Polounina v Police HC Auckland CRI-2011-404-000091
[2011] NZHC 1846
•8 November 2011
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2011-404-000091
NINA POLOUNINA
Appellant
v
NEW ZEALAND POLICE
Respondent
Hearing: 11 April 2011
Counsel: A G V Rogers for the Appellant
R S Reed for the Respondent
Judgment: 8 November 2011
JUDGMENT OF DUFFY J
This judgment was delivered by Justice Duffy on 8 November 2011 at 3.30 pm, pursuant to
r 11.5 of the High Court Rules
Registrar/Deputy Registrar
Date:
Counsel: A G V Rogers P O Box 1771 Shortland Street Auckland 1140 for the Appellant
Solicitors: Meredith Connell P O Box 2213 (DX CP24063) Shortland Street
Auckland 1140 for the Respondent
POLOUNINA v POLICE HC AK CRI-2011-404-000091 8 November 2011
[1] Mrs Polounina is facing a charge in the District Court at Auckland of assault under the Summary Offences Act 1981. She is defending the charge. Her counsel has made extensive requests for disclosure from the New Zealand Police (the police). The District Court has made a ruling that requires the police to provide Mrs Polounina with some of the information she has sought. However, the disclosure ordered has not been as extensive as she wanted. Hence, her appeal to this Court. The appeal is opposed.
[2] Mrs Polounina is alleged to have deliberately and intentionally thrown a ladder at an off-duty Police Constable, Andrew Sayer, against a background of ongoing friction between Mrs and Mrs Polounine on the one hand, and Mr Sayer on the other. Mrs Polounina has sought access to information the police may hold that reveals Mr Sayer demonstrating belligerent or abrasive behaviour in his professional capacity. The police have said they will disclose information where complaints about Mr Sayer‟s behaviour have been upheld. But the police have refused to reveal any information of such complaints when they were not upheld. There have also been requests for other information which the police say they do not hold.
District Court judgment
[3] Mrs Polounina‟s requests to the police for disclosure were set out in a letter of her counsel dated 8 September 2010 (the request). The request identified 17 topics on which information was sought. Some of the information sought was disclosed by the police and what was not was the subject of an application in the District Court under s 30 of the Criminal Disclosure Act 2008. This provision enables a defendant who is dissatisfied with the disclosure obtained from the police to apply to the court that will be hearing the charge.
[4] By the time the matter was before the District Court, the topics on which the police had withheld disclosure were those in paragraphs [15] to [17] of the request. These topics were as follows:
(a) [15] Police and/or medical records of any mental illness suffered by
Mr Sayer at any time;
(b)[16] Copies of all records of complaints from any third persons (other than Mr and Mrs Polounine or their legal advisors) made against Mr Sayer;
(c) [17] Copies of complaints that Mr and Mrs Polounine or their legal advisors had made to police about Mr Sayer.
[5] The subparagraphs of [17] of the request identified 16 earlier occasions on which Mr or Mrs Polounine or their legal advisors had communicated with the police about Mr Sayer‟s alleged misconduct. Details of those complaints and the action taken by the police on their receipt were sought.
[6] At [36] of the judgment, the District Court found that as regards the request for police and/or medical records of any mental illness suffered by Mr Sayer, the prosecution could not disclose anything because there was in fact nothing to disclose. I consider that is a complete answer to this request. Section 15 of the Criminal Disclosure Act provides that a prosecutor is not obliged to disclose information that is not within the prosecutor‟s possession or control. I do not accept the idea, promoted by Mrs Polounina, that the police could take steps to require this information, should it exist, from Mr Sayer. There is nothing in the Criminal Disclosure Act to support this occurrence.
[7] At [37] of the judgment, the District Court dealt with Mrs Polounina‟s suggestion that the police could require Mr Sayer to disclose such information. Like the District Court, I consider that if Mrs Polounina believes that Mr Sayer or some other person (other than the police) holds the information she seeks and she wishes to pursue accessing the information, she should make an application for third party disclosure.
[8] Regarding [16] of the request, the District Court concluded that Mrs Polounina would only be entitled to information regarding complaints about Mr Sayer by third parties if the complaints had been upheld. The District Court‟s understanding of the information in the police‟s possession was that none of the
complaints by third parties had been upheld. Consequently, the District Court found there was no information available to be disclosed here.
