R v Johnson
[2023] NZHC 2948
•20 October 2023
ORDER PROHIBITING PUBLICATION OF NAME, ADDRESS,
OCCUPATION OR IDENTIFYING PARTICULARS OF PERSON KNOWN AS “WITNESS A” PURSUANT TO S 202 CRIMINAL PROCEDURE ACT 2011.
SEE
IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY
I TE KŌTI MATUA O AOTEAROA TE PAPAIOEA ROHE
CRI-2017-054-850 CRI-2017-054-2016
[2023] NZHC 2948
THE KING v
JOSEPH WILLIAM JOHNSON CHEA BRATTLE-HEMARA HAENA
Hearing: 20-21 March 2023 Counsel:
S C Baker for Crown
C W J Stevenson and S J Parry for Johnson E A Hall and R E O’Hagan for Hemara
Judgment:
20 October 2023
JUDGMENT OF ELLIS J
[1] In 2017 Mr Joseph Johnson and Mr Chea Hemara1—together with Mr William Hines—were charged with murdering Mr Palmiro (Powsa) MacDonald.2 The Crown
1 At an early stage of the criminal proceedings Mr Brattle-Hemara Haena indicated he preferred to be known as Mr Hemara.
2 Mr Johnson was charged with the murder of Mr MacDonald on 14 March 2017. Mr Hemara was charged with murder on 30 June 2017.
R v JOHNSON & ANOR [2023] NZHC 2948 [20 October 2023]
case was that Mr MacDonald was killed on or about 23 March 2016, although his body was not found for another six months.3
[2] Mr MacDonald was a patched member of the Nomads. Mr Johnson was a patched member of the Mongrel Mob. While Mr Hemara was not a patched member nor unequivocally established to be an associate of any gang, he has historic and present-day family gang connections, including with the Head Hunters. Mr Hines is also associated with the Head Hunters, although was formerly associated with the Nomads. Mr Hines and Mr Hemara are first cousins.
[3] As is often the case in criminal proceedings involving an inter-gang backdrop, the path to trial—and later the trial itself—were littered with issues about witness anonymity and prison informants. Such issues are often fraught and difficult to navigate for all concerned. Those matters, together with the sheer magnitude of the file and of the Police investigation into Mr MacDonald’s disappearance and death, gave rise (among other things) to disclosure problems. As a result of some of these, in May 2018, Mr Hemara’s then counsel made an application for costs. I directed that the application would be dealt with after trial.4
[4] The charge against Mr Hines was dismissed in August 2018.5 The eight-week trial of Messrs Johnson and Hemara took place in mid-2019. The jury was hung, and a retrial was ordered. But before that retrial could take place, both Mr Hemara and subsequently Mr Johnson were also discharged, albeit for different reasons. The prosecution came to an end.
[5] But not so the question of costs. Instead, as a result of further disclosure matters—including in relation to the events that led to the dismissal of the charge against Mr Johnson—further costs issues were raised.
3 There is no doubt that Mr MacDonald was murdered. The principal issue at trial was whether Mr Johnson and/or Mr Hemara were responsible for, or involved in, his death.
4 R v Hines HC Palmerston North, CRI-2017-054-850, CRI-2017-054-2016, CRI-2017-054-2782,
15 June 2018 (Minute of Ellis J).
R v Hines HC Palmerston North, CRI-2017-054-850, CRI-2017-054-2016, CRI-2017-054-2782,
24 August 2018 (Minute of Ellis J); the condition on Mr Hines’ discharge was then removed in
R v Hines HC Palmerston North, CRI-2017-054-850, CRI-2017-054-2016, CRI-2017-054-2782,
11 September 2018 (Minute of Ellis J).
[6] Following their respective discharges, the legal representation of both Messrs Johnson and Hemara changed. It took their new counsel time to get up to speed with the file and there was ongoing wrangling about the detail and scope of the costs application.6 After considerable delay, there was a hearing earlier this year.
[7] Central to the matters now at issue are the disclosure issues surrounding the evidence of “Witness A”.
[8] Apart from Messrs Johnson and Hemara themselves, I was the only person involved in the hearing who had been present at the trial or involved in the relevant pre and post-trial matters.
CRIMINAL DISCLOSURE
[9] Prosecutorial disclosure is inextricably linked to fair trial rights: a person accused of a crime must know the nature and extent of the allegations against them in order to mount an adequate defence. Disclosure therefore engages the rights set out in ss 24(d) and 25(a) of the New Zealand Bill of Rights Act 1990 (the NZBORA). The fair trial right contained in s 25(a) is absolute and cannot be subject to reasonable limitations under s 5 of the NZBORA.7
[10] Relatedly, criminal disclosure balances the general public interest and the rights of individual citizens, ensuring that defendants are not disadvantaged by the imbalance of resources available to them as against the resources of the state.8 In other words, disclosure also ensures an “equality of arms”.9
6 For example, although at an earlier point, costs under both s 364 of the Criminal Procedure Act 2011 (the CPA) and the Costs in Criminal Cases Act 1967 (the CCCA) had been sought, only the s 364 application was ultimately maintained.
7 King v Attorney-General [2022] NZHC 695.
8 Te Aka Matua o te Ture | Law Commission Criminal Prosecution (NZLC R66, 2000) at [193] [Criminal Prosecution Report].
9 Her Majesty’s Advocate v Murtagh (The High Court of Justiciary Scotland) [2009] UKPC 36, [2011] 1 AC 731 at [10] per Lord Hope.
[11] Counsel for Mr Johnson, Mr Stevenson, submitted that there is now compelling evidence that non-compliance with disclosure obligations is a leading source of miscarriages of justice in cognate jurisdictions.10 For example, the Crown Prosecution Service Inspectorate in the United Kingdom observed in its 2017 report that the Criminal Cases Review Commission had witnessed a steady stream of miscarriages of justice caused by failure to disclose information that would have assisted defendants.11
[12] Similar observations have been made by the courts in the United States, where breach of criminal discovery obligations are known as “Brady” violations.12 For example, in United States v Olsen, the Chief Judge of the United States Court of Appeals for the Ninth Circuit said:13
There is an epidemic of Brady violations abroad in the land. Only judges can put a stop to it. …
… Brady violations have reached epidemic proportions in recent years, and the federal and state reporters bear testament to this unsettling trend.
When a public official behaves with such casual disregard for his constitutional obligations and the rights of the accused, it erodes the public’s trust in our justice system, and chips away at the foundational premises of the rule of law. When such transgressions are acknowledged yet forgiven by the courts, we endorse and invite their repetition.
[13] And criminal disclosure has also been in the spotlight recently in New Zealand. Since around the time of Mr MacDonald’s death there has been a small string of significant cases arising from disclosure failings in the context of the prosecution of serious criminal charges. The District Court, this Court, and the Court of Appeal have been called on to address the costs (and other) implications of those failings in at least four such cases.14
10 Mr Stevenson has previously argued this point before the Court of Appeal in R v Lyttle [2022] NZCA 52. The existence of such “compelling evidence” was accepted by the Court of Appeal at [32].
11 HM Crown Prosecution Service Inspectorate Making it Fair: A Joint Inspection of the Disclosure of Unused Material in Volume Crown Court Cases (July 2017) at [2.1].
12 In reference to the case of Brady v Maryland 373 US 83 (1963).
13 United States v Olsen 737 F 3d 625 (9th Cir 2013) at 626 and 631–632.
14 See Bublitz v R [2019] NZCA 379 and R v Lyttle, above n 10 (the judgment in R v Lyttle also decided the actions in R v S (CA272/2020) and R v Singh (CA710/2020)). The decisions regarding Mr Bublitz, S, and Mr Singh involved costs applications under both s 364 of the CPA and the CCCA. The matter regarding Mr Lyttle involved only s 364.
[14] In R v Lyttle, however, the Court of Appeal was not prepared to accept— without more than anecdotal evidence—that non-disclosure is a widespread problem in the New Zealand criminal justice system.15
[15] Although counsel for the Messrs Johnson and Hemara continue to maintain that the problems here are similarly endemic, that is not a matter I need to decide. It suffices for present purposes to acknowledge that the Courts here recognise the fundamental importance of timely and complete disclosure and have been prepared to act when the relevant obligations are breached. Moreover, it may be noted in passing that on the recommendation of the High Court Criminal Disclosure Working Group,16 the Chief High Court Judge has recently issued a Practice Note on criminal disclosure.17 The Working Group was established to consider if there were any systemic problems with timely disclosure in this country and, if not, to identify any main non-systemic causes. The Working Group concluded the statutory disclosure framework was adequate, but there were issues about its operation in practice.18 The Practice Note therefore puts in place a process that the Working Group recommended, including the implementation of a Judicial Disclosure Conference as a standard pre-trial step in every criminal trial.19 The stated purpose of the Practice Note is “to put measures in place to avoid delay in making disclosure from disrupting criminal trials”.20
15 R v Lyttle, above n 10, at [34].
16 The Working Group was chaired by a High Court Judge and comprised representatives of the Crown and criminal defence bar.
17 2023 Practice Note “Criminal Disclosure in High Court Trials” HCPN 2023/1 (effective from 8 March 2023).
18 Chief High Court Judge The High Court of New Zealand | Te Kōti Matua o Aotearoa: Annual Report 2022 (10 July 2023) at 19.
19 2023 Practice Note, above n 17, at [3].
20 2023 Practice Note, above n 17, at [2].
The regulatory framework
Criminal Disclosure Act 2008
[16] A comprehensive statutory code governing criminal disclosure was recommended by Te Aka Matua o te Ture | The Law Commission (the Commission) in 2000.21 This recommendation was eventually realised, in the form of the Criminal Disclosure Act 2008 (the CDA).
[17] The purpose of the CDA 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”.22
[18] The CDA makes it clear that responsibility for disclosure lies with the “prosecutor”, a word relevantly defined in s 6(1) of the Act as meaning “the person who is for the time being in charge of the file or files relating to a criminal proceeding”. That is a point I return to later.
[19] The operative provisions of the CDA were summarised by the Court of Appeal in R v Lyttle as follows:23
[27] The Criminal Disclosure Act adopted a three-step process under which prosecuting authorities provide disclosure. The three steps reflect an escalating level of specificity in the nature of the information that prosecuting authorities are required to disclose.
[28] The first stage is initial disclosure under s 12(1), together with any additional initial disclosure specifically requested under s 12(2). Amongst the information that must be disclosed pursuant to s 12(1) is a summary that fairly informs the defendant of the facts on which it is alleged that an offence has been committed and the facts alleged against the defendant. More detailed information may be sought by the defendant under s 12(2) of the Criminal Disclosure Act.
[29] The second step is full disclosure under s 13, which requires the disclosure of any relevant information and sets out eight categories of information that must be disclosed, including, among other things, a copy of any statements made by prosecution witnesses, copies of briefs of evidence for prosecution witnesses, convictions of prosecution witnesses that may
21 Prior to the commencement of the CDA, the obligations of the prosecution to disclose information to the defence were governed—somewhat haphazardly—through both legislation and common law.
22 CDA, s 3.
23 Above n 10 (citations omitted).
affect the credibility of the witnesses, a list of all exhibits that the prosecutor proposes to introduce as evidence, and a copy of all relevant information supplied to the prosecutor by a person or persons whom the prosecutor considered calling to give evidence but elected not to do so.
[30] The third step is particularised disclosure requested under s 14. At any time after the duty to make full disclosure has arisen the defendant may request that the prosecutor disclose any particular information, identified by the defendant with as much particularity as possible. The prosecutor must then disclose the requested information unless the information is not relevant. The information may also be withheld under the Act if the request is frivolous or vexatious.
