to anappeal under this section with any necessary modifications.[18] The CDA does not specify the criteria upon which leave may be granted. InR v Leonard, the Court of Appeal specified a non-exhaustive criteria to be consideredin the round, in determining whether leave to appeal before the trial should be grantedor not.3The appellant's case[19] Ms McMurtrie's counsel submitted that the following factors favour grantingleave to appeal in this case:(a) there is conflicting authority covering the issue to be determined on theproposed appeal;(b) the application relates to an identified error of law;(c) the application involves the admissibility of evidence that is importantto one of the parties;(d) the matter cannot be adequately dealt with in any appeal afterthe trial; and(e) the proposed grounds of appeal are arguable.[20] Counsel for Ms McMurtrie submitted the information sought is relevant, andpolice failed to provide grounds for declining to provide the information.Counsel submitted the Judge erred by applying the wrong legal test under s 30 of theCDA[21] Counsel for Ms McMurtrie sought: an order for the disclosure of allinformation held on the NIA regarding Ms McMurtrie's previous interactions withpolice, an index of police officers who accessed her NIA profile on 16 May 2020, andany relevant complaints made against the officers; or, in the alternative, that the matterbe referred back to the District Court for proper consideration of Ms McMurtrie'sapplication under s 30 of the CDA.3 R v Leonard [2007] NZCA 452 at [13]-[14].The respondent's case[22] Counsel for the respondent submitted that the following factors point towardsrefusing leave to appeal:(a) the issue will need to be revisited at trial, or is best dealt with in thecontext of the trial;(b) the application involves the admissibility of evidence that would notmake a significant difference to the course of the trial, and is unlikelyto lead to post-conviction appeal success;(c) the issue is best dealt with in the context of any post-conviction appeal;(d) the application challenges a factual finding, which rests on anassessment of credibility;(e) the application challenges the exercise of a discretion, and leave shouldnot be granted unless there are grounds articulated which point to thefact that the Judge has, in exercising his discretion, acted on somewrong principle, has given weight to extraneous or irrelevant matters,has failed to give sufficient weight to relevant considerations, or isplainly wrong;(f) the appeal will cause unnecessary delay; and(g) the proposed appeal is without merit.[23] Counsel for the respondent submitted the information is not relevant, and theJudge's decision was correct.[24] In the event this Court does not refuse leave to appeal, counsel for therespondent submitted the appropriate response would be for the matter to be returnedto the District Court and set down for hearing.The lawRelevance[25] The governing principle of disclosure under the CDA is relevance.In criminal proceedings, the prosecution is required to disclose all relevantinformation, unless there is good reason to withhold it.[26] Relevance is defined in s 8 of the CDA: relevant, in relation to information or an exhibit, means information or anexhibit, as the case may be, that tends to support or rebut, or has a materialbearing on, the case against the defendant.[27] It is widely established that the threshold for relevance is low.In Polounina v Police, the Court approached the question of relevance by referenceto whether the information sought by the defence would help the defence case orhinder the prosecution case.4Additional disclosure[28] Section 14 of the CDA states: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—(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 itself4 Polounina v Police HC Auckland CRI-2011-404-91, 8 November 2011 at [32].prejudice 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.[29] Section 30 of the CDA provides: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—...(b) even though the information may be withheld under this Act,the interests protected by the withholding of that informationare outweighed by other considerations that make it desirable,in the public 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 to thedefendant under subsection (1)(b), the court may order that the itemor type of information be disclosed to the defendant.[30] The requirement that the Court be "satisfied" the defence is entitled todisclosure under s 30(2) does not import any standard of proof.5 However, in reachinga decision, the Court will:6 take into account the context in which ss 16 and 30 arise, including thepurpose of the Act to promote fair, effective, and efficient disclosure ofrelevant information, as well as the right to receive information.