Ministry of Business, Innovation and Employment v Centreport Limited
[2014] NZHC 2751
•6 November 2014
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
CRI-2014-485-000045 [2014] NZHC 2751
MINISTRY OF BUSINESS, INNOVATION AND EMPLOYMENT
v
CENTREPORT LIMITED
Hearing: 12 August 2014 Counsel:
D R La Hood and G La Hood for Apellant
K P McDonald QC and M Quigg for RespondentJudgment:
6 November 2014
JUDGMENT OF WILLIAMS J
Background
[1] This appeal relates to mid-trial disclosure orders made by Judge Hastings in the District Court in Wellington under s 30 of the Criminal Disclosure Act 2008. It raises squarely the ambit of the s 16 privilege exceptions to a prosecuting authority’s disclosure obligations under that Act. The respondent sought, and was granted, orders requiring disclosure of information the prosecution/appellant considers it is entitled to withhold under s 16. The prosecution now appeals.
[2] The background facts are these. The appellant is the Ministry of Business Innovation and Employment (MBIE). The respondent is Centreport Limited, the owner of the Port of Wellington. MBIE is prosecuting Centreport in relation to a workplace accident at the port in which one of Centreport’s employees was tragically
killed. MBIE alleges that Centreport failed to take all practical steps to ensure the
MINISTRY OF BUSINESS, INNOVATION AND EMPLOYMENT v CENTREPORT LIMITED [2014] NZHC
2751 [6 November 2014]
safety of employees while at work in accordance with the requirements of s 6 of the
Health and Safety in Employment Act 1992.
[3] During the course of trial, an issue arose in relation to the adequacy of MBIE’s disclosure under the Criminal Disclosure Act. Centreport wanted access to communications of and between prosecution witnesses, and communications between those witnesses and prosecuting counsel. Centreport argued that the information sought was relevant, disclosable and should have been disclosed prior to trial. MBIE countered that the information was subject to legal professional privilege. The matter was argued and the learned trial Judge issued an immediate ruling requiring disclosure of some, but not all of the information. MBIE then sought leave to appeal in the High Court, and (as evidence and submissions at trial had been completed) the learned trial Judge agreed to delay issuing his final judgment in the matter until after disposal of the appeal.
[4] The information in respect of which the order for disclosure was sought was described by the learned Judge as fitting four categories:
(a) any statement by Dr Callahan, a workplace safety specialist called as an expert witness for the prosecution;
(b)witness to witness statements including those between Mr Birse (both an MBIE health and safety inspector and the informant in this proceeding) and Dr Callahan;
(c) communications between Mr G La Hood (prosecuting counsel at trial)
and MBIE witnesses including Dr Callahan;
(d)communications with witnesses (including expert witnesses) the prosecution decided not to call.
[5] Understandably, the trial came to focus on whether the systems and procedures for workplace safety in place at the port represented the taking of “all reasonable steps” to ensure the safety of workers. According to counsel, the
evidence of workplace safety experts as to the appropriate standard in that regard thus became a dominant issue at trial. Centreport was particularly interested in information reflecting the process by which the evidence of Dr Callahan was developed in consultation with prosecuting counsel. This was to some extent reflected in the foregoing category descriptions. Information relating to the evidence of the informant Mr Birse was also important to Centreport because earlier in the trial, the learned Judge had ruled that, although he was the informant, Mr Birse nonetheless also qualified as an expert. He could therefore give opinion evidence on the dominant issue in the case.
[6] It seems that an issue arose in the trial as to Mr Birse’s objectivity in his role as an expert. It is unnecessary for me to go into just how it arose. It is sufficient for me to note that Centreport felt well justified in challenging Mr Birse in this way. It was in this context that Centreport developed its keen interest in how the evidence of the two experts, Dr Callahan and Mr Birse evolved, the content of communications between them, and between the experts and prosecuting counsel.
[7] On 24 June, Ronald Young J granted leave to appeal the learned District
Court Judge’s interlocutory rulings, so I need only address the substantive appeal.
A brief summary of the legislation
[8] Before turning to the ruling under appeal, it is useful to set out the relevant provisions of the Criminal Disclosure Act. The regime was enacted to promote fair trials. It strives to avoid trials where the defence is outgunned or ambushed by a prosecution that chooses for strategic reasons to keep its evidential cards close to its chest. So full disclosure is promoted unless there is a good reason for non- disclosure.
[9] The purpose of the Act is set out in s 3 as follows:
(1) The purpose of this Act 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.
[10] It will be seen that the Act signals at an early stage, the important threshold requirement of relevance. Section 8 sets out its meaning:
In this Act, 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.
