THE ATTORNEY GENERAL V PALMER HC AK CIV 2006-404-3197

THE ATTORNEY GENERAL V PALMER HC AK CIV 2006-404-3197 18 December 2006IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY CIV 2006-404-3197BETWEEN THE ATTORNEY GENERAL Appellant AND GRAHAM ASHLEY ROBERT PALMER Respondent Hearing: 9 November 2006 Appearances: A R Burns for appellant Respondent in person Judgment: 18 December 2006JUDGMENT OF ALLAN JSolicitors: Crown Solicitor Auckland Party G A R Palmer, PO Box 5419, Wellesley St, Auckland[1] This is an appeal against an oral judgment of Judge Sharp given in the Auckland District Court on 10 May 2006 in civil proceedings in which the respondent is plaintiff and the appellant is defendant. The judgment upheld an interlocutory application made by Mr Palmer in the District Court proceedings for disclosure to him by the appellant of a complete copy of an application for a search warrant sworn by Mr Peter Preece on 22 May 2001. [2] Although the appellant had provided a copy of the search warrant application to the respondent pursuant to his discovery obligations, the document so provided contained a number of excisions made by the appellant on the ground of public interest immunity, in that the excised passages were said to contain details of communications passing between Mr Preece and a police informer. [3] The appellant argues that the deleted portions of the search warrant application are subject to public interest immunity, that they are accordingly protected from disclosure and that the learned District Court Judge, in directing that an unexpurgated copy of the application be disclosed, erred in both law and fact.The search warrant[4] In May 2001 the respondent was a serving prisoner, incarcerated at Auckland Prison. On 22 May 2001, Mr Preece, at that time a senior forensic accountant attached to the Criminal Investigation Branch of the Auckland City District Police, made an application to a Deputy Registrar of the District Court under s 198 of the Summary Proceedings Act 1957 for a search warrant in respect of Mr Palmer's prison cell at Auckland Prison, and in respect of the residence of a Mr Jacobson at 2/188 Hillsborough Road, Hillsborough. The warrant application was made in reliance, at least in part, upon information provided to Mr Preece by an unnamed informant, but also on other information obtained by Mr Preece in the course of his investigation into the affairs of Messrs Palmer and Jacobson. The application for a search warrant was granted.[5] On 23 May 2001 members of the police executed the warrant at Mr Palmer's prison cell, and at Mr Jacobson's residence in Hillsborough. A number of documents and items of property were seized from Mr Palmer's prison cell, and from Mr Jacobson's residence, during the course of the searches. In the respondent's case, the items so seized included a Toshiba laptop computer containing some 300 legal files, a Canon printer, a full set of Brookers' loose leaf law books, a collection of law books on human rights issues, copies of legal documents passing between Mr Palmer and his counsel, and some items of software. The items seized from Mr Jacobson's residence likewise included computer equipment, software, and a number of legal documents. [6] Mr Palmer sought the return of the items so seized, and on 18 June 2001 he commenced District Court proceedings in which he alleged on a number of grounds that the search and seizure of documents and property from his prison cell, and from Mr Jacobson's residence, was unlawful. No prosecution followed upon the execution of the warrant. [7] Mr Palmer has reformulated his pleading on several occasions. Currently, his claim appears in a fourth amended statement of claim dated 1 December 2003, which alleges unlawful search and seizure and pleads, inter alia, fraud, abuse of process, breach of statutory duty, and breach of legal privilege. There are further claims in conversion and detinue. All told, Mr Palmer's claims are for a total of $114,946, although his claims overlap.The District Court hearing[8] On 2 February 2005, Mr Palmer made an application to the District Court for:Discovery of any affidavits and/or notes and/or written application(s) made by Peter Preece (accountant employed by the New Zealand Police) for the issue of search warrant(s) for – a. The plaintiff's prison cell at Auckland Prison on or about 23 May 2001. b. The residence of Brian Arthur Jacobson on or about 23 May 2001.