R v X

[2009] NZCA 531

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ORDER PROHIBITING PUBLICATION OF THE JUDGMENT AND ANY PART OF THE PROCEEDINGS (INCLUDING THE RESULT) IN NEWS MEDIA OR ON THE INTERNET OR OTHER PUBLICLY AVAILABLE DATABASE UNTIL FINAL DISPOSITION OF TRIAL.  PUBLICATION IN LAW REPORT OR LAW DIGEST

PERMITTED.

IN THE COURT OF APPEAL OF NEW ZEALAND

CA553/2009 [2009] NZCA 531

THE QUEEN

v

X (CA553/2009)

Hearing:         14 October 2009

Court:            Hammond, Ronald Young and Fogarty JJ Counsel:    C D Savage for Appellant

C L Mander and M J Inwood for Crown

Judgment:      13 November 2009 at 10 am

JUDGMENT OF THE COURT

A        The application for leave to appeal is granted. B     The appeal is dismissed.

C        Order  prohibiting  publication  of  the  judgment  and  any  part  of  the

proceedings (including the result) in news media or on the internet or

R V X (CA553/2009) CA CA553/2009 [13 November 2009]

other   publicly   available   database   until   final   disposition   of   trial. Publication in law report or law digest permitted.

REASONS

Hammond and Fogarty JJ   [1] Ronald Young J (dissenting)  [92]

HAMMOND AND FOGARTY JJ

(Given by Hammond J)

Table of Contents

Para No

Introduction  [1] Background  [5] The s 344A application  [18] The legislation

The scheme of the Evidence Act 2006  [21]

Section 69  [28] The issues in this case  [31] Was the “information” confidential?

Confidentiality in general  [32]

Was the information confidential in this case?  [49] The public interest in disclosure  [62] The general law  [63] Section 69          [66] Conclusion  [89]

Introduction

[1]      X, a soldier, is facing charges of attempting to murder a fellow soldier (V) and burglary.  This appeal is concerned with the admissibility of critical evidence on the attempted murder charge.

[2]      French J ruled as admissible in X’s forthcoming trial certain evidence of admissions made by X to two psychiatric nurses during a mental health assessment,

and related portions of a subsequent police interview: HC CHCH CRI-2008-076-

001397 13 August 2009.

[3]      X has applied for leave to appeal against the Judge’s rulings.   The Crown does not oppose such leave.   The application clearly comes within the criteria for granting leave set out by this Court in R v Leonard [2008] 2 NZLR 218 (CA). The outcome of the application will make a significant difference to the course of X’s trial; indeed, it will likely be determinative of it. Leave to appeal is accordingly granted.

[4]      There are two issues before us.  The first is whether the Judge was correct to rule that the relevant information was not confidential.   A second issue – if the information was confidential – is whether the Judge properly exercised her discretion under s 69 of the Evidence Act 2006 in directing that the public interest in the disclosure of the information outweighed the public interest in preventing harm to the relationship between X and the two psychiatric nurses.  While this is not the first time this Court has been asked to consider the application of s 69 (see R v Bain [2009] NZCA 1 at [52]-[58]), it is the first case which has required consideration of how s 69 applies to information imparted in circumstances where limited disclosure is anticipated and consented to at the time the information is imparted.

Background

[5]      At the time of the alleged offending, X was 17 years of age.  The victim V was 19 years old.  Both men were trainee medics with the New Zealand Army.  They were on an exercise at the Tekapo Military Camp.

[6]      Towards the end of their time at the Camp the two men were assigned shared living quarters.  This consisted of a wooden hut, divided into two bunk rooms with a smaller storage room in between.  For about a week prior to the incident in question X occupied the top bunk in one bunk room while V slept directly below him.

[7]      The Crown alleges that in the early hours of 26 June 2008 X attacked V as he slept.  X had climbed down from his bunk, put on his army-issue overcoat and boots

and left the bunk room for perhaps an hour.  When he returned at around 1.00am he took up a Swiss Army-style knife and opened the foldaway blade portion of the knife.   He then stood over V with the knife in his hand, watching him for a time while he slept.  He then attempted to stab V directly in the throat with the pocket knife, in an effort to severe V’s larynx, so V would be prevented from crying out for assistance.

[8]      As it transpired, V began to turn over in his bed just as X was about to strike. Consequently X missed V’s throat and stabbed him instead in the face, close to his left eye.   He inflicted further stab wounds on V’s forearms as V awoke and endeavoured to protect his face.

[9]      V began to cry out, at which point X ceased the attack and ran from the bunk room.  He ran out of the confines of the Tekapo Military Camp and along a state highway in the direction of Twizel.

[10]     By that time another army medic in the other bunk room had heard V’s cries for help.  She discovered V lying on his bunk bed, covered in blood.  That medic administered first aid.

[11]     During his flight, X burgled a nearby house before he was apprehended by the police the following morning.

[12]     After initially lying to police regarding his identity, X admitted to being the missing soldier from Tekapo Military Camp and having broken into the house.  He was arrested for burglary and taken to the Timaru Police Station.   There he was interviewed, but he declined to make any comment about the attack on V.

[13]     Due  to  the  startlingly  random  and  apparently  unprovoked  nature  of  the incident, the police called in two psychiatric nurses from the Triage Assessment and Crisis Team (TACT) in Timaru to assess X to ensure his safety and that of those persons who might come into contact with him.

[14]     The two nurses, A and B, met with X at about 5.00pm.  We will detail more closely what transpired between the nurses and X later in this judgment.  In broad terms, the Crown case is that the nurses advised X that they required his consent to assess him.  They said that while anything he told them was confidential, there were limits on that confidentiality and that they would be discussing their findings with police, the Court and the consultant psychiatrist.  It is said that X verbally consented.

[15]     It  is  accepted  that  during  this  assessment  X  made  admissions  that  he committed the attack on V and that, in doing so, he intended to kill him.  This is of the  gravest  import  in  an  attempted  murder  charge  because  proof  of  a  present intention to actually kill is the gravamen of the offence.

