Liev v The Queen
[2017] NZHC 1352
•22 June 2017
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 LievJudgment:
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 the kidnapping and manslaughter of Ms Jindarat Prutsiriporn on 29 February and 1 March 2016. There were 10 other defendants. Two defendants, including Mr Korhomklang, are also on trial for kidnapping and manslaughter. One defendant is on trial for kidnapping only. Two defendants, including Mr Vaifale, are on trial for manslaughter only, having pleaded guilty to kidnapping. One defendant has pleaded guilty to manslaughter and kidnapping and awaits sentencing. Four defendants have pleaded guilty to kidnapping and have been sentenced.
[5] Mr Sovanarith Ing is a key Crown witness. On 4 March 2016 he approached the Police after publicity about the kidnapping and gave a statement. He returned for extensive further questioning on 10 and 11 March 2016. He was granted immunity from prosecution on 19 May 2016. Mr Liev’s interest in undermining Mr Ing’s evidence does not conflict with the interests of other defendants.
[6] The trial began on 1 May 2017. Mr Ing gave evidence from 11 to 16 May
2017. On 15 June 2017 Mr Liev applied for a court order for disclosure of Crown information relating to the grant of immunity from prosecution to Mr Ing. I received written submissions from Mr Liev and from the Crown. On Monday 19 June 2017 I heard oral argument. Counsel for two defendants, Mr Korhomklang and Mr Vaifale, attended the hearing but did not present submissions. Counsel for the other defendants were excused. All counsel attending indicated their clients did not wish to attend the hearing. The trial is in its eighth week. The Crown expects to close its case this week.
The law relating to disclosure of privileged information
[7] The New Zealand legal system has traditionally accorded the protection of legal privilege a high value, as fundamental to the administration of justice.2 I do not need to set out lengthy quotations of the many judicial authorities that reinforce that.3
But, accordingly, the High Court historically rejected applications for disclosure of
2 B v Auckland District Law Society [2004] 1 NZLR 326 (PC) at 330, 344–348 (citing R v Derby
Magistrates' Court Ex p B [1996] AC 487).
3 The matter is well treated in R v King [2007] 2 NZLR 137 (HC).
privileged information in decisions such as R v King in 2005 when legal privilege was more absolutely protected from disclosure.4
[8] In R v King Asher J authoritatively set out the nature of the decision to grant immunity as deriving from the prerogative power exercised by the Solicitor-General to stay prosecutions and why the documents created as part of that process would not have been created but for litigation.5 Asher J also considered that the material prepared in the process of considering immunity will “largely, if not entirely, fall under the category of ‘work produced’ or ‘evaluated material’ rather than primary material”.6
He cited the Court of Appeal’s decision in R v Taylor, which noted that documents generated as part of an evaluation process do not add anything to the material already produced to the defence and are thus not logically relevant.7
[9] But, in 2005, Asher J also stated “[t]here is no weighing process to be carried out between the public interest and legal professional privilege”.8 Now there is, under s 67(2) of the Evidence Act and s 30(1)(b) of the Criminal Disclosure Act.
Disclosure under s 67(2) of the Evidence Act 2006
[10] Section 6 states the purpose of the Evidence Act 2006 is:
to help secure the just determination of proceedings by—
(a) providing for facts to be established by the application of logical rules;
and
(b) providing rules of evidence that recognise the importance of the rights affirmed by the New Zealand Bill of Rights Act 1990; and
(c) promoting fairness to parties and witnesses; and
(d) protecting rights of confidentiality and other important public interests;
and
(e) avoiding unjustifiable expense and delay; and
4 R v King, above n 3, and see Cornelius v Commissioner of Police [1998] 3 NZLR 373 (HC) at
381.
5 At [23]–[25]. This is consistent with the statement in the Solicitor-General’s Prosecution Guidelines (1 July 2013) at [12.5] that “the only purpose in giving immunity is to enable the prosecutor to use otherwise unavailable evidence”.
6 At [47].
7 At [48], citing R v Taylor CA 130/01, 17 December 2003 at [27].
8 At [32].
(f) enhancing access to the law of evidence.
[11] Sections 54 to 59, and 64, sets out the circumstances in which privilege may be claimed over information that could otherwise be admissible evidence. Section 67 empowers a Court to disallow claims of privilege. In particular, subs (2) provides:
A Judge may disallow a claim of privilege conferred by any of sections 54 to
59 and 64 in respect of a communication or information if the Judge is of the opinion that evidence of the communication or information is necessary to
enable the defendant in a criminal proceeding to present an effective defence.
