McMurtrie v Police
[2020] NZHC 2522
•25 September 2020
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 McMurtrie’s arrest, and the three officers escorted her to the patrol car where she was placed in the back seat. Ms McMurtrie continued to kick at police.
[10] As Constable Lowry placed her seatbelt on her, Ms McMurtrie spat, hitting Constable Calder’s arm. Constable Calder placed a spit hood on Ms McMurtrie. Constable Lowry sat in the backseat of the patrol car to read to Ms McMurtrie her rights. When asked if she had any questions about her rights, Ms McMurtrie yelled “fuck you guys”. She then dislodged the spit hood and spat at Constable Lowry, hitting her in the side of the face.
[11] When Constable Lowry tried to restrain Ms McMurtrie, she bit the Constable on the arm. Ms McMurtrie only released when Constable Lowry forcibly removed her mouth. She continued to struggle until she was placed in the cell in the custody suite.
[12] Ms McMurtrie raises self-defence, and maintains that the police used unnecessary and excessive force to arrest her while she was receiving medical treatment.
The application
[13] On 3 August 2020, counsel for Ms McMurtrie sought disclosure of “all prior NIA notations in relation to Ms McMurtrie (and record of who accessed these at the time of the alleged offending).”
[14] The application was made under s 30 of the Criminal Disclosure Act 2008 (the CDA), on the grounds that:
… [the] information is relevant under section 8 of the Act. The NIA record in itself has a bearing in this case as counsel has instructions noting previous dealings with police in the context of mental health incidents (and the alleged offending occurred in the context of a mental health callout).
[15]The police opposed the application by email.
The District Court decision
[16] The matter was not set for hearing, instead the Judge issued a brief decision through the Registry which read:
The police say there are no records of interactions between police and defendant concerning mental health issues. Without times and dates being supplied, I consider any relevance let alone probative value will involve resources of the police greater than issue warrants.
Jurisdiction on appeal
[17]Section 33 of the CDA applies. This states:
33 Appeals
(1)The prosecutor or the defendant may appeal against a decision of a court under section 30 or 31.
…
(3)An appeal under this section –
…
(b)may, in any other case, be made to the High Court with the leave of that court.
…
(4)Subpart 2 of Part 6 of the Criminal Procedure Act 2011 applies to an appeal under this section with any necessary modifications.
…
[18] The CDA does not specify the criteria upon which leave may be granted. In R v Leonard, the Court of Appeal specified a non-exhaustive criteria to be considered in the round, in determining whether leave to appeal before the trial should be granted or not.3
The appellant’s case
[19] Ms McMurtrie’s counsel submitted that the following factors favour granting leave to appeal in this case:
(a)there is conflicting authority covering the issue to be determined on the proposed appeal;
(b)the application relates to an identified error of law;
(c)the application involves the admissibility of evidence that is important to one of the parties;
(d)the matter cannot be adequately dealt with in any appeal after the trial; and
(e)the proposed grounds of appeal are arguable.
[20] Counsel for Ms McMurtrie submitted the information sought is relevant, and police failed to provide grounds for declining to provide the information. Counsel submitted the Judge erred by applying the wrong legal test under s 30 of the CDA
[21] Counsel for Ms McMurtrie sought: an order for the disclosure of all information held on the NIA regarding Ms McMurtrie’s previous interactions with police, an index of police officers who accessed her NIA profile on 16 May 2020, and any relevant complaints made against the officers; or, in the alternative, that the matter be referred back to the District Court for proper consideration of Ms McMurtrie’s application under s 30 of the CDA.
3 R v Leonard [2007] NZCA 452 at [13]-[14].
The respondent’s case
[22] Counsel for the respondent submitted that the following factors point towards refusing leave to appeal:
(a)the issue will need to be revisited at trial, or is best dealt with in the context of the trial;
(b)the application involves the admissibility of evidence that would not make a significant difference to the course of the trial, and is unlikely to lead to post-conviction appeal success;
(c)the issue is best dealt with in the context of any post-conviction appeal;
(d)the application challenges a factual finding, which rests on an assessment of credibility;
(e)the application challenges the exercise of a discretion, and leave should not be granted unless there are grounds articulated which point to the fact that the Judge has, in exercising his discretion, acted on some wrong principle, has given weight to extraneous or irrelevant matters, has failed to give sufficient weight to relevant considerations, or is plainly wrong;
(f)the appeal will cause unnecessary delay; and
(g)the proposed appeal is without merit.
[23] Counsel for the respondent submitted the information is not relevant, and the Judge’s decision was correct.
[24] In the event this Court does not refuse leave to appeal, counsel for the respondent submitted the appropriate response would be for the matter to be returned to the District Court and set down for hearing.
The law
Relevance
[25] The governing principle of disclosure under the CDA is relevance. In criminal proceedings, the prosecution is required to disclose all relevant information, unless there is good reason to withhold it.
[26]Relevance is defined in s 8 of the CDA:
… relevant, in relation to information or an exhibit, means information or an exhibit, as the case may be, that tends to support or rebut, or has a material bearing on, the case against the defendant.
[27] It is widely established that the threshold for relevance is low. In Polounina v Police, the Court approached the question of relevance by reference to whether the information sought by the defence would help the defence case or hinder the prosecution case.4
Additional disclosure
[28]Section 14 of the CDA states:
14 Request for additional disclosure
(1)At any time after the duty to make full disclosure has arisen under section 13, the defendant may request that the prosecutor disclose any particular information, identified by the defendant with as much particularity as possible.
