Attorney-General v District Court at Otahuhu
[2001] NZCA 187
•13 June 2001
| IN THE COURT OF APPEAL OF NEW ZEALAND | CA 268/00 |
| BETWEEN | ATTORNEY‑GENERAL (on behalf of the New Zealand Police) |
| Appellant |
| AND | THE DISTRICT COURT AT OTAHUHU |
| First Respondent |
| AND | JEREMY BROWN |
| Second Respondent |
| Hearing: | 3 May and 5 June 2001 |
| Coram: | Richardson P Gault J Keith J Blanchard J Tipping J |
| Appearances: | J C Pike and J D Sutton for Appellant G M Illingworth and D C S Reid for Second Respondent First Respondent abides decision of Court |
| Judgment: | 13 June 2001 |
| JUDGMENT OF THE COURT DELIVERED BY RICHARDSON P |
Table of Contents
Para No
Issues [1]
Background [2]
The Summary Proceedings Act [11]
Implied powers to make pre-trial rulings [16]
Pre-trial rulings in summary proceedings: the
rival submissions [22]
Discussion: possession or power [29]
Discussion: implied power to order discovery pre-trial [33]
Special Bill of Rights pre-trial process? [40]
Conclusions and result [56]
Issues
This appeal raises two issues. One concerns the claim to pre‑trial access by the defence to information held by an agency or person other than the prosecution. More specifically, it relates to the discoverability pre‑trial of the instrument manual for the Intoxilyser 5000 breath‑testing device. The other, and logically the first issue for decision, is whether the District Court in summary proceedings has power to rule pre‑trial on such access matters. The case highlights the need for comprehensive legislation governing disclosure in criminal cases and including a statutory regime affecting non‑party discovery.
Background
On 23 October 1999 Mr Brown was apprehended by a police officer who saw him driving his vehicle in an erratic manner. After failing the initial breath-screening test, Mr Brown was breath‑tested using an Intoxilyser 5000 breath‑testing device. Evidential breath test is defined in s2(1) of the Land Transport Act 1998 as "a test carried out by means of an evidential breath‑testing device in a manner prescribed in respect of that device". The Intoxilyser device was of a kind approved for the purpose by the Minister of Police under the Transport (Breath‑Tests) Notice (No 2) 1989. The test recorded a level of 1157 mg per litre of breath. In terms of the definition of a conclusive evidential breath‑testing device in s2 and the provisions of s77 of the 1998 Act, where the level recorded is over 600 mg per litre of breath it is "conclusively presumed that the proportion of alcohol in the defendant’s breath at the time of the alleged offence was the same as the proportion of alcohol in the defendant’s breath indicated by the test". Where the level recorded is between 400 and 600 mg per litre of breath the result is conclusive if the suspect declines the blood test option.
Mr Brown was then arrested and charged with driving with excess breath alcohol contrary to s56 of the Land Transport Act.
Mr Brown sought discovery from the prosecution of the manufacturer's instruction manual. Supporting and opposing affidavits were filed. The manual was held not by the Police but by the Institute of Environmental Science and Research Limited (ESR), a Crown Research Institute under the Crown Research Institutes Act 1992, and in the judicial review proceedings which ultimately ensued the Attorney‑General in respect of the New Zealand Police claimed that the manual was held by ESR under contractual conditions of strict confidence between ESR and the overseas manufacturer. The contract is dated 26 August 1998 and is appropriately headed "Proprietary Information Agreement".
Before the hearing in the District Court of the application for discovery counsel for the informant accepted that Mr Brown's expert, Mr Churchill, had properly raised an issue as to the reliability of the particular device on the occasion in question and it was common ground that the application for discovery was not made under the Official Information Act 1982. In the result the argument in the District Court was confined to three issues: whether the information sought was relevant to the issue to be determined in the case; whether the information sought was within the power or control of the informant; and whether the information was withheld for good reason.
The argument for Mr Brown on relevance was in essence that Mr Churchill, as an electronics expert, could not reasonably give evidence concerning the operation of a sophisticated electronic device such as the Intoxilyser 5000 without having access to its design features and specifications and, further, that from his present evidence it could be inferred that the particular device might not have been working correctly on the occasion in question. The argument for Mr Brown on the power and control point, relying on the decision of Chambers J in Police v Keogh [2000] 1 NZLR 736, paras [67]‑[74], was that ESR was not to be treated as separate from the police for the purposes of prosecution discovery obligations. The argument on the third point was that the interests of justice required disclosure, that those interests favouring disclosure outweighed competing interests, and the confidentiality concerns of the supplier of the equipment could be assuaged by appropriate undertakings, as in civil proceedings.
The District Court Judge upheld the submissions for Mr Brown and on the first issue, as to relevance, held that the documents were of material relevance to the defence (that the device might not have been working correctly on the day in question) and would be of assistance to the defence in that regard. On 23 May 2000, after giving the manufacturer a separate opportunity to be heard on the confidentiality conditions, the Judge directed the prosecution to disclose the manual on terms.
The police challenged the ruling of the District Court Judge by way of an application for judicial review. In their judgment of 29 November 2000 reported at [2001] 1 NZLR 737, the Full Court (Hammond J and Randerson J) concluded:
[62] Reduced to essentials and leaving aside matters of procedure, we see the important issues in relation to documents held by the ESR on behalf of third parties as being whether:
(a) The document is relevant to an issue likely to arise at trial in the sense that it will or might damage the prosecution’s case or advance the defendant’s.
