R v X

[2022] NZHC 1752

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CRI-2019-096-3073

[2022] NZHC 1752

THE QUEEN

v

X

Hearing:	6 May 2022; further submissions 21 May; 3 June
Counsel:	F E Cleary and A C R M Jeffares for Crown R M Lithgow QC and A Jeremich for Mr X E D Nilsson for Stuff Ltd
Ruling:	21 July 2022

RULING OF SIMON FRANCE J

(Judgment redactions)

Introduction

[1]    On 17 September I issued a judgment excluding statements made by Mr X to police officers.1 The judgment was preceded by a hearing over several days at which various police officers and corrections staff gave evidence. A dispute arose during that hearing concerning the use of a document which contained the interview template used by the officers when interviewing Mr X. A pragmatic compromise, endorsed by the Court, resolved the dispute and allowed the pre-trial hearing to proceed.

1      R v X [2021] NZHC 2444.

R v X [2022] NZHC 1752 [21 July 2022]

[2]    The compromise involved suppressing those parts of the evidence in which the document was discussed, and also required redactions to the judgment. Stuff Ltd now challenge these suppression orders, saying that the process followed did not enable the Court to be satisfied that the statutory prerequisite for the making of such an order was met. This means there was no jurisdiction to order it. Alternatively, it makes application under s 210 of the Criminal Procedure Act 2011 for revocation of the order. Doubts having been raised about the order’s legitimacy, the Crown has filed a fresh application under s 205 of the Act.

[3]    Aspects of Stuff Ltd’s challenge, which is not without merit, are better suited to appeal. However, for reasons to be set out, there are presently no reasons given supporting the suppression so the utility of an appeal is compromised. Further, the combination of an application to revoke and a fresh application to suppress allow the matter to be revisited. Following that course will cure earlier procedural deficits, and provide a reasoned decision which will still be subject to full appeal rights. It is therefore the course this ruling follows.

The orders in issue

[4]    There is a police interview method known as the Complex Investigation Phased Engagement Model (CIPEM). CIPEM was developed by Detective Superintendent Fitzgerald of the New Zealand Police. He was a witness at the admissibility hearing. DSupt Fitzgerald trains specialist interviewers in the method. These interviewers hold regular positions within the police, and are only called in to interview on an ad hoc basis. As I understand it, application for use of the interviewers is made to DSupt Fitzgerald. If he considers it a suitable case for CIPEM, he allocates two of his team of trained interviewers.

[5]    Mr X was suspected of being involved in the shooting of Ms Lois Tolley. The investigation was stalled and eventually two specialist CIPEM interviewers were tasked to interview Mr X. The interview led to admissions and Mr X was charged with the murder. Counsel then acting for Mr X (not Mr Lithgow QC) sought disclosure, amongst other things, of “training and related manuals” relating to the interrogation techniques.

[6]    The Crown replied, through a Court memorandum, indicating it was withholding the document. The memorandum continued:

… The police have strong concerns that disclosure of the course handout will disclose investigative techniques. Police are prepared to provide the course handout to [counsel] for the purpose of preparing the pre-trial applications and trial on his undertaking that it will not be copied and further disseminated by him.

[7]    Defence counsel agreed and signed an undertaking concerning the CIPEM document before receiving it.

[8]    Moving forward to the pre-trial hearing, the challenge to the admissibility of Mr X’s statements was one of a number of pre-trial challenges involving the three co- defendants. A three-week block had been allocated and the various applications scheduled within that period.

[9]    Concerning the admissibility issue, there were to be a number of witnesses including the interviewers and DSupt Fitzgerald. At the time of the interviews Mr X had been a serving prisoner, and there were also challenges to the process followed in order to obtain his day releases from prison in order to be interviewed . There were accordingly a number of further witnesses touching on that topic. Suffice to say, the timing was tight with the ever-present concern in the criminal jurisdiction that delays threaten sometimes already delayed trial dates. The three co-defendants were remanded in custody, making delay more of a concern.

[10]   During the hearing Mr Lithgow indicated he wished to use the disclosed CIPEM documentation to question the police officers. The Crown objected on the basis that it was contrary to the terms of disclosure. Mr X would not waive his right to be present, and so the issue would require a hearing to resolve. The form of the hearing was uncertain, as was the issue of what evidence would be needed. Delay was a concern for everyone.