[16]     When asked why he would want to kill someone he had earlier described as a friend, X said he felt that if he could kill a friend, then he could kill anyone.  X went on to say that he regretted hesitating while standing over the victim and that had he not done so, he would have achieved his purpose.  Frustrated at his hesitation, he had stabbed at V randomly until V awoke and cried out for help.   At the end of the assessment, the nurses told the arresting officer of these admissions.

[17]     The next day this officer asked X if he would consent to another interview, in light of his disclosures to A and B.   In this interview, X declined to make any comment about the attack beyond, when asked what had led him to the point where he would want to kill a friend, he responded: “One word ... curiosity.”

The s 344A application

[18]     Prior to trial, X’s counsel challenged the admissibility of the evidence of the TACT nurses and the related portions of the subsequent police interview, on the grounds that:

•   The communications with the nurses were privileged under s 59 of the Act or, alternatively, the Court should order the nurses’ evidence not to be disclosed in the proceedings under s 69 of the Act; and

•   The  subsequent  police  interview  was  tainted  by  that  inadmissible evidence.

[19]     In   an   interim   judgment   of   30 March   2009,   French J   held   that   the communications were not within the scope of s 59.  That ruling is not the subject of appeal.

[20]     On  13 August  2009,  after  hearing  evidence  from  the  TACT  nurses  and submissions from both parties, French J admitted the impugned evidence on the following grounds:

•   The communications were not confidential because the nurses told X at the outset of the assessment that any concerns would be communicated to the police and that they would be discussing their findings with police; and

•   Even  if  the  communications  were  confidential,  having  regard  to  the factors listed in s 69(2) and (3), the public interest in having the material before the Court was not outweighed by any competing public interests.

The legislation

The scheme of the Evidence Act 2006

[21]     Given that the issues before us  are apparently novel under the  Act it is appropriate  to  set  s 69  in  the  overall  context  of  the  Act  before  turning  to  the particular issues we must resolve.

[22]     For a long time now in both the civil and criminal spheres our law has had to confront  the  general  problem  of  when  information  imparted  by  one  person  to another, and which is said to be confidential, should be able to be withheld from being referred to in court.

[23]     The law has utilised various concepts to address this generic problem.   In particular,  over  the  course of  time a  number  of  privileges  were developed.    A privilege is  the name given  to  a rule of  law  that  permits  a lawful  demand  for information to be refused.   Unlike an obligation of confidentiality it operates exclusively as a shield.  Just what relationships should give rise to such privileges has historically been a matter of some debate, and the exact boundaries of some privileges have been quite controversial.

[24]     Sections 54 to 64 of the Act establish, for the purposes of both the civil and criminal law in New Zealand, just what privileges are now permitted.  Without being exhaustive, a privilege is allowed for instance in certain respects between solicitor and client and priest and penitent.  A privilege is that of the holder of it.  But the privilege  is  not  absolute.    It  can  be  waived  (s 65),  and  a  court  can  disallow  a privilege on the basis set out in s 67.  These include instances of dishonesty or the planning  or  committing  of  what  the  person  claiming  the  privilege  knew,  or reasonably should have known, to be an offence.

[25]     Section 68(1) of the Act provides a measure of protection for journalists’ sources of information.   But s 68(2) provides that that protection is subject to the control of a Judge of the High Court.

[26]     It  will  be  observed  that  there  is  a  distinct  theme  running  through  the provisions just noted.   These are relationships to which, for good and sufficient reason, Parliament has seen fit to accord protection, in the sense that the holder of the privilege is entitled to resort to that privilege.  But, the holding of the privilege is subject to judicial oversight, on the terms prescribed by the Act.

[27]     Parliament was then faced with the problem of what to do about less clearly defined or established relationships, and discrete information which is said to be confidential.  It enacted s 69, to deal with this issue.

Section 69

[28]     Section 69 of the Act provides:

69.      Overriding discretion as to confidential information

(1)A direction under this section is a direction that any 1 or more of the following not be disclosed in a proceeding:

(a)       a confidential communication: (b) any confidential information:

(c)any information that would or might reveal a confidential source of information.

(2)A Judge may give a direction under this section if the Judge considers that  the  public interest in the disclosure in the proceeding of the communication or information is outweighed by the public interest in—

(a)preventing harm to a person by whom, about whom, or on whose behalf the confidential information was obtained, recorded, or prepared or to whom it was communicated; or

(b)      preventing harm to—

(i)        the particular relationship in the course of which the confidential communication or confidential  information  was  made, obtained, recorded, or prepared; or

(ii)       relationships that are of the same kind as, or of a kind similar to, the relationship referred to in subparagraph (i); or

(c)       maintaining activities that contribute to or rely on the free flow of information.

(3)       When considering whether  to give  a  direction  under this section, the Judge must have regard to—

(a)       the likely extent of harm that may result from the disclosure of the communication or information; and

(b)the nature of the communication or information and its likely importance in the proceeding; and

(c)       the nature of the proceeding; and

(d)the  availability  or  possible  availability  of  other means of obtaining evidence of the communication or information; and

(e)       the availability of means of preventing or restricting public disclosure of the evidence if the evidence is given; and

(f)       the sensitivity of the evidence, having regard to—

(i)      the time that has elapsed since the communication was made or the information was compiled or prepared; and

(ii)       the  extent  to  which  the  information  has already been disclosed to other persons; and

(g)       society's interest in protecting the privacy of victims of offences and, in particular, victims of sexual offences.

(4)The  Judge  may,  in  addition  to  the  matters  stated  in subsection (3), have regard to any other matters that the Judge considers relevant.

(5)A Judge may give a direction under this section that a communication or information not be disclosed whether or not  the  communication  or  information  is  privileged  by another provision of this subpart or would, except for a limitation or restriction imposed by this subpart, be privileged.