(b) The non-disclosure of the record is likely to prejudice a fair trial under s 25 or to infringe the accused’s right under s 24(d) of the NZBORA.
(c) The disclosure of the document is reasonably necessary in order to secure a fair trial or to ensure that the statutory rights of the accused are not infringed (we would envisage this as including consideration of whether the information could be obtained by other means).
(d) Any competing rights, interests, or considerations justify withholding disclosure. In that respect, regard must be had to s 5 of the NZBORA where rights under that legislation are at issue; the statutory grounds for withholding information under the Official Information Act where that legislation is applicable; or common law grounds as appropriate.
[63] We would see the onus being on the applicant in the first instance to establish the threshold issues in paras (a), (b), and (c) on the balance of probabilities. Once those are established, we would see the burden passing to those opposing the disclosure of the documents to establish to the same standard that there are good grounds for withholding the document.
The Full Court had earlier in the judgment considered whether the information sought was within the power and control of the Police (at para [28]) and, contrary to the approach taken by Chambers J in Keogh, they concluded that the Police and ESR were not synonymous for the purpose of prosecution disclosure; that ESR is one step removed and the manual was not under the possession or control of the Police; that in appropriate cases, including cases where ESR holds documents on behalf of a third party, ESR is entitled to object to disclosure and have the question determined by a Judge; but that that difference in approach from Keogh was not material to the result. That last conclusion followed, it seems, from the over‑all conclusion of the Full Court that the District Court Judge had exercised her discretion appropriately in accordance with law as defined by Keogh and by the Full Court in the present case and that the appropriate course was for the matter to be remitted to the District Court for the fixing of appropriate conditions if agreement could not be reached on them, when, implicitly, ESR would have full opportunity to have its position considered.
Finally, while the Full Court had not heard argument on the threshold issue whether the District Court had jurisdiction pre‑trial to rule on disclosure issues (see para [1] above), it expressly agreed at para [61] with Chambers J in Keogh (para [50] of the Keogh judgment) that the District Court should determine disclosure issues by pre‑trial application. Because of the wider importance of that threshold issue we adjourned the hearing of the present appeal to enable counsel to prepare full submissions on the issue and we have also had the benefit of their oral argument on that point, to which we now turn.
The Summary Proceedings Act
Unlike the Crimes Act 1961 s344A, the Summary Proceedings Act 1957 contains no provisions expressly recognising or allowing for pre‑trial rulings and there is nothing in the scheme and structure of the relevant provisions of the 1957 statute to provide any support for a separate pre‑trial ruling regime in summary proceedings. On the contrary, the essential focus of Part 2 of the Act, applying to all proceedings where the defendant is proceeded against summarily (s11), is on the hearing of the charge.
The early provisions of Part 2 relate to the information commencing the criminal proceedings (ss13‑18), summons and warrant (ss19‑23), and service of documents (s24). The only provision requiring particular notice is s20, under which either the informant or the defendant may obtain a summons "calling on any person to appear as a witness at the hearing" and to bring and produce "at the hearing" any documents mentioned in the summons. Then, under the heading "Special Provisions for Taking Evidence", ss31‑33 expressly provide for statements taken outside "the hearing"; s31, defence witness at a distance; s32, person about to leave the country; s33, statement of person dangerously ill and not likely to recover.
The successive headings relevant for present purposes are: General Provisions as to Hearing (ss34‑44A), Adjournments and Bail (ss45‑59) and Procedure at Hearing (ss60‑71). Thus, s34 states as the general rule that "Every charge shall be heard and determined in the Court in the office of which the information is filed". Under the next heading ss45 and 45A authorise the adjournment of "the hearing of any charge", and ss46‑57 are concerned with bail.
Next, in relation to the procedure at hearing, ss61, 62 and 63 are directed respectively to where, at the hearing of the charge, the defendant does not appear (s61), where the informant does not appear (s62), and where neither party appears (s63). Section 65 goes on to provide: "Where at the hearing of any charge both the informant and the defendant appear, the Court shall proceed with the hearing." Section 67, concerned, as the section heading indicates, with the "Conduct of Hearing", provides for the taking of the plea before the charge is gone into (subs(1)), for entry of conviction or otherwise dealing with the defendant in any other manner authorised by law if he or she pleads guilty (subs (2)), and, by subs (3), "If he does not plead guilty, the hearing shall be conducted in accordance with the succeeding provisions of this section".
That survey of the 1957 Act clearly indicates that Parliament was providing a tight legislative scheme under which, subject to any necessary adjournments of the hearing of the charge before the hearing gets under way or in the course of the hearing, the court is required to hear and determine the charge against the defendant. As Tipping J, delivering the judgment of a court of five, said in Jones v Police [1998] 1 NZLR 447, 452:
The structure and scheme of the relevant provisions of the Summary Proceedings Act lead us to the view that the concept of "the hearing" is designed to cover the whole process of inquiring into and determining the guilt or otherwise of persons brought before the District Court summarily on information. In some contexts the concept of the hearing may have a more restricted meaning, such as in s40 which deals with witnesses.
Implied powers to make pre‑trial rulings?
As a statutory court of limited jurisdiction the District Court does not have an inherent jurisdiction to make any order necessary to enable it to act effectively as does the High Court. It is well settled, however, that as ancillary to its particular jurisdiction it has the powers necessary to enable it to act effectively within that jurisdiction. The most important of these inherent powers are the power of a Court, subject to the rules of Court and to statute, to regulate its own procedure, to ensure fairness in investigative and trial procedures, and to prevent an abuse of its process (Laws NZ, Courts para 11).
