SAMI v POLICE [2021] NZHC 3563

SAMI v POLICE [2021] NZHC 3563 [21 December 2021]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2021-404-365[2021] NZHC 3563BETWEEN VIJAY SAMIAppellantAND NEW ZEALAND POLICERespondentHearing: 29 November 2021Appearances: D P Nairn for AppellantN D Cartwright for RespondentJudgment: 21 December 2021JUDGMENT OF PAUL DAVISON JThis judgment was delivered by me on 21 December 2021 at 12.30pmRegistrar/Deputy RegistrarSolicitors:Kayes Fletcher Walker, AucklandIntroduction[1] Mr Vijay Sami (the appellant) appeals a pre-trial decision by Judge Harvey inthe Manukau District Court on 27 July 2021 in which the Judge declined theappellant's application for a disclosure order under s 30 of the Criminal DisclosureAct 2008 (the Act).1 The order sought by the appellant would have required the policeas prosecutor to confirm whether or not they intended to produce and play theappellant's DVD police interview at trial.[2] The appellant faces one charge of assault with a weapon2 and one charge ofassault in a family relationship,3 both arising from the same incident occurring on 12January 2020. The complainant is the appellant's former partner. The appellant wasarrested that same day and agreed to undertake a voluntary police interview which wasrecorded on DVD.[3] The appellant first appeared in the District Court at Manukau on 13 January2020. He entered pleas of not guilty and was remanded on bail for a case reviewhearing on 30 April 2020. On 8 April 2020, counsel for the appellant requested thePolice to provide prosecution disclosure and a list of prosecution witnesses. On 25April 2020, counsel for the appellant filed an application seeking an order fordisclosure of a formal witness and exhibit list. The application was determined anddismissed by Judge Phillips on 16 October 2020 in circumstances where theappellant's counsel failed to appear at the hearing.[4] On 25 May 2021, in anticipation of a Judge-alone trial scheduled for 10 June2021, the Police prosecutor disclosed a further witness and exhibit list to the appellant.The exhibit list referred to the appellant's Police DVD interview as follows:3. DVD interview (prosecutor to determine whether played or not)[5] A Judge-alone trial scheduled for 4 November 2021 was recently adjourneddue to COVID-19 restrictions. A new date for trial is yet to be scheduled.1 Police v Sami [2021] NZDC 15184.2 Crimes Act 1961, s 202C(1)(b): maximum penalty five years' imprisonment.3 Crimes Act, s 194A: maximum penalty two years' imprisonment.Leave to appeal[6] The appeal is brought under s 33 of the Act, which provides that a defendantmay, with leave, appeal to the High Court against a decision concerning a disclosureorder.4 In a minute dated 15 October 2021, Gordon J directed that the appellant'sapplication for leave to appeal should be heard at the same time as the appeal itself.5[7] The provisions of the Criminal Procedure Act 2011 (CPA) governing pre-trialdecisions apply. Section 221 of the CPA requires the first appeal court to determinethe appeal by:(a) confirming the decision appealed against; or(b) varying the decision appealed against; or(c) setting aside the decision appealed against and making any other orderit considers appropriate.[8] An appeal against a pre-trial decision to decline a disclosure order is a generalappeal. The relevant factors to be considered in relation to applications for leave toappeal a pre-trial decision have been set out by the Court of Appeal in R v Leonardand Hohipa v R. 6 In R v Leonard the Court of Appeal said:[13] Factors pointing towards the granting of leave include:(a) The argument is based on a novel point or is of significancefor other cases;(b) There is conflicting authority covering the issue to bedetermined on the proposed appeal;(c) The application relates to an identified error of law;(d) The application involves the admissibility of evidence that isimportant to one of the parties;(f) The matter cannot be dealt with adequately in any appeal afterthe trial or there are only limited post-trial appeal right (as willoften be the case for Crown applications);(g) The proposed grounds of appeal are arguable.4 Criminal Disclosure Act 2008, s 33(2) and (3)(b).5 Sami v Police HC Auckland CRI-2021-404-365, 15 October [Minute (No 2) of Gordon J] at [10].6 R v Leonard [2007] NZCA 452, [2008] 2 NZLR 218 at [13]-[14]; Hohipa v R [2015] NZCA 73,[2018] 2 NZLR 1, at [24] – [27].[14] Factors pointing towards refusing leave include:(a) The issue will need to be revisited at trial or is best dealt within the context of the trial;(b) The application involves the admissibility of evidence thatwould not make a significant difference to the course of thetrial and is unlikely to lead to post conviction appeal success;(c) The issue is best dealt with in the context of any postconviction appeal;(d) The application challenges a factual finding, especially wherethe finding rests on an assessment of credibility;(e) The application challenges the exercise of a discretion. Insuch cases leave should not be granted unless there aregrounds articulated which point to the fact that the judge has,in exercising his or her discretion, acted on some wrongprinciple, has given weight to extraneous or irrelevantmatters, has failed to give sufficient weight to relevantconsiderations, or is plainly wrong;(f) The appeal will cause unnecessary delay: for example wherethere is not time to hear the appeal before the trial commencesor where it would unduly delay the trial;(g) The proposed appeal is without merit.