R v B
[2014] NZHC 2870
•18 November 2014
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
CRI-2014-085-4184 [2014] NZHC 2870
THE QUEEN
v
B
Hearing: 14 November 2014 Counsel:
S C Carter for Crown
D A Ewen for DefendantJudgment:
18 November 2014
RESERVED JUDGMENT OF MACKENZIE J
I direct that the delivery time of this judgment is
5.00 pm on the 18th day of November 2014.
Solicitors: Crown Solicitor
R v B [2014] NZHC 2870 [18 November 2014]
[1] The defendant is to stand trial on a charge of arson arising out of a fire at the premises of Kiwi Storage on Rongotai Road. As part of the investigation, a search warrant was obtained for the defendant’s home. The application for the search warrant has been disclosed by the Crown under the Criminal Disclosure Act 2008 (the Act). The copy supplied was redacted to delete some information, which the Crown withheld under s 16(1)(b) of the Act, namely that disclosure of the information is likely to endanger the safety of any person. Counsel for the defendant is of course unaware of the information, and is accordingly unable to form his own view as to whether or not s 16(1)(b) is properly engaged.
[2] To ensure that there is an independent consideration of that question, the parties have agreed that it would be appropriate for counsel for the defendant to file an application under s 30 of the Act so that the Court can consider, under s 30(2), whether the defendant is entitled to the disclosure of any of the redacted information. I must consider, under s 30(1)(a)(ii), whether the reasons invoked by the Crown under s 16(1)(b) apply, and under s 30(1)(b) if those reasons do apply, whether the interest protected by withholding the information is outweighed by other considerations that make it desirable, in the public interest, to disclose the information.
[3] Both counsel filed brief written submissions. Mr Ewen was hampered in his ability to make submissions by his lack of knowledge of the redacted information. In those circumstances both counsel have essentially left the matter to me for my consideration and decision.
[4] I have reviewed both the redacted application supplied to the defence, and the unredacted application on which the warrant was issued. The redactions fall into three categories:
(a) the deletion of an entire section of the application under the heading
“Confidential Information”;
(b) deletion of some, but not all, of the information in the application
under the heading “Informer Pachino”; and
(c) deletions, in the summary at the end of the application, of the summary of the earlier redacted information.
[5] Having carefully considered this material, I am satisfied that the withholding of the information under s 16(1)(b) was justified. I am constrained by the circumstances from elaborating on my reasons for having reached that conclusion. I record only that in my view, the assessment that disclosure is likely to endanger the safety of a person was appropriate.
[6] I am also satisfied that the safety interest protected is not outweighed by other considerations that make it desirable, in the public interest, to disclose the information. I am able to explain briefly my reasons for that conclusion. The disclosure of the information has led to the issue of a search warrant. The principal public interest consideration that I have taken into account, under s 30(1)(b), is the defendant’s fair trial rights, and in particular whether the redacted information might enable the defendant to mount a challenge to the issue of the warrant, so as to challenge the admissibility of any evidence obtained under it. The information in the redacted application does not appear to me, on its face, to provide grounds for such a challenge. The addition of the redacted information would, on my assessment, strengthen rather than weaken the case for the issue of the warrant. I therefore conclude that fair trial considerations for the defendant do not outweigh the interests of safety.
[7] For these reasons, the application under s 30 is refused.
“A D MacKenzie J”
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