[9] Regarding [17] of the request, the District Court concluded that Mrs Polounina wanted to have a detailed analysis of the data that underlay the way in which the various earlier complaints made by Mr and Mrs Polounine had been dealt with by the police. The District Court concluded that it was the outcome or conclusion that was relevant to the disclosure, rather than the underlying data. The District Court concluded, therefore, that what should be disclosed was evidence of the receipt of each complaint, any advice that the police might have given to Mr Sayer regarding each complaint, and whether or not the complaint had been upheld or dismissed. Material beyond this would not, therefore, be disclosed.
Appellate principles
[10] The principles for how this Court should approach an appeal from the District Court are well settled; on general appeal (which is what this appeal is), the appeal court has the responsibility of arriving at its own assessment of the merits of the case: see Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103; [2008] 2 NZLR 141 at 147. Whilst Austin, Nichols involved a civil appeal, I consider the principles are equally applicable to general criminal appeals.
Criminal Disclosure Act 2008
[11] The requested information comes within the scope of “additional disclosure”. Section 14 of the Criminal Disclosure Act 2008 sets out the provisions for request for additional disclosure:
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 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.
[12] Thus, information requested as additional disclosure can only be withheld if it is not relevant or there is good reason to withhold it under any of the other categories in s 14(2).
Analysis
[13] The charge Mrs Polounina faces and the circumstances on which it is founded provide the focus for the relevance enquiry in terms of s 14(2).
[14] The police caption summary sets out the alleged circumstances that led to the charge of common assault. They are as follows: Mr Sayer owns two ground floor units in a block of two-storey units. Mr and Mrs Polounine own a unit on the upper storey of this block. There is a balcony attached to the upper storey units. There is no evidence as to whether the roof and access to the roof from the upper storey balcony is common property or private property belonging to the owners of the upper storey units. The nature of the ownership will affect Mr Sayer‟s right to access the television aerial.
[15] Mr Sayer rents out his units. On 11 July 2010, he received a telephone call from his tenant asking him to come to the property to fix poor television reception. He arrived at the address with a new television aerial, and needed access to the roof.
He placed his ladder on the balcony outside the door of a unit that shares a balcony with the unit of Mr and Mrs Polounine. Mr Sayer is said to have attempted to climb onto the roof, when Mrs Polounina came out of her unit with her husband and began yelling at Mr Sayer. Mr Sayer asked his tenant to call the police. He walked down the stairs to speak with his tenant and await the police. While he was doing so, he looked up the stairs and saw Mrs Polounina pick up his ladder. He is alleged to have said “do not throw the ladder at me please”, but the ladder was thrown down the stairs. The ladder hit Mr Sayer in the leg, causing minor scratches and bruising. When spoken to by the police, Mrs Polounina declined to comment, but she did admit to throwing the ladder. She has not previously appeared in Court.
[16] Section 2(1) of the Summary Offence Act defines assault as follows:
Assault means the act of intentionally applying or attempting to apply force to the person of another, directly or indirectly, or threatening by any act or gesture to apply such force to the person of another, if the person making the threat has, or causes the other person to believe on reasonable grounds that he has, present ability to effect his purpose; and to assault has a corresponding meaning
[17] The definition of “assault” provided by s 2(1) is identical to the definition of “assault” in s 2(1) Crimes Act 1961. Thus, the material case law on common assault under the Crimes Act is applicable to the present offence.
[18] The actus reus of common assault is the application or attempted application of force to another person, directly or indirectly, or the threat of doing so. The mens rea of assault is intention to apply force to another: see R v G (1984) 1 CRNZ
275; or in the case of the threats, these must be intentional and directed towards a person, as distinct from property: see Lazarus v Police (1997) 15 CRNZ 127.
[19] Lazarus is instructive because it shows the importance of distinguishing between threats of force directed to a person, and threats directed to property. Mr Lazarus successfully appealed a conviction of assault with a weapon. He was also convicted of, but did not appeal, a charge of intentional damage. Mr Lazarus was involved in an incident of road rage. Acting on the anger and frustration that he felt towards another driver of a motor vehicle, Mr Lazarus took a golf club from his vehicle, moved towards the other vehicle that by then was parked on the side of the
road, and used the golf club to break all of the other vehicle‟s windows. The charge of assault with a weapon was based on the perceived threat of this conduct to the occupants in the other vehicle.
