LINCOLN v POLICE [2023] NZHC 3084

LINCOLN v POLICE [2023] NZHC 3084 [1 November 2023]IN THE HIGH COURT OF NEW ZEALANDCHRISTCHURCH REGISTRYI TE KŌTI MATUA O AOTEAROAŌTAUTAHI ROHECRI-2023-409-136[2023] NZHC 3084BETWEEN RICHARD LINCOLNAppellantAND NEW ZEALAND POLICERespondentHearing: 7 September and 11 October 2023Counsel: Appellant in personR D Smith for the RespondentJudgment: 1 November 2023JUDGMENT OF HARLAND J[1] Mr Lincoln applies for leave to appeal a decision of the Christchurch DistrictCourt made on 4 July 2023 purportedly refusing to make an order of disclosure inrelation to a charge of intimidation the Police have laid against him which is currentlybefore that Court and which he denies. The ground of the appeal is that the DistrictCourt unreasonably and unlawfully refused to make an order of disclosure followingan application made by Mr Lincoln for certain disclosure he submits he requires toproperly prepare for trial. His application was filed on 9 January 2023. Mr Lincolnseeks an order directing the District Court to make the disclosure sought in hisapplication. He also seeks indemnity costs against the Police.[2] The application for leave to appeal is opposed. Both Mr Lincoln and Mr Smith,counsel for the Police, agree that the end result both seek is for Mr Lincoln'sapplication for disclosure to be remitted to the District Court to be determined. Thisincludes further disclosure sought by Mr Lincoln in his updated memorandum of 27September 2023.[3] I have decided not to grant Mr Lincoln leave to appeal for the reasons outlinedbelow.Background[4] Mr Lincoln faces one charge of intimidation laid under s 21(1)(e) of theSummary Offences Act 1981. The alleged offending occurred on 21 February 2022when he was attending the hearing of a charge laid against him of assault with aweapon. This charge was subsequently dismissed. The complainant in the charge henow faces was the officer in charge in that case.[5] Mr Lincoln has entered a not guilty plea to the charge but a substantive hearingdate in respect of it has not yet been allocated as the pre-trial procedures under theCriminal Disclosure Act 2008 (the Act) and the Criminal Procedure Act 2011 (CPA)are still in train.[6] On 4 July 2023, the matter came before Judge M J Callaghan for a case reviewhearing. Mr Power appeared as counsel for the Police. The Judge issued a minute. Init he recorded that:(a) Mr Lincoln had asked for the particulars relied on by the Police to supportthe allegation that his conduct was reasonably likely to frighten thecomplainant, but he noted that Mr Lincoln had not received anyparticulars;(b) as counsel then appearing for the Police had not had the opportunity toobtain instructions about the particulars sought, the Judge directed that theCrown serve and file the particulars it relied on by 21 July 2023;(c) a fixture with a nominal date of 29 August 2023 would be allocated; and(d) in the event Mr Lincoln did not receive the particulars, he could file amemorandum seeking that the matter be recalled prior to hearing,otherwise the charge would be set down for trial.[7] Mr Lincoln then applied for leave to appeal the Judge's decision. It becameapparent during the hearing before me on 7 September 2023 that a copy of thetranscript of the case review hearing was required because the Judge's minute did notrecord any issues to do with Mr Lincoln's application for disclosure which hecontended was discussed and raised with the Judge. I adjourned the appeal part-heardin order to obtain a copy of the transcript.[8] The transcript was obtained. It is very clear from the transcript that MrLincoln's application for disclosure was raised with the Judge but was not dealt withby him in his minute. There are various references in the transcript to Mr Lincoln'sapplication for disclosure. To provide context to the discussion that follows, I set outbelow the last page of the transcript at which the following appears:Mr Lincoln: Yes I have, Your Honour, and I have responded to that that thedisclosure that was asked for and that they undertook to providemust be provided, and could I clarify, Your Honour, are you,because there is an application before the Court for an order ofdisclosure – are your effusing to make that order at this point atthis juncture?The Court: Well, I have been told by Mr Power that it has been compliedby the way of the letter. I have not seen that information. Icannot make any orders until I see the information.Mr Lincoln: On the last memorandum that I filed in this court, Your Honour,which is current today, I asked the Court to make an order thatthe prosecution disclose the materials that were listed on theannexure to that memorandum.The Court: So that is the notebook entries for Bradley, Adcock, McDonald,Howards, Bates, Luff and Earl?Mr Lincoln: Yes, all of those things.The Court: "The source and author of the information that says that you arenot well thought of by the police and -" –Mr Lincoln: No, the –The Court: - any alerts". So some of those matters may not necessarily bediscoverable but that's up for the Police to