[11] The basic scheme of the Act insofar as it relates to the present case is contained in ss 12 to 16 of the Act. Section 12 provides for initial disclosure and applies at the commencement of criminal proceedings or, “as soon as practicable” thereafter.1 Following the s 12 initial disclosure phase, there is a further “full disclosure” phase the obligations for which are contained in s 13 of the Act. At that point the prosecuting agency must disclose “any relevant information”, including but not limited to the “standard information” described in subsection (3). In addition, the prosecutor must list any information that is withheld including the reason for so withholding and (if requested) the grounds in support of such reasons.2 Subsections (5) and (6) make it clear that disclosure is an ongoing obligation and applies throughout the course of the relevant criminal proceedings.
[12] Relevant provisions of s 13 are as follows:
(1) The prosecutor must disclose to the defendant the information described in subsection (2) as soon as is reasonably practicable after a defendant has pleaded not guilty.
(2) The information referred to in subsection (1) is—
(a) any relevant information, including, without limitation, the information (standard information) described in subsection (3); and
(b) a list of any relevant information that the prosecutor refuses under section 15, 16, 17, or 18 to disclose to the defendant together with—
(i) the reason for the refusal; and
(ii) if the defendant so requests, the grounds in support of that reason, unless the giving of those grounds would itself prejudice the interests protected by
1 Section 12(4) of the Act provides the prosecutor an upper limit of 15 working days from the commencement of the criminal proceedings in which it must fulfil its disclosure requirements under this section.
2 Unless (in terms of s 13(2)(b)(ii)) the giving of such grounds would itself prejudice the grounds of exclusion.
section 16, 17, or 18 and (in the case of the interests protected by section 18) there is no overriding public interest.
(3) The standard information referred to in subsection (2)(a) is—
(a) a copy of any statement made by a prosecution witness; and
(b) a copy of any brief of evidence that has been prepared in relation to a prosecution witness; and
(c) the name and, if disclosure is authorised under section 17, the address of any person interviewed by the prosecutor who gave relevant information and whom the prosecutor does not intend to call as a witness; and—
(i) any written account of the interview, whether signed or unsigned, and any other record of the interview; and
(ii) any statement made to the prosecutor by the person;
and
(d) any convictions of a prosecution witness that are known to the prosecutor and that may affect the credibility of that witness; and
(e) a list of all exhibits that the prosecutor proposes to have introduced as evidence as part of the case for the prosecution; and
(f) a list of all relevant exhibits in the possession of the prosecutor that the prosecutor does not propose to have introduced as evidence; and
(g) a copy of any information supplied to the prosecutor in connection with the case by any person or persons whom the prosecutor proposes to call to give evidence as an expert witness or witnesses; and
(h) a copy of any relevant information supplied to the prosecutor by a person or persons whom the prosecutor considered calling to give evidence as an expert witness or witnesses, but elected not to do so.
[13] Section 14 provides a specific process by which a defendant may request further particular information of the prosecutor. The prosecutor must disclose that information unless it is irrelevant, there is a valid reason under the Act to withhold it, or the request is otherwise frivolous and vexatious. Any refusal to disclose must be accompanied by reasons (and grounds in support of those reasons where requested provided the grounds are not in themselves prejudicial).
[14] Section 15 is not relevant to this case and may be omitted, but s 16 is the central provision in the contest before me. Section 16(1)(c) and (j) are of particular importance in this case. They provide as follows:
(1) A prosecutor may withhold any information to which the defendant would otherwise be entitled under this Act if—
...
(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; …
[15] I note for completeness (and because they arise by virtue of s 16(1)(j) set out above) that s 54 of the Evidence Act 2006 relates to legal advice privilege and s 56 of that Act relates to litigation privilege. They are obviously “rules of evidence” for the purposes of s 16(1)(j). Section 54(1) relevantly provides:
(1) A person who obtains professional legal services from a legal adviser has a privilege in respect of any communication between the person and the legal adviser if the communication was-
(a) intended to be confidential; and
(b) made in the course of and for the purpose of-
(i) the person obtaining professional legal services from the legal adviser; or
(ii) the legal adviser giving such services to the person.
[16] Section 56 relevantly provides:
(1) Subsection (2) applies to a communication or information only if the communication or information is made, received, compiled, or prepared for the dominant purpose of preparing for a proceeding or an apprehended proceeding (the “proceeding”).
(2) A person (the “party”) who is, or on reasonable grounds contemplates becoming, a party to the proceeding has a privilege in respect of—
(a) a communication between the party and any other person:
(b) a communication between the party's legal adviser and any other person:
(c) information compiled or prepared by the party or the party's legal adviser:
(d) information compiled or prepared at the request of the party, or the party's legal adviser, by any other person.
[17] Returning briefly to the Criminal Disclosure Act, I note finally that the term
‘prosecutor’ enjoys an expansive definition in s 6 of the Act:
prosecutor means the person who is for the time being in charge of the file or files relating to a criminal proceeding; and includes—
(a) any other employee of the person or agency by whom the prosecutor is employed who has responsibilities for any matter directly connected with the proceedings; and
(b) any counsel representing the person who filed the charging document in the proceedings; ...
