Tonkin v Manukau District Court HC Auckland M No.437/SW01

[2001] NZHC 678

IN THE HIGH COURT OF NEW ZEALAND
AUCKLAND REGISTRY M NO.437/SW01

BETWEEN HEATHER SHIRLEY TONKIN
Plaintiff

AND MANUKAU DISTRICT COURT
First Defendant

AND THE NEW ZEALAND POLICE
Second Defendant

Hearing: 26 July 2001

Counsel: BJ Hart and KH Maxwell for Plaintiff
KA Muir and JM Needham for Second Defendant
No appearance by the First Defendant

Judgment: 26 July 2001

ORAL JUDGMENT OF RODNEY HANSEN J

Solicitors: Mr Nigel Cooke, P O Box 47-016, Ponsonby, Auckland for Plaintiff
Morgan Coakle, DX CP20504, Auckland for Defendants

Introduction

[1] I am asked to determine whether the second defendant, the New Zealand Police, should be required to disclose two documents pursuant to a request made under the Official Information Act and in accordance with general rights to discovery in criminal cases.

Background

[2] The request arises in the context of an application to review a decision of a District Court Judge sitting in the Manukau District Court not to direct disclosure of a police job sheet and a police file referred to as the “Dunedin stalker file”. Requests for disclosure of these documents were made in the course of a prosecution by the police of the plaintiff on a charge of making a false allegation or report to the police under s 24(b)(1) of the Summary Proceedings Act 1957. The allegation essentially is that she falsely complained of being stalked by her former partner.

[3] The proceeding first came before Nicholson J on 10 May 2001. Then, as now, the first defendant, the Manukau District Court, did not appear, having earlier filed an appearance pursuant to rr 132 and 133 of the High Court Rules and advising that it did not oppose the plaintiff’s claim. The minute of Nicholson J of 10 May recounts in detail the background to the application and to the steps he took at the time. It records that the hearing of the defended prosecution had been adjourned from 5 March 2001 to 13 August following the challenge to the Judge’s ruling. Conscious of the need to determine the substantive issue before 13 August, Nicholson J adopted the pragmatic approach advocated by counsel of directing that the police make available for his inspection all documents on the Dunedin stalker file which relate directly or indirectly to the plaintiff and/or her former partner and any communications between the plaintiff and the police relating to the Dunedin stalker enquiry and actions taken in respect of such communications.

[4] In the event, it was not necessary for Nicholson J to adjudicate on the documents as matters were generally resolved between counsel and there has been voluntary disclosure of documents contained in the Dunedin stalker file. Differences now are confined to two documents:

[a] A letter dated 29 October 1999 which accompanied a request by the investigating officer in Auckland to the police in Dunedin to interview the plaintiff’s former partner.

[b] A list of suggested questions for the Dunedin police to put to him.

[5] I expressed some hesitancy as to my competence to adjudicate on these issues in the context of the proceedings as presently constituted but, fortified by the pragmatic example of Nicholson J, the need for an urgent resolution of the issue and the entreaties of counsel and their reference to the broad supervisory jurisdiction of the Court, I am persuaded to undertake the task.

The competing arguments

[6] Mr Hart is, of course, at the disadvantage of not knowing what is in the documents. He submits, however, that they are likely to be relevant and discoverable as disclosing the attitude of the investigating officer of the investigation at the time. He submitted the governing principle to be broadly that the police should be required to disclose anything which may detract from the prosecution case and anything which would assist the defence. He submitted that the statutory protection in s 6(c) of the Official Information Act 1982 to the disclosure of documents which would be likely to prejudice the maintenance of the law, including the “prevention, investigation and detection of offences and the right to a fair trial”, should give way to the overriding general principle just referred to. He submitted that the law had “moved on” since Commissioner of Police v Ombudsman [1988] 1 NZLR 385 which recognised that the broad right to disclosure was subject to the statutory protection in s 6(c).

[7] Mr Muir relied on s 6(c) and on Commissioner of Police v Ombudsman to support his submission that the documents should not be disclosed. He referred me to the following passage from the judgment of Cooke P in that case (at p 397):

“Other material on the [police] file such as internal police memoranda, instructions, notes of police conferences, expressions of opinion, will commonly continue to be protected from disclosure even after proceedings have been commenced. Some such material (and the examples are not meant to be exhaustive) will not be personal information about the defendant. Some of it may well reveal police investigation methods. Nothing in the present judgment is intended to suggest that material compiled as part of the investigation process and not being personal information about the defendant supplied by witnesses or possible witnesses has normally to be disclosed on request.”

[8] Mr Muir accepted that personal information concerning a defendant should normally be disclosed but that it should give way to the public interest in allowing police to freely express their opinions in internal memoranda and, in particular, to formulate questions and exchange information in relation to suspects without risk of their opinions or questioning techniques being disclosed. He acknowledged that any record of interviews that followed would necessarily have to be disclosed.

Decision

[9] I have considered the documents in question. I consider them to be of doubtful relevance and likely to be of limited, if any, assistance to the defence. I am not persuaded that the attitude of individual officers (to the extent they may be disclosed) will play any part in this prosecution. I would expect the verdict to be based on facts, not opinions.

[10] Leaving that consideration to one side, however, I am of the view that these documents are entitled to the protection available under s 6(c) of the Official Information Act. In my view, it is necessary and desirable that police officers should be able to communicate internally in writing without fear that matters of opinion and comment will later be disclosed. I see it as necessary to the efficient workings of the police and in no way contrary to the right to a fair trial for internal memoranda to be protected from disclosure in proper cases. Informal communications in which tentative, provisional and subjective views are expressed, must be a necessary part of the investigation and detection of offences. As long as they do not contain evidence which is not available from other sources, I see no threat to the administration of justices in their being protected by s 6(c) of the Act.

[11] The documents in this case are in this category. I conclude that they are protected from disclosure.