(2)The prosecutor must disclose information requested by the defendant under subsection (1) unless—
(a)the information is not relevant; or
(b)the information may be withheld under section 15, 16, 17, or 18; or
(c)the request appears to be frivolous or vexatious.
(3)If a request under subsection (1) is declined by the prosecutor under subsection (2), the prosecutor must, as soon as is reasonably practicable after making the decision to decline the request, inform the defendant of that decision, together with—
(a)the reason for the decision; and
(b)if the defendant so requests, the grounds in support of that reason, unless the giving of those grounds would itself
4 Polounina v Police HC Auckland CRI-2011-404-91, 8 November 2011 at [32].
prejudice the interests protected by section 15, 16, 17, or 18 and (in the case of the interests protected by section 18) there is no overriding public interest.
(4)Nothing in this section limits the duty to disclose information under section 13.
[29]Section 30 of the CDA provides:
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—
...
(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.
[30] The requirement that the Court be “satisfied” the defence is entitled to disclosure under s 30(2) does not import any standard of proof.5 However, in reaching a decision, the Court will:6
… take into account the context in which ss 16 and 30 arise, including the purpose of the Act to promote fair, effective, and efficient disclosure of relevant information, as well as the right to receive information.
[31] Edwards v R involved an appeal against a District Court decision declining Mr Edward’s application for further disclosure.7 Similar to Ms McMurtrie’s situation, Mr Edwards was facing a charge of assaulting police and intended to defend this on
5 Hutton v R [2018] NZCA 419 at [34].
6 At [35].
7 Edwards v R [2012] NZCA 375 at [1].
the basis that he was acting in self-defence. Mr Edwards sought to have the details of previous Independent Police Conduct Authority (IPCA) complaints about the sergeant in question released, in order to present the possibility that the sergeant had a propensity to act with inappropriate violence towards suspects.8
[32] The Court of Appeal concluded that the prosecutor had not provided sufficient material to show the information sought was not relevant. Arnold J allowed the appeal on the disclosure issue, stating:9
In these circumstances, we consider that the prosecutor was required to do something more than is revealed in the record before us to identify the supporting grounds for the decision to refuse disclosure. This might involve, for example, the prosecutor giving the court a more detailed description of the information at issue; or filing an affidavit from the police explaining the nature of the information; or, in some instances, submitting the information to the court for its consideration. By whatever mechanism it is done, however, there is an obligation on the prosecution to give the grounds that support its reason for refusal.
Analysis
Is the information relevant?
[33] The information requested by Ms McMurtrie meets the threshold for relevance. As well as establishing her propensity to engage positively with police, it may also inform the subjective arm of the test for self-defence. The evidence requested may support Ms McMurtrie’s assertion that she had never had any difficulties with the police before, and the conduct on the night in question was a shock to her, informing her perception of the circumstances of that evening.
[34] Under s 14 of the CDA it is incumbent on police to provide reasons for withholding the information sought. This was not done in this case. The grounds for refusal, insofar as they were disclosed to the defence, were that nothing relating to Ms McMurtrie’s mental health was contained in the NIA notations.
[35] Accordingly, the police have not only failed in their obligation to provide grounds under s 14(3)(b), but have also failed to ensure that the Court has sufficient
8 At [9].
9 At [22] (footnotes omitted).
information before it to assess the supporting grounds, as is required by Edwards. It is not enough to simply state the information is not relevant, without identifying grounds.
The District Court decision
[36] In declining Ms McMurtrie’s application, the District Court held that the probative value will involve resources of the police greater than the issue warrants. This decision is wrong in law. The Judge applied an incorrect test, and considered factors that are not provided for in the CDA.
[37] At least on the face of it, the decision appears to be concerned with the Evidence Act 2006, and relevance and probative value according to ss 7 and 8 of that Act. Probative value, as referred to in the Judge’s decision, is not a threshold the defence have to meet under the CDA. Whether or not the information sought will eventually be admissible at trial under the Evidence Act 2006 is a separate enquiry.
[38] The decision is also wrong in fact. NIA notations are regularly accessed by police prosecutors in Court with no apparent difficulty. Simply printing those notations cannot be said to be so great a difficulty as to justify withholding those notations from Ms McMurtrie. Indeed, when I heard this matter, the police filed a bundle of documents which were not characterised, identified, or analysed for the Court’s convenience.
[39] As I understand it, an index of all officers who have accessed an individual’s NIA information is produced automatically. Ms McMurtrie seeks disclosure of this index for the night of 16 May 2020.
Procedural failing
[40] This matter should have been set down for a hearing, given the dispute between the parties.
[41] Section 30 of the CDA envisages a process by which parties can argue their respective cases before the Court, so that a decision can have the benefit of reasoned
argument. In this case, the police should have been required to provide their reasons and grounds in accordance with s 14 of the CDA.
[42] This has not occurred in the current case and the procedural flaws have manifested themselves in the overall decision. It does not appear that the District Court turned its mind to the low level of relevance required, the duty of the police to provide fulsome reasons for refusal, or the purpose of the CDA to promote fair, efficient and effective disclosure of relevant information.
Result
[43] I refer the matter 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.
Doogue J
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