Rulings No. 3 and No. 4
[18] In his Ruling No. 3, the learned trial Judge identified two categories of information. The first was disclosable, the second able to be withheld. In summary the Judge ruled:
(a) all communications of Dr Callahan and Mr Birse must be disclosed as they are not protected by s 16 of the Criminal Disclosure Act;
(b)but communications between any witnesses (including Dr Callahan and Mr Birse) and Mr La Hood (as prosecuting counsel) were not disclosable if such communications were intended to be confidential and made in the course of, and for the purpose of, giving and obtaining legal advice or professional legal services with respect to the trial.
[19] The learned trial Judge reasoned that s 13 imposes a presumption in favour of full disclosure and the exceptions to disclosure contained in s 16 should therefore be interpreted narrowly. He reasoned that although s 16(1)(j) does seem to import into s 16 general notions of privilege under ss 54 and 56 of the Evidence Act, that importation must be read consistently with the full disclosure purpose of the Act and the terms of s 16(1)(c). The Judge found that s 16(1)(c) deals specifically with communications in contemplation of litigation and must therefore displace – generalia specialibus non derogant – the more general reference to litigation privilege under s 16(1)(j).
[20] In relation to the three options by means of which information may be withheld under s 16(1)(c), the Judge found:
(a) Expert witnesses do not prepare material for the prosecutor, but rather for the Court to which they owe a primary obligation. This meant paragraph (i) did not apply.
(b)The same reasoning applied to communications dealing with matters relating to the “conduct of the prosecution”. Expert witnesses were not engaged in the conduct of the prosecution, but rather in assisting the Court.
(c) The Judge did not seem to address the application of paragraph (iii) in relation to an analytical and evaluative material.
[21] The Judge found further that although s 16(1)(c) excludes s 56 of the
Evidence Act, it does not cover the same ground as s 54 in relation to legal advice
privilege and so does not preclude the importation into the disclosure regime of that privilege category by way of s 16(1)(j).
[22] I note that after the learned Judge issued Ruling No. 3, Mr La Hood applied to recall it citing a near contemporaneous decision of Heath J in R v Sullivan in which, MBIE argued, Heath J reached a conclusion directly contrary to the terms of Ruling No. 3.3
[23] In Ruling No. 4, Judge Hastings dismissed the application for recall. The Judge found, in essence, that the decision in Sullivan related to relevance not privilege and therefore provided no proper basis for recall. Although Ruling No. 4 is not appealed, I will need to return to R v Sullivan because that decision does address in obiter the applicability of Evidence Act privilege to criminal proceedings.
Submissions
[24] Argument in the appeal focused on two areas. They are related, but it is important to keep them separate. The first area of inquiry was what communications are specifically protected under s 16(1)(c). The second is whether the terms of that provision impliedly excludes litigation privilege under s 56 of the Evidence Act as so found by the trial Judge.
What s 16(1)(c) protects
[25] Mr Dale La Hood for MBIE4 argued under this heading that Centreport wanted access to drafts of the evidence of experts as they evolved toward final briefs delivered in Court, as well as to communications between experts and with their counsel in relation to the development of that evidence.
[26] Mr Dale La Hood submitted that this material is never disclosable in any prosecution. In fact, he said, prosecutors do not even list this material as withheld
3 R v Sullivan [2014] NZHC 925.
4 Two different Mr La Hoods appear in this case. They are brothers. Mr G La Hood is employed by MBIE and acted for it in the District Court. He appeared as junior in this appeal. Mr D La Hood is from the Crown Solicitor’s office and appeared as senior counsel for MBIE on this appeal. From this point onwards, references to Mr La Hood are references to Mr D La Hood, MBIE’s counsel on appeal.
from disclosure in the process under s 13. Nor, Mr La Hood argued, are communications between experts and counsel for the purpose of evaluating and/or responding to the defence case disclosed. All of this material he submitted is specifically excluded by the express terms of s 16(1)(c). He submitted that the learned Judge was wrong to conclude that evidence prepared by an expert in a prosecution is not prepared by the prosecutor to assist in the conduct of the trial in terms of item (i) of paragraph (c), and that the expert is not an advisor to the prosecutor in terms of item (ii) of that paragraph.
[27] Mr La Hood submitted that the Court need not be concerned about rejecting the narrower reading of s 16 for which he argued because even if the information is technically protected the prosecutor always has a discretion as to whether to withhold or disclose it under s 16 and that discretion is informed by the fair trial right enshrined in s 25 of the New Zealand Bill of Rights Act 1990. In addition, he argued, s 30 allows any defendant to apply to the Court for disclosure of information that is withheld if despite the terms of s 16 it is in the public interest that disclosure be so ordered. Mr La Hood submitted that any factual material or information that might go to a defendant’s fair trial right would be disclosable by these means even if otherwise protected by s 16(1)(c).