[12] As Panckhurst J noted in R v PMS, s 67(2) “effects a fundamental change in the law”.9 In proposing the change, the Law Commission stated, of what became s
67(2), that it “follows a line of common law cases that acknowledge a judicial discretion to disallow a claim of privilege if the information is necessary to enable the defendant in criminal proceedings to present an effective defence”.10 The Commission agreed with Toohey J in dissent in the High Court of Australia “that legal professional privilege is not an end in itself but exists to promote the public interest by assisting the administration of justice”.11 In some circumstances the administration of justice may be promoted by disallowing a claim to privilege.
[13] There is a shortage of New Zealand case law on the application of s 67(2). Applications to disallow information subject to informer privilege have been declined in two cases for lack of sufficient information and because the information was not necessary to enable a defendant to present an effective defence.12 And applications to disallow information subject to litigation privilege in criminal proceedings have been disallowed because there was no basis to do so and for lack of an evidential foundation.13
[14] The learned authors of Adams on Criminal Law and of The Evidence Act 2006: Act & Analysis, state that s 67(2) embodies the common law’s “innocence at stake”
9 R v PMS, HC Christchurch, CR 2006-009-1151, 17 September 2007at [37].
10 Law Commission Evidence (NZLC R55, 1999) at [323].
11 At [324].
12 Respectively: R v Love HC Palmerston North CRI 2006-054-5597, 1 September 2008 at [21]; R v
Dashwood & Ors [2016] NZHC 1722 at [49].
13 Respectively: R v PMS, above n 9, at [52]; R v Sullivan & Ors (No 7) [2014] NZHC 925 (though the latter decision may have been founded on s 30(1)(b) of the CDA rather than s 67(2)).
exception to privilege.14 They also both suggest New Zealand courts may find guidance about the threshold of “necessary” in the Canadian Supreme Court’s two stage threshold in R v McClure for disclosing legally privileged information.15 I agree and I explore this further in applying the section in this case below.
Criminal Disclosure Act 2008
[15] According to s 3, the purpose of the Criminal Disclosure Act 2008 (the CDA) “is to promote fair, effective, and efficient disclosure of relevant information between the prosecution and the defence, and by non-parties, for the purposes of criminal proceedings.” The CDA creates a disclosure regime that requires disclosure of relevant information by the prosecutor and the defence, in certain circumstances, in a criminal trial.
[16] Section 13 imposes a duty of full disclosure of “any relevant information” on a prosecutor (who is broadly defined under s 6). Section 8 states “relevant” means “information … that tends to support or rebut, or has a material bearing on, the case against the defendant”. Williams J in Ministry of Business, Innovation and Employment v Centreport Ltd (Centreport) observed the threshold of “relevant” is low and held “any” is intended to mean “all”.16
[17] Relevantly, s 16 provides reasons for withholding information from disclosure:
16 Reasons for withholding information
(1) A prosecutor may withhold any information to which the defendant would otherwise be entitled under this Act if—
(a) disclosure of the information is likely to prejudice the maintenance of the law, including the prevention, investigation, and detection of offences; or
(b) disclosure of the information is likely to endanger the safety of any person; or
14 Bruce Robertson (ed) Adams on Criminal Law (online looseleaf ed, Brookers) at [EA 67.4]. See also Richard Mahoney and others The Evidence Act 2006: Act and Analysis (3rd ed, Brookers, Wellington, 2014) at [EV67.04(1)].
15 Adams at [EA67.4] and Mahoney and others at [EV67.04] (fn 2306), citing R v McClure, above n
1.
16 Ministry of Business, Innovation and Employment v Centreport Ltd [2014] NZHC 2751 (Centreport) at [34] and [35].
(c) the information is—
(i) material that is prepared by or for the prosecutor to assist the conduct of the hearing or trial; or
(ii) a communication dealing with matters relating to the conduct of the prosecution and is between—
(A) the prosecutor and another person employed by the same person or agency that employs the prosecutor; or
(B) the prosecutor and any adviser to the prosecutor; or
(iii) analytical or evaluative material prepared, in connection with an investigation that led to the defendant being charged, by a person employed by a person or agency for another person employed by that person or agency or for the prosecutor; or
…
(j) the information could be withheld under any privilege applicable under the rules of evidence; or
(k) disclosure of the information would be contrary to the provisions of any other enactment; or
…
(m) the information has previously been made available to the defendant; or
(n) the information does not exist or cannot be found;
…
(emphasis added)
[18] Williams J in Centreport held:
(a) Section 16(1)(c)(i) “on its plain terms, maintains the traditional separation between the prosecution and defence at trial” and “does not go so far as to require the prosecutor to admit the defence into the prosecution’s trial preparation room”.17
(b)The “conduct of the hearing or trial” in s 16(1)(c)(i) “relates to the manner in which the process is to be managed or directed by the