[20] The CDA also contains some mechanisms designed to ensure compliance with the relevant obligations. These include court orders for disclosure, the exclusion of evidence, adjournment of the trial, and dealing with the matter as contempt of court.24 But other compliance mechanisms exist outside the CDA. A trial may be aborted if disclosure problems give rise to a reasonable apprehension of a miscarriage of justice.25 The failure of a prosecutor (or a defendant) to comply with the requirements of the CDA may also be taken into account at sentencing.26 A lawyer who fails to comply with disclosure obligations may be subject to disciplinary action pursuant to the Lawyers and Conveyancers Act 2006.27 And most relevantly, an award of costs against the party in breach can be made under s 364 of the CPA.
[21] An application for costs under s 5 of the Costs in Criminal Cases Act 1967 (CCCA) also affords a potential remedy, although that section is predicated on a defendant having “succeeded” and is more generally framed.28 The focus of the CCCA is on the conduct of the prosecution more broadly rather than specifically disclosure focused. And as footnoted earlier, no claim under the CCCA was ultimately pursued in this case and so it is not necessary to consider that statute further.
24 As set out in ss 30, 34, 34A, and 29(6) and 32(3) of the CDA respectively.
25 As occurred at the earlier stages of both Bublitz and Lyttle; the reasons for the decisions to abort were given in R v Bublitz [2017] NZHC 1059 and R v Lyttle [2018] NZHC 2689 respectively.
26 Sentencing Act 2002, s 9(2)(fb).
27 Where non-compliance may qualify as misconduct pursuant to s 7 of that Act.
28 By contrast, under s 364(6) of the CPA, whether or not a defendant is responsible for the offending and the ultimate outcome of a prosecution has no bearing on whether a costs order should be made: Bublitz v R, above n 14, at [39]; and R v Lyttle, above n 10, at [13]–[14].
Criminal Procedure Act 2011
[22]Section 364 of the CPA provides:
(1)In this section,—
costs order means an order under subsection (2)
procedural failure means a failure, or refusal, to comply with a requirement imposed by or under this Act or any rules of court or regulations made under it, or the Criminal Disclosure Act 2008 or any regulations made under that Act
prosecution—
(a)means any proceedings commenced by the filing of a charging document; but
(b)does not include an appeal.
(2)A court may order the defendant, the defendant’s lawyer, or the prosecutor to pay a sum in respect of any procedural failure by that person in the course of a prosecution if the court is satisfied that the failure is significant and there is no reasonable excuse for that failure.
(3)The sum must be no more than is just and reasonable in the light of the costs incurred by the court, victims, witnesses, and any other person.
(4)A costs order may be made on the court’s own motion, or on application by the defendant, the defendant’s lawyer, or the prosecutor.
(5)Before making a costs order, the court must give the person against whom it is to be made a reasonable opportunity to be heard.
(6)A costs order may be made even if the defendant has not yet been convicted, or is eventually discharged, or the charge is dismissed.
(7)The court may make more than 1 costs order against the same person in the course of the same prosecution.
(8)The court may order that some or all of the amount ordered to be paid under a costs order be paid to any person connected with the prosecution.
(9)Subsections (2) to (8) do not limit or affect the Costs in Criminal Cases Act 1967.
[23] After considering the legislative history the primary purpose of s 364 was articulated by the Court of Appeal in Bublitz v R as being:29
… to avoid defaults which may delay or derail a trial, thereby ensuring the efficiency of the criminal justice system.
[24] As s 364(2) makes clear, in order to be a qualifying procedural failure, the failure must be “significant”. In R v Lyttle the Court of Appeal said:30
A significant procedural failure is one that causes avoidable delays in the administration of criminal justice. Such delays:
(a)risk undermining confidence in the criminal justice system;
(b)may cause incalculable stress and inconvenience to participants in the criminal justice system, including defendants and victims;
(c)cause the wasting of judicial and court resources that might otherwise be deployed on other cases; and
(d)waste preparation and hearing time of counsel, the parties, witnesses and other participants in the criminal justice system.
[25] The Court also noted that, in assessing the significance of a procedural failure, “the court will need to carefully assess the impact of the failure on the proceeding”.31
[26]The Court then went on to summarise the operation of s 364 as follows:32
(a)The policy that underpins awards made under s 364(2) of the CPA is the desire by the legislature to discourage inefficiency and unnecessary delays in the criminal justice system.
(b)The principal purpose of a costs order under s 364(2) of the CPA is to denounce failure to comply with procedural obligations, hold the defaulting person accountable and to deter similar breaches in the future.
(c)There may also be an element of compensation associated with an order made under s 364(2).
(d)Once the statutory criteria for making an order under s 364(2) are satisfied, considerable leeway is bestowed on the courts when determining the quantum of an order, provided the sum awarded is no
29 Bublitz v R, above n 14, at [35].
30 R v Lyttle, above n 10, at [11].
31 At [12].
32 At [14].
more than is just and reasonable in light of the costs incurred by the court, victims, witnesses and any other person.
(e)Other factors that may influence the amount of an award made under s 364(2) of the CPA include:
(i)the nature and frequency of the procedural failure;
(ii)if there was a failure to disclose evidence, the nature of the evidence that was not disclosed;
(iii)the nature of the charges faced by the defendant;
(iv)the seniority of those responsible for the procedural failures; and
(v)the extent to which it is necessary for the court to denounce the failures, hold the defaulting parties accountable and to deter similar breaches in the future.
[27] The focus in Bublitz v R and R v Lyttle was on significant disclosure failures that caused avoidable delays in the administration of criminal justice.33 In both those cases, the disclosure failures had caused the respective trials to be aborted. But, although delays caused by non-disclosure are undoubtedly a fundamental concern underlying s 364, non-disclosure can have other equally serious (“derailing”) effects. In the present case, and as discussed later, I accept to some extent that disclosure issues were causative of some delay, but they cannot fairly be seen as on a par with Bublitz v R or R v Lyttle. Instead, the more significant failures here gave rise to other fair trial concerns and, in particular, a concern that—had they not been uncovered by defence counsel—the trial(s) of Messrs Johnson and Hemara would have been unfair. In that sense the disclosure issues here are more akin to those in R v Chignell (which was not a costs case, but involved a successful appeal against conviction).34
The Solicitor-General’s 2013 Prosecution Guidelines
[28] Another relevant aspect of the relevant regulatory framework here is the Solicitor-General’s Prosecution Guidelines (the Prosecution Guidelines).35 The Prosecution Guidelines were issued in 2013, following the 2011 Review of Public
33 As can be seen from the Court’s description of a “significant procedural failure” at [11] of R v Lyttle (set out at para [24] above).
34 R v Chignell [1991] 2 NZLR 257.
35 Crown Law Solicitor-General’s Prosecution Guidelines (as at 1 July 2013) [the Prosecution Guidelines].
Prosecution Services.36 In his introduction to those Prosecution Guidelines the then Attorney-General explained the relevant constitutional context as follows
1.Under our constitutional arrangements, the Attorney-General is responsible through Parliament to the citizens of New Zealand for prosecutions carried out by or on behalf of the Crown. In practice, however, the prosecution process is superintended by the Solicitor-General, who, pursuant to s 9A of the Constitution Act 1986, shares all the relevant powers vested in the office of the Attorney-General. These arrangements have renewed force with the codification of the Solicitor-General’s responsibility for public prosecutions in s 185 of the Criminal Procedure Act 2011.
2.Unlike most similar jurisdictions, New Zealand has no centralised decision-making agency in relation to prosecution decisions. In respect of Crown prosecutions, prosecutions are mainly conducted by Crown Solicitors – private practitioners appointed to prosecute under a warrant issued by the Governor-General. …
[29] The Attorney-General went on to explain that the way in which the Solicitor-General retains oversight of and control over Crown prosecutions is through the Prosecution Guidelines. He said:
3.The absence of a central decision-making process underscores the importance of comprehensive guidelines, and the acceptance of core prosecution values. The Review of Public Prosecution Services also reiterated the important role the Solicitor-General’s Prosecution Guidelines play in setting core and unifying standards for the conduct of public prosecutions. The revised Guidelines reinforce the expectations that the Solicitor-General and I have of all prosecutors who prosecute on behalf of the State.
4.New Zealand is fortunate to be served by a public prosecution service that is professional, open, fair and responsible. These standards will continue through the day-to-day adherence to the values reflected in these Guidelines.
[30] The Prosecution Guidelines themselves state that they “reflect the aspirations and practices of prosecutors who adhere to the United Nations Guidelines on the Role of the Prosecutor (1990) and the International Association of Prosecutors Standards (1999)”.37 The former document provides:38
36 John Spencer Review of Public Prosecution Services (Crown Law, September 2011).
37 The Prosecution Guidelines, above n 35, at [2.3]; citing the Guidelines on the Role of Prosecutors (UN Doc. A/CONF.144/28/Rev.1) (7 September 1990); and International Association of Prosecutors Standards of Professional Responsibility and Statement of the Essential Duties and Rights of Prosecutors (23 April 1999).
38 At [12].
Prosecutors shall, in accordance with the law, perform their duties fairly, consistently and expeditiously, and respect and protect human dignity and uphold human rights, thus contributing to ensuring due process and the smooth functioning of the criminal justice system.
[31] The Prosecution Guidelines also state that compliance with them “is expected in respect of public prosecutions and Crown prosecutions” and is “a condition of the warrant held by each Crown Solicitor”.39 Moreover, and as noted by the Attorney-General in the passage quote above, the role of the Solicitor-General and her relationship with the Crown prosecutors is now statutorily recognised in the CPA. Thus, s 185 of the CPA provides:
185 Solicitor-General responsible for general oversight of public prosecutions
(1)The Solicitor-General is responsible for maintaining general oversight of the conduct of public prosecutions.
(2)In discharging his or her responsibility under subsection (1), the Solicitor-General may—
(a)maintain guidelines for the conduct of public prosecutions; and
(b)provide general advice and guidance to agencies that conduct public prosecutions on the conduct of those prosecutions.
(3)Nothing in this section requires the Solicitor-General to supervise the conduct of any particular public prosecution or makes the Solicitor-General responsible for the conduct of any public prosecution.
[32] Section 187 of the CPA provides that “[t]he Solicitor-General must assume responsibility for and conduct every Crown prosecution from the time or stage in the proceedings prescribed in regulations” but that this duty may be performed by any Crown prosecutor.40 And s 188 states:
39 The Prosecution Guidelines, above n 35, at [1.2] and [2.2]; I note that—except where providing quotations—I refer to the Crown Solicitor in this case as the Crown prosecutor, who are one and the same. This is because the CDA uses the term ‘prosecutor’ in detailing disclosure obligations, and s 364 of the CPA also uses the term ‘prosecutor’ for the purpose of costs applications under that section.
40 A “Crown prosecution” is defined by reg 4 of Crown Prosecution Regulations 2013 as including a proceeding for a category 4 offence. Murder is a category 4 offence.
188 Duty of Crown prosecutor to comply with Solicitor-General’s directions
A Crown prosecutor who conducts a Crown prosecution under section 187 must conduct that prosecution in accordance with any directions given by the Solicitor-General (either generally or in that particular case).
[33] The framing of the s 188 obligation is wide (“any directions”, including those given “generally”) and logically encompasses the Prosecution Guidelines. In other words, s 188 appears to have created a legal duty incumbent on Crown prosecutors to comply with the directions set out in the Prosecution Guidelines.
