Carter v Coroner's Court at Wellington
[2015] NZHC 1467
•26 June 2015
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IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
CIV-2012-485-2186 [2015] NZHC 1467
IN THE MATTER OF the Coroners Act 2006, the Magna Carta
1297 c 29 and its various affirmations, the Statute of Westminster the First 1275 and an application for review under the Judicature Amendment Act 1972
BETWEEN
JOHN HOWARD CARTER Applicant
AND
THE CORONER'S COURT AT WELLINGTON
First Respondent
THE COMMISSIONER OF POLICE Second Respondent
"A"
Third Respondent
Hearing: 13 and 17 March 2015 Counsel:
J H Carter in person
D J Perkins for Second Respondent No appearance for Third Respondent J B Orpin as amicus
Judgment:
26 June 2015
JUDGMENT OF WILLIAMS J
Introduction
[1] Mr Carter has brought proceedings against the Coroner’s Court and the
Commissioner of Police in relation to the death of his son Christopher on 25 May
CARTER v THE CORONER'S COURT AT WELLINGTON [2015] NZHC 1467 [26 June 2015]
2010. The matter has already generated a series of interlocutory decisions of this
Court.1
[2] On 6 December 2013, I fixed the issues for substantive consideration in this proceeding in lieu of comprehensible pleadings from Mr Carter. I did this with the able assistance of amicus and Mr Perkins for the Crown. The focus of these issues was the police decision not to prosecute “A” in relation to the death of Christopher.
[3] At issue now is the discoverability of a legal opinion relating to that decision
not to prosecute “A”.
[4] Mr Carter represents himself in this proceeding and provided written submissions in advance of this matter being heard. He made some limited oral submissions at the hearing, but conceded that as the arguments are of an inherently technical nature, the argument was primarily between Mr Perkins for the police and the amicus Mr Orpin.
Factual and procedural background
[5] Mr Carter commenced his proceeding on 24 October 2012. The timing of this coincides with the Coroner’s inquest into the death of Christopher. The inquest had a first day of hearing on 15 August, and a further two days on 25 and
26 October. The focus of Mr Carter’s proceeding at that stage was on preventing the Coroner’s inquest from continuing. Mr Carter’s view was that the police investigation had not been properly completed.
[6] Following its completion, the investigation had been subject to a number of reviews.2 A first review of evidence had been undertaken by Detective Sergeant Patea in October 2010. Two years later, the impending commencement of the coronial inquest into Christopher’s death on 15 August triggered further reviews. Inspector Shane Cotter (who was to give evidence at the inquest) commissioned a
review of the evidence and a legal opinion about its sufficiency.
1 Carter v The Coroner’s Court at Wellington & Ors [2015] NZHC 42; Carter v The Coroner’s Court at Wellington & Ors [2015] NZHC 462, see appendix attached to that judgment for the full procedural history of interlocutory action in this proceeding.
2 Affidavit of Detective Superintendent Paul Ronald Kench, 17 May 2013, para 8.
[7] By that stage, the police were already of the clear view that there was insufficient evidence to justify prosecuting “A” but the further reviews were, according to Crown counsel, utilised by Inspector Cotter as extra preparation for cross-examination at the inquest. It should be noted in that context that Coroner Smith issued a minute on 27 June 2012 directing that the police provide a brief of evidence to the inquest in response to Mr Carter’s allegations in relation to “A” (about which the Coroner was clearly already aware) and directed that the police be represented by counsel at the inquest.
[8] The review of evidence was undertaken by Detective Inspector Johnson.
[9] The legal opinion was prepared by police in-house legal advisor, Sarah Kennedy (the Kennedy opinion). She was asked to consider whether “A” could be charged with any offences against s 179 of the Crimes Act 1961, and in particular the offence of inciting Christopher’s suicide.
[10] Both reviews were completed some time before 6 August 2012 because on that date Detective Inspector Johnson and Sarah Kennedy met with Inspector Cotter to discuss their respective findings.
