Ministry of Business, Innovation and Employment v Centreport Limited
[2014] NZHC 1429
•24 June 2014
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
CRI 2014-485-000045 [2014] NZHC 1429
MINISTRY OF BUSINESS, INNOVATION AND EMPLOYMENT Applicant
v
CENTREPORT LIMITED Respondent
Hearing: 18 June 2014 Counsel:
D La Hood and G La Hood for Applicant
K McDonald QC and M Quigg for RespondentJudgment:
24 June 2014
JUDGMENT OF RONALD YOUNG J
Introduction
[1] Centreport Limited is being prosecuted by the Ministry of Business, Innovation and Employment under the Occupational Health and Safety Legislation arising from the death of a man working at Centreport. During the course of the hearing of the prosecution an issue arose as to disclosure by the informant. The trial Judge gave a decision requiring the informant to provide certain information the informant had said was covered by solicitor/client and litigation privilege. The informant now applies in these proceedings under s 33 of the Criminal Disclosure Act 2008 (the Act) for the leave of this Court to appeal the District Court Judge’s
decision.
MINISTRY OF BUSINESS, INNOVATION AND EMPLOYMENT v CENTREPORT [2014] NZHC 1429 [24
June 2014]
[2] The respondent opposes leave submitting there is no jurisdiction to appeal such a ruling made during trial. Counsel have agreed that the question of leave should be heard and determined before any merits based appeal.
[3] And so the question posed by this appeal is – does this Court have jurisdiction to hear and decide an appeal mid trial from a mid trial ruling under the Act?
[4] If there is no jurisdiction to appeal mid trial, then self evidently no leave could be given. If there is jurisdiction then I am satisfied leave should be given.
Some further background
[5] On 12 July 2013 well before the District Court trial began, the prosecution wrote to the defendant’s counsel advising “please find enclosed a copy of all relevant information held on the Ministry’s Investigation File, other than information held under s 16(1)(j) of the Criminal Disclosure Act 2008”.
[6] Section 16(1)(j) of the Act provides as follows:
16 Reasons for withholding information
(1) A prosecutor may withhold any information to which the defendant would otherwise be entitled under this Act if—
…
(j) the information could be withheld under any privilege applicable under the rules of evidence; or
[7] Section 13(2)(b) requires a prosecutor to disclose to a defendant:
…
(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 section 16, 17, or 18 and
(in the case of the interests protected by section 18) there is no overriding public interest.
[8] The informant’s letter of 12 July did not appear to contain a “list” in terms of s 13(2)(b). Centreport did not seek such a list or indeed any information pursuant to s 13(2)(b)(ii) before trial.
[9] During the trial (which began on 12 May 2014) an issue as to disclosure arose. A list of specific documents was then provided by the Ministry to Centreport with respect to which it asserted privilege, both solicitor/client and litigation privilege. Centreport challenged the assertion of privilege.
[10] After hearing submissions and evidence, the Judge ruled some of the documents where privilege was asserted, should be disclosed. The Ministry considered the Judge’s decision was wrong. They advised the Judge of their intention to seek leave to appeal to this Court. The trial Judge agreed to delay the completion of the case in the District Court (all the evidence has been heard subject to any further evidence arising from inspection of the disclosed material, the subject of the application, and submissions are still to come). In the meantime the order for disclosure has not been enforced.
Discussion
[11] Section 33 permits appeals from Court ordered disclosure under s 30 (as relevant here) of the Act. Section 33 provides as follows:
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) a 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.]
[(4) Subpart 2 of Part 6 of the Criminal Procedure Act 2011 applies to an appeal under this section with any necessary modifications.]
[(5) Despite subpart 2 of Part 6 of the Criminal Procedure Act 2011,—
(a) a notice of application for leave to appeal to the High Court must be filed within 3 working days after the date of the decision to which the appeal relates:
(b) a notice of application for leave to appeal to the Court of Appeal or the Supreme Court must be filed within 10 working days after the date of the decision to which the appeal relates.]