[34] Disclosure is dealt with in Part 16 of the Prosecution Guidelines. Under the heading “Disclosure obligations” the Prosecution Guidelines state that the term “prosecutor” as used in the CDA does not mean the Crown prosecutor:41
16.1Proper disclosure is central to preventing wrongful convictions. Under the Criminal Disclosure Act 2008 a “prosecutor” is the person in charge of the file or files relating to a criminal prosecution. Where the proceeding is a Crown prosecution, a Crown prosecutor will have custody of the trial file but the person in charge of the files is the person designated by the enforcement agency as the officer or employee responsible for the file. The Crown prosecutor should not be considered the “prosecutor” for the purposes of the Act. In any other prosecution (whether conducted by a Crown prosecutor or not) the prosecutor as well as the officer or employee designated by the relevant government agency as the person responsible for the file is relevantly a “prosecutor” in terms of the Act.
[35] But the Prosecution Guidelines then make it clear that this does not mean that a Crown prosecutor is absolved of all responsibility in relation to disclosure. They continue:42
16.2The Criminal Disclosure Act 2008 prescribes a comprehensive regime for disclosure by prosecutors to a defendant. Disclosure obligations will not be carried into effect merely by seeking assurances from the person in charge of the file that the trial file contains all necessary disclosure material and that any other material disclosed represents complete disclosure. In a Crown prosecution, a Crown prosecutor should ensure that the person in control of the relevant files is aware of and has complied with the obligations imposed by the Criminal Disclosure Act 2008.
41 The Prosecution Guidelines, above n 35 (emphasis added).
42 Emphasis added.
[36] Under the heading “Disclosure of any inducement or immunity given to a witness” the Prosecution Guidelines cite the Court of Appeal’s (pre-CDA) decision in R v Chignell and state:43
16.10The defendant should always be advised of the terms of any immunity from prosecution given to any witness. Likewise the existence of any other factor which might operate as an inducement to a witness to give evidence should be disclosed to the defendant. This includes the fact that the witness has been paid for providing information … .
[37] Also potentially relevant to this case is that part of the Prosecution Guidelines relating to witness anonymity orders. They provide that all applications for witness anonymity orders under the Evidence Act 2006 (the EA) must have the prior approval of the Solicitor-General, and that:44
14.2 When the application is made the Solicitor-General should be provided with material from the person in relation to whom the order is sought; either in statement or affidavit form, explaining that person’s perception of the likely danger to them or the risk of serious damage to property. That statement should be accompanied by a report from the Police as to the likelihood of danger, or serious damage to property and with an opinion from or through a Crown Solicitor as to the application of ss 110(4)(a) or 112(4) of the Evidence Act 2006.
The Solicitor-General’s Guidelines for Use of Inmate Admissions
[38] The dangers around prison informant evidence have long since been recognised. In New Zealand that recognition can be traced back (at least) to the Court of Appeal’s 1991 decision in R v Chignell, just noted.45
[39] Despite those recognised dangers, however, formal processes around such evidence were lacking until the Solicitor-General released her Guidelines for Use of Inmate Admissions, on 6 August 2021 (the Inmate Guidelines).46 Self-evidently, that was two years after the trial of Messrs Johnson and Hemara, and three years after the events most relevant to the present application. That said, it is clear that the obligations
43 R v Chignell, above n 34; in that case the extent of the (significant) inducements given to a key, anonymous, prison informant witness had not been disclosed. The Court of Appeal held that this had resulted in an unfair trial and overturned the relevant defendant’s murder conviction.
44 I set out and discuss ss 110(4) and 112(4) of the EA later in this judgment.
45 Above n 34.46 Crown Law Solicitor-General’s Guidelines for the Use of Inmate Admissions (as at 6 August 2021) [the Inmate Guidelines].
on Crown prosecutors reflected in Inmate Guidelines were regarded by the Solicitor-General as being pre-existing.47 The kinds of safeguards needed are, in many ways, obvious in light of the particular and well-known risks posed by prison informant witnesses.
[40] The 2021 Guidelines are expressly stated to, in part, respond to a need for such guidelines identified by the Supreme Court in W (SC38/2019) v R.48 In that case, Ellen France J, writing for the majority, said:49
[93] We obtained further submissions from the parties about the other safeguards currently in place in New Zealand. Mr Stevenson is critical of the absence of any policies or independent scrutiny of the proposed evidence. We were advised that the Solicitor-General is considering guidelines to deal with the admission of this evidence. The Crown in its submissions otherwise essentially relies on the role of the prosecution in this area. But our review of the material from the parties together with the social science material discussed above, suggests there is a need for additional safeguards such as further guidance for prosecutors and the maintenance of a central register of those who have given evidence as a prison informant and how that evidence was treated. This would include a record of the criminal history of those who give evidence in this way and capture any reductions in charge or in sentence or any other preference or benefit gained, including matters such as improved custodial conditions following the assistance provided. Absent proper records, as this case illustrates, the task of assessing the reliability of the proposed evidence at the pre-trial stage and as well in the course of the trial becomes difficult.
[94] The absence of records about incentives received by prison informants is a classic illustration of the problem. Without proper record keeping it is difficult for the court, both in terms of determining admissibility or considering the need for directions to the jury, to be confident as to the existence and extent of incentives provided. In the present case, for example, some of the witnesses have informed against Mr W for some benefit in the past, albeit in relation to other matters. Those individuals obviously know the system of information and reward and in some cases the prosecution cannot say whether or not witnesses have done the same in other cases.
[95] The problem for both the court and a defendant is complicated by the fact that there are many benefits or advantages a potential witness can gain that are less easily observed or recorded than the obvious example of a reduction in sentence or monetary payment. For example, informants may obtain better conditions or other privileges within the prison system, witness protection and hope for future advantage. The lack of such detail affects the ability to test the evidence and Mr Stevenson’s submission is that it is hard to convey to a jury
47 As is evident from the references to submissions made by Crown counsel to the Supreme Court in paras [93] and [216] of W (SC38/2019) v R [2020] NZSC 93, [2020] 1 NZLR 382, set out below.
48 Above n 47; the same issues were discussed—and the same points made—again in the Supreme Court’s contemporaneous decision in Roigard v R [2020] NZSC 94, [2020] 1 NZLR 338.
49 Citations omitted.
how varied and powerful these incentives are. This problem will remain even if records are kept. These are all matters that will need to be assessed in the balancing exercise.
[96] Improvements to the current safeguards drawing on the overseas models discussed above would assist and would also help in ensuring a consistent standard is applied by the prosecution in deciding whether to seek to call such evidence.
[41] Writing for herself and Williams J, the Chief Justice recorded that the Crown had accepted that it “can be expected that an incentivised witness will be called only where the prosecutor can point to reasons why their evidence is reliable”.50 She went on:51
[217] While proper discharge of this duty by a prosecutor is an important bulwark of a fair trial, it has its limits as a protective mechanism. Prosecutors are only human, subject to usual human weaknesses in their assessment of evidence, and to the same flaws in reasoning and processing as the general population, including confirmation bias.
[218] Beyond the protective threshold provided by s 8 [of the EA] and the gatekeeping role of the prosecutor, there is, as the majority notes, little by way of a system for checking the reliability of incentivised informant evidence. There are no protocols, guidelines or third party vetting systems through which prosecutors must pass incentivised informant evidence before offering it to the court. Nor is there a system for the collection of information about the occasions on which particular individuals have offered or given evidence in circumstances where criminal justice incentives are sought or offered. In the main, interactions between authorities and the incentivised witnesses are not required to be recorded. From the records on this appeal, it seems statements are typically taken in writing, without any audio or visual recording of the interaction between police and the witness. We agree with the majority at [93] of their reasons that there is a need for additional safeguards such as further guidance for prosecutors and the maintenance of a central register of those who have given evidence as a prison informant and how that evidence was treated, including a record of the criminal history of those who give evidence in this way and capturing any reductions in charge or sentence or any other preference or benefit gained such as custodial conditions. We also agree with the majority at [96] of their reasons that improvements to the current safeguards drawing on overseas models discussed at [92] would assist. …
[42] In terms of the Inmate Guidelines themselves, they apply only where an inmate has provided evidence of incriminating statements made to them by a defendant:52
50 At [216]. It is clear that “prosecutor” in this context means the Crown prosecutor, not Police.
51 Citations omitted.
52 The Inmate Guidelines, above n 46, at [3.4].
(a)while they were imprisoned together; and
(b)that relate to offences occurring outside the prison or custodial institution.53
[43]The Inmate Guidelines go on to state:54
3.10In every case, the decision whether or not to call an inmate admissions witness should be made by the Crown Solicitor.
3.11The decision to call inmate admissions evidence requires an appropriate degree of inquiry into the reliability of the evidence, including whether the types of information and factors outlined below are engaged. In order for the Crown Solicitor to satisfy herself or himself of the reliability of the inmate admissions evidence, the New Zealand Police and/or relevant government agency may be required to undertake additional investigatory or preparatory work to seek material that goes beyond what is usually available on an investigation file. Whether and to what extent further material is required is a judgment call for the Crown Solicitor. For instance, there is no requirement to seek information from non-parties where there is no indication they hold relevant material.
3.12There is no obligation to investigate the proposed inmate admissions evidence further, if, based on the material initially provided by the government agency investigator, the Crown Solicitor decides it will not be necessary to call an inmate admissions witness.
3.13In terms of the information made available, the Crown Solicitor should ensure it includes details (to the extent available) regarding the inmate admissions witness’s previous convictions; current sentences imposed and length of term remaining; how many times they have offered/disclosed/given evidence of this type; how their evidence has been treated and the reason for this treatment; significance (if any) of any such evidence used to the matter(s) then at issue; and any benefit or other preference received by them.
3.14In situations where further or other information comes to light that affects the original view of the inmate admissions evidence (particularly as to its reliability), the Crown Solicitor should reassess their original decision regarding whether or not to call that witness.
3.15Information obtained that relates to the reliability of the inmate admissions evidence is disclosable, subject to applicable sections of relevant legislation, including section 16 of the Criminal Disclosure Act 2008.
53 However, as I explain later (in relation to Mr Dyllan Vaughan) below, the principles articulated in the Inmate Guidelines are logically capable of slightly wider application.
54 Emphasis added.
3.16Where the decision is made to call inmate admissions evidence the Crown Solicitor should record their decision and the reasons for it (including any reassessment).
[44] The Inmate Guidelines go on to list a series of non-exhaustive factors to be taken into account by a Crown prosecutor when making the necessary reliability assessment, under the broad headings of:55
(a)motive;
(b)circumstances of alleged interaction;
(c)confirmatory evidence;
(d)opportunity to concoct; and
(e)character and state of the witness.
[45]Under the second heading, the following specific matters are listed:56
• The plausibility of the witness’s account of the alleged interaction with the inmate.
• Any records related to the alleged interaction, and the contemporaneity of these.
• Whether the alleged interaction is supported by Department of Corrections records or other inmates.
• Any delay before coming forward and the reasons for it.
[46]Under the fourth heading, reference is made to the need to consider:57
The witness’s potential access to alternative sources of information. (For example: media reports/articles/editorials; disclosure documents; other witnesses/co-defendants/gang members; Police).
…
55 At [3.17].
56 At [3.17.2].
57 At [3.17.4].
SO WHAT HAPPENED HERE?
[47] Regrettably, the nature of the disclosure issues in this case are not straightforward; they simply do not lend themselves to the kind of summary determination said by Lang J to be apt in a s 364 context in McLean v Auckland District Court.58 The disclosure issues raised are however important, and to the extent it was submitted that consideration of issues of that kind is inappropriate because they cannot be dealt with summarily under s 364, I do not accept this.