[11] Meanwhile Mr Carter had engaged extensively with police personnel over the conduct of the investigation from the date of Christopher’s death right through to the inquest and beyond. One formal complaint by Mr Carter led to a written response from the Acting Commissioner of Police on 29 October 2012. Detective Superintendent Kench then took over liaison with Mr Carter writing to him twice in December 2012 regarding the investigation.
[12] On 10 May 2013, Detective Superintendent Kench wrote again to Mr Carter in relation to the issues the latter had raised. In the letter, he responded in detail, issue by issue, to 10 matters that, he said, had been identified by Mr Carter at various times in the past as problems with the investigation.
[13] In the 10 May letter, Detective Superintendent Kench made reference to the
Kennedy legal opinion. Two extracts are relevant.
[14] First, in response to the following issue:
Carter requests that the NZP commence a homicide investigation into his
son’s death.
Detective Superintendent Kench responded:
Investigations are conducted to determine culpability or otherwise of individual(s). Upon review there is no question police investigated Christopher’s sudden death following or using investigative principles to determine culpability before referring the death to the Coroner for the inquest process to occur including obtaining a legal opinion as to the threshold test as to causation. Police label various types of investigations and it is reinforced. Police have conducted an investigation into the sudden death of Christopher that followed sound investigative principles reaching an appropriate conclusion that this was a matter for the Coroner to determine.
(my emphasis)
[15] And second, in response to the issue:
Carter believes that his neighbour “A” was responsible for his son’s death.
Detective Superintendent Kench responded:
Despite allegations and actions attributed to [A], there is no causal link that proves and/or establishes that [A] had any criminal liability into the sudden death of Christopher Carter. Investigators obtained a legal opinion that concludes that the threshold test on causation does not provide evidential sufficiency that established any criminality in relation to [A].
(my emphasis)
[16] Mr Carter seeks disclosure of the Kennedy opinion on the basis that any legal advice privilege in it has been waived in accordance with s 65 of the Evidence Act
2006 (the Act). The Commissioner claims the retention of such privilege pursuant to s 54 of the Act.
The issue
[17] There is no doubt that the Kennedy opinion is protected by legal advice privilege pursuant to s 54. The advice was of a purely legal nature and it makes no
difference that Ms Kennedy was an in-house lawyer at the New Zealand Police rather than an independent solicitor.3
[18] The question then is whether the Detective Superintendent Kench waived (or indeed could waive) that privilege pursuant to s 65 of the Act. I set out the relevant provisions of that section below:
65 Waiver
(1) A person who has a privilege conferred by any of sections 54 to 60-
54 to 60 and 64 may waive that privilege either expressly or impliedly.
(2) 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.
…
(4) A person who has a privilege in respect of a communication, information, opinion, or document that has been disclosed to another person does not waive the privilege if the disclosure occurred involuntarily or mistakenly or otherwise without the consent of the person who has the privilege.
[19] I will approach the question of whether privilege has or could be waived by posing the following three questions based on the wording of the section:
(a) Did Detective Superintendent Kench voluntarily disclose to Mr Carter a significant part of the Kennedy opinion (s 65(2))?
(b)If yes, was this disclosure made in circumstances inconsistent with maintaining its confidentiality (s 65(2))?
(c) If yes, was the disclosure made with the authority and/or consent of the person who has the privilege (s 65(2) and (4))?
3 Bain v Minister of Justice (Privilege) [2013] NZHC 2123, [2014] NZAR 892, (2013) 21 PRNZ
625 at [72].
[20] The third question is posed to address the issues of whether the privilege is that of the Crown and may only be waived by the Attorney-General. This is both a general question of principle and a question that arises from the use of the words authority and consent in subss (2) and (4).
Question 1: Significant part
[21] Mr Perkins submits that the Kennedy opinion covered a range of topics in addition to the sufficiency of evidence to support a prosecution. He submitted therefore that no significant part of the communication was disclosed.