[11]   Counsel agreed a compromise whereby Mr X would stay in Court which would otherwise be cleared of the public (an order more of form than practical impact). There would be suppression orders attaching to the evidence, and the Court would give effect

to the orders in its judgment. I accepted the agreement and issued the following Minute, which represents the orders now under consideration:

[1]        Subsequent to my Minute of 11 June, agreement was reached concerning the Interviewing Module. I make these orders:

(a)The document must not be copied or disseminated to any person outside of defence counsel for Mr X;

(b)The materials must not be copied for or disseminated to Mr X;

(c)The materials may be referred to, and their contents discussed, in Court for the purposes of questioning of witnesses, at trial or at pre-trial hearings concerning admissibility. The defendant may be present when the materials are referred to for these purposes, but must not make notes;

(d)When the materials are referred to at trial or pre-trial hearings, the Court must be closed to the public and the evidence must be subject to non-publication orders.

[2]        The Notes of Evidence of this phase of the pre-trial hearing will need editing consistent with these orders. I request the Crown to undertake an initial assessment of what editing is needed. The Notes will be given to counsel in the interim but until editing are not for further dissemination.

[3]        These Orders apply to the pre-trial phase. I will apply them also to any use of the document at trial subject to:

(a)Counsel seeking a different position; and

(b)The trial Judge agreeing. It is ultimately an issue for the trial Judge.

[4]I have extended the order to guard against it being overlooked.

[5]        I note that these orders are made by agreement and do not reflect a considered assessment of the correct legal position in relation to the document.

[12]   The effect of the orders was to suppress aspects of the Notes of Evidence, and to require redactions in this judgment. At the time they were made, it was expected there would be a trial, but as it happens the exclusion of the admissions started a chain reaction that has now seen all charges withdrawn.

[13]   Paragraph [5] of the Minute makes it clear that the Court did not hear argument about the need for orders protecting the contents of the CIPEM document from disclosure.

[14]   The judgment redacts four paragraphs. If the redaction is removed, there would be revealed two paragraphs that provide detail of CIPEM including identification of the nine interview phases, some analysis of CIPEM by Mr Lithgow, and a paragraph of commentary by me.

[15]   The Notes of Evidence cannot generally be available regardless of the CIPEM component, given there is a need to protect identity, and some other information provided. Also, fair trial issues arise given a prosecution is still possible.

Submissions

(a) Introduction

[16]   The Court heard argument concerning the validity of the original orders. This includes whether s 205 applies to pre-trial matters, whether confidentiality provisions of the Evidence Act might be available and what role there is for the inherent jurisdiction. If s 205 applies, there were submissions concerning whether the process was compliant, whether the power to suppress could have been engaged in the circumstances, and the impact of the absence of reasons.

[17]   As noted, I consider many of these matters are better raised on appeal. In particular, it is generally inappropriate for a Judge to themselves subsequently remedy a defect such as lack of reasons. However, for the reasons given, I consider it is preferable to now consider the two current applications – revocation, and a fresh application. They involve the same analysis.

[18]   I have reflected on potential unfairness to the Crown. It waived the opportunity at the pre-trial hearing for its confidentially claim to be heard and determined, on the basis of an agreement now being challenged. Several reasons lead me to conclude the present process meets the concern –

(a)The present process has provided an opportunity to file evidence and make submissions;

(b)Full appeal rights remain;

(c)There can never be an expectation that arrangements such as that reached at the hearing and endorsed by the Court are immune from subsequent challenge; and

(d)Had the matter been determined against the Crown at the hearing, it is very unlikely matters would have progressed differently. Discontinuing the prosecution in order to avoid disclosure was not likely a realistic option given the nature of the prosecution and the nature of the confidential material, disclosure of which does not involve, for example, safety risks.

[19]   For myself I also observe that the original confidential disclosure inevitably set the matter on this path. The Court memorandum said it was to assist defence counsel with pre-trial and trial preparation. It is difficult to see how effect could be given to that, if the document were thought relevant, without actually using the document.

[20]   Concerning revocation the Crown submits a change in circumstances is generally required, otherwise the application will be seen as a collateral attack. Reference is also made to Taylor v C2 and NZME Publishing v R3 where the Court of Appeal spoke of exceptional circumstances being required before a final order was revisited. It is submitted there is no relevant change here.

[21]   Accepting these statements of principle, I consider there are particular circumstances that set the case apart. First, the context in which the original orders were made was unusual and gave no opportunity for media input. Second, I accept there are grounds to challenge the legitimacy of the orders, although, as noted, that would normally point to an appeal. Third, the orders were not seen as final. It was expressly left open that the matter could be revisited at trial. Were that to happen, and were the decision go against the Crown, the original orders would have been overtaken.