[48] In order to undertake the necessary analysis, it is necessary to begin with an overview of the Crown case against Messrs Johnson, Hemara and Hines, and then set out:
(a)a general narrative of disclosure in this case;
(b)the events giving rise to the most significant disclosure issues, which relate in one way or another to the Crown witness known as “Witness A”; and
(c)events relating to the “shotgun pellet” issue at trial.
The cases against Messrs Johnson, Hemara and Hines
[49] In general terms, the Crown initially alleged that Messrs Johnson, Hemara and Hines (along potentially with others) were present at what was known as the “Hokio pad” when Mr MacDonald was tortured and then murdered there.59 The forensic evidence (obtained from Mr MacDonald’s skeletal remains) was that he had been shot a number of times (in the knee, thigh and pelvis) and had likely died from the resulting blood loss. In its opening address at trial, the Crown said it was Mr Johnson who had done the shooting.
58 McLean v Auckland District Court [2018] NZHC 552, [2018] NZAR 684 at [16].
59 The “Hokio pad” was a house at Hokio Beach which had previously been occupied by the Mr MacDonald and other Nomads but which, shortly before the murder, is said to have been taken over by the Head Hunters.
[50] The cases against Messrs Johnson, Hemara and Hines were largely circumstantial; there were no eye-witnesses called to give evidence about what had happened to Mr MacDonald.
[51]More specifically, the Crown case against Mr Hemara was that he:
(a)had been involved in evicting Mr MacDonald and other Nomads from the Hokio pad shortly before the murder;
(b)had since been living at the Hokio pad and had been seen in the Hokio Beach area with guns; and
(c)had been present with Mr Johnson outside Linton prison early on the day of the murder, apparently awaiting the release of his cousin Mr Hines;
(d)was seen driving with Mr MacDonald as a passenger on the afternoon Mr MacDonald disappeared, which was the last time Mr MacDonald was seen alive;
(e)it could be inferred from that, and from Mr Hemara’s subsequent actions that he had driven Mr MacDonald to the gang pad and was present when he was killed there; and
(f)very shortly before the Hokio pad burned down (on 26 March) Mr Hemara had been captured on CCTV purchasing a can of petrol; and
(g)at around this time Mr Hemara (who was in the company of Mr Hines) asked a relative to hide a gun for him.
[52] In terms of his involvement in the murder itself, a key evidential plank of the case against Mr Hemara was that he had later admitted to two “prison informant” witnesses that he had been at the gang pad when Mr Johnson shot Mr MacDonald. The relevant prison informant witnesses were, initially, Witness A and Mr Leslie Ross.
[53]The Crown case against Mr Johnson was that:
(a)Mr MacDonald was a patched member of the Nomads;
(b)Mr Johnson was a patched member of the Mongrel Mob;
(c)at the time of the murder, the Mongrel Mob and the Head Hunters in the Horowhenua area were somewhat aligned (they were both “red”, whereas the Nomads were “blue”);
(d)prior to the murder Mr Johnson had acquired a Mazda Atenza station wagon with the registration FAY329 and had been seen by Crown witnesses driving it often;
(e)around two weeks before the murder, Mr MacDonald had publicly humiliated Mr Johnson by “taxing” him for his car;60
(f)Mr Johnson had been present with Mr Hemara outside Linton prison early on the day of Mr MacDonald’s disappearance, apparently awaiting the release of Mr Hines;
(g)that afternoon:
(i)it could be inferred (as discussed above) that Mr Hemara had driven Mr MacDonald to the gang pad at Hokio Beach;
(ii)there was eye-witness evidence that Mr Johnson had attempted to drive a car (not FAY329) down Waitarere Beach towards Hokio Beach (with an available inference that in doing so he was trying to avoid detection by CCTV cameras) but had become stuck in the sand, requiring him to return to Shannon; and
60 “Taxing” is a gang term for taking another’s property or money in payment for a (usually spurious) debt. In this case, the “taxing” was said to involve Mr MacDonald taking Mr Johnson’s car at gunpoint.
(h)Mr Johnson then returned to Hokio Beach in the Mazda Atenza (Mr Johnson’s phone was turned off between around 4.23 pm on 23 March until 6.23 am the following morning) and met Messrs MacDonald and Hemara there.
[54] A key evidential part of the case against Mr Johnson was that he had later admitted to several “prison informant” witnesses that he had shot Mr MacDonald at the Hokio pad, disposed of his body near the Mangahao dam and set fire to both the Mazda Atenza and the Hokio pad to get rid of the evidence.
[55]For Mr Johnson, the relevant prison informant witnesses were:
(a)Mr Hayden Cootes;
(b)Mr Dyllan Vaughan;
(c)Mr Scott Marshall; and
(d)Witness A.
[56] The Crown said those admissions were supported by each other, and by further evidence that:
(a)Mr MacDonald was, indeed, shot;
(b)Mr MacDonald’s remains were eventually found near the dam;
(c)the body was found with a red bandana tied around the neck (red being the Mongrel Mob colour); and
(d)the Mazda Atenza (FAY329) was set on fire on or before about 25 March 2016;
(e)the Hokio pad was set on fire on 26 March 2016.
[57] For obvious reasons, it was always going to be central to the defence cases that the prison informants were wholly unreliable and their evidence about his confessions was false.61
[58] The Crown said the events on the day of Mr MacDonald’s murder were orchestrated by Mr Hines, who had been released from prison that day. As previously noted, there was evidence that he had been released from prison at a time when by both Messrs Johnson and Hemara were waiting in the prison carpark that morning. There was also CCTV footage showing Mr Hines at the Hokio pad with Mr Hemara at some earlier point in time, and on 24 March he had changed his password on his phone to “Powser Poowa”. The case against Mr Hines was, however, largely dependent on the evidence of Witness A (discussed in more detail later).
The prison informant witnesses
[59] For the purposes of this judgment, I use the term “prison informant witness” in a slightly wider way than is covered by the Inmate Guidelines. As noted above, the Inmate Guidelines are stated to apply where an inmate has provided evidence of incriminating statements made to them by a defendant:62
(a)while they were imprisoned together; and
(b)that relate to offences occurring outside the prison or custodial institution.
[60] In the present case, all of the five presently relevant prison informant witnesses referred to at [55] were at some point after Mr MacDonald’s death imprisoned together with one or more of Mr Johnson, Mr Hemara and Mr Hines. Some of the prison informant witnesses (Messrs Cootes, Marshall and Vaughan) also gave evidence of admissions made to them by one or other of the defendants outside prison.63 But, the
61 A defence challenge to the admissibility of the confession evidence of the prison informants Messrs Cootes, Marshall, Vaughan and Ross prior to the trial was unsuccessful before me, and on appeal: R v Johnson [2018] NZHC 2998, R v Johnson [2019] NZCA 193.
62 The Inmate Guidelines, above n 46, at [3.4].
63 There were other prison informant witnesses, however, they either did not give evidence or gave irrelevant evidence.
signal point is that at the time the five witnesses made their statements they were themselves incarcerated, and so the symbiotic questions of inducements, collusion, credibility and reliability all necessarily arose.
[61] Mr Cootes said in his statement that, some weeks after the murder he was smoking methamphetamine with Mr Johnson in a car when Mr Johnson told him that he had tortured Mr MacDonald and then shot him in the head at the “Hokio pad”. He also said that subsequently, when Mr Cootes was himself in Linton Prison on an unrelated charge, he was present in the “shower yard” together with Messrs Johnson and Marshall when Mr Johnson made a similar admission, adding that he had later burned down the Hokio pad and set fire to his car to destroy the evidence.
[62] Mr Marshall said in his statement that Mr Johnson (whom he knew but with whom he had also been in prison) had told him about his involvement in a taxing incident with Mr MacDonald and that he (Mr Johnson) had later taken him (Mr MacDonald) to the Hokio Beach pad and “sorted him out”. He said Mr Johnson implied that he had shot Mr MacDonald but said that someone else was also involved. Mr Marshall said that on another occasion Mr Johnson had told him that he had burnt down the Hokio pad.
[63] Mr Ross had been in prison with Mr Hemara. The relevant substance of Mr Ross’ statement related to what he had been told by Mr Hemara about the murder, including that he had been present at the Hokio pad, but that Mr MacDonald had been shot by Mr Johnson.64
[64] Mr Vaughan (who was at the relevant time a patched member of the Nomads) said in his statement that soon after Mr MacDonald’s disappearance he had got into a car with Mr Johnson (whom he knew) to smoke methamphetamine with him. He said that, while in the car, Mr Johnson told him that Mr MacDonald had been taken to the Hokio pad and beaten up by a number of people. Mr Johnson said he eventually shot
64 For the avoidance of consternation, I record that—although not presently relevant—it was always understood and accepted that admissions said to have been made by Mr Hemara implicating Mr Johnson were not admissible against Mr Johnson, and vice versa.
Mr MacDonald in the back of his head and then dumped his body “at Mangaore or something by the second dam” and burnt out his car and the Hokio pad.
[65] Witness A made two statements involving admissions to Police, the relevant contents of which will be set out later.
[66]As things transpired, however:
(a)Witness A was not called at trial (for reasons elaborated later);
(b)Messrs Ross and Marshall refused to give evidence at trial; and
(c)the reliability and/or credibility of Mr Cootes was seriously dented by defence counsel at trial, such that the Crown filed a notice under s 9 of the EA which stated:65
The records of prisoner movements at Manawatu Prison establish that it was not possible for a conversation between Hayden Cootes, the defendant Mr Johnson and Scott Marshall to have occurred or be overheard.
[67] The short and relevant point is that during the trial—and in the context of any retrial—Mr Vaughan’s evidence became critical in terms of the Crown’s case against Mr Johnson.66 I return to that point later, when I come to discuss the disclosure around Witness A.
Disclosure in this case
General pre-trial narrative
[68] In order to assess the asserted significant procedural failings advanced by the applicants in support of their costs application it is necessary to set out a fairly detailed review of disclosure in this case, as well as refer to a number of pre-trial matters. It is
65 This necessarily had an impact on the wider reliability of Mr Cootes’ confession evidence and for that and other reasons, in the context of Mr Johnson’s retrial, I later ruled his evidence of Mr Johnson’s car confession also inadmissible: R v Johnson [2020] NZHC 1582.
66 Mr Vaughan’s evidence was not admissible against Mr Hemara.
only when viewed in this wider context that a fair assessment of the alleged failings can be made.
[69]As noted earlier:
(a)Mr Johnson was charged with murder on 14 March 2017;
(b)Mr Hemara was charged with murder on 29 June 2017; and
(c)Mr Hines was charged on 8 September 2017.
[70] It follows that the early stages of disclosure were staggered. For example, disclosure of the vast majority of the formal written statements for proposed Crown witnesses (some of which had yet to be edited for admissibility)67 had already been provided to Mr Johnson by the time Mr Hemara was charged.68 At this point Mr Johnson’s three-week trial had been set down for February 2018.
[71] On 7 August 2017, Simon France J ordered that “disclosure to Mr Brattle-Hemara Haena is to be done” by 21 August 2017.69 The Judge also agreed with Mr Hemara’s counsel that the February 2018 trial date no longer seemed viable, and, at his direction, the Registry allocated a new (five week) trial fixture commencing on 30 April 2018.70
[72]Between 7 and 25 August 2017:
(a)counsel for Mr Johnson received a further seven Eastlight folders of “raw Telco data”;
(b)counsel for Mr Hemara had received two tranches of disclosure, comprising approximately 14,000 pages;
67 Formal witness statements for the Crown’s experts had yet to be prepared.
68 As far as I can ascertain, the proceedings against Mr Hemara were not formally joined to the proceedings against Mr Johnson until 21 November 2018.