[22] Significance in subs (2) is to be measured by the quality of the disclosure assessed as a part of the whole document, not the quantity or proportion of the disclosure.4 Although it is a pre-Act decision, the Court of Appeal in
Ophthalmological Society said relevantly:5
That requires close analysis of the particular context: what is the issue in relation to the privilege; how does the evidence [or in this case opinion] relate to the issue and is there inconsistency that could lead to injustice if the privilege is upheld.
[23] Here, the disclosure advises that the Kennedy opinion assessed “the threshold test as to causation”. The disclosure advised that the opinion concludes, following analysis, that the evidence is not sufficient to meet the test. Detective Superintendent Kench discloses not just the fact that advice was sought on this matter but the conclusion Ms Kennedy reached on the central issue. This, in my view, represents a significant part of the opinion.
[24] But significance here may be assessed both in terms of the significance of the disclosed portions to the opinion itself and in terms of their significance vis-à-vis the issue in the present litigation. Little purpose would be served in applying the section if the disclosure was a significant part of the opinion but not particularly relevant to the litigation. That would in any event be relevant to admissibility under s 7(2) of
the Act.
4 Bete Fog Nozzle Inc v Delavan Ltd (2008) 19 PRNZ 439 (HC) at [23]; Ophthalmological Society of New Zealand Inc v Commerce Commission [2003] 2 NZLR 145, (2003) 16 PRNZ 569 (CA).
5 At [30].
[25] Mr Perkins advances this point in arguing that by the time Inspector Cotter requested and was provided with the Kennedy opinion, the police had long since decided that “A” would not be prosecuted. The opinion, he submits, was merely to assist Inspector Cotter in giving evidence at the upcoming inquest and had nothing to do with the actual prosecution decision.
[26] There is something in this point, and I will ultimately take it up again in the context of question 2 as to circumstances of confidentiality. But for present purposes I simply record that Mr Perkins ultimately accepted prosecution decisions are not necessarily made irreversibly at a finite point in time. Rather, such decisions are kept under constant review. In this case, if the Kennedy opinion had said there was sufficient evidence upon which a jury, properly instructed, could reasonably find causation beyond a reasonable doubt, then that would almost certainly have caused Inspector Cotter to reconsider the original decision made by the police in 2010.
[27] So it is somewhat artificial to suggest that the opinion was too late to be relevant in terms of s 7 or significant in terms of s 65(2). If the primary purpose of the document was to assist Inspector Cotter, it still had as a collateral purpose: a reassessment of the prosecution decision itself. That collateral purpose is, in fact, inherent in the task Ms Kennedy undertook.
[28] The key issue in this proceeding has become whether there is any basis in law or fact to challenge the prosecutorial decision. The Kennedy opinion purports to assess whether there is sufficient evidence of causation to support a charge of incitement to suicide. If there is any basis at all to successfully challenge such a decision, especially in the face of such powerful authorities as the Court of Appeal’s
decision in Fox v Attorney-General,6 it could only be that, in deciding not to
prosecute (or in later affirming that decision on review), the police misdirected themselves as to the correct legal test.
[29] Whether the decision is amenable to review, even on that narrow basis is hotly contested and will fall to be resolved in due course, but if it is reviewable, the
Kennedy opinion will be on point. Indeed it is potentially dispositive. It would, I
6 Fox v Attorney-General [2002] 3 NZLR 62, (2002) 19 CRNZ 378.
suggest, be fatal to Mr Carter’s proceeding if the Crown produced a document that showed the correct legal test had been applied on an internal review of the question and even more so if it suggests that the same test was relied on for the original decision. Mr Orpin accepts that this is so.
[30] I conclude that disclosure of the conclusion in the Kennedy opinion on the central issue of causation is thus disclosure of a significant part of the privileged document. This test is met both in terms of the quality of what Detective Superintendent Kench disclosed, and in terms of the significance of the disclosure to the current litigation.
