Tamihere v The Queen

[2020] NZCA 554

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

 CA204/2020
 [2020] NZCA 554

BETWEEN	DAVID WAYNE TAMIHERE Appellant
AND	THE QUEEN Respondent

Court:	Kós P, French and Gilbert JJ
Counsel:	M S Gibson for Appellant R K Thomson for Respondent
Judgment: (On the papers)	11 November 2020 at 9 am

JUDGMENT OF THE COURT

AThe application for a non-party disclosure hearing is granted.

BThe Registrar should now take the steps required under s 26 of the Criminal Disclosure Act to enable the non-party disclosure hearing to take place.

____________________________________________________________________

REASONS OF THE COURT

(Given by Kós P)

1. On 21 April 2020, the Governor-General referred the question of the 1990 convictions of Mr Tamihere for the murders of Ms Heidi Paakkonen and Mr Sven Hӧglin to the Court of Appeal pursuant to s 406(1)(a) of the Crimes Act 1961.

2. Mr Tamihere has now made an application for a non-party disclosure hearing pursuant to s 24 of the Criminal Disclosure Act 2008, in relation to footage held by TVNZ of a helicopter flight he took in 2012 over Crosbies Clearing and the Wentworth Valley in the Coromandel. 

Relevant principles

1. The Court’s jurisdiction to order disclosure is derived from s 335(2)(e) of the Criminal Procedure Act 2011.  However, the Criminal Disclosure Act governs the procedure by which an application seeking non-party disclosure must be made.  Section 335(2)(e) does not replace the relevant parts of the Criminal Disclosure Act but operates in tandem with it.[1]  Section 25 of the Criminal Disclosure Act provides that the Court may grant the application for a non-party disclosure hearing if:

   (a)it is satisfied that all or part of the information that the defendant seeks—

   (i)is likely to be held by the person or agency that the defendant alleges holds the information; or

   (ii)is likely to be held by another person or agency; and

   (b)all or part of the information appears to the court to be relevant.

   [1]Bushby v R [2016] NZCA 527 at [6], citing Polybank v R [2013] NZCA 208; and S (CA539/2014) v R [2016] NZCA 518.

2. Relevance is defined in s 8 of the Criminal Disclosure Act as information that “tends to support or rebut, or has a material bearing on, the case against the defendant” and is “not an exacting test”.[2]  However, this Court has held that, even at the s 25 stage, the more stringent test under s 335(2)(e) must also be taken into account, requiring that  the appellant “lay a realistic evidentiary foundation” that the proposed disclosure is relevant.  It is inappropriate for an appellant to conduct a general investigation into the availability of a particular ground of appeal.[3]

Submissions

[2]Wi v R [2009] NZSC 121, [2010] 2 NZLR 11 at [8].

[3]M (CA68/2015) v R [2016] NZCA 631 at [11], citing Bushby v R, above n 1, at [10].

1. Mr Tamihere says that the footage is relevant and in the public interest, it will assist him in the appeal and is probative in the sense of assisting the Court in appreciating the topography of the relevant area.  There is no expectation of privacy that attaches to this information and TVNZ acknowledges that disclosure can occur subject to a court order.  Disclosure will promote fairness to Mr Tamihere in the appeal process.

2. The Crown does not consider it immediately apparent that the footage is relevant to the issues raised by the Governor-General’s reference but abides the Court’s decision on whether to grant the application for a hearing.

Discussion

1. Applying the test to the present case, we are satisfied that the application for a non-party disclosure hearing ought to be granted.  In terms of the s 25 factors, the footage is likely to be held by TVNZ and it is at least broadly relevant to one of the grounds of the reference (being the potential inconsistency between the discovery of Mr Hӧglin’s remains in the Wentworth Valley and the identification evidence placing Mr Tamihere in Crosbies Clearing).  Turning to the s 335(2)(e) test, to the extent that it is relevant at this preliminary stage, there is a realistic evidentiary foundation that the proposed disclosure is relevant, and the nature of the Governor-General’s reference is such that this does not amount to a general investigation into the availability of a particular ground of appeal.  

2. On this basis, and having regard to the fact the Crown does not oppose the application, it is appropriate that the application proceed to a hearing under s 27 of the Criminal Disclosure Act.[4]

Result

[4]In determining the application, the Court will then need to take into account the mandatory considerations in s 29 of the Criminal Disclosure Act, including the probative value of the information, the nature and extent of any reasonable expectation of privacy in relation to the information, and the effect of the determination on the fairness of the trial or hearing process.

1. The application for a non-party disclosure hearing is granted.

2. The Registrar should now take the steps required under s 26 of the Criminal Disclosure Act to enable the non-party disclosure hearing to take place.

Solicitors:
Crown Law Office, Wellington for Respondent