69 R v Johnson HC Palmerston North CRI-2017-054-850, CRI-2017-054-2016, 7 August 2017 (Minute of Simon France J) at [4].
70 At [6].
(c)some legal aid issues for Mr Hemara were still outstanding; and
(d)the Crown prosecutor had advised the Court:
The bulk of disclosure to both defendants is complete. However, disclosure is ongoing. The Crown is monitoring the Police closely to ensure disclosure does not fall behind. Formal written statements for all witnesses have not yet been completed. There are no concerns about disclosure at the present time.
[73] On 28 August 2017, Collins J directed the Crown to file all formal statements 15 days before the pre-trial hearing scheduled for 21 November 2017.71
[74] On 28 September 2017, soon after Mr Hines had been charged, Dobson J noted the Crown would be seeking joinder with the proceedings against Messrs Johnson and Hemara as part of the November pre-trials, and the existing trial date of 30 April 2018 was also allocated as the trial date for Mr Hines.72
[75] On 27 October 2017 the Crown made applications for anonymity orders in relation to the proposed witnesses known as Witness A, Witness B, Witness C and Witness D. As noted already, the evidence of Witness A was crucial to the Crown’s case against Mr Hines. A specific narrative of the relevant events relating to him is given separately later.
[76]On 2 November Simon France J minuted:73
[1] The Crown has recently provided significant further disclosure (5,000 pages). Counsel for Mr Hines, and Mr Johnson both seek an adjournment of the pre-trial fixture for 21/22 November because of lack of preparation time. Having heard from the parties, the adjournment is granted.
[2] The Crown has filed three pre-trial applications – witness anonymity, hearsay and propensity. The priority is the anonymity orders. Counsel should have a month at least to prepare. Mr Coles has foreshadowed an application to appoint independent counsel: …
…
71 R v Johnson HC Palmerston North CRI-2017-054-000860, CRI-2017-054-002016, 28 August 2017 (Minute of Collins J – Re: Callover).
72 R v Hines HC Palmerston North CRI-2017-054-2792, 28 September 2017 (Minute of Dobson J – Second Appearance).
73 R v Hines HC Palmerston North CRI-2017-054-2782, CRI-2017-054-850, CRI-2017-054-2016, 2
November 2017 (Minute of Simon France J).
[4] There is apparently around 100 pages of discovery still to go. Mr Vanderkolk is to inquire as to when it will be ready. The Court advises the answer is expected to be very shortly.
[77] On 23 November 2017, Williams J appointed independent counsel (Mr Marc Corlett KC) to assist with the anonymity application and to review redactions.74 Again, I return to this aspect of Mr Corlett’s role later, in the context of my separate narrative relating to Witness A.
[78] In late November counsel for Mr Hines had (understandably) advised he thought it unlikely that he would be in a position to identifying all outstanding pre-trial matters by the end of January. On 12 December 2017, Simon France J vacated the 30 April 2018 trial date and set a new date of 9 July 2018.75 It is plain from the record that this had little to do with the state of disclosure (except insofar as time was necessarily required by counsel for Mr Hines in particular to get up to speed).76 Legal aid approval for a second (senior) counsel for Mr Hemara was given only in mid-December and was, at that point, still awaited for Mr Hines.
[79] The Crown applied for the proceedings against Mr Hines to be joined with the proceedings against Messrs Johnson and Hemara shortly before Christmas.
[80]I took over the carriage of the file in early 2018.
[81] On 7 March 2018 I adjourned the trial scheduled for July.77 My minute of that date makes it clear that defence complaints about “the timeliness, form and consistency of disclosure” continued,78 but that there were other things—including 14 new Crown witnesses and a fairly significant number of outstanding and new pre-trial applications—that played a part in the adjournment decision. But, in response
74 R v Hines HC Palmerston North CRI-2017-054-002782, CRI-2017-054-000850,
CRI-2017-054-002016, 23 November 2017 (Minute of Williams J).
75 R v Hines HC Palmerston North CRI-2017-054-2782, CRI-2017-054-850, CRI-2017-054-2016,
12 December 2017 (Minute of Simon France J).
76 As discussed later, in November 2017 Mr Coles had, however, raised a specific and important issue about disclosure that was not resolved until April 2018.
77 R v Hines HC Palmerston North CRI-2017-054-850, CRI-2017-054-2016, CRI-2017-054-2782,
7 March 2018 (Minute of Ellis J).
78 At [1].
to defence complaints, I directed that by 28 March 2018 the Crown was to file and serve:79
… a memorandum setting out the state of play with disclosure. It is to cover what has so far been made available, in what form and to whom. That memorandum will be informed by any advice they receive in the intervening period from defence counsel regarding any particular deficiencies or defects they have identified with disclosure to date. Defence counsel are to cooperate in providing this information in a timely way; …
[82] The Crown’s memorandum filed in accordance with my 7 March 2018 direction stated:80
2.The Crown attaches to this memorandum a report by Detective Senior Sergeant Baskett as to the state of the disclosure provided by police, to counsel for the defendants. All six Counsel have a full copy of the disclosure and the additional unredacted material provided as a consequence of the report by Mr Corlett [KC].
3.Counsel for the Defendants Hines and Hemara have made repeated assertions that Police have refused or declined to disclose. There is no evidence to support that contention nor is there evidence to suggest the Defendants have been prejudiced by the course of disclosure to date.
[83] The adjournment ordered on 7 March gave rise to scheduling difficulties due to the need to also to accommodate the long overdue R v Lyttle trial, which was also to take place in Palmerston North. These difficulties were addressed by Simon France J who, on 17 April 2018, rejected the possibility of a change of venue and directed that the trial of Messrs Johnson, Hemara and Hines would be deferred until the first quarter of 2019 (25 February).81
[84] The relevant disclosure events that occurred over the next two months will be set out in detail separately later and in the context of the narrative relating to Witness A.
[85] Partly as a result of those events—and in light of continuing defence concerns about disclosure—on 9 July 2018 I made an order that the Police officers involved in the investigation of Mr MacDonald’s murder provide certificates that they had
79 At [2(i)].
80 Again, I address Mr Corlett’s report later below.
81 R v Lyttle HC Whanganui CRI-2014-083-957, 17 April 2018 (Minute of Simon France J).
undertaken their disclosure obligations.82 Detective Senior Sergeant (DSS) Baskett then filed an affidavit annexing the relevant certificates on 31 July 2018.83
[86] In the same minute, I directed the Crown to provide Mr Corlett with additional material that had been sought by defence counsel, for review:84
(a)CHIS information about the nominated suspects;
(b)62 documents that had been fully redacted; and
(c)any redacted NIA material or witness statements not already reviewed.
[87] Defence counsel’s advised interest in this material was later described by Mr Corlett as follows:
(a)Hines: any information which could support an argument that a person other than the defendants is responsible for the offence or could lead to a chain of enquiry leading to the identification of another suspect.
(b)Johnson: in respect of the following witnesses:
(i)Witness ‘A’;
(ii)Leslie Ross;
(iii)Hayden Cootes;
(iv)Scott Marshall; and
(v)Dillon [sic] Vaughan;
any information that could impact on their credibility including any inconsistencies of fact within their statements; discussions with others, including but not limited to other witnesses and police officers; and any inducements offered, requested or provided in relation to these witnesses;
(vi)the evidence of Witness ‘C’;
(vii)evidence relating to the burning of the Mazda motor vehicle and other people's potential involvement in the disposal … ;
82 R v Hines HC Palmerston North CRI-2017-054-850, CRI-2017-054-2016, CRI-2017-054-2782,
9 July 2018 (Minute of Ellis J).
83 DSS Baskett is now Detective Inspector (DI) Baskett. Throughout this judgment, I refer to him by the rank he occupied at the relevant time.
84 At [7].
(viii)all evidence relating to Johnson's whereabouts and interactions with people around 23 March through to and including 25 March 2016; and
(ix)any evidence about other suspects’ movements and interactions about this same time period.
(c)Brattle-Hemara Haena:
(i)any communications between Police/Crown and the witnesses Leslie Ross and Witness ‘A’ and any documents relating to the same witnesses;
(ii)any documents or material relating to suspects other than the three defendants.
[88]On 31 July 2018, I received a preliminary report from Mr Corlett. I recorded:85
[2] Mr Corlett was given approximately 2,000 pages worth of material contained in two Eastlight folders, together with a USB stick provided by police. The first Eastlight folder has an index covering all documents in the folders and the USB. This table gives each document/file a police URN number.
[3] Mr Corlett has reviewed all documents in the folders and two of the seven USB files. All reviewed documents are recorded in a table attached to his report, with Mr Corlett’s views on relevance in relation to each. The five USB files not reviewed appear to be Digital Forensic Unit downloads of cell phones. These five files range from 800 pages to 8,299 pages each. Mr Corlett advises that he has not had time to review these files and seeks further directions in that regard, including as to possible key word searches and other review techniques aimed at making the task manageable.
[4] As to the other documents, Mr Corlett has identified 69 which are potentially relevant to the areas of interests identified to him by defence counsel. He has taken a relatively broad approach to the question of relevance (by which I mean that while some documents appear clearly to be relevant, others seem marginal, at best).
[89] The prosecution against Mr Hines ended in September 2018,86 as a consequence of my decision on 18 May 2018 declining the application for witness anonymity in relation to Witness A (discussed below).87
85 R v Hines HC Palmerston North CRI-2017-054-850, CRI-2017-054-2016, CRI-2017-054-2782,
21 July 2018 (Minute of Ellis J).
86 R v Hines (Minute of Ellis J) dated 24 August 2018, above n 5; and R v Hines (Minute of Ellis J) dated 11 September 2018, above n 5.
87 R v Hines [2018] NZHC 1126.
[90] On 5 October 2018, Mr Corlett outlined to the Court that he would begin the review of the final five confidential USB files disclosed to him. These were said to have comprised a total of 19,662 pages. At this point, Mr Corlett made it clear to the Court that he did not know how long the review would take.
[91] By 9 October, Mr Corlett had delivered his first report on the smallest USB. His second report on the second batch of DFU files was delivered on 15 October 2018. Nothing of note was found in either report.
[92] On 17 October 2018, I approved a request by counsel for Mr Johnson that Mr Corlett be instructed to conduct a search on the following names:88
(a)Hayden Cootes;
(b)Leslie Ross;
(c)Dyllan Vaughan; and
(d)Scott Marshall.
[93] Mr Corlett made his third report on 23 October, with the fourth coming soon after, on 2 November. In both these reports, Mr Corlett advised the searches conducted on the four names did not provide any results of note. Both reports also detailed a review of material extracted from the telephones of two third parties, neither of which turned up anything particularly relevant.
[94] Mr Corlett’s fifth and final report was made on 6 November 2018, concerning then extraction of material retrieved from the phone of one of Mr Johnson’s relatives. Once again, nothing relevant was found.
[95] On 20 November 2018 I directed that, by the end of the month, the Crown was to “speak to police and advise all counsel whether there will be any further disclosure
88 R v Johnson HC Palmerston North CRI-2017-054-850, CRI-2017-054-2016, 17 October 2018 (Minute of Ellis J).
of significance before the trial”.89 On 30 November 2018 the Crown advised “[i]t is not anticipated by police that there will be any further disclosure of significance before trial.”
[96] On 6 February 2019, trial counsel for Mr Johnson filed a memorandum seeking a further adjournment of the trial as a result of (what were said to be) continued disclosure failings. The application was supported by counsel for Mr Hemara, who provided detailed submissions.
