The Queen v Moore [2001] NZCA 140; [2001] 2 NZLR 761; (2001) 18 CRNZ 519; [2002] NZFLR 280; (2001) 20 FRNZ 480 (3 May 2001)

Last Updated: 13 December 2011

IN THE COURT OF APPEAL OF NEW ZEALAND

CA 69/01

THE QUEEN

V

RICARDO JOHN MOORE

Hearing:	2 May 2001
Coram:	Richardson P Gault J Keith J Tipping J McGrath J
Appearances:	P J Sinclair for Applicant S P France for Crown
Judgment:	3 May 2001

JUDGMENT OF THE COURT DELIVERED BY RICHARDSON P

[1] Ricardo John Moore seeks leave to appeal under s379A of the Crimes Act 1961 against the refusal of an order sought under s344A as relating to admissibility of evidence at his forthcoming trial. The matter concerns access pre-trial to a report made by a psychiatrist in Family Court proceedings which is not in the possession or control of the prosecution. The psychiatrist is not being called as a witness for the prosecution and has not been interviewed by the prosecution. Unless and until the defence has access to the report, it cannot say whether or not it will call the psychiatrist or seek to cross-examine the complainant by reference to the report.

The background

[2] Mr Moore and the complainant were in a de facto relationship for some 5 years. On 16 October 2000 he was committed for trial on 11 counts of assault on a female, 5 counts of assault with a weapon, and 9 counts of threatening to kill, spanning the period 1 October 1996 to 1 July 2000. Earlier, in proceedings between the complainant and Mr Moore involving custody of one of their children, the Family Court, acting under s29A of the Guardianship Act 1968 requested Dr Hugh Clarkson to prepare a psychiatric report, which he did on 30 October 2000. Dr Clarkson was asked to make a psychiatric evaluation of both parents and comment on their parenting.
[3] On 29 November 2000 Mr Moore applied to the District Court for discovery of Dr Clarkson's report. The application invoked s344A and followed the practice outlined in "Best Practice Guidelines for Disclosure in Criminal Cases in the High Court at Auckland" issued by the High Court on 14 December 1999 after consultation with the Auckland Crown Solicitor and the Criminal Bar. Section 4.2 of the guidelines states that s344A may be the appropriate mechanism where non-party material is involved; that a witness summons should be issued, including a request for the witness to bring the material sought with him or her to the court for production if so ordered; that the Judge will give the Crown, the accused, and any other party who or which may be affected by any order the court may make, the opportunity to make submissions and call evidence as to whether the material should be produced; and that before making any determination the court may examine the material in the possession of the witness.
[4] Dr Clarkson attended the District Court hearing on 9 February 2001. He opposed production of his report on the ground that he had obtained the consent of the parties who were interviewed by him for his report on the footing that the report would be produced for guardianship proceedings and not for subsequent criminal proceedings. Earlier, the Family Court (Judge Mather) had directed that Dr Clarkson's report could not be produced without the consent of the complainant and the complainant had advised through her lawyer that she would not consent to its production.
[5] The District Court Judge decided to look at Dr Clarkson's report before giving his decision and did so. He recorded that the report was not produced as an exhibit; that he had not made any order pursuant to s344A or otherwise which affected the status of the document as a possible exhibit in the ultimate trial; and nor did he make any rulings concerning the admissibility of that document at that trial.

The District Court decision

[6] Following legal argument at a further hearing the District Court Judge delivered judgment on 1 March 2001. Counsel for Mr Moore had relied on the best practice guidelines which had been followed and submitted that, if issues were taken concerning confidentiality, privilege and the like, the s344A hearing should also go into those questions to determine whether or not the document was admissible.
[7] The Judge held that the authorities in New Zealand do not at the present time recognise any general jurisdiction in criminal proceedings to order non-parties to produce documents by way of discovery to the parties to criminal proceedings. He cited R v Dobson (CA25/95, judgment 8 June 1995) where the court said at p8:

[T]he rights accorded by s 25 of the New Zealand Bill of Rights Act 1990, which was principally relied on, do not enable the Court to order a non-party to allow the defence access to material in his or her possession. A subpoena or witness summons can of course be served, and the trial Judge will then be required to rule on any question of privilege or of confidence that may arise. Where the Court has a discretion, as it does under s 35 of the Evidence Amendment Act (No 2) 1980, the discretion will be exercisable in the light of the rights affirmed by s 25, particularly para (a). But there can be no presumption in favour of disclosure. The competing interests must be carefully weighed and a judicial judgment exercised: see R v Secord [1992] 3 NZLR 570. If the outcome is to prejudice the conduct of the defence, then as a last resort a remedy can be given by way of stay or discharge: see generally R v Accused (CA 357/94) (1994) 12 CRNZ 417. If on the other hand the evidence is allowed in and the defence is disadvantaged by not having had earlier access to it, the Court has the discretion to grant an adjournment.

[8] The District Court Judge observed that that course of summonsing Dr Clarkson to attend the trial hearing was an option that would be available to the defence. He noted that the court could only compel the production at trial of documents which are legally admissible, observing that had the process been one of discovery, the range of documents which could be ordered to be produced would be a lot wider. (See also R v D (CA 371/95, judgment 17 April 1996.)
[9] The Judge went on to discuss the admissibility of Dr Clarkson's report. He had read it and said it was potentially of importance to the defence. But he considered that, quite apart from matters of confidentiality and the like, it was not an admissible document, containing as it did hearsay statements made by Dr Clarkson who is not a party to the criminal proceedings. However, Dr Clarkson could be subpoenaed to attend the trial and how objections would be resolved by the trial Judge would depend on what evidence was sought to be adduced orally from him at trial.
[10] The written submissions for the applicant in this court record that he "is seeking, in particular: (i) an order that the psychiatric report be produced to counsel prior to trial to enable the defence to adequately and fully prepare for the trial; (ii) an order that issues as to admissibility be determined at trial".
[11] Against that background we turn to consider the issues for determination in this case.

Jurisdiction

[12] The trial has not yet commenced and accordingly the jurisdiction of this court to hear an appeal against pre-trial rulings or orders is governed by s379A of the Crimes Act (R v B [1995] 2 NZLR 172 and R v Coleman [1996] 2 NZLR 525). The only provision counsel could refer to as covering the refusal of orders by a District Court Judge in this case is s379A(1)(aa) which gives a right in respect of s344A applications. Section 344A(1) and (4) provide:

(1) Where any person is committed for trial and—

(a) The prosecutor or the accused wishes to adduce any particular evidence at the trial; and

(b) He believes that the admissibility of that evidence may be challenged,—

he may at any time before the trial apply to a Judge of the Court by or before which the indictment is to be tried for an order to the effect that the evidence is admissible.

...

(4) Nothing in this section nor in any order made under this section shall affect the right of the prosecutor or the accused to seek to adduce evidence that he claims is admissible during the trial, nor the discretion of the trial Judge to allow or exclude any evidence in accordance with any rule of law.

[13] In holding that this court lacked jurisdiction to give leave to appeal the 5 Judge court in Coleman said at p527:

Section 344A is concerned with the admissibility of evidence. The admissibility of the oral evidence to be adduced through witness D is not under challenge. ... The matters under challenge are his entitlement to anonymity and the provision of a screen when giving admissible evidence. Although associated with the giving of evidence, they have no bearing on the content of the evidence. ... It would require an unacceptable straining of the words of s 344A to bring these orders within their purview.

