Johnson v The Queen

[2020] NZCA 643

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

 CA520/2019
 [2020] NZCA 643

BETWEEN	PHILLIP JOHNSON Appellant
AND	THE QUEEN Respondent

Court:	French, Gilbert and Collins JJ
Counsel:	Appellant in Person R K Thomson for Respondent
Judgment: (On the papers)	14 December 2020 at 9 am

JUDGMENT OF THE COURT

AThe application for disclosure is declined.

BThe appeal is to be set down for hearing at the first available date without any further delay.

____________________________________________________________________

REASONS OF THE COURT

(Given by French J)

1. Mr Johnson is appealing his conviction and sentence on two charges of male assaults female.  The appeal has not yet been allocated a fixture date.

2. Earlier this year, Mr Johnson applied unsuccessfully for an order requiring a police officer Constable Grove to attend the hearing of the appeal.[1]  Because that application was declined, he has since filed another interlocutory application, this time for disclosure.  The application seeks disclosure of the following:

   (a)records of the last four years of police call outs to Mr Johnson’s family home; and

   (b)a report of the Independent Police Conduct Authority (IPCA) following a complaint made to the IPCA by Mr Johnson, which shows the number of times Constable Groves “showed up” at Mr Johnson’s home.

   [1]Johnson v R [2020] NZCA 491.

3. Mr Johnson advised that he did not have a copy of the IPCA report in question because the IPCA had refused to give him a copy, despite the fact that it was a report about his complaint.

4. The application for disclosure was opposed by the Crown on the grounds of lack of relevance.[2]

   [2]Criminal Disclosure Act 2008, s 14(2)(a).

5. The application for disclosure filed by Mr Johnson did not specify which provision under the Criminal Disclosure Act 2008 he was relying on.

6. The scheme of the Act is that any request for disclosure should first be made to the prosecutor under s 14 and it is only if the prosecutor fails or refuses to disclose the information that there is the right to apply to the court under s 30.

7. At a conference call, it was agreed that in order to give the Court jurisdiction to consider Mr Johnson’s application, it would be treated as an application under s 14 which had been declined by the Crown.

8. Following the conference call, the Crown made inquiries of the IPCA and ascertained that the IPCA has received two complaints from Mr Johnson, both of which complained of conduct by Constable Grove.  After investigating each complaint, the IPCA decided not to take any further action.  It advised Mr Johnson of those outcomes in letters dated 29 January 2018 and 17 May 2019.  The IPCA has apparently agreed to send Mr Johnson copies of those letters again.

9. In light of that information, the application for disclosure of what is a non‑existent IPCA report must fail.[3]

   [3]Sections 14(2)(b) and 16(1)(n).

10. As regards the application for disclosure of records of police call outs, we consider the Crown is justified in refusing to disclose that information.  The history of Constable Grove’s interactions with Mr Johnson and his family is not relevant to the appeal.  Constable Grove did not witness the incident between the complainant and Mr Johnson.  Evidence that there was hostility between Mr Johnson and the complainant was before the jury.  The crucial issue on appeal is the significance of recordings of the incident which were not before the jury and which Mr Johnson contends will show that he did not commit any offence.

11. The application for disclosure is declined.

12. We direct that the appeal is to be set down for hearing on the first available date without any further delay.

Solicitors:
Crown Law Office, Wellington for Respondent