[12] The Judge’s disclosure orders here were consequent upon a s 30 application by Centreport.
[13] Prior to the Criminal Procedure Act 2011 coming into force, s 33(5) provided as follows:
33 Appeals
…
(5) If the appeal is made to the High Court, sections 116 to 144 of the Summary Proceedings Act 1957 apply, so far as applicable and with any necessary modifications.
[14] Sections 116 to 144 of the Summary Proceedings Act 1957 provided a broad general appeal process from post trial determination.
[15] Part 2 of subpart 6 of the Criminal Procedure Act 2011 is headed “Appeals
against pre-trial decisions”. Section 215 provides as follows:
215 Right of appeal by prosecutor or defendant against certain pre- trial evidential decisions in Judge-alone case
(1) This section applies if a [court makes] a decision specified in subsection (2) in proceedings to be tried by [Judge-alone trial procedure].
(2) The defendant or the prosecutor may, with the leave of the first appeal court, appeal to that court against a decision that is one of the following:
(a) making or refusing to make an order under section 79 (as to admissibility of evidence):
(b) granting or refusing to grant permission under section 44 of the Evidence Act 2006 (which relates to the cross- examination of a complainant):
(c) giving or refusing to give leave on an application under section 109(1)(d) of the Evidence Act 2006 (which relates to the identity of a witness):
(d) making or refusing to make a witness anonymity order under section 112 of the Evidence Act 2006.
[16] As to the rest of subpart 2, s 216 authorises the refusal of leave where the appeal could be expediently dealt with post trial. Sections 217, 218 are concerned with pre-trial hearings for jury trials. Section 219 identifies the appropriate first appeal Court. Section 220 is relevant. It provides as follows:
220 How to commence first appeal
(1) A defendant or prosecutor commences a first appeal under this subpart by filing in the first appeal court a notice of application for leave to appeal to that court.
(2) A notice of application for leave to appeal must be filed within 20 working days after the date of the decision to which the appeal relates.
(3) The first appeal court may, at any time, extend the time allowed for filing a notice of application for leave to appeal.
[17] Section 222 is also relevant. It provides:
222 Trial court may allow trial to proceed
(1) This section applies if—
(a) [a notice of application] for leave to appeal has been filed under this subpart but not determined; or
(b) leave to appeal has been given under this subpart but the appeal has not been determined.
(2) The trial court may allow the trial to which the application or appeal relates to commence or continue, as the case may be, even though the application or appeal has not been determined, if satisfied that it is in the interests of justice to do so.
[18] The rest of subpart 2 is concerned with second appeals.
[19] The Ministry accepted that the subpart 2 procedure generally focused on pre-trial appeals and did contemplate mid trial appeals. However, the wording in s 222(2) may be seen to contemplate mid trial appeal. There, the trial Court can allow a trial to “continue” even though there remains a “live” appeal. The Ministry accepted, however, that given the subpart 2 procedure was concerned with pre-trial appeals, they would need to convince me that the phrase “necessary modifications” in s 33(4) modified subpart 2 as necessary to include mid trial appeals. They
referred to R v Watson as authority for their approach.1
[20] Centreport submits that s 215 is clear the only appeals that are permitted are from pre-trial decisions. They point out that s 215 is based on s 379A of the Crimes Act 1961. That section authorised only pre-trial appeals. Centreport submitted that to allow mid trial appeals would compromise the expediency of Judge alone trials. Further, they said if the disclosed material influenced the verdict then the Ministry could pursue an appeal after conviction based on an alleged error by the Judge in permitting Centreport to see and use this allegedly privileged information. If this resulted in a miscarriage of justice, the appeal could be allowed.
Discussion
[21] Excluding disclosure, until the introduction of the Criminal Procedure Act 2011, most if not all evidential challenges in Judge alone trials were dealt with at trial. And so Part 4 of the Summary Proceedings Act 1957 dealt with appeals after a
case had been determined (see, for example, s 107 and 115).
