Coote v Police

[2013] NZHC 2155

IN THE HIGH COURT OF NEW ZEALAND NESLON REGISTRY

CIV-2013-442-287 [2013] NZHC 2155

UNDER	Part 19 of the High Court Rules 2008
IN THE MATTER OF	an application for leave to use documents in another proceeding
BETWEEN	COLIN HOWARD COOTE Applicant
AND	NEW ZEALAND POLICE Respondent

Teleconference:	23 August 2013
Counsel:	D R Kalderimis for Applicant No appearance for Respondent
Judgment:	23 August 2013

JUDGMENT OF WILLIAMS J

[1]      I  issued  a  minute  on  this  matter  on  21 August  2013  directing  that  the application be heard by teleconference today.

[2]      The applicant applies for leave to utilise documents discovered in separate civil litigation (now discontinued – CIV-2011-442-122) in criminal proceedings against him.   He is charged with an offence against s 220 of the Crimes Act for failing to deal with funds held by a joint venture company in accordance with the requirements of the venture.   He withdrew sums totalling $135,000 from the company’s accounts. The documents are in two categories:

(a)       documents the applicant says demonstrate that the funds withdrawn were moneys he lent to the joint venture and that he was entitled to

repayment; and

COLIN HOWARD COOTE v NEW ZEALAND POLICE [2013] NZHC 2155 [23 August 2013]

(b)documents the applicant says demonstrate that Mr Royd was helping the  promoters  of  the  venture  to  conceal  undisclosed  profits  of

$500,000.

[3]      The applicant says these documents are relevant to his defence because they provide  a  lawful  basis  for  the  withdrawals  and  because  they  go  to  Mr Royd’s credibility and/or veracity.  Any questions of admissibility will be dealt with by the District Court Judge at trial.

[4]      Rule 8.30(4) of the High Court Rules provides that documents discovered and inspected in proceedings under those rules may not be utilised for any other purpose.  The authorities are however clear that with the leave of this court, that prohibition may be relaxed: see Wilson v White; Colin Crest Homes Plc v Marks.1

Similar principles are considered in New Zealand in Telstra New Zealand Limited v

Telecom New Zealand Limited2  in which this court took the view that leave would require special circumstances.

[5]      There can be no doubt that special circumstances exist in this case.   I am satisfied that the material that is sought to be utilised is relevant and potentially probative in the criminal proceedings such that to deny the defendant the right to utilise it would be to compromise his fundamental fair trial right.

[6]      I note also that, despite having been served with the material, the police indicate they take no position on the application.

[7]      It  is  in  order therefore  for me  to  grant  leave  pursuant  to  r 19.10  to  the applicant to commence his application by way of originating application, and to

grant the application accordingly.

Williams J

1 Wilson v White; Colin Crest Homes Plc v Marks [1987] 3 WLR 293; [1987] 2 All ER 1074 (HL).

2 Telstra New Zealand Limited v Telecom New Zealand Limited (2000) 14 PRNZ 541.