[9] Counsel for the Attorney General responded to that application by indicating that there would be voluntary disclosure of the warrant application, but that any information which might lead to identification of the police informant would be excised. That position was taken also in the Attorney General's notice of opposition to Mr Palmer's interlocutory application. [10] Following an earlier interlocutory hearing, an expurgated version of the warrant application was made available to Mr Palmer in or about October 2005. [11] On 1 November 2005, Mr Palmer made an application to the District Court for an order directing discovery of a complete copy of the search warrant application, and of Mr Preece's notes. The grounds relied upon by Mr Palmer were as follows:(a) The Attorney General has supplied a copy of the affidavit/application for a search warrant sworn out by Mr Preece on 22 May 2001. Large amounts of the affidavit have been deleted for no apparent reason; (b) The plaintiff seeks disclosure of the full affidavit without deletions, or, in the alternative, the plaintiff makes application for the Court to examine the affidavit and determine what part of the affidavit may be released; (c) The plaintiff also seeks disclosure of an unedited version of the notes taken by Mr Preece following the various phone calls by Mr Keesing and others; and (d) The information is necessary to complete the amended statement of claim with accuracy.[12] Mr Palmer's application for disclosure of the unexpurgated version of the documents was expressed to rely upon rr 331 and 332 of the District Court Rules 1992. [13] The Attorney General relied upon public interest immunity in his notice of opposition dated 6 December 2005. A further similar application was made by Mr Palmer on 24 January 2006. This time he relied upon r 322 of the District Court Rules. The Attorney General filed a similar notice of opposition. [14] At the hearing of Mr Palmer's application for a disclosure order on 10 May 2006, counsel for the Attorney General, by consent, handed to Judge Sharp both theexpurgated and unexpurgated copies of Mr Preece's search warrant application and his associated notes. [15] After hearing from counsel and considering the written submissions relied upon, Judge Sharp granted Mr Palmer's application in respect of the search warrant application but declined it in respect of the notes. In the course of her oral judgment, the learned District Court Judge said:[5] I have carefully read Mr Preece's affidavit. It is a narrative of his investigation of the first and second plaintiffs. It contains information derived from others, one of whom is an unnamed informant, and the other of whom are private citizens who have either made complaints to the police or have given information to Mr Preece, but could not be said to fall into the category of 'police informer'. Everything that is referred to in the affidavit is in detail and much of it appears to be contained or drawn from perhaps Mr Preece's notes which are attached to it for the purposes of this hearing. [6] In any event, what is contained in the affidavit provides a good deal of reference to documents which either belong to Messrs Palmer and Jacobson or are official documents which have some connection to them, and about which they should know if they see a copy of this affidavit. I can see nothing in this affidavit which could be sheeted home to anybody who needs to keep their identity secret, or who in fact would be entitled to keep their identity secret. Many of the people mentioned would be required in any prosecution derived from the document and the search warrant which was consequently ordered, as I understand it, would be witnesses who are able to be summonsed in the normal course of events. [9] I am unable to see that Mr Preece's affidavit falls within the class of documents of itself privileged from production because it is a document containing information about statements made to the police in the course of a criminal investigation. These persons are not informers in the sense in which that term is usually used. Mr Preece was a member of the police and would have to have given or give evidence, or certainly be susceptible to summons in either prosecution or civil case. There appears only one informer in the traditional sense to whom reference is made in the document, and there is no name given to that informant. The people who are named are people who would normally be expected to give evidence if required. I repeat, however, much of the document is merely a narrative of Mr Preece's investigation of Mr Jacobson and Mr Palmer with reference to matters in which they had been involved and a trail of their movements. I cannot see how any harm could possibly be done to the national interest by disclosing that document and I cannot see that the administration of justice should be hampered by its non-production. I believe that the plaintiffs are entitled to see this document and I order that it be disclosed in its unexpurgated version.The law[16] It is common ground that a defence of public interest immunity is available in respect of communications between the police and police informers. Mr Burns, for the appellant, says it is available here. Mr Palmer argues that in the particular circumstances of this case it does not apply. [17] The principle that communications passing between police informers and the police ought to be protected from disclosure, is founded upon the notion that in certain circumstances the interests of the individual must be subordinated to the greater good of society. In this country, Stout CJ said in Coe and Simmonds v Simmonds (No.2) (1911) 30 NZLR 488, at 489:It may be that an injury is done to an individual by preventing him from suing a person who may have been an informer, but the interests of the State are greater than those of individuals; and it would be, in my opinion, a dangerous thing to say that all information received by the Government regarding crimes can be made public if a party chooses to sue another, and that the Government can be compelled to produce the information they have received. This might lead to great injury in the detection of crime.