[97] There was a hearing on 13 February 2019, this being 10 days out from trial. As raised in submissions, the question of disclosure having been provided in a non-searchable format was discussed. Mr Drummond (junior counsel for Mr Hemara) advised the Court that he was satisfied he had received all of the disclosure in a readily searchable electronic format
[98] On 15 February 2019 I delivered a judgment declining the adjournment application.90 In my judgment I said:
[4] The issues raised in support by Mr Hemara are genuine and need to be addressed before the trial. I do not set them out here, as they are recorded in Mr Drummond’s memorandum dated 7 February 2018. But I agree with Mr Vanderkolk that they are not out of the ordinary in terms of the lead up to trial and I accept his assurance that they will be dealt with promptly. As I think Mr Drummond and Mr Coles realistically accepted they are not by themselves capable of justifying an adjournment.
[5] A number of the matters raised on behalf of Mr Johnson are of the same order. By way of example only, residual disclosure issues relating to “raw mobile data” obtained from Mr Johnson's cell phone can quickly be resolved by the defence expert speaking directly to the relevant Crown witness, Detective Currin.
[99] Then, I noted that there were “three more substantive matters raised which do require specific consideration”.91 None of those matters related directly to disclosure and, following analysis, I largely did not accept the defence’s assessment of them. I considered any residual concerns could be met by deferring the start of the trial by one
89 R v Johnson HC Palmerston North CRI-2017-054-850, CRI-2017-054-2016, 20 November 2018 (Minute of Ellis J) at [1(c)(iii)].
90 R v Johnson [2019] NZHC 167.
91 At [6].
week (the jury was to be empanelled on 25 February 2018, but the trial would begin on 4 March).
[100] That was not, however, the end of the matter. There was a further case management conference on 21 February 2019. On 24 February, a further memorandum from counsel for Mr Hemara was received in which he raised new issues—including, but not limited to, disclosure related and “searchability” issues— and again sought that the trial be adjourned. On 26 February 2019, after further discussions between counsel and another case management conference, I made the decision to adjourn the trial to 4 June 2019.92
Trial: the shotgun pellet
[101] Despite another application to adjourn,93 the matter finally proceeded to trial on 4 June 2019. In the course of describing Mr MacDonald’s injuries in the Crown’s opening address at trial Ms Davies said:
The autopsy established that Palmiro MacDonald had died from gunshot wounds. He’d been shot multiple times. The gunshot injuries to his hip, both thighs, his knee, his heels and his arm.
…
His left forearm was fractured and had a possible projectile in it. An [audio] pellet within the soft tissues adjacent to his carpal bone [audio] that’s a shotgun pellet.
So, members of the jury, there was evidence of at least four 22 projectiles in him and a shotgun pellet. …
[102]And later on she said:
… The defendant Mr Hemara trying to hide a shotgun at a relative’s house. And you’ll hear that there was a shotgun pellet in Palmiro MacDonald’s tissue around his wrist.
Once the body of Palmiro MacDonald is found this showed what happened to him. Shot multiple times with a 22 which killed him, shotgun pellet in his wrist, that’s a projectile fractured bone in his body.
92 R v Johnson HC Palmerston North CRI-2017-054-850, CRI-2017-054-2016, 26 February 2019 (Minute of Ellis J).
93 Dismissed by me in R v Johnson [2019] NZHC 1284.
[103] But while one of the Crown witnesses was giving evidence at trial (from a remote and undisclosed location) he revealed to Detective Constable Woods that Mr MacDonald had been shot with a shotgun at an earlier point in time during an unrelated gang altercation. He said Mr MacDonald had been told by a doctor that the pellet in his wrist was too difficult to remove and should be left there. This conversation occurred during a break in the trial, and I am advised (but do not recall) was overheard by defence counsel.94
[104] The notebook of Detective Constable Woods recording this information was disclosed the next day and the Crown then filed a Notice of Admitted Facts stating that it was now accepted the pellet was the result of events that predated Mr MacDonald’s death in March 2016. I also ruled on the ramifications the disclosure had for other Crown evidence (both already heard and yet to be heard). The upshot was that there were none of any moment, and certainly none that prejudiced the defence. My minute recorded that “I see no risk that the jury will be diverted or confused by this abandoned part of the Crown case”.95
Retrial: raw telecommunications data
[105] After the first trial had ended in a hung jury, a retrial date of 27 October 2020 was set.96
[106] On 30 July 2019, counsel for Mr Johnson sought a direction from the Court that the prosecution disclose “the raw Telco data in a format which is useable and identifies attribution and content of the texts”. What was meant by this was the provision of the unredacted Telco data in Excel spreadsheet form, as received by Police from the telco companies. As I recall this was not the first time the request had been made.
94 Although I minuted what occurred at the time, my minute does not refer to the way in which the “disclosure” came about; R v Johnson HC Palmerston North CRI-2017-054-850, CRI-2017-054-2016, 19 June 2019 (Minute and Ruling of Ellis J (Shotgun Pellet)).
95 R v Johnson (Minute and Ruling of Ellis J (Shotgun Pellet)) dated 19 June 2019, above n 94, at [4].
96 R v Johnson HC Palmerston North CRI-2017-054-850, CRI-2017-054-2016, 13 August 2019 (Minute of Simon France J (New Trial Date)).
[107]On 11 November the Crown filed a memorandum stating:97
1.The Crown wishes to close the controversy surrounding disclosure of the raw telco data.
2.In the course of the investigation production orders were issued and executed against telco providers: Vodafone, Spark, and 2 Degrees. The data supplied to the Police in compliance with the production orders is referred to in the trial as “raw data” or “raw telco data”.
3.Detective Currin described the processing of the raw data to enable him to complete his analysis for trial purposes. Between receipt of the raw telco data there is a redaction process and a re-formatting into PDF.
…
5.However, the Crown does seek a direction of the Court that the raw telco data in the raw form prior to the processing described by Detective Currin be inspected by the defendants and that conditions be imposed by way of counsel undertaking which protects privacy interests and upholds reasons to withhold information.
6.By previous disclosure the defence already has the redacted and reformatted pdf described by Detective Currin.
[108] There was a callover scheduled for 25 November 2019. New counsel for Mr Hemara (Ms Hall and Mr Isac, as he then was) filed a memorandum stating:98
5.Counsel supports and mirrors the defence request for an electronic copy of all raw telecommunications data. The raw data, unmodified, unredacted by the police is required. Raw telco data is routinely provided by police/Crown and the approach adopted by the Crown on this occasion is unusual. Counsel also requires a master telco attribution list that will be held by police – this master telco list identifies the numbers that have been attributed by the prosecution to telephone numbers in the raw telco data.
6The crown justification to date for not providing the raw data appears to be (1) withheld on relevance grounds; (2) withheld on privacy grounds.
7The raw data is relevant. Access to the raw data allows the defence to sort contact between people, examine patterns, consider movements – all of which is impossible with PDF versions and redactions.
[109]In my minute regarding the 25 November 2019 callover, I recorded:99
97 Footnotes omitted.
98 Footnotes omitted.
99 R v Johnson HC Palmerston North CRI-2017-054-850, 25 November 2019 (Minute of Ellis J) at [5].
There was some discussion of the issue relating to the disclosure of the raw telco data (that is, in Excel spreadsheet form, as received by police from the telco companies) which has, for some very considerable time, been sought by Ms Goodlet. Ms Hall confirmed that such disclosure has routinely been made in the many cases with which she has been involved. Although Mr Vanderkolk sought specific undertakings from counsel to ensure that privacy interests were protected, I do not propose to require that. That information disclosed to counsel in the course of a criminal trial is not to be used for an improper purpose, nor further disclosed (including to their clients) without proper reason is self-evident. I am confident that no such use or disclosure will occur here. On that basis Mr Vanderkolk said he would attend to this within one week.
[110] By 18 December 2019 the raw telco data had not been provided. Counsel for Mr Hemara a filed a formal application and accompanying memorandum for disclosure under s 30 of the CDA. In my minute issued on 19 December 2019 I said:
… I am at a complete loss to understand why the Crown has not acted in accordance with the agreement reached at the conference on 25 November 2019 and recorded by me in my minute of that date at [5]. It is not acceptable. Given that the issues have already been fully ventilated on many occasions I can see no reason to seek further comment from the Crown or to conduct a hearing of the application. I make the orders sought by Ms Hall, accordingly. I expect immediate compliance.
[111] The next day, the Crown advised the applicants that, before releasing the raw telco data, the Police required the Crown to make application to the Court for revised directions.
129 R v Johnson [2023] NZHC 476.
[185] As noted earlier, s 13 requires a prosecutor to disclose relevant information to a defendant. Even proceeding on the basis that Messrs Johnson and Hemara are still “defendants” the information sought (if it exists and has not already been disclosed) can no longer be “relevant” in the sense that matters—namely, to either their prosecution or defence. That is made clear by subs (5), which provides that the obligation to disclose continues only until “the hearing or trial is completed”. Put simply, I am unable to see how the CDA continues to have operation when all the charges against the “defendants” have been dismissed.
[186] The High Court Rules apply in civil proceedings. I do not regard the present application as civil in nature. It is brought under the CPA and is ancillary (and inextricably connected) to the criminal prosecution of Messrs Johnson and Hemara.
[187] But even if I am wrong in that, I am not satisfied that such information—or at least any such information that might materially assist defence counsel’s application— is likely to exist. The very fact that Crown counsel did, very properly, disclose further information that was contrary to the Crown’s interests shortly before the March costs hearing (see below) suggests that all proper inquiries have now been made and all relevant information has now disclosed.
[188] If necessary, I would also have found that the delay in making the application— in the context of the protracted procedural history set out above—militates against granting the application here.
Further disclosure made
[189] On 27 February 2023, the Crown voluntarily disclosed DI Baskett’s handwritten notes that recorded that Mr Vanderkolk and Ms Davies had been present at the meeting with Witness A in [ ]. Those notes were also a little more detailed than the formal job-sheet in that they record that Witness A had also referred to cell arrangements and parole at the meeting.
[190] As well, Mr Baker for the Crown disclosed to the Court on a confidential basis further information relating to what I will call the Dyllan Vaughan/Witness A issue. Mr Stevenson was provided with this information following receipt of a
confidentiality undertaking from him (necessary to protect Witness A’s identity). Ms Hall declined to sign such an undertaking, and so she did not receive the information and absented herself from the hearing when it was likely to be discussed.
[191] I do not propose to describe or detail that information in this judgment. Rather, I simply note that it underscores and amplifies the concerns I express later about the disclosure around this issue.
THE ALLEGED SIGNIFICANT PROCEDURAL FAILURES
[192] As the applications stood at the time of the hearing before me, costs are sought in respect of what Messrs Johnson and Hemara say are the following significant procedural breaches:130
(a)the failure to disclose the inducement offered to Witness A;
(b)the failure of DS Bennett to record all conversations and meetings with Witness A in contemporaneous notes;
(c)the redaction of Witness A’s statements to exclude reference to Mr Vaughan, in contravention of the CDA;
(d)the direction of the Crown prosecutor, Mr Vanderkolk, to Police to conceal his and Ms Davies’ presence at the meeting with Witness A on [ ], and acquiescence of the interviewing Police officer, to that direction;
(e)the associated failure to disclose the handwritten job-sheet of that meeting until February 2023, some five years later;
(f)the failure to comply with Court orders to provide unredacted telecommunications data, particularly once the Court had heard
130 Other matters referred to in the October 2022 particulars (disclosure around the evidence of Messrs Marshall and Cootes about Mr Johnson’s “shower block” confession and the failure of certain witnesses to give evidence at trial) were not pursued before me and I do not consider them further.
argument and specifically directed the Crown prosecutor to disclose the same in late 2019 and early 2020;
(g)the failure to enquire and/or disclose the fact that the shotgun pellet lodged in Mr MacDonald’s hand was unrelated to his killing;
(h)the failure to ensure that disclosure was provided to the defence counsel in a usable format; and
(i)failure to provide timely and complete disclosure to defence counsel, including being in contravention of certificates as to disclosure which had been proffered as a reassurance to the Court that disclosure obligations were met as part of the disclosure audit.