Commissioner of Police v Ombudsman [1988] 1 NZLR 385 is the leading authority. The defendant in summary proceedings sought under the Official Information Act disclosure before trial of briefs of witnesses whom the police proposed to call. The Ombudsman recommended disclosure. The High Court on judicial review of that decision refused disclosure. This court upheld the appeal against the High Court decision. Cooke P observed (p398) that procedural difficulties cannot be allowed to negate statutory rights; that it must be the duty of the courts to mould their procedures so as to give effect to the substantive law enacted by Parliament; and that (pp 399‑400):
In proceedings on indictment there is no reason why a High Court Judge cannot determine a preliminary or incidental question as to whether the accused has received information to which he is entitled under the Official Information Act. In my opinion the same applies to a District Court Judge in relation to summary proceedings. Inferior Courts have by implication the necessary powers to control their own proceedings and to determine incidental or preliminary questions of law and fact: O'Toole v Scott [1965] AC 939, 959; Re GJ Mannix Ltd [1984] 1 NZLR 309; McMenamin v Attorney-General [1985] 2 NZLR 274 and the authorities there collected at p 276. Their decisions on preliminary points are of course not conclusive but subject to review or appeal. Admittedly none of the foregoing cases is precisely in point, but in principle and quite apart from specific authority it seems to me that any Court must be able to postpone or adjourn its hearing if it appears to the Court that the defendant is disadvantaged by being denied access to information to which he is entitled by statute. As regards trials on indictment, s 368 of the Crimes Act expressly authorises that course when the prosecution produces a surprise witness; the section cannot be taken as exhaustive of the grounds for postponement or adjournment.
In practice, if the general rules already indicated are recognised, in most cases the provision before trial of personal information on request under the Official Information Act and the extent of what has to be provided should follow as a matter of course and without any need to ask a Judge for a ruling. In exceptional cases a ruling can be sought by applying for a postponement or adjournment of the trial, whether on indictment or summary, pending delivery of the information requested. At that stage the Judge will be able to determine, if he thinks fit, whether a refusal has been for good reason.
It would be for the Judge in his discretion to decide whether to give such a ruling and on any postponement or adjournment, a discretion extending also in District Courts to whether after a ruling time should be allowed for challenging it by review proceedings in the High Court. Otherwise the point will be able to be raised after trial on an appeal from a conviction; that has long been the position as to preliminary rulings generally, although under s 379A of the Crimes Act certain such rulings may now be appealed from by leave before trial on indictment. No doubt occasional cases will arise not covered by these observations, but judicial resource should be capable of coping with them.
It will be noted that Cooke P linked the exercise of the power to the hearing and its adjournment and did not appear to endorse a stand‑alone pre‑trial ruling regime as coming within the implied powers. The only other judgment to discuss the point is Casey J's (at pp413‑414):
Original Court jurisdiction over the Act would be exercisable only by the High Court, there being nothing in the District Courts Act 1947 conferring such power directly on the latter. However, they may be entitled to determine the existence of this statutory right to information as a collateral matter arising for decision in an issue before it, if that appeared necessary in order to ensure a fair trial. As this Court said in McMenamin v Attorney-General [1985] 2 NZLR 274, 276:
An inferior Court has the right to do what is necessary to enable it to exercise the functions, powers and duties conferred on it by statute. This is implied as a matter of statutory construction. Such Court also has the duty to see that its process is used fairly. It is bound to prevent an abuse of that process. All this is well understood.
I confess to some reservations about whether this principle is sufficient to justify the bestowal on the District Court of powers which go beyond those currently recognised as appropriate or available to them in criminal proceedings.
Before leaving Commissioner of Police v Ombudsman it is important to note two points. The first is that none of the judgments saw the Official Information Act regime (and the same would now apply to the Privacy Act 1993 regime) as an adequate substitute for a criminal discovery statute. Cooke P (with Somers J concurring) said flatly that the Act was not a criminal discovery measure (p395); McMullin J considered it an unsuitable instrument for criminal discovery (p407); Casey J characterised it as an unwieldy instrument of pre‑trial criminal discovery (p413) and as a poor substitute for rules of discovery properly developed for use in criminal proceedings, as recommended by the Criminal Law Reform Committee's Report on Discovery in Criminal Cases (December 1986) (p414); and Bisson J saw it as only going some way in overcoming inconsistencies in current practice (p415). The second and associated point is that the judgments recognised the desirability of a statutory code of discovery and referred with approval to the report of the Criminal Law Reform Committee, McMullin J noting (at p407): "The adoption of its recommendations by legislation would result in rules of general application, remove the differences in practice which pertain in different localities and result in a useful set of working rules of general application throughout New Zealand."
The Law Commission in its 1990 report, Criminal Procedure: Part I, Disclosure and Committal (R14) also advocated legislation and set out its proposal in statutory format as an amendment to the Summary Proceedings Act, including provisions for interlocutory applications for disclosure orders in sufficiently wide terms to cover summary proceedings. The report confined discussion to material in the hands of the prosecution and did not deal with non‑party discovery.