[28] Ms McDonald for Centreport, argued that the crucial test for disclosure is relevance as defined by s 8 of the Criminal Disclosure Act. She submitted that the learned Judge was correct to conclude that expert witnesses did not give evidence for the prosecution and statements they made could not therefore assist the prosecutor or relate to the conduct of the prosecution as required by s 16(1)(c)(i) and (ii). Rather, they gave independent evidence to assist the Court and were indifferent to the impact of the evidence on the prosecution. She submitted that s 16(1)(c) protected only “work product” – that is notes made by counsel in evaluating the prosecution case (and the defence’s case in response) as well as “housekeeping” or “logistical” documents prepared for the purpose of managing the prosecution or the trial. She concluded that anything relevant in terms of the definition in s 8 and not generated by the prosecutor him or herself for this narrow work product purpose, must therefore be disclosable under s 13.
[29] I note that in this context an issue arose as to the dual roles of Mr Birse. As the informant and an employee of MBIE, he fitted the description of prosecutor in s 6 and he was qualified by the Judge as an expert for the purpose of giving opinion evidence. The practical effect of his prosecutorial status was that communications between Mr La Hood and Mr Birse for the purpose of his role as a witness were potentially protected by s 16(1)(c)(ii)(A) and, in addition, communications between Mr Birse (if treated as a prosecutor) and Dr Callahan about their evidence, would be protected by subparagraph (B) of the same provision. Mr La Hood said this was permissible and cited authority. Ms McDonald said this was not permissible in a case such as the present where Mr Birse’s credibility and objectivity were directly in question.
Litigation privilege
[30] Mr La Hood submitted that s 16(1)(c) does not exclude the importation of s 56 of the Evidence Act as a rule of evidence under s 16(1)(j) of the Criminal Disclosure Act.
[31] Mr La Hood argued that s 16(1)(j) must be applied according to its plain words – that is as preserving all of the privileges protected in the Evidence Act. In any event, he submitted, s 16(1)(c) does not cover the same ground as litigation privilege because, unlike litigation privilege, it does not require documents to be held “for the dominant purpose of preparing for a proceeding or an apprehended proceeding”, before protection applies. Mr La Hood submitted that the “dominant purpose” requirement was deliberately omitted from s 16(1)(c) because communications made by staff and prosecuting agencies during investigations do not necessarily have a criminal proceeding in mind. For example, he submitted, the dominant purpose of a police investigation will often be simply apprehending a perpetrator, and an investigation by an environmental agency may be undertaken to primarily prevent ongoing environmental damage. A resulting prosecution may, he submitted, be only a secondary motive for such investigations.
[32] Ms McDonald on the other hand supported the conclusion of the learned
Judge that s 56 is excluded by s 16(1)(c). Whether the correct interpretational canon
was generalia specialibus non derogant (the specific excludes the general) or perhaps the more apt expressío uníus est exclusío alteríus (the expression of one thing implies the exclusion of the other) – s 16(1)(c) covers all of the ground of litigation privilege with or without the dominant purpose test. The effect is the same: there is no room in which to fit s 56 of the Evidence Act.
Court inspection
[33] I note finally that both counsel accepted that if the appeal has any substance at all (Mr La Hood did not for a moment concede that it did), it may be appropriate for the Court to inspect the documents in question to determine whether disclosure should in fact be ordered. Such a process is contemplated by s 30 of the Criminal Disclosure Act. I will come back to that option at the end of this judgment.
Section 16(1)(c) analysis
[34] Section 16 naturally operates in tension with the general disclosure requirements of s 13. Section 13 requires all relevant information to be disclosed.5
The threshold for relevance is low: a material bearing on the case is enough.6
Among other things, s 13(3) requires the disclosure of:
(a) any statement made by a prosecution witness;7
(b)any brief of evidence that has been prepared in relation to a prosecution witness;8
(c) any information in connection with the case supplied to the prosecutor by any person to be called as a witness;9
(d)any relevant information supplied to the prosecutor by a potential witness who is not to be called.10
5 Section 13(2)(a).
6 Section 8.
7 Section 13(3)(a).
8 Section 13(3)(b).
9 Section 13(3)(g).
10 Section 13(3)(h).
[35] Each category is preceded by the descriptor ‘any’. In my view ‘any’ is intended to mean ‘all’. Thus:
· Dr Callahan’s draft briefs of evidence and indeed any other statements by her are caught by my category (a) above (though perhaps not (b)). Section 6(1) of the Act relevantly defines brief of evidence as a written statement made by a witness or prepared by the prosecutor and intended by the prosecutor to be used at trial. A draft brief prepared by the witness is probably not yet intended to be used by the prosecutor at trial, but the same brief is undoubtedly that witness’ statement whether ready for trial or not. I take ‘statement’ to be any relevant declaration of fact or opinion from the mouth, mind or pen of the witness.
