Bain v Minister of Justice

[2013] NZHC 2123

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2013-404-439 [2013] NZHC 2123

BETWEEN  DAVID CULLEN BAIN Applicant

ANDMINISTER OF JUSTICE Respondent

Hearing:                   6, 7 August 2013

Counsel:                  M P Reed QC & M A Karam for Applicant

K P McDonald QC & E Child for Respondent

Judgment:                21 August 2013

JUDGMENT OF KEANE J [Re Discovery]

This judgment was delivered by  on 21 August 2013 at 4.45pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/ Deputy Registrar

Date:

Solicitors:

Crown Law Office, Wellington for Respondent

DAVID CULLEN BAIN v MINISTER OF JUSTICE [2013] NZHC 2123 [21 August 2013]

[1]      In 1995 David Bain was convicted of the murders in 1994 of five members of his family. In 2007 the Privy Council quashed his convictions and ordered that he undergo a new trial.1 In June 2009, at his second trial, he was acquitted on all counts. He had then spent 13 years in prison. On 25 March 2010 he applied to the then Minister of Justice, Hon Simon Power, seeking compensation.

[2]      Mr Bain was not then eligible to be considered under the Cabinet Guidelines governing compensation for wrongful conviction and imprisonment. The Privy Council had granted his appeal but it had ordered a retrial. The retrial order made him ineligible under the Guidelines. Mr Bain relied rather on the Cabinet decision approving the Guidelines, dated 2 December 1998, under which Cabinet agreed to this extension:

The Crown reserve(s) the right, in extraordinary circumstances, to consider claims falling outside the criteria specified ... on their individual merits, where this is in the interests of justice.

[3]      On 10 November 2011  the Minister appointed Hon Ian  Binnie QC, CC, formerly a Judge of the Supreme Court of Canada, to advise him on the two issues central to Mr Bain's claim.

[4]      Mr Binnie QC was to advise the Minister whether he was satisfied that Mr Bain was innocent to the balance of probabilities, as to which Mr Bain carried the onus of proof; and, if he was satisfied to that standard, whether he was also satisfied that Mr Bain was innocent beyond reasonable doubt. He was also to advise the Minister as to any other factors particular to Mr Bain’s case that he considered relevant to the Executive’s assessment whether there were ‘extraordinary circumstances’ that made it just to consider Mr Bain’s claim.

[5]      On 30 August 2012 Mr Binnie QC advised the present Minister, Hon Judith Collins, that Mr Bain had satisfied him that he was innocent to the balance of probabilities, but had not satisfied him of that beyond reasonable doubt. He also advised the Minister that there were ‘extraordinary circumstances’ that made it just

that Mr Bain be compensated: ‘the egregious errors of the Dunedin police that led

1      Bain v R [2007] UKPC 33, (2007) 23 CRNZ 71 (PC).

directly to the wrongful conviction’. Mr Binnie QC recommended that Mr Bain be

compensated.

[6]      The Minister, after taking advice from the Solicitor-General on 12 September

2012, and of responses from the New Zealand Police before that date and afterwards, on 26 September 2012 instructed Hon Dr R L Fisher QC, a former Judge of this Court, to 'peer-review' the Binnie report. On 13 December 2012, in an interim report, Dr Fisher put in issue Mr Binnie QC's method of analysis, and thus his conclusions and recommendation. He recommended a fresh review.

[7]      Mr Bain and his advisers did not receive a copy of either report until the Minister released both reports publicly on 13 December 2012. The Minister considered that she was not obliged to release the Binnie report to Mr Bain and his counsel any earlier, or to release to them the Fisher report at all, or to consult with them about either report.

[8]      To report responsibly to Cabinet, the Minister considered, she was entitled, indeed obliged, to assess Mr Binnie QC's report for herself assisted by confidential legal  advice.  Mr  Bain's  claim  was  outside  the  Cabinet  Guidelines  and,  she considered, the evaluative process it prescribes did not apply. Cabinet's decision whether to grant Mr Bain compensation was entirely discretionary.

[9]      On 30 January 2013 Mr Bain brought this application for judicial review contending that, when the Minister withheld the Binnie report from him and did not disclose to him that she was seeking to have it peer-reviewed by Dr Fisher QC, she denied him natural justice. She predetermined his application for compensation and exhibited bias. He seeks related declarations that she frustrated his legitimate expectations and has acted unreasonably and invalidly. He seeks, without being more specific, such directions as are just and appropriate.

[10]     On 4 February 2013 the Cabinet decided that Mr Bain's compensation claim should be put on hold until Mr Bain’s application for judicial review is resolved; and on 16 April 2013, in the face of the Minister’s challenge, I decided that Mr Bain was

entitled to bring that application here in Auckland, rather than in Wellington, and is entitled to have it heard here.2   I have now to decide a further preliminary issue.

Preliminary discovery – privilege issue

[11]     On 12 March 2013,  with the consent of the  Minister,  I made a tailored discovery order in this review proceeding, in terms acceptable to Mr Bain, under which the Minister agreed to disclose to him all documents in the categories that the order specifies, except those for which she was entitled to claim privilege.

[12]     Two affidavits of documents have been sworn for the Minister by the Chief Legal Counsel of the Office of Legal Counsel of the Ministry of Justice, Jeffrey Orr; the first on 17 April 2013 and an amended version on 31 May 2013.  In those affidavits the Minister accepts that Mr Bain is entitled to some 600 documents. She claims legal-advice privilege for between 200 – 250 documents held by her office and by the Ministry of Justice, by the Attorney-General, and by the Solicitor-General and the Crown Law Office, and by her counsel on this application, Ms McDonald QC.

[13]     Mr Bain challenges the Minister’s privilege claim and to decide that question I must touch on the issues to be resolved, when Mr Bain’s review application is heard on its merits. But that is all I need to do, all I can do and all I am entitled to do. Those issues are only relevant presently to the extent that they go to Mr Bain’s right to discovery and the Minister’s right to claim legal-advice privilege, as to which I

have only the statements of claim and defence and very limited untested evidence.3

Likely primary review issues

[14]     On the hearing of the judicial review itself, once discovery is complete and

full evidence is filed, a primary issue likely to be relevant to all of Mr Bain’s grounds

for  relief  is  as  to  the  capacity  in  which  the  Minister  of  Justice  acts,  when  a

2      Bain v Minister of Justice [2013] NZHC 743.

3      Mr Orr’s two affidavits of documents; two background affidavits, one from Mr Bain and the other from Mr Orr; and two other affidavits, one from Mr Orr and one from Margaret Malcolm, a senior adviser to the Minister, in answer to Mr Bain’s interrogatories.

compensation claim is made under the Cabinet Guidelines, or as is the case here

under the ‘extraordinary circumstances’ extension.

[15]     Is the Minister’s role,  as Mr Bain contends,  merely administrative? Is it merely to ‘oversee’ the claim on behalf of the Cabinet, to ensure that it is assessed under the Guidelines or analogously under the extension? Is it then merely to submit to Cabinet the claim, as advised upon, without the Minister assessing for herself whether and when the claim should be submitted to Cabinet? Or is it, as the Minister contends, to scrutinise the claim, once advised upon, and to decide whether the advice received is reliable? Is she entitled, as she contends, to withhold a claim from Cabinet completely or until she is satisfied that the advice received is reliable?

[16]     A second and more specific primary issue, likely to be central to Mr Bain’s claim that he has been denied natural justice, is this. If the Minister did have the right to take a second opinion as to the reliability of the Binnie report, was she entitled to do so in confidence, as she did, without allowing Mr Bain any part to play?

[17]     As to that issue, Mr Bain already has, it seems to me, documents that may prove significant. He has the instructions given to Mr Binnie QC by the Hon Simon Power on 10 November 2011 authorising the inquiry in which he was accorded a right to be heard. He has the letter from the present Minister to Dr Fisher QC, dated

26 September 2012, in which she instructed Dr Fisher to peer-review the Binnie report, in which he was not accorded a right to be heard. He has the police reports commenting on the Binnie report.

[18]     What Mr Bain lacks and wants is the Solicitor-General’s opinion, dated 12

September 2012, the Crown Law Office file, and any related Ministry papers, which may explain why the Minister elected to act as she did, and which may be relevant to the issues arising under the other grounds on which he seeks declaratory relief. He wants any documents that may demonstrate that the Minister predetermined his claim and exhibited bias. They also will be primary issues on his judicial review.

[19]     The Minister has accepted, in the two affidavits of documents filed on her behalf, that documents relevant to all these issues must be disclosed on oath. No

issue has thus far arisen as to whether she has disclosed all the documents that may conceivably be relevant. What is in dispute is whether, as to the documents she has disclosed she has the right to claim legal-advice privilege.

Specific discovery-privilege issues

[20]     The question whether the Minister is entitled to invoke, as she has, legal- advice privilege under s 54 of the Evidence Act 2006, involves a number of issues; and the first is as to the nature and extent of her duty of candour as a Minister of the Crown,  responding  to  an  application  for  judicial  review;  and  as  to  how  that reconciles with her duty to make discovery and her right to claim privilege.

[21]     Mr Bain contends that her duty of candour is paramount and, at the least, requires her to justify her claim of privilege to a greater extent than a private litigant might have to. He contends as well that she has to be in breach of that duty, arguing that she has not discharged the onus it imposes on her. The Minister contends that she has met her duty of candour by complying with her duty to make discovery, and that her duty in both respects is limited by her right to claim legal-advice privilege; a right conferred by statute.

[22]     The  second  issue  is  as  to  the nature of s  54  legal-advice privilege;  and whether it is a condition precedent to that privilege that the author of any document, said to attract the privilege, is independent of the client’s control and is able to give neutral legal advice uncompromised by bias. It is not enough, Mr Bain contends, that,  as  s 54  explicitly  requires,  the  author  be  a  ‘legal  adviser’ with  a  current practising certificate, subject to the profession’s ethics and discipline. The author must also be capable of supplying the Minister with ‘professional legal services’, intrinsic to both of which, he contends, is independence in the two ways he speaks of.