1 R v Watson [1999] 3 NZLR 257 (CA).
[22] In the jury jurisdiction, s 344A specifically allowed resolution of evidential challenges pre-trial (and others) with pre-trial appeal rights (with leave). With the introduction of the Criminal Procedure Act 2011 pre-trial hearings on evidence admissibility issues in Judge alone trials were expressly permitted (s 78).
[23] Section 30 of the Act is open ended. It allows a defendant to apply at any time for an order for disclosure. If the Court is satisfied the defendant is entitled to disclosure, then it may order disclosure. There is no restriction on the timing of such an application. A mid trial application appears to be permitted.
[24] I do not consider that s 215 can be used to narrow the broad appeal rights given in s 33. Section 33 of the Act sets out the fundamental appeal grounds for disclosure decisions. The procedure to be adopted for such appeals is subpart 2 of Part 6 of the Criminal Procedure Act 2011. Necessary modifications to subpart 2 are required to ensure that the policy and purpose behind s 33 is protected. Subpart 2 is the process by which the appeals from s 33 are to be heard. Section 33 provides the entitlement for such appeals.
[25] The subpart 2 provisions, therefore, should not be used to modify or limit the appeal rights given in s 33. The position is effectively the opposite. Subpart 2 should be modified (by virtue of the legislative authority of s 30 (4)) if it conflicts with s 33. Section 33 appeal rights are open ended and so such rights should not be narrowed by subpart 2.
[26] Further, there is a rationale for distinguishing between appeals from decisions relating to disclosure and those relating, for example, to admissibility of evidence or other similar pre-trial issues (eg severance).
[27] Evidential issues are straight forward. If they arise mid trial and if evidence is wrongly admitted or rejected, then the question of whether there has been a consequential miscarriage of justice can be assessed in an appeal after conviction. However, disclosure rulings may be in quite a different category. While mid-trial disclosure rulings may be subject to the same post conviction assessment as
evidential rulings, disclosure rulings may also have significant consequences outside the trial context.
[28] Disclosure orders of asserted privileged material can have adverse consequences beyond the immediate bounds of the litigation. And some of the grounds identified in s 16 for withholding information are in a similar category to privileged information. Once the information is released, serious consequences may follow even if subsequently identified as wrongly released. Once the information is in the public arena it cannot be put back. For example, s 16(1)(a) and (b) set out circumstances where it is self evident information wrongly required to be disclosed could have serious consequences. Information could be ordered to be disclosed which could compromise a criminal investigation or threaten the safety of a person. Post trial appeal rights while relevant to a challenge to a conviction will not help the compromise or threat identified. In these cases the horse has bolted. Only a potential mid-trial appeal can protect the position. It permits challenge to the disclosure decision (with leave) but does not require determination of the criminal charges until it is clear what evidence will be available.
[29] Section 33(5) also supports the prospect of mid trial appeals. Section 220(2) allows 20 working days from the pre-trial decision within which to file an application for leave to appeal. Section 33(5) narrows that period to three working days. If Parliament intended that the appeals from disclosure decisions would be limited to pre-trial disclosure decisions, then there would be no need to narrow the
20 day period in s 220 so significantly as in s 33(5). The substantial reduction to three working days at least hints at an anticipated mid trial Judge alone appeal.
[30] Finally, the requirement that leave be obtained before an appeal is permitted to proceed protects the parties from frivolous or unmeritorious appeals designed to delay the trial.
[31] I am satisfied, therefore, that this Court has jurisdiction to grant leave to appeal the District Courts disclosure orders and that it has jurisdiction to hear the appeal.
[32] I am satisfied, therefore, that leave to appeal should be and is given.
Costs
[33] If the Ministry seek costs a memorandum should be filed within 14 days and with Centreport having a further 14 days in which to reply.
Solicitors:
Luke Cunningham & Clere, Crown Solicitors, Wellington
Quigg Partners, Wellington
Ronald Young J
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