decide. So –Mr Power: Yes Sir. I can say, Mr Smith is all, I think he's all over this, he'sresponded at length and he's aware of the issues, so if there'sanything else outstanding I'm sure he will attend to it.The Court: Okay, well perhaps, Mr Power, you could tell him that a memoshould be filed responding to the 28 May memo is it 28 May?Mr Power: It may well be Sir that he can address matters from the letter hewrote to Mr Lincoln on 25 May, which is three pages long.The Court: Right, okay.Mr Lincoln: If I may Your Honour, I will appear on the 29 August if that'sall the same to you. Because if I cannot obtain the order fordisclosure, I will be applying to the High Court for one instead.The Court: Okay, well, on 28-29 August, that is just a nominal date, and ifyou have any applications to make you need to file themindependently after you have received the information that MrSmith is going to do and the memo that he is going to file andserve on you, okay?Discussion[9] Section 33 of the Act provides the jurisdiction to appeal directions made by theCourt in relation to an application for disclosure under s 32 of the Act. It provides:33 Appeals(1) The prosecutor or the defendant may appeal against a decision of a courtunder section 30 or 31.(2) The defendant or the prosecutor or a non-party may appeal against adecision of a court under section 29.(3) An appeal under this section—(a) may be made to the Court of Appeal with the leave of that court, orto the Supreme Court with the leave of that court, if the order wasmade by—(i) the High Court; or(ii) the District Court in a proceeding for a category 3 offence afterthe defendant elected a jury trial:(b) may, in any other case, be made to the High Court with the leave ofthat court.(emphasis added)[10] It is common ground that s 33(1) applies in this case and that under subs (3)(b),Mr Lincoln first needs leave to appeal. As can be seen, the appeal must be against adecision of the Court. The key issue in this case is whether the District Court Judgemade a decision on Mr Lincoln's application for disclosure. If it did not, there wouldbe no grounds for granting leave.[11] There are several cases which, although not directly on point, provide someguidance on how to approach the issue in this case.[12] In Smith v R,1 Mr Smith had applied to amend certain charges he faced. ADistrict Court Judge declined to deal with his application. Mr Smith appealed to theHigh Court. Downs J held that there was no jurisdiction to appeal a "non-decision".He determined that, as Mr Smith's application had not been determined, it was stillbefore the District Court and able to be determined by it. Downs J noted there was noprejudice to Mr Smith because of this. The appeal was dismissed, but the purportednotice of appeal could also have been noted to be a nullity given the lack of jurisdictionto hear an appeal where no decision had been made.[13] Smith v R was noted and distinguished by the Court of Appeal in Lanivia v R.2In Lanivia, the Court of Appeal used Smith to contrast it with the situation then beforethe Court.[14] In Lanivia, the defendant faced a re-trial. He applied to exclude evidence thathad been allowed at the first trial. The Judge considered the evidence but decidedthere was no material change in circumstances which required him to reconsider theoriginal decision admit the evidence. This was held to be an appealable decision asthe Judge had reviewed the grounds of challenge in detail but did not accept thembecause he decided there was no change in circumstances. The Court held that thisdecision amounted to an order that the evidence sought to be excluded was in factadmissible. Therefore, the decision (an order) was amenable to appeal.1 Smith v R HC Hamilton CRI-2019-419-3, 18 February 2019.2 Lanivia v R [2019] NZCA 63.[15] The transcript reveals that Mr Power had been called in at short notice to appearas counsel for the Police at the case review hearing. Although, no doubt, there willhave been good reasons for this, it meant that Mr Lincoln's issues about furtherparticulars and disclosure were not able to be properly addressed because Mr Powerwas not sufficiently familiar with the file.[16] The case review hearing, as it related to disclosure, did not substantiallyadvance Mr Lincoln's application for disclosure as it ought to have. Very early on inthe discussion, Mr Lincoln referred to counsel for the Police not being in a position toaddress these issues as unacceptable and unreasonable, given that "this has been goingon forever, and still no initial disclosure". The Judge did not address this but begandictating his minute. In the minute, he directed that particulars be provided. Hedirected the Crown to file and serve them by 21 July 2023 which, at that stage, wastwo and a half weeks away. He then set the matter down for a two day Judge alonetrial, with a nominal date to confirm the hearing. In this regard, the Judge was assistingMr Lincoln, at least in part, because he had made a firm direction requiring particulars,he had ensured that the matter was on a path to a hearing and he had noted, if issuesremained, Mr Lincoln could file a memorandum at the nominal hearing dateaddressing them further.