[29]     Section 69 is much more broad-based than the narrower and more particular privileges which precede it.   The section is directed to “a” or “any” confidential information, or any information that would or might reveal a confidential source of information.    But  information  of  that  character  (as  to  which  we will  say more shortly) may have to be made subject to non-disclosure to prevent harm to a person (s 69(2)(a)); or to prevent harm to a particular kind of relationship (s 69(2)(b)); or to “maintain  activities  that  contribute  to  or  rely  on  the  free  flow  of  information” (s 69(2)(c)).  In considering whether to make an order for disclosure of confidential information  the  court  must  have  regard  to  the  factors  set  out  in  s 69(3). Section 69(4)  provides that those factors are not exhaustive.

[30]     Hence the overall scheme of the section is that, even if “information” is confidential, if relevant it can be required to be given in court unless the court makes a non-disclosure order.

The issues in this case

[31]     The issues which arise in the instant case are as follows:

•   Was the information which X imparted to A and B confidential (including the critical information as to his intention at the time of his attack on V)? That is a pre-condition to a possible s 69 order.

•   If the information was confidential, should the Court have made an order under s 69 protecting that information?  On the assumption (for the sake of argument) that it was, the Judge declined to do so.

Was the “information” confidential?

Confidentiality in general

[32]     The Act does not define “confidential information”.  There is a considerable body of case law in various areas of the law relating to confidential information. However, this Court has seen the proper approach to the interpretation of the Act, following s 10, as being an exercise which should proceed on a first principles basis with respect to the new Act itself.  See, for example, R v H (2007) 23 CRNZ 923 at [48] (CA).

[33]     Therefore, approaching the construction of this terminology anew, as it were, in everyday terms confidentiality is double edged: it is both about keeping information  which  is  not  known  secure  and,  secondly,  about  controlling  the disclosure of that information.

[34]     Viewed as an ethical concept, confidentiality refers to an obligation to protect information that is not generally known and to disclose it only to approved persons, or to use it for agreed purposes.

[35]   In a jurisprudential sense, this dualistic characteristic corresponds with Hohfeld’s terminology (“Some Fundamental Legal Conceptions as Applied in Judicial Reasoning” (1913) 23 Yale LJ 16): it involves both a right and a correlative duty.

[36]     The term can also be considered in a functional way.  In professional-client relationships, the issue of confidentiality can arise when some personal information has been disclosed and privacy has been surrendered or yielded up in some respects. For instance, a patient tells his doctor he is homosexual and suspects he may have AIDS. He may not reveal such information if it is to become common currency.

[37]     The common law has never restricted the subject matter of confidentiality, nor would there seem to be any particular reason to do so under a new Act which is intended to apply to both the civil law and the criminal law.   Hence the subject matter of confidential information may be, but does not have to be, restricted to something intimate (such as one’s health) or personal (such as one’s bank balance) or commercial (such as a trade secret).  Doubtless there will be an accretion of case law over the life of the Act.   It would be unwise, and in any event extremely difficult, to achieve an intrinsic and all-encompassing definition of confidential information.  Parliament itself eschewed that very task.

[38]     For the purposes of this case, it seems incontrovertible that medical and psychiatric information about a person is capable of being confidential information under the Act.  In passing it may be worth noting that this was the position which had been taken at common law prior to the enactment of the Act.  So in this respect this represents a “no change” position under the new Act.   See, for example, W v Egdell  [1990] Ch 359 (CA); P  v  D  & Independent  News  Auckland  Ltd  [2000]

2 NZLR 591 (HC); and Ashworth Hospital Authority v MGN Ltd [2002] 1 WLR

2033 (HL).

[39]     For discussion of this confidentiality principle in the medical area see Skegg

& Paterson  (eds)  Medical  Law  in  New Zealand (2006)  at  325-339  and  Bell  & Brookbanks Mental Health Law in New Zealand (2ed 2005) at 353-379.

[40]     Our conclusion on this particular issue is that information given by X as to his own state of mind in the course of a psychiatric assessment was certainly capable of being “confidential”.

[41]     The next issue then is, notwithstanding that the information was capable of being confidential, must there be a distinct relational context for it to be protectable?

[42]     In the general law of confidentiality there has long been an emphasis not only on the information having the necessary quality of confidence, but that it was “imparted in circumstances importing an obligation of confidence”: Coco v A N Clark (Engineers) Ltd [1969] RPC 41 at 47 (Ch D) (per Megarry J). But this approach proved to be unduly restrictive, because it did not catch cases of criminal intrusion, or eavesdropping or accidental “happenings” (such as a confidential diary accidentally left on a seat in an airport lounge and handed to the press).

[43]     Ultimately, the House of Lords surmounted these difficulties by removing the need for some pre-existing confidential relationship.   As Lord Goff put it in the Spycatcher case (Attorney-General v Guardian Newspapers (No 2) [1990] 1 AC 109 at 281):

I start with the broad general principle ... that a duty of confidence arises when confidential information comes to the knowledge of a person (the confidant) in circumstances where he has notice, or is held to have agreed, that the information is confidential, with the effect that it would be just in all the   circumstances   that   he   should   be   precluded  from  disclosing  the information to others.

[44]     The downstream consequence of this “relaxation” of the older law was a distinct shift to one of a “reasonable expectations” test.  See, for instance, Campbell v MGN Ltd [2004] 2 AC 457 (HL), Douglas v Hello! Ltd (No. 3) [2006] QB 125 (CA), the Royal Diaries case (HRH Prince of Wales v Associated Newspapers Ltd [2008] Ch 57 (CA)), and Lord  Browne  of Madingley  v  Associated  Newspapers [2008] QB 103 (CA).

[45]     The result has been that the basic principle in the civil law is now (as a matter of substantive law) that information of a requisite character will be protected as confidential where the complainant has a reasonable expectation of confidentiality or privacy and the defendant has agreed to keep the information confidential or has notice of its confidentiality.

