W (CA447/2017) v R [2019] NZCA 120

W (CA447/2017) v R [2019] NZCA 120 [17 April 2019]NOTE: ORDER PROHIBITING PUBLICATION OF NAME, ADDRESS,OCCUPATION OR IDENTIFYING PARTICULARS OF APPELLANT UNTILDISPOSITION OF APPEAL. SEE [2018] NZCA 229.NOTE: ORDER PROHIBITING PUBLICATION OF NAME, ADDRESS,OCCUPATION OR IDENTIFYING PARTICULARS OF CONNECTEDPERSON J UNTIL FINAL DISPOSITION OF APPEAL. SEE [2018] NZCA 229.NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION ORIDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 203OF THE CRIMINAL PROCEDURE ACT 2011.IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA447/2017[2019] NZCA 120BETWEEN W (CA447/2017)AppellantAND THE QUEENRespondentHearing: 26 March 2019Court: French, Miller and Williams JJCounsel: F E Guy Kidd QC for AppellantA Markham for RespondentJudgment: 17 April 2019 at 11.00 amJUDGMENT OF THE COURTThe application for a non-party disclosure hearing is declined.____________________________________________________________________REASONS OF THE COURT(Given by Williams J)[1] Following a second jury trial in the District Court at Auckland, the appellantwas convicted of seven sexual offences committed between 1972 and 1975.The appellant was between 16 and 19 years of age during this period andthe complainant between 11 and 14 years of age.[2] He was sentenced to a term of imprisonment of three years.1[3] For reasons that need not be rehearsed here the Crown accepted the appealshould be allowed. When the appeal came before this Court, the Court directed thatthe matter should nonetheless be heard in the usual way. It was adjourned forsubstantive argument and remains to be heard. The appellant has been admitted to bailin the meantime.[4] All of the foregoing is context for the application before us. The appellantseeks a non-party disclosure hearing in order to obtain access to all records fromthe Auckland District Health Board in relation to the complainant's admission tohospital for viral meningitis at some stage between 1971 and 1972. The relevance ofthis is said to be that viral meningitis is a very serious illness that can affect memoryand trigger mental illness. A brief note of advice by email from Professor Lynn,a clinical psychologist, to counsel for the appellant on 3 March this year identifies thepotential issue. The Professor advised as follows:I came across something today that may be very significant. Apparently,[the complainant] contracted viral meningitis at age 11 and was hospitalizedfor three weeks and reported almost died. This event allegedly occurred priorto the time she stated she was sexually assaulted. As viral meningitis is adisease of the brain and can cause inflammation permanent brain damage andmemory problems in some cases, this might be very significant.[5] This matter was not raised at trial. For the appellant, Ms Guy Kidd QCsubmitted that records pertaining to the complainant's hospitalisation would providedetails of the nature and seriousness of her illness. This, it was submitted, may shedlight on the complainant's mental health at the time and/or the reliability of hermemory of the relevant events. These matters, it is argued, go directly or indirectly togrounds advanced in the appeal.1 R v [W] [2017] NZDC 15981 at [42].[6] Counsel had hoped that an affidavit from Professor Lynn or other qualifiedexpert would be available explaining, in more detail, the potential risks to mentalhealth and/or memory of the illness in its various forms, but this has not provedpossible due, we are told, to Professor Lynn's other work responsibilities.[7] This Court discussed the test to be applied in applications for non-partydisclosure hearings in Bushby v R.2 The test is a stringent one and particularly, ashere, in the post-conviction context.3 The applicant must lay a "realistic evidentiaryfoundation" before a non-disclosure hearing will be granted.4[8] We cannot be satisfied, on the basis only of a brief email, that there is a properbasis to order a non-party disclosure hearing for the purpose sought. Without anaffidavit from Professor Lynn or another relevantly qualified expert, which sets outthe established implications for memory and/or mental health of viral meningitis, wedo not know what aspects of memory may be affected by viral meningitis and whetherthey are the relevant aspects at issue in this appeal. The same applies to mental illness.We do not therefore know how the disclosure of the complainant's medical recordscould be relevant to the appeal grounds. In short, a realistic evidentiary foundation isnot established.[9] The application is declined accordingly.Result[10] The application for a non-party disclosure hearing is declined.Solicitors:Crown Law Office, Wellington for Respondent2 Bushby v R [2016] NZCA 527.3 At [9] and [10].4 At [10], citing R v Nepia CA32/00, 3 October 2000 at [18].