In its 2000 report, Criminal Prosecution, (R66), the Law Commission (para 195) repeated the recommendation made in 1990 that a comprehensive disclosure code be introduced. As well, the earlier Ministry of Justice and Department for Courts "Consultation Paper regarding Preliminary Hearings and Criminal Disclosure" (1997), p26 concluded that amongst the outstanding problems in relation to criminal disclosure which a disclosure statute could solve is the court enforcement of rights. On 3 November 2000 the Minister for Justice and the Minister for Courts announced the Government's intention to introduce a new statutory regime governing the disclosure of information in criminal cases.
Pre‑trial rulings in summary proceedings: the rival submissions
Mr Pike for the Attorney‑General submitted that there is nothing in the applicable statutory language of the Summary Proceedings Act supporting powers not directed to the hearing of the charge, except where there is another specific statutory foundation, as in the case of bail. Referring to the dicta of Cooke P and Casey J in Commissioner of Police v Ombudsman, he submitted that the court had recognised the lack of a clear juridical basis for the pre‑summary trial resolution of disclosure obligations under the Official Information Act and at common law. Specifically, in relation to this pre‑trial ruling he submitted that there is no provision or set of provisions in the 1957 Act which requires as a matter of necessity the existence of an implied power to order non‑prosecution disclosure and that, while every court has an inherent power to prevent an abuse of the process of the court, this power, as fundamental as it may be, cannot give rise to an anticipatory remedies jurisdiction affecting the rights of persons unconnected with the proceeding.
Finally, he submitted that the claim for a right to pre‑trial access to information held by an agency other than the prosecution based on the Bill of Rights could not succeed.
The pre‑trial discovery obligations contended for on behalf of Mr Brown were drawn from ss3, 24(a) and (d) and 25(a) and (e) of the Bill of Rights. By virtue of s3 the applicable rights attach to acts done by the executive or judicial branches of the Government of New Zealand, or by any person or body in the performance of any public function, power or duty conferred or imposed on that person or body by or pursuant to law. Section 24 affirms the right of anyone who is charged with an offence to (a) "be informed promptly and in detail of the nature and cause of the charge" and (d) "to adequate time and facilities to prepare a defence". Section 25(a) guarantees in relation to the determination of the charge "the right to a fair and public hearing by an independent and impartial court" and s25(e) guarantees "the right to ... present a defence". As well, s25(f) guarantees the right in relation to the determination of the charge "to examine the witnesses for the prosecution and to obtain the attendance and examination of witnesses for the defence under the same conditions as the prosecution".
Mr Pike submitted that none of those core rights confers pre‑trial rights compulsorily to acquire information held by a non‑party which is not available to a prosecutor. The prosecution could not itself obtain the information by summons and in that regard Lord Hoffman had emphasised in DPP v McKeown [1997] RTR 162, 170 that it had repeatedly been said that there is no provision for discovery in a summary trial in a magistrates' court and that the English counterpart of s20 "should not be used as a disguised attempt to obtain discovery". Section 20 provides only for such a holder of the documentary information to be summonsed to attend the hearing and to bring and produce at the hearing the documents mentioned in the summons. And s25(f) of the Bill of Rights goes no further. Finally, Mr Pike submitted that because of the scheme of the Land Transport Act with its conclusive presumption, the accuracy of the Intoxilyser is not a matter to be proved by the prosecutor and does not raise rights against the prosecution as an incident of s24(d) and s25(a).
Mr Illingworth for Mr Brown focussed his submissions on the Bill of Rights, contending that courts exercising criminal jurisdiction have authority, by necessary implication from the express provisions of the Bill of Rights, to make orders requiring production of such documents against any persons or legal entities within the territorial jurisdiction of the New Zealand courts, including the Crown and all its departments and agencies such as ESR. The correct legal test to determine whether an order requiring the disclosure of information should be the "likely relevance" test but, where the fundamental rights of others are likely to be affected by the proposed order, the courts retain a discretion to modify the test so as to balance the conflicting rights in an appropriate way.
Mr Illingworth accepted that Simpson v Attorney‑General (Baigent's case) [1994] 3 NZLR 667 held only that the courts have an implied jurisdiction to grant remedies where there has been a prior breach of the Bill of Rights and did not specifically address the question of whether the courts have implied authority to make orders to enforce the Bill of Rights in circumstances where a breach is anticipated but has not yet occurred. He submitted that the courts have authority arising by necessary implication from the express provisions of the Bill of Rights to make orders of that kind. It would, he said, be pedantic to argue that a person could not seek a remedy merely because he or she is asking a court to act prospectively, in anticipation of a likely breach, rather than retrospectively, after the breach has occurred.
Where, as here, he said, there is nothing in the relevant code of procedure which militates against the existence of the asserted power, there is no reason to shrink from relying upon the implied intentions of the legislature. Further, and referring to the injunction in Northland Milk Vendors Association Inc v Northern Milk Ltd [1988] 1 NZLR 530, 538 that the duty of the court is to provide an interpretation which will "make the Act work as Parliament must have intended", Mr Illingworth submitted that recognition of implied powers of enforcement will increase the functionality of the Bill of Rights in a practical sense and that a refusal to recognise a reasonable range of enforcement powers would diminish both the authority and the practical operation of the Bill of Rights. And, he submitted, the court should follow the approach of the Supreme Court of Canada in O'Connor v The Queen (1995) 103 CCC (3d) 1 to hold that there is jurisdiction under s25 of the Bill of Rights Act to make pre‑trial orders against non‑parties in preference to the Dobson line of cases (R v Dobson (CA 25/95, judgment 8 June 1995)). Finally, he submitted that a breach of s24(a) and (d) had already occurred. Those provisions apply as soon as a person is charged with an offence. The right to adequate time and facilities to prepare a defence must exist and be given effect before the trial has started.