17 At [38].
prosecutor” but “does not, in its ordinary meaning, cover the process by which substantive evidence is generated”.18
(c) The “conduct of the prosecution” in s 16(1)(c)(ii) is not about the content of evidence.19
(d)Though it was not the subject of dispute there, s 16(1)(c)(iii) relates to evaluative material prepared at the pre-charge stage of the case and does not include the material facts.20
(e) Consistent with Heath J’s judgment in R v Sullivan (No 7), litigation privilege applies to criminal proceedings and can be a ground for withholding information under s 16(1)(j) (which is not ousted by s
16(1)(c)(i)).21 As Williams J noted, “the post-CDA authorities (albeit
in obiter) thus seem to apply s 16(1)(j) with full effect according considerable respect to litigation privilege in criminal trials”.22
[19] However, under ss 30(1)(b) and 30(2), the Court has a broad discretion to order disclosure of information even where a ground for withholding information does apply:
30 Court order for disclosure of information
(1) The defendant may apply to the court for an order that a particular item of information or type of information in the possession or control of the prosecutor be disclosed on the grounds that—
(a) the defendant is entitled to the information under section 12, 13, or 14, as the case may be, and—
(i) the prosecutor failed to disclose the information; or
(ii) the prosecutor refused under section 14, 16, 17, or 18 to disclose the information, and—
18 At [42].
19 At [46].
20 At [48] and [70].
21 At [62] (citing R v Sullivan (No 7), above n 13).
22 At [60].
(A) none of the reasons described in section 16, 17, or
18 for which information could be withheld applies to the information; or
(B) in the case of a refusal under section 17, the information ought to have been disclosed under section 17(3); or
(C) in the case of a refusal under section 18, the information ought to have been disclosed under section 18(2); or
(b) even though the information may be withheld under this Act, the interests protected by the withholding of that information are outweighed by other considerations that make it desirable, in the public interest, to disclose the information.
(2) If the court is satisfied, on an application made under this section, that the defendant is entitled to the disclosure of any particular item of information or type of information, or that any particular item of information or type of information should be disclosed to the defendant under subsection (1)(b), the court may order that the item or type of information be disclosed to the defendant.
(3) An order made under this section may be made subject to any conditions that the court considers appropriate.
(emphasis added)
[20] So, by virtue of ss 30(2) and 30(1)(b), the Court has a discretion to order disclosure if satisfied information should be disclosed because the public interest in disclosure outweighs the interests protected by withholding it.23
[21] This discretion applies to privileged information which may otherwise be withheld by the prosecutor under s 16(1)(j) above. Heath J in R v Sullivan (No 7) declined such an application for lack of an evidential foundation.24 Williams J, on appeal in Centreport, referred the s 30(1)(b) decision to the District Court trial judge for inspection and consideration.
Inspection of privileged information by a judge
[22] In civil litigation the Court has a broad discretion, under r 8.25(2) of the High
Court Rules 2016, to inspect documents for the purpose of deciding the validity of a
23 I refer to this discretion, by shorthand, as under s 30(1)(b).
24 R v Sullivan & Ors No 7, above n 13, at [38] and [40].
claim to privilege or confidentiality. The Court of Appeal has stated “[a] Judge will not automatically inspect but as a matter of judgment will no doubt satisfy himself or herself that the circumstances warrant exercising the power of inspection and that it is likely to be of assistance.”25 Indeed, Cooke J has stated that “in the field of legal professional privilege at least, I think that in general a Judge who is in any real doubt and is asked by one of the parties to inspect should not hesitate to do so.”26
[23] I cannot locate an equivalent explicit discretion in relation to criminal proceedings. The discretion to inspect a document provided in s 13 of the Evidence Act is only for the purpose of determining relevance (including authenticity and identity). Williams J in Centreport Ltd observed that, if the appeal there had any substance, it may be appropriate for the Court to inspect the documents in question to determine whether disclosure should be ordered.27 He considered such a process is contemplated by ss 30 or 31 of the CDA and noted the assistance of an amicus may be involved.28 He also considered the process was better undertaken by the trial judge and referred the matter back to the District Court for that purpose.29
[24] I agree the Court has a discretion to inspect documents for the purpose of deciding the validity of a claim to privilege or confidentiality in criminal proceedings, including in inquiries under ss 67(2) and 30(1)(b). If necessary, a court can exercise such a discretion under its inherent jurisdiction.30
The application and submissions
The information sought
[25] On 16 June 2017 Mr Ryan, for Mr Liev, particularised his disclosure request. In his submissions of 17 June 2017, Mr Kayes identified what information the Crown
holds that falls within the request.
25 Seamar Holdings Ltd v Kupe Group Ltd [1995] 2 NZLR 274 (CA) at 279.
26 Guardian Royal Exchange Assurance of New Zealand Ltd v Stuart [1985] 1 NZLR 596 at 599.
27 At [33].
28 At [33] and [66], footnote 22.
29 At [73].
30 R v Moke [1996] 1 NZLR 263 (CA) at 267.
[26] In respect of two of the particularised categories the Crown says all information has been disclosed:
(a) All notebook entries, jobsheets or records of all discussions entered into by New Zealand Police with Mr Ing with respect to his being granted immunity. These include all notebook entries by Detective Patten, Detective Sergeant Beal and Detective Senior Sergeant Vickers.