[18] More recently, Lord Simon in the House of Lords in D v National Society for Prevention of Cruelty to Children [1978] AC 171 at 232, explained the rationale for the doctrine of public interest immunity in this way:Then the law proceeds to recognise that the public interest in the administration of justice is one facet only of a larger public interest – namely – the maintenance of the Queen's peace. Another facet is effective policing. But the police can function effectively only if they receive a flow of intelligence about planned crime or its perpetrators. Such intelligence will not be forthcoming unless informants are assured that their identity will not be divulged: see Lord Reid in Conway v Rimmer [1968] AC 910, 953G- 954A. The law therefore recognises here another class of relevant evidence which may – indeed, must – be withheld from forensic investigation – namely, sources of police information: Rex v Hardy (1794) 24 State Transaction 199, 808; Hennessy v Wright 21 WBD 509, 519; Marks v Beyfus (1890) 25 QBD 494.[19] And in the same case Lord Diplock at 218 said:The public interest which the NSPCC relies upon as obliging it to withhold from the plaintiff and from the court itself material that could disclose the identity of the society's informant is analogous to the public interest that is protected by the well established rule of law that the identity of policeinformers may not be disclosed in a civil action, whether by the process of discovery or by oral evidence at the trial: Marks v Beyfus (1890) 25 QBD 494. The rationale of the rule as it applies to police informers is plain. If their identity were liable to be disclosed in a court of law, these sources of information would dry up and the police would be hindered in their duty of preventing and detecting crime. So the public interest in preserving the anonymity of police informers had to be weighed against the public interest that information which might assist a judicial tribunal to ascertain facts relevant to an issue upon which it is required to adjudicate should be withheld from that tribunal. By the uniform practice of the judges which by the time of Marks v Beyfus, 25 QBD had already hardened into a rule of law, the balance has fallen upon the side of non-disclosure except where upon the trial of a defendant for a criminal offence disclosure as to identity of the informer could be held to show that the defendant was innocent of the offence. In that case, and in that case only, the balance falls upon the side of disclosure.[20] An authority of particular assistance, because it likewise concerned an application for disclosure in the context of civil proceedings of a statement made to the police in criminal proceedings, is the decision of the Court of Appeal in Tipene v Apperley [1978] 1 NZLR 761. In that case Mr Apperley had pleaded guilty to a charge of receiving stolen property. He made a statement to the effect that he had obtained the property from Mr Tipene. That statement was read in open Court and reported in the Dominion newspaper. Mr Tipene sued for libel. He denied that he had stolen the property or given it to Mr Apperley. In the course of the libel proceedings, Mr Tipene applied for production of a copy of Mr Apperley's statement to the police. That application was resisted. [21] Certain principles may be distilled from the judgment of the Court of Appeal, delivered by Richardson J. Mr Burns set them out in his written synopsis; I am satisfied that they accurately capture what was said by Richardson J, and accordingly reproduce them below:(a) It is for the Court to balance the public interest considerations in determining whether or not disclosure of the documents should be required. (b) When balancing the public interest in preserving the confidentiality of documents as against the public interest in their disclosure in the administration of justice, it is necessary to weigh all public policy considerations that are relevant to the particular case.