[20] On appeal, it was argued for Mr Lazarus that whilst there was no challenge to him having intentionally applied force to the vehicle with a weapon, there was no evidence that he had intentionally threatened the passenger. At 129, Fisher J found that an assault must be based upon an intentional threat directed to a person:
It seems to me that implicit in the definition of assault in s 2(1) is the requirement that where the assault is based upon a threat, the making of the threat must be both intentional and directed to a person as distinct from mere property. It does not seem sufficient that the defendant has intended to carry out some act, and that a consequence of that act has turned out to be an unintended threat to a person.
[21] In Lazarus, the prosecution had relied on a decision in R v Kerr [1988] 1
NZLR 270 in which the Court of Appeal had found that it was enough for assault if one person had committed a threatening act or gesture displaying hostility towards another, even though the other was unaware of the threat. At 274, McMullin J had said: “The mens rea is the intention to do the threatening act; the actus reus is the doing of it”.
[22] Fisher J accepted that taken in isolation, this statement in R v Kerr might indicate that the mens rea is the intention to perform the act, as distinct from the intention that it threaten the victim. However, Fisher J considered that as the focus in Kerr was upon the relevance of the victim‟s appreciation of the threat, not the defendant‟s intention, Kerr could be read consistently with the defendant having consciously threatened the victim. Fisher J also concluded that the statutory wording of the offence could be interpreted in a way which resulted in the word “intentionally” being taken to qualify the latter word “threatening”, as well as the more proximate words “applying or attempting to apply force to the person”. He preferred the former interpretation, as it fitted the established principles of criminal law, whereas the latter interpretation did not:
In the absence of clear words to the contrary, one would normally expect that mens rea will be necessary with respect to all the intentional elements for fundamental crimes of this nature. There must be many acts which would be
viewed innocently by the actor, and rightly so, even though an unintended consequence may be that another is thereby threatened. Suppose a man innocently removes a pick-axe from the boot of his car to take it into a shop to have it repaired but in the process a woman on the footpath feels threatened, or appears to be threatened, by the expectation that it will be used as a weapon against her. I cannot believe that behaviour of this kind was ever intended to amount to an assault. There could surely be no question of absolute or strict liability in this area. I take the law to be that only when a person intends that his or her act will threaten another could that species of assault be committed.
[23] Having reached a conclusion on the appropriate interpretation of the definition of assault in the Crimes Act and the relevant legal principles to be applied, Fisher J then applied those principles. He concluded that the question was whether it had been established that when Mr Lazarus applied force to the windows of the other vehicle, he intended that one or more of its occupants would be or would feel personally threatened. In the District Court, Mr Lazarus had given evidence that his intention was to damage the window, and there was no evidence to contradict that. Fisher J considered that whilst Mr Lazarus‟ account was “not entirely unequivocal”, the onus was on the prosecution. There was no finding that the appellant intended to threaten the passengers. Further, as there was no other evidence as to the appellant‟s intentions, except the inferences that might be drawn from his conduct, there was nothing in the judgment at first instance to suggest that the appellant‟s explanation was disbelieved. This led Fisher J to conclude that on appeal, the only proper approach was to proceed on the assumption that Mr Lazarus intended to damage the vehicle windows but did not intend to apply force to, or threaten, the occupants. Based on the principles discussed earlier, the Judge concluded that the conviction of assault with a weapon charge could not stand, and allowed the appeal.
[24] I concur with the reasoning of Fisher J in Lazarus, and propose to apply the same to this appeal.
[25] Here, Mrs Polounina will be found guilty of common assault if:
(a) She threw the ladder at Constable Sayer (indirect application of force, actus reus), while intending to hit him (mens rea); or
(b)She threw the ladder as a threat (threatened application of force, actus reus) while intending to threaten Mr Sayer (mens rea).
[26] Though Mrs Polounina has admitted to throwing the ladder, there is no admission that she intended the ladder to hit Mr Sayer or that she intended to threaten him. If she threw the ladder out of anger or frustration with the intention of removing the ladder from the balcony, while being reckless as to any potential injury to other persons or the impact of her actions on those witnessing them, the mens rea requirement will not be satisfied and the charge will fail.