2      Taylor v C [2017] NZCA 372 at [36].

3      NZME Publishing Limited v R [2018] NZCA 363.

(b) The Crown

[22]   Evidence was filed from DSupt Fitzgerald. He is of the view that disclosure would likely prejudice the maintenance of the law, including the prevention, investigation and detection of offences. CIPEM is the best method for engaging with persons of interest in complex cases. The concerns identified as flowing from disclosure are:

(a)The document is incomplete in that the specialist training supplements it. Publication of only part of the method risks the published part being used wrongly (by untrained officers); and

(b)Persons of interest who may one day be interviewed using this method may be put off and come to see it as a negative thing rather than a positive opportunity to engage.

[23]   It emerged during earlier submissions that an internet search on interviewing techniques yields a link to a New Zealand Police document which appears to set out a lot of the material and concepts that are found in CIPEM. DSupt Fitzgerald says that document does not set out the material in the appropriate context.

[24]   Generally the Crown submits documents such as this are commonly protected, falling as they do under the rubric of investigative techniques. Reference is made to R v Liu4 and Lyttle v R.5

[25]   In terms of the merits, the Crown notes it never intended to use the CIPEM document at the pre-trial or at trial. Had the opportunity arisen it would have relied on Lyttle v R where the background documents for the so-called “Mr Big” undercover technique were protected. Further, as with Mr Big, what matters is the product of the technique (here the interview) and the fair opportunity to challenge the product’s soundness. That has happened here.

4      R v Liu [2014] NZHC 3154.

5      Lyttle v R [2018] NZHC 1438.

[26]   There is submitted to be a competing public interest in confidentiality agreements, and upholding conditional access arrangements. They are important techniques in achieving fair trial processes and should not be undermined in the way that Stuff Ltd’s revocation action would do if granted. There is a potential chilling effect.

(c)      Stuff Ltd

[27]   Stuff Ltd submits there is significant public interest in an interview technique such as CIPEM given what happened in the case of Mr X. Trained interrogators purporting to be implementing CIPEM were found by the Court to have breached in numerous ways the rules governing the conduct of interviews of suspects.

[28]   It is submitted it is not enough to assert disclosure will impede the maintenance of law. CIPEM is different from, for example, an undercover technique. It is merely one particular interviewing method, in a context where all suspects are subject to interviews, if they choose. It is not a special methodology as far as can be discerned based on the current extent of public comment about it such as the judgment. Nothing has been identified as new or revolutionary, and the identification on a New Zealand police site of many of the stages of the CIPEM method, albeit not in that context, tells against some special status.

[29]   Transparency is generally important, but more so here given the events concerning Mr X, and the consequent demise of his prosecution. There is legitimate public interest in being able to be informed of this method and whether there should be concerns about it.

[30]   Concerning the evidence of DSupt Fitzgerald, it is submitted it strengthens the case for disclosure. First, no likelihood of real prejudice emerges. The concern about untrained officers using it is speculative. It is also hard to see that officers not trained in the method would seek to use something they are not familiar with. Further, if it is “dangerous” (to use DSupt Fitzgerald’s word) for them to do so, this is a concern that merits further consideration of CIPEM.

[31]   As regards publicity dissuading potential interviewees, that also is submitted to be speculative.

(d)      Mr X

[32]   Mr Lithgow submits the redactions impact on the proper use of the judgment. It is difficult to know what can and cannot be discussed with, for example, other counsel in circumstances where it is legitimate to do so. The redacted paragraphs provide sufficient insight into the method to enable explanation of what phases are being used and what the risks are. It is also submitted the link provided by counsel to the New Zealand police interview methodology page makes the orders of limited effect.

Decision

(a)     Introduction

[33]   I address first some of the context points made by the Crown. I accept the importance of protecting investigative techniques, and recognise the value of arrangements concerning disclosure. However, as regards interviewing suspects, I doubt investigative techniques merit a high level of protection. Interviewing suspects is an everyday, every investigation event, and the potential impact of subsequent admissions is well known. That is why there is a strong body of rules controlling the interview process. There is limited scope for confidentiality in the police’s approach to interviewing, given the product will be videoed and scrutinised on a regular basis, and must conform to this important body of rules.

[34]   As regards arrangements concerning disclosure, their value lies in disclosure of material that would otherwise be subject to legitimate withholding. If the claimed confidentiality is not valid, it is not undermining such arrangements to conclude that they were unnecessary as the document was not being validly withheld.