· Witness to witness statements are also covered by (a) for the same reasons. This way relevant communication between Dr Callahan and Mr Birse (in his role as an expert) will, provided it amounts to a declaration of fact or opinion from one or the other, be prima facie disclosable.
· Communications between witnesses and the prosecutor are covered by (a) if the communication is a statement as I described above, and (c) if the communication contains information that does not amount to a declaration of fact or opinion by that witness. A reference to statements, facts or opinions of others may, for example, be caught by (c).
· Information from individuals not to be called to give evidence (including statements from such people) is covered by (d). I take information to be any material that will inform the defendant about any relevant aspect of the case.
[36] Thus on their face the categories of information sought by Centreport are covered by s 13. They are therefore disclosable unless s 16 or some other exclusory rule applies.
[37] Section 16(1)(c) gives the prosecutor a discretion. It provides that the prosecutor “may” elect to withhold otherwise disclosable information if (here I paraphrase the provision):
(a) it is material about the conduct of the trial generated by or for the prosecutor;11 or
(b) it is a communication between–
(i) a prosecutor and his or her colleague; or
(ii) a prosecutor and his or her advisor;
about the way in which the prosecution is conducted;12 or
(c) it is generated at the investigation stage, prior to the filing of the charge or laying of the information, and is analytical or evaluative material prepared, in connection with the investigation, by an employee of an agency either for–
(i) a colleague or
(ii) a prosecutor.
Section 16(1)(c)(i) – trial conduct
[38] Any communications between Dr Callahan or Mr Birse on the one hand and Mr G La Hood on the other, for the purpose of assisting Mr G La Hood in his preparation for trial is in my view clearly able to be withheld in accordance with s 16(1)(c)(i). That provision allows the prosecution to withhold any advice or briefing material prepared by experts (whether or not it is intended that the expert be called) to assist the prosecutor in trying the case. Advice given on issues to explore
in cross-examination of defence experts, advice on areas of focus for cross-
11 Section 16(1)(c)(i).
12 Section 16(1)(c)(ii).
examination of lay or fact witnesses, and issues for trial strategy (generally within the expert’s area of expertise) will be covered by this broad exclusionary category.13
Thus, s 16(1)(c)(i) on its plain terms maintains the traditional separation between the prosecution and defence at trial. It reflects the fact the criminal trials are still adversarial contests, whatever one might say of the strengths and weaknesses of that system. The disclosure regime does not go so far as to require the prosecutor to admit the defence into the prosecution’s trial preparation room.
[39] It follows that I disagree with the learned Judge in his conclusion that s 16(1)(c)(i) has no application to Dr Callahan or Mr Birse because the experts’ overriding obligation is to the Court and not to the party to which they are retained to provide advice or evidence. The material they generated was not in the Judge’s view, “prepared … for the prosecutor”. That conclusion, while understandable, places too little weight on the actual role experts play in the conduct of a prosecution at trial.
[40] While all experts have an overriding duty to assist the Court impartially on relevant matters within the expert’s area of expertise, and while they must not be advocates for their client’s cause, the fact is they do help prosecutors to prepare for, and conduct criminal trials.14 Indeed they are briefed and paid by prosecutors for that purpose. To conclude that such assistance is really for the Court and not the prosecutor is, in my view, unrealistic in that it ignores the professional and
contractual relationship between the expert and the party instructing him or her.
[41] Experts still of course carry throughout their trial work an ethical and professional obligation to be scrupulously objective in applying their expertise to the matters at issue. In fact that special duty is a part of their value to the prosecutor and therefore to the trial process itself. But that overriding obligation to the Court is not
to be confused with the fact that the expert is instructed by and working for the
13 See M v R [2011] NZCA 84 specifically in relation to material to be relied upon to challenge the credibility or the reliability of a defence witness, the Court of Appeal relying there on s 16(1)(o)(i) and s 16(1)(c) – see further discussion below.
14 See the code of conduct for expert witnesses in Sch 4 of the High Court Rules. The code does not apply directly to criminal proceedings, but expert witnesses will often refer to it as guiding the discharge of their professional duties and it is generally accepted that the principles contained in the code apply to expert witnesses in criminal proceedings at least by analogy.
prosecutor. The position is perhaps analogous (up to a point) to the overriding obligation of counsel as an officer of the Court. That obligation does not change the fact that, subject to that obligation, counsel acts for a particular party.
[42] That said, the s 16(1)(c)(i) exclusion only applies to material relating to “the conduct of the hearing or trial”. That phrase focuses on the prosecutor and the way in which he or she tries the case. It relates to the manner in which the process is to be managed or directed by the prosecutor. At one end of the spectrum this will involve high level strategic or policy considerations and at the other it will involve more logistical or administrative matters. But “the conduct” does not, in its ordinary meaning, cover the process by which substantive evidence is generated – for example, the production of early drafts of expert evidence. They are the witnesses’ preserve, not the prosecutor’s. The prosecutor neither prepares nor controls the production of that material.
