RICHARD LINCOLN AND NEW ZEALAND POLICE
[2024] NZHC 2760
•24 September 2024
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CRI-2024-409-155
CRI-2024-409-228 [2024] NZHC 2760
BETWEEN RICHARD LINCOLN
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 18 September 2024 Appearances:
Appellant in person
R D Smith for Respondent
Judgment:
24 September 2024
JUDGMENT OF DUNNINGHAM J
This judgment was delivered by me on 24 September 2024 at 3 pm, pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Date……………
LINCOLN v NEW ZEALAND POLICE [2024] NZHC 2760 [24 September 2024]
Introduction
[1] Richard Lincoln seeks leave to appeal the decision of Judge Neave delivered on 1 May 20241 dismissing a charge of intimidation against Mr Lincoln, on the basis the judge refused “to dismiss the charge on grounds of insufficiency of evidence and abuse of process.”2
[2] Mr Lincoln also appeals a decision he says was made by the Judge on 16 May 2024 “constructively” refusing to make an order requiring further disclosure by the police.
[3] The respondent opposes both the appeal on the disclosure issue and the application for leave to appeal the decision dismissing the charge of intimidation.
Relevant background
[4] In order to place the current appeals in context, it is necessary to outline how the charge against Mr Lincoln arose and progressed through the District Court to when it was dismissed, and then the steps taken subsequently in pursuing a costs application.
The charge
[5] In July 2022, a charge of intimidation was laid against Mr Lincoln under s 21(1)(e) of the Summary Offences Act 1981 alleging he accosted the complainant, a female police officer, in a public place, being the Christchurch District Court, knowing his conduct was likely to intimidate her.
[6] The supporting summary of facts stated that on 21 February 2022, Mr Lincoln was the defendant in a separate police prosecution.3 At 12:47 pm, while video evidence was played, Mr Lincoln turned in his seat and stared at the female police constable for around eight seconds. He then made a gesture with his hand toward his ear, before turning back. Mr Lincoln was reprimanded by the Judge for this act.
1 Police v Lincoln [2024] NZDC 9525.
2 Being available grounds for dismissal of a charge under s 147 Criminal Procedure Act 2011.
3 Mr Lincoln was acquitted at this hearing.
[7] When the Court broke for lunch, Mr Lincoln stopped in the passageway between the Courtroom and lobby and told the constable “I’m coming after you” and “you’re going to pay”, with the exchange lasting around 20 seconds. He then stepped away before verbally abusing her again in the lobby.
[8] At 4:22 pm, Mr Lincoln followed the constable into the passageway. He entered the constable’s personal space and refused to get out of the way, again verbally abusing her. This lasted about 20 seconds. The constable left and Mr Lincoln followed her, before parting ways in the lobby.
[9] There was some criticism expressed by District Court judges during the case management process over the lack of particularity as to what acts within this sequence of events were relied on to support the charge. The responsibility for prosecuting the charge was in due course transferred to the Dunedin Crown Solicitor and, on 25 January 2024, Mr Smith, counsel for the prosecution, confirmed that the prosecution only relied on the encounter which took place in the vestibule or passageway between the Courtroom and the outside lobby area at the commencement of the lunch adjournment.4
The first s 147 decision
[10] Judge Brandts-Giesen issued a decision on 19 December 2022, declining Mr Lincoln’s application under s 147 of the Criminal Procedure Act 2011 (CPA) to dismiss the charge on the grounds the offending did not take place in a “public place”.5 Mr Lincoln’s appeal against this decision was declined by Mander J for want of jurisdiction.6
Requests for disclosure
[11] At various stages while the charge was being progressed in the District Court, Mr Lincoln sought further particularisation of the charge and further disclosure. These
4 There was some debate over how the area in which the encounter occurred should be described. The parties have adopted the word “vestibule” and I use this term from this point forward in the judgment.