[31] Edwards v R involved an appeal against a District Court decision decliningMr Edward's application for further disclosure.7 Similar to Ms McMurtrie's situation,Mr Edwards was facing a charge of assaulting police and intended to defend this on5 Hutton v R [2018] NZCA 419 at [34].6 At [35].7 Edwards v R [2012] NZCA 375 at [1].the basis that he was acting in self-defence. Mr Edwards sought to have the details ofprevious Independent Police Conduct Authority (IPCA) complaints about the sergeantin question released, in order to present the possibility that the sergeant had apropensity to act with inappropriate violence towards suspects.8[32] The Court of Appeal concluded that the prosecutor had not provided sufficientmaterial to show the information sought was not relevant. Arnold J allowed the appealon the disclosure issue, stating:9In these circumstances, we consider that the prosecutor was required to dosomething more than is revealed in the record before us to identify thesupporting grounds for the decision to refuse disclosure. This might involve,for example, the prosecutor giving the court a more detailed description of theinformation at issue; or filing an affidavit from the police explaining the natureof the information; or, in some instances, submitting the information to thecourt for its consideration. By whatever mechanism it is done, however, thereis an obligation on the prosecution to give the grounds that support its reasonfor refusal.AnalysisIs the information relevant?[33] The information requested by Ms McMurtrie meets the threshold forrelevance. As well as establishing her propensity to engage positively with police, itmay also inform the subjective arm of the test for self-defence. The evidencerequested may support Ms McMurtrie's assertion that she had never had anydifficulties with the police before, and the conduct on the night in question was a shockto her, informing her perception of the circumstances of that evening.[34] Under s 14 of the CDA it is incumbent on police to provide reasons forwithholding the information sought. This was not done in this case. The grounds forrefusal, insofar as they were disclosed to the defence, were that nothing relating toMs McMurtrie's mental health was contained in the NIA notations.[35] Accordingly, the police have not only failed in their obligation to providegrounds under s 14(3)(b), but have also failed to ensure that the Court has sufficient8 At [9].9 At [22] (footnotes omitted).information before it to assess the supporting grounds, as is required by Edwards. Itis not enough to simply state the information is not relevant, without identifyinggrounds.The District Court decision[36] In declining Ms McMurtrie's application, the District Court held that theprobative value will involve resources of the police greater than the issue warrants.This decision is wrong in law. The Judge applied an incorrect test, and consideredfactors that are not provided for in the CDA.[37] At least on the face of it, the decision appears to be concerned with theEvidence Act 2006, and relevance and probative value according to ss 7 and 8 of thatAct. Probative value, as referred to in the Judge's decision, is not a threshold thedefence have to meet under the CDA. Whether or not the information sought willeventually be admissible at trial under the Evidence Act 2006 is a separate enquiry.[38] The decision is also wrong in fact. NIA notations are regularly accessed bypolice prosecutors in Court with no apparent difficulty. Simply printing thosenotations cannot be said to be so great a difficulty as to justify withholding thosenotations from Ms McMurtrie. Indeed, when I heard this matter, the police filed abundle of documents which were not characterised, identified, or analysed for theCourt's convenience.[39] As I understand it, an index of all officers who have accessed an individual'sNIA information is produced automatically. Ms McMurtrie seeks disclosure of thisindex for the night of 16 May 2020.Procedural failing[40] This matter should have been set down for a hearing, given the dispute betweenthe parties.[41] Section 30 of the CDA envisages a process by which parties can argue theirrespective cases before the Court, so that a decision can have the benefit of reasonedargument. In this case, the police should have been required to provide their reasonsand grounds in accordance with s 14 of the CDA.[42] This has not occurred in the current case and the procedural flaws havemanifested themselves in the overall decision. It does not appear that the DistrictCourt turned its mind to the low level of relevance required, the duty of the police toprovide fulsome reasons for refusal, or the purpose of the CDA to promote fair,efficient and effective disclosure of relevant information.Result[43] I refer the matter back to the District Court for proper consideration ofMs McMurtrie's application under s 30 of the CDA in the event that the bundle ofdocuments presented to the Court on the morning of this appeal does not constitutefull disclosure and does satisfy the appellant accordingly.Doogue J