[27] Part of Mrs Polounina‟s defence is that Mr Sayer engineered the incident out of spite. Though provocation is not a defence to common assault, evidence that Mr Sayer‟s provocative behaviour evoked a frustrated and angry response from Mrs Polounina may be relevant to undermining the prosecution case when it comes to proof of mens rea. Such evidence would lay down an evidential foundation to support the explanation that she became so angry and frustrated by Mr Sayer‟s behaviour that she wanted to remove his ladder from the balcony and did so in the quickest and most cathartic way possible.
[28] When Mrs Polounina‟s defence is viewed in this way, the following becomes clear:
(a) The information regarding the Polounines‟ earlier complaints about Mr Sayer may be relevant to Mr Sayer‟s credibility, should he refute or attempt to make light of any suggestion of ongoing disputes between himself and the Polounines. This will be especially so if any of the earlier complaints involve allegations of Mr Sayer entering the private property of another unit holder or using common property in a selfish way.
(b)The information of the earlier complaints by Mr and Mrs Polounine against Mr Sayer may have relevance as part of the narrative of the present alleged offending.
(c) The information regarding complaints by third parties will be relevant as propensity evidence if it tends to show a propensity on the part of Mr Sayer to act in an abrasive way (see s 40 of the Evidence Act
2006).
[29] The next question is whether any of these satisfies the meaning of “relevant”
in s 14(2) of the Criminal Disclosure Act.
[30] Section 8 of that Act defines “relevant” as meaning any information or exhibit “that tends to support or rebut, or has a material bearing on, the case against the defendant”. Adams on Criminal Law Governing Principle of Disclosure (online ed) at [CD8.01] states that the position under the Act “essentially replicates the common law position, which required disclosure of „material evidence‟: R v Mason [1976] 2 NZLR 122 (CA)”. Thus, the decisions on common law disclosure remain helpful.
[31] Prior to the passing of the Act, the scope of criminal disclosure had increased since R v Mason. In 2006, in R v Lologa HC Auckland CRI-2005-092-7700,
8 December 2006, Baragwanath J outlined the scope of disclosure:
[5] It is now the practice in New Zealand for the Crown to make available to the defence virtually its entire file including such items as the notebooks of police officers which were previously withheld from what is in truth a discovery process.
[6] I think it may fairly be said that the Crown‟s practice in criminal cases is now comparable with that in civil cases where the discovery obligation is controlled by The Peruvian Guano Case (1882) 11 QBD 55
CA. That requires discovery of all documents which are or were in the possession or power of the discovering party and which might lead to a train of inquiry that could help or hinder either side‟s case.
[32] The Criminal Disclosure Act provides expressly for two forms of disclosure. The first in s 13 concerns disclosure that the prosecution is obliged to make of its own volition. The common law test in R v Price CA 2/92, 29 June 1992 is applicable here. This requires the prosecution to disclose what, within the reasonable contemplation of the prosecutor, would be of assistance to the defence. In Price, the Court of Appeal rejected the argument that the information should have been disclosed because it had not specifically been sought and it was not information
that the prosecution could have been expected to realise would be wanted by the defence. Such a test is understandable, as the prosecution cannot be expected to know everything that the defence might need. But under s 14, the information sought must be identified by the defence. With this type of disclosure, when it comes to the Court having to make a determination on whether or not to order disclosure, I find the view expressed by Baragwanath J in Lologa to be helpful. I also consider that at the stage when considering disclosure under s 14, the Court should not consider admissibility issues that may arise under the Evidence Act 2006. That the defence may face obstacles when it comes to introducing the disclosed material into evidence, or otherwise making use of it at the defended hearing, is a separate issue that would be premature to consider at this stage. Relevance under s
14(2) should be determined by reference to whether the information sought will help the defence case or hinder the prosecution case.
[33] Thus, I propose to approach the question of relevance under s 14(2) by considering whether the requested information can be reasonably viewed as being of assistance to Mrs Polounina‟s defence. But before considering this, I need to deal with the question of whether information that is only relevant to credibility can ever be relevant under s 14(2).
