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Liev v The Queen

Liev v The Queen

Case [2017] NZHC 1352 22 June 2017

Legal Privilege

Admissibility of Evidence

Expert Evidence

Discovery & Disclosure

Public Interest

Criminal Law

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ORDER PROHIBITING PUBLICATION OF THE JUDGMENT AND ANY PART OF THE PROCEEDINGS (INCLUDING THE RESULT) IN NEWS MEDIA OR ON THE INTERNET OR OTHER PUBLICLY AVAILABLE DATABASE UNTIL FINAL DISPOSITION OF TRIAL. PUBLICATION IN LAW REPORT OR LAW DIGEST PERMITTED.

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2016-092-5315 [2017] NZHC 1352

SENG LEK LIEV

v

THE QUEEN

Hearing: 19 June 2017

Appearances:

G R Kayes, L Radich and H Benson-Pope for the Crown
M W Ryan for S L Liev

Judgment:

22 June 2017

JUDGMENT OF PALMER J

This judgment is delivered by me on 22 June 2017 at 9.30 am pursuant to r 11.5 of the High Court Rules.

..................................................... Registrar / Deputy Registrar

Counsel/Solicitors:
Kayes Fletcher Walker, Manukau
M W Ryan, Barrister, Auckland
J M Hudson, Barrister, Manukau

R v LIEV [2017] NZHC 1352 [22 June 2017]

Summary

[1] Mr Seng Lek Liev is currently on trial for manslaughter and kidnapping. He applies for an order for disclosure of privileged information relating to the immunity from prosecution granted to a key Crown witness. The Court has discretions under s 30(2) of the Criminal Disclosure Act 2008 and s 67(2) of the Evidence Act 2006 to order disclosure of such information. The thresholds for ordering disclosure of privileged information are similar under each Act and, usually, likely to yield the same result. If disclosure is necessary to ensure a defendant is able to present an effective defence, under s 67(2), its disclosure is likely to be in the public interest under s 30(2). Focusing on this, I consider the Canadian Supreme Court’s approach in R v McClure to the disclosure of privileged information provides useful guidance as to how to approach the exercise of the discretions in the circumstances here.1

[2] Here I consider detailed evidential assessments, of primary materials which have already been disclosed, do not add anything to the material already produced and are not logically relevant. The defendant seeks to establish that the prospect of immunity induced the Crown witness to lie in his statements to the Police. Those statements were made two months made before immunity was granted and the witness and police officers have given evidence that there were no discussions about immunity before the statements were given. I considered a suspicion that privileged information contains information relevant to the prospect of immunity inducing the witness to lie was too tenuous an evidential foundation on which to order inspection of documents. However, the Crown provided documents to me to inspect anyway.

[3] I do not consider disclosure of any of the information I have inspected is necessary for Mr Liev (or any other defendant) to present an effective defence. I am not satisfied there are any other considerations, that make it desirable in the public interest to disclose the information sought, that outweigh the interest in protecting
legal privilege by withholding it.

1 R v McClure 2001 SCC 14, [2001] 1 SCR 445.

Context

[4] Mr Liev is on trial for…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Liev v The Queen

Details

AGLC: Liev v The Queen [2017] NZHC 1352
Case: [2017] NZHC 1352
Decision Date: 22 June 2017

CaseChat Overview and Summary

In the High Court of New Zealand, Seng Lek Liev is currently on trial for manslaughter and kidnapping. He applies for an order for disclosure of privileged information relating to the immunity from prosecution granted to a key Crown witness. The court has discretions under s 30(2) of the Criminal Disclosure Act 2008 and s 67(2) of the Evidence Act 2006 to order disclosure of such information. The court considers that the thresholds for ordering disclosure of privileged information are similar under each Act and, usually, likely to yield the same result. If disclosure of privileged information is necessary to ensure a defendant is able to present an effective defence, under s 67(2), its disclosure is likely to be in the public interest under s 30(2). The court considers the Canadian Supreme Court’s approach in R v McClure to the disclosure of privileged information provides useful guidance as to how to approach the exercise of the discretions in the circumstances here. The court considers detailed evidential assessments, of primary materials which have already been disclosed, do not add anything to the material already produced and are not logically relevant. The defendant seeks to establish that the prospect of immunity induced the Crown witness to lie in his statements to the Police. Those statements were made two months made before immunity was granted and the witness and police officers have given evidence that there were no discussions about immunity before the statements were given. The court considers a suspicion that privileged information contains information relevant to the prospect of immunity inducing the witness to lie was too tenuous an evidential foundation on which to order inspection of documents. However, the Crown provided documents to the court to inspect anyway. The court does not consider disclosure of any of the information it has inspected is necessary for the defendant (or any other defendant) to present an effective defence. The court is not satisfied there are any other considerations, that make it desirable in the public interest to disclose the information sought, that outweigh the interest in protecting legal privilege by withholding it. The court declines the application.

Orders