Section 16(1)(c)(ii) – prosecution conduct
[43] In the context of this case, s 16(1)(c)(ii) relates to similar material. Any communications between Mr Birse and Mr G La Hood about the conduct of the wider prosecution (including, perhaps, the trial itself) are clearly covered under subparagraph (A) because both individuals are employed by MBIE. Mr Birse and Dr Callahan are also advisors to Mr G La Hood in their roles as experts. Their communications with him are therefore also covered by subparagraph (B).
[44] The controversial issue under this provision relates to communications between Dr Callahan and Mr Birse that do not involve Mr La Hood in any way. The definition of prosecutor in s 6(1) is wide enough to include not only Mr G La Hood, but Mr Birse too. That is because the definition covers not only the person in charge of the file, but any colleague of that person where the colleague has responsibilities directly connected with the subject prosecution. That means Mr Birse is also to be treated as a prosecutor. It may therefore be argued that Dr Callahan is his advisor in terms of subparagraph (B), meaning communications between them may also be withheld.
[45] While the roles of a partisan prosecutor and an independent expert do seem inconsistent, I accept that, in some circumstances, the Act contemplates that both functions may reside in the same individual (I note here that the learned Judge’s ruling confirming Mr Birse’s status as an expert was not challenged by Centreport).15
But, the exclusion in paragraph (ii) is qualified is two ways. First, the communication must relate to “the conduct” of the prosecution and second, the other person involved must be the prosecutor’s “advisor”.
[46] As I have said, in my view, the conduct of the prosecution is not about the content of evidence. It is not about discussions between witnesses over what they will say. Rather, it is about carriage of the proceeding – its direction and management. So, to the extent that communications between Mr Birse and Dr Callahan were about their evidence, s 16(1)(c)(ii)(B) does not apply even though Mr Birse is technically a prosecutor. In short, where Mr Birse is behaving as a witness, the communication cannot be about the conduct of the prosecution. But communications between the two of them may be withheld if the nature of advice from Dr Callahan to Mr Birse is about the management or direction of the prosecution. It is unlikely experts such as Dr Callahan will be in a position to comment on logistical and administrative matters to do with the prosecution, but that is not say experts play no role in its strategic direction.
[47] The second requirement is that Dr Callahan must be performing the role of advisor to Mr Birse in his role as prosecutor in order to gain the advantage of that exclusion. Once again, discussions about evidence will not be protected by this provision.
Section 16(1)(c)(iii) – investigation
[48] I do not apprehend that there is controversy around what evaluative material from the investigation stage may be disclosable under s 16(1)(c)(iii), but in case I am wrong about that, this exclusion relates to reports and assessments evaluating or analysing the evidence, case or investigation at the pre-charge stage of the case. It
relates to material prepared and communicated within the evaluating agency – that
15 See also R v Gilchrist [2013] NZHC 643 at [132]-[130] and R v Graham HC Wellington CRI-
2010-085-2538, 8 July 2011 at [50].
agency may or may not be the prosecuting agency – in addition to material communicated by someone from within that agency to the prosecutor. No material of this nature was brought to my attention or the subject of focus in argument in this case.
Conclusions to this point
[49] I conclude so far, therefore, that the prosecutor has a discretion to withhold under s 16(1)(c) the following categories of information:
(a) all communications between Dr Callahan, Mr Birse and Mr G La Hood relating to trial preparation, direction or management, and any other analytical or evaluative material relating to the conduct of the trial, but not including drafts of evidence or communications about the content of that evidence; and
(b)all communications between Dr Callahan, Mr Birse and Mr G La Hood relating to direction and management of the prosecution and all other analytical or evaluative material in relation to the prosecution but not including drafts of evidence or communications about the content of evidence; and
(c) all evaluative or analytical material prepared at the pre-charge stage for the investigation by individuals within a relevant agency either for a colleague or the prosecutor.
[50] At this point the contest remains live only as to draft briefs of evidence; and communications made by or between witnesses and prosecuting counsel about that evidence.
Section 16(1)(j)
[51] The next question is whether the general provision importing legal privilege into the disclosure rules under the Criminal Disclosure Act (CDA), operates to increase the information that may be withheld by the prosecution – that is to widen
the exclusion category. As I have said, the learned Judge concluded that s 16(1)(c)(i) (and perhaps in (ii)) covered the field that would otherwise have been occupied by litigation privilege under s 56 of the Evidence Act. This meant, the learned Judge reasoned, that the specific provision in s 16(1)(c)(i) ousted the general importation of privilege under s 16(1)(j).
[52] As indicated, I differ from the learned Judge in that in my view Mr Birse and Dr Callahan can be said to have prepared their material for the prosecutor rather than the Court and that they are entitled to some protection if the material was provided to assist the prosecutor in conducting the trial. But I found that drafts of their evidence are not so protected and must be disclosed unless privilege under the Evidence Act applies.