[31] No question arises as to the voluntariness of Detective Superintendent
Kench’s disclosure. I conclude therefore that the answer to the first question is yes.
Question 2: Inconsistent with the claim to confidentiality
[32] Mr Perkins makes three points in this respect:
(a) The disclosure was for the limited purpose of addressing Mr Carter’s customer service complaints and was not made in the context of the litigation.
(b)It is not unfair to maintain confidentiality because the opinion did not contribute in any way to the original decision not to prosecute.
(c) At the time of the disclosure in May 2013, the proceeding was not focused on the prosecution decision. This shift did not occur until September 2013 when amicus recast the issues in the case.
[33] In response, Mr Orpin makes five points in submitting that the disclosure was inconsistent with the maintenance of a claim to confidentiality:
(a) The disclosure was direct to Mr Carter rather than to a third party. (b) It was unqualified.
(c) It post-dated commencement of Mr Carter’s proceedings by some months; indeed it occurred a week before Detective Superintendent Kench swore his affidavit in these proceedings of 17 May 2013.
(d)It occurred in the context of a dialogue between Detective Superintendent Kench and Mr Carter designed “in part” to persuade Mr Carter to abandon his proceedings. Indeed, Mr Orpin submits, the period of engagement in late 2012 through to early 2013 coincided with judicial remarks following Chambers conferences7 about ongoing discussions with Mr Carter that could well resolve the litigation.
(e) The opinion is relevant to the central issue of legality of the decision not to prosecute even though it post-dated the original prosecution decision. That is because in the 10 May 2013 letter, the police relied on it as a basis both for the original decision not to prosecute, and for the post-opinion decision not to revisit the matter.
[34] The older authorities to which reference is traditionally made tend to suggest that the issue is one of fairness: once disclosure is made of what is purported to be the essence of a privileged document, it would, the authorities say, be unfair to allow the discloser to then claim confidentiality and thereby prevent the other party from checking whether the document does indeed say what the privilege holder claims and whether it is said without relevant condition or caveat.8
[35] As Asher J pointed out in Body Corporate 191561 v Argent House,9 although s 65 does not specifically refer to fairness, the Law Commission report that led to the enactment of the Evidence Act was of the view to disclose privileged material in a manner inconsistent with the maintenance of confidentiality inherently raised the
issues of fairness discussed in earlier cases.
7 Minute of Kós J 22 November 2012; Minute of Collins J 10 December 2012; Minute of Dobson
J 13 March 2013.
8 See for example Attorney-General (Northern Territories) v Maurice (1986) 161 CLR 475 at 481 (HCA) referred to and relied on Ophthalmological Society (above n 4).
9 Body Corporate 191561 v Argent House (2008) 19 PRNZ 500 (HC) at [32]. See also French J’s summary of the position under s 65 of the Act in Houghton v Saunders (2009) 19 PRNZ 476 (HC) at [54] and especially at (vii).
[36] That said, it will not always be the case that disclosure of the essence of a privileged document will make maintaining its confidentiality unfair. Rodney Hansen J in Bete Fog Nozzle Inc v Delavan Ltd, a patent case, found that extensive reference to legal opinions in defence counsel’s correspondence with the plaintiff was not inconsistent with the maintenance of confidentiality in them, even
where the advisor’s conclusion was disclosed in the correspondence.10
[37] The disclosure in question in that case was in response to what counsel described as “low level harassment” for nearly nine years from Bete Fog Nozzle over a patent infringement issue. Counsel’s reference to the fact that Delavan had obtained a series of supportive legal opinions on the question was to explain that, while the claim was treated seriously, there was no point in Delavan meeting with Bete Fog Nozzle to discuss the issue because Delavan had advice from intellectual
property experts that there was no issue to discuss.11
[38] There was, the Judge concluded, no evidence of detriment to the plaintiff due to limited disclosure, and therefore no unfairness or prejudice.