Discussion: possession or power
It is both elementary law and practical commonsense that no one can be compelled to disclose documents which are not in his or her possession or power. We are not concerned in this case with whether the concept of possession may extend beyond material in the hands of the officer in charge of the prosecution or known to that officer. The short point is whether the manufacturer's manual held by ESR was in the power of the prosecutor. It is whether the Police prosecutor had an enforceable right to obtain the manual for inspection. The arguments for and against are succinctly stated in the judgments of Chambers J in Keogh and the Full Court in this case.
Chambers J said at para [68]:
I appreciate that ESR is now a limited liability company, but it is a company with special attributes and is quite different in many respects from a normal company. As a CRI, its shares are held by the shareholding Ministers of the Crown on behalf of the Crown: see the CRI Act, s 11(3). There is no way in which those shares could be sold other than by an amendment by Parliament to the CRI Act. By s 5(1) CRIs must undertake their research “for the benefit of New Zealand”. In addition, a CRI must “be an organisation that exhibits a sense of social responsibility by having regard to the interests of the community in which it operates and by endeavouring to accommodate or encourage those interests when able to do so.” There is no indication whatever that Parliament, in passing the CRI Act, intended in any way to alter the traditional relationship between the Crown in its prosecutorial arm and the government scientists who assist. Both the police and government scientists must provide for prosecution counsel all relevant information so that prosecution counsel can carry out their responsibility as “ministers of justice”: see R v Thomas (No 2) [1974] 1 NZLR 658 at p659.
The Full Court said at paras [23]‑[25]:
[23] As Chambers J noted, the ESR is a Crown research institute formed under the Crown Research Institutes Act 1992. As such, it is a limited liability company, its shares being held equally by the Minister of Finance and the Minister responsible for the Crown research institute. The shares are held by the shareholding Ministers on behalf of the Crown: s 11(3). As Chambers J also noted, research undertaken by the ESR is to be undertaken for the benefit of New Zealand and the ESR is required to exhibit a sense of social responsibility by having regard to the interests of the community in which it operates and by endeavouring to accommodate or encourage those interests when able to do so: s 5(1)(a) and (f). As well, ultimate control is held by the Crown through the Prime Minister who, after consultation with the shareholding Ministers, may give written directions to the ESR with respect to its operations to the extent the Prime Minister considers necessary in the circumstances: s 43(2).
[24] Thus, the ESR, along with other Crown research institutes, remains a Crown entity with ultimate control resting in the Executive: see the discussion about the role of Crown entities as instruments of the Executive in Commissioner of Inland Revenue v Medical Council of New Zealand [1997] 2 NZLR 297 (CA) at pp 326‑331. But the ESR has a specific statutory role in relation to breath and blood-alcohol matters under the Land Transport Act. Amongst other things, it is an approved laboratory for the purpose of analysing blood samples and providing the statutory certificates under s 75(5) of the Act. As well, ESR scientists are frequently engaged by the police to provide expert evidence as to the correct operation of the devices and the ESR holds the relevant documentary records regarding the devices. As such, there is a close link between the police and the ESR in relation to the matters at issue in this proceeding.
[25] Notwithstanding these close relationships, the ESR is a legal entity separate from the police and traditionally has striven to uphold its independence and impartiality. In that respect, we accept that the ESR must remain and be seen to be independent of the police in the best traditions of scientific objectivity. We also accept that documents held by the ESR are not strictly within the “power” or “control” of the police in their prosecutorial role. To borrow from the established principles in civil procedure, the police are not lawfully entitled to demand production of the manual without the consent of some other person: Lonrho Ltd v Shell Petroleum Co Ltd [1980] 1 WLR 627 at p 635. In this case, at least the consent of Lion/CMI as the owners of the documents would be required and possibly the consent of an appropriate senior officer of the ESR as well.
We are satisfied that the Full Court was correct in its conclusions and, essentially, for the reasons they gave (in para [25]). The Crown research institutes were set up under the legislation as separate legal entities. Whether ESR is an agent of the Executive Government is not the present issue. Rather, it is whether the Police as prosecutor have an enforceable right to obtain the manual from ESR for inspection ahead of the hearing. Clearly they do not have that right and there is no basis for concluding that at the request of the Police the shareholding Ministers could and would give a specific direction to ESR to produce the manual to the Police which ESR could and would obey.
Discussion: implied power to order discovery pre‑trial?
It is clear from the earlier analysis at paras [11]‑[15] above that there is nothing in the Summary Proceedings Act which either expressly or by implication empowers the District Court to make pre‑trial rulings on discoverability of documents not in the possession or power of the prosecution. The cautious comments of Cooke P and Casey J in Commissioner of Police v Ombudsman provide no support for such a pre‑trial regime outside the hearing of the information. And the decision of Hammond J in Haskett v Thames District Court (1999) 16 CRNZ 376 upholding the three-stage process adopted in the District Court in summary proceedings, where following a plea of not guilty the information is adjourned for a status hearing and subsequently, if proceeded with, is adjourned for the substantive hearing and determination, may be best understood as treating that process as involving steps in the hearing of the charge which commenced with the taking of the plea, and not as stand‑alone pre‑trial hearings.
