Gray v The Queen

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA287/2019
[2021] NZCA 202

BETWEEN	HAYDEN ANTHONY GRAY Appellant
AND	THE QUEEN Respondent

Court:	French, Courtney and Goddard JJ
Counsel:	A M S Williams for Appellant A J Ewing for Respondent
Judgment: (On the papers)	20 May 2021 at 9 am

JUDGMENT OF THE COURT

AThe application under s 24 of the Criminal Disclosure Act 2008 is granted.
BThe Registry is to allocate a fixture for the non-party disclosure hearing and serve Forensic Pathology South Island with the documents set out at [7].
CAny party wishing to file written submissions should do so no later than two working days before the hearing.
DPermission is granted to appear at the hearing remotely by AVL should any party so wish.

____________________________________________________________________

REASONS OF THE COURT

(Given by French J)

Mr Gray is appealing his conviction for inflicting grievous bodily harm on his four-week-old baby son. The baby later died.
In support of his appeal, Mr Gray has applied for non-party disclosure of the slides taken from the baby’s brain at the post-mortem.[1] He has retained an overseas expert who advises that he needs the slides before being able to give an opinion on the conviction appeal.
[1]Criminal Disclosure Act 2008, s 24.
The slides are in the custody of Forensic Pathology South Island. The clinical director of Forensic Pathology, Dr Martin Sage, has expressed various concerns about releasing the slides and requires a Court order before doing so.
The Crown consents to the Court ordering a non-party disclosure hearing under s 25 of the Criminal Disclosure Act 2008.
We agree that is appropriate. Although Dr Sage does not consider the slides have the relevance claimed by the appellant, it is not possible for us to reach a concluded view on that at this stage. On the face of it, they do appear to be relevant.
It follows that the criteria under s 25 of the Criminal Disclosure Act are satisfied. We therefore grant the application for a non-party disclosure hearing and direct the Registry to allocate a fixture date.
We also direct that no less than five working days before the hearing date, the Registry is to serve on Forensic Pathology South Island:[2]
(a)a copy of the appellant’s application;
(b)a summons under s 160 of the Criminal Procedure Act 2011; and
(c)a copy of the order made by the Court under s25 of the Criminal Disclosure Act.
[2]Section 26(1)(a).
The summon referred to above should require the attendance of a representative of Forensic Pathology South Island at the hearing.
Any party including Forensic Pathology South Island who wishes to file written submissions should do so no later than two working days before the hearing.
Finally we record that permission is granted for any of the parties to appear at the hearing remotely by AVL should they so wish.

Solicitors:
Crown Law Office, Wellington for Respondent

CaseChat Overview and Summary

Hayden Anthony Gray is appealing his conviction for causing grievous bodily harm to his four-week-old son, who later died. Gray applied for non-party disclosure of the slides taken from the baby’s brain at the post-mortem, which are currently in the custody of Forensic Pathology South Island. Gray argues that he needs these slides to obtain an expert opinion from an overseas expert to support his appeal. However, Dr Martin Sage, the clinical director of Forensic Pathology, is reluctant to release the slides without a court order, citing concerns over the relevance and potential misuse of the slides.

The court was required to decide whether to order a non-party disclosure hearing under section 25 of the Criminal Disclosure Act 2008. The court needed to consider whether the slides were relevant to Gray's appeal, and if so, whether the potential benefits of their disclosure outweighed any harm that might result from their release. The court also had to consider the Crown's consent to the hearing, which was given. The court found that on the face of it, the slides did appear to be relevant, and therefore it was appropriate to order a non-party disclosure hearing.

The Court of Appeal granted the application for a non-party disclosure hearing and directed the Registry to allocate a fixture date. The court also directed that no less than five working days before the hearing date, the Registry is to serve on Forensic Pathology South Island a copy of Gray's application, a summons under section 160 of the Criminal Procedure Act 2011, and a copy of the order made by the Court under section 25 of the Criminal Disclosure Act. The court also granted permission for any of the parties to appear at the hearing remotely by AVL if they so wished. The court found that the criteria under section 25 of the Criminal Disclosure Act were satisfied, and that it was appropriate to order a non-party disclosure hearing.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established