(c) What is required is an assessment of the various public interest considerations supporting non-disclosure in relation to the particular documents class of documents. So the first step is to analyse the particular documents to determine their character; having done so, to weigh the various public interest considerations which may be said to support non-disclosure of that category of document; then to balance that against the principle that disclosure should be required to satisfy the public interest in the administration of justice in the particular circumstances of the case. (d) The immunity to which Lord Simon was referring in D v National Society for the Prevention of Cruelty to Children is not absolute. There is an exception to the principle of non-disclosure where the personal liberty of the individual citizen is at stake and hinges on it. (e) With respect to the use of the term 'informer', a member of the public making a statement to the police in the course of a criminal investigation usually expects and is expected to give evidence at the trial if anyone is charged in respect of the matter and if his evidence is considered by the police to be relevant to the case. It is to be expected that in accordance with ordinary police procedures reference may be made to him by name and in a broad way to matters referred to in his statement when the police are interviewing other witnesses. He is not an informer whose identity must be kept secret at all costs; and (f) In the true informer situation, the reasons why the identity of the informer is protected from disclosure apply, at least in a general way, to any disclosure of the information given to him.[22] A useful recent summary of the principle and its practical ramifications is provided by the decision of the Supreme Court of Canada in Leipert v R [1997] 1 SCR 281; (1997) 143 DLR (4 th) 380:14. In summary, informer privilege is of such importance that it cannot be balanced against other interests. Once established, neither the police nor the court possesses discretion to abridge it. 15. The privilege belongs to the Crown: Solicitor-General of Canada v Royal Commission of Inquiry (Ontario Health Records), 1981 CanLII 33(SCC) [1981] 2 SCR 494. However, the Crown cannot, without the informer's consent, waive the privilege either expressly or by implication by not raising it: Bisaillon v Keable, supra at p 94. In that sense, it also belongs to the informer. This follows from the purpose of the privilege, being the protection of those who provide information to the police and the encouragement of others to do the same. This is the second reason why the police and courts do not have a discretion to relieve against the privilege. 16. The fact that the privilege also belongs to the informer raises special concerns in the case of anonymous informants, like those who provide telephone tips to Crime Stoppers. Since the informer whomthe privilege is designed to protect and his or her circumstances are unknown, it is often difficult to predict with certainty what information might allow the accused to identify the informer. A detail as innocuous as the time of the telephone call may be sufficient to permit identification. In such circumstances, courts must exercise great care not to unwittingly deprive informers of the privilege which the law accords to them.The appellant's position[23] Mr Burns notes that Judge Sharp concluded that the informant in respect of the excised portions of the document, was an "informer in the traditional sense". Accordingly, he submits, the deleted portions of the search warrant application must be characterised as falling within the class of document comprising communications between the police and a police informer. Mr Burns says this is a case of a true informer, to whose communications with the police confidentiality will be afforded. Moreover, as he points out, the District Court proceedings are civil and not criminal, and so the special exception to the presumption of non-disclosure does not apply. There is no question that Mr Palmer needs the unexpurgated version of the document in order to establish his innocence, because he is not relevantly charged with a criminal offence. [24] Mr Burns submits that the possibility that Mr Palmer may be impeded in his civil proceeding will not be sufficient to sway the balance, and accordingly, the decision of the learned District Court Judge was wrong. Mr Burns produced to me (as he did to the District Court Judge), copies of both the expurgated and unexpurgated versions of the search warrant application. He argued that disclosure of the latter version to Mr Palmer would be likely to enable him to identify the informer. He therefore submitted that the unexpurgated version of the search warrant application ought to be protected from disclosure, and the appeal ought to be allowed.Mr Palmer's position[25] Mr Palmer takes several points. First, he claims that the privilege does not apply because the informer's communication was made to Mr Preece, who wasunsworn. As Mr Palmer put it, the informer might as well have made his disclosures to the cleaning lady. There is no substance whatever in this point. The New Zealand Police maintain