Sami v Police
[2021] NZHC 3563
•21 December 2021
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2021-404-365
[2021] NZHC 3563
BETWEEN VIJAY SAMI
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 29 November 2021 Appearances:
D P Nairn for Appellant
N D Cartwright for Respondent
Judgment:
21 December 2021
JUDGMENT OF PAUL DAVISON J
This judgment was delivered by me on 21 December 2021 at 12.30pm
Registrar/Deputy Registrar
Solicitors:
Kayes Fletcher Walker, Auckland
SAMI v POLICE [2021] NZHC 3563 [21 December 2021]
Introduction
[1] Mr Vijay Sami (the appellant) appeals a pre-trial decision by Judge Harvey in the Manukau District Court on 27 July 2021 in which the Judge declined the appellant’s application for a disclosure order under s 30 of the Criminal Disclosure Act 2008 (the Act).1 The order sought by the appellant would have required the police as prosecutor to confirm whether or not they intended to produce and play the appellant’s DVD police interview at trial.
[2] The appellant faces one charge of assault with a weapon2 and one charge of assault in a family relationship,3 both arising from the same incident occurring on 12 January 2020. The complainant is the appellant’s former partner. The appellant was arrested that same day and agreed to undertake a voluntary police interview which was recorded on DVD.
[3] The appellant first appeared in the District Court at Manukau on 13 January 2020. He entered pleas of not guilty and was remanded on bail for a case review hearing on 30 April 2020. On 8 April 2020, counsel for the appellant requested the Police to provide prosecution disclosure and a list of prosecution witnesses. On 25 April 2020, counsel for the appellant filed an application seeking an order for disclosure of a formal witness and exhibit list. The application was determined and dismissed by Judge Phillips on 16 October 2020 in circumstances where the appellant’s counsel failed to appear at the hearing.
[4] On 25 May 2021, in anticipation of a Judge-alone trial scheduled for 10 June 2021, the Police prosecutor disclosed a further witness and exhibit list to the appellant. The exhibit list referred to the appellant’s Police DVD interview as follows:
3. DVD interview (prosecutor to determine whether played or not)
[5] A Judge-alone trial scheduled for 4 November 2021 was recently adjourned due to COVID-19 restrictions. A new date for trial is yet to be scheduled.
1 Police v Sami [2021] NZDC 15184.
2 Crimes Act 1961, s 202C(1)(b): maximum penalty five years’ imprisonment.
3 Crimes Act, s 194A: maximum penalty two years’ imprisonment.
Leave to appeal
[6] The appeal is brought under s 33 of the Act, which provides that a defendant may, with leave, appeal to the High Court against a decision concerning a disclosure order.4 In a minute dated 15 October 2021, Gordon J directed that the appellant’s application for leave to appeal should be heard at the same time as the appeal itself.5
[7] The provisions of the Criminal Procedure Act 2011 (CPA) governing pre-trial decisions apply. Section 221 of the CPA requires the first appeal court to determine the appeal by:
(a)confirming the decision appealed against; or
(b)varying the decision appealed against; or
(c)setting aside the decision appealed against and making any other order it considers appropriate.
[8] An appeal against a pre-trial decision to decline a disclosure order is a general appeal. The relevant factors to be considered in relation to applications for leave to appeal a pre-trial decision have been set out by the Court of Appeal in R v Leonard and Hohipa v R. 6 In R v Leonard the Court of Appeal said:
[13] Factors pointing towards the granting of leave include:
(a)The argument is based on a novel point or is of significance for other cases;
(b)There is conflicting authority covering the issue to be determined on the proposed appeal;
(c)The application relates to an identified error of law;
(d)The application involves the admissibility of evidence that is important to one of the parties;
(f)The matter cannot be dealt with adequately in any appeal after the trial or there are only limited post-trial appeal right (as will often be the case for Crown applications);
(g)The proposed grounds of appeal are arguable.
4 Criminal Disclosure Act 2008, s 33(2) and (3)(b).
5 Sami v Police HC Auckland CRI-2021-404-365, 15 October [Minute (No 2) of Gordon J] at [10].
6 R v Leonard [2007] NZCA 452, [2008] 2 NZLR 218 at [13]-[14]; Hohipa v R [2015] NZCA 73,
[2018] 2 NZLR 1, at [24] – [27].
