Lincoln v Police

[2023] NZHC 3084

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2023-409-136

[2023] NZHC 3084

BETWEEN

RICHARD LINCOLN

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:

7 September and 11 October 2023

Counsel:

Appellant in person

R D Smith for the Respondent

Judgment:

1 November 2023

JUDGMENT OF HARLAND J

[1]    Mr Lincoln applies for leave to appeal a decision of the Christchurch District Court made on 4 July 2023 purportedly refusing to make an order of disclosure in relation to a charge of intimidation the Police have laid against him which is currently before that Court and which he denies. The ground of the appeal is that the District Court unreasonably and unlawfully refused to make an order of disclosure following an application made by Mr Lincoln for certain disclosure he submits he requires to properly prepare for trial. His application was filed on 9 January 2023. Mr Lincoln seeks an order directing the District Court to make the disclosure sought in his application. He also seeks indemnity costs against the Police.

[2]    The application for leave to appeal is opposed. Both Mr Lincoln and Mr Smith, counsel for the Police, agree that the end result both seek is for Mr Lincoln’s application for disclosure to be remitted to the District Court to be determined. This

LINCOLN v POLICE [2023] NZHC 3084 [1 November 2023]

includes further disclosure sought by Mr Lincoln in his updated memorandum of 27 September 2023.

[3]    I have decided not to grant Mr Lincoln leave to appeal for the reasons outlined below.

Background

[4]    Mr Lincoln faces one charge of intimidation laid under s 21(1)(e) of the Summary Offences Act 1981. The alleged offending occurred on 21 February 2022 when he was attending the hearing of a charge laid against him of assault with a weapon. This charge was subsequently dismissed. The complainant in the charge he now faces was the officer in charge in that case.

[5]    Mr Lincoln has entered a not guilty plea to the charge but a substantive hearing date in respect of it has not yet been allocated as the pre-trial procedures under the Criminal Disclosure Act 2008 (the Act) and the Criminal Procedure Act 2011 (CPA) are still in train.

[6]    On 4 July 2023, the matter came before Judge M J Callaghan for a case review hearing. Mr Power appeared as counsel for the Police. The Judge issued a minute. In it he recorded that:

(a)  Mr Lincoln had asked for the particulars relied on by the Police to support the allegation that his conduct was reasonably likely to frighten the complainant, but he noted that Mr Lincoln had not received any particulars;

(b)  as counsel then appearing for the Police had not had the opportunity to obtain instructions about the particulars sought, the Judge directed that the Crown serve and file the particulars it relied on by 21 July 2023;

(c)  a fixture with a nominal date of 29 August 2023 would be allocated; and

(d)  in the event Mr Lincoln did not receive the particulars, he could file a memorandum seeking that the matter be recalled prior to hearing, otherwise the charge would be set down for trial.

[7]    Mr Lincoln then applied for leave to appeal the Judge’s decision. It became apparent during the hearing before me on 7 September 2023 that a copy of the transcript of the case review hearing was required because the Judge’s minute did not record any issues to do with Mr Lincoln’s application for disclosure which he contended was discussed and raised with the Judge. I adjourned the appeal part-heard in order to obtain a copy of the transcript.

[8]    The transcript was obtained. It is very clear from the transcript that Mr Lincoln’s application for disclosure was raised with the Judge but was not dealt with by him in his minute. There are various references in the transcript to Mr Lincoln’s application for disclosure. To provide context to the discussion that follows, I set out below the last page of the transcript at which the following appears:

Mr Lincoln: Yes I have, Your Honour, and I have responded to that that the disclosure that was asked for and that they undertook to provide must be provided, and could I clarify, Your Honour, are you, because there is an application before the Court for an order of disclosure – are your effusing to make that order at this point at this juncture?

The Court:Well, I have been told by Mr Power that it has been complied  by the way of the letter. I have not seen that information. I cannot make any orders until I see the information.

Mr Lincoln:On the last memorandum that I filed in this court, Your Honour, which is current today, I asked the Court to make an order that the prosecution disclose the materials that were listed on the annexure to that memorandum.

The Court:So that is the notebook entries for Bradley, Adcock, McDonald, Howards, Bates, Luff and Earl?

Mr Lincoln:   Yes, all of those things.