[23]     Legal officers within the Ministry, Mr Bain contends, cannot be a source of s 54 legal-advice privilege to the Minister, because they are not independent of her.

As a matter of public law, under the Carltona principle,4  they are her alter ego and

4      Carltona v Commissioner of Work [1943] 2 All ER 560 (CA).

she and they are deemed to be one. As to the Solicitor-General and Crown counsel, Mr Bain contends also, while institutionally they may appear independent of the Minister, they cannot be neutral objective or accurate. They are compromised by their parts in his second trial, in his preceding appeals, on his petition for the exercise of the prerogative of mercy, and during the Binnie inquiry concerning his compensation claim following his acquittal. They are his opponents. Ministry legal officers, he contends, may be equivalently compromised.

[24]     The  Minister  contends,  in  response,  that  she  is  entitled  to  claim  s  54 legal-advice privilege for any document giving her legal advice relating to Mr Bain’s claim, and for any reasonably related document, whether from  a Ministry legal officer, or from the Solicitor-General or Crown counsel. As long as the author is a lawyer with a practising certificate, subject to the ethics and discipline of the profession, that suffices. There is no condition precedent to the privilege that the lawyer be independent in the two senses Mr Bain contends for.

[25]     If I conclude that, as Mr Bain contends, s 54 does require that the author of advice be independent in the two senses he identifies (and even if I conclude that not to be so), I must then consider the two issues that entails. The first is whether, as a matter   of   law,   Ministry   legal   officers   with   practising   certificates   can   be institutionally independent of the Minister’s control. The second, as to the Solicitor- General and Crown counsel, is an issue of fact for the review itself, to the extent that it then arises. For the present I need only, and can only on the evidence I have, consider  whether  they  may  have  been  compromised  by  a  conflict  in  roles  and whether that might negate the privilege claimed.

[26]     The  third  issue  is  whether,  if  the  Minister  is  entitled  to  claim  s  54 legal-advice privilege, that privilege is personal to her or is rather the privilege of the Crown, understood as the executive branch of government as a whole. Mr Bain contends that the Minister’s role in the compensation claim process is personal to her in that she is the Minister designated to ‘oversee’ that process on behalf of the Cabinet. Thus, he contends, any related legal-advice privilege must be personal to her as the Minister designated.

[27]     By   disclosing   to   the   New   Zealand   Police   her   advice   from   the Solicitor-General, dated 12 September 2012, Mr Bain then contends, the Minister has disclosed that advice to a third party and waived any privilege under s 65 of the Evidence Act 2006. To the extent that the Minister conveyed that advice to Dr Fisher QC, when she instructed him, he contends, she again waived any such privilege. In each instance, he contends, she did so not just for herself, but on behalf of the Crown as a whole. The Minister contends, quite shortly, that her privilege was and remains that of the Crown as a whole and that she did not, and could not, waive it. That was a decision for the Attorney-General.

[28]     The fourth issue is whether, if the Minister was entitled to claim s 54 legal- advice privilege and has not waived it, the documents for which she has claimed that privilege arose within the continuum of a relationship with her advisers, the purpose of  which  was  to  equip  her  with  legal  advice,  the  confidentiality  of  which  the privilege protects. To decide that issue I have reviewed each of the documents for which privilege is claimed.

Duty of candour

[29]     The Minister, Mr Bain contends, is under the high duty of candour that Lord Donaldson MR described in 1986 in R v Lancashire County Council ex p Huddleston;5 and for the reasons he gave.

[30]     On judicial review, Lord Donaldson MR said, ‘a new relationship’ has arisen

‘between the Courts and those who derive their authority from public law’.6 It is, he said, ‘one of partnership based on a common aim, ... the maintenance of the highest standard of public administration’.7 Judicial review, he said, requires an equally open process, ‘which falls to be conducted with all the cards upwards on  the table’,

recognising that ‘the vast majority of the cards will start in the authority’s hands’.8

5      R v Lancashire County Council ex p Huddleston [1986] 2 All ER 941 (CA).

6      At 945.

7      At 945.

8      At 945.

[31]     This duty, as Mr Bain says, was reaffirmed authoritatively in 2007 by the House of Lords in Tweed v Parades Commission for Northern Ireland;9  and, he contends, the Minister is fixed with that very duty when making discovery as the High Court Rules require and, when claiming privilege, as the rules allow. The Minister, he contends, is not an ordinary litigant. She has a greater than usual onus to disclose any relevant documents she holds and her present resort to privilege has to

be irreconcilable with her duty as he identifies it.

[32]     The Minister contends, in response, as I have said, that she has met her duty of candour by consenting to, and by complying with, the tailored discovery order I made on 12 March 2013. Her claim to legal-advice privilege, she contends, rests on a right secured to her by statute. It is a right that she has exercised in a considered and responsible way.

Disclosure duties - United Kingdom

[33]     In the United Kingdom the duty of candour is as significant as it is because until 1978 anyone challenging by application for judicial review the decision of a minister, or Crown entity or instrument, had no right to obtain discovery; and, even since 1978, formal discovery, there called ‘disclosure’, calls for the leave of the Court and leave is given sparingly.10

[34]     Even in 2007, as Lord Bingham explained in the Tweed case, while formal disclosure may be a ‘valuable means of eliciting the truth and ... enabling Courts to base  their  decisions  on  a  sure  foundation  of  fact’,  it  can  also  be  ‘costly, time-consuming, oppressive and unnecessary’.11 And, on judicial review, formal disclosure may well be uncalled for because applications ‘characteristically, raise an issue of law, the facts being common ground or relevant only to show how the issue

arises’.12

9      Tweed v Parades Commission for Northern Ireland [2007] 1 AC 650 (HL).

10     Harry Woolf, Jeffrey Jowell, Andrew Le Sueur, Catherine Donnelly and Evan Hare De Smith’s

Judicial Review (7th ed, Sweet & Maxwell, London, 2013) at [16-069].

11     Tweed v Parades Commission for Northern Ireland, above n 9, at 655.

12     At 655.

[35]   There can be review cases, Lord Bingham recognised, where the facts underlying a decision will call for ‘careful and accurate evaluation’. But, as he then said:13

Even in these cases, orders for disclosure should not be automatic. The test will always be whether, in the given case, disclosure appears to be necessary in order to resolve the matter fairly and justly.

And then:14

There may ... be reasons (arising, for example, from confidentiality, or the volume of the material in question) why the document should or need not be exhibited. The Judge to whom the application for disclosure is made must then rule on whether, and to what extent, disclosure should be made.

In the same vein, Lord Brown added that on judicial review, ‘disclosure orders are likely to remain exceptional’ and, “the Courts should continue to guard against what appear to be merely ‘fishing expeditions’ for adventitious further grounds of challenge.” 15

[36]     Widely expressed, then, though the duty of candour may be in the United Kingdom, that duty has ultimately to be measured against the extent to which the Courts there will intervene by order to ensure that a minister or Crown entity or instrument is candid. At that point the duty appears to become indistinguishable from the duty of disclosure that ministers and Crown entities or instruments come under in New Zealand under the discovery regime.

Disclosure duties - New Zealand

[37]     In New Zealand Ministers, whose exercise of statutory responsibility is under review, have always been under a duty, in affidavits made by or for them, to be candid about how and why they have acted or decided as they have. As Cooke P said in New Zealand Fishing Industry Assn Inc v Minister of Agriculture & Fisheries:16

The Courts recognise that they should not trespass into the legitimate policy sphere  of  ministers.  The  constitutional  corollary  should  be  ministerial

13     At 655.

14     At 655.

15     At 673.

16     New Zealand Fishing Industry Assn Inc v Minister of Agriculture & Fisheries [1988] 1 NZLR

554 (CA).

candour with the Courts about their policy. That does not seem too much to ask.

[38]     That duty of candour in its most complete sense will only become fully relevant once discovery is complete and affidavits are filed by Mr Bain and for the Minister. The duty with which we are presently concerned is the Minister’s duty of discovery: to disclose to Mr Bain the relevant documents that she holds and to distinguish between those she is prepared to release to him from those for which she claims privilege.

[39]     This duty crystallises in one or both of two ways. It may crystallise under an order for discovery made in the review proceeding under s 10(2)(i) of the Judicature Amendment Act 1972, or under the ordinary discovery regime in the High Court Rules,17   or  in  both  those  ways.  In  whichever  way  it  crystallises  it  is  a  highly important duty as our Court of Appeal has confirmed.

[40]     In Environmental Defence Society Inc v South Pacific Aluminium Ltd, on an application for review challenging the validity of an order in council, the Crown contended that it was under no duty in that particular case to answer interrogatories or to make discovery.18 The Court of Appeal rejected that submission outright.

[41]     Discovery, Cooke P said, is ‘readily obtainable in litigation and often it is essential to enable justice to be done’.19 If the Crown were immune in that case from a duty to make discovery, he said, that could render the challenge there made to the order in council ‘virtually impossible’.20 Yet the Court had express power to review judicially the validity of that order and the review had to be real; ‘public confidence

... in judicial safeguards would be shaken if the Court were to confine the scope of review so narrowly as to invite suggestions of rubber-stamping’.21 Parliament could not have intended, he said, that the Court should ‘shackle itself by denying access to

highly relevant evidence’.22

17     High Court Rules, r 8.5.

18     Environmental Defence Society Inc v South Pacific Aluminium Ltd [1981] 1 NZLR 146 (CA).

19     At 150.

20     At 150.

21     At 150.

22     At 150.

[42]     All of that said, in that case the Court of Appeal found the interrogatories asked for to be fishing and oppressive and only required the Minister to disclose on oath the documents of ‘cardinal importance’,23  without prejudice to the Crown’s right to claim public interest immunity; a claim the Court did not need to evaluate on that appeal.