(b)Copies of all records of payments and other information which relate to payments being made by New Zealand Police to Mr Ing. This includes information about payments to Mr Ing while awaiting, and following, entry into the Witness Protection Programme which the Crown disclosed on 16 June 2017 in response to the particularised request.
[27] In respect of the four other particularised categories the Crown submits that information is validly withheld under s 16(1)(c) and (j) of the CDA. The four categories are:
(a) All records of all communications between officers of New Zealand Police as to the potential of Mr Ing being granted immunity and/or the granting of immunity of Mr Ing.
(b)Records of all communications made between the Police and the Office of the Manukau Crown Solicitor in relation to the potential for immunity to be granted to Mr Ing and in relation to the subsequent granting of immunity to Mr Ing.
(c) Records of all communications between the Office of the Manukau Crown Solicitor, the Crown Law Office and the Solicitor-General with respect to the decision to grant immunity to Mr Ing.
(d) All other relevant information that may be held by the New Zealand
Police, the Office of the Manukau Crown Solicitor, the Crown Law
Office and the Solicitor-General relating to the decision to grant immunity to Mr Ing.
[28] The Crown says the information withheld includes:
(a) Correspondence between the Office of the Manukau Crown Solicitor and the Police including:
(i) legal advice on the potential liability of Mr Ing;
(ii)legal advice on the appropriateness of immunity and the prospect of it being granted by the Solicitor-General;
(iii) detailed evidential assessments; and
(iv)requests for further information (and responses to those requests).
(b)Correspondence between the Office of the Manukau Crown Solicitor and Crown Law including:
(i)letter(s) requesting immunity (including evidential assessments); and
(ii)requests for further information (and responses to those requests)
(c) Correspondence between Crown Law and the Police.
[29] At the hearing Mr Ryan clarified that he seeks the information in categories (a)(i), (iii), and (iv) above: correspondence between the Office of the Manukau Crown Solicitor and Police regarding legal advice on the potential liability of Mr Ing; detailed evidential assessments; and requests for further information (and responses to those requests).
Mr Liev’s submissions
[30] Mr Ryan’s written submissions, on behalf of Mr Liev, focused on disclosure of this information under s 30(1)(b) of the CDA. He did not resile from those submissions in the oral hearing, but he pursued s 67(2) of the Evidence Act more vigorously. Whichever route is taken, Mr Ryan submitted:
(a) Mr Ing’s evidence was the basis for the charges against Mr Liev. But Mr Ing has received some $35,000 of financial supplements from the Crown. Mr Liev’s defence is that it was Mr Ing who was the principal offender and put the blame on Mr Liev. His instructions from Mr Liev are that Mr Ing is lying.
(b)There is an evidential basis in Mr Ing’s evidence at trial that the Police discussed immunity with Mr Ing just before his second interview on 10
March 2016. Under cross-examination by Mr Ryan, Mr Ing agreed that the Police talked to him “about immunity from prosecution even before [he] went on video for that interview on the 10th of March” but he couldn’t remember what they said.31 Mr Ing also said under cross- examination that “everything I’m talking they write down”.32
(c) The information sought to be disclosed, it is said, will reveal additional inconsistencies as to what Mr Ing’s evidence was (and, presumably, impugn his reliability and/or credibility). Disclosure of the information will allow Mr Liev to pursue an effective defence.
(d)The public has a strong interest in seeing that individuals who have committed offences are punished for their offending and in transparency about criminal offending being excused.
[31] In relation to the threshold for ordering disclosure Mr Ryan accepted he cannot go on a complete fishing expedition. He submitted there must be an evidential
foundation to support disclosure and he suggested the threshold might be comparable
31 Notes of Evidence vol 1 at 496, lines 27 and 32.
32 Notes of Evidence vol 1 at 500, line 3.
to the approach to the general test of relevance under s 7 of the Evidence Act. Mr Ryan also agreed that judicial inspection of the information would be an appropriate first step towards disclosure.
The Crown’s submissions
[32] Mr Kayes noted the payments to Mr Ing included repayment of expenses associated with his placement in the Police Witness Protection Programme such as relocation and being without work. He emphasised that evidence regarding Mr Ing’s placement in that programme (as opposed to his being granted immunity) is not before the jury. Defence counsel had not cross-examined the relevant witnesses on that point, presumably because disclosure of the fact Mr Ing required police protection would necessarily entail some prejudice to the defendants. Mr Kayes also expressed frustration that Mr Liev has had several weeks to make the application and it comes towards the end of the Crown’s case.