Factors pointing towards refusing leave include:
(a)The issue will need to be revisited at trial or is best dealt with in the context of the trial;
(b)The application involves the admissibility of evidence that would not make a significant difference to the course of the trial and is unlikely to lead to post conviction appeal success;
(c)The issue is best dealt with in the context of any post conviction appeal;
(d)The application challenges a factual finding, especially where the finding rests on an assessment of credibility;
(e)The application challenges the exercise of a discretion. In such cases leave should not be granted unless there are grounds articulated which point to the fact that the judge has, in exercising his or her discretion, acted on some wrong principle, has given weight to extraneous or irrelevant matters, has failed to give sufficient weight to relevant considerations, or is plainly wrong;
(f)The appeal will cause unnecessary delay: for example where there is not time to hear the appeal before the trial commences or where it would unduly delay the trial;
(g)The proposed appeal is without merit.
[9] The respondent submits that leave to appeal should be declined for two reasons: firstly, because as a result of the prosecution having advised the appellant on 16 September 2021 that the police DVD interview will not be produced and relied on as prosecution evidence at his trial the issue raised by the appeal is now moot; and secondly because the appeal lacks merit in any event. Accordingly, the outcome sought by the appellant as to whether or not his DVD interview will be produced and played at trial has been resolved.
[10] As the issue affecting the conduct of the appellant’s trial has been resolved insofar as the appellant’s trial is concerned, there is no longer any utility in determining the issue insofar as his trial is concerned. However, as the issue raised by the appellant’s appeal relates to what is said to be the general approach to pre-trial disclosure being taken by Police prosecutors in the Manukau District Court and is therefore of wider significance than the instant case, I shall grant the appellant leave to appeal.
Decision under appeal
[11] Judge Harvey reviewed the application for disclosure and the applicant’s arguments. He noted that the prosecution had disclosed the items of evidence specified in the application, and the defence had viewed them. He also noted the sequence of the Police prosecution process, and that the officer who prepares the file for hearing is not necessarily the prosecuting officer, and consequently does not make decisions regarding the use of exhibits at trial. The Judge rejected the defendant’s argument that the Act requires the prosecution to not only disclose particular exhibits, but also “advise explicitly” or “definitively state” which exhibits will be used at trial.7 He summarised the defendant’s arguments and his conclusion as follows:8
[6] The interpretation that [the defendant’s counsel] places on the provisions of the Criminal Disclosure Act, read in conjunction with the Criminal Procedure Act, seem to suggest that the language, although stated as anticipatory, the word “proposed” being used particularly should be interpreted as being confirmatory, that is that not only is the obligation upon the prosecution to disclose the information but to make it abundantly clear that the information is to be produced or not produced as evidence.
[7] My reading of the Criminal Disclosure Act does not go as widely as that. I believe that [the defendant’s counsel], with the greatest of respect, has been overly generous in his interpretation of the legislation. The application for an order for disclosure as sought is dismissed. I do note, however, that the information, and I emphasise the word information, that [counsel] has sought has in fact been disclosed.
[12]Judge Harvey accordingly declined the application.
Relevant law
[13] The Act governs the disclosure of relevant information between prosecution and defence for the purposes of criminal proceedings.9
[14] Section 12 of the Act requires the prosecutor to disclose to the defendant the information detailed in s 12(1) (aa) – (e), at the commencement of criminal
7 Police v Sami [2021] NZDC 15184, at [2] and [4].
8 At [6].
9 Criminal Disclosure Act 2008, s 3.
proceedings, or as soon as practicable after that time, and in any event not later than the applicable date.10
[15] Where a defendant enters a not guilty plea, s 13 of the Act requires the prosecutor, as soon as reasonably practicable, to make full disclosure to the defendant by disclosing the information specified in s 13(2)(a) and (b). Section 13(2)(a) identifies the information to be disclosed as being:
(a)any relevant information, including, without limitation, the information (standard information) described in subsection (3); and
(b)a list of any relevant information that the prosecutor refuses under section 15, 16, 17, or 18 to disclose to the defendant together with –
(i)the reason for the refusal; and
(ii)if the defendant so requests, the grounds in support of that reason, unless the giving of those grounds would itself prejudice the interests protected by section 16,17, or 18 and ( in the case of the interests protected by section 18) there is no overriding public interest.
