JOHNSON v R [2020] NZCA 643

JOHNSON v R [2020] NZCA 643 [14 December 2020]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA520/2019[2020] NZCA 643BETWEEN PHILLIP JOHNSONAppellantAND THE QUEENRespondentCourt: French, Gilbert and Collins JJCounsel: Appellant in PersonR K Thomson for RespondentJudgment:(On the papers)14 December 2020 at 9 amJUDGMENT OF THE COURTA The application for disclosure is declined.B The appeal is to be set down for hearing at the first available date withoutany further delay.____________________________________________________________________REASONS OF THE COURT(Given by French J)[1] Mr Johnson is appealing his conviction and sentence on two charges of maleassaults female. The appeal has not yet been allocated a fixture date.[2] Earlier this year, Mr Johnson applied unsuccessfully for an order requiringa police officer Constable Grove to attend the hearing of the appeal.1 Because that1 Johnson v R [2020] NZCA 491.application was declined, he has since filed another interlocutory application, this timefor disclosure. The application seeks disclosure of the following:(a) records of the last four years of police call outs to Mr Johnson's familyhome; and(b) a report of the Independent Police Conduct Authority (IPCA) followinga complaint made to the IPCA by Mr Johnson, which shows the numberof times Constable Groves "showed up" at Mr Johnson's home.[3] Mr Johnson advised that he did not have a copy of the IPCA report in questionbecause the IPCA had refused to give him a copy, despite the fact that it was a reportabout his complaint.[4] The application for disclosure was opposed by the Crown on the grounds oflack of relevance.2[5] The application for disclosure filed by Mr Johnson did not specify whichprovision under the Criminal Disclosure Act 2008 he was relying on.[6] The scheme of the Act is that any request for disclosure should first be madeto the prosecutor under s 14 and it is only if the prosecutor fails or refuses to disclosethe information that there is the right to apply to the court under s 30.[7] At a conference call, it was agreed that in order to give the Court jurisdictionto consider Mr Johnson's application, it would be treated as an application under s 14which had been declined by the Crown.[8] Following the conference call, the Crown made inquiries of the IPCA andascertained that the IPCA has received two complaints from Mr Johnson, both ofwhich complained of conduct by Constable Grove. After investigating eachcomplaint, the IPCA decided not to take any further action. It advised Mr Johnson of2 Criminal Disclosure Act 2008, s 14(2)(a).those outcomes in letters dated 29 January 2018 and 17 May 2019. The IPCA hasapparently agreed to send Mr Johnson copies of those letters again.[9] In light of that information, the application for disclosure of what isa non-existent IPCA report must fail.3[10] As regards the application for disclosure of records of police call outs,we consider the Crown is justified in refusing to disclose that information. The historyof Constable Grove's interactions with Mr Johnson and his family is not relevant tothe appeal. Constable Grove did not witness the incident between the complainantand Mr Johnson. Evidence that there was hostility between Mr Johnson andthe complainant was before the jury. The crucial issue on appeal is the significanceof recordings of the incident which were not before the jury and which Mr Johnsoncontends will show that he did not commit any offence.[11] The application for disclosure is declined.[12] We direct that the appeal is to be set down for hearing on the first availabledate without any further delay.Solicitors:Crown Law Office, Wellington for Respondent3 Sections 14(2)(b) and 16(1)(n).