[33] Mr Kayes also emphasised that, unlike most witnesses granted immunity, Mr Ing came forward and made two statements, including a very lengthy and detailed one over two days, more than two months before immunity was granted. There was nothing in the police officers’ notes about immunity and the evidence of Detective Patten and Detective Senior Sergeant Vickers was that there was no discussion of immunity with Mr Ing at the time these statements were given.33 Mr Kayes suggested that Mr Ing’s statement to the contrary, under cross-examination by Mr Ryan, was at a time in his evidence that he could well have been seen as confused.
[34] Mr Kayes submitted, relying on R v King, the Crown’s assessment of primary material is not relevant or disclosable. Mr Kayes submitted legal privilege is long enshrined in New Zealand’s legal system and the use of the word “necessary” indicates there is a high threshold for disallowing a claim of privilege under s 67(2). He submitted the public interest in knowing when criminal offending is excused is satisfied by public knowledge of a grant of immunity. He submitted the withheld
correspondence has no relevance to Mr Liev’s potential defences or fair trial rights
33 Detective Patten, Notes of Evidence vol 1 at 859 and 862; Detective Senior Sergeant Vickers, Notes of Evidence vol 1 at 915, lines 30 and 32.
more generally. He advised that the information withheld does not support a submission that Mr Ing was induced to provide his evidence.
[35] Mr Kayes submitted the description of the information withheld is sufficient for me to assess the grounds for withholding it, without examining it further. But, if I were to conclude disclosure may be warranted, Mr Kayes agreed an appropriate middle step would be for me to examine the material.
What are the legal thresholds for disclosure?
[36] In R v McClure Canadian Supreme Court set out a two stage threshold for disclosing legally privileged information under the “innocence at stake” exception in Canada, stating:34
In recognition of the central place of solicitor-client privilege within the administration of justice, the innocence at stake test should be stringent. The privilege should be infringed only where core issues going to the guilt of the accused are involved and there is a genuine risk of a wrongful conviction.
Before the test is even considered, the accused must establish that the information he is seeking in the solicitor-client file is not available from any other source and he is otherwise unable to raise a reasonable doubt as to his guilt in any other way.
…
The innocence at stake test is applied in two stages in order to reflect the dual nature of the judge’s inquiry. At the first stage, the accused seeking production of a solicitor-client communication must provide some evidentiary basis upon which to conclude that there exists a communication that could raise a reasonable doubt as to his guilt. At this stage, the judge has to decide whether she will review the evidence.
If the trial judge is satisfied that such an evidentiary basis exists, then she should proceed to stage two. At that stage, the trial judge must examine the solicitor-client file to determine whether, in fact, there is a communication that is likely to raise a reasonable doubt as to the guilt of the accused. It is evident that the test in the first stage (could raise a reasonable doubt) is different than that of the second stage (likely to raise a reasonable doubt). If the second stage of the test is met, then the trial judge should order the production but only of that portion of the solicitor-client file that is necessary to raise the defence claimed.
34 R v McClure, above n 1, at 463-465. It is still being applied in Canada, for example in R v Osborne
2016 ONSC 3874.
[37] Of the first stage the Court stated:35
The first stage of the innocence at stake test invading the solicitor-client privilege requires production of the material to the trial judge for review. There has to be some evidentiary basis for the request. This is a threshold requirement designed to prevent “fishing expeditions”. Without it, it would be too easy for the accused to examination of solicitor-client privileged communications by the trial judge. As this request constitutes a significant invasion of solicitor-client privilege it should not be entered into lightly. On the other hand, the bar cannot be set so high that it can never be met. The trial judge must ask: “Is t her e some e vi dent i ar y basi s f or t he clai m t hat a sol icit or - client communication exists that could raise a reasonable doubt about the guilt
of t he a ccused? ”
It falls to the accused to demonstrate some evidentiary basis for his claim that there exists a solicitor-client communication relevant to the defence he raises. Mere speculation as to what a file might contain is insufficient.
That is then followed by a requirement that the communication sought by the accused could raise a reasonable doubt as to his guilt. This must be considered in light of what the accused knows. It is likely that the accused who, it must be remembered, has had no access to the file sought, may only provide a description of a possible communication. It would be difficult to produce and unfair to demand anything more precise …
The evidence sought should be considered in conjunction with other available evidence in order to determine its importance. It is the totality of the evidence that governs. However, when the accused is either challenging credibility or raising collateral matters, it will be difficult to meet the standard required of stage one.
Where an accused fails to show that the information sought could raise a reasonable doubt as to guilt, the solicitor-client privilege prevails.
[38] Of the second stage the Court stated:36
Once the first stage of the innocence at stake test for setting aside the solicitor- client privilege has been met, the trial judge must examine that record, to determine whether, in fact, there exists a communication that is likely to raise a reasonable doubt as to the accused’s guilt. The trial judge must ask herself the following question: “Is there something in the solicitor-client
communi ca t ion t hat is li kely t o r ai se a r eas onabl e doubt about t he ac cuse d’ s
guilt?”