[43]     In this case there is no such issue. The Minister, by consenting to the tailored discovery order, an order acceptable to Mr Bain, has met the threshold duty of candour that Cooke J identified; the indispensable bench mark for which has to be the standard duty to make discovery under the High Court Rules.

Standard discovery

[44]     The standard duties, to which the Minister’s tailored order responds, begin with the duty she came under immediately she filed her statement of defence. The Minister then had to serve on Mr Bain any documents to which it referred and any on which she had relied or intended to rely to prepare her defence.24

[45]     Had there then been standard discovery she would have had to disclose any documents that were or had been in her control, or on which she relied, or that might adversely affect her case or that might affect positively or adversely Mr Bain’s case.25 Equally, under the rules, the Minister’s duty was not and is not absolute.

[46]     The Minister was and remains entitled to decline to produce for inspection any document for which she claims privilege;26  a right the tailored order agreed expressly recognises. Mr Orr’s two affidavits of documents, as the rules require and permit, are to that scheme.27

Privilege challenge process

[47]     A challenge to privilege under the High Court Rules calls normally for a formal application under r 8.25; and while that has been dispensed with here by

23     At 150.

24     High Court Rules, r 8.4(1).

25     Rule 8.7.

26     Rule 8.4(5).

27     Rule 8.16.

consent, it is from r 8.25 that I derive the ability to resolve Mr Bain’s challenge, whether by setting aside or modifying the Minister’s claim to privilege, or by dismissing Mr Bain’s application, or by making any other order relating to any document under review that I think just.28

[48]     Rule 8.25, to the extent that it prescribes by what process the Minister’s challenged privilege claim is to be evaluated and upheld, set aside or modified, says simply this:29

In considering the application, a Judge may require the document under review to be produced to the Judge and may inspect it for the purpose of deciding the validity of the claim.

[49]     To challenge the Minister’s claim of privilege sufficiently, Mr Bain contends however, relying on an Australian case, and related cases, all he has to do is to challenge her claim credibly by sworn evidence.30    The Minister, he contends, then comes under a legal onus to maintain her privilege claim. If she cannot do so her claim must be rejected.

[50]     In the leading Australian case, Grant v Downs, the High Court of   Australia said this:31

It is for the party claiming the privilege to show that the documents for which the claim is made are privileged. He may succeed in achieving this objective by pointing to the nature of the documents or by evidence describing the circumstances in which they were brought into existence. But it should not be thought that the privilege is necessarily or conclusively established by resort to any verbal formula or ritual.

[51]     The High Court in that case then encouraged resort to the documents for which privilege was claimed, the exercise of the power expressly conferred in New Zealand by r 8.25(2), saying:32

The Court has power to examine the documents for itself ... (and) in many instances the character of the documents the subject of the claim will illuminate the purpose for which they were brought into existence.

28     Rule 8.25(3).

29     Rule 8.25(2).

30     Vance v McCormack (2004) 154 ACTR 12 (FC) at [53].

31     Grant v Downs (1976) 11 ALR 577 (HC) at 589.

32     High Court Rules, r 8.25(2).

[52]     In Australia, as Mr Bain contends moreover, it now appears commonplace that a claim of privilege be supported by evidence identifying the circumstances in which the communication took place on the topics, or instructions, or advice, to which they were directed.33  To make an informed assessment of the claim that is considered essential.34 The evidence given can then be tested at a hearing, akin to a voir dire, at which the deponents can be cross-examined.35

[53]      In New Zealand, by contrast, resort to the documents themselves, now under r 8.25(2), has been the primary and, it seems, the only way in which claims to privilege have been evaluated; and that ability to inspect the documents and to assess their subject matter, and thus their provenance, has been endorsed, for the reason identified in Grant v Downs, as decisively valuable in itself.

[54]     In Guardian Royal Exchange, Cooke J said that inspection of the documents in that case, as in others, had proved ‘illuminating’, and he remarked that Judges of this Court appeared to have been resorting to the documents quite commonly when evaluating privilege claims; a practice to be encouraged:36

Experience suggests that its advantage in being likely to lead to a more just decision outweighs the disadvantage that only the Judge and not the other side sees the documents if the claim to privilege is upheld. Accordingly, in the field of legal professional privilege at least, I think that in general a Judge who is in any real doubt and is asked by one of the parties to inspect should not hesitate to do so.

[55]     In Seamar Holdings the Court of Appeal again endorsed direct resort to the documents:37

... good reason would be needed for the imposition of a fetter on the power of the Judge to inspect for the purpose of ruling on ... privilege. That the Judge will not have the assistance of evidence and submissions on the true significance of the documents does not appeal as sufficient reason. A ruling on the application for production of documents is not, and no Judge would treat it as, a prejudgment of the substantive case. A ruling after inspection of the documents, albeit unassisted, is more likely to further the ends of justice than a ruling without any inspection of the documents.

33     Kennedy v Wallace (2004) 213 ALR 108.

34     National Crime Authority v S (1991) 100 ALR 151 at 159.

35     Barnes v Commissioner of Taxation [2007] FCA 88 at [18].

36     Guardian Royal Exchange of New Zealand v Stuart [1985] 1 NZLR 596 (CA) at 599.

37     Seamar Holdings v Kupe Group Ltd [1995] 2 NZLR 274 (CA) at 279.

[56]     There is only one case to which I have been referred in which there is any suggestion that the Australian hearing practice may have some part to play. In Miller v Commissioner of Inland Revenue, where the issue was whether in-house solicitors within the Department  of  Inland Revenue could  be a source of legal-advice or litigation privilege, Baragwanath J, in terms later endorsed on the appeal, said this:38

In my view the proper approach where such issue arises is to require the inhouse practitioner to demonstrate affirmatively that he or she has been acting as a lawyer and not simply as an employee possessing specialist skills.

If that is shown the purpose for which the document comes into existence will then be explored. But if not there will be no occasion for considering it.

[57]     In this case any onus to give context to the documents in issue appears to me arguably to have been discharged by Mr Orr, the Ministry senior legal counsel, when in his background affidavit he states the qualifications of Ministry legal officers and the part he and they play when a claim is made for compensation; and also describes the parts played by the Solicitor-General and Crown Counsel.

[58]     Mr Bain did not seek leave to cross-examine Mr Orr and his evidence must be taken at face value uncontradicted. Whether  a hearing in the nature of a voir dire, according to the Australian practice, may have a part to play in New Zealand on a privilege challenge will have to await a case in which that issue directly arises.

Legal-advice privilege

[59]     Just as the Minister has the duty to make discovery, so she has the right to refuse to disclose any ‘communication’, and any ‘information’ in a communication or beyond it, or any ‘opinion’ founded on either if they attract privilege. The Minister is given that right, as everyone is, by s 53(1) of the Evidence Act 2006.

[60]     Beyond asserting that the Minister has a duty of candour, Mr Bain does not challenge as such the Minister’s s 53(1) right to claim the privileges the Evidence Act 2006 confers. What he can and does do is to contend that the documents for

which the Minister has claimed s 54 legal-advice privilege do not attract it. (He does

38     Miller v Commissioner of Inland Revenue (1997) 18 NZTC 13,001 (HC), 13,018; [1999] 1

NZLR 275 (CA) at 296 - 297.

not challenge the Minister’s claim to s 56 litigation privilege, which concerns advice

she has received on his application for judicial review.)

[61]     The public policy underlying legal-advice privilege is clear. It rests on the reality, as the Supreme Court of Canada said in Blank v Canada (Minister of Justice), when distinguishing that privilege from litigation privilege, that: 39

... the justice system depends for its vitality on full, free and frank communication between those who need legal advice and those who are best able to provide it. Society has entrusted to lawyers the task of advancing their client’s cases with the skill and expertise available only to those who are trained in the law. They alone can discharge these duties effectively, but only if those who depend on them for counsel may consult them in confidence. The resulting confidential relationship between solicitor and client is a necessary and essential condition of the effective administration of justice.

[62]     This public policy principle is not to be diluted. Legal privilege, the Privy Council said in B v Auckland District Law Society, is not merely one public interest to be balanced against others.40   It is already the product of a balancing exercise. If a document does attract legal-advice privilege, that privilege is able to be claimed undiluted.

[63]     Independence, as a condition precedent to the privilege, only became an issue when lawyers began to be employed by corporations and government departments. Until then it was taken for granted that lawyers in conventional practice, subject to the ethics and discipline of their profession, could always be a source of the privilege as long as the document in issue attracted the privilege according to its context and tenor.

[64]     In 1972, in Alfred Crompton, Lord Denning MR did not see any ground, or any need, to disqualify in-house lawyers from being a source of legal-advice privilege.41   He  saw  no  basis  to  distinguish  them  from  lawyers  in  conventional

practice. He said this:42

39     Blank v Canada (Minister of Justice) [2006] 2 S.C.R. 319 at [26].

40     B v Auckland District Law Society [2004] UKPC 38, [2004] 1 NZLR 326 (PC).

41     Alfred Crompton Amusement Machines Ltd v Customs & Excise Comrs (No 2) [1972] 2 QB 102 (CA).

42     At 129.

They are regarded by the law as in every respect in the same position as those who practise on their own account. The only difference is that they act for one client only, and not for several clients. They must uphold the same standards of honour and of etiquette. They are subject to the same duties to their client and to the Court. They must respect the same confidences. They and their clients have the same privileges.