[16] The information described as “standard information” in s 13(2)(a) is specified in s 13(3)(a) – (h). It relevantly includes:
(e)a list of all exhibits that the prosecutor proposes to have introduced as evidence as part of the case for the prosecution; and
(f)a list of all relevant exhibits in the possession of the prosecutor that the prosecutor does not propose to have introduced as evidence;
[17]Section 13 further provides that:
(4)The obligation to disclose information to the defendant under this section as soon as is reasonably practicable is subject to any order made under section 30 or 32.
(5)If information referred to in subsection (2) comes into the possession or control of the prosecutor, or is prepared in recorded form, after the prosecutor has disclosed information in accordance with subsection
(1) and before the hearing or trial is completed, the prosecutor must disclose the information to the defendant as soon as is reasonably practicable.
10 The term “applicable date” is relevantly defined in s 12(4)(a) and (c) as being the date that is 15 working days after the commencement of the criminal proceedings, or any later date that the court or Registrar allows on application by the prosecutor.
(6)The entitlement of a defendant to information under this section continues while the criminal proceedings are in progress (including any appeal against conviction) and during the period from the conviction until the expiry of the time for lodging an appeal against conviction.
[18] The obligation on the prosecutor pursuant to s 13 to disclose information to the defendant as soon as reasonably practicable, is subject to any order of the court under ss 30 or 32. Section 30 of the Act provides:
30 Court order for disclosure of information
(1)The defendant may apply to the court for an order that a particular item of information or type of information in the possession or control of the prosecutor be disclosed on the grounds that:
(a)the defendant is entitled to the information under section 12, 13, or 14, as the case may be, and -
(i)the prosecutor failed to disclose the information; or
(ii) …
(b) …
(2)If the court is satisfied, on an application made under this section, that the defendant is entitled to the disclosure of any particular item of information or type of information ... the court may order that the item or type of information be disclosed to the defendant.
Appellant’s submissions
[19] The appellant relies on ss 12(2) and 13(2)-(4) of the Act, and s 25 of the New Zealand Bill of Rights Act 1990 (NZBORA), which provides for minimum standards of criminal procedure as follows:
Everyone who is charged with an offence has, in relation to the determination of the charge, the following minimum rights:
(a)the right to a fair and public hearing by an independent and impartial court:
...
[20] The appellant submits that the information that the prosecution must disclose pursuant to s 13(3)(e) and (f), includes advice as to whether or not they propose to introduce the defendant’s DVD statement as evidence at trial.
[21] The appellant says that the Act unequivocally mandates the obligations of the prosecution in relation to disclosure. The obligation to disclose as soon as “reasonably practicable” clearly falls between the time a not guilty plea is entered and the first case review hearing. The appellant submits that information as to whether the prosecution intended to introduce the defendant’s DVD statement made to police is information which was relevant to the defendant’s case review hearing in terms of estimating the length of time the hearing would take and steps to progress the matter.
[22] The appellant says that the Manukau Police Prosecution Service (MPPS) has a policy of avoiding the prosecution’s disclosure obligations under the Act by annotating some items on the exhibit list “(prosecutor to determine whether played or not)” and by using the word “draft” on the list of disclosure.
[23] Counsel for the appellant says they have been involved in another trial at which the Police prosecutor altered their original position on whether or not the defendant’s DVD interview would be produced and played during the course of the trial. Counsel submits that this practice puts an “indelible stain” on the prosecution’s character and creates a “significant risk” that the trial will become a “debacle”.
[24] The appellant accepts that the prosecution may for good reasons depart from the originally proposed exhibit or witness lists where new evidence has come to light, or when witnesses become unavailable. However, counsel submits that the approach he describes being taken by Police prosecutors in the Manukau District Court gives the appearance of the prosecutors carrying out their disclosure obligations tactically, leaving the defendant uncertain as to the prosecution case against them and contrary to established prosecutorial guidelines, the Act, the CPA and NZBORA.
Respondent’s submissions
[25] In the event that leave to appeal is granted, the respondent submits that the substantive appeal should be declined because Judge Harvey’s decision to decline the disclosure application was plainly correct. The Judge’s interpretation of ss 13(3)(e) and (f) of the Act is consistent with the plain language of the Act and its statutory purpose.
[26] The operative word in ss 13(3)(e) and (f) is “propose”. As Judge Harvey stated, a plain language interpretation of “propose” indicates that the disclosure obligations are anticipatory and extend only to disclosure of a list of exhibits which the prosecution proposes to produce.