In the case of documents s20 of the Summary Proceedings Act, authorising the informant or the defendant to obtain a summons requiring any person to appear as a witness at the hearing and to bring and produce at the hearing any documents mentioned in the summons, is consistent with the absence of any power under the Summary Proceedings Act to require discovery from the prosecutor pre‑trial. The person summonsed may apply on or ahead of the date specified in the summons to have the subpoena set aside. At the hearing of that challenge, which is a step in the hearing of the charge, the trial Judge will be required to rule on any question of privilege or confidence that may then arise and may, of course, adjourn the hearing if the interests of justice require.
Section 35(1) of the Evidence Amendment Act (No 2) 1980 empowers the court to "excuse any witness (including a party) from answering any question or producing any document that he would otherwise be compellable to answer or produce, on the ground that to supply the information or produce the document would be a breach by the witness of a confidence that, having regard to the special relationship existing between him and the person from whom he obtained the information or document and to the matters specified in subsection (2) of this section, the witness should not be compelled to breach". By subs (3) the application may be made at any time before the commencement of the hearing of the proceeding or at the hearing.
In M v L [1999] 1 NZLR 747 the court noted that matters of inspection and discovery are separate from matters of testimony and admissibility. Referring to s35 the court said at p759:
The section is concerned with excusing "any witness” from answering any question or producing any document. Although the appellants will probably be witnesses at the trial, the section is obviously directed to the production of documents by a witness or party in that person’s capacity as a witness. At the discovery/inspection stage, the appellants are not being requested to produce the counselling notes in their capacity as witnesses, but in their capacity as parties. While an order can be sought under s 35(3) before the trial commences, any order made is obviously directed to what the person concerned can be required to answer or produce as a witness at the trial. For this reason, we are of the view that s 35 does not directly cover the position at the inspection/discovery stage.
The absence of any power under the Summary Proceedings Act to order non‑party discovery of documents pre‑trial is also supported by the Dobson line of cases, the most recent of which is R v Moore (CA 69/01, judgment 3 May 2001). In Dobson the court said at p8:
[T]he rights accorded by s 25 of the New Zealand Bill of Rights Act 1990, which was principally relied on, do not enable the Court to order a non-party to allow the defence access to material in his or her possession. A subpoena or witness summons can of course be served, and the trial Judge will then be required to rule on any question of privilege or of confidence that may arise. Where the Court has a discretion, as it does under s 35 of the Evidence Amendment Act (No 2) 1980, the discretion will be exercisable in the light of the rights affirmed by s 25, particularly para (a). But there can be no presumption in favour of disclosure. The competing interests must be carefully weighed and a judicial judgment exercised: see R v Secord [1992] 3 NZLR 570. If the outcome is to prejudice the conduct of the defence, then as a last resort a remedy can be given by way of stay or discharge: see generally R v Accused (CA 357/94) (1994) 12 CRNZ 417. If on the other hand the evidence is allowed in and the defence is disadvantaged by not having had earlier access to it, the Court has the discretion to grant an adjournment.
Moore concerned access pre‑trial to a report made by a psychologist in Family Court proceedings which was not in the possession or control of the prosecution and where the psychologist was not being called as a witness for the prosecution. Mr Moore had been committed for trial. Unless and until the defence had access to the psychologist's report they were unable to say that the psychologist would be summonsed under s20 and called as a witness at the trial. The District Court Judge refused the orders sought, holding that there was no general jurisdiction in criminal proceedings to order non‑parties to produce documents by way of discovery to the parties to the criminal proceedings.
This court's jurisdiction to hear an appeal against a pre‑trial ruling or order was governed by s379A of the Crimes Act 1961. The only provision counsel could refer to as covering the refusal of orders by the District Court Judge was s379A(1)(aa) which gives a right in respect of s344A applications concerning the admissibility of evidence. For the reasons it gave the court concluded that any ruling on admissibility would have been premature and that, as noted in R v Accused (CA 303/96) 14 CRNZ 516, 518, the court does not have power to order a non‑party to permit the defence access to material in its possession and the appropriate means of getting such material before the court for inspection is by subpoena or witness summons, referring to R v Dobson. We recorded that, as both counsel noted, there are practical procedural reasons grounded in good trial management and fair trial principles under the Bill of Rights for allowing such access and admissibility matters affecting non‑parties to be considered pre‑trial, as is specifically authorised by legislation in certain other jurisdictions (e.g. Canadian Criminal Code s278; and Criminal Procedure (Attendance of Witnesses) Act 1965 s2 (U.K.)).
Special Bill of Rights pre-trial process?
Mr Illingworth contended for a special Bill of Rights pre‑trial criminal discovery process directed to material which is not in the hands of the prosecutor in order to give substance to and vindicate defence rights to adequate time and facilities to prepare a defence (s24(d)) and to a fair trial (s25(a)). He proposed that the defendant should file an application specifying the material sought, supported by an affidavit setting out the reasons for seeking production, with notice to the prosecutor and to the custodian of the material; and that the defendant should also obtain a subpoena requiring the custodian to appear and produce the documents mentioned in the subpoena. The court would then carry out the balancing exercise in determining whether to order that the documents be available for inspection.
For the reasons which we can develop quite shortly, we are satisfied that the s20 procedure will accommodate all relevant factors and meet the interests of justice, including the important Bill of Rights values in this case and that there is no justification for providing a different and wholly Bill of Rights based remedy.
The first factor is the obvious consideration that the documentary material to which access may properly be sought is necessarily limited to the issues arising in respect of the offence charged. Where, as here, the statute expressly provides that breath‑testing devices approved by the Minister may be employed for evidential breath‑testing purposes and accords conclusive effect to the result (para [2] above) the issues involved in the determination of the charge and the scope for challenge by the defence are correspondingly narrowed.