[65]     In 1987, in Waterford v Commonwealth, a decision of the High Court of Australia,  however,  Brennan  J  identified  a  basis  on  which  independence  as  a condition precedent to the privilege might arise: 43

If the purpose of the privilege is to be fulfilled, the legal adviser must be competent and independent. Competent, in order that the legal advice be sound and the conduct of litigation be efficient; independent, in order that the personal loyalties, duties or interests of the adviser should not influence the legal advice which he gives or the fairness of his conduct of litigation on behalf of his client. If a legal adviser is incompetent to advise or to conduct litigation or if he is unable to be professionally detached in giving advice or in conducting litigation, there is an unacceptable risk that the purpose for which the privilege is granted will be subverted.

[66]     The reasons Lord Denning MR gave for assuming that in-house lawyers were as capable of being independent as those in usual practice, Brennan J said, were

‘pious but unreal’.44  However, he joined with the other members of the High Court

in agreeing that Crown and departmental legal advisers had the institutional independence called for.45

[67]     In New Zealand the issue whether the independence of the legal adviser is a condition precedent to the privilege is not a matter of policy choice. Section 54(1) expresses the privilege and whether it imports that condition precedent is a matter of interpretation. Section 54(1) says this:46

A person who obtains professional legal services from a legal adviser has a privilege in respect of any communication between the person and the legal adviser if the communication was –

(a)       intended to be confidential; and

(b)       made in the course of and for the purpose of –

43     Waterford v Commonwealth [1986] – [1987] 163 C.L.R. 54 (HC) at 70.

44     At 71.

45     At 72 - 73.

46     Evidence Act 2006, s 51(1).

(i)       the  person  obtaining  professional  legal  services  from the legal adviser; or

(ii)      the legal adviser giving such services to the person.

[68] To attract s 54(1) privilege the advice must come from a ‘legal adviser’; meaning a ‘lawyer’, as defined by s 6 of the Lawyers and Conveyancers Act 2006,47 who ‘holds a current practising as a barrister or barrister and solicitor’. It must also be advice given confidentially ‘in the course of and for the purpose of ... professional legal services’.

[69] ‘Professional legal services’ are not defined but, Mr Bain contends, inherent in that concept, as in the definition of ‘legal adviser’, has to be the notion that the advice be given with independence in the two senses he contends for. Under s 4 of the Lawyers and Conveyancers Act 2006, he points out, ‘lawyers’ who provide

‘regulated services’ must comply with four fundamental obligations:

(a)      The obligation to uphold the rule of law and to facilitate the administration of justice in New Zealand:

(b)       The obligation to be independent in providing regulated services to his or her clients:

(c)       The obligation to act in accordance with all fiduciary duties and

duties of care owed by lawyers to their clients:’

(d)       The obligation to protect, subject to his or her overriding duties as an officer  of  the  High  Court  and  to  his  or  her  duties  under  any enactment, in the interests of his or her clients.

[70] Mr Bain points especially to the second of those duties, the lawyer’s duty to be independent, and then to the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008, which require that ‘a lawyer must be independent and free from compromising influences or loyalties when providing services to his or her clients’. 48

[71]     The Minister, in her submission in response with which I agree, contends that s 54(1) states explicitly the conditions on which solicitor-client privilege arise. It

does not require that a ‘legal adviser’ be independent in the two ways Mr Bain

47     Evidence Act 2006, s 51(1).

48 Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008, r 5.

contends for. What it does require is that any lawyer giving her advice, whether a Ministry  legal  officer  or  Crown  counsel,  be  a  ‘legal  adviser’ acting  in  a  legal capacity. That is what is meant by ‘in the course of and for the purpose of ... professional legal services’.

[72]     To the extent, I consider, that s 54(1) requires a lawyer to hold a practising certificate, and thus to be subject to the ethics and discipline of their profession, it singles out the need for the lawyer to be independent. But that is as far as it goes and that, in itself, is an intelligible and determinate condition precedent to the privilege, according to its policy. Equally consistent with that underlying policy is that the document for which the privilege is claimed must have come into being ‘in the course of  and for the purposes of ... professional legal services’; and thus not in the course of or for the purpose of any other service. That too, in itself, is an intelligible and determinate condition precedent to the privilege.

[73]     If it were a further condition precedent that the advice in issue be objective and accurate, a condition that would have to apply whenever the privilege is claimed regardless of the source of the advice, that would be novel to the policy underlying the privilege. It would subject the privilege to an unworkable indeterminate standard. By what process and against what bench mark would accuracy and objectivity be assessed? It could only erode the privilege that s 54(1) now expressly confers.49

[74]     If I am wrong in that interpretation of s 54(1), the largest extent to which I think independence could be relevant to the privilege arising, especially as it relates to Ministry legal officers, is as to the character of their institutional relationship with the Minister. That is what Mason and Wilson JJ called for in Waterford:50

To our minds it is clearly in the public interest that those in Government who bear the responsibility for making decisions should have free and ready confidential access to their legal advisers. Whether in any particular case the relationship is such as to give rise to the privilege will be a question of fact.

49     Cross on Evidence (online looseleaf ed, Lexis Nexis) at [EVA 54.2], fn 2; Daniel Kalderimus & Michael Dobson ‘The ‘privilege of privilege’ [2011] NZLJ 82; Justice Brian Tamberlin and Lucas Bastin ‘In-House Counsel, Legal Professional Privilege and ‘Independence’ (2009) 83

ALJ 193; Lucas Bastin “Should ‘Independence’ of in-house counsel be a condition precedent to a claim of legal privilege in respect of communications between them and their employer clients.” [2011] 30 CJQ 33.

50     Waterford v Commonwealth, above n 43 At 62.

It must be a professional relationship which secures to the advice an independent character notwithstanding the employment.

[75]     In the case of Ministry legal officers particularly, there is also  a second question that unquestionably must be answered; that identified by the Supreme Court of Canada in R v Campbell (Alt sit R v Shirose). There Binnie J, as it happens, said:51

While some of what government lawyers do is indistinguishable from the work of private practitioners, they may and frequently do have multiple responsibilities  ...  whether  or  not  solicitor-client  privilege  attaches  ... depends on the nature of the relationship, the subject matter of the advice and the circumstances in which it is sought and rendered.

[76]     These then are the two issues, I consider, against which the parts played by Ministry legal  officers,  and  the Solicitor-General,  and  Crown  counsel  are to  be tested; the first simply to be complete, despite my interpretation of s 54(1), and the second because it is plainly called for. But I must first respond to Mr Bain’s most radical challenge to the Minister’s privilege claim, as it relates to Ministry legal officers.

Carltona challenge

[77]     Mr Bain contends that, in their relationship with each other, Ministry legal officers cannot be institutionally independent of the Minister, even if they do give her legal advice. At public law she and they are deemed to be one. When they advise her, Mr Bain contends, she is effectively advising herself.52

[78]     This challenge rests first on the Carltona principle as originally expressed, which as our Court of Appeal in Commissioner of Inland Revenue v Chesterfields Preschools Ltd has interpreted it, comes down to this:53

The Carltona principle or alter ego doctrine provides that in some circumstances  a  person  in  whom power  is  vested  can  authorise  another person to exercise that power on their behalf. The person exercising the power on behalf of the ‘power holder’ does so as the alter ego of that person. The act of the authorised person is legally the act of the power-holder.

51     R v Campbell (Alt sit R v Shirose) [1997] 1 SCR 565 at [50]; Priest v State of New South Wales

[2006] NSWSC 1281.

52     This, and other public law points, is made in submissions prepared by Mr P A Joseph on behalf of Mr Bain, who was to appear but proved unable to.

53     Commissioner of Inland Revenue v Chesterfields Preschools Ltd [2013] NZCA 53 at [56].

[79]     This challenge rests finally, however, on the way in which Lord Diplock restated the Carltona principle in Bushell.54   He said this:55

Discretion in making administrative decisions is conferred upon a minister not as an individual but as the holder of an office in which he will have available to him in arriving at his decision the collective knowledge, experience and expertise of all those who serve the Crown in the department of which, for the time being, he is the political head. The collective knowledge,  technical  as  well  as  factual,  of  the  civil  servants  in  the Department and their collective expertise is to be treated as the Minister’s own knowledge, his own expertise.

[80]     In Air Nelson Ltd v Minister of Transport, on a challenge to the validity of the Minister’s decision, where the issue was whether what an official knew could be imputed to the Minister, our Court of Appeal held it could not be imputed in that case.56   To make his decision validly, the Minister had to know for himself what the official knew.

[81]     What Lord Diplock said in Bushell, the Court said, was important in two ways. He affirmed the Carltona principle, which enables responsible officials to exercise a minister’s powers, not by delegation, but as a matter of public law. He also made clear that  officials,  acting on  behalf  of  a minister,  are circumscribed.  He preserved a minister’s capacity to exercise real responsibility.57

[82]     In the earlier English case, National Association of Health Stores,58 to which our Court of Appeal did not refer but where the same issue arose, the English Court of Appeal also held that what officials there knew as to a point that mattered could not be imputed to the Minister. The Court declined to give to Lord Diplock’s very generally expressed statement of principle literal effect.

[83]     One reason was, as Keene LJ said, that when a minister’s decision and state of knowledge is in issue, the Carltona principle does not always apply. It is vital, he said, to distinguish between two situations:59

54     Bushell v Secretary of State for the Environment [1980] 2 All ER 608.

55     At 613.

56     Air Nelson v Minister of Transport [2008] NZCA 26, [2008] NZAR 139.

57     At [47] – [48].

58     R. (on the application of National Association of Health Stores) v Department of Health [2005] EWCA Civ 154 at [26].

59     At [71] - [72].

The first  is  where a  civil servant  makes  a  decision  in  the  name  of  his Government Minister, often a Secretary of State, where a statute has vested the decision-making power in the Secretary of State. In such a situation the Carltona case establishes that the civil servant acts, and is entitled to act, in the name of the Minister.

The second ... is where the Minister is himself actually the decision-maker. Carltona says nothing about the imputing of the knowledge of relevant facts to the Minister merely because those facts are known to one or more of his civil servants, no matter how senior.