[193] The first five of the alleged failures above are logically grouped together (in that they all relate, in one way or another, to issues regarding Witness A). In my view these are the failures giving rise to questions of costs and I deal with them later.
Matters not constituting significant procedural failures
[194] Several of the alleged disclosure failures still maintained do not in my view constitute significant procedural failures for the purposes of s 364. It is convenient to dispose of these first.
Failure to record all conversations and meetings with Witness A in contemporaneous notes
[195] As Mr Baker submitted, s 15 of the CDA does not require a prosecutor to disclose information that has not, at the relevant time, been recorded. But that is not, in my view, a complete answer here. I respectfully agree with the observations of the Chief Justice and Williams J in the passage from W (SC38/2019) v R quoted at [41] above.131 There is a need for additional recording safeguards (including potentially
131 W (SC38/2019) v R, above n 47, at [217]–[218].
by use of an audio or visual recording device) to be in place when Police are interacting with incentivised witnesses.132
[196] In the present case there is no dispute that there was neither an audio nor a video recording made. But while it seems that DS Bennett did “overwrite” Witness A’s formal written statement (so that earlier iterations were not kept) his handwritten notes (the “mind map” document and his notes from [ ]) were not overwritten and were (eventually) disclosed.
[197] Although DS Bennett’s notes are plainly not a word for word record,133 the decision in W (SC38/2019) v R had not been released when DS Bennett had his interactions with Witness A.134 I also accept there was a legitimate concern to build rapport which full note-taking (or recording) may have impeded. Overall, my assessment of DS Bennett is that he is a conscientious officer who is unlikely to have failed to record or deleted anything potentially material to the defence. And there is, quite simply, nothing from which it could be inferred that he did.
[198] So, to the extent there was any procedural failing here (and I regard that as being very much at the margins) I am unable to conclude that it was a significant one.
“Systemic” non-disclosure
[199] As noted earlier, on 1 September 2021 I minuted that the “catch all” claims of systemic non-disclosure needed to be further particularised if they were to be pursued.135 The only further particularisation came over a year later. On 20 October 2022, Mr Stevenson filed a document entitled “Further particulars procedural breaches by prosecution”. This document primarily dealt with the matters surrounding Mr Vaughan and Witness A, but also raised new matters not previously particularised, some of which were not ultimately pursued. Those relevant for present purposes relate
132 I note that the Inmate Guidelines, above n 46, do not themselves expressly contain recording requirements for interviews with inmate admissions witnesses.
133 It is unclear to me how many times DS Bennett met with (as opposed to received communications from) Witness A but I very much doubt that there were “multiple” such meetings as the applicants say. His handwritten notes and the “mind map” certainly appear to be his record of the two significant meetings that occurred on [ ] and then in [ ], and which were the foundations for Witness A’s two statements.
134 Above n 47.
135 R v Johnson (Minute of Ellis J) dated 1 September 2021.
to the shotgun pellet issue discussed earlier, and a more general allegation (which may have been intended as elaboration on the “catch all” particulars noted earlier) which stated:
5.The prosecution at an early stage advised the court disclosure was almost complete; about “100 pages to come” (at a point in time when there were about 10,000 pages of disclosure).
a)Ultimately, there were approximately 60,000 pages of disclosure.
b)Disclosure was chaotic, unsorted, and unsearchable.
c)Procedural failures regarding provision of disclosure in an accessible and reasonably understandable format resulted in significant unnecessary delay and cost.
[200] I agree with the Crown that this particularisation was not only late but insufficient.136 It is not something to which the Crown can now fairly be expected to respond. But insofar as it is capable of comment, the following points can be noted.
[201] First, there can be no doubt that the “about 100 pages to come” estimate was wildly optimistic. But, as my earlier chronological narrative shows, the Police investigation and their case against, Messrs Johnson, Hemera and Hines was very much a moveable feast throughout 2016, 2017 and 2018. That moveability necessarily gave rise to a degree of unavoidable chaos. To the extent blame for any chaos can usefully be attributed to anything in particular, it is my strong sense is that it was largely a function of a confluence of factors (such as the wider gang context and the late finding of Mr MacDonald’s remains), rather than a function of any lack of care or competence by Police.
[202] As for searchability, this was were very much a two-way street. There were apparent computer literacy or software issues on the defence side (such as counsel not having Adobe loaded on their computers to enable viewing PDF documents, having earlier declined offers of training assistance) that were nevertheless portrayed (and continue to be portrayed) to the Court as prosecution “failures”. Mr Corlett had no
136 The briefs of evidence of Ms Goodlet and Mr Coles’ do not advance matters. Mr Coles’ brief largely repeats defence complaints (as set out in various defence memoranda), without any context (for example as to the Court’s and Crown’s response, and as to the actual impact on the proceeding).
issues with accessing electronic disclosure in the same format. My clear recollection is that these technical difficulties were not experienced by all counsel.
[203] And thirdly, a number of the disclosure complaints made in the lead up to trial were simply unfounded.137 They were either not failures of disclosure at all or, as noted by me in February 2019 “not out of the ordinary in terms of the lead up to trial”.138
[204] The short point is that to the extent there were any disclosure issues in this case that can fairly be termed “systemic”, they are not comparable with the systemic issues arising in either Lyttle or in Bublitz.139 While there were undoubtedly some discrete and important failures—which I deal with separately below—there was no quantitatively significant, late, disclosure made during or immediately before the trial. And nor is there anything before me to suggest that the “late” disclosure sought by defence counsel (and subsequently provided by the Crown) yielded anything of any moment. Similarly, Mr Corlett’s review of various redacted and confidential documents in late 2018 did not give rise to anything of significance, as far as I am aware.
[205] For these reasons, I am inclined to find some force in Mr Baker’s submission that it is a reality of modern trials that defence counsel will sometimes endeavour to build a parallel “defence case” around non-disclosure. Such an approach encourages frequent and voluble complaints to the court in the first instance, as opposed to pragmatic behind-the-scenes cooperation with the prosecutor. In my view there was an element of that here.
Shotgun pellet
[206] As I understand it, the applicants’ submission on this aspect of the claim is that the prosecutor should have made specific inquiries about the possibility of
137 For example, in some instances, defence counsel were asking Police to go beyond their CDA requirements (for example requesting extra copies of photograph booklets or further copies of existing disclosure in different electronic formats). In others, my recollection is that alleged non- disclosure was used as shield against criticism for various defence delays.
138 R v Johnson, above n 90.
139 R v Lyttle, above n 10; and Bublitz v R, above n 14.
Mr MacDonald having suffered some prior injury that could have accounted for the presence of the shotgun pellet in the tissue of his left hand.
[207] I agree with Mr Baker that this is not something that is a procedural failure as defined in s 364, namely a failure in terms of the CDA or the CPA (or regulations made thereunder). And in any event, the relevant line of inquiry said to constitute the relevant failure here was not particularly obvious, other than (perhaps) with the benefit of 20:20 hindsight. The forensic evidence was that Mr MacDonald had been shot a number of times in various parts of his body. The Crown case—far from unreasonably—was that this had been done deliberately in order to inflict pain upon him, rather than to cause his immediate death. Mr Hemara was—for frankly obvious reasons—a suspect and there were witnesses who said they had seen him with a shotgun at around the time of the murder. So in these circumstances—and in the wider context of a circumstantial case—the possibility that more than one gun (or one type of gun) had been used, one of which could have potentially left a pellet in Mr MacDonald’s wrist, was not far-fetched.
[208] So even were I to regard this as a procedural failure in terms of s 364 (which I do not) I would find a reasonable excuse for the failure.
Raw telecommunications data
[209] At issue under this heading was the deliberate refusal (although ultimately, simply a relatively short delay) by Police in complying with a direction of this Court. The Crown accepts this was a procedural failure. It was undoubtedly regrettable and should not have happened.
[210] But I also accept that Police did have genuine privacy and safety concerns (for those third parties to whom the data related or belonged); there was some historical basis for those concerns. Although I do not know the details, it appears (and it has never to my knowledge been disputed by defence counsel) that other material that had been disclosed did find its way into the wrong hands. This is evidenced by DS Vine’s letter to defence counsel dated 21 August 2017, which he said:
Please note that we are aware that previous disclosure given to your client in paper form has made its way into the hands of other prisoners. Due to the private nature of the contents of the raw telco data we request that care is taken to ensure this does not occur again.
[211] Whether or not this specific concern was raised with me before I directed disclosure of the raw data in November 2019, I cannot now recall.140 I suspect it was not. But I do recall—as I recorded subsequently—that by the end of the hearing, the Crown prosecutor had essentially agreed to make the disclosure.
[212] As I have said, the Crown accepts the non-compliance was a procedural failure and I agree with that. But, in context, I am not inclined to regard it as a significant one. Disclosure did, in the end, occur and as Mr Baker submitted, the length of the delay was short (10 working days) when account is taken of the Christmas vacation. The delay did not, for example, affect that October 2020 re-trial date.
The failures of disclosure around Witness A
[213] As indicated earlier, I regard these as the procedural failures of relevance for costs purposes. Although I address the significance of each in turn, I propose to assess the relevant costs award on a global basis at the end.
Letter of assistance
[214] The Crown accepts that the failure to disclose the letter of assistance given to Witness A was a “significant procedural failure”. It nonetheless submits that, apart from “some lost court time”, the failure was not otherwise prejudicial to the proceeding.141
[215] There can be no question that the Crown’s concession was rightly made. But I cannot agree that the ultimate absence of prejudice to the proceeding should be accorded the weight suggested. If one of the main purposes of s 364 is to denounce such failures, hold the defaulting person accountable and to deter similar breaches in
140 The Crown memorandum dated 11 November 2019 asked for a direction that defence counsel be required to give a confidentiality undertaking but did not set out any specific reasons for this.
141 The Crown submits that a failure of this kind should sound in a costs award in the vicinity of
$5,000.
the future, it cannot be a complete answer to say that the failure was not, in the end, prejudicial. That is because the fact that the failure was not more prejudicial here was because it was remedied as a result of the diligence of defence counsel. Had it not been remedied (and had Witness A given evidence at trial as the Crown intended) the failure would undoubtedly have jeopardised the defendants right to a fair trial, precisely as a similar failure was found to have done in R v Chignell.142
[216] The following, more specific, matters also seem relevant to the current assessment:
(a)at the time of the non-disclosure, three men (Messrs Johnson, Hemara and Hines) were facing a charge of murder which, upon conviction, undoubtedly would have carried sentences of life imprisonment;
(b)Witness A’s evidence was critical to the case against Mr Hines in particular, as is clear from the fact that the Crown moved to have the charge against Mr Hines dismissed once it was clear Witness A would not give evidence;
(c)Witness A was a prison informant witness whose reliability (and the existence of any motive to lie) was, by definition, seriously in issue and the disclosure of any information pertaining to that was critical to the defendants’ ability to mount their defence;
(d)Mr Coles expressly and formally raised the issue of a letter of assistance in his November 2017 memorandum, and provided detailed and cogent reasons to support his position;
(e)on receipt of that memorandum an obligation to make pointed inquiries of Police rested with the Crown prosecutor as well as with Police;
(f)regardless of Mr Coles’ memorandum, and regardless of whether the Crown prosecutor himself had any specific recall of the discussion
142 R v Chignell, above n 34.
about a letter of assistance for Witness A, the Crown prosecutor must have known that Witness A was a prison informant witness and that the existence of a letter of assistance was a live possibility; in the context of seeking anonymity for Witness A the Crown prosecutor was under a series of parallel obligations to disclose to the Solicitor-General, counsel assisting and the Court the existence of any letter of assistance and so, to that end, to he was under an obligation to ensure he was fully informed on the matter;
(g)on the basis of the evidence (or the absence of evidence) before me I am forced to conclude that no action was taken, and no express inquiry was made of Police by the Crown prosecutor as a result of Mr Coles’ memorandum or in pursuit of these parallel obligations;143 And
(h)it was only as a result of Mr Coles’ persistence—and his decision to cross-examine DS Vine at the pre-trial hearing—that the existence of the letter of assistance came to light.