After a review of the evidence of the solicitor-client communication in question, the judge must decide whether the communication is likely to raise a reasonable doubt as to the guilt of the accused. In most cases, this means that, unless the solicitor-client communication goes directly to one of the elements of the offence, it will not be sufficient to meet this requirement. Simply providing evidence that advances ancillary attacks on the Crown’s
35 At 465–466 (underlining in the original).
36 At 466–467 (underlining in the original).
case (e.g., by impugning the credibility a Crown witness, or by providing evidence that suggests that some Crown evidence was obtained unconstitutionally) will very seldom be sufficient to meet this requirement.
The trial judge does not have to conclude that the information definitely will raise a reasonable doubt. If this were the case, the trial would effectively be over as soon as the trial judge ordered the solicitor-client file to be produced. There would be nothing left to decide. Instead, the information must likely raise a reasonable doubt as to the accused’s guilt. Also, upon reviewing the evidence, if the trial judge finds material that will likely raise a reasonable doubt, stage two of test is satisfied and the information should be produced to the defence even if this information was not argued as a basis for production by the defence at stage one.
In determining whether or not the solicitor-client communication in question is likely to raise a reasonable doubt as to the guilt of the accused, the trial judge should consider that the communication in the solicitor-client file cannot be marginal but must be sufficient to establish the basis for its admission. It is the totality of the evidence then available that the trial judge considers in determining whether it is likely that the evidence can raise a reasonable doubt.
[39] I consider this approach is a useful guide to the process and considerations relevant to decisions on disclosure of privileged information under s 67(2) of the Evidence Act and s 30(1)(b) of the CDA in circumstances such as these. However, rather than the Canadian Supreme Court’s focus on the risk of wrongful conviction, I consider it is better in New Zealand to focus on the potentially less strict, but statutorily mandated, consideration of what is necessary to enable a defendant to present an effective defence.
[40] The still relatively strict test in s 67(2), that disclosure is “necessary to enable a defendant in a criminal proceeding to present an effective defence”, reflects the traditionally high value put on the legal privilege. That is consistent with the McClure approach. It also resonates strongly with the use of “necessary” in relation to the grounds for withholding information under s 9(2) of the Official Information Act 1982 (OIA) (which cuts the other way). Of that, Collins J in Kelsey & Ors v Minister of Trade stated: “when the adjective ‘necessary’ in s 9(2) is given its natural and ordinary meaning, a decision-maker would have to be satisfied withholding the information
requested is ‘essential’37 to protect or avoid the consequences enumerated in s 9(2)(a)– (k) of the Act”.38
[41] The balancing required by the CDA between the s 16 grounds for withholding information and the public interest in disclosure under s 30(1)(b) is also very similar in structure and text to that in the OIA. Perhaps that can be expected, since the Court of Appeal found the OIA bore on criminal disclosure obligations before the CDA.39
Adams suggests s 30(1)(b) is “essentially the same balancing exercise as that previously applicable under s 9 of the Official Information Act 1982, although under s 9 it was a matter for the prosecutor, not the court”.40 William Young J in the Supreme Court, in Dotcom v United States of America, characterises the regime as “broadly similar to that under the Official Information Act” and s 30(1)(b) as a “dispensing power” in respect of the exclusions to disclosure in ss 16 to 18.41
[42] Section 9(2) of the OIA specifies grounds for withholding information that are subject to an overriding exception, in s 9(1), where “in the circumstances of the particular case, the withholding of that information is outweighed by other considerations which render it desirable, in the public interest, to make that information available”. Section 30(1)(b) of the CDA replicates much of the language of s 9(1) of the OIA. Some of the grounds for withholding information are also the same as those under the OIA, as was the intention expressed by the Law and Order Select Committee that considered the Bill.42 Withholding legally privileged information is possible, unless it is outweighed by the public interest in disclosure, under both regimes, in s 16(1)(j) of the CDA and s 9(2)(h) of the OIA.
[43] In Kelsey v Minister of Trade Collins J held that, if a decision-maker is in two minds when undertaking the test required by s 9(1) of the OIA, then information
37 Della Thompson (ed) The Concise Oxford Dictionary, (9th ed, Clarendon Press, Oxford, 1995) (footnote in the original).