[84]     Sedley LJ was also troubled by the effect to which counsel for the Minister in that case attempted to engage Lord Diplock’s general statement of principle. Counsel submitted that the official’s knowledge did not even need to be imputed to the Minister. Metaphysically speaking, counsel submitted, ‘the knowledge of responsible civil  servants  was  the  knowledge  of  the  Minister’,  and  that  was  because  ‘the

Department was a single entity’.60  In rejecting that submission and any near variant

of it, Sedley LJ said this:61

The serious practical implication of the argument is that, contrary to what the decided English cases take for granted, ministers need know nothing before reaching a decision so long as those advising them know the facts. This is the law according to Sir Humphrey Appleby. It would covertly transmute the adviser  into  the  decision-maker. And  by  doing  so  it  would  incidentally deprive  the  adviser  of  an  important  shield  against  criticism  where  the decision turns out to have been a mistake.

[85]     In  this  case  it  is  questionable,  I  consider,  whether  the  Carltona/Bushell principle can have any part to play. To the extent that the Minister has a power of decision in the assessment of compensation applications, an issue to be decided on the judicial review, her view is that she must exercise it personally. She has not delegated to her officials that duty or power, as she construes it. It is on that premise, rightly or wrongly, that she has taken legal advice.

[86]     It is equally questionable whether the Carltona/Bushell principle, the purpose of which is to make government effective under ministerial control, could ever have the effect of depriving a minister of legal-advice privilege. If it could the practical implication might be that ministers might only be able to obtain privileged legal

advice  outside  their  departments  and,  perhaps,  outside  the  executive  branch

60 At [36].

61 At [37].

altogether. But the real question, I consider, is to whom does the privilege belong, the Minister or the Crown as a whole?

Role of Ministry legal officers

[87]  Ministry legal officers, Mr Bain contends, even leaving aside the Carltona/Bushell principle, cannot give the Minister legal advice that attracts s 54(1) privilege because they are not institutionally independent. They are under a duty to comply with instructions from their chief executive.62  That, however, cannot be decisive by itself.

[88]     In Waterford Brennan J, though sceptical about the independence of in-house lawyers, joined with the majority in concluding that in-house government lawyers had the independence necessary. The ‘statutes under which they were employed’, he said, gave them:63

a certain security of tenure and those statues would be construed, in the absence of contrary express provisions, as leaving these officers completely professionally independent. The protection of the respective Attorneys- General, as the first Law Officers of the Crown, should extend to all these officers, so that none of them will be affected in the performance of their professional duty by any sense of loyalty or duty to, or hope of reward from, the government of the day.

[89]     That is so also in New Zealand. The conduct of Crown legal business is governed  by  the  Cabinet  Manual  2008,  and  more  especially  by  the  Cabinet Directions for the Conduct of Crown Legal Business 2012. The Attorney-General and  Solicitor-General,   ‘have  constitutional  responsibility  for  determining  the Crown’s view of what the law is, and ensuring that the Crown’s litigation is properly conducted’. And, furthermore:64

as part of their oversight role, the Law Officers may develop, in consultation with Government Departments, and promulgate detailed guidelines on specific matters relating to the conduct of core Crown Legal Business, consistent with these Directions.

62     State Sector Act 1988, s 59(2), s 83.

63     At 72 - 73.

64     Cabinet Office Cabinet Directions for the Conduct of Crown Legal Business 2012 at [5].

[90]     According to a former Solicitor-General, and to a former Deputy Solicitor- General,65  the guidelines govern the way in which the Crown’s legal business is conducted  and,  in  the  absence  of  any  evidence  to  the  contrary,  it  is  presently plausible to suppose that Ministry legal officers have any institutional independence required. Further, as Mr Orr has deposed, they must have practising certificates, and they are subject to the ethics and discipline of their profession. Quite literally, they

qualify as ‘legal advisers’ for the purposes of s 54(1).

[91]     That does not answer, however, the question which plainly does arise under s 54(1),   whether   Ministry   legal   officers   invariably   act   as   lawyers   in   the compensation assessment process. That cannot be answered abstractly. On Mr Orr’s evidence they assist to manage the process as well as advise the Minister, as lawyers, as to the legal implications of the claim. Resort must be had to the documents for which privilege is claimed.

Role of Solicitor-General and Crown counsel

[92]     The  Solicitor-General’s  opinion  to  the Attorney-General,  obtained  at  the Minister’s request, dated 12 September 2012, Mr Bain next contends, cannot attract privilege in her hands because it does not carry the necessary independence. He submits that this opinion, and the Crown Law Office papers on which it may be based, for which privilege is also claimed, must be compromised by bias.

[93]     Mr Bain’s underlying complaint is that Crown counsel, who appeared for the Crown  during his  appeals  and  his  retrial,  and  responded  to  his  petition  for the exercise  of  the  prerogative  of  mercy,  became  his  fixed  opponents,  and  are disqualified from advising objectively and accurately the Solicitor-General, or the Minister, on the merit of his application.

[94]     Mr Bain points out also that, when he made his compensation claim on 25

March 2010, this was his first concern; and he says he was assured that the Minister would not take advice from the Solicitor-General. The Solicitor-General, when asked

65     John McGrath ‘Principles for  Sharing Law Officer Power: The Role of the  New Zealand Solicitor-General’ (1998) NZULR 197; Matthew Palmer ‘The law officers and departmental lawyers’ [2011] NZLJ 333.

for an opinion, he contends, should have briefed it out to a lawyer in private practice, as the Cabinet Directions for the Conduct of Crown Legal Business envisage, where there are ‘any issues of independence or conflict of interest (actual or perceived)’.66

[95]     The  Minister  contends  that  Mr  Bain  misunderstands  the  roles  of  the Solicitor-General and Crown counsel. During the criminal process Crown counsel appeared for the Crown as a matter of duty. So too, during the inquiry Mr Binnie QC made into Mr Bain’s claim, they appeared consistently for the Crown as notional respondent to contradict the claim.

[96]     Once  Mr  Binnie  QC  tendered  his  report,  the  Minister  contends,  the Attorney-General, as the senior law officer, became entitled, and indeed obliged, to advise the Cabinet, including the Minister, whether to accept the advice Mr Binnie QC tendered, assessed from a Crown perspective. He in turn was entitled to rely on advice from the Solicitor-General. The Minister also relies on the exchange of letters from which Mr Bain derives the assurance on which he relies.

Chief Legal Counsel’s assurance

[97]     On 10 May 2010, Mr Bain’s solicitors, Duncan Cotterill, wrote to Mr Orr, the Ministry’s Chief Legal Counsel, asking by what process Mr Bain was to establish his innocence to the balance of probabilities and ‘extraordinary circumstances’. The solicitors accepted on Mr Bain’s behalf that this might be decided by the inquirer appointed, but added this:

It is also important to establish whether we are to satisfy the inquirer on the two basis (sic) above or whether it is to become a contest between us and the police and Crown Law. If the latter then we will be embarking upon an open ended  inquiry  at  least  as  complicated  as  the  three  month  trial  and considerably  more,  while  we  pursue  the  additional  issues  of  police dishonesty, general malpractice.

[98]     On 21 May 2010, when Mr Orr replied, outlining process proposed, he added that he was also sending a copy of his letter to the Deputy Solicitor-General for

comment ‘as the matter is at the stage where the interests of the Crown are engaged’.

66     Cabinet Office Cabinet Directions for the Conduct of Crown Legal Business above n 64 at

[19.4].

But, in a letter, dated 9 March 2011, Duncan Cotterill put in issue whether the Crown

Law Office should be involved at all. They said:

Crown Law cannot be regarded as a disinterested party in this process, and, as such, we question whether or not the Ministry should be seeking advice from them in the normal way.

The Solicitor-General and his office, they said, were ‘adversarial ... to an extent that would render their ability to provide the Ministry independent advice impossible’, and had to be excluded from advising the Minister by that conflict of interest.

[99]     In his response, dated 5 April 2012, Mr Orr said this:

While the procedure for compensation claims is not fixed, an inquirer is expected to comply with the principles of natural justice and ensure that evidence is properly tested. As you know, proof of innocence on the balance of probabilities is a cornerstone of the compensation regime. Where innocence is at issue, the normal process is that both the applicant and the Crown are treated as parties to an inquiry undertaken by a Queen’s Counsel or a retired Judge. Accordingly, an appointed inquirer will usually hear from the claimant and the Crown on the procedure to be followed and call for the provision of further information and the exchange of submissions.

Therefore, in relation to the process for the consideration of Mr Bain’s claim, I stress that the Ministry is not taking legal advice from the Crown Law Office, but has sought its views as the representative of an interested party – the Crown.

As a party to the upcoming inquiry, the Crown is entitled to be consulted on the steps that are being taken and it is for this reason that we would prefer an open exchange of correspondence.

[100]   In the event, Crown counsel did represent the Crown, as contradictor, at the Binnie  inquiry;  and,  as  it  turned  out,  Mr  Binnie  QC  rejected  the  Crown’s submissions. At  that  point,  Mr Bain  contends,  the Solicitor-General  and  Crown counsel became completely compromised by their lack of independence and conflict of interest; and, moreover, the Solicitor-General’s opinion, dated 5 April 2012, was inconsistent with the assurance Mr Orr had given Mr Bain in his 5 April 2012 letter.

[101]   The difficulty this submission faces however is that, as Mr Orr outlined in his letter, the Minister, whom he was advising, played one part in the assessment process and  the  Crown,  represented  by  the  law  officers,  the Attorney-General  and  the Solicitor-General, played a quite separate part. The Solicitor-General’s letter, dated

12 September 2012, was not addressed to the Minister, even though she wished to have it. It was addressed to the Attorney-General.