[39] There is something of the flavour of Bete Fog Nozzle in the facts before me. The Kennedy opinion is referred to by Detective Superintendent Kench in order to present to Mr Carter some kind of independent expert verification for the stance the police had taken in respect of the decision not to prosecute “A”. Mr Carter had complained extensively and regularly about the issue to the police, the Coroner and indeed to this Court, the last mentioned being by way of instituting his judicial review proceedings. This is understandable given the terrible tragedy he and his family had suffered, and it must be said, Mr Carter’s own struggles with mental health issues. So I mean Mr Carter no disrespect or injury when I say his behaviour was genuinely obsessive and over a long period. The police had to do the best they
could in managing communications with him.
10 Bete Fog Nozzle Inc v Delavan Ltd, above n 4.
11 See [26] and [27].
[40] Like Rodney Hansen J in Bete Fog Nozzle, I can very much see why Detective Superintendent Kench saw fit to specifically mention the conclusions of the Kennedy opinion in his comprehensive letter to Mr Carter.
[41] I agree with Mr Orpin that the letter had these proceedings at least partly in mind, but it was as much, and probably more about developing a final and comprehensive response to Mr Carter’s long and longstanding list of complaints. The terms of the letter make that quite clear. This litigation now dominates our perspective on past events, but I do not consider that it necessarily did so for the police in May 2013.
[42] Stepping back, I do not think it can be said that the disclosure letter was inconsistent with maintaining the confidentiality of the Kennedy opinion. I do not consider that fairness requires the Commissioner to release the opinion. Rather, the disclosure was an understandable response to a very difficult and trying situation. Fairness, in my view, dictates that Detective Superintendent Kench’s genuine (and I venture, well-meaning) attempt to be as comprehensive as possible in explaining to Mr Carter why there would be no revisiting of the prosecution decision, should not now come to defeat the privilege in the Kennedy opinion. The disclosure was not, therefore, inconsistent with maintaining the confidentiality of the Kennedy opinion.
[43] Finally, though I did not accept Mr Perkins’ argument that the Kennedy opinion came too late to be relevant or significant in terms of s 65(2), it does seem to me that the opinion’s timing is a factor to be weighed in the balance in the assessment. The key decision had been made nearly two years earlier. While the opinion is directly relevant to any later review of the original prosecution, it can only be indirectly relevant to the original decision. It cannot be evidence of what was in the mind of the officer in charge of the case at that earlier time. The detriment to Mr Carter in not being able to see the opinion is somewhat lessened thereby.
[44] The answer to question 2 is no.
Question 3: Authority and consent of the privileged holder
[45] In light of my answer to question 2, I will deal more briefly than would otherwise be the case with this third question. For ease of treatment, I have brought the question of authority under subs (2) and consent under subs (4) together though they are distinct questions. I have done this for convenience because the underlying question is whether it is only the Attorney-General who may waive the Crown’s privilege in respect of the Kennedy opinion. Mr Perkins submits this is a consent question under subs (4) while Mr Orpin suggests the answer is to be found in whether Detective Superintendent Kench had wide general authority in respect of the investigation of Christopher’s death, and whether included within that authority was the implied right to waive privilege.
[46] Mr Perkins’ argument relies on three sources: the Cabinet Manual 2008, the Cabinet Directions for Conduct of Crown Business 2012, and the decision of Keane J in Bain v Minister of Justice.12
[47] Mr Orpin submits there is no special rule with respect to legal advice privilege and the Crown; the Cabinet Manual and the Cabinet Directions cannot override the Evidence Act; and, he submitted, Bain was wrongly decided. Rather, Mr Orpin submits, ordinary principles of agency apply to clothe Detective Superintendent Kench with both authority and implied consent.
[48] In addition, Mr Orpin submits that in the context of the investigation of crimes, the Policing Act 2008 separates the police from the political executive so that it may be argued that the relevant privilege belongs to the Commissioner of Police and not the Attorney-General.