38 Kelsey & Ors v Minister of Trade [2015] NZHC 2497, [2016] 2 NZLR 218 at [141].
39 Commissioner of Police v Ombudsman [1988] 1 NZLR 385 (CA).
40 Bruce Robertson (ed) Adams on Criminal Law (online looseleaf ed, Brookers) at CD30.02.
41 Dotcom v United States of America [2014] NZSC 24, [2014] 1 NZLR 355 at [216].
42 Criminal Procedure Bill 2004 (158-3B) (select committee report) at 17: “The reasons for refusing disclosure in clause 31 [later s 16] are essentially those found under the Official Information Act
1982”.
should be released unless there is good reason for withholding it.43 I consider the same conclusion applies to s 30(1)(b), with the caveat that a court is able to examine information to test its view, before confirming its decision, which Collins J was not able to do in the circumstances of that case. Collins J also emphasised that the OIA applies to “information” rather than documents.44 So does the CDA. The result is that it is the nature of the information in a document that must be assessed for disclosure rather than the overall nature of the document.
[44] The New Zealand Bill of Rights Act 1990 is also relevant to the application of ss 67(2) and 30(1)(b). Section 6 of the Bill of Rights requires preference be accorded
to an interpretation consistent with that Act which requires a statutory discretion be exercised consistently with the Bill of Rights.45 Accordingly, the discretions under ss
67(2) and 30(1)(b) must be exercised consistently with the rights and freedoms guaranteed by the Bill of Rights, balanced with whatever s 5 limits are required to be considered, such as the interests of justice protected by legal privilege. So the minimum standards of criminal procedure, and in particular the right to a fair hearing under s 25(a) will bite on these discretions.46
[45] Section 67(2) is framed specifically to govern the disclosure of information subject to various forms of privilege, under ss 54 to 59 and 64 of the Evidence Act, and allows disclosure only for the specific purpose of a defendant presenting an effective defence in a criminal proceeding. Section 30(1)(b) is framed more generally to govern disclosure of all information which may be withheld under the CDA and allows disclosure for the more general reason that it is desirable in the public interest. In relation to privileged information in the context of a criminal proceeding, however, I consider the thresholds for disclosure under the two sections are similar and likely to yield the same result.
[46] 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
43 At [139].
44 At [102]–[104].
45 Drew v Attorney-General [2002] 1 NZLR 58 (CA). See Andrew Butler and Petra Butler The New
Zealand Bill of Rights Act: A Commentary (2nd ed, Wellington, LexisNexis, 2015) at [7.13].
46 See Andrew Butler and Petra Butler, above n 45, at [22.6.37].
public interest under s 30(2). Focusing on this, I consider the Canadian Supreme Court’s approach in McClure provides useful guidance as to the approach and considerations relevant to applying both sections to disclosure of privileged information here.
Should the information sought be disclosed?
[47] Mr Liev requests disclosure of correspondence between the Office of the
Manukau Crown Solicitor and the Police regarding:
(a) legal advice on the potential liability of Mr Ing;
(b) detailed evidential assessments; and
(c) requests for further information (and responses to those requests).
1 Should the information be inspected?
[48] Consistent with applying the first stage of McClure in a New Zealand context, I first examine whether Mr Liev has provided some evidentiary basis for his request: is there some evidentiary basis for the claim that there is information amongst that sought that is necessary for him to present an effective defence?
[49] I agree with the Crown that detailed evidential assessments, of evidence which has already been disclosed (and associated requests and responses) do not provide such a basis. It is the underlying primary materials which are relevant, not the opinions, evaluations or assessments of that material by lawyers. 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, following the Court of Appeal in R v Taylor.47
[50] I understand the Crown has disclosed all relevant information relating to the primary material contained in the information sought. On 20 June 2017, I advised all
counsel of that understanding and of my expectation that, if not, the Crown would
47 R v Taylor, above n 7.
inform me of that before closing its case. In a memorandum of 21 June 2017, the
Crown confirmed my understanding.
[51] By 20 June 2017 I had also formed the view that legal advice on the potential liability of Mr Ing (and associated requests and responses) should not be disclosed either. That was (and is) because I considered (and still consider) that the evidential basis for Mr Ing having discussed immunity with the Police before giving his statements was tenuous at best, for the following reasons.
[52] Mr Ryan’s best point was that Mr Ing had agreed with Mr Ryan’s suggestion in cross-examination that police officers talked to him “about immunity from prosecution even before [he] went on video for that interview on the 10th of March”.48
But, having observed Mr Ing giving evidence closely and with the benefit of hindsight, I am not convinced Mr Ing understood Mr Ryan’s question.
[53] A Khmer interpreter was available for Mr Ing if he considered he needed interpretation but he did not use the interpreter on that occasion. Mr Ryan’s questions about this interaction concerning immunity were based on a belief Mr Ing had talked to police officers for two hours before the formal interview. Subsequent evidence from the police officers suggested the period was more like 10 or 15 minutes. In response to many of Mr Ryan’s questions about his discussions with police officers on 10 March
2016,49 Mr Ing stressed he could not remember what was said or exactly what
happened.50 At one point it became evident Mr Ing was thinking of his interview on
4 March 2016.51 And on several occasions, either Mr Ing refused to confirm he had discussed immunity with police officers on 10 March52 or his answers appear to be inconsistent with him having discussed immunity with the police.53
[54] In his subsequent cross-examination by Mr Leabourn about the same matter,54
Mr Ing was more inclined to ask for interpretation into Khmer to check that he
48 Notes of Evidence vol 1 at 496, lines 27 and 32.
49 Notes of Evidence vol 1 at 491 line 16 to 501, line 14.
50 Notes of Evidence vol 1 at 494 lines 18–19 and 26, 495 lines 10–14 and 28, 496 lines 15, 19, 32,
497 line 12, 24, 498 lines 1–3, 20-21, 499 lines 31–32, 500 lines 10.
