McMurtrie v Police - [2020] NZHC 2522

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2020-409-000108

[2020] NZHC 2522

BETWEEN
NIKITA MARIE McMURTRIE

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 9 September 2020

Counsel:

M Brus for the Appellant

S Bicknell for the Respondent

Judgment:

25 September 2020

JUDGMENT OF DOOGUE J

This judgment was delivered by Justice Doogue on 25 September 2020.

Registrar/ Deputy Registrar Date:

Solicitors:
Public Defence Service, Christchurch Crown Solicitor, Christchurch

McMURTRIE v NEW ZEALAND POLICE [2020] NZHC 2522 [25 September 2020]

Introduction

[1] The appellant, Ms Nikita McMurtrie, faces one charge of assaulting police,1 and two charges of resisting police.2

[2] The charges stem from a police callout on 16 May 2020. Ms McMurtrie’s counsel made an application for an order for disclosure of any notations in the Police National Intelligence Application (NIA) in relation to Ms McMurtrie, and a record of who accessed them at the time of the alleged offending.

[3] On 7 August 2020, Judge Brandts-Giesen declined the application, and this appeal is against that decision.

[4] On the morning of the hearing I was provided with a wad of papers that counsel for the respondent asserted amount to complete discovery of all relevant information held in their possession on the issued considered relevant by the appellant. I was not taken though them in any detail by either party. Therefore, I do not know whether they represent complete disclosure of not.

Background

[5] The presumption of innocence applies to Ms McMurtrie, and at this stage the facts I now recite remain allegations.

[6] On 16 May 2020, an associate of Ms McMurtrie called 111 as she was concerned about Ms McMurtrie, who was intoxicated and behaving erratically. An ambulance was sent to the address to assess Ms McMurtrie, and police also attended.

[7] After the ambulance staff had checked her, police offered Ms McMurtrie a ride home several times. She repeatedly refused and become “irate” and “angrier and angrier”. Ms McMurtrie was warned of the possibility of arrest and again offered a

1 Summary Offences Act 1981, s 10; maximum penalty six months’ imprisonment or a $4,000 fine.
2 Section 23(a); maximum penalty three months’ imprisonment or a $2,000 fine.

ride home. Ms McMurtrie again refused and began to yell, scream, and verbally abuse police.

[8] At this stage, Constable Lowry advised Ms McMurtrie that she was under arrest for disorder, and told her to place her hands behind her back. She refused and tried to walk away. Constable Lamb assisted, but Ms McMurtrie continued to resist arrest. She was taken to the ground so that she could be restrained. On the ground, she moved her hand so that police could not handcuff her. She tried to kick the officers, and told them they were assaulting her.

[9] Constable Calder, who had been collecting Ms McMurtrie’s belongings from inside the house, heard screaming and came out to see Ms McMurtrie fighting with Constables Lowry and Lamb. He assisted in Ms…

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.

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Details

Case: [2020] NZHC 2522
Decision Date: 25 September 2020

CaseChat Overview and Summary

McMurtrie v Police is an appeal against a decision by Judge Brandts-Giesen of the District Court declining Ms McMurtrie's application for disclosure of information held by the police. Ms McMurtrie is facing one charge of assaulting police, and two charges of resisting police. The charges stem from a police callout on 16 May 2020. Ms McMurtrie's counsel made an application for an order for disclosure of any notations in the Police National Intelligence Application (NIA) in relation to Ms McMurtrie, and a record of who accessed them at the time of the alleged offending. The application was made under s 30 of the Criminal Disclosure Act 2008 (the CDA), on the grounds that the information is relevant under s 8 of the CDA. The police opposed the application, and Judge Brandts-Giesen declined the application, and this appeal is against that decision.

The central legal issue in the appeal is whether the District Court erred in declining the application for disclosure. The appeal hinges on the interpretation of s 30 of the CDA, and the relevance of the information sought. The Court held that the information requested by Ms McMurtrie meets the threshold for relevance, and that the police failed to provide sufficient grounds for their refusal. The Court also held that the District Court applied an incorrect test in declining the application, and considered factors that are not provided for in the CDA. The Court concluded that the decision was wrong in law and in fact, and referred the matter back to the District Court for proper consideration of Ms McMurtrie's application under s 30 of the CDA.

The Court ordered that the matter be referred back to the District Court for proper consideration of Ms McMurtrie's application under s 30 of the CDA in the event that the bundle of documents presented to the Court on the morning of this appeal does not constitute full disclosure and does satisfy the appellant accordingly. This outcome ensures that Ms McMurtrie has an opportunity to obtain the information she seeks, which may be relevant to her defence, and that the District Court considers the application in accordance with the correct legal principles.

Orders