5 Police v Lincoln [2022] NZDC 25074.
6 Lincoln v Police [2023] NZHC 1264 at [11].
requests included a letter dated 15 November 2022 which sought further particulars and seven items of disclosure from the prosecution. Then, on 9 January 2023, Mr Lincoln filed an application attaching a list of 12 items where further disclosure or further particulars were sought. On 24 April 2023, Mr Lincoln filed a memorandum with the Court attaching an itemised list of further disclosure requests, seeking 23 categories of material from the police. Not all the material sought was disclosed, leading Mr Lincoln to object by way of letter in reply on 31 May 2023, stating that the balance of the disclosure sought was relevant to a costs application he was bringing.
[12] At a case review hearing on 4 July 2023, Mr Lincoln requested that Judge Callaghan order the disclosure set out in the 24 April 2023 memorandum. The Judge, having not reviewed the relevant material, considered he could not make any orders, instead directing Police to attend to outstanding disclosure. Mr Lincoln appealed, with the appeal being dismissed by Harland J on the basis that the District Court Judge had not made an appealable decision.7
[13] Disclosure was again sought from the prosecution in a letter dated 30 November 2023. The letter attached a schedule seeking 23 categories of disclosure. To give a flavour of the breadth of disclosure sought, these include requests such as:
2. A record of any complaints made against the complainant [ ], her accomplice [ ] or their co-conspirator [ ] (“Co-conspirators”) In the case of the complainant, since her indoctrination into the Crown instrument in 2019, and for the others, for the last five years or their total years in length of indoctrination into the Crown instrument; whichever is the fewer. This information is relevant to the issue of the veracity, reliability and propensities of the co-conspirators and severally – of the propensity of the informant to act and omit with malice and or gross negligence when carrying out investigative duties; and his propensity to make false statements in court documents.
…
17. Records pertaining to “state of mind” and mystery folder. Relevance [sic]propensity evidence. This information is considered to have been posted on the so called ‘NIA’ in breach of the Harmful Digital Communications Act and the Human Rights Act. It amounts to an ongoing specified act of harassment under the Harassment Act. It is evidence of the prosecution agency’s modus operandi towards the writer and its propensity to act with malice towards him. It is also relevant to the complainant’s hysteria towards the physical presence of the writer.
7 Lincoln v Police [2023] NZHC 3084.
[14] The police, through counsel, filed a comprehensive memorandum dated 18 January 2024 in which they responded in detail to the 30 November 2023 application for disclosure. While some straightforward requests were actioned, the majority were declined by saying either the police did not hold that information or it was not relevant to the charge. In some cases, the request was also described as “vexatious”.
Section 147 decision
[15] On 27 February 2024 Judge Neave heard Mr Lincoln’s application to dismiss the charge under s 147 CPA. On 1 May 2024 the Judge issued his decision dismissing Mr Lincoln’s charge.
[16]The Judge made the following observation:8
[16] When the matter came before me there was a further application to dismiss the charge, both in terms of evidential sufficiency and because of various procedural complaints the defendant had. The defendant was also seeking further particulars.
[17] The exact grounds for the applications are still not entirely clear to me. Mr Lincoln appears to be fixated on procedural minutiae which do not advance anyone’s position. That being said there is certainly some degree of sloppiness in police terminology, although I doubt that is in any way material.
[17] The Judge considered the elements of the intimidation charge that needed to be proven, namely:
(a)that Mr Lincoln confronted the constable;
(b)that he did so in a public place;9
(c)that his conduct was reasonably likely to frighten the constable; and
(d)that Mr Lincoln knew his conduct was reasonably likely to frighten the constable.
8 Police v Lincoln, above n 1.
9 At [13]–[14]. Judge Neave concurred with Judge Brandts-Giesen’s finding that the Courtroom was a public place, but accepted that finding could be “…capable of further exploration at any trial to counter the general proposition…”.