[9] The respondent submits that leave to appeal should be declined for tworeasons: firstly, because as a result of the prosecution having advised the appellant on16 September 2021 that the police DVD interview will not be produced and relied onas prosecution evidence at his trial the issue raised by the appeal is now moot; andsecondly because the appeal lacks merit in any event. Accordingly, the outcomesought by the appellant as to whether or not his DVD interview will be produced andplayed at trial has been resolved.[10] As the issue affecting the conduct of the appellant's trial has been resolvedinsofar as the appellant's trial is concerned, there is no longer any utility in determiningthe issue insofar as his trial is concerned. However, as the issue raised by theappellant's appeal relates to what is said to be the general approach to pre-trialdisclosure being taken by Police prosecutors in the Manukau District Court and istherefore of wider significance than the instant case, I shall grant the appellant leaveto appeal.Decision under appeal[11] Judge Harvey reviewed the application for disclosure and the applicant'sarguments. He noted that the prosecution had disclosed the items of evidencespecified in the application, and the defence had viewed them. He also noted thesequence of the Police prosecution process, and that the officer who prepares the filefor hearing is not necessarily the prosecuting officer, and consequently does not makedecisions regarding the use of exhibits at trial. The Judge rejected the defendant'sargument that the Act requires the prosecution to not only disclose particular exhibits,but also "advise explicitly" or "definitively state" which exhibits will be used at trial.7He summarised the defendant's arguments and his conclusion as follows:8[6] The interpretation that [the defendant's counsel] places on the provisionsof the Criminal Disclosure Act, read in conjunction with the CriminalProcedure Act, seem to suggest that the language, although stated asanticipatory, the word "proposed" being used particularly should beinterpreted as being confirmatory, that is that not only is the obligation uponthe prosecution to disclose the information but to make it abundantly clear thatthe information is to be produced or not produced as evidence.[7] My reading of the Criminal Disclosure Act does not go as widely as that.I believe that [the defendant's counsel], with the greatest of respect, has beenoverly generous in his interpretation of the legislation. The application for anorder for disclosure as sought is dismissed. I do note, however, that theinformation, and I emphasise the word information, that [counsel] has soughthas in fact been disclosed.[12] Judge Harvey accordingly declined the application.Relevant law[13] The Act governs the disclosure of relevant information between prosecutionand defence for the purposes of criminal proceedings.9[14] Section 12 of the Act requires the prosecutor to disclose to the defendant theinformation detailed in s 12(1) (aa) – (e), at the commencement of criminal7 Police v Sami [2021] NZDC 15184, at [2] and [4].8 At [6].9 Criminal Disclosure Act 2008, s 3.proceedings, or as soon as practicable after that time, and in any event not later thanthe applicable date.10[15] Where a defendant enters a not guilty plea, s 13 of the Act requires theprosecutor, as soon as reasonably practicable, to make full disclosure to the defendantby disclosing the information specified in s 13(2)(a) and (b). Section 13(2)(a)identifies the information to be disclosed as being:(a) any relevant information, including, without limitation, theinformation (standard information) described in subsection (3); and(b) a list of any relevant information that the prosecutor refuses undersection 15, 16, 17, or 18 to disclose to the defendant together with –(i) the reason for the refusal; and(ii) if the defendant so requests, the grounds in support of thatreason, unless the giving of those grounds would itselfprejudice the interests protected by section 16,17, or 18 and (in the case of the interests protected by section 18) there is nooverriding public interest.[16] The information described as "standard information" in s 13(2)(a) is specifiedin s 13(3)(a) – (h). It relevantly includes:(e) a list of all exhibits that the prosecutor proposes to have introduced asevidence as part of the case for the prosecution; and(f) a list of all relevant exhibits in the possession of the prosecutor thatthe prosecutor does not propose to have introduced as evidence;[17] Section 13 further provides that:(4) The obligation to disclose information to the defendant under thissection as soon as is reasonably practicable is subject to any ordermade under section 30 or 32.