[49] Because this question places squarely in frame the nature of the privilege attaching to the Crown, I will begin with a preliminary point: this is a case about Crown claimed legal advice privilege not Crown privilege strictly so-called. The latter is the old term for what is now known as public interest immunity. That
describes the evidential rule at common law by which relevant evidence may be
12 Bain v Minister of Justice, above n 3.
excluded as inadmissible in a proceeding where such admission would be injurious to the public interest.13 The Crown need not be the claimant of public interest immunity, nor does the evidence have to be in the possession of the Crown. Any interested party or the Court itself can engage the principles of this form of Crown privilege. It cannot be waived by the Crown or any other party.14 That species of Crown privilege is not the kind of privilege with which I am concerned in this case.
[50] A second preliminary point relates to the use of the term “consent” in s 65(4). Subsections (2) and (3) of s 65 deal with the circumstances within which waiver of privilege will be considered effective. Subsection (4) is a caveat on those provisions. It says, despite the previous two subsections, waiver is not to be found where the disclosure occurs involuntarily or mistakenly “or otherwise without consent of the person who has the privilege”.
[51] The phrases “involuntarily” and “mistakenly” have been helpfully interpreted by Asher J in the Argent House decision, but I could find no decision that addressed squarely the meaning of the term “consent” in that subsection.15
[52] On its face, the term may be construed in a manner that either undermines the reference to “authority” in subs (2) – it could mean that express consent of the privilege holder to the particular waiver is required; or simply replicates the effect of subs (2) – consent of the privilege holder may be implied through agency or general authority. Neither possibility seems particularly useful.
[53] The history of the development of subs (4) suggests that neither of them was intended by the legislature.
[54] The Law Commission’s 1999 report on evidence law reform16 explains that subs (4) was a response to the particular circumstances in R v Uljee.17 That case
involved a police officer inadvertently overhearing a privileged conversation
13 See generally D L Mathieson Cross on Evidence (8th ed, LexisNexis, Wellington 2005) at [375]- [405].
14 Air Canada v Secretary of State for Trade (No.2) [1983] 2 AC 394 (HL) at 436.
15 Body Corporate No 191561 v Argent House Ltd (2008) 19 PRNZ 500 (HC).
16 Law Commission Evidence: Reform of the Law (NZLC R55, vol 1, 1999) at 85-86. Vol 2 contained the draft code that became the 2006 Act. Clause 69(4) replicates s 65(4).
17 R v Uljee [1982] 1 NZLR 561 (CA).
between a suspect and his lawyer. The conversation contained material prejudicial to the suspect’s interests and, when he was charged, the police sought to give evidence of that conversation. In three separate and full judgments, Cooke, Richardson and McMullin JJ held that legal advice privilege prevented the admission of the evidence. According to Cooke J:18
The privilege undoubtedly exists. It relates to communications for the purpose of obtaining or giving legal advice or assistance. The client cannot be compelled to disclose what was said at any stage for such a purpose to or by his professional legal advisor in intended confidence. The legal advisor must not do so without the client’s consent. It seems to me that the law should not shrink from the fair and natural consequence. A third party who has overheard such a communication, if oral, or come into possession of it or a copy of it, if written, should not be allowed to give evidence of it unless the client waives the privilege.
(my emphasis)
[55] Section 65(4) was thus aimed at an entirely different situation: that is where a privileged communication is obtained by a third party without the privilege holder being even aware of the possibility that a third party had obtained it. Thus, the term “consent” is to take its meaning from “involuntarily” and “mistakenly” in the same way that those two words were, according to Asher J in the Argent House case, to take their meaning from the reference to “consent”.19 Section 65(4) thus has no application to the facts before me.
[56] The question then becomes essentially whether Detective Superintendent Kench acted with the Crown’s authority when referring to the Kennedy opinion in his 10 May 2013 letter and the focus must properly shift to s 65(2).