[53] If (contrary to the finding of the learned Judge) litigation privilege is not ousted by s 16(1)(c)(i), there is no doubt that drafts of evidence and discussion around the content of that evidence is generated in contemplation of litigation and will therefore be subject to litigation privilege.
[54] This is an area where the courts have expressed some opinions since the enactment of the CDA, although largely in obiter.
[55] M v R related to a challenge by the defence over the Crown’s failure to disclose information the Crown had obtained about a defence expert witness.16 This information was used in cross-examination to considerable effect. The defence was taken by surprise and cried foul. The Court of Appeal confirmed that s 16(1)(c)(i) and (ii) provided that such information need not be disclosed. But the Court added:17
Litigation privilege may attach if the relevant information is prepared for the dominant purpose of preparing for a proceeding or apprehended proceeding.
[56] It is fair to say however that the Court did not, and was not required to, analyse that proposition in any depth. It was more in the nature of a throwaway line.
16 M v R [2011] NZCA 84.
17 At [25].
[57] R v Sullivan was the decision in May this year that triggered the prosecution’s application to recall Ruling No. 3 in this case.18 It related to the South Canterbury Finance prosecutions by the Serious Fraud Office. The defence sought, mid-trial, further disclosure of:
(a) invoices of the prosecution’s forensic expert;
(b)correspondence documents and records between the expert and prosecutor;
(c) correspondence between the prosecutor and any witness or potential witness.
[58] For the most part, Heath J rejected the application as relating to the irrelevant material, or at least material that the defence could not positively show to be relevant. But the Judge nonetheless reached firm conclusions in obiter about the applicability of litigation privilege. He considered that the power of the Court under s 67(2) of the Evidence Act to override privilege in criminal proceedings confirmed that privilege does apply to such proceedings. He said:19
It is clear from s 67(2) of the Evidence Act that a claim to litigation privilege might be disallowed “if [a] 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”. The very existence of that provision tends to support a conclusion of litigation privilege applies in a criminal proceeding. But, for a Court of first instance, the point was put beyond doubt by the Privy Council in B v Auckland District Law Society.
(Citations omitted).
[59] Heath J then dealt directly with the question of draft briefs of evidence. He said:20
In my view, there is nothing in the Act to require the Crown to disclose general communications between prosecutor and a proposed witness about the form of any brief of evidence. In a case such as this, I would expect such communications to take place in order to settle the final form of a witness’ evidence. There is no evidence before me to suggest that the Crown has
18 R v Sullivan [2014] NZHC 925.
19 At [35].
20 At [38]-[40].
attempted to suborn the testimony of a potential witness. Nor is there any obligation to disclose more general correspondence that is not relevant to a trial issue. That being so, there is no evidential foundation for an order under s 30 to be made in respect of the second and third categories of documents sought.
Having said that, I expect counsel for the Crown to provide to the accused any document that might affect the credibility of a witness, including any officers of a prosecuting authority to be called as witnesses. Although that is not something expressly identified in the standard information required to be disclosed under s 13(3) of the Act, it is consistent with the need to disclose any convictions of a prosecution witness that might affect his or her credibility. Section 13(2)(a) makes it clear that “any relevant information, including, without limitation,” the standard information described in s 13(3) must be disclosed. Similarly, the Crown should identify any documents tow high privilege is claimed, and the basis for the claim so that any particular issue can be explored if necessary. Those disclosures may have been made already, but if not Crown counsel should attend to it now.
I do not consider it is necessary, in the context of the present application, to determine questions of the scope of litigation privilege. …
[60] 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. There is understandable reliance, even after the enactment of the disclosure regime, on the speech of Lord Millett in B v Auckland District Law Society:21
… the privilege is the same whether the documents are sought for the purpose of civil or criminal proceedings and whether by the prosecution or the defence.
[61] But none of the authorities address the interpretative argument considered and adopted by the learned Judge in this case.
[62] Having considered the statute and the authorities, I conclude that litigation privilege applies to criminal proceedings. I do not consider that the relationship between s 16(1)(c)(i) and s 16(1)(j) is such that the former operates to oust litigation privilege under the latter – whether that be by way of the specific overriding the general, or whether it be simply that s 16(1)(c)(i) covers the same subject matter as litigation privilege but in a way that favours disclosure in some respects.
[63] The effect of the learned Judge’s reasoning is that litigation privilege is
excluded from all criminal proceedings. That would be a radical result arrived at by
21 B v Auckland District Law Society [2004] 1 NZLR 326 (PC).
mere implication. Section 16(1)(j) makes relevant “any privilege applicable under the rules of evidence”. I do not think it can have been Parliament’s intention, within the same subsection, to import “any privilege” into the disclosure regime and in the same breath to exclude one of its most important permutations by implication. It is in any event, in my view, unnecessary to read down s 16(1)(j) in order to give full effect to the disclosure principles of the Act. Rather, the two provisions can operate together with privilege filling some of the gaps left by s 16(1)(c)(i). Like Judge Hastings, I would have been moved to take a stricter approach if the exclusions in s 16 were absolute. They are not. There are a number of paths by which a defence concerned about the potential impact of refusal to disclose information on a defendant’s fair trial right, may obtain disclosure despite s 16.