(5) If information referred to in subsection (2) comes into the possessionor control of the prosecutor, or is prepared in recorded form, after theprosecutor has disclosed information in accordance with subsection(1) and before the hearing or trial is completed, the prosecutor mustdisclose the information to the defendant as soon as is reasonablypracticable.10 The term "applicable date" is relevantly defined in s 12(4)(a) and (c) as being the date that is 15working days after the commencement of the criminal proceedings, or any later date that the courtor Registrar allows on application by the prosecutor.(6) The entitlement of a defendant to information under this sectioncontinues while the criminal proceedings are in progress (includingany appeal against conviction) and during the period from theconviction until the expiry of the time for lodging an appeal againstconviction.[18] The obligation on the prosecutor pursuant to s 13 to disclose information to thedefendant as soon as reasonably practicable, is subject to any order of the court underss 30 or 32. Section 30 of the Act 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 -(i) the prosecutor failed to disclose the information; or(ii) (b) (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 ... the court may order that the itemor type of information be disclosed to the defendant.Appellant's submissions[19] The appellant relies on ss 12(2) and 13(2)-(4) of the Act, and s 25 of theNew Zealand Bill of Rights Act 1990 (NZBORA), which provides for minimumstandards of criminal procedure as follows:Everyone who is charged with an offence has, in relation to the determinationof the charge, the following minimum rights:(a) the right to a fair and public hearing by an independent and impartialcourt:...[20] The appellant submits that the information that the prosecution must disclosepursuant to s 13(3)(e) and (f), includes advice as to whether or not they propose tointroduce the defendant's DVD statement as evidence at trial.[21] The appellant says that the Act unequivocally mandates the obligations of theprosecution in relation to disclosure. The obligation to disclose as soon as "reasonablypracticable" clearly falls between the time a not guilty plea is entered and the first casereview hearing. The appellant submits that information as to whether the prosecutionintended to introduce the defendant's DVD statement made to police is informationwhich was relevant to the defendant's case review hearing in terms of estimating thelength of time the hearing would take and steps to progress the matter.[22] The appellant says that the Manukau Police Prosecution Service (MPPS) has apolicy of avoiding the prosecution's disclosure obligations under the Act by annotatingsome items on the exhibit list "(prosecutor to determine whether played or not)" andby using the word "draft" on the list of disclosure.[23] Counsel for the appellant says they have been involved in another trial at whichthe Police prosecutor altered their original position on whether or not the defendant'sDVD interview would be produced and played during the course of the trial. Counselsubmits that this practice puts an "indelible stain" on the prosecution's character andcreates a "significant risk" that the trial will become a "debacle".[24] The appellant accepts that the prosecution may for good reasons depart fromthe originally proposed exhibit or witness lists where new evidence has come to light,or when witnesses become unavailable. However, counsel submits that the approachhe describes being taken by Police prosecutors in the Manukau District Court givesthe appearance of the prosecutors carrying out their disclosure obligations tactically,leaving the defendant uncertain as to the prosecution case against them and contraryto established prosecutorial guidelines, the Act, the CPA and NZBORA.Respondent's submissions[25] In the event that leave to appeal is granted, the respondent submits that thesubstantive appeal should be declined because Judge Harvey's decision to decline thedisclosure application was plainly correct. The Judge's interpretation of ss 13(3)(e)and (f) of the Act is consistent with the plain language of the Act and its statutorypurpose.[26] The operative word in ss 13(3)(e) and (f) is "propose". As Judge Harvey stated,a plain language interpretation of "propose" indicates that the disclosure obligationsare anticipatory and extend only to disclosure of a list of exhibits which theprosecution proposes to produce.[27] Neither the word "proposes", nor the phrase "proposed list of exhibits", isdefined in the Act. However, on its ordinary meaning, the respondent submits that"proposed" describes something that "has been put forward for consideration oraction".11[28] The meaning of the word "proposed" has previously been considered by thisCourt, albeit in a different statutory context:12I think the use of the word "proposed" indicates a decision that is already madebut without discounting the remote possibility that before the decision isconfirmed something may occur which changes the decision-maker's mind.As a question of policy, it must be unattractive to allow the Courts to be usedas a vehicle to potentially challenge each step of a decision-making process ...