[18] Unlike previous Judges, Judge Neave was able to review footage of the alleged confrontation. That footage showed what occurred when the parties left the courtroom and passed through the vestibule leading from it, at the beginning of the lunch adjournment. He noted that while it could be confirmed that there was an encounter between the constable and Mr Lincoln as they left the courtroom, there was no audio recording so it was not possible to determine what was said between the parties and there was no record of what happened outside the Courtroom.10
[19] The Judge noted the differing accounts of what was said and found that, ultimately, he was in no position to determine the matter on the current application. Notably, the Judge found “some merit” in Mr Lincoln’s complaint that the prosecution case was “a little bit of a moveable feast”, with a lack of focus on the exact nature of the elements of the offence.11 The Judge also said he felt bound to observe that the “summary of facts rather overstates the position”.12
[20] Judge Neave noted that due to Mr Lincoln being charged as reckless rather than intentional in his behaviour, the charge’s seriousness was at the “lowest end of the scale”.13 The Judge observed that the maximum penalty for the charge was three months’ imprisonment or a fine.
[21] The Judge noted the view taken in Gillespie-Gray v Police that what is required for the charge is a “face to face meeting, either between persons who were stationary or moving, which has an element of disagreement or hostility”14. While accepting on the facts that there was an “at least arguable case for prosecution”, the Judge questioned whether there was “any useful purpose” in it.15 He referred to the fact that the matter had been before the Court since 2022 and that a four-day trial was scheduled for 13 May 2024.
10 Police v Lincoln, above n 1, at [26]–[28].
11 At [35].
12 At [38].
13 At [46].
14 Gillespie-Gray v Police HC Auckland CRI-2006-404-123, 22 September 2006 at [10].
15 At [48]–[49].
[22] Noting the nominal penalty on conviction, the fleeting nature of the encounter and the overall factual uncertainty present, the Judge held that dismissal was warranted under s 147 of the CPA and he dismissed the charge.16
Requests for disclosure following dismissal of the charge
[23] Mr Lincoln filed a memorandum with the Court on 9 May 2024 in respect to costs following the decision dismissing the charge. The police filed a memorandum in response, noting that, while Mr Lincoln filed an application on 1 February 2024 for costs under s 364 of the CPA, the police said the alleged procedural failures were considered and rejected by the Court when it dismissed the charge.17 The police also challenged the suggestion they had an ongoing obligation to provide disclosure stating that “Mr Lincoln’s prosecution has now concluded. There is no ongoing disclosure obligation under the Criminal Disclosure Act 2008.”
[24] On 13 May 2024, and having received memoranda from both Mr Lincoln and the police regarding the question of costs, Judge Neave directed submissions to be filed within 30 days on this issue.
[25] Mr Lincoln filed a memorandum on 14 May 2024 saying he could not make “proper and complete submissions on costs without the prosecutor first fully meeting his disclosure obligations (which he should have done many months ago)”. Mr Lincoln sought that the Court’s directions for filing submissions be set aside and that the respondent be ordered to disclose the information he had previously sought.
[26] On 16 May 2024 Judge Neave directed “If Mr Lincoln wishes to advance his application he will need to file submissions otherwise it will be determined without them.” It is this direction which Mr Lincoln argues is a constructive refusal of his disclosure request and which he now appeals.
16 The Judge cited Mathew Downs (ed) Adams on Criminal Law–Procedure (online ed, Thomson Reuters) at CPA147.06, which cites R v Harrington [2976] 2 NZLR 763 (SC); R v Harlick HC Auckland T177/86, 27 February 1987; and Thompson v District Court at Christchurch (2002) 9 NZCLC 262, 284 (HC).
17 Police v Lincoln, above n 1, at [59].
Leave to appeal the s 147 dismissal decision
[27] Mr Lincoln seeks leave to appeal the decision under s 147 CPA to dismiss the charge, not because he objects to the outcome, but because he considers the Court “erred in not holding that there was insufficient evidence to support the charge and/or that the prosecution was an abuse of process.”
[28] There is some uncertainty as to when the application for leave to appeal was filed, although, either way, it was filed out of time. While Mr Lincoln’s records showed he filed the appeal by sending it to the Christchurch High Court’s generic email address on Sunday 9 June 2024, the Court Registry has no record of receiving it. It was only when Mr Lincoln’s submissions were received making reference to this appeal, that enquiries were made and a copy of the application for leave to appeal was provided. That said, for the purpose of this application, I proceed on the basis that it was filed on 10 June 2024, being the first working day after it was filed electronically.