R v Livingston [2001] 1 NZLR 167, a five Judge decision, is the leading authority. It was decided after the District Court decision in this case but before the High Court decision on appeal (and was not cited to the High Court) and it explained and qualified the oral judgment of a court of three in Police v McKay [1995] 1 NZLR 303 which was relied on in both the District Court and the High Court judgments.
Both McKay and Livingston were excess breath alcohol charges relying on approved evidential breath‑testing devices. In such cases, whether there has been a qualifying evidential breath test depends (a) on whether the test was carried out by a device of a kind approved by the Minister of Police by notice in the Gazette; and (b) on whether the test was carried out in a manner prescribed in respect of the device used by the Minister of Police by notice in the Gazette. In Livingston the court said at paras [9]‑[11]:
[9] When a device of an approved kind is operated in an approved manner, the statutory intent must be that the result is generally presumed to be reliable. Parliament cannot have intended the person accused to be able to challenge the general reliability of approved devices, or the general reliability of approved methods of operating them. In saying this we have not overlooked Police v McKay[1995] 1 NZLR 303 (CA) at p 305. There Cooke P in an oral judgment appeared to accept a concession of counsel in these terms:
There are two safeguards. First, the Minister may always revoke an approval if satisfied that a particular model of a device is defective or unreliable. Secondly, if there is in any case evidence raising a reasonable doubt as to the accuracy of the results produced by the model, when properly used as prescribed by the Breath Tests Notice or the instructions on or with the machine, then that device cannot be treated as within the ministerial approval. Mr Pike unhesitatingly accepted the existence of both safeguards
That statement should not be read as permitting a general attack on the reliability of tests when an approved device has been operated in an approved manner. That would undermine the whole purpose of the statutory approval regime.
[10] There may, however, be occasions when it is not the reliability in general terms of the approved device or its method of operation which is in issue, but rather a specific complaint that the device did not for some particular reason produce a reliable result on the particular occasion. Examples given by counsel were lack of proper maintenance, or the machine having been dropped just prior to the test. In such circumstances it must be open to the person accused to challenge the reliability of the device so far as their particular test is concerned.
[11] It can be seen from the foregoing that matters pertaining to whether the device was of an approved kind, or whether it was operated in an approved manner, are aspects of whether the test carried out fulfils the statutory definition of an evidential breath test. Such matters can for present purposes be called definitional issues. As such they are to be treated as matters of law, even if they involve issues of fact.
Clearly, too, merely to suggest or even prove deficiencies in maintenance of the particular machine will not suffice. Those deficiencies must be shown to be capable of affecting the reliability of the particular result. As the court in Livingston went on to say (para [13]), the issue is whether the machine produced a reliable result on the particular occasion when it is claimed there was some particular malfunction and that the defence must be able to point to a sufficient evidential foundation for the proposition that the device was not functioning reliably on that occasion: "Without such foundation the presumptive reliability of a test which has been properly conducted with an approved device will prevail, as must have been the legislative intention." In terms of the statutory scheme, unreliability is not lightly to be inferred.
Next, there is a clear distinction between disclosure by the prosecution and accessing material in the hands of persons not party to the proceeding. The non‑party holder of material has rights to privacy and property. Section 21 of the Bill of Rights affirms the right to be secure against unreasonable search or seizure. It reflects the amalgam of property, privacy and individual freedom values. A s21 inquiry requires weighing relevant values and public interests. As well, there may be ‑ as there are here ‑ obligations of confidence and rights of third parties in that regard, which have to be weighed. Those rights and obligations have to be assessed along with the fair trial rights of the defendant to access the documentary material.
The third consideration is that s24(d), on which Mr Illingworth particularly relies, while separately stated in the Bill of Rights, is in aid of the primary right to a fair trial (s25(a)), just as the right to present a defence (s25(e)) is also an aspect of fair trial. Thus, speaking of the provisions of the European Convention on Human Rights, parallel to s24 and including s24(d), the European Commission on Human Rights said in its Adolph report of 8 October 1980, cited in Theory and Practice of the European Convention on Human Rights, van Dijk and van Hoof, 2nd ed, at p345:
They exemplify the notion of fair trial ... but their intrinsic aim is always to ensure, or contribute to ensuring, the fairness of the criminal proceedings as a whole. The guarantees enshrined in Art.6(3) are therefore not an aim in themselves, and they must accordingly be interpreted in the light of the function which they have in the overall context of the proceedings.
And s24(d) is not a newly recognised right. The right to adequate facilities to prepare a defence is inherent in s354 of the Crimes Act 1961, which provides that "Every person accused of any crime may make his full defence thereto", and in fair trial at common law. Accordingly, if the s20 process will assure a fair trial it is difficult to argue that it will not also satisfy s24(d).
In its terms s24(d) is restricted by the language employed. The composite right is to "adequate time and facilities to prepare a defence". Governing both time and facilities, "adequate", in context, as a word of limitation is used in the sense of sufficient or necessary, not full or complete. And the expression "facilities" suggests an intended focus on the means of preparing a defence. The White Paper, "A Bill of Rights for New Zealand" states (para 10.130):
The facts of each case will determine what constitutes an adequate time for the purposes of this provision. "Facilities" to prepare the defence might include access to documents or other evidence required by the defence to prepare its case, the opportunity and the means for personal communication between the accused and counsel while the accused is in custody, and perhaps also access to a library and legal materials if the accused wishes to act in his own defence. (See Haji N A Muhammad "Due Process of Law for Persons Accused of Crime" in Henkin (ed) The International Bill of Rights (1981) p152).
