R v TIMOTHY DAVID TAYLOR [2003] NZCA 304 (17 December 2003)

IN THE COURT OF APPEAL OF NEW ZEALAND

CA130/02

THE QUEEN

v

TIMOTHY DAVID TAYLOR

Hearing: 12 November 2003

Coram: Blanchard J

Tipping J

Glazebrook J

Appearances: P H B Hall and A N D Garrett for Appellant

J C Pike and B M Stanaway for Crown

Judgment: 17 December 2003

JUDGMENT OF THE COURT DELIVERED BY GLAZEBROOK J

Introduction

[1] On 20 April 2002 Mr Taylor was convicted of the murder of Lisa Blakie.He is appealing against that conviction.One of the grounds of that appeal is that there was inadequate disclosure by the Crown.Mr Taylor now seeks further and better disclosure before the hearing of the appeal.

[2] Mr Hall, on behalf of Mr Taylor, has two main complaints.The first is that some of the 300 documents deleted or edited by the police before trial should have been disclosed.He seeks an order that the Crown Law Office review the deletions and provide any documents or parts of documents that should not have been deleted.The second is that various charts prepared by the police should have been disclosed pre-trial, in particular those setting out vehicle and suspect movements and charts relating to telephone calls.He seeks disclosure of those charts before the appeal is heard.

Background

[3] The Crown case was that Mr Taylor had picked up Ms Blakie while she was hitchhiking from Christchurch to Greymouth on 2 February 2000.He strangled her, placed her body in a stream and rolled a boulder on top of her.Mr Taylor eventually admitted that he had picked Ms Blakie up in his car on that day and that he had dropped her off at a place near to where her body was found.He said that she had been receiving threatening messages by cell-phone while she was in the car and, as a result of getting one of these messages, had asked to be dropped off to think for a while.According to Mr Taylor, Ms Blakie was alive when he left her.

[4] One of the main issues at trial was the time of death.Ms Blakie’s body was not found until 6 February and the initial post-mortem put the most likely date of death as being 4 or 5 February.The initial focus of the inquiry, therefore, was on where Ms Blakie might have been during the period from the numerous sightings of her on 2 February until her body was found on 6 February.It was established that she had not reached Greymouth and this line of inquiry entailed an extensive canvassing of the area between where she was found and Greymouth.The possibility that she had been held against her will during the missing days was investigated, as was the possibility of gang involvement.Ms Blakie had had a relationship with a member of the Devil’s Henchmen Motorcycle gang and inquiries were conducted with regard to members of that gang from both the Christchurch and Timaru chapters.

The disclosure process

[5] Detective Anderson was the police officer who had been responsible for disclosure of the file to defence counsel.He deposed that, at the time of Mr Taylor’s arrest, the file relating to the murder had been running for some 12 months and was one of the biggest files in New Zealand.The discoverable portion of the file contained over 7,000 documents which ranged in size from one paragraph to many pages.Because of the size of the file it was decided to disclose the documents electronically with hard copies of any attachments.This allowed the documents to be searched electronically and both the defence and the Crown had access to appropriate search engines.When it was considered that a document or part of a document should not be disclosed deletions were made.The documents or the passages were marked as deleted before disclosure and the defence was invited to inquire about any such deletions if it wished.

Submissions on deletions

[6] With regard to the deletions the Crown submitted that there is no cause for complaint.The deletions were advised at the time of disclosure and the defence was invited to discuss any concerns with the Crown solicitor, Mr Stanaway.The defence sought and was given an assurance that the deletions had been made on a lawful and principled basis.No request was made to the prosecution or to the trial judge in relation to the deletions.In addition, a senior solicitor from the office of Mr Stanaway had spent some three weeks before the trial satisfying himself that the deletions were properly made.

[7] While Mr Hall accepted that the Court would not usually go behind such an assurance, he submitted that there were new matters that arose during the trial and this could mean that some of the deletions may no longer have been appropriate.He submitted further that it was unclear whether the prosecutor’s review had been conducted on proper principles.For this reason, in the interests of justice, a further independent review should take place, particularly as there had been (now acknowledged) other gaps in pre-trial disclosure.

[8] The Crown submitted that the review had taken place in accordance with the Solicitor-General’s standard instructions as to the scope of disclosure obligations and that Mr Hall had not been able to be specific as to what matters that may have arisen during trial could have widened the disclosure obligation in some manner.In addition, the request for a further review had been made long after trial.Mr Pike said that it would now be impossible for anyone to review those deletions who did not have a detailed knowledge of the issues at trial.

Discussion on deletions

[9] This Court said in R v D CA371/95, 17 April 1996 that the discretion to require production of documents for an appeal will not be exercised lightly.A threshold test of “the likelihood of the existence of information which is cogent to the inquiry whether a miscarriage of justice has occurred” (at p2)had to be satisfied.With regard to the deletions Mr Taylor falls far short of this test.

[10] Mr Hall accepted that a senior prosecution solicitor reviewed the deletions before trial.He has not pointed to anything that would suggest that that exercise was performed in a manner that did not accord with proper principle.He has also not been able to be specific about the areas that arose during trial that may have compromised the exercise.

[11] Mr Hall would no doubt say that he is unable to point to the existence of documents or parts of documents that should not have been deleted because the review he is seeking has not been done.However, if there were concerns about the deletions, these should have been raised before or during the trial.Apart from seeking the general assurance that the deletions were done according to proper principle, no other issue was raised at that time.There was, for instance, no request for particulars as to the reasons for any deletion.