[29] While there was no formal evidence submitted as to the reasons for the application being filed out of time, Mr Lincoln, in oral submissions, said he simply miscalculated the dates for filing. I return to whether leave should be granted to file the application out of time in the discussion below.
Submissions for Mr Lincoln
[30] While Mr Lincoln does not dispute the Judge’s finding that there was no useful purpose to be served by continuing the prosecution, he says the charge should “primarily” have been dismissed on the grounds of insufficiency of evidence and abuse of process. In support of those arguments, Mr Lincoln relies on the video record of the encounter that was captured on the Court security camera. He also relies on the argument that the place where the offence occurred was not a “public place”, which is one of the elements of the charge.
[31] Mr Lincoln submitted that the video record proved “beyond any doubt” that the appellant did not commit the alleged offence. He says the evidence shows that the complainant confronted Mr Lincoln and not the other way around. He describes the video as showing the complainant advancing towards him, forcing him to retreat
backwards until she has him “trapped against the door at the other end of the corridor”. He says “on her own evidence she is making hostile remarks” and she is making “repeated sheep herding hand gestures”. In short, Mr Lincoln says what is recorded on the video shows the complainant as the aggressive instigator of the encounter while he was trying to get away from her. As a matter of law, he says, he cannot be the defendant in those circumstances.
[32] He also claims that the Judge erred in law by not reconsidering the issue of whether the courtroom was a public place, noting there was evidence that the courtroom was closed and locked at the time. Mr Lincoln submitted that this case was the antithesis of the Court of Appeal decision in R v Iti where it was found the ātea, the open area in front of the wharenui (or meeting house), could not be considered separate from the balance of the marae which was a public place.18 Here, if the Courtroom was locked, by definition, it was not open to the public.
[33] While Mr Lincoln acknowledges his appeal would not change the outcome of the decision, he says these findings are important to support his current application for costs as well as an intended application for costs under the Costs in Criminal Cases Act 1967. He submits therefore there is utility in the appeal.
Submissions for the Police
[34] Mr Smith, for the police, submits the application for leave to appeal should not be granted. First, the notice was filed outside the statutory time period of 20 working days.19 It should have been filed by 30 May 2024 but was not filed until 10 June 2024.
[35] He notes that the only statutory basis for an appeal against the decision under s 147 is under s 296 CPA which permits an appeal on a question of law with the leave of the first appeal court. He points out that, contrary to the requirement of s 298(2) CPA, the notice of appeal does not identify a question of law on which the appeal is being taken.
18 R v Iti [2007] NZCA 119, [2008] 1 NZLR 587 at [39].
19 Under s 298(3) Criminal Procedure Act 2011.
[36] In any event, Mr Smith submits that the decision of the Judge not to dismiss the charge on the grounds of insufficiency of evidence, was made in accordance with established principles. In terms of the principles that apply to the sufficiency of evidence, he summarises these as follows: 20
(a)it is not for a Judge to predict the outcome of the trial;21
(b)the Court must assess where there is some evidence, not inherently flawed, that would establish the guilt of the defendant — if there is, the matter should be left to the jury, or in this case, the trial Judge;22
(c)in undertaking the assessment of Crown evidence on a s 147 application, that evidence should be viewed “at its highest”;23 and
(d)if there is evidence capable of supporting an inference contended for by the prosecution, then the Judge should have regard to the effect of that inference and not whether the inference should be drawn.24
[37] On both the issues raised by Mr Lincoln, the Judge found that there were factual disputes he could not resolve ahead of trial and, importantly, what was said between the parties (which was not resolved by the video footage) went directly to whether a confrontation which had frightened the complainant had occurred.25 In these circumstances the Judge’s decision not to dismiss the charge on the basis of insufficiency of evidence must necessarily be correct in the context of this case.