[14] R v Livingston [2001] 1 NZLR 167, another 5 Judge case, is the most recent decision of this court. The court concluded (at p175):

[24] The Judge was here dealing with an application purporting to be brought under s 344A but its purported foundation is not the real issue. It is necessary to determine the nature of the order the Judge actually made to see if it is of a kind to which para (aa) applies. ... It is patent from the terms of those directions that the Judge was not deciding whether any particular evidence was admissible at the forthcoming trials. No question of admissibility in any relevant sense is addressed in the directions, save in para 2(i) which, on its face, does not determine any question of admissibility but simply directs the defence to make a s 344A application. Hence this Court has no jurisdiction under s 379(1)(aa) to grant leave to appeal from the Judge’s directions

[15] As well, the court noted in M v L [1999] 1 NZLR 747 that matters of inspection and discovery are separate from matters of testimony and admissibility. Referring to s35 of the Evidence Amendment Act (No 2) 1980 it said at p759:

The section is concerned with excusing "any witness” from answering any question or producing any document. Although the appellants will probably be witnesses at the trial, the section is obviously directed to the production of documents by a witness or party in that person’s capacity as a witness. At the discovery/inspection stage, the appellants are not being requested to produce the counselling notes in their capacity as witnesses, but in their capacity as parties. While an order can be sought under s 35(3) before the trial commences, any order made is obviously directed to what the person concerned can be required to answer or produce as a witness at the trial. For this reason, we are of the view that s 35 does not directly cover the position at the inspection/discovery stage.

[16] However, in R v Wills (CA248/00, judgment 3 October 2000) a 3 Judge court held it had jurisdiction to grant leave to appeal and allowed the appeal in part in respect of material in the possession of Capital Coast Health (a non-party), including assessments made by a psychotherapist employed by that agency. The court's approach is expressed in paras [7], [12] and [21] of the judgment:

[7] One broad purpose of ss344A and 379A is to allow disputes about the admissibility of evidence to be resolved as appropriate before trial. We say “as appropriate” since sometimes decisions about particular pieces of evidence are better made in the course of trial when their likely significance and the broader context in which they would be presented are better understood. That flexibility appears both in the discretion which the trial Judge and this Court have whether to make a ruling and also in the savings provision of s344A(4). Given that broad purpose, the exercise of the powers conferred by the two provisions will often in practice facilitate the exercise by accused persons of their right to a fair trial under s25(a) of the New Zealand Bill of Rights Act 1990, and their rights to present a defence under s25(e) and to obtain the attendance and examination of witnesses for the defence under the same conditions as the prosecution under s25(f).

[12] The purpose and terms of ss344A and 379A and of the related provisions of the Crimes Act and Bill of Rights would, we think, be defeated were we to rule that this application is not essentially about the admissibility of evidence which the defence wishes to adduce at trial, whether the defence calls the evidence directly or puts it to the complainant and then calls it. We do, however, recall the difficulty commented on in Coleman, of making rulings about these matters in advance of trial, a difficulty recognised in the limit stated in s344A(4).

[21] We return to the file and to the passages which we have identified as relevant or possibly relevant. We approached the passages in the context not just of the well based claims to confidentiality and the general policy of the law to protect confidences in areas such as the present, but also of the right of the appellant to a fair trial and a defence, including the right to call witnesses.