[57] I turn then to that substantive question and begin with Keane J’s treatment of it in Bain v Minister of Justice.20 That case related to the Mr Bain’s claim for compensation following his acquittal on retrial for the murders of his family members. Bain brought proceedings in judicial review arguing that the way a report to the Minister by Hon Ian Binnie QC (a former Canadian Supreme Court Judge) on
the question of Mr Bain’s compensation claim had been handled, was in breach of
18 At 570.
19 Body Corporate No 191561 v Argent House Ltd, above n 9, at [43].
20 Above n 3.
his natural justice rights. During discovery, the Minister claimed legal advice privilege in respect, among other documents, of a legal opinion prepared at her request by the Solicitor-General on the Binnie report. The opinion was addressed only to the Attorney-General, not the Minister (although it was she who requested it). The Solicitor-General’s opinion was the focus of the challenge to privilege. Mr Bain argued that the Minister had waived privilege in terms of s 65 by disclosing it to the
Attorney-General, the police via Crown Law and Hon Dr Robert Fisher QC.21
[58] Keane J began his analysis of waiver by observing, as I do, that this issue raises questions both of statutory interpretation and of deeper constitutional law including the nature of the corporate crown, ministerial portfolios and the unique constitutional position of the New Zealand Police.
[59] Keane J found that the privilege claimed in this case belonged to the Crown as a whole.22 His Honour then referred to the oft-quoted House of Lords decision in Conway v Rimmer,23 although I apprehend that was a case about Crown privilege as I have previously described it rather than legal advice privilege. The Judge then concluded:24
The opinion, though one the Minister has accepted she wanted, was addressed to the Attorney-General and for that reason alone he must 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.
Furthermore, the 2012 Cabinet Directions for the Conduct of Crown Legal Business 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 Government Departments, from whatever source, attracts legal professional privilege”; and it goes onto say that, before privilege can be waived by a department or a Minister, the Attorney-General’s consent must obtained through the Crown Law Office. There is no evidence that this ever happened.
21 Dr Fisher (a former New Zealand High Court Judge) had been instructed by the Minister to
“peer review” the initial advice on Mr Bain’s application by Hon Ian Binnie.
22 At [123]-[124].
23 Conway v Rimmer [1968] 1 All ER 874 (HL) at 889.
24 At [136]-[137].
[60] The Cabinet Directions document draws its authority from paragraphs 4.58 to
4.68 of the Cabinet Manual. A review of three paragraphs of the manual is instructive for my purposes.
[61] Paragraph 4.64(b) of the Cabinet Manual discusses implied waiver in these terms:
Implied waiver: when a client refers to the legal advice in a way that would make it unfair to allow the privilege to be maintained. In this case, a simple statement by a client that legal advice has been received is unlikely to amount to an implied waiver of privilege. Partial disclosure of the actual legal advice received, or reference to the content of the legal advice, however, may result in waiver of privilege. For example, a statement such as “I have received legal advice and acted on it” may constitute a waiver.
[62] At paras 4.66 and 4.67 are the following instructions:
When determining whether to release legal advice that has been provided to the government, or to refer to the content of that advice, and waive (or potentially waive) legal privilege, there is a need to:
(a) ensure a coordinated government approach to release;
(b) avoid any adverse impact of a release on current or potential legal proceedings; and
(c) ensure that no single release will create an undesirable precedent. Where a Minister or a government department considers that it is necessary
to release legal advice or refer to the content of that advice, the matter must
first be referred to the Crown Law Office. The Crown Law office will in turn refer the matter to the Attorney-General’s office for approval.
(my emphasis)
[63] So on the basis of joint privilege under s 66 and the Cabinet Directions, Keane J concluded (inter alia) as follows:25
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.
[64] I find myself unable to agree with the conclusion that the Attorney-General is the only officer who can waive privilege asserted by the Crown, and must do
25 At [157].
personally. To the extent that finding relies on the Cabinet Manual and the Cabinet Directions, I do not consider them to be legitimate sources of law, although they both contain commentaries on relevant legal doctrine. They also discuss constitutional conventions relevant to the functioning of the executive alongside operational rules and procedures internal to the work of the public sector.