[38] In terms of whether the courtroom was a public place, the Judge concurred with the decision of Judge Brandts-Giesen, although he acknowledged that this was an issue that could be revisited at trial. The Judge noted that there was “some evidence that the door to the courtroom was locked” and there was “not a great deal of evidence as to the circumstances of that and how accessible the courtroom was”, but said that
20 R v Flyger [2001] 2 NZLR 721 (CA), and Parris v Attorney-General [2004] 1 NZLR 519 (CA).
21 R v Flyger, above n 20, at [13].
22 Parris v Attorney-General, above n 20, at [10].
23 R v Flyger, above n 20, at [17], [18] and [25].
24 Parris v Attorney-General, above 20, at [10]; R v Flyger, above n 20, at [15].
25 Police v Lincoln, above n 1, at [34].
that “may be capable of further exploration at any trial.”26 In any event, Mr Smith submits that Mr Lincoln was present in the court as a member of the public, thus demonstrating that it was, indeed, a public place. This, too, did not constitute a ground for striking out the charge based on insufficiency of evidence, or abuse of process.
[39] Given the decision was made entirely in accordance with established principles, and no error of law is identified, the respondent says leave should be declined.
Discussion
[40] There are several barriers to Mr Lincoln’s proposed appeal. The first is, of course, that the application for leave to appeal was filed out of time and there is no formal evidence provided to explain the reason for the delay.
[41] As Mr Smith pointed out, the Court has identified relevant factors in deciding whether to extend the time limit for an appeal as being:27
… the strength of the proposed appeal and the practical utility of the remedy sought, the length of delay and the reasons for delay, the extent of the impact on others similarly affected and on the administration of justice, that is floodgates considerations and the absence of prejudice to the Crown.
[42] While I accept the lack of formal explanation for the reasons for the delay, I note there is no prejudice to the prosecution by the short delay. I think it preferable to deal with the strength of the proposed appeal and the practical utility of the remedy sought in the context of considering the substantive application for leave to appeal. Accordingly, I grant leave to bring the application for leave to appeal out of time.
[43] I next turn to the application for leave to appeal. The starting point is that any appeal filed under s 296 CPA must identify a question of law. In Brown v R, the Court of Appeal held that:28
“Questions of law” in the context of s 296(2) must raise one or more of the three standard errors classified by modern authorities as creating a question of law;
26 At [14].
27 Wilson v Police [2016] NZHC 506 at [6], citing R v Knight [1998] 1 NZLR 583 (CA) at 589.
28 Brown v R [2015] NZCA 325, [2015] 30 FRNZ 471 at [16].
(a)a misdirection of law apparent in the decision (what Fisher J called “a conventional legal question on unchallenged facts”);
(b)oversight of a relevant matter, or consideration of an irrelevant matter; or
(c)a factual finding unsupported by any evidence, or an omission to draw an inference of fact which is the only one reasonably possible on the evidence.
[44] In the present case, the questions of law are not set out in the notice of appeal. Instead, Mr Lincoln articulated them in his submissions. First he said the Judge erroneously “equated participation in a confrontation with probable cause to consider the offence had been committed.” The second was the Judge erred in leaving open the possibility the vestibule was a public place when he should have considered the evidence as to the door being locked meant that this situation was the “mirror image” of the decision in R v Iti and the Court could not have been satisfied it was a public place.
[45] However, despite Mr Lincoln’s submissions on these two issues, I am satisfied that the Judge was correct to identify that both of them involved unresolved factual disputes and there was sufficient evidence to prove the charge if the police case was taken at its highest.
[46] The video evidence did not, as Mr Lincoln asserted, disprove the charge. While it is clear that the complainant walked up to the defendant, he, in turn, turned around and addressed her, blocking the doorway out of the vestibule for a few seconds, before stepping to the side. The possibility that as he did this he told the complainant, “I’m coming after you”, and “you’re going to pay” remained entirely open on the video evidence, and if established, could have proved the charge. The Judge was correct to leave this factual determination to trial.
[47] In terms of the question of whether the Court was a public place, that, too, is a nuanced decision depending on all the facts that are established. Here, the question of whether the Court was accessible was not fully resolved. The Judge noted that there was “not a great deal of evidence as to the circumstances of [the locking of the
courtroom] and how accessible the courtroom was.”29 I also do not consider it necessarily follows that a courtroom ceases to be a public place simply because it is closed to the wider public. If it is carrying out a public function of hearing a case, with the parties present, it could still be a public place despite being closed to the wider public.