[46]     As often occurs with any underlying shift in legal theory, new problems were thereby created.   The principal one is (leaving aside explicit agreement) how a reasonable expectation of confidentiality is to be identified.   In the Royal Diaries case, Lord Phillips CJ said that the identification of a claimant’s reasonable expectation must involve a number of factors which form an “interdependent amalgam of circumstances” (at [36]).  With great respect, that may be thought to be a little dense.  In more orthodox terms, Lord Phillips CJ’s dicta can be taken to mean that each case must be decided on its own facts, and on an objective basis.  This last point  is  quite  significant:  the  aim  is  not  to  identify  what  the  claimant  in  fact expected.   It is rather to fix, objectively, the outer limits of what he or she might reasonably expect.

[47]     As we have already indicated, this is the thrust of the prior civil law.   By “prior” we do not mean to imply that this body of substantive law has somehow been superseded by this Act.   That body of law remains firmly on foot and is very important, for it can form the basis of a substantive civil claim.   It is useful here insofar as it gives some insight as to how courts have to date seen the parameters of “confidence”.

[48]     To revert to s 69(1), it will be noted that in 69(1) the categories there set out are not anchored in a necessity for a “relationship”.   To put this another way, the definition in s 69(1) of what can come within the provision is consistent with the more modern view of the law of confidentiality: that information can be confidential because of a reasonable expectation of confidentiality, even in the absence of a particular kind of relationship, or agreement.

Was the information confidential in this case?

[49]     It is necessary to now examine in some detail the evidence which was led in the High Court.

[50]    Nurse A confirmed that she had been a member of TACT since it was established in 1999.   She described the responsibilities of that team as being “to triage, assess, develop crisis plans and monitor clients for up to 4 weeks ... we deal

with moderate to severe mental health disorders, so that’s the top 3 % in New

Zealand”.  Clients can be referred by the police.

[51]     As a result of information received from the police A and B went to speak with X.  X was with his lawyer when the team arrived, but she declined to “sit in” on the assessment.  It is common ground that quite apart from his having had access to legal advice, X had been given the usual advice required under the New Zealand Bill of Rights Act 1990 on more than one occasion that day.

[52]     The following appears in the notes of evidence as to what transpired when X

was spoken to by Nurse A:

...

a.        ... the very first thing we do is introduce ourselves, explain who we are, our backgrounds that we’re comprehensive nurses, that we’re attached to the Kensington Hospital, that we’re there to provide a Mental Health Assessment, that the assessment will take approximate an hour and that it covers a broad overview of the person including why they’ve ended up in the police station, we then go on to explain about confidentiality, that what the person tells us is confidential but there’s limitations to that, that we’ll always discuss  it  with  our  consultant  psychiatrist,  if  the  person  wants  family involved we’ll discuss it with them, that we’ll discuss it with the referring agent which in this case was the police.  and usually we’ll let the persons GP know we’ve had contact and any outcomes of our assessment at that point

q.        use the word confidential, what do you mean

a.        confidentiality pertains to the fact you’re not going to go and talk about what the persons told you to anybody other than the relevant agencies or authorities

q.        in  this  particular  case  was  there  any  request  of  you  to  prepare something in writing

a.        yes we always after an assessment we prepare an assessment report which is our comprehensive assessment, and we also prepare a report for the judge and that usually has a recommendation on it as to what we’d like to see happen in sentencing

q.        in this particular case do you recall giving this confidentiality speech to the accused

a.         yes, I give it to everybody

q.        do you recall if he indicated to you whether he understood what you’d said to him

a.        I  asked  him  if  he  was  happy  to  speak  with  us  and  have  the assessment, his response was I hope I pass your test, and I then went on to just go over it again quickly with him that it wasn’t a test, it was an assessment, we were just having a look at what was happening for him, what had led up to these events and whether or not he would require treatment or if there was any way that we could actually assist him

q.        in terms of your explanation of discussing what had happened within your consultation with other parties including the police, did he acknowledge any acceptance as to that

a.        well he yeah, he agreed to the report being written, to discussing it with the psychiatrist and to discussing the outcomes

q.        this preliminary discussion you had, was that prior to any disclosures being made by the accused

a.         yes, it’s the start of the assessment, its right at the beginning then we ask the person if they’re happy to proceed and he said yes he was, I also caution people if they’re not comfortable to discuss anything they can say pass or choose not to discuss anything

q.        want to talk specifically about the limits of confidentiality in terms of what you were going to discuss with the police.  what specifically would you raise with the police

a.        with the police its always the focus is on risk, the risk the person poses to the community or to themselves.  And then our recommendations. And safety options

q.        did you say that in this particular case to the accused, did you tell him that’s what you’d say to the police

a.         I don’t remember specifically pointing that out, I just said we would inform the police of the outcome

q.        did he acknowledge that at all

a.         well yeah he pretty much just agreed

...

[53]     In cross-examination Nurse A said:

...

q.       you’ve said the ordinary nurse/patient consultation is treated in confidence that’s just the way it is

a.         confidentiality is part of the assessment process

q.        but at the start of the assessment the patient is advised that other people may be made aware of your recommendations

a.        the patients advised the exact people that will be made aware and they are also advised regarding the Mental Health Act usually

q.        so the Court is going to be told of your recommendation a. yes – well the judge

q.        the consultant psychiatrist a.        yes

q.        and if you’re of the view the patient presents a risk to him/herself to the community or to the police themselves you can make the police aware of your recommendation

a.        it’s the referring agency, yeah on this occasion it was the police yes we’ll always give them an outcome

q.        did you tell [X] that anything he said to you may be passed onto the police

a.         no.

q.        was the advice you gave him limited to the fact that outcomes may be passed onto the police

a.         risk and outcomes, a summary of our findings

...

q.        would  you  accept  at the commencement  of  the  assessment  your advice to him about what may be told to the police was limited to the fact the police may be informed of an outcome

a.         yes, it was a general overview, yeah

...