[27] Neither the word "proposes", nor the phrase "proposed list of exhibits", is defined in the Act. However, on its ordinary meaning, the respondent submits that "proposed" describes something that "has been put forward for consideration or action".11
[28] The meaning of the word “proposed” has previously been considered by this Court, albeit in a different statutory context:12
I think the use of the word "proposed" indicates a decision that is already made but without discounting the remote possibility that before the decision is confirmed something may occur which changes the decision-maker's mind. As a question of policy, it must be unattractive to allow the Courts to be used as a vehicle to potentially challenge each step of a decision-making process ...
[29] Judge Harvey’s interpretation is also consistent with the purpose of the Act, which is to “promote fair, effective, and efficient disclosure of relevant information between the prosecution and the defence ... for the purposes of criminal proceedings”.13 The Act responded to a need for a formalised disclosure regime, as identified by the Criminal Law Reform Committee. The Committee commented on the purpose of disclosure of prosecution materials as follows:14
We do not anticipate that the defence will request access to all the information in all cases, particularly those dealt with by summary proceeding only. Nevertheless, there are good reasons for making the material available before plea if so requested. First, the summary of facts, by itself, is limited in scope. Disclosure of information such as the names of witnesses to be called and exhibits to be produced may afford a more precise indication of the shape of the prosecution case, enabling the accused to make an informed plea decision. Second, it is reasonable to assume that, apprised of the case against them and the likely consequences of conviction, many an accused may well choose to plead guilty.
11 The respondent refers to Collins English Dictionary “Definition of ‘proposed’” Aquaculture Limited v The Chief Executive, Ministry of Fisheries HC Blenheim CP1/000, 25 February 2003 at [21].
13 Criminal Disclosure Act, s 13(5).
14 Criminal Law Reform Committee Committee Report on Discovery in Criminal Cases (Criminal Law Reform, December 1986) at 120.
[30] Comments made by the Law and Order Committee in their report on the draft Criminal Procedure Bill also support the submission that an exhibits list need not identify which items will be used at trial:15
Full disclosure
Clause 28 provides for full disclosure after a "not guilty" plea in summary matters or first appearance in indictable matters including a list of all exhibits held by the prosecutor (whether or not they will be used at trial), prosecution witnesses' convictions, and expert witness reports.
[31] The respondent submits that the legislative history and context of the Act indicates that the purpose of disclosure is to fairly inform the defendant of the nature of the prosecution case, and ensure equality of information between parties relevant to the charges and the Crown case. The Act does not purport to govern the conduct of the prosecutor’s case, or trial preparation, or trial process generally.
[32] The Act envisages that full disclosure will take place at a very early stage of the proceedings, soon after the defendant has entered a not guilty plea. Therefore, the prosecution cannot be expected to produce a finalised exhibit list at that early stage. There are many legitimate reasons why a prosecutor’s initial views regarding the evidence to be adduced at trial will evolve and change during the course of the prosecution process: it will often be the case that the police investigation is ongoing, with the possibility of further relevant evidence yet to be discovered; issues may be conceded by the defence at trial; and evidence introduced by the defence at trial may trigger a response from the prosecution. The dynamic nature of the trial process often requires the prosecution to adapt the use of exhibits as matters arise and the trial proceeds. The respondent submits that the appellant’s interpretation of the Act would effectively freeze the prosecution case in time, at an early stage in the proceedings, when the disclosure obligation arises.
[33] The respondent further submits that a defendant who is unfairly prejudiced by a late decision by the prosecutor to introduce and rely on evidence that although disclosed was not originally proposed to be produced at trial, has remedies under the Evidence Act 2006. Conversely, a defendant is themselves able to produce evidence
15 Criminal Procedure Bill (Law and Order Committee, 2005) at 15.
of a police interview through the officer in charge, if they consider that they are prejudiced by the prosecution’s failure to produce that evidence.
Discussion
[34] The purpose of the Act is to ensure that the prosecutor first provides initial disclosure and subsequently, if not guilty pleas are entered, full disclosure, in accordance with the specific requirements in s 13, “to promote fair, effective, and efficient, disclosure of relevant information” between prosecution and defence in relation to criminal proceedings. Any failure on the part of Police prosecutors to discharge their obligations in accordance with the Act which results in defendants not having the information that the Act requires them to be provided with, not only prevents defendants and their counsel from making properly informed decisions regarding the prosecution case against them and how they will proceed, which is unfair and contrary to the purpose of the Act, but may also have a significant impact on a defendant’s trial preparation.