[35]   I accept in the present case the assessment of whether the document should be withheld may have changed over time. Perhaps at the outset, as was the case with my initial ruling in R v Lyttle, the need for disclosure, in the sense of the relevance of the

documents to the admissibility challenge, might not have been apparent. Having now viewed the interviews several times, and heard the evidence, the relevance of the CIPEM document as an aid to understanding what was happening is clear. That this can be said is a credit to the initial confidential disclosure – it allowed defence counsel to understand better, and to seek to then use it.6

(b)     Analysis

[36]   I begin first by identifying the relevant powers. As regards the order that the evidence concerning CIPEM, and any discussion of it, be suppressed, the apparent power is s 205 of the Act. This observation is subject to determining a challenge by the Crown as to its correctness. As regards the redactions to the judgment, they are ancillary to the s 205 order. The source is probably therefore just an inherent power to give effect to the s 205 orders, but otherwise there is the general inherent power to suppress judgments and rulings as recognised in Seimer v Solicitor-General.7

[37]Section 205 provides:

Suppression of evidence and submissions

205     Court may suppress evidence and submissions

(1)A court may make an order forbidding publication of any report or account of the whole or any part of the evidence adduced or the submissions made in any proceeding in respect of an offence.

(2)The court may make an order under subsection (1) only if the court is satisfied that publication would be likely to—

(a)cause undue hardship to any victim of the offence; or

(b)create a real risk of prejudice to a fair trial; or

(c)endanger the safety of any person; or

(d)lead to the identification of a person whose name is suppressed by order or by law; or

(e)prejudice the maintenance of the law, including the prevention, investigation, and detection of offences; or

(f)prejudice the security or defence of New Zealand.

6      Subsequent events in R v Lyttle, where ultimately the admissions were ruled inadmissible, may also now cast doubt on the initial assessment there.

7      Seimer v Solicitor-General [2013] NZSC 68, [2013] 3 NZLR 441 at [148].

[38]   At first glance, the CIPEM material, introduced as an exhibit, and the questions about it directed to DSupt Fitzgerald and the two interviewing officers would appear to be evidence adduced at a proceeding. Likewise, counsel’s submissions on that evidence also seem covered by the provision.

[39]   The Crown, however, submits s 205 does not apply to pre-trial hearings and is only intended to apply to a substantive hearing. The first focus is on the concept of evidence adduced. It is noted, correctly, that the Supreme Court in Seimer held that the term “evidence adduced” does not apply to evidence to be led at the substantive hearing but not called at the preliminary hearing, nor to evidence ruled inadmissible, and therefore not led.8 This is submitted to suggest “evidence adduced” refers to substantive hearings.

[40]Further support is taken from the use of the term in other provisions—

(a)in s 78, a pre-trial hearing may be ordered if the prosecution wishes to adduce evidence likely to be challenged at trial;

(b)in s 79, the pre-trial ruling is said not to affect the right to adduce evidence at the trial;

(c)in s 101, there is reference to adducing particular evidence at a jury trial;

(d)in s 105, which deals with the sequence of evidence at the substantive hearing, the term “adducing evidence” is used;

(e)in s 106, which concerns verdict, there is reference to the parties having adduced evidence; and

(f)in s 107, which is the jury trial equivalent of s 105, the term is similarly used.

8      Seimer above at footnote 173, and [142]–[143].

[41]Reference is then made to s 15 of the Evidence Act which provides:

15       Evidence given to establish admissibility

Evidence given by a witness to prove the facts necessary for deciding whether some other evidence should be admitted in a proceeding—

(a)is admissible in the proceeding if the evidence given by the witness is inconsistent with the witness’s subsequent testimony in the proceeding (whether or not the other evidence is admitted):

(b)is not otherwise admissible in the proceeding.

This is said to show that evidence may be before the Court which has not been “adduced” within the meaning of the Act.

[42]   I do not accept the submission. To first address s 15 of the Evidence Act, it does use the term “adduced”, and does not in my view assist. Section 15 is intended to make clear that evidence given at a hearing other than the substantive trial is inadmissible at the substantive trial unless to show inconsistency. It protects, for example, a defendant who testifies at a voir dire. That evidence may only be led at the trial if the defendant testifies at trial in a manner inconsistent with their voir dire evidence. Nothing in s 15 says the voir dire evidence has not been adduced for the purposes of the voir dire hearing. It just cannot be adduced at the trial.

[43]   The wider submission is that adduced evidence is most often used in reference to evidence intended to be led at trial. I agree but it is context driven. The provisions are forward looking so refer to the stage being talked about. None of them suggest the term is inapt for other phases where evidence is heard. If not adduced, what is it? Traditionally one would say “led” and the Evidence Act talks of “offering evidence” but there is nothing to suggest “adduce” is a specialist term referring only to the evidence led or offered at trial.

[44]   Seimer does not alter this. It concerned a pre-trial hearing. The points it makes is that evidence that is not actually introduced at the hearing is not adduced. The corollary in my view is that if it is introduced it has been adduced and s 205 is the operative provision.