[54]     Nurse A formally produced the report which was prepared as a result of this assessment.  It is as follows:

Date: 27.6.08

To the Presiding Judge Timaru District Court North Street

TIMARU

Dear Sir / Madam

Re: [X] Date of Birth: 8.10.1990

We have assessed this person at the request of New Zealand Police.

We saw this person at Timaru Police station on 26.6.08 at 5 pm.

We were asked to assess this person because issues had been raised in the police interviews which pertained to [X]’s mental state.

The person did agree to this assessment interview.   The interview was conducted in the presence of [B] and [A].

In summary, my findings of the assessment are as follows:

[X]  is  a  17  year  old  man.    He  was  apprehended  by  police  after  an unprovoked knife attack on a friend in the army barracks.  His friend was asleep at the time.  During our interview [X] reported that the attack was a direct result of a desire to test his ability to kill.  He has fantasised about this for many years and decided to but [sic] it into practice in a calculated and planned manner using techniques he claims to have learnt through martial arts.  The way he had planned it was to cut the friend’s trachea to disable his vocal cord.  His attempt was unsuccessful due to his hesitation and his friend turning over in his sleep.  [X] regrets his hesitation and expresses no remorse other than getting the technique wrong.  The trigger he claims is a song he has programmed on his MP3 player which in its lyrics describes ‘ripping somebody’s heart out’.

Through  out  the  assessment  [X]  was  smiling  inappropriately  and  only showed  emotion  when  talking  about  his  loneliness  and  longing  for  his family.  He has delusional believes [sic] about a Japanese cartoon character being based on him, his life, thoughts and personality traits.   He reports being obsessed by these violent characters and that they have messages aimed directly at him.  [X] expressed his desire to repeat an attempt to kill once his technique is perfected.

In  our  opinion  [X]  needs  further  psychiatric  assessment  in  a  custodial setting.   He is of high risk of re-offending and may well be experiencing psychotic phenomena which may be driving his offending.  This letter has been discussed with Dr [Z], Consultant Psychiatrist Kensington centre.

We trust that the Court finds this report useful. Yours faithfully

Signed [B]                   [A]

[55]     Nurse B confirmed that she was a registered psychiatric nurse and had been a member of TACT for four years.  She said:

q.        ... you go on and mention that in situations where persons are in police custody that you’ll make any concerns you have known to the police and that such information overrides the individuals expectation of confidentiality

a.         yes when there is risk involved

q.        in this particular case can you recall that being explained to the accused

a.        yes we do explain that and it was done in this case as well as all the others

...

q.        although you’ve referred to this in your statement, as far as you were concerned were you satisfied this was explained to him in a fashion that he clearly understood

a.        yes I have no doubt that he had any problems with understanding what we’d explained to him.

[56]     She also said in cross-examination:

...

q.        Do you accept that you went beyond advising the police that [X] was a risk to others when you told them the full detail of the communications he’d imparted to you

a.         I didn’t go beyond what we thought was necessary at that time

...

q.        do you tell patients that anything they tell you is liable to be passed on to the police

a.         no the majority of our interviews are not done at the police station and the majority of interviews we do are not risk to others they’re mainly risk to self

q.        when you are assessing people at the police station do you make it clear to them you’re prepared to tell the police anything they tell you should the need arise

a.        we explain to them we’ll tell the referrers risk.  And part of risk is intent

q.        what I’m getting at is you could have explained to the police that [X]

presented a risk to others, without imparting everything he told you a.       it was a matter of risk and risk is often specific

q.        who did you assess the specific risk as being to in this situation a.  to the general public if [X] was to walk out at that point

...

a.         we made it clear that if it was issues of risk it would be passed on, and we passed on the issues of risk

q.        would it be fair to say you made it clear to him that the issue of risk would be passed on rather than the information that came out of the hour- long assessment would be passed on in detail

a.         mm, we felt that the risk here was the intent and therefore we needed to pass that on and a lot of whats been said in our statement is the risk and the intent

...

[57] We should record that not all of the nurses’ contemporaneous notes were referred to the police. The Judge found, for instance, that “highly personal information about the accused’s family” was not relayed to the police: at [39].

[58]     On this evidence, French J held:

[40]      I accept that generally speaking the relationship of nurse-patient can be described as a relationship of confidence.

[41]      However, on the facts of this case, I consider the communications at issue were not confidential because of what the nurses told the accused at the outset of the assessment.  He was aware from the outset that any concerns would be relayed to the police but nevertheless agreed to continue.  In those circumstances, I do not consider it is now open to him to argue that matters directly relevant to those concerns were confidential.

[59]     This is a difficult case.  As the Judge rightly recognised there was force in the arguments on both sides as to whether the information imparted by X was confidential.  One source of very real difficulty – though we do not say this by way of criticism – is that the nurses accepted that they did not explicitly say to X that anything he said might be passed on to the police.   We agree with the Judge’s reading of the evidence that the nurses’ explanation for relaying detail about X’s intent rather than just the existence of a risk was that they thought that such detail was necessary to understand the risk.   That risk the nurses thought to be X’s “intention to kill”.  Nurse B put it succinctly when she said “the risk here was the intent”.

[60]     However,  we  do  not  agree  with  the  Judge  that  there  was  anything approaching an agreement that detail of the intention to kill could be passed to the police,  at  least  without  X’s  specific  consent.    He  clearly  did  not  adequately understand – perhaps the nurses did not either – the significance of an intention to kill,  in  legal  terms.    And  significantly,  X  seems  to  have  been  warned  against allowing any information of that kind to be disclosed to persons in authority; when

he was interviewed by the police (clearly mindful of his rights and/or what his solicitor had told him) he was extremely guarded.