[217] On the other side of the ledger, however, I accept that Police did not deliberately withhold the letter of assistance and that the omission to disclose it in the ordinary way was the result of an unhappy confluence of circumstances: primarily the fact that the principal Police contact with Witness A, DS Bennett, was stationed in [ ] and not part of Operation Palm. I also accept that, once confronted with it, Police were frank about the failure.
[218] Nonetheless, the present is a signal example of the need identified by the Supreme Court in W (SC38/2019) v R for Police to have a centralised record keeping system in relation to incentives offered to prison informant witnesses.144 I am unsure whether, since that decision, any steps have been taken in that direction, but hope that they have.
143 There was, in fact, nothing before me to suggest that Mr Coles’ memorandum had been provided to Police, although I suppose it may have been.
144 W (SC38/2019) v R, above n 47.
The redaction of Witness A’s statements to exclude reference to Dyllan Vaughan
[219] In my view this is the other truly significant procedural failure in this case. It cannot, however, fairly be characterised simply as a failure of disclosure as it intersects substantially with inadequate processes around both prison informant and anonymous witnesses. It acutely highlights the need for prosecutorial Guidelines governing these processes; as identified in 2020 by the Supreme Court and which, in 2021, was addressed by the Solicitor-General.145
[220] Regardless of whether the Inmate Guidelines were in existence at the relevant time, the risks of not having adequate processes in place around prison informant witnesses (including around disclosure) were—or should have been—well known. Mr Vaughan was a prison informant witness. He was always a key part of the case against Mr Johnson. By the end of the first trial, he had become even more so. But given his reliability was always going to be critical—and the clear potential impact on Mr Johnson’s fair trial rights—there was, in my view, an obligation to make active inquiries.
[221] There were, I think, a number of areas that should have been pursued. Putting to one side the point that the circumstances of Mr Vaughan’s alleged interaction with Mr Johnson were improbable,146 there was a need to inquire not just as to whether there was any confirmatory evidence but also as to any opportunity to concoct/access to other sources of information, including by inquiring into relevant prison movements. Here such inquiries would (without too much difficulty) have revealed:
(a)the prison movements showed that Witness A, Mr Vaughan and Mr Hemara were all incarcerated together very shortly before Witness A made his second statement and Mr Vaughan made his statement;
145 W (SC38/2019) v R, above n 47; the Inmate Guidelines, above n 46.
146 Much was made of this by defence counsel at trial. His evidence was that, while wearing his Nomad patch, he had got into the same car as Mr Johnson (known to Mr Vaughan to be a member of the Mongrel Mob—a rival gang) to smoke methamphetamine.
(b)the striking but inaccurate similarities between Mr Vaughan’s account of what Mr Johnson had told him about his involvement in the murder, and Witness A’s account of what Mr Hemara had told him about Mr Johnson’s involvement in the murder;
(c)the fact that Witness A had referred to Mr Vaughan being present in the prison yard during a conversation about the murder with Mr Hemara; and
(d)Mr Vaughan’s statement that he had only ever talked to Mr Johnson about the murder.
[222] These matters should have placed the prosecution on high alert: either Mr Vaughan or Witness A must have been lying. And, to the extent the prosecution nonetheless resolved to call Witness A and Mr Vaughan as witnesses, disclosure to defence counsel of the matters referred to in (a) and (c) were critical.
[223] Of course, matters did not unfold like that. It was disconcertingly a matter of good fortune for Mr Johnson (as a result of inconsistent redaction of DS Bennett’s handwritten notes) that the possible presence of Mr Vaughan at a conversation in the prison yard with Mr Hemara and Witness A was uncovered by defence counsel.
[224] As noted earlier, this is ultimately an issue that goes wider than just disclosure. For that reason, this aspect of the costs claim could equally (and perhaps better) have been framed under the CCCA. But I do not consider that should stand in the way of the claim as it has been advanced before me; an award of costs is—under either statute—warranted.147
[225]In terms of assessing the significance of the failure, most of the points made at
[216] above continue to be relevant. As well, however, there are the further matters set out below.
147 Because all the charges against both Messrs Johnson and Hemara were, ultimately, dismissed, they could properly be regarded as having “succeeded” and so as crossing the threshold for making a claim under s 5(1) of the CCCA.
[226] First, I have no doubt that the redactions to Witness A’s statement were made by Police in good faith to protect Witness A’s identity and to protect his safety. As I acknowledged early on, I do not doubt the difficulties posed for Police by a case of this kind.
[227] But a much more careful analysis—with the involvement, or at least oversight, of the Crown prosecutor—was, in my view required. The critical issue that needed to be squarely considered was whether Mr Johnson would receive a fair trial if Witness A’s second statement was redacted in the way it was and if Witness A’s identity was not disclosed. The fact that the charge against Mr Johnson was dropped once it was clear that the Crown needed to make a choice between disclosure/fair trial rights and protecting Witness A’s identity suggests very clearly that he would not.
[228] It is no answer to say that the onus is on defence counsel to make an application under the CDA if they consider the disclosure made is deficient or lacking. If it were not for the mistake in the redaction of DS Bennett’s handwritten notes, defence counsel would have had no way of knowing the possible relevance of what was missing from Witness A’s statement or of the importance of knowing Witness A’s identity. The only course was to seek review of all redactions by an amicus as, of course, occurred here. But in a case of this size and complexity even an amicus is of limited utility. There is simply no way that Mr Corlett could have known the potential relevance of Mr Vaughan’s presence in the yard.
Concealment of Crown prosecutor’s presence at the meeting with Witness A
[229] The Crown prosecutor’s instruction to DSS Baskett to omit reference to his (and his junior’s) presence at the meeting with Witness A from the job-sheet was wrong, and a bad failure of judgement. The reasons later given for it (to avoid the possibility of being called as a witness) are certainly no justification. And I do not doubt that DSS Baskett was put in a truly invidious position by the instruction; I am not therefore prepared to attribute discrete blame to him for following it. Crown prosecutors are officers of the Court and, in general terms, Police should be entitled to assume that a Crown prosecutor would only give them instructions that do not breach their obligations as such.
[230] I accept that the non-disclosure was not particularly significant in terms of prejudicial effect on the defence in this case. I have said already that I am not prepared to find (on the basis of the now disclosed handwritten notes) that further inducements were in fact discussed or offered at the meeting on [ ], although I accept that (had the hand written notes been disclosed and had Witness A given evidence at trial) there might be a basis for cross-examining Witness A (or DSS Baskett) about that. The relevant substance of the meeting—being that Witness A was prepared to give evidence—was, in a sense, conveyed to both the Court and defence counsel by the Crown’s otherwise inexplicable revivification of its anonymity application. But the failure was, I think, significant in its potential impact on the public faith in the administration of justice more generally. It is fundamental that Crown prosecutors must act at all times as “ministers of justice” and that standard was not met here and I agree with defence counsel that the failure should be “marked” by a (modest) costs award.
Quantum of the costs award: overall assessment
[231] As noted earlier, I propose to take a global approach to the question of quantum. In taking that approach I necessarily take into account the awards made in the recent cases I have already mentioned.148 Thus:
(a)In Bublitz, a complex fraud trial was aborted in its eighth month after it was discovered that, through inadvertence, the prosecutor had failed to disclose some 14,619 documents. The High Court awarded CPA costs of $50,000 to be shared between the four defendants and the Court.149 This order was upheld on appeal, with the Court of Appeal observing that it might have made a more substantial order given the scale of the neglect and its effects on Mr Bublitz’s ability to obtain counsel of choice.150
(b)In Lyttle, there was a pattern of multiple and ongoing disclosure failings, characterised by the Court of Appeal as “egregious” and an
148 Counsel for the defendants suggested that an award in the vicinity of $250,000 be made.
149 R v Bublitz, above n 25, at [131].
150 Bublitz v R, above n 14, at [49].
“affront to the administration of justice”.151 These failures necessitated two adjournments of the trial fixture, and a subsequent mistrial (and two stay applications were finely balanced).152 Incorrect assurances had been given to the court, which were followed by “large tranches” of disclosure,153 and it was apparent that those withholding or redacting material did not understand their obligations or seek advice.154 Information was withheld for no legitimate reason.155 An overall award of $75,000 was upheld on appeal. Again, the Court of Appeal indicated a higher award would not have attracted criticism.156
(c)In R v S, the High Court awarded CPA costs of $30,000 for multiple disclosure failures in the case involving medical evidence, and there had been delays in the trial as a result of disclosure issues.157 The Court of Appeal said that the award of $30,000 was at “the upper limit of what was “just and reasonable” in light of the costs incurred but that the “award was not so out of kilter as to require the intervention” of the Court.158 The Court of Appeal said that a “stern penalty needed to be imposed as a salutary warning to prosecuting authorities to discharge their disclosure obligations in a professional manner”.159
[232] Having considered these cases and in light of my assessment of the relevant failures above I consider an award of $40,000 is appropriate here. I accept that the costs incurred as a result of the failures were not in the order of Bublitz or Lyttle but, as I have said, the failures squarely engaged the defendants’ fair trial rights and it is disturbingly a matter of chance that they were uncovered. Had the letter of assistance and/or the relationship between Witness A and Mr Vaughan only been uncovered later—after a conviction—I have little doubt that a retrial would have been ordered,
151 R v Lyttle, above n 10, at [93].
152 At [84].
153 At [49]; quoting Simon France J in R v Lyttle [2017] NZHC 2631 at [41].
154 At [69]; quoting Mallon J in R v Lyttle [2020] NZHC 488 at [68].
155 At [87].
156 At [93]–[94].
157 S v R [2010] NZHC 1375, [2020] 3 NZLR 205 at [41].
158 R v Lyttle, above n 10, at [149]; as noted above, R v Lyttle also decided two other actions, including
R v S.
159 At [150].
and the defendants (along with witnesses and counsel and the Court) would have suffered from all the cost and delay attendant on that. Moreover, the failure relating to Mr Vaughan was such that—as history shows—Mr Johnson could not have had a fair retrial in any event.
[233] And despite the rejection in Lyttle of a claim against the Crown prosecutor,160 in the circumstances of this case, I consider the costs ordered should be borne (paid) equally by the Crown prosecutor and Police. Section 364(8) authorises such a division. As I trust will be evident from my analysis above, I consider the Crown prosecutor had a more direct and active part in the relevant failures here than in the other cases.
Result
[234] The application under s 364 for costs is granted, but in a limited amount. An order is made that the New Zealand Police and the Office of the Crown prosecutor for Palmerston North each pay costs in the sum of $20,000. The order is made in favour of Messrs Johnson and Hemara equally and is to be applied to the Legal Services Agency in reduction of their debts to that Agency.
[235] There is a permanent suppression order, made in the criminal proceedings, which suppresses the name and anything that might identify Witness A. That order operates in respect of this judgment also.
Rebecca Ellis J
Solicitors:
Crown Law, Wellington
160 R v Lyttle, above n 10, at [98].
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