[102]   In principle, it appears to me, the Cabinet, when deciding whether to accede to Mr Bain’s compensation claim, is entitled to advice from the senior law officer, the Attorney-General, as well as from the Minister of Justice within whose portfolio the application lies, to the extent that the Minister has any distinct role to play. It follows, in principle, that the Solicitor-General cannot be compromised in his advice to the Attorney-General, concerning the Binnie report, that it concerns the criminal process in which his counsel appeared for the Crown. The Crown’s stance in the criminal process has to be relevant to the Cabinet’s assessment.

[103]   In principle, the only way, it appears to me, in which the Solicitor-General or Crown  counsel  could  be  compromised  would  be  if  they  had  misconducted themselves in the criminal process, or during the inquiry Mr Binnie QC made into the merit of Mr Bain’s claim. Leaving aside for the moment whether that might negate the privilege claimed, whether there has been misconduct would have to be assessed on evidence against the principles I now outline.

Crown role in criminal process

[104]   Whether Crown counsel became Mr Bain’s ‘opponents’, in some personal sense, inconsistent with their role in that process, is not to be inferred simply from the fact that they did prosecute him and oppose his appeals, acting on behalf of the Crown. They did so as a matter of duty.

[105]   In  the  1934  Ontario  case,  R  v  Chamandy,  Riddell  J  made  this  telling distinction between a criminal prosecution and a personal contest.67   He said this:68

It cannot be made too clear, that in our law, a criminal prosecution is not a contest between individuals, nor is it a contest between the Crown endeavouring to convict and the accused endeavouring to be acquitted; ... it is an investigation that should be conducted without feeling or animus on the part of the prosecution, with the single view of determining the truth.

67     R v Chamandy (1934) 61 CCC 224.

68     At 227.

[106]   That distinction was later endorsed by the Supreme Court of Canada in the

1955 case, Boucher v R,69 where Rand J described prosecuting counsel ‘as ministers

of justice assisting in its administration’, rather than as ‘advocates’, and said:70

The purpose of a criminal prosecution is not to obtain a conviction, it is to lay before a jury what the Crown considers to be credible evidence relevant to what is alleged to be a crime. Counsel have a duty to see that all available legal proof of the facts is presented: it should be done firmly and pressed to its legitimate strength but it must be done fairly. The role of prosecutor excludes any notion ‘of winning or losing’; his function is a matter of public duty.

[107]   Whether the Solicitor-General and Crown counsel did misconduct themselves in the criminal process phase, or later during the assessment phase, could only arise on this judicial review if there were evidence that they did. For the present there is no evidence and for that reason alone I have no basis on which to consider whether to set aside on this ground the Minister’s legal-advice privilege claim as to the Solicitor-General’s advice.

[108]   As I interpret s 54(1), however, as I have said, even if the advice were compromised, that would not preclude the Minister, or the Crown as a whole, claiming s 54(1) legal-advice privilege. Section 54(1), as I interpret it, does not impose any such condition precedent. Whether any such misconduct could give rise to any other remedy in law to Mr Bain is a separate matter quite beyond this judicial review.

Waiver of privilege issues

[109]   Assuming  as  I  do  that  the  Minister  is  able  to  claim  s  54    legal-advice privilege for the Solicitor-General’s opinion dated 12 September 2012, the quite separate issue then arises whether she waived that privilege by disclosing a copy of it to the New Zealand Police and perhaps also by disclosing its substance in detail in her instructions to Dr Fisher QC. There may be analogous issues relating to some

Ministry documents.

69     Boucher v R [1955] S.C.R. 16 at 25.

70     At 23 – 24.

[110]   Once again, this issue is to be answered at one level under the sections of the Evidence Act 2006 that apply. At another it involves issues of constitutional law, which I have already touched on: as to the personality of the Crown; as to whether the Minister acted as and for the Crown or personally; as to the status of the New Zealand Police as an agency within or without the Crown; and as to the ultimate responsibility of the Attorney-General.

[111]   Mr Bain contends that any privilege lay with the Minister personally. The Minister contends that it lay with the Crown as a whole. Mr Bain contends that disclosure to the New Zealand Police was disclosure to a third party amounting to waiver. The Minister contends it was disclosure within the Crown and within the privilege. Mr Bain contends that any disclosure of the substance of the Solicitor- General’s opinion to Dr Fisher QC had to involve waiver. The Minister contends that only the Attorney-General could waive privilege.

Waiver under the Act

[112]   Section 65(1) says that privilege may be waived expressly or impliedly and s 65(2) says:

A person who has a privilege waives the privilege if that person, or anyone with the authority of that person, voluntarily produces or discloses, or consents to the production or disclosure of, any significant part of the privileged communication, information, opinion, or document in circumstances that are inconsistent with a claim of confidentiality.

There will be no waiver, s 65(4) says, ‘if the disclosure occurred involuntarily or mistakenly or otherwise without the consent of the person who has the privilege’.

[113]   Section 66(1) says that where privilege is held jointly, each person clothed with the privilege:

(a)      is entitled to assert the privilege against third parties; and

(b)       is not restricted by any of sections 54 and 60 and 64 from having access or seeking access to the privileged matter; and

(c)       may, on the application of a person who has a legitimate interest  in  maintaining  the  privilege  (including  another holder  of  the  privilege),  be  ordered  by  a  Judge  not  to disclose the privileged matter in a proceeding.

[114] Still relevant to these statutory principles may be that stated in Ophthalmological  Society  of  New  Zealand  Inc  v  Commerce  Commission,71   that where ‘partial disclosure of legal advice raises questions over whether natural justice requires disclosure of the whole advice’.

Personality of Crown

[115]   Whether the Minister holds the privilege personally, or whether it lies with the Crown as a whole, depends on the interrelation between the two, not just in this instance but quite fundamentally. Complicating this question is that constitutionally the  Crown  is  a  single  and  indivisible  entity,  but  in  reality  comprises  many autonomous office holders, entities and instruments.

[116]   The analysis required, Lord Diplock said for the majority in Town Investment, becomes more tangibly intelligible and less Athanasian, when the Crown is equated with ‘the government’, which quite naturally encompasses: 72

... both collectively and individually all of the Ministers of the Crown and Parliamentary Secretaries under whose direction the administrative work of Government is carried on by the civil servants employed in the various Government Departments. It is through them that the Executive Powers of Her  Majesty’s  Government  ...  are  exercised,  sometimes  in  the  more important  administrative  matters in  Her  Majesty’s name,  but  most  often under their own official designation. Executive acts of Government that are done by any one of them are acts done by ‘the Crown’ in the fictional sense in which that expression is now used in English public law.

[117]   Lord Simon, also in the majority in that case, affirmed that as a matter of

‘fundamental constitutional doctrine ... the Crown is one and indivisible’, but he

found it more helpful to equate the Crown with a corporation.73 As he then said:74

The legal concept which seems to me to fit best the contemporary situation is to consider the Crown as a corporation aggregate headed by the Queen. The Departments of State including the Ministers at their head (whether or not either the Department or the Minister has been incorporated) are then themselves members of the Corporation aggregate of the Crown.

71     Ophthalmological Society of New Zealand Inc v Commerce Commission [2003] 2 NZLR 145 (CA) at [30].

72     Town Investment Ltd v Department of the Environment [1978] A.C. 359 (HL) at 381.

73     At 400.

74     At 400.

This ‘legal concept’, Lord Simon said, may not correspond with the ‘political reality’ as he then described but, ‘when the Queen is referred to by the symbolic title of ‘Her Majesty’ it  is  the  whole  corporation  aggregate,  the  Crown,  which  is  generally indicated.’

[118]   Whichever analogy is  chosen,  ministers in the ordinary exercise  of their powers and when complying with their duties, act as and for the Crown as a whole, except where those powers and duties are conferred or imposed on them personally by statute. Then, as Lord Wolfe said in Re M with my interpolation:75

There appears to be no reason in principle why, if a statute places a duty on a specified Minister or other official which creates a cause of action, an action cannot be brought for breach of statutory duty claiming damages or for an injunction, in the limited circumstances where injunctive relief would be appropriate, against a specified Minister personally by any person entitled to the benefit of the cause of action. If on the other hand, the duty is placed on the Crown in general, then ... (the statute applying in that case) would appear to prevent injunctive relief being granted.

[119]   In  the  same  vein,  Mr  Bain  contends,  any  legal-advice  privilege  in  this instance has to be personal to the Minister because she had been designated by Cabinet to oversee the assessment process. She has not acted on behalf of the Crown as a whole. She has to have been responsible personally. Any privilege that exercise of responsibility attracts has to be hers alone.

Persona designata

[120]   The concept on which this submission depends, that of ‘persona designata’, involves the notion, as French CJ and Kiefel J said in Wainohu v New South Wales, that the Minister is ‘[a] person pointed out or described as an individual, as opposed to a person ascertained as a member of a class, or as filling a particular character.’76

[121]   If, more precisely, that notion involves no more than, as the Supreme Court of Canada said in Minister of Finance of British Columbia v The King, the Minister acting ‘as a mere agent of the legislature to do a particular act’, and not as ‘a servant

75     Re M [1994] 1 A.C. 377 (HL) at 412.

76     Jowitt’s Dictionary of English Law (3rd ed, Sweet & Maxwell, London, 2010) at 1700; cited in

Wainohu v New South Wales (2011) 278 ALR 1 (HC) at [34].

of the Crown’, the concept appears to add little to a statutory designation. 77  In Wainohu, a case concerning the validity of a New South Wales statute conferring administrative functions on Judges personally, and not as members of their Court, an issue engaging the separation of powers principle, French CJ and Kiefel J said this:78

It  is  not  necessary,  in  order to support the  validity of  a law conferring administrative  functions  (not  incidental  to  judicial  functions)  on  State Judges, that they be conferred persona designata. There is much to be said against the invocation of that device in the State sphere if it be unnecessary.