[61]     That said if, as we have suggested, the test is an objective one – a reasonable expectation of confidentiality – a reasonable person in X’s position could hardly have expected that what he said to the psychiatric nurses could be utilised against him in the most damning way in a court of law.  And there was nothing approaching what might be termed an informed waiver of that expectation.  We take the view that the information was confidential for the purposes of s 69.

The public interest in disclosure

[62]     Given the information was confidential, the next issue is whether the Court should have made an order under s 69 protecting the information from disclosure.

The general law

[63]     It has for many years now been an accepted principle in relation to the civil law of confidentiality that there may be just cause for the use or disclosure of the information.  This principle can be traced back to the old equitable maxim that there is no confidence in an iniquity: Gartside v Outram (1856) 26 LJ Ch 113. It was subsequently broadened into its more modern formulation by (principally) Lord Denning in cases such as Fraser v Evans [1969] 1 QB 349 (CA). And in Initial Services  Ltd  v  Putterill  [1968] 1 QB 396 (CA) Lord Denning said that this proposition (at 405):

... should extend to crimes, frauds and misdeeds, both those actually committed as well as those in contemplation, provided always – and this is essential – that the disclosure is justified in the public interest.  The reason is because “no private obligations can dispense with that universal one which lies on every member of the society to discover every design which may be formed, contrary to the laws of the society, to destroy the public welfare” [referring to authority].

[64]     In European Pacific Banking Corporation v Television New Zealand Ltd

[1994] 3 NZLR 43, this Court held (at 46):

What has been called ever since Gartside v Outram (1856) 26 LJ Ch 113 the defence of iniquity is an instance, and probably the prime instance, of the principle that the law will not protect confidential information if the publication complained of is shown to be in the overriding public interest: see generally Lion  Laboratories  Ltd  v  Evans  [1985] QB 526; Attorney- General  for  the  United  Kingdom  v  Wellington  Newspapers  Ltd  [1988]

1 NZLR 129 at 176-177, 178; Attorney-General v Observer Ltd [1990] 1 AC

109 at 268-269 and 282-283.

[65]     The precise ambit of the public interest defence, as it is now sometimes called, has continued to be a matter of some controversy in our civil law.  But there is no doubt that in all jurisdictions the exception or defence applies, at least in relation to crime.  See generally Stanley The Law of Confidentiality: A Restatement (2008) at 69-75.

Section 69

[66]     Section 69 replaces s 35 of the Evidence Amendment Act (No. 2) 1980.

[67]     The  commentary  on  s  69  in  Mathieson  (gen  ed)  Cross  on  Evidence

(looseleaf) suggests that (at EVA69.2):

The Law Commission intended to create a broad judicial discretion to cover the previously statutory based discretion and the common law.  The general intention of provisions like this had been to extend a qualified protection to the wide range of relationships where (like other statutory privileges) the confidentiality attending the communication may on the facts of each case be deserving of protection.

[68]     In its report Evidence: Evidence Code and Commentary (NZLC R55-Vol 2

1999), the Law Commission said: “Judges have always exercised the right to exclude evidence on the basis that it would be a breach of confidence to give that evidence” (at C273).   But the Law Commission considered that “a Judge may direct non- disclosure if the normal public interest in putting all relevant facts before a fact- finder is outweighed by the public interest in preserving the confidence, measured in terms of the harm brought about by disclosing the confidences” (at C274).

[69]     Section 69(2) is constructed on the footing that all relevant information is disclosable  in  litigation  (even  if  confidential),  but  it  may  be  prevented  from disclosure by the court, on the terms set out in s 69 itself.  We should perhaps add

that the disclosure is limited to “a proceeding”, and we think that must be subject to the usual ability of a court to determine what, if any, further publication should be permitted beyond the proceeding.

[70]   If the foregoing is correct, the prevention of disclosure of confidential information is restricted  to the categories  in s 69(2).   To  put this another way, confidential information may be disclosed in court unless the Judge gives a direction under s 69(2) having regard to the factors in s 69(3).

[71]     Of the s 69(2) categories, Mr Savage (we think correctly) said that in the context of this case he relied only on s 69(2)(b): the particular relationship in this case.   That puts in opposition two different public interests: the protection of a particular relationship (here between X and the psychiatric nurses), and the public interest in putting all relevant facts before a fact-finder (here the criminal trial court).

[72]     French J’s reasons for declining to make an order (if it had come to that) were minimalist (at [53]): “If required to balance the competing interests under s 69(3) I would therefore on balance exercise my discretion against making a direction to exclude.”

[73]     In this Court there is a division of opinion as to whether the Judge was correct on this issue.  Although the Judge had a discretion on this matter, this is one of those instances in which this Court is in as good a position as the High Court Judge to determine what the outcome on this issue should be.  It is a “correctness” standard of review.

[74]     The majority take the view that French J was correct to take the view that she did for the following reasons.

[75]   First, this kind of issue (viz. whether criminality should be disclosed notwithstanding the confidential  nature of  the  information)  has  been  before  our courts on a number of occasions.  In addition to the jurisprudence already referred to under the rubric of there being no confidence in an iniquity for substantive civil law purposes, in relation to the former law of evidence the most significant decision was

that of the Full Court of this Court in R v Secord [1992] 3 NZLR 570. There information was given to a probation officer. It was held not to be privileged, and the particular case fell to be dealt with under s 35 of the Evidence Amendment Act. This Court held that, if the evidence was important to the determination of the issue, then it was likely that the public interest would favour disclosure; the more serious or important the issue the more likely that was. Further, in deciding whether to divulge the information, the officer should remember that he or she had not only the public duty of any citizen but also a particular role in the criminal justice system, which would normally require that the information be passed on to the appropriate quarter.

[76]     The Full Court referred with approval (at 572) to an observation by Lord

Diplock in D v National Society for the Prevention of Cruelty to Children [1978] AC

71 at 218, an informer case:

The  private  promise  of  confidentiality  must  yield  to  the  general  public interest that in the administration of justice truth will out, unless by reason of the character of the information or the relationship of the recipient of the information to the informant a more important public interest is served by protecting the information or the identity of the informant from disclosure in a court of law.