[29] Judge Harvey's interpretation is also consistent with the purpose of the Act,which is to "promote fair, effective, and efficient disclosure of relevant informationbetween the prosecution and the defence ... for the purposes of criminalproceedings".13 The Act responded to a need for a formalised disclosure regime, asidentified by the Criminal Law Reform Committee. The Committee commented onthe purpose of disclosure of prosecution materials as follows:14We do not anticipate that the defence will request access to all the informationin all cases, particularly those dealt with by summary proceeding only.Nevertheless, there are good reasons for making the material available beforeplea if so requested. First, the summary of facts, by itself, is limited in scope.Disclosure of information such as the names of witnesses to be called andexhibits to be produced may afford a more precise indication of the shape ofthe prosecution case, enabling the accused to make an informed plea decision.Second, it is reasonable to assume that, apprised of the case against them andthe likely consequences of conviction, many an accused may well choose toplead guilty.11 The respondent refers to Collins English Dictionary "Definition of 'proposed'"www.collinsdictionary.com.12 Marlborough Aquaculture Limited v The Chief Executive, Ministry of Fisheries HC BlenheimCP1/000, 25 February 2003 at [21].13 Criminal Disclosure Act, s 13(5).14 Criminal Law Reform Committee Committee Report on Discovery in Criminal Cases (CriminalLaw Reform, December 1986) at 120.[30] Comments made by the Law and Order Committee in their report on the draftCriminal Procedure Bill also support the submission that an exhibits list need notidentify which items will be used at trial:15Full disclosureClause 28 provides for full disclosure after a "not guilty" plea in summarymatters or first appearance in indictable matters including a list of all exhibitsheld by the prosecutor (whether or not they will be used at trial), prosecutionwitnesses' convictions, and expert witness reports.[31] The respondent submits that the legislative history and context of the Actindicates that the purpose of disclosure is to fairly inform the defendant of the natureof the prosecution case, and ensure equality of information between parties relevant tothe charges and the Crown case. The Act does not purport to govern the conduct of theprosecutor's case, or trial preparation, or trial process generally.[32] The Act envisages that full disclosure will take place at a very early stage ofthe proceedings, soon after the defendant has entered a not guilty plea. Therefore, theprosecution cannot be expected to produce a finalised exhibit list at that early stage.There are many legitimate reasons why a prosecutor's initial views regarding theevidence to be adduced at trial will evolve and change during the course of theprosecution process: it will often be the case that the police investigation is ongoing,with the possibility of further relevant evidence yet to be discovered; issues may beconceded by the defence at trial; and evidence introduced by the defence at trial maytrigger a response from the prosecution. The dynamic nature of the trial process oftenrequires the prosecution to adapt the use of exhibits as matters arise and the trialproceeds. The respondent submits that the appellant's interpretation of the Act wouldeffectively freeze the prosecution case in time, at an early stage in the proceedings,when the disclosure obligation arises.[33] The respondent further submits that a defendant who is unfairly prejudiced bya late decision by the prosecutor to introduce and rely on evidence that althoughdisclosed was not originally proposed to be produced at trial, has remedies under theEvidence Act 2006. Conversely, a defendant is themselves able to produce evidence15 Criminal Procedure Bill (Law and Order Committee, 2005) at 15.of a police interview through the officer in charge, if they consider that they areprejudiced by the prosecution's failure to produce that evidence.Discussion[34] The purpose of the Act is to ensure that the prosecutor first provides initialdisclosure and subsequently, if not guilty pleas are entered, full disclosure, inaccordance with the specific requirements in s 13, "to promote fair, effective, andefficient, disclosure of relevant information" between prosecution and defence inrelation to criminal proceedings. Any failure on the part of Police prosecutors todischarge their obligations in accordance with the Act which results in defendants nothaving the information that the Act requires them to be provided with, not onlyprevents defendants and their counsel from making properly informed decisionsregarding the prosecution case against them and how they will proceed, which is unfairand contrary to the purpose of the Act, but may also have a significant impact on adefendant's trial preparation.