[17] The notes ruled admissible were notes of consultations of 29 August 1999 (concerning the complainant's nightmares, on which the appellant could testify from his own knowledge and which counsel for the psychotherapist and Capital Coast Health had disclosed) and of 8 November, 9 November and 19 November (which, not relating to the substance of the contemporaneous criminal complaint against the appellant, would be relevant as to the complainant's state of mind on the false allegation defence, and the material was in broad terms known to a number of people).
[18] The application in Wills was for a ruling as to admissibility and it was treated as an admissibility case. In one sense the approach taken in Wills may be described as a short-cut anticipation of orders that would have been made on the same material at the beginning of the trial and which avoided the disruption and unfairness of postponing any consideration of the matters until then.
[19] But the legal question for determination is whether the ruling sought to be challenged in this case was properly founded on s344A and so is appealable under s379A. It is whether non-party material may be accessed by direction of the court ahead of trial as a necessary step to raise and then answer before trial potential matters of admissibility.
[20] In terms of s344A(1) jurisdiction to rule on admissibility exists only where "the prosecutor or the accused wishes to adduce any particular evidence at the trial" and the prosecutor or the accused "believes that the admissibility of that evidence may be challenged". The premise is that the application will point to particular evidence sought to be adduced at trial. That requirement is expressed in the reference in Coleman to "the admissibility of the oral evidence to be adduced through witness D", and in Livingston that the pre-trial Judge "was not deciding whether any particular evidence was admissible at the forthcoming trials".
[21] The statutory link with "adducing" particular identified evidence "at the trial" requires pointing to evidence that is to be brought forward at trial by the party seeking the order. In the present case any ruling on admissibility would have been and is premature. Ms Sinclair clearly recognised, and indeed submitted, that unless and until the defence sees the report it cannot determine whether to call Dr Clarkson or to cross-examine the complainant on any matter that may arise from the report. As noted in R v Accused (CA 303/96) 14 CRNZ 516, 518 the court does not have power to order a non-party to permit the defence access to material in its possession and the appropriate means of getting such material before the court for inspection is by subpoena or witness summons, referring to R v Dobson (para [7] above). And the report itself, to the extent that it records hearsay statements by the complainant and others in their interviews with Dr Clarkson could not, at least ordinarily, be admissible. We are therefore satisfied that the court has no jurisdiction to grant leave to appeal. It is not a case of admissibility of evidence: s379A(1)(aa).
[22] It follows that we consider there is no specific statutory foundation for the best practice guidelines as they apply to pre-trial disclosure by non-parties. No doubt the guidelines reflect the understandable preference to have issues affecting the trial dealt with, where feasible, before the trial and so to facilitate progress at trial and avoid unnecessary adjournments, delays and inconvenience to all involved. As both counsel noted there are practical procedural reasons grounded in good trial management and fair trial principles under the Bill of Rights for allowing such access and admissibility matters affecting non-parties to be considered pre-trial, as is specifically authorised by legislation in certain other jurisdictions (e.g. Canadian Criminal Code s278; and Criminal Procedure (Attendance of Witnesses) Act 1965 s2 (U.K.)).

Balancing confidentiality and fair trial values

[23] Because access to the psychiatrist's report may be an issue at trial if the Dobson procedure is followed, we draw attention to the discussion in R v H [2000] 2 NZLR 257 of the balancing of confidentiality considerations and fair trial concerns. Family Court proceedings are by their nature confidential. In R v H the court noted that s18(1) of the Family Proceedings Act 1980 provides that:

(1) No evidence shall be admissible in any Court, or before any person acting judicially, of any information, statement, or admission disclosed or made—

(a) To a counsellor exercising his functions under this Part of this Act; or

(b) In the course of a mediation conference.

[24] The court went on to say (para [29]) that:

While s 18(1) does not directly apply where the appointment of the psychologist is made under s 29A of the Guardianship Act 1968 its provisions in a parallel situation where children may be affected are a clear pointer to the public interest in the maintenance of confidentiality of information, statements or admissions disclosed or made to the psychologist under s 29A (and see Martin v Reid (1985) 3 NZFLR 725).

[25] Section 35(1) and (2) of the Evidence Amendment Act (No 2) 1980 provide:

(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 be 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 confidant 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.

[26] Referring to the balancing process under the section as recognising both public interest values underlying confidentiality and fair trial guarantees under the Bill of Rights, the court in R v H repeated the admonition in R v Dobson that where the court has a discretion as it does under s35, "there can be no presumption in favour of disclosure. The competing interests must be carefully weighed and a judicial judgment exercised: see R v Secord [1992] 3 NZLR 570" (para [7] above). And, relevant to the present case, the court at para [35] observed that the nature of the special relation was that the professional appointed under s29A is in a position of authority under the statute; that the nature of the confidence was that what was said was for the purpose of report to the court on the access application; and that the likely effects of disclosure of information or impressions gleaned by the professional in those discussions will be "a loss of faith on her part in those professionals and the Family Court; damage to the public perception in the integrity of the Family Court processes; and perhaps the discouraging of others from speaking freely and frankly to counsel and those appointed under s29A".

Result

[27] For the reasons given leave to appeal is refused for want of jurisdiction to entertain the application.

Solicitors
Crown Law Office, Wellington