[77]     That ruling was applied in R v Lory (Ruling 8) [1997] 1 NZLR 44 (HC). Mr Lory was ultimately found by a jury to have set fire to the New Empire Hotel in Hamilton, occasioning the deaths of several persons. After certain statements were excluded under the New Zealand Bill of Rights Act and on grounds of unfairness at common law on the part of the police, the Crown had sought to adduce as evidence a statement by a senior counsellor employed by the Salvation Army who had counselling discussions with Mr Lory. Certain disclosures had been made to this counsellor, which the Crown wished to get in evidence.

[78]     Hammond J held that even if there was a confidential relationship between the counsellor and Mr Lory, disclosure as to what had been said was required in the public interest.  The Judge referred to the observation of Donaldson MR, admittedly in another context, in Davies v Eli Lilly & Co [1987] 1 WLR 428 at 431 (CA):

Litigation is not a war or even a game.   It is designed to do real justice between opposing parties and, if the court does not have all the relevant information, it cannot achieve this object.

[79]     The short point here is that the weight of appellate authority in this country and elsewhere favours the appropriateness of the disclosure of criminality, notwithstanding the confidentiality of information in particular circumstances.

[80]     The second reason for the views of the majority relates to the likelihood of harm to the particular relationship between psychiatric or forensic nurses and other persons like X in the future.

[81]     We have to say that we were given considerably less assistance on this issue than we could have wished for.  We would have expected an evidential basis of some kind to be laid for the proposition advanced for the appellant.  Mr Savage’s argument that  the  relationship  between  psychiatric  nurses  and  a  person  like  X  would  be harmed by disclosing such information did not rise above the level of assertion.  The panel included Ronald Young J who, in his role as Chief District Court Judge, before his elevation to the High Court had considerable working familiarity with lower trial courts.   As we apprehend it from His Honour (we had no evidence on this at all) psychiatric  nurses  are  frequently in  attendance  at  trial  venues.    It  is  not  at  all uncommon – apparently often a daily occurrence – in trial centres for the police, the bench, or even lawyers to ask that somebody be seen with a view to assessing “risk”. This is not just to that person themselves, but to assess whether there is a risk to the court and other members of the public if, to put it bluntly, somebody runs amok in the court.  It would be a matter of real concern if this prudential ability was to be inhibited.

[82]     However,  as  to  whether  a  relationship  is  likely  to  be  harmed,  some observations which were made by Hammond J in R v Lory were referred to by Crown counsel before us (at 50-51):

In the context of health professionals, the argument against being required to disclose confidentiality, (and it was one made by Mr Pyke before me) is that a requirement for disclosure will deter both patients and therapists from undertaking treatment. And, or so it is said, this will thereby further increase the risk of violence or harm to which society is exposed.

Since this argument is so often voiced, it may be as well to point out the substantial deficiencies in the argument. The first is empirical. It is far from clear that there is evidence that therapy or counselling will be imperilled if patients know that therapists have the duty to reveal, for instance, their plans of violence. And even if therapy were thereby imperilled, is it clear that more violence would result? Further, a certain scepticism is required with respect to the trust patients place in confidentiality regarding their most extreme statements. Indeed in his closing argument to the jury in the case before me, Mr Wilson suggested to the jury that some of his client's actions in this case really amounted to a cry for help.

The second objection is quite independent of the instrumental weighing of benefit  and  harm.  It  seems  to  me  that  the  likes  of  psychiatrists  and counsellors, once they undertake to receive (for instance) information threatening to others, can no longer ignore those others. The autonomy granted to individuals over their own personal information cannot reasonably be thought to extend to (for instance) direct threats of violence against innocent persons. And, patients who indicate serious problems which have implications for innocent persons surely cannot invoke the confidentiality of their relationship with their therapist without asking them to be at least partially complicitous. That is morally wrong. And, the premise that confidentiality is somehow based in part on a promise cuts no ice; no one ought to give a pledge of the concealment of (for instance) serious crime.

Of course confidentiality counts. But it must be weighed against other aims and such matters as restitution and social justice. Regrettably, all too often today assertions of privilege are made, not so much on a truly sustainable basis, as on the footing that such will extend the status of a "profession"; or, even more malignantly, operate as a protective device in case of claims against a professional.

[83]     Mr Mander, counsel for the Crown, relied on  those observations for the general proposition that it is not shown – and indeed it would be very difficult to clearly demonstrate – that there will be harm of a distinct and lasting variety to the mental health assessment system which has grown up in our courts.  In that context, it is relevant to note that the nurses in this particular instance did not raise that kind of concern.  They appear to have viewed it as their duty to tell things as they found them.

[84]     In case it was thought in this, or a like, case that there was or may be a respectable possibility of such harm, there does not appear to be anything in s 69 which restricts the Court in requiring disclosure from giving firm directions as to just how that information is actually to be disclosed in court.  The principle is of course “open justice” but in a case of real concern, it seems to us that the Court could give very careful directions as to the circumstances under which the evidence was to be taken and what publicity could be given to it.  In short, it seems to us that the trial

Judge has a present ability to limit the amount of public damage that might be done in this sort of instance.

[85]     If the issue is seen as a stark clash of public interests (truth seeking versus relationship harm), we have to say that in our view the interest in disclosure “outweighs” the interest in the relationship in this case.  There is of course a problem of high level principle as to how a court should go about making such a choice. Interestingly, in one of the first cases before the new Supreme Court of the United Kingdom this sort of problem had to be grappled with.   The decision is R(L) v Commissioner  of  Police  of  the  Metropolis  [2009]  UKSC  3,  which  related  to disclosure of information of enhanced criminal record checks.  Essentially, the clash was between the right to respect for a person’s private life under Article 8 of the European Convention on Human Rights, and the provisions of Part 5 of the Police Act 1997 (UK).  On the one hand there was a pressing social need to protect children and vulnerable adults against the risk of harm, and on the other hand the problem of the applicant’s right to respect for her private life.  The majority of the new Justices in R(L) saw the correct approach to the issue as being “essentially one of proportionality” (per Lord Hope at [42]).   The advantage with a proportionality approach is that it recognises the validity of both kinds of concerns under examination, and does not diminish either.  The ubiquitous “balancing” test so often resorted to is a less appropriate vehicle in these sorts of situations.  There is much to be said for proportionality as the better evaluative tool, and we think it favours the Crown argument here.