[65] What is more, on close reading neither the Cabinet Manual nor the Cabinet Directions actually says that the Attorney-General is the only official capable of waiving privilege on behalf of the Crown. On the contrary, para 4.64 provides an orthodox commentary on general principles of implied waiver, suggesting that privilege can be inadvertently waived by unsuspecting officials and Ministers. Similarly, para 4.67 seems expressly to indicate that Ministers or officials can themselves waive privilege through the release of legal advice or reference to its content. It simply says this must be done only after the matter has been referred via the Crown Law Office to the Attorney-General for approval. This direction seems to proceed on the basis that it is the primary Minister or official that waives privilege, not the Attorney-General. It certainly underscores the point that the prior approval requirement is an internal rule or procedure rather than a statement of legal principle or doctrine.
[66] Having said that, I entirely agree, with respect, with Keane J’s conclusion that the Crown is to be treated as an indivisible whole for this purpose, but that does not help in resolving who, in any given situation is invested with the authority to waive its privilege. I do not agree with Mr Orpin’s argument that the special role of the New Zealand Police as an instrument of the Crown (s 7(1) Policing Act), which is independent of the Minister of Police and the wider executive branch in investigation and prosecution of offences (s 16(2)(c)), creates some sort of division between police and the executive for the purposes of the waiver of privilege.
[67] This, in my view, is an artificial divide. Indeed the Cabinet Directions echo the point by declaring in para 9.1(b) that the enforcement of the criminal law is a core Crown legal matter. The overlap in the area of criminal law enforcement between the role of the Law Officers of the Crown and the police is underscored by s 185 of the Criminal Procedure Act 2011. It declares that the Solicitor-General is
responsible “for maintaining general oversight of the conduct of public prosecutions to distinguish in general between police investigation and Crown prosecution”. The separation argued for is difficult to make as a matter of general principle, let alone in this case where the issue for the police was whether or not to prosecute.
[68] I was directed to no authority either here or elsewhere in the Commonwealth other than Bain (with its reliance on the Cabinet Manual and the Cabinet Directions) as suggesting that only the Senior Law Officer of the Crown is able to waive Crown legal advice privilege. Against that are the plain terms of s 65(2) which allow waiver to be by “anyone with an authority” of the privilege holder. It seems to me that whether authority for that purpose exists in any particular situation will, as always, be a matter of assessing all of the relevant circumstances. The fact that the privilege is claimed by the corporate Crown, as it were, will be relevant, but not determinative.
[69] There is certainly no justification for taking the Crown outside the rules in s 65(2) in this respect. Indeed, given the Crown’s widespread litigation activity, the effect of such an exception would be to undermine the policy of s 65(2). As s 3 provides, the Evidence Act binds the Crown too.
[70] Detective Superintendent Kench was, in all of the circumstances of this case, properly invested with the authority necessary to waive the Crown’s privilege if he saw fit to do so, and whether or not he checked with the Attorney-General through the Crown Law Office first as required by the manual and directions. This investigation had been the focus of attention by the Acting Commissioner himself and Detective Superintendent Kench had been duly delegated to deal with it. He was a senior police officer who must be taken to have been invested with all powers necessary to resolve, if possible, Mr Carter’s issues with the police investigation. In the absence of a rule of law declaring that Detective Superintendent Kench did not have authority to waive privilege (and I have concluded there is no such rule), it must therefore be implied in his rank, function and duties in this case that he had the authority necessary to waive privilege. Whether he did so in accordance with the internal procedures of the Cabinet Manual and the Cabinet Directions is not a matter for this Court.
[71] I answer yes to the third question.
Disposition
[72] In light of my answer to question 2, I nonetheless conclude that the Commissioner did not through Detective Superintendent Kench, waive privilege in respect of the Kennedy opinion. The opinion is privileged accordingly in terms of
s 54 of the Evidence Act.
Williams J
Solicitors:
Stout Street Chambers, Wellington
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