[45]   Turning to s 205 it is a typical suppression provision involving a two-stage process. A Court must first be satisfied that an identified state is “likely” to exist before there is power to suppress. If that requirement is satisfied, there is then a discretion as to whether to make an order.9 In the present case the state in issue is that disclosure is likely to prejudice the maintenance of the law.

[46]   The lens through which I analyse the issue are the redacted passages in the judgment. Would disclosure of them be likely to prejudice the maintenance of the law? My conclusion is that it would not.

[47]   First, as already noted, I consider the case for protecting interviewing methodology is rather less than investigative techniques such as “Mr Big”.

[48]   Second, I agree that DSupt Fitzgerald’s evidence provides little basis for ongoing suppression. The two concerns he identifies – police misuse and interviewee reluctance – are speculative. The former is surely capable of easy control within the force. As for the latter, it is unlikely that a flurry of publicity will remain with unknown prospective interviewees some time in the future, even if that publicity had initially operated to make them think negatively towards it.

[49]   Third, there is little in the method that is sufficiently bespoke to merit protection. The internet link is relevant and tells against suppression. As best I can understand it, DSupt Fitzgerald’s contribution is to the order in which the phases are structured, and then how he trains people in the method. The present case concerns only the former since removing the redactions will disclose the sequence of phases. It does not affect his implementation teaching.

[50]   For these reasons I conclude that removing the redactions is unlikely to prejudice the maintenance of the law. If wrong in that, I would have exercised my discretion to decline suppression.

[51]   There is a legitimate public interest in a specialist interviewing model that has been so poorly implemented by specialist interviewees who are part of a small group

9      NZME Publishing v McMahon [2019] NZHC 2727.

of such trained people. The judgment speaks for itself. Numerous breaches of several rules were identified, and it is legitimate to query the correctness of the underlying method.

[52]   Further, in my view, the method itself is worthy of being brought into the light and considered. It is a method that has the effect of downplaying, or arguably obscuring, the true nature of what is occurring. Mr X was a suspect in a murder who was being interviewed because the police had information implicating him. Yet an environment is created where what seems almost a fireside chat occurs. There are none of the typical trappings of a suspect interview. Whether this is legitimate or desirable is not for the Court at this moment to comment on; it is something, however, that merits discussion.

[53]   I also give weight to Mr Lithgow’s submission about the limiting effect the redactions are having. For the reasons given I consider there is legitimacy in a wider awareness of the technique.

[54]   It is necessary finally to address the other routes to suppression relied on by the Crown. One is the inherent jurisdiction. Assuming its continued existence despite s 205, for the reasons given I would not have exercised it. The other is s 69 of the Evidence Act which confers an overriding discretion as to confidential information. The relevant test is found in s 69(2):

(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.

Section 69(3) lists mandatory considerations.

[55]   Further analysis is not needed since the reasons already given explain why I would see the public interest in disclosure prevailing. I accept the document was provided initially on a confidential basis, but observe that within a criminal prosecution context, the interests of justice will always provide an overlay that will make such disclosures liable to review.

Conclusion

[56]   Context is important, and within criminal procedure, the proper interviewing of suspects is a matter of real importance. This has long been recognised, and a body of rules designed to promote reliability have been promulgated. Compliance with them is necessary and expected. The consequences of untrue admissions are often dramatic and a source of miscarriage.

[57]   At issue here is whether a specialist interviewing technique should be the subject of suppression. In my view, the wider context makes that anyway a difficult proposition to sustain. The particular case in which the technique was implemented involved multiple breaches of the rules and legitimately heightens the public interest in the technique.

[58]   The public interest in having a better understanding of the technique far outweighs maintenance of the law considerations, which I doubt exist as regards the particular evidence. This doubt is reinforced by the ready availability elsewhere of many aspects of CIPEM.

[59]   I accordingly conclude that the redactions in my judgment of 17 September 2021 should be lifted. The orders suppressing the evidence concerning CIPEM and the submissions made on it are also quashed. This case does not require me to go further; it is not, for example, a decision on access to the document which was an exhibit at the hearing. Relevant to such an application would be the extent to which the unredacted judgment meets the need for disclosure.

[60]   The Crown should have an opportunity to consider appeal. This Ruling will take effect on Friday 5 August at noon. If no appeal is filed the judgment will be reissued without redactions. If an appeal is filed the judgment will remain redacted until further order of the Court of Appeal.

Simon France J

Solicitors:

Crown Solicitor, Wellington for Crown

Lee Salmon Long, Auckland for Stuff Ltd