51 Notes of Evidence vol 1 at 491, lines 18–29.
52 Notes of Evidence vol 1 at 496 line 32, 497 line 8, 499 lines 23–25, 501 line 6.
53 Notes of Evidence vol 1 at 497 lines 1–3, 499 lines 13–14, 19–20
54 Notes of Evidence vol 1 at 576, line 23 to 582 line 14.
understood the questions. When he did this, his answers to Mr Leabourn’s repeated questions on the same subject were to deny, quite vehemently, that he had discussed immunity with the police officers before giving them detail about the offending.55
[55] I consider Mr Ing’s responses to Mr Leabourn, and his negative responses to Mr Ryan, are likely more accurately to represent Mr Ing’s position than his single positive response to Mr Ryan. Furthermore, both of the relevant police officers gave clear evidence that they did not discuss immunity with Mr Ing before he gave his statements on 4 March and 10 to 11 March.56 There was no documentary information to suggest they did. Given that, by 20 June 2017, I considered it highly unlikely that communications between the Police and the Office of the Manukau Crown Solicitor would cast further light on this.
[56] Even if Mr Ing did discuss the prospect of immunity with the Police, it was not granted by the Deputy Solicitor-General until more than two months after he gave his statements. I considered it would be difficult to discern in all this a basis for an opinion, let alone satisfaction, that privileged information about immunity might contain anything that could assist Mr Liev to more effectively present his defence that Mr Ing is lying.
[57] The Canadian Supreme Court observed that “[m]ere speculation as to what a file might contain is insufficient” and “when the accused is either challenging credibility or raising collateral matters, it will be difficult to meet the standard required of stage one”.57
[58] I considered there was here too tenuous an evidential foundation on which to order inspection of privileged documents. Something more is required than a suspicion of relevance to the prospect of immunity inducing Mr Ing to lie when giving lengthy statements to police officers two months earlier. I was satisfied I did not need
to examine the privileged information to reach my decision on disclosure.
55 Notes of Evidence vol 1 at 577, lines 8 and 24–25, 578 at lines 17–21, 581 at line 15–16 and 21–
29.
56 Detective Patten, Notes of Evidence vol 1 at 859 and 862; Detective Senior Sergeant Vickers, Notes of Evidence vol 1 at 915, lines 30 and 32.
57 R v McClure, above n 1, at 465 and 466.
[59] If I had decided to order disclosure of the information that would have needed to be done before the Crown closed its case. At the beginning of 20 June 2017 it seemed possible the Crown would close its case that day, or, more likely the following day. So after the lunch adjournment on 20 June I advised counsel that the application was declined. I also advised them, and recorded in Bench Note 32 issued later that day, that the judgment was likely to express:
(a) my understanding that the Crown has disclosed all relevant information relating to primary material contained in the information sought; and the expectation the Crown will inform me if that is not so, before the Crown closes its case; and
(b)my understanding of the Crown position that there is no information in the categories requested that could be interpreted as relevant to the prospect of immunity being discussed between the police officers and Mr Ing before he gave either of his March 2016 statements; and the expectation that the Crown will advise me if that is not so, before it closes its case.
[60] As it happened, I had to adjourn the trial later in the afternoon of Tuesday 20
June 2017, until Thursday 22 June 2017, because a juror was sick. On Wednesday 21
June 2017, as noted, the Crown filed a memorandum confirming my understanding in [59](a) above. However, the Crown memorandum also indicated that it “considers that there is material that could fall within [[59](b)] above”. Accompanying the memorandum, the Crown provided me with a copy of the material to inspect, with the relevant sections marked, so I could consider whether any of the material should be disclosed. Effectively, this moved my consideration from the first to the second stage of the McClure approach.
2 Should the information be disclosed?
[61] I have inspected the material provided by the Crown at its own initiative. It does not change my conclusions above. I do not consider any of it indicates the prospect of immunity was discussed between the police officers and Mr Ing before he gave either of his March 2016 statements. It is not marginal. It doesn’t even provide
a basis upon which to impugn the credibility of Mr Ing, something the Canadian Supreme Court considered would be very seldom be sufficient to meet its threshold for disclosure.
[62] 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.
Result
[63] I decline the application.
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Palmer J
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