The Court: “The source and author of the information that says that you are not well thought of by the police and -” –

Mr Lincoln:   No, the –

The Court: - any alerts”. So some of those matters may not necessarily be discoverable but that’s up for the Police to decide. So –

Mr Power: Yes Sir. I can say, Mr Smith is all, I think he’s all over this, he’s responded at length and he’s aware of the issues, so if there’s anything else outstanding I’m sure he will attend to it.

TheCourt:     Okay, well perhaps, Mr Power, you could tell him that a memo should be filed responding to the 28 May memo … is it 28 May

…?

MrPower:     It may well be Sir that he can address matters from the letter he wrote to Mr Lincoln on 25 May, which is three pages long.

The Court:     Right, okay.

Mr Lincoln: If I may Your  Honour, I will appear on the 29 August if that’s all the same to you. Because if I cannot obtain the order for disclosure, I will be applying to the High Court for one instead.

The Court: Okay, well, on 28-29 August, that is just a nominal date, and if you have any applications to make you need to file them independently after you have received the information that Mr Smith is going to do and the memo that he is going to file and serve on you, okay?

Discussion

[9]    Section 33 of the Act provides the jurisdiction to appeal directions made by the Court in relation to an application for disclosure under s 32 of the Act. It provides:

33   Appeals

(1)   The prosecutor or the defendant may appeal against a decision of a court under section 30 or 31.

(2)   The defendant or the prosecutor or a non-party may appeal against a decision of a court under section 29.

(3)   An appeal under this section—

(a)may be made to the Court of Appeal with the leave of that court, or to the Supreme Court with the leave of that court, if the order was made by—

(i)the High Court; or

(ii)the District Court in a proceeding for a category 3 offence after the defendant elected a jury trial:

(b)may, in any other case, be made to the High Court with the leave of that court.

…

(emphasis added)

[10]   It is common ground that s 33(1) applies in this case and that under subs (3)(b), Mr Lincoln first needs leave to appeal. As can be seen, the appeal must be against a decision of the Court. The key issue in this case is whether the District Court Judge made a decision on Mr Lincoln’s application for disclosure. If it did not, there would be no grounds for granting leave.

[11]   There are several cases which, although not directly on point, provide some guidance on how to approach the issue in this case.

[12]   In Smith v R,1 Mr Smith had applied to amend certain charges he faced. A District Court Judge declined to deal with his application. Mr Smith appealed to the High Court. Downs J held that there was no jurisdiction to appeal a “non-decision”. He determined that, as Mr Smith’s application had not been determined, it was still before the District Court and able to be determined by it. Downs J noted there was no prejudice to Mr Smith because of this. The appeal was dismissed, but the purported notice of appeal could also have been noted to be a nullity given the lack of jurisdiction to hear an appeal where no decision had been made.

[13]   Smith v R was noted and distinguished by the Court of Appeal in Lanivia v R.2 In Lanivia, the Court of Appeal used Smith to contrast it with the situation then before the Court.

[14]   In Lanivia, the defendant faced a re-trial. He applied to exclude evidence that had been allowed at the first trial. The Judge considered the evidence but decided there was no material change in circumstances which required him to reconsider the original decision admit the evidence. This was held to be an appealable decision as the Judge had reviewed the grounds of challenge in detail but did not accept them because he decided there was no change in circumstances. The Court held that this decision amounted to an order that the evidence sought to be excluded was in fact admissible. Therefore, the decision (an order) was amenable to appeal.

1      Smith v R HC Hamilton CRI-2019-419-3, 18 February 2019.

2      Lanivia v R [2019] NZCA 63.

[15]   The transcript reveals that Mr Power had been called in at short notice to appear as counsel for the Police at the case review hearing. Although, no doubt, there will have been good reasons for this, it meant that Mr Lincoln’s issues about further particulars and disclosure were not able to be properly addressed because Mr Power was not sufficiently familiar with the file.

[16]   The case review hearing, as it related to disclosure, did not substantially advance Mr Lincoln’s application for disclosure as it ought to have. Very early on in the discussion, Mr Lincoln referred to counsel for the Police not being in a position to address these issues as unacceptable and unreasonable, given that “this has been going on forever, and still no initial disclosure”. The Judge did not address this but began dictating his minute. In the minute, he directed that particulars be provided. He directed the Crown to file and serve them by 21 July 2023 which, at that stage, was two and a half weeks away. He then set the matter down for a two day Judge alone trial, with a nominal date to confirm the hearing. In this regard, the Judge was assisting Mr Lincoln, at least in part, because he had made a firm direction requiring particulars, he had ensured that the matter was on a path to a hearing and he had noted, if issues remained, Mr Lincoln could file a memorandum at the nominal hearing date addressing them further.