And to similar effect, Harris and Joseph, The International Covenant on Civil and Political Rights and United Kingdom Law, (1995) p223:
The accused must have adequate time and facilities for the preparation of his or her defence and to communicate with counsel of his or her own choosing. The Committee has noted that what is "adequate time" depends on the circumstances; that facilities must include access to documents and other evidence required for preparation of the case; that there should be full respect for the confidentiality of lawyer‑client communications; and that lawyers should be able to represent their clients without any "restrictions, influences, pressures or undue interference from any quarter".
See, also, Stavros, The Guarantees for Accused Persons under Article 6 of the European Convention on Human Rights, 177‑183; Harris, O'Boyle, Warbrick, Law of the European Convention on Human Rights, 254‑256; and Nowak, U.N. Covenant on Civil and Political Rights CCPR Commentary, 256.
The fourth relevant feature of this case is that there is no difference in the test to be applied to the application to access the material, whether viewed as going to the admissibility of evidence (s20) or to fair trial. The defence want to have the manual admitted in evidence. It follows that the case does not require consideration of the concerns expressed by Lord Hoffmann in DPP v McKeown (para [25] above) and earlier by Goff LJ in Regina v Skegness Magistrates' Court, Ex parte Cardy [1985] RTR 49 where the applicants were essentially seeking general discovery of the manner in which the Intoxilyser device functions.
Finally, where access to documentary material is challenged under s20 by a non‑party the court is required to weigh and balance the various factors raised to determine whether in the interests of justice access to the material should be provided and, if so, on what terms. It is not sufficient to carry the day for the applicant that the material is likely to be relevant to the issues at the trial or that it may assist the defence. The importance of the material to a fair trial has to be such as to over‑ride all other public interest considerations, including privacy and property rights of the non‑party in possession of the material and any confidentiality obligations and confidentiality rights of third parties.
That is explicitly reflected in s35(2) of the Evidence Amendment Act (No 2) 1980. In weighing the public interest considerations the court is required to have regard to the matters specified, which include "(a) The likely significance of the evidence to the resolution of the issues to be decided in the proceeding". And as the court said in R v Dobson (para [28] above), and repeated in R v H [2000] 2 NZLR 257, 265, where the court has a discretion, as it does under s35, the discretion will be exercised in the light of the rights affirmed by s25 of the Bill of Rights, but there can be no presumption in favour of disclosure and the competing interests must be carefully weighed and a judicial judgment exercised. Where other competing interests are also guaranteed by the Bill of Rights, as here, the exercise of the discretion will weigh those rights of the non‑party along with other public interest considerations, including, of course, the fair trial rights affirmed by s25.
Again, in R v Griffin (CA 245/00, CA 270/00, judgment 10 April 2001) where the applicant, relying on s24(d) argued that he was entitled to require the complainant to submit to a psychological examination, the majority saw the balancing test as requiring the rejection of the application unless the accused has shown that without the requested examination he would be so handicapped in the preparation or presentation of his defence that a fair trial would not be possible. And in R v B [1995] 2 NZLR 172, where the accused had sought an invasive medical examination of the complainant, Gault J emphasised at p187 that fair trial means "fair bearing in mind not just the interests of the accused but also the interest of the complainant not to be placed under pressure to submit to examination and to the interest of the community to have allegations of serious criminal activity prosecuted". See also Richardson J at p184 and Hardie Boys J at p186. Gault J went on to explain that the threshold in that case would have to be set high to justify foreclosing the normal trial process.
Clearly, the test for the granting of the access application must be influenced by the consequences for the trial and so by the degree of likelihood that the prosecution will feel obliged to abandon the trial if the application is granted or that the defence will be seriously handicapped in pursuing a not guilty plea if it is refused. Of course, it will not always be appropriate to equate the interests of non‑parties with those of complainants. The crucial point is that the judicial balancing must be fact specific, weighing the interests and values involved in the particular circumstances.
We are satisfied that the s20 procedure with the right to challenge the subpoena to produce documents sufficiently encompasses all factors relevant in this case. The power to adjourn the hearing provides any necessary flexibility.
Conclusions and result
Mr Brown sought discovery of the manual in the District Court from the prosecutor, not directly against ESR, and the argument in the District Court was confined to three issues, the first of which was whether the information sought was relevant to the issue to be determined in the case (paras [5] and [6] above). The District Court Judge held in essence that the documents were of material relevance to the defence and would be of assistance to the defence in that regard (para [7]).
It is not surprising that because of the approach that was taken, the wrong test was applied. The High Court judgment suffers in the same way from the failure to give real weight to the ordinary conclusiveness of the evidential breath test results and to focus on ESR as the proper respondent and on the overall balancing required on applications to access material in the hands of persons not party to a proceeding.
Accordingly, the appeal is allowed, the orders made in the High Court are quashed and the relief sought in the application for judicial review, namely, quashing the decision of the District Court ordering production of the manual, is granted. Mr Brown, if so advised, may follow the s20 procedure and seek access to the manual from ESR. We understand that by arrangement no questions of costs arise.
Solicitors
Crown Law Office, Wellington, for appellant
D S C Reid, Auckland, for second respondent
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