[34] Prior to the passing of the Act, in R v Marshall [2004] 1 NZLR 793 at [41], the Court of Appeal recognised that there was a common law duty on the Crown to disclose to a defendant any significant material that may affect the credibility of a witness (emphasis added):
There is, however, a common law duty on the Crown to disclose to an accused person who is facing a criminal charge any significant material which may affect the credibility of a prosecution witness. The principle was summarised in those terms in a judgment of the English Court of Appeal delivered by Steyn LJ in R v Brown (Winston) [1994] 1 WLR 1599, 1607, his approach subsequently being upheld in the House of Lords: [1998] AC 367,
377. His judgment cited, as an illustration of the principle, the rule that the prosecution is obliged to disclose previous convictions of a prosecution
witness, as articulated by Cooke P in delivering the judgment of this Court in
Wilson v Police [1992] 2 NZLR 533. Steyn LJ referred with approval to this passage of that judgment:
“As to the kind of conviction within the scope of the duty, the test must be whether a reasonable jury or other tribunal of fact
could regard it as tending to shake the confidence in the
reliability of the witness. (p 537)”
Steyn LJ then added:
“The test may be capable of being applied to other collateral material which could affect the credibility of a prosecution witness.”
To date in New Zealand, however, no hard and fast rules have been laid down which would expand to that extent the principle identified in Brown. There will be exceptions to the general application of the rule but as explained above it is apt to cover the present case.
[35] In Marshall, the application of this principle led to the Court of Appeal finding that the lower court was wrong to refuse to order disclosure of medical notes of a medical practitioner who had seen and examined a rape complainant. Despite the very sensitive nature of the information, the Court of Appeal recognised that references in the doctor‟s notes to the complainant‟s attitude to making her complaint, her refusal to submit to an internal medical examination, and the absence of overt signs of trauma were inconsistent with her account to others of the alleged sexual offending. The information was seen as relevant to consent, and the Court of Appeal considered that the defence may have conducted a more effective cross- examination than what had been in fact undertaken, had the information been available.
[36] The Court of Appeal took a different view when it came to the non-disclosure of notes taken by the Child, Youth and Family Service (CYFS) of a prior complaint of sexual offending, as these were not requested by the defence. The Court of Appeal concluded at [54] that the possible exaggeration by the complainant of the circumstances of the present offending might provide a basis for ordering disclosure of the prior complaint to CYFS. However, no request was made for this information. The Court of Appeal considered that this information was not something that the Crown should have realised was required to be disclosed under its common law obligations. Since the appeal was going to be allowed and a new trial ordered, the Court of Appeal made no further comment about the information, as the question of disclosure (if still in dispute at any new trial) would need to be resolved by a court hearing.
[37] Since the Act was passed, there is commentary in Garrow & Turkington's Criminal Law in New Zealand Disclosure by Prosecutor (online ed) at [16.1] that suggests that the Court of Appeal has rejected the approach taken in Marshall. Citing M v R [2011] NZLA 84 as authority, the authors state (emphasis added):
The section does not require the prior disclosure by the Crown of material to be relied upon to challenge the credibility or reliability of any witness whether expert or otherwise. Nor does the Act provide that there is an obligation to disclose information reflecting on the credibility of a witness who is not to be called by the prosecutor to give evidence but who may be called by the defendant to do so. Furthermore, there is no obligation to disclose material prepared by the prosecution to assist in the conduct of the trial, nor any obligation to disclose information that is publicly available where it is reasonably practicable for the defence to obtain that information. Litigation privilege may also attach if the relevant information is prepared for the dominant purpose of preparing for a proceeding or one that is in prospect: M v R [2011] NZCA 84 at [25].
[38] At [24] in M v R, the Court of Appeal states (emphasis added):
[24] While accepting that s 16 of the Act did not generally require disclosure of information bearing on the credibility of a witness, Mr Cato submitted that an expert witness is in a different category. He submitted that if an expert witness is to be cross-examined as to credit, then the proper practice is to make prior disclosure of that intention including any material which might be relied upon for that purpose. That would provide a fair opportunity to the defence to meet any material designed to impeach the expert standing of the witness.
[39] The comment in [24] regarding there being no general requirement in s 16 to disclose information bearing on the credibility of a witness could, when read out of context, be understood to suggest that the common law principle applied in Marshall was no longer applicable.