a significant staff of unsworn employees. There is no suggestion in any of the relevant authorities that the existence of privilege turns upon the precise status of the person to whom the communication is made. In my view it is sufficient that the disclosure is knowingly made by the informer to a duly authorised agent of the police. [26] Mr Palmer's second argument is founded upon his assertion that he knows who the informer is. He asserts that he is a Mr Keesing, a former prison inmate. Moreover, Mr Palmer claims that Mr Preece knew Mr Keesing at the time of the application for the warrant, and knew that Mr Keesing was his informant. Upon that basis, Mr Palmer argues that: a) Mr Keesing was not motivated by a desire to assist the police in the detection and prosecution of crime. Rather, he was pursuing a vendetta against Mr Palmer and was, in effect, stalking Mr Palmer as he had stalked a number of other persons. Indeed, Mr Palmer said Mr Keesing had been the subject of a long District Court trial, following which he was convicted of a number of offences associated with his stalking activities. b) Given Mr Keesing's asserted motives, he could not have any expectation of anonymity, or that privilege would attach to his communications to the police. c) Mr Keesing was in truth a complainant to the police, who must have expected that he would be called upon to give evidence, if necessary. [27] Accordingly, although Mr Palmer accepts the principle relied upon by the appellant, he argues that it does not apply to the alleged informer in this case. [28] Third, Mr Palmer argued that Mr Keesing did not appear on the police register of informers, and so the privilege does not extend to him.Conclusions[29] There are difficulties with Mr Palmer's second and third arguments. Mr Preece swore in his search warrant application that the identity of his informer was not known to him. So the assumption underpinning Mr Palmer's second argument is invalid. But in any event, even if Mr Palmer is right about the identity of the informer, and about his motives, it does not follow that the privilege is not available. Many, if not most, police informers, have motives of their own for assisting the police. Often informers will be driven by self-interest rather than a desire to assist in the prosecution of crime. Purity of motive is not a necessary ingredient of the right to privilege: R v Strawbridge [2003] 1 NZLR 683 at [42]. [30] Mr Palmer's argument about the contents of the register of informers founders at two levels. First, there is no evidence as to the identity of the informer. Second, the existence of a police register, and its contents, are entirely irrelevant to the question of whether the relevant communications are privileged. [31] In her judgment, Judge Sharp noted that no name was given in the search warrant application to the " one informer in the traditional sense to whom reference is made in the document " and that she could not " see how any harm could possibly be done to the national interest by disclosing that document [or] that the administration of justice should be hampered by its non-production". The fact an informer is not named cannot, of course, be determinative. As noted in R v Leipertdisclosure of information supplied by an informer may of itself identify the informer to at least some readers. [32] Further, the Judge's reference to "the national interest" implies that the Court enjoys a discretion to uphold or reject the privilege. In my view no such discretion exists, save in the very limited circumstances discussed in the authorities to which I have referred. [33] Informer privilege covers a situation of a true police informer who provides the police with a flow of information about planned crime, and those who commit it:R v Strawbridge at [40]. In this case, having read the unexpurgated version of thesearch warrant application, I am satisfied that the learned District Court Judge was right to conclude that the provider of the information was an informer in that traditional sense. That being so, it is implicit that the information was supplied under a cloak of anonymity, and upon the implied condition that nothing would be disclosed to Mr Palmer which might tend to reveal the informer's identity. [34] There can be no suggestion that Mr Palmer needs access to the information to establish his innocence. The District Court proceedings are civil and not criminal. Mr Palmer faces no charges.Result[35] In my view, the material contained in the unexpurgated version of the search warrant application is plainly the subject of public interest privilege, which the Court has no jurisdiction to over-rule. The appeal is accordingly allowed. The order of the District Court requiring production to Mr Palmer of the unexpurgated version of the search warrant application is set aside.Costs[36] The appellant is entitled to costs. The parties may file memoranda if they are unable to agree.C J Allan J