[17] Mr Lincoln however wanted a direction to be made about the disclosure he hadsought. In particular, he sought a direction (although not expressing it in quite thisway) that he be provided with the material included in the schedule he had attached tohis application for disclosure. He noted that this material was relevant to the issue ofcosts. He started to explain this, but the Judge intervened stating that costs were notsomething that would be of concern until the Judge alone trial had taken place.However, it appears from the transcript that Mr Lincoln had formed the view this wasnecessary because another Judge on an earlier occasion had indicated that the chargeand Mr Lincoln's costs application should be heard together. Mr Lincoln told theJudge that there would be a substantial amount of evidence to be heard in relation tocosts that would not necessarily need to be heard in relation to the defended charge.This issue, namely whether the costs application was to be heard at the hearing of thecharge, was not satisfactorily resolved at the case review hearing. It is relevant to MrLincoln's outstanding application for disclosure.[18] With respect to the Judge, it appears that he and Mr Lincoln were talking atcross purposes, not assisted by the fact that counsel appearing for the Police was notsufficiently familiar with the file.[19] The discussion then turned to various memoranda filed by Mr Lincoln, withMr Power making the observation that Mr Smith (counsel in charge of the prosecution)had responded to Mr Lincoln by letter addressing a number of matters. Mr Lincolnacknowledged that he had received and responded to the letter, but said the disclosurehe had requested had still not been provided. It was at this point that Mr Lincoln askedthe Judge whether he was refusing to make the order for disclosure.[20] After noting that Mr Power had said that the letter had complied with theapplication, the Judge made the observation that he could not make any orders untilhe had seen the material requested. Mr Lincoln referred the Judge to the memorandumhe had filed, with the annexure outlining the materials he sought. The Judge appearsthen to have looked at the memorandum because he observed that notebook entrieshad been requested and he proceeded to discuss, albeit briefly, other matters that heobserved may not necessary be discoverable. The matter was left on the basis thatcounsel for the Police should address these matters in the memorandum directed to befiled by 28 May 2023.[21] I have included a summary of the narrative of what occurred in detail becauseI conclude from it that the Judge did not make a decision about disclosure, rather, hedirected counsel for the Police to address it in the memorandum he directed was to befiled by 28 May 2023. The Judge also left open the prospect for disclosure issues tobe raised again on the date he had allocated in August should Mr Lincoln's queries notbe answered by the memorandum he had directed.[22] As there is not yet a decision on the application in the sense of either grantingor refusing it, leave to appeal cannot be granted because there is no decision fromwhich to appeal.Conclusion[23] The application for leave is dismissed, but I can understand Mr Lincoln's senseof frustration given the date of the alleged offending, the date of his application fordisclosure and the fact that his application was not advanced at the case reviewhearing.[24] When this matter was called before me on 11 October 2023, Mr Smith acceptedthat disclosure issues had properly been raised by Mr Lincoln on 4 July 2023 and thathis outstanding disclosure issues require resolution. Mr Smith also accepted that MrLincoln has now raised further disclosure issues which are reasonable and need to beaddressed. These are the matters raised by Mr Lincoln in his memorandum of 7September 2023. Without conceding the point, Mr Smith accepts that the mattersraised by Mr Lincoln are relevant to the defence case and his contention (not accepted)that the Police acted towards him with malice.[25] Mr Lincoln agreed with Mr Smith's suggestion that he set out in a singledocument his disclosure requests so that Mr Smith can ensure that it is properlyresponded to. If there are still matters outstanding after this, it is accepted that adisclosure hearing will be needed. There is no issue that, if a decision is made whichMr Lincoln does not agree with, he would then have the right to apply for leave toappeal.[26] I was advised that a hearing has been allocated in the District Court in February2024 to deal with Mr Lincoln's application under s 147 of the CPA. Any issues to dowith Mr Lincoln's disclosure application may well be able to be heard at that time.Result[27] The application for leave is dismissed. The matter is remitted back to theDistrict Court for Mr Lincoln's application for disclosure to be advanced.____________________Harland JCounsel:RPB Law, DunedinCopy to:R Lincoln, Appellant.