S v The Police HC Christchurch a 49/01

[2001] NZHC 746

IN THE HIGH COURT OF NEW ZEALAND
CHRISTCHURCH REGISTRY A 49/01

BETWEEN [S]
Appellant

AND THE POLICE
Respondent

Hearing: 14 August 2001

Counsel: C J O’Neill for Appellant
S C Poore for Respondent

ORAL JUDGMENT OF PANCKHURST J

Solicitors:
C J O’Neill Barrister, Christchurch for Appellant
Crown Solicitor, Christchurch for Respondent

[1] This appeal represents a challenge to the exercise of discretions under Sections 33 and 35 of the Evidence Amendment Act (No. 2) 1980. In the course of an examination by a psychiatrist, the appellant made threats to kill. When these were revealed to the police he was charged with that offence. Accordingly the Judge in the District Court was required to decide whether the evidence of the threats made to the doctor in a police station setting should be admitted.

The Facts:

[2] At about 12.20 am on Christmas Day 2000 the appellant was arrested and charged with theft of a ladder and some paint alleged to belong to a near neighbour. He was taken to the Christchurch Police Station. Soon after police officers became concerned as to his welfare. They thought he represented a suicide risk. At about 4 am nurses from the psychiatric emergency team were called and examined the appellant. As a result, at about 5 am, a Dr Tuckley came to the police station and also examined the appellant but in a more formal sense.

[3] From the doctor’s evidence given at a voir dire it is evident that the appellant initially did not appreciate his identity. He suspected the doctor was an agent acting for the police. However, Mr [S]’s confidence was gained when Dr Tuckley assured him he was a doctor and that their discussion would be a confidential one.

[4] Within a short while the appellant made unsolicited comments which gave rise to the further criminal charge. They were to the effect that he would “kill the bitch who had dobbed him in it”. He amplified that remark by saying that if need be he would get a mate to perform the task and pay him with drugs. Mr [S] also made comments to the effect that he would kill himself by hanging in a garage using a coffee table to that end.

[5] Dr Tuckley was sufficiently concerned at these remarks to first of all warn the appellant that confidence may not be maintained. That it may be his duty to reveal the comments to the police. That said Mr [S] responded, “then it is all lies” and thereby effectively sought to resile from what he had said moments earlier.

In the event Dr Tuckley did inform the police of the comments and the charge resulted.

The Hearing:

[6] The case was heard in the District Court on 9 April 2001. Part way through the evidence there was a voir dire. The doctor and the appellant both gave evidence. At the conclusion of such evidence an oral ruling was given. With reference to s 33, under which a medical practitioner is excused from disclosing in any criminal proceeding any protected communication made to him by a patient (except with the consent of the patient), the Judge found that s 33(2) applied. That is that the section did not avail the appellant because he had made the relevant communication for a criminal purpose. Hence the exception created by this subsection came into play and the evidence was ruled to be admissible. However the Judge rightly accepted that the discretion to excuse a witness from giving evidence pursuant to s 35 also required consideration. In terms of that section he nonetheless held that the public interest favoured reception of the evidence and ruled in the evidence accordingly.

The Appeal:

[7] Mr O’Neill in support of the appeal challenged the reasoning adopted with reference to both Sections 33 and 35. What the Judge said in relation to the former section was this:

“I am satisfied that that section does not apply because ‘this is a communication made for any criminal purpose’. It seems to me that not only is the statement made about killing the complainant or dealing to her for any criminal purpose the alleged words constitute the crime itself of threatening to kill. A fortiori it must be made for any criminal purpose and therefore s 33 does not apply.”

Counsel submitted that this reasoning was circular. What he meant was that inevitably the subject words did constitute a crime, but that for a threat to kill to be criminal there must be an intent on the part of the speaker that his words be taken seriously.

[8] Mr O’Neill said it was not evident in the passage which I have just quoted that the Judge had brought that requirement to bear. If the words were not intended to be taken seriously then there would be no criminal purpose afoot. Specifically, in a context such as the present, Mr O’Neill submitted it would be possible for the ramblings of a disordered mind, which extended to a threat to kill but which were devoid of any criminal intent, to nonetheless suffice to defeat the protection of the section unless seriousness of intent was also necessary.

[9] Mr Poore did not dispute the underlying basis of the submission. However, he argued that on a reading of the judgment as a whole, in light of the evidence in the case, it was clear that the Judge was alive to the need that the words spoken were intended to be taken seriously. I accept that submission. Although the passage I have quoted which contains the essential reasoning does not advert to the need that the threat was intended to be taken seriously, it is evident from the judgment as a whole that the Judge well appreciated this.