[35] The use of the words "propose" and "proposes" in ss 13(3)(e), (f) and (g)clearly refers to what are necessarily provisional decisions made by the prosecutorregarding the information falling into those categories. Provided that a prosecutor'sdecisions and categorisation of information they intend to produce and rely on at trialare bona fide, and provided they accurately set out a list of the disclosure that theprosecution intends to produce or not produce at trial, there can be no criticism of theadequacy or completeness of the disclosure made to the defendant based on theprosecutor's non-compliance with the Act. It is also clear that the Act is directed at theobligations and mechanisms for making disclosure. It is not directed at the trialprocess.[36] Quite aside from the issue of whether or not the prosecutor has discharged theirobligations under the Act, there is the overarching entitlement of a defendant to a fairtrial and the rights recognised in ss 24 and 25 of NZBORA. Particularly relevant inthis context is the right to be informed "promptly and in detail of the nature and causeof the charge" and the right to "adequate time and facilities to prepare a defence" oncea person has been charged with an offence.16[37] Qualifications to the effect that proposed exhibits on the disclosure list may ormay not be produced at trial depending on a decision yet to be made by the prosecutorintroduces an unsatisfactory level of uncertainty, notwithstanding the validity of anyreasons or justifications for doing so. Such uncertainty elevates the risk of prejudiceto the defendant's trial preparation, and requires the defence to decide whether to carryout its own enquiries or arrange the attendance of witnesses at trial against thepossibility that the prosecutor decides shortly before the trial or on the day of trial tointroduce some evidence or exhibit.[38] Where a prosecutor identifies items on a list of disclosure provided to thedefendant without confirming whether or not they will be produced or relied on attrial, or uses the word "draft" to indicate that the list of disclosure should not be treatedas final and may be changed by the prosecutor shortly before or during the trial, thatpractice introduces a degree of uncertainty as to the contents and evidential basis ofthe prosecution case. While this uncertainty is unsatisfactory in itself, the practice mayalso result in significant and unfair prejudice to defendants who find themselvesunable to respond to late changes made by the prosecutor which adversely affect theirability to adequately prepare for trial. A defendant placed in this position at a pre-trialstage has the option of seeking an adjournment of the trial. Prejudice to the defendantresulting from the uncertainty caused by the practice adopted by the prosecutor infailing to categorise the exhibits to be relied on (or not) at trial would provide a cogentbasis for doing so. Depending on the circumstances, cases resulting in more significantprejudice could give rise to applications to stay the prosecution on the grounds ofabuse of process.[39] I accordingly reject the appellant's suggested interpretation of the Act, whichfails to apply the plain meaning of the word "propose" as used in the relevant s 13(2)provisions, and fails to recognise the purpose of the Act and the practical need for aflexible trial process. In my view, s 30 of the Act applies to information held by the16 New Zealand Bill of Rights Act 1990, s 24(a) and (d).prosecution that is capable of being disclosed in accordance with s 13 of the Act. Here,the existence and contents of the Police DVD interview of the appellant were disclosedto the appellant in accordance with the requirements of the Act. The qualification asto whether or not the DVD interview would be introduced at trial has not in factresulted in any unfair prejudice to the appellant. The prosecution decision not tointroduce the appellant's Police DVD interview as evidence at his trial wascommunicated to the appellant on 16 September 2021. The appellant can thereforenow proceed to prepare for trial on that certain basis.[40] Where the prosecution fails to disclose information that it ought to disclose inaccordance with the Act, a defendant has recourse to s 30 and may apply for an orderthat the information be disclosed. However, where disclosure is made but theprosecution qualifies the disclosure in a manner that causes uncertainty and leads tounfair prejudice to a defendant, the appropriate course, in the absence of timelyclarification and resolution of the uncertainty, will be to seek an adjournment of thetrial on the grounds that the defendant is prejudiced and unable to adequately preparefor trial until they have been informed of the contents and evidential foundation of theprosecution case, consistently with a defendant's rights under NZBORA.Alternatively, in cases where an adjournment (or further adjournment) and theopportunity to adequately prepare for trial is insufficient to ensure the defendant has afair trial, in light of the prejudice caused by the manner in which the prosecution haveconducted the disclosure process, a defendant can apply for a stay.Result[41] The appeal is dismissed._____________Paul Davison J