[40] However, I consider that in the next passage in M v R, it becomes clear that at [24], the Court of Appeal was referring to the question of whether the prosecution is under an obligation to disclose information relating to the credibility of a defence witness which the prosecution intends to use in cross-examination to undermine that witness‟s credibility (footnotes omitted, emphasis added):
[25] We accept Ms Markham‟s submission on behalf of the Crown that the Criminal Disclosure Act does not require the prior disclosure by the Crown of material to be relied upon to challenge the credibility or reliability of any witness whether expert or otherwise. The Act provides that there is no obligation to disclose information reflecting on the credibility of a witness
who is not to be called by the prosecutor to give evidence, but who may be called by the defendant to give evidence;3 there is no obligation to disclose material prepared by or for the prosecutor to assist the conduct of the trial;4 there is no obligation to disclose information that is publicly available if it is reasonably practicable for the defence to obtain the information;5 and litigation privilege may attach if the relevant information is prepared for the dominant purpose of preparing for a proceeding or an apprehended proceeding.
[41] In [25], the Court of Appeal has qualified its earlier reference in [24] regarding disclosure of evidence that is only relevant to credibility. This qualification is apparent from the reference to the information being relied upon by the Crown to challenge the credibility or reliability of a witness.
[42] In [25], the Court of Appeal can only have been talking about disclosure of information the prosecution intended to use to challenge the credibility of a defence witness as, except for a hostile witness, a party never challenges its own witness: see s 37(4) and s 94 of the Evidence Act 2006. Thus, M v R should not be read as supporting the view that the prosecution is not required to disclose information that is only relevant to the credibility of any witness.
[43] This view of M v R fits with the circumstances in that case. The Court of Appeal was dealing with an appeal based on an argument that the Crown should have disclosed before trial information on a defence expert witness that the Crown intended to use to attack the credibility of that witness. The concession from M‟s counsel regarding disclosure of information relevant to credibility needs to be understood in the context of this circumstance. His argument was that, in general, such disclosure would not be required, but where the witness was an expert, it should be given. This was rejected by the Court of Appeal, which found that information the prosecution possessed that was relevant to challenging the credibility of a defence witness did not need to be disclosed before the trial. This is completely different from information the prosecution has that is relevant to the credibility of prosecution witnesses.
[44] I do not consider that the Court of Appeal in M v R intended to reverse the principles expressed in Marshall. Had that been the case, I consider that the Court in
M v R would have expressly referred to Marshall and would have taken the time to express why it was that the approach in Marshall was no longer to be the law.
Application of legal principles to the requested information
[45] I will deal with each category of requested information in turn.
Past complaints by Mr and Mrs Polounine
[46] The past complaints by Mr and Mrs Polounine have not been upheld. The police reports relate this to a lack of evidence to establish the complaints. This is because Mr Sayer has disputed the Polounines‟ version of events and there is no other evidence to corroborate either side‟s version. Mr and Mrs Polounine will be aware of the material they have sent to the police either directly or through their solicitors. Insofar as their earlier complaints are relevant to the narrative of what occurred on the day of the alleged assault, Mrs Polounina already has this information in her possession. I cannot see how the various police reports and other documents, all of which are inconclusive as regards Mr Sayer‟s conduct, can be relevant to propensity or veracity. I consider that the District Court Judge was right to conclude that underlying material leading to previous complaints not being upheld was not relevant under s 14(2).
Complaints by third persons
[47] There are three complaints by third persons, being persons independent of Mr and Mrs Polounine. Each complaint was resolved by conciliation. I consider that such an outcome is different to the complaint not being upheld. I consider that for the complaint to result in conciliation, the police must have found at least some aspects of the complaint to have been substantiated. I consider, therefore, that a conciliated outcome is somewhat similar to a complaint being upheld. I consider that this factor favours disclosure.
[48] Of the three complaints, the file for one of them (060329/8038 complaint received on 28 March 2006) cannot be found. If the information is no longer
available, there is no obligation to disclose (s 15). Furthermore, having read the available brief summary of the complaint, this information does not appear to have any relevance to Mrs Polounina‟s defence. It simply shows that Mr Sayer, whilst on duty, had difficulty accepting a householder‟s explanation that the police had gone to the wrong house. As this summary is all the information that remains available, it is difficult to see how it could be helpful to the defence.
[49] However, the other two complaints, both of which resulted in a conciliated outcome, appear to me to be relevant to Mrs Polounina‟s defence.