[12] In these circumstances there can, in our view, be no justification for ordering post trial what would now be an expensive and time-consuming review for the purpose of what is often called a fishing expedition.

Submissions on charts

[13] Mr Hall submitted that the various charts prepared by the police should be disclosed.In particular, Mr Hall seeks charts that relate to the investigations of the Devil’s Henchmen gang members, including a chart relating to sightings of a white van in the vicinity of where Ms Blakie was found.That white van, Mr Hall submitted, had possible links to the Devil’s Henchmen.The defence team only discovered that the charts existed after the verdict as a result of information received from a former police analyst.

[14] Mr Hall further submitted that the Crown was under a duty to disclose all relevant material to the defence, including all fruits of the investigation.The duty was to disclose any material that could be of assistance to the defence, with very limited exceptions, including privilege and the protection of the identity of informants.The analytical charts that had been prepared were clearly relevant and could be sanitised before disclosure to ensure, for example, that the identity of informants was protected.

[15] Mr Hall conceded that, with some exceptions, the raw data upon which the charts were produced was disclosed.However, he submitted that this was of little benefit because of the volume of material and, in the case of the telephone records, the unintelligible form in which it was produced.There was also an “equality of arms” issue as the defence was not in a position to undertake its own charting exercise because of the limited nature of the legal aid budget.

[16] The Crown submitted that the disclosure obligation relates to primary material, and includes all relevant information that emerges from the investigation even if the prosecution is not intending to rely upon it.There is, however, in the Crown’s submission, no obligation to disclose investigative aids such as charts, unless these were going to be used in evidence or were prepared for use in evidence.Mr Pike likened the charts in this case to a computer-generated version of whiteboards or pins and ribbons.In the Crown’s submission, the right to a fair trial falls to be assessed against the background of an adversarial system.It is not part of the prosecutor’s function to analyse the data for the defence.

[17] The Crown also pointed to some practical problems if an obligation to disclose such charts were to be imposed.It would be necessary to ensure that they did not contain non-disclosable material, for example information that could lead to disclosure of the identity of an informant.In respect of the particular charts it was unclear whether they included information based on informant reports and it would now be impossible to sanitise such charts as there is no reference on those charts back to the primary material upon which they were based.

[18] It was submitted that any requirement to disclose evaluative documents would be otherwise unworkable.Such documents are, in the Crown’s submission, “works in progress” and represent a mixture of disclosed fact and interpretations.A document may or may not be subsequently amended in a manner that corresponds to a new insight into the case or new facts that may have arisen.It was submitted that allegations as to the provision of misleading information are likely to be rife if partial or incorrect documents of this type are disclosed.

Discussion on charts

[19] The Crown position is that it will disclose the charts if the Court holds that they should have been disclosed pre-trial.The issue therefore is whether the charts sought by Mr Taylor are in that category or, if not, whether there is any other reason why they should now be disclosed.

[20] There have been a number of proposals in New Zealand for codifying disclosure obligations beginning with the report by the Criminal Law Reform Committee, Report on Discovery in Criminal Cases of December 1986.There has also been the Law Commission report Criminal Procedure : Part One Disclosure and Committal (NZLC R14, 1990),the Ministry of Justice and Department for Courts Consultation Paper Regarding Preliminary Hearings and Criminal Disclosure (Wellington, 27 October 1997) and finally the Law Commission Report Criminal Prosecution (NZLC R66, 2000). As yet no legislative action has been taken.The disclosure regime has, however, become much more standardised and formal since the 1986 report.At that time the extent of disclosure appeared to depend upon the attitude of the prosecutor and his or her relationship with the particular defence counsel - see para 13 of the 1986 report.

[21] Disclosure obligations in New Zealand are a mixture of statutory and common law rules.There are some specific disclosure obligations in the Crimes Act, for example s344C which relates to identification evidence.The main piece of legislation that bears on disclosure obligations is, however, the Official Information Act 1982.Even though this is not specifically a criminal discovery statute it was held in Commissioner of Police v Ombudsman [1988] 1 NZLR 385, 397 that that Act gives to a defendant in a criminal proceedings the right to all information held by the police which is personal information about that person and which contains or bears on the evidence of the offence charged.The Privacy Act 1993 is also relevant in this context, particularly in relation to personal information held by public sector agencies. Both Acts, however, contain exemptions that may apply to prevent the disclosure of some information.Section 6(c) of the Official Information Act provides as a good reason for withholding official information that making it available would be likely to prejudice the maintenance of the law, including the prevention, investigation, and detection of offences.Section 27 of the Privacy Act permits an agency to withhold personal information on the same basis. In addition, at common law, public interest immunity, or Crown privilege as it was formerly known, is a ground for excluding relevant evidence from disclosure where the public interest in non-disclosure outweighs the public interest in ensuring that the courts should have the fullest possible access to all relevant information (see the discussion in Janet November Disclosure in Criminal Cases (Butterworths, 1999) Chapter 7).

[22] Finally the New Zealand Bill of Rights Act 1990 requires, under s24(a), that an accused person be informed promptly and in detail of the nature and cause of the charge against him or her.There is also a guarantee of adequate time and facilities to prepare a defence under s24(d) and a right to a fair trial under s25 which reinforce and in some cases may supplement statutory