[35] The use of the words “propose” and “proposes” in ss 13(3)(e), (f) and (g) clearly refers to what are necessarily provisional decisions made by the prosecutor regarding the information falling into those categories. Provided that a prosecutor’s decisions and categorisation of information they intend to produce and rely on at trial are bona fide, and provided they accurately set out a list of the disclosure that the prosecution intends to produce or not produce at trial, there can be no criticism of the adequacy or completeness of the disclosure made to the defendant based on the prosecutor’s non-compliance with the Act. It is also clear that the Act is directed at the obligations and mechanisms for making disclosure. It is not directed at the trial process.
[36] Quite aside from the issue of whether or not the prosecutor has discharged their obligations under the Act, there is the overarching entitlement of a defendant to a fair trial and the rights recognised in ss 24 and 25 of NZBORA. Particularly relevant in this context is the right to be informed “promptly and in detail of the nature and cause
of the charge” and the right to “adequate time and facilities to prepare a defence” once a person has been charged with an offence.16
[37] Qualifications to the effect that proposed exhibits on the disclosure list may or may not be produced at trial depending on a decision yet to be made by the prosecutor introduces an unsatisfactory level of uncertainty, notwithstanding the validity of any reasons or justifications for doing so. Such uncertainty elevates the risk of prejudice to the defendant’s trial preparation, and requires the defence to decide whether to carry out its own enquiries or arrange the attendance of witnesses at trial against the possibility that the prosecutor decides shortly before the trial or on the day of trial to introduce some evidence or exhibit.
[38] Where a prosecutor identifies items on a list of disclosure provided to the defendant without confirming whether or not they will be produced or relied on at trial, or uses the word “draft” to indicate that the list of disclosure should not be treated as final and may be changed by the prosecutor shortly before or during the trial, that practice introduces a degree of uncertainty as to the contents and evidential basis of the prosecution case. While this uncertainty is unsatisfactory in itself, the practice may also result in significant and unfair prejudice to defendants who find themselves unable to respond to late changes made by the prosecutor which adversely affect their ability to adequately prepare for trial. A defendant placed in this position at a pre-trial stage has the option of seeking an adjournment of the trial. Prejudice to the defendant resulting from the uncertainty caused by the practice adopted by the prosecutor in failing to categorise the exhibits to be relied on (or not) at trial would provide a cogent basis for doing so. Depending on the circumstances, cases resulting in more significant prejudice could give rise to applications to stay the prosecution on the grounds of abuse of process.
[39] I accordingly reject the appellant’s suggested interpretation of the Act, which fails to apply the plain meaning of the word “propose” as used in the relevant s 13(2) provisions, and fails to recognise the purpose of the Act and the practical need for a flexible trial process. In my view, s 30 of the Act applies to information held by the
16 New Zealand Bill of Rights Act 1990, s 24(a) and (d).
prosecution that is capable of being disclosed in accordance with s 13 of the Act. Here, the existence and contents of the Police DVD interview of the appellant were disclosed to the appellant in accordance with the requirements of the Act. The qualification as to whether or not the DVD interview would be introduced at trial has not in fact resulted in any unfair prejudice to the appellant. The prosecution decision not to introduce the appellant’s Police DVD interview as evidence at his trial was communicated to the appellant on 16 September 2021. The appellant can therefore now proceed to prepare for trial on that certain basis.
[40] Where the prosecution fails to disclose information that it ought to disclose in accordance with the Act, a defendant has recourse to s 30 and may apply for an order that the information be disclosed. However, where disclosure is made but the prosecution qualifies the disclosure in a manner that causes uncertainty and leads to unfair prejudice to a defendant, the appropriate course, in the absence of timely clarification and resolution of the uncertainty, will be to seek an adjournment of the trial on the grounds that the defendant is prejudiced and unable to adequately prepare for trial until they have been informed of the contents and evidential foundation of the prosecution case, consistently with a defendant’s rights under NZBORA. Alternatively, in cases where an adjournment (or further adjournment) and the opportunity to adequately prepare for trial is insufficient to ensure the defendant has a fair trial, in light of the prejudice caused by the manner in which the prosecution have conducted the disclosure process, a defendant can apply for a stay.
Result
[41]The appeal is dismissed.
Paul Davison J
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