Mills v The Queen - [2020] NZSC 76

IN THE SUPREME COURT OF NEW ZEALAND

I TE KŌTI MANA NUI

SC 22/2020
[2020] NZSC 76

BETWEEN	GARY DONALD MILLS Applicant
AND	THE QUEEN Respondent

Court:	Glazebrook, Ellen France and Williams JJ
Counsel:	A M S Williams and S M H McManus for Applicant B F Fenton for Respondent
Judgment:	31 July 2020

JUDGMENT OF THE COURT

The applications for third-party disclosure are dismissed.

____________________________________________________________________

REASONS

Mr Mills has applied for leave to appeal to this Court against the Court of Appeal’s decision dismissing his appeal against convictions entered in 2009 for arson and the murder of his partner, Ms Delzoppo. He is yet to provide particulars of the proposed grounds of appeal. Instead he seeks orders under s 389(a) of the Crimes Act 1961 for the disclosure of documents in relation to the deceased which are currently held by two non‑parties. They are:
(a)Ms Delzoppo’s medical records, held by Ranolf Street Medical; and
(b)police photographs of Ms Delzoppo and her autopsy records, held by the Coronial Services Unit of the Ministry of Justice.
He intends to use the documents to support his application for leave.

Background

On the night of 1 May 2008, there was a fire at Mr Mills and Ms Delzoppo’s house. During the fire, a neighbour found Ms Delzoppo lying on the ground outside the house, her lower body badly burned. When asked what had happened, Ms Delzoppo said repeatedly that Mr Mills had poured petrol on her and the house, and set her and the house alight. She also told the neighbour that Mr Mills had run away. Ms Delzoppo died in hospital four weeks later without having spoken again.
The forensic evidence showed that petrol had been poured on Ms Delzoppo while she was on her bed. It also showed that petrol had been poured on the floor in the bedroom and other areas of the house. Someone had then ignited the petrol.
Mr Mills did not give evidence at trial, but in a statement to police the day after the fire, he said that he was sleeping when the fire started and that when he awoke, he put out the fire on Ms Delzoppo, took her outside, and went to the bar to get assistance. He initially suggested that Ms Delzoppo may have accidentally started the fire with a cigarette or candle. But when the neighbour’s account of what Ms Delzoppo said was put to him, he suggested her death was attributable to suicide by self‑immolation. He also added that there had been difficulties between him and Ms Delzoppo, and that she had previously stabbed herself in the leg and claimed it was him.

Court of Appeal

In the Court of Appeal, Mr Mills argued that the neighbour’s evidence of Ms Delzoppo’s statements, which were hearsay, should not have been admitted.[1] The Court dismissed the appeal on the ground that the circumstances around Ms Delzoppo’s statements provided a reasonable assurance of their reliability under s 18 of the Evidence Act 2006.[2] The…

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 Mills v The Queen

Details

AGLC: Mills v The Queen [2020] NZSC 76
Case: [2020] NZSC 76
Decision Date: 31 July 2020

CaseChat Overview and Summary

The Supreme Court of New Zealand, in a case involving Gary Donald Mills, heard an application for leave to appeal against convictions for arson and murder. The applicant, Mr. Mills, sought disclosure of documents under section 389(a) of the Crimes Act 1961, relating to the deceased, which were held by two non-parties. These documents included Ms. Delzoppo’s medical records from Ranolf Street Medical and police photographs and autopsy records from the Coronial Services Unit of the Ministry of Justice. Mr. Mills aimed to use these documents to support his application for leave to appeal.

The legal issues the court needed to decide were whether the disclosure of these documents was necessary for the determination of the case and whether such disclosure was in the interests of justice. The court considered the importance of finality in litigation, the necessity for only truly necessary inquiries to be undertaken, the need to protect confidentiality and prevent harassment, and the need for efficient dispatch of the Court’s business.

The court found that the medical documents sought were not fresh and could have been produced at trial. There was no realistic evidentiary foundation that the disclosure of more of Ms Delzoppo’s medical records was necessary in the interests of justice. Similarly, the police photographs and autopsy reports were not necessary in the interests of justice, as the Crown case was not dependent on Ms Delzoppo’s position on the bed at the time of the fire. Therefore, the applications for third-party disclosure were dismissed.

The Supreme Court concluded that the applications for third-party disclosure were dismissed, and no further directions were needed at that stage.

Orders