In 1996, they went on to say, Sir Antony Mason had described the concept as

‘distinctly artificial’ and likely only to have appealed to ‘mediaeval schoolmen’. The majority, in their joint decision,79  said that the concept had been deprecated in the Court below as ‘a device and a fiction’ and seemingly agreed.

[122]   On the one occasion when persona designata, as a concept, has been relied on in New Zealand, Arataki Honey v Ministry of Agriculture,80 Jeffries J was not convinced, citing with approval the following passage from Merrricks v Heathcoat Amory:81

It is possible there may be special acts where named persons have special duties to perform which would not be duties normally fulfilled by them in their  official  capacity;  but  in  the  normal  case  where  the  relevant  or appropriate Minister is directed to carry out some function or policy of some act, he is either acting in his capacity as a Minister of the Crown representing the Crown, or he is acting in his personal capacity, usually the former. I find it difficult to conceive of a middle classification.

[123]   Persona designata, as a concept, may still have some part to play where a designation is made by statute, clearly an issue in itself. But, on the cases I have seen, it cannot have any part to play where, as here, a minister acts in the ordinary exercise of his or her portfolio on behalf of the Cabinet. The concept cannot be a basis for concluding that legal-advice privilege, in this present context, rests only

with the Minister.

77     Minister of Finance of British Columbia v The King [1935] S.C.R. 278.

78     Mason, ‘A New Perspective on Separation of Powers’ (1996) 82 CBPA 1, at p 5.

79     Gummow, Hayne, Crennan & Bell JJ.

80     Arataki Honey v Ministry of Agriculture [1979] 2 NZLR 311.

81     Merricks v Heathcoat Amory [1955] 2 All ER 453 at 457.

Disclosure to New Zealand police

[124]   Assuming as I do that the privilege is that of the Crown as a whole, the question then becomes whether the New Zealand Police also share in that privilege, or whether they may fall outside the Crown and must be deemed to be a third party to whom disclosure may involve waiver.

[125]   In the United Kingdom, at the level of constitutional principle, Lord Reid remarked in Conway v Rimmer:82

The position of the police is peculiar. They are not servants of the Crown and they do not take orders from the Government. But they are carrying out an essential function of Government, and various Crown rights, privileges and exemptions have been held to apply to them ... It has never been denied that they are entitled to Crown privilege with regard to documents, and it is essential that they should have it.

[126]   The privilege Lord Reid there speaks of is that enjoyed by the police when preserving order and preventing crime:83

...  it is essential that there should be no disclosure of anything that might give any information to those who organise criminal activities; and it would generally be wrong to require disclosure in a civil case of anything which might be material in a pending prosecution, but after a verdict has been given, or it has been decided to take no proceedings, there is not the same need for secrecy.

[127]   Lord Reid then distinguished from that right to privilege, the right the police might have when acting in some other way; and he said, ‘With regard to other documents there seems to be no greater need for protection than in the case of Departments of Government.’ In that event, it appears to follow, the police may enjoy the right to privilege that is ordinarily enjoyed by departments of state; that of the Crown as a whole.

[128]   Whether the New Zealand Police are to be understood equivalently is not to be answered at this level of principle. Nor does it involve any policy choice. It has been answered by the legislature in the Policing Act 2007, the purpose of which is,

as  s  3  says,  to  provide  for policing services  in  New  Zealand  and  ‘to  state the

82     Conway v Rimmer [1968] 1 All ER 874 (HL) at 889.

83     At 889.

functions and provide for the governance and administration of the New Zealand Police’. According to s 7(1) the New Zealand Police is and continues to be ‘an instrument of the Crown’; an entity as the section as a whole confirms that has been constituted by statute in 1886.

[129]   The functions of the police, in the sense that Lord Reid spoke of, preserving order and preventing crime, extending also to responding to emergencies, are prescribed by s 9. Then in s 16, which defines the responsibilities and independence of the Commissioner, those functions are distinguished from those more usual to departments of state, and in a critical way.

[130]   As to the strict policing functions to which Lord Reid referred, s 16(2) says,

‘The  Commissioner  is  not  responsible  to,  and  must  act  independently  of,  any Minister of the Crown’. By contrast, s 16(1) identifies an array of functions and duties that are subject to ministerial control. It says:

The Commissioner is responsible to the Minister for—

(a)      carrying out the functions and duties of the Police; and

(b)      the general conduct of the Police; and

(c)      the effective, efficient, and economical management of the Police;

and

(d)      tendering advice to the Minister and other Ministers of the Crown;

and

(e)      giving effect to any lawful ministerial directions.

[131]   This distinction is critical because, as Keith J said in Commissioner of Inland Revenue v Medical Council of New Zealand, whether, in the discharge of their functions, entities are an aspect or an instrument of the Crown will depend on the extent to which they are subject to ministerial control. To the extent that they are as to the act relevant, they act as an aspect or instrument of the Crown; and, in this instance, the distinction s 16 makes is decisive.

[132]   When  the  police  investigated  the  death  of  Mr  Bain’s  family  members, charged him and gave evidence for the Crown at his two trials, and assisted Crown counsel on his appeals, they acted under ss 9 and 16(2), independent of ministerial

control.84 After Mr Bain was acquitted at his second trial and made his compensation claim, and they responded to the Minister’s request for advice, they responded under s 16(1)(d), subject to their Minister’s control. They responded as an instrument of the Crown.

[133]   The result is, I consider, that the New Zealand Police received the Solicitor- General’s opinion to the Attorney-General, dated 12 September 2012, within and not without the Crown’s privilege. There was no third party disclosure negating that privilege; a privilege which the police themselves shared.

Disclosure to Dr Fisher QC

[134]   Whether the Minister waived privilege in her instructions to Dr Fisher QC, if she set out the substance of the Solicitor-General’s advice, dated 12 September 2012, calls for a comparison between the two, under s 65(1), to assess whether the Minister may have disclosed ‘any significant part of the privileged ... opinion ... in circumstances that are inconsistent with a claim of confidentiality’.

[135]   Whether the Minister may have communicated a ‘significant part’ of that opinion is only the first aspect of the analysis called for. To decide whether that may have been ‘inconsistent with a claim of confidentiality’ depends on to whom the opinion was given, and for what purpose, and with whom any related legal-advice privilege lies. Was the opinion to the Minister, or to the Crown as a whole?

[136]   The  opinion,  though  one  the  Minister  has  accepted  she  wanted,  was addressed to the Attorney-General and for that reason alone he must at least share with the Minister any privilege the advice attracts. His privilege is independent of the Minister, as s 66 makes clear; and, unless he consents to waiver, that cannot happen.

[137]   Furthermore,  the  Cabinet  Directions  for  the  Conduct  of  Crown  Legal

Business 2012, assume that such advice attracts privilege on which the Crown as a

whole is entitled to rely. Paragraph 34 says that ‘legal advice given to Ministers and

84     Commissioner of Inland Revenue v Medical Council of New Zealand [1997] 2 NZLR 297.

Government Departments, from whatever source, attracts legal professional privilege’; and it goes on to say that, before privilege can be waived by a department or minister, the Attorney-General’s consent must be obtained through the Crown Law Office. There is no evidence that this ever happened.

[138]   Thus, it seems to me, even if the Solicitor-General’s opinion does coincide in substance with Dr Fisher’s letter of instructions, that cannot have occurred, on the evidence I have, in circumstances ‘inconsistent with the claim of confidentiality’ the Minister now makes. It cannot be a basis for requiring her to release to Mr Bain either that opinion, or the related Crown Law Office file.

[139]   The final issue then is whether the Minister has claimed s 54 legal-advice privilege, as I find she is entitled to do, consistently with the scope of that privilege.

Scope of legal-advice privilege

[140]   The right to legal-advice privilege, I should first say to the extent that it is an issue, does not depend on the nature of the rights and obligations to which any advice, or related document, claimed to attract the privilege, relates. In Three Rivers District Council & Ors v Governor & Co of the Bank of England (No 6)  Lord Scott confirmed that ‘legal-advice privilege must cover also privilege and assistance in relation to public law rights, liabilities and obligations’.85

[141]   The issue is rather when and to what extent the privilege will apply where a lawyer may play more than one role; and as to that Lord Scott first said this:86

In cases of doubt the Judge called upon to make the decision should ask whether the advice relates to the rights, liabilities, obligations or remedies of the client either under private law or under public law. If it does not, then, in my opinion, legal-advice privilege would not apply.

And, if the communication does qualify, this:87

... the Judge should ask himself whether the communication falls within the policy underlying the justification for legal-advice privilege in our law. Is the occasion no which the communication takes place and is the purpose for

85     Three Rivers District Council & Ors v Bank of England (No 6) [2005] 1 AC 610 (HL) at [36].

86 At [38].

87 At [38].

which it takes place such as to make it reasonable to expect the privilege to apply? The criterion must, in my opinion, be an objective one.

[142]   In Three Rivers Baroness Hale assumed that all sitting with her endorsed Taylor LJ’s comment in Balabel v Air India that ‘legal advice is not confined to telling the client the law; it must include advice as to what should prudently and sensibly be done in the relevant legal context’;88 and as to that she then said:

There  will  always  be  borderline cases  in  which  it is  difficult  to  decide whether there is or is not a ‘legal’ context. But much will depend upon whether it is one in which it is reasonable for the client to consult the special professional knowledge and skills of a lawyer, so that the lawyer will be able to give the client sound advice as to what he should do, and just as importantly what he should not do, and how to do it.

[143]   In New Zealand the privilege has been found to attach to documents prepared for the purpose of obtaining legal services,89  and to drafts and working papers.90

However, non-privileged documents sent to a lawyer are privileged only if their

disclosure ‘would reveal a privileged communication.’91

[144]   To be complete, I should add also, where the issue is whether disclosed documents should be produced for inspection, that can also depend on how relevant they are to the issues arising on the judicial review; an issue that arose in ENZA Ltd v Apple & Pear Export Permits Committee, a case which bears some analogy to this.