[50] One complainant (091201/9471 complaint received on 1 December 2009) was upset by the manner in which Mr Sayer responded when the complainant gave his occupation in Te Reo Mäori, and continued to do so when Mr Sayer queried this. The complainant contended that Mr Sayer had been rude and abusive and made derogatory remarks about Te Reo Mäori.
[51] In the case of the other complainant (100520/8515 complaint received on
20 May 2010), she was upset about how Mr Sayer had responded to her elderly Chinese father who had some difficulty with the English language. She alleged that Mr Sayer had said to her words to the effect of “teach your father English”.
[52] Both complaints reveal a pattern of conduct on the part of Mr Sayer where other people have found him to be abrasive and rude. If Mr Sayer has such a propensity, it would assist the defence in establishing that Mrs Polounina was angered by Mr Sayer and wanted rid of him and his ladder from the balcony. Hence, when he left the ladder behind, she threw it from the balcony in a fit of anger.
[53] The evidence of the other complaints may also be relevant to Mr Sayer‟s credibility, should he reject any suggestion that he can act in a manner that others find abrasive and rude. Credibility is already a likely issue in this case as, whilst the police summary caption states that Mr Sayer said, “do not throw the ladder at me please”, another police document records a witness saying she heard Mr Sayer say, “don‟t throw the ladder”. The latter statement may be consistent with the ladder simply being thrown from the balcony.
[54] I consider, therefore, that information regarding complaints 091201/9471 and
100520/8515 should be disclosed. However, I also consider that prima facie the privacy of the persons who made the complaints and persons associated with them should be protected. In the first instance, therefore, the information should be anonymised when it comes to identifying the complainants. This restriction is made pursuant to s 16(1)(k), as I consider that principle 11 of the Privacy Act protects this information. Whilst that Act‟s protection of privacy can be overridden where to do otherwise would prejudice the maintenance of law, this does not apply here. If the defence considers, having reviewed the information, that the identities of the complainants are relevant, their identities can be the subject of a further application.
[55] Some of the information I viewed is repetitive. Some of the information is marginally relevant (if at all relevant) when viewed in isolation, but it is helpful insofar as it assists with placing other relevant information in context. Rather than pick out specific pieces of information and risk losing the overall picture the information provides, I consider that all information that relates to a complaint that I consider relevant should be disclosed. I have, however, excluded disclosure of material that relates to Mrs Polounina‟s requests for the information, attempts to summarise the primary information, or information that is purely police record keeping of administrative matters. This is because this material has no relevance whatsoever when it comes to assisting Mrs Polounina‟s defence.
[56] Following the appeal hearing, Crown Counsel helpfully collated the material and page numbered each page to make it convenient for the Court to identify the information. I have referred to the information by reference to the file number and the page numbers inserted by Crown Counsel.
[57] I consider that for each complaint, the following should be disclosed:
(a) Complaint 091201/9471
The information I have viewed regarding this complaint is contained in case file 091201/9471 and is numbered 8-29, 31-49, 60, 65-71, 74-
80. This includes but is not limited to:
(i) Letter of complaint dated 20 November 2009; and
(ii)The “report form” prepared by the officer investigating the complaint; this is a 14 page document prepared by Sergeant K M Hoshek.
(b) Complaint 100520/8515
The information I have viewed regarding this complaint is contained in case file 100520/8515 and is numbered 29-41. The material numbered 1-29 is administrative information and other information that relates to the alleged current offence. It has nothing to do with the complaint. The information to be disclosed includes but is not limited to:
(i) The complaint 1776:LMT;
(ii)The letter of 14 May 2010 to the complainant from the Independent Police Conduct Authority (IPCA: 09-1776:Imt); and
(iii) The letter of 18 June 2010 to the complainant from the
New Zealand Police.
[58] Sections 16 and 17 provide further reasons under s 14(2) for not disclosing information to the defence. I do not consider that any of those reasons is applicable in the present case.
[59] Following the hearing, Mrs Polounina filed a memorandum referring to the additional disclosure that she sought from the prosecution. The prosecution opposes this on the ground the appeal should be confined to the disclosure that was dealt with by the District Court. This is an appeal from a District Court decision. In the absence of agreement by the prosecution, I am not prepared to consider requests for disclosure that were not considered by the District Court and therefore are not properly the subject of the appeal.
Result
[60] The appeal is allowed insofar as information identified in [57] herein is to be disclosed to the defence.
Duffy J
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