[86]     There are here other considerations too.   The importance of disclosure of crime is a present statutory concern in relation to the disallowance of a privilege under s 67(1).  It would be an extraordinary result if one result were to obtain with respect to statutory privileges, but not to other and more diffuse confidential relationships.

[87]     The importance of the information is highly relevant.  The Crown case is that X deliberately – indeed quite cold-bloodedly – planned to kill V in a quite horrific manner.  As Mr Mander said, the appropriate description for the level of criminality is attempted murder.  Attempted murder requires precisely the intention which was

conveyed to nurses A and B.  It can be difficult for the Crown in attempted murder cases to advance proof of such an intention by other forensic means, such as reliance upon inferences.  It seems to us wrong that the Crown should potentially be inhibited from pursuing the case at what on the face of it appears to be the appropriate level of culpability, if it cannot lead this evidence.

[88]     In the result, it follows in the view of the majority that, notwithstanding that the information (particularly as to X’s state of mind and his intention to kill) was confidential, it may be led.  The precise basis on which it is to be led in court was not the subject of submissions by counsel or discussion before us and would be a matter for consideration by the trial Judge.  It may be possible to give substantial protection to the relationship and the nurses by appropriate court orders in relation to the actual giving and publication of their evidence.

Conclusion

[89]     The application for leave to appeal is granted. [90]     The appeal is dismissed.

[91]     Order prohibiting publication of the judgment and any part of the proceedings (including the result) in news media or on the internet or other publicly available database until final disposition of trial.   Publication in law report or law digest permitted.

RONALD YOUNG J

[92]     I agree  with  the  majority judgment that  the  communication  between  the forensic nurses and X was confidential (s 69 of the Evidence Act 2006).

[93]     I  disagree  with  the  majority  on  their  assessment  of  the  s 69  factors.    I consider the balance clearly lies in protecting the confidential communication between the nurses and X in the circumstances of this case.

[94]     The  relevant  weighing  is  governed  particularly by s 69(2)(b)(ii)  and  2(c)

factors.

[95]     To   consider   subs (2)(b)(ii)   it   is   necessary  to   consider   the   particular relationship between a forensic nurse and those in police or court custody.   In my view there is a powerful public interest in ensuring the free flow of information between a defendant patient and a forensic nurse (s 69(2)(c)) in the circumstances of the present case.

[96]     There are forensic nurses available to the police and most District Courts to assess, at the request of the police, the Court, or the defendant’s counsel, those defendants who have been arrested and are due to face criminal charges.  Often, as in the present case, the purpose of the interview at a police station between a forensic nurse and a defendant is to obtain information on which the nurse can make a preliminary assessment as to whether the defendant is an immediate danger to themselves or others.  The purpose of obtaining this information and reporting it to the police or the Court is therefore to protect the defendant from self harm and to protect others whom the defendant will come into contact with from harm (for example, prison officers, police officers, lawyers, probation officers, the Judges and the  public).    Obtaining  information  about  the  circumstances  which  brought  the person to court and thus the circumstances of the alleged offending will often be an important part of this assessment.  In the present case the evidence of the forensic nurses was that an understanding of the facts which gave rise to the charge was pivotal in assessing the risk the appellant posed.

[97]     If the confidentiality of these discussions is not protected then counsel acting for such persons are highly likely to advise their client not to talk to a forensic nurse about the facts which have given rise to the charges they face.  This advice, if acted upon by a defendant, means the task of the forensic nurses will inevitably be compromised.  This will be especially so if there is any suggestion that the police are using this process to obtain confessional evidence by the back door.   There is no suggestion that was the case here.

[98]     Compromising the capacity of forensic nurses to undertake their task will in turn potentially compromise the immediate safety of defendants and others involved in the criminal courts.  This illustrates the powerful public interest in protecting free communication between the nurses and an accused.

[99]     Sections 69(3) and 69(4) set out those factors which a judge is to have regard to in deciding whether or not to give a direction in favour of disclosure.

[100]   Here the charge is serious, attempted murder, and the “confession” is on the face of it a confession of both the actus reus and the mens rea of the crime.

[101]   On the other hand these factors appears to favour non disclosure:

(a)if the communication is not disclosed there remains evidence upon which the appellant could be convicted of a serious crime;

(b)if the communication is not disclosed the Crown still has evidence from which it could invite the jury to infer an intention to kill, for example,  the stabbing  of the victim  in  the face.    In  any event  a conviction for wounding with intent to cause grievous bodily harm is highly likely.   This offence has the same maximum penalty as attempted murder (14 years);

(c)      the “confession” by the appellant was exactly the type of information the forensic nurses seek at such interviews.  This was therefore not a situation where there was a confession of an unrelated event spontaneously made by an accused;

(d)       the evidence obtained was confessional, not physical evidence;

(e)the context in which the evidence was obtained was not a search for evidence (such as a search warrant) but an interview to assess risk; and

(f)the nurses promised the appellant confidentiality of information but not result.

[102]   In my view these factors overwhelmingly support the balance as favouring open communication and therefore protecting confidentiality.   I would allow the appeal and refuse to admit at trial all evidence of the nurses’ discussions with the appellant and the relevant portion of the subsequent police interview based as it was on the appellant’s discussions with the nurses.

Solicitors:

Crown Law Office, Wellington