[64] The first point is that it must be remembered the prosecution is obliged to list all of the documents it is withholding and why. This is of assistance to the defence in isolating documents that may require further consideration. As Heath J pointed out in Sullivan, s 67(2) of the Evidence Act allows the Court to override litigation privilege if the right to a fair trial is at stake. Thus, unlike litigation privilege in civil proceedings, criminal litigation privilege is not at all absolute. The right of a defendant to mount a proper defence will always trump privilege.
[65] In addition, s 30(1)(b) of the CDA allows the Court to override s 16 if:
… the interests protected the withholding of that information are outweighed by other considerations that make it desirable, in the public interest to disclose the information.
[66] This means the exclusions in s 16(1)(c) may also be overridden on fair trial grounds. Applications under s 30 often result in the Court, through an ex-parte process and sometimes with the assistance of amicus, inspecting the documents for itself in order to determine whether the public interest favours disclosure to the
defence and, if so, on what terms.22
[67] Finally as I noted in the beginning, s 16 is discretionary. Even if one or other of the categories of s 16 is engaged, the prosecutor is not obliged to withhold the
22 See s 31.
relevant information. Section 16 presents the prosecution with a choice. In deciding, no doubt in discussion with the defence, whether such information should be withheld, the prosecutor must be guided by the principles in the CDA, by the intendment of s 30(1)(b) and by s 25(a) of the New Zealand Bill of Rights Act.
[68] In summary, there are robust processes in place capable of ensuring such disclosure as will protect a defendant’s right to present an effective defence, without reducing the general applicability of privilege. That is, I think, the result the legislature intended in enacting the CDA.
[69] I should finally acknowledge the learned Judge’s reference to the decision in Toronto Star Newspapers Ltd v Canada in which Nordheimer J of the Ontario Superior Court of Justice rejected a police claim to litigation privilege in relation to reports prepared for the RCMP during the course of an investigation and prior to charge. 23 Nordheimer J noted that litigation privilege has a relatively narrow role in
civil proceedings and “even a narrower role in criminal proceedings”.24 I must say I
agree with that sentiment. But in that case the Judge rejected a claim to privilege in
respect of “the fruits of the investigation”. The Judge found:25
To withhold these reports would effectively allow the Crown to withhold the sum and substance of its case. Further, the concept that the Crown can develop an investigative theory of criminal liability, based on a factual analysis done by experts on its behalf, for the purpose of obtaining a search warrant and then keep all of that information secret, on the basis that otherwise its investigative theory would be revealed and its ongoing investigation compromised, would, if accepted, create an exception to the openness principle that would be virtually unlimited in its scope. Effectively, every application for a search warrant could be kept secret on that basis.
[70] I see no inconsistency between the firm stance taken by Nordheimer J in Toronto Star Newspapers Ltd and my interpretation of the CDA. Section 16(1)(c)(iii) relates to analytical or evaluative material at the pre-charge stage. It is not to be interpreted so as to exclude reports that reveal the material facts upon which the Crown attempts to develop its theory of criminal activity. Such
reports could not properly be described as merely evaluative. And even if they were,
23 Toronto Star Newspapers Ltd v Canada (2005) 204 CCC (3d) 397.
24 At [20].
25 At [21].
s 30 would provide a means by which to override privilege to ensure that the defence is properly appraised of the case against it.
[71] In addition to my conclusions with respect to s 16(1)(c), I agree with Heath J in Sullivan that drafts of expert evidence may be withheld pursuant to s 16(1)(j) together with any recorded discussions between expert witnesses or with counsel in respect of that evidence subject to the caveat in relation to s 30(1)(b).
Conclusion and disposition
[72] But that is not the end of the matter. The Centreport is still able to pursue disclosure under s 30(1)(b). That process has yet to be undertaken.
[73] Centreport expressed considerable concern about the impartiality of Mr Birse (and perhaps Dr Callahan – though that was less clear). They invited me to inspect the withheld documents to determine whether they might contain material relevant to that issue. Centreport thus argued that there is an evidential foundation for the Court to look more closely at this material. There were other concerns too. On reflection, I consider that that task is better undertaken by the trial Judge whose command of the facts and issues far exceeds mine.
[74] I am minded therefore to allow the appeal, and to refer the matter back to the District Court to enable the learned Judge to undertake an inspection. Before I do that however, I would wish to hear from counsel as to whether there is an objection to that course. That is whether it is their joint view that I should undertake the task.
[75] The Registrar is to convene a teleconference or a brief fixture (if that may be arranged quickly) so that I may hear the views of counsel before making final orders.
Williams J
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