[17]   Mr Lincoln however wanted a direction to be made about the disclosure he had sought. In particular, he sought a direction (although not expressing it in quite this way) that he be provided with the material included in the schedule he had attached to his application for disclosure. He noted that this material was relevant to the issue of costs. He started to explain this, but the Judge intervened stating that costs were not something that would be of concern until the Judge alone trial had taken place. However, it appears from the transcript that Mr Lincoln had formed the view this was necessary because another Judge on an earlier occasion had indicated that the charge and Mr Lincoln’s costs application should be heard together. Mr Lincoln told the Judge that there would be a substantial amount of evidence to be heard in relation to costs that would not necessarily need to be heard in relation to the defended charge. This issue, namely whether the costs application was to be heard at the hearing of the charge, was not satisfactorily resolved at the case review hearing. It is relevant to Mr Lincoln’s outstanding application for disclosure.

[18]   With respect to the Judge, it appears that he and Mr Lincoln were talking at cross purposes, not assisted by the fact that counsel appearing for the Police was not sufficiently familiar with the file.

[19]   The discussion then turned to various memoranda filed by Mr Lincoln, with Mr Power making the observation that Mr Smith (counsel in charge of the prosecution) had responded to Mr Lincoln by letter addressing a number of matters. Mr Lincoln acknowledged that he had received and responded to the letter, but said the disclosure he had requested had still not been provided. It was at this point that Mr Lincoln asked the Judge whether he was refusing to make the order for disclosure.

[20]   After noting that Mr Power had said that the letter had complied with the application, the Judge made the observation that he could not make any orders until he had seen the material requested. Mr Lincoln referred the Judge to the memorandum he had filed, with the annexure outlining the materials he sought. The Judge appears then to have looked at the memorandum because he observed that notebook entries had been requested and he proceeded to discuss, albeit briefly, other matters that he observed may not necessary be discoverable. The matter was left on the basis that counsel for the Police should address these matters in the memorandum directed to be filed by 28 May 2023.

[21]   I have included a summary of the narrative of what occurred in detail because I conclude from it that the Judge did not make a decision about disclosure, rather, he directed counsel for the Police to address it in the memorandum he directed was to be filed by 28 May 2023. The Judge also left open the prospect for disclosure issues to be raised again on the date he had allocated in August should Mr Lincoln’s queries not be answered by the memorandum he had directed.

[22]   As there is not yet a decision on the application in the sense of either granting or refusing it, leave to appeal cannot be granted because there is no decision from which to appeal.

Conclusion

[23]   The application for leave is dismissed, but I can understand Mr Lincoln’s sense of frustration given the date of the alleged offending, the date of his application for disclosure and the fact that his application was not advanced at the case review hearing.

[24]   When this matter was called before me on 11 October 2023, Mr Smith accepted that disclosure issues had properly been raised by Mr Lincoln on 4 July 2023 and that his outstanding disclosure issues require resolution. Mr Smith also accepted that Mr Lincoln has now raised further disclosure issues which are reasonable and need to be addressed. These are the matters raised by Mr Lincoln in his memorandum of 7 September 2023. Without conceding the point, Mr Smith accepts that the matters raised by Mr Lincoln are relevant to the defence case and his contention (not accepted) that the Police acted towards him with malice.

[25]   Mr Lincoln agreed with Mr Smith’s suggestion that he set out in a single document his disclosure requests so that Mr Smith can ensure that it is properly responded to. If there are still matters outstanding after this, it is accepted that a disclosure hearing will be needed. There is no issue that, if a decision is made which Mr Lincoln does not agree with, he would then have the right to apply for leave to appeal.

[26]   I was advised that a hearing has been allocated in the District Court in February 2024 to deal with Mr Lincoln’s application under s 147 of the CPA. Any issues to do with Mr Lincoln’s disclosure application may well be able to be heard at that time.

Result

[27]   The application for leave is dismissed. The matter is remitted back to the District Court for Mr Lincoln’s application for disclosure to be advanced.

Harland J

Counsel:

RPB Law, Dunedin

Copy to:

R Lincoln, Appellant.