[48] Other cases have held that a space which is only occupied by one member of the public and not readily accessible, can still be a public place. By way of example, a room in a massage parlour was held to be a public place, because it was being “used by the public” being the person who was offered sex by the defendant.30 Similarly, a person held in a closed detoxification room in an emergency department of a hospital, with security guards on the door, was held to be in a public place.31 The question of what comprises a public place under the definition in the Summary Offences Act is not as straightforward as Mr Lincoln submits. It is a mixed question of fact and law and the Judge was right to leave this question open for determination at trial.
[49] However, overriding all these considerations is a far more compelling reason for declining leave. Mr Lincoln is not appealing the decision or ruling of the Judge but rather, the Judge’s reasoning. As was said in R v Ireland:32
The question in an appeal is whether or not it should be allowed, or, expressed more precisely, whether an order should be made dismissing it or an order allowing it. … In a proper use of terms, the only judgment given by a Court is the order it makes. The reasons for judgment are not themselves judgment, though they may furnish the Court’s reasons for decision and thus form a precedent.
[50] This distinction was approved in Ah Toy v Registrar of Companies.33 In Ah Toy, the Court held that “reasons for judgment are not of themselves judgments … and that a judgment is the formal order whereby a court disposes of the matter before it”. In that case, the Court declined to hear an appeal on findings made in the course of the judgment which did not “constitute part of judgment of the Court”.
29 Police v Lincoln, above n 1, at [14].
30 Barton v Police M 543/84 HC Wellington, 21 November 1984.
31 Archer v New Zealand Police HC AK CRI-2007-404-349, 14 April 2008.
32 R v Ireland [1970] HCA 21, [1970] ALR 727.
33 Ah Toy v Registrar of Companies (1985) 10 FCR 280, (1985) 61 ALR 583 at 589.
[51] In the present case, the right of appeal under s 296 is against “a ruling by the trial Court”. I consider this is similarly confined to the order which is made (which in this case was the order dismissing the charge), rather than the Judge’s reasoning.
[52] Under the Criminal Procedure Rules 2012, r 8.4 specifies that a notice of appeal or a notice of application for leave to appeal must include “particulars of the decision for which leave is being sought to appeal or that is being appealed ...” When an application for leave to appeal is being made, as here, pursuant to s 296 CPA, the word “decision” must logically be read as a reference to the “ruling”. The ruling here was that the charge should be dismissed under s 147. The appeal must therefore be confined to the merits of that ruling. However, Mr Lincoln does not take issue with that ruling, only that the Judge did not reach it in reliance on the further grounds advanced by Mr Lincoln. In these circumstances I am satisfied that there is no jurisdiction to consider an appeal under s 296.
[53] Accordingly, the application for leave to appeal is declined. It does not seek to appeal the ruling of the Judge. Even if it did, no arguable error of law has been identified.
Appeal against refusal to order disclosure
Submissions for the appellant
[54] Mr Lincoln appeals Judge Neave’s direction issued on 16 May 2024 following Mr Lincoln’s request for an order that the respondents “disclose the evidence previously sought by the applicant”. He says the Judge’s direction implicitly declines to order further disclosure and instead reiterates that the existing timetabling orders for submissions on the costs application, apply.
[55] While Mr Lincoln does not expressly state what further disclosure is required, I infer that it is the disclosure which the prosecution had said would not be provided for the reasons set out in the memorandum of counsel dated 18 January 2024.
[56] In oral submissions, Mr Lincoln acknowledged that the police had provided “orthodox disclosure” of information the police held which was relevant to proving or
disproving the charge. However, he said the balance of the disclosure requested was necessary to support his application for costs as it went to whether the proceedings were advanced in bad faith or were an abuse of process. By way of example, Mr Lincoln asserts that the police maintain a large file on him which he described as a “propaganda file of insults and allegations made against him by police”, and which he seeks disclosure of.
[57] Mr Lincoln acknowledges that s 13(6) of the Criminal Disclosure Act 2008 (CDA) provides:
[6] The entitlement of a defendant to information under this section continues while the criminal proceedings are in progress … until the expiry of the time for an appeal against conviction.
However, he argues there is nothing in that section which suggests that an entitlement which arises while the criminal proceedings are in progress (as here), is extinguished at the end of those proceedings.
[58] He distinguishes the case of R v Johnson relied upon by the respondent as relating to applications for disclosure which were initiated after the proceedings were over, whereas his application was made while the proceedings were in progress and so his entitlement endures. For this reason, the relief he seeks on appeal is an order directing the respondent to fulfil its disclosure obligations for the purposes of arguing his costs application.
Submissions for the respondent
[59] The respondent opposes the appeal relying on the express wording of s 13(6) of the CDA and the decision in R v Johnson.34 In Johnson, Ellis J declined to make a disclosure order in circumstances when the charges which had been faced were dismissed and where disclosure was sought to support a costs application. In her judgment, Ellis J said:
[184] First, I am doubtful there is jurisdiction to grant such an application. Although the applicants relied [in the alternative] on s 13 of the CDA, or the High Court Rules 2016 pertaining to discovery, neither seems apt to me.
34 R v Johnson [2023] NZHC 2948, (2023) 31 CRNZ 156.
[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.
[60] Mr Smith submits that the distinction Mr Lincoln seeks to draw between an application made prior to the conclusion of the criminal proceedings and an application made after, cannot be sustained in light of the wording of s 13(6) of the CDA.
[61] Furthermore, “criminal proceedings” are defined in the CDA to mean “proceedings for an offence for which a conviction may be entered, or for an infringement offence.”35 Importantly, the CDA specifically excludes from the definition of criminal proceedings:
… any matter ancillary to proceedings (for example, an application for bail or an application for name suppression or an application under s 78, 101 or 113A of the Criminal Procedure Act 2011).
In Mr Smith’s submission, an application for costs is plainly an ancillary matter, even if brought while criminal proceedings are on foot and the appellant would not be entitled to disclosure on that basis, even leaving aside whether the material sought is relevant to the issues before the Court.
Discussion
[62] While the objection to the disclosure decision is brought as an appeal, I note that an appeal against a disclosure decision requires leave so this should have been brought as an application for leave to appeal.36 I also note there is no express decision
35 Criminal Disclosure Act, s 6.
36 Section 33(3)(b).
declining to order further disclosure although I accept it is implicit in the Judge’s direction repeating the requirement to file submissions, that he rejects Mr Lincoln’s request to order further disclosure.
[63] However, even if I treat the appeal as an application for leave to appeal under s 33(3)(b), I am satisfied that it must fail for two reasons. First, the application for disclosure is sought in relation to a matter ancillary to the proceedings, being an application for costs under s 364 of the CPA. Second, the entitlement to disclosure is confined to the period when the criminal proceedings are on foot. The language of s 13(6) of the CDA is clear. The defendant’s entitlement to disclosure ends once the proceedings are themselves at an end, regardless of when the application was made.
[64] Furthermore, I am satisfied this is the only way s 13(6) CDA can sensibly be interpreted, whether on a literal reading or adopting a purposive approach to its interpretation. Disclosure under the CDA is intended to promote the “fair, effective and efficient disclosure of relevant information between the prosecution and the defence … for the purposes of criminal proceedings.”37 If the criminal proceedings are at an end, the need for disclosure ends. To read the provision as allowing any exception to that would permit applications for disclosure to be pursued when the statutory purpose is no longer being served and would unreasonably tie up the prosecuting agency’s resources.
[65] While those reasons dispose of the application, I also note that in Mr Lincoln’s submissions on his application for costs, he is clearly able to identify the alleged procedural failures which he says meet the statutory requirements of s 364. If there has been such a failure that will be obvious from the Court file and disclosure is not needed. The Court must then consider the significance of the failure and any explanation provided for it. It remains unclear how the further disclosure sought would assist in this process.
[66] Accordingly, the appeal in respect of the refusal to order disclosure (which I treat as an application for leave to appeal) is dismissed.
37 Criminal Disclosure Act, s 3(1).
Result
[67]The applications for leave to appeal are dismissed.
Solicitors:
Crown Solicitor, Dunedin
Copy to: Mr Lincoln
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