[145]   There  the  issue  was  whether  the  Permits  Committee  had  denied  ENZA natural justice and applied a predetermined policy, where discovery had been made informally, and where the immediate issue was whether the Committee should enjoy deliberative privacy, the Court of Appeal held: 92

The record of its deliberative material, while technically relevant in terms of discovery principles, ... (is) not in our view of a nature likely to inform the Court materially on the reasons for the Committee’s decision, as opposed to the dynamics of how it got to them.

88     Balabel v Air India [1988] CH 317 at 330.

89     Rafiq  v  Civil  Aviation  Authority  of  New  Zealand  [2013]  NZHRRT 10,  citing  Suminovich Fisheries Ltd v Television New Zealand Ltd [2008] NZCA 350 at [159] – [160]; R v Huang HC Auckland CRI-2005-004-1953, 19 September 2007 at [53] – [57].

90     Seamar Holdings Ltd v Kupe Group Ltd, above n 37, at 209.

91     Suminovich Fisheries v Television New Zealand Ltd, above n 89.

92     ENZA Ltd v Apple & Pear Export Permits Committee [2001] 3 NZLR 456 (CA) at [22].

[146]  The committee, the Court of Appeal held, had already put its position adequately before the Court in its chairman’s affidavit, explaining its approach to applications. In this case, I wish to be clear, I have assumed that every document the Minister has disclosed but withheld could be relevant, and ought to be produced, unless the Minister is entitled to claim privilege.

Privilege claim largely justified

[147]  The Minister’s claim to privilege must be justifiable at two levels. The documents for which she claims privilege must have arisen within a confidential relationship in which the Minister, or those advising her, obtained legal advice concerning Mr Bain’s claim. The documents withheld must have come into being only for that reason, either directly or indirectly. I am satisfied that the Minister’s claim is justified at the first level, and largely at the second.

[148]   To succeed in his claim Mr Bain must establish his innocence to the balance of probabilities, and even beyond reasonable doubt, and ‘extraordinary circumstances’. That will require the Cabinet,  or those  advising the Cabinet, to re-appraise the evidence given at his two trials, as assessed on his appeals, against the principles of law governing his two trials.

[149]   Secondly, Mr Bain seeks from the Cabinet, in the exercise of its prerogative power, a discretionary payment of public money; and as Lord Bingham said in Re McFarland, that is ‘a difficult and sensitive question’: 93

Ministers, being accountable for the expenditure of public money, are rightly circumspect about making gratuitous payments to members of the public; and the need for circumspection is particularly great where the recipient may be a wholly-innocent victim of mistake or mis-identification or may be a serious criminal who is very fortunate to have escaped his just desserts. While the public might approve sympathetic treatment of the former, they would be understandably critical if significant sums of public money were paid to the latter.

[150]   I am satisfied, having inspected each of the documents withheld, that to a great or lesser extent each only came into being to enable Ministry legal officers, or

the Solicitor-General or Crown Counsel, to advise the Cabinet, and the Minister to

93     Re McFarland [2004] UKHL 17 at [7].

the extent to which she had a part to play, as to the merit in law of Mr Bain’s claim. Each arises intelligibly only within the relationship of confidence that the s 54 legal- advice privilege secures, subject to one exception.

[151]   Right at the periphery of the privilege a number of documents have been withheld, which speak about meetings to take place, for instance, or which transmit documents, and which do not disclose any advice attracting confidentiality. The most obvious examples are those disclosed documents from which small parts have been redacted. Documents in this peripheral category should be disclosed.

Conclusions

[152]   To recapitulate each of my conclusions: the Minister, I conclude first, has complied with her initial duty of candour by consenting to the tailored discovery order, dated 12 March 2013, under which she came under a duty to disclose all documents in the categories that the order specifies except those for which she was entitled to claim privilege.

[153]   The Minister, I conclude secondly, has also complied with that initial duty by authorising the two affidavits of documents given for her by the Ministry’s Chief Legal Counsel, Mr Orr, the first on 17 April 2013 and an amended version on 31

May 2013, identifying the documents relevant to Mr Bain’s claim and distinguishing those that must be released to him from those withheld as privileged. Some of the descriptions given may be inexact, even misleading. But I do not regard that as deliberate or significant.

[154]   The Minister, I conclude thirdly, is entitled to claim on behalf of the Crown as a whole s 54 legal-advice privilege for advice given her by Ministry legal officers, and for any reasonably related documents held within the Ministry, and for advice received from the Solicitor-General, dated 12 September 2012, and any reasonably related documents held within the Crown Law Office.

[155]   I do not accept that it is a condition precedent to s 54 privilege that Ministry legal officers must be constitutionally and institutionally independent of the Minister. Nor do I accept that it is a condition precedent that any advice from them, or from

the Solicitor-General and Crown Counsel, must be objective and accurate. Such a condition precedent is foreign to the privilege. Nor is there any evidence, presently, that these officers have acted inconsistently with their duty.

[156]   The Minister, I conclude fourthly, did not waive privilege in the Solicitor- General’s opinion, dated 12 September 2012, or in the related Crown Law Office file, when the opinion was released to the New Zealand Police for a response to the Binnie report. The privilege is that of the Crown as a whole. The police are, for this purpose, an instrument of the Crown. They received the opinion within and not without the privilege of the Crown as a whole.

[157]   The Minister, I conclude fifthly, did not waive privilege if she happened to disclose in her instructions to Dr Fisher QC the substance of the Solicitor-General’s opinion.  The  privilege  that  the  opinion  and  the  related  Crown  Law  Office  file attracted lies with the Crown as a whole and is capable only of being waived by the Attorney-General.

[158]   The Minister,  I conclude sixthly, sufficiently justified her claim to legal- advice privilege, at the threshold, in the affidavit given for her by the Ministry’s Chief Legal Counsel, Mr Orr, identifying the process by which compensation claims are assessed under the Cabinet Guidelines and the ‘extraordinary circumstances’ extension,  and  identifying  the  parts  played  by  Ministry  legal  officers  and  the Solicitor-General and Crown Counsel.

[159]   The  primary  purpose  of  the  relationship  between  the  Cabinet  and  the Minister, to the extent to which she has a part to play, and their legal advisers, whether they are Ministry legal officers or the Solicitor-General or Crown Counsel, I conclude seventhly, is to ensure that Cabinet and the Minister have legal advice as to the merit of any claim for compensation, in this case that of Mr Bain. The confidentiality of documents arising under and for the purpose of that relationship is protected by s 54 legal-advice privilege.

[160]   Finally, I conclude, the documents for which the Minister has claimed the privilege of the Crown as a whole intelligibly attract that privilege, except at the

periphery, and that will call for some further documents to be released.

P.J. Keane J

CATEGORIES OF WITHHELD DOCUMENTS

1.Briefings to Hon Simon Power relating to Mr Bain’s compensation claim, including the appointment of the Hon Ian Binnie QC and briefings to Hon Judith Collins before his report and afterwards, prepared by solicitors in the Office of Legal Counsel of the Ministry of Justice and appendices to such briefings. [1 – 12]

2.Draft Cabinet papers prepared by solicitors in the Office of Legal Counsel of the Ministry of Justice for the 23 January and 4 February Cabinet meetings, or drafts of such documents sent to those solicitors for comment. [13 – 23]

3.Drafts of the letter of instruction and appendices for the Hon Dr Fisher QC prepared by solicitors in the Office of Legal Counsel of the Ministry  of  Justice,  or  drafts  of  such  documents  sent  to  those solicitors for comment. [24 – 37]

4.Draft responses to a number of items of correspondence from third parties prepared for the Minister’s office by solicitors of the Office of Legal Counsel of the Ministry of Justice, including draft media statements. [38 – 46]

5.File notes, aides memoire and other documents prepared by solicitors in the Office of Legal Counsel of the Ministry of Justice concerning advice to the Minister’s office, excluding formal briefings, on issues that arose in relation to the compensation claim, for example an explanation concerning a letter to or from Mr Bain’s counsel at his first trial, and as to process and legal issues, and advice on the compensation regime. [47 - 67]

6.        File notes made by solicitors in the Office of Legal Counsel of the

Ministry of Justice on issues that arose in relation to the compensation

claim to assist internal discussions, not provided to the Minister’s office, for example, notes on events and developments, options and next steps, summaries or analyses of issues or documents, and drafts of advice. [68 – 89]

7.Aides memoire prepared by solicitors of the Office of Legal Counsel of the Ministry of Justice for the Ministry’s Chief Executive on issues that arose in relation to the compensation claim. [90]

8.Emails from or between the Minister’s office and solicitors in Office of Legal Counsel of the Ministry of Justice containing or relating to requests for legal advice or comment on issues. [91 – 115]

9.Email  communications  between  solicitors  in  the  Office  of  Legal Counsel of the Ministry of Justice, or between those solicitors and the Ministry’s Chief Executive or the Minister’s office about legal and process issues and relevant developments. [116 – 137]

10.Emails from solicitors in the Office of Legal Counsel of the Ministry of Justice containing advice or attaching privileged documents, for example  drafts  of  Cabinet  papers  and  instructions  for  Hon  Dr Fisher QC; and emails forwarding those emails or documents within the Minister’s office or responding to the Office of Legal Counsel of the Ministry of Justice. [138 – 173]

11.      Emails from the Attorney-General’s Office recording advice from the Attorney-General     and  emails  forwarding  or  responding  to  that advice. [175 – 178]

12.The legal opinion of the Solicitor-General, dated 12 September 2012, and the Crown Law Office file in respect of the preparation of the Solicitor-General’s opinion. [179 – 215]

13.      Redacted documents [216 – 235]