[10] Moreover, there was considerable evidence which pointed to the fact that these words were spoken with serious intent. The Judge noted that Mr [S] was angry when he made the relevant comments. The doctor, in giving evidence, clearly conveyed that he was frightened by the words that were spoken both on account of the woman and for the safety of the appellant himself. Hence he immediately warned Mr [S] that these comments may not be subject to the same confidence which other words would be accorded. Immediately after the consultation the doctor felt bound to act by revealing what had been said to the police. All of this points clearly to the fact that the words were spoken seriously and, as I have already noted, the judgment read as a whole demonstrates that the Judge was alive to that requirement.

[11] I therefore turn to s 35. It relevantly provides:

“35. Discretion of court to excuse witnesses from giving any particular evidence

(1) In any proceeding before any Court, the Court may, in its discretion, excuse any witness (including a party) from answering any question or producing any document that he would otherwise be compellable to answer or produce, on the ground that to supply the information or produce the document would be a breach by the witness of a confidence that, having regard to the special relationship existing between him and the person from whom he obtained the information or document and to the matters specified in subsection (2) of this section, the witness should not be compelled to breach.

(2) In deciding any application for the exercise of its discretion under subsection (1) of this section, the Court shall consider whether or not the public interest in having the evidence disclosed to the Court is outweighed, in the particular case, by the public interest in the preservation of confidences between persons in the relative positions of the confident and the witness and the encouragement of free communication between such persons, having regard to the following matters:

(a) The likely significance of the evidence to the resolution of the issues to be decided in the proceeding:

(b) The nature of the confidence and of the special relationship between the confidant and the witness:

(c) The likely effect of the disclosure on the confidant or any other person.”

The learned Judge noted these requirements, in particular the need to have regard to the matters listed in ss(2).

[12] With reference to the “likely significance of the evidence to the resolution of the issues to be decided” the Judge described the comments as reported by the doctor as of “crucial” importance. At another point he said that those comments comprised the “whole of the evidence” in support of the charge of threatening to kill. He also noted that such offence is one which carries a seven year maximum. I am well satisfied therefore that he did consider the likely significance of the relevant evidence.

[13] With reference to the nature of the confidence and of the special relationship between the actors, and the likely effect of disclosure, the Judge said this:

“The second matter is the nature of the confidence. This was a statement that came, as it were, out of the blue and straight from the shoulder of the defendant and the likely effect of the disclosure on the doctor is neutral. Mr [S] said it. He said it, as I say, almost immediately the doctor was starting to talk to him so I have no doubt that in this case the public interest in having it disclosed outweighs any issues of confidence.”

[14] Mr O’Neill criticised this reasoning as inadequate to the occasion. He argued that there was no sufficient balancing of the competing values which fall for consideration when there is a challenge to evidence in terms of this section.

[15] Mr Poore on the other hand, while not accepting the criticism of the reasoning, examined the circumstances which existed and thereby supported the reasoning of the learned Judge. He stressed that this case was quite unlike that in Re Leading Aircraftman F [1998] 1 NZLR 714 (CA). In that case the suspect made similar comments (of threatening to kill) in the course of a consultation in which he was desperately seeking help for a mental problem. It was therefore a situation of high confidence and where the relevant communications were central to the process of disclosure on the one hand, and to placing the recipient of the information in the position to afford assistance and treatment on the other.

[16] By contrast, counsel suggested, this case was towards the other end of the spectrum. While the background was one of genuine concern for the appellant’s mental state which led to the involvement of the psychiatric nurses and eventually of the doctor, the immediate context in which the relevant statements were made was rather different. These were in the nature of unsolicited threats. The Judge accepted on the evidence he heard at the voir dire that they were threats born of anger. Hence it was not a situation of a person seeking treatment, who out of necessity made disclosures against self interest. Rather these were, as the Judge noted, immediate comments, spontaneous, and little connected to the task at hand.

[17] Mr Poore also submitted that the phrase which appears in the quoted passage, namely that the “likely effect of disclosure on the doctor is neutral”, must contain a slip of the tongue. He suggested the Judge obviously intended to say that disclosure on the confidant (rather than the doctor) was neutral. I accept that must be the case, otherwise the sentence does not make sense. I infer that the Judge was referring directly to ss(2)(c) but in doing so referred to the doctor rather than the appellant or, in terms of the section, the confidant.

[18] In any event I am satisfied on a full analysis of the situation that the discretion was properly exercised. It seems to me that the distinction between this case and that of Re Leading Aircraftman F is striking and illustrative of the need for a different result in this instance.

[19] I am also fortified in that conclusion by comments made by the Court of Appeal in R v Secord [1992] 3 NZLR 570 (CA). There the Court observed that where evidence was likely to be important to the determination of a case, generally the public interest would favour its disclosure. Applying that observation here, to my mind, indicates that disclosure was appropriate.

[20] For these reasons I find that the Judge did not err either with reference to s 33 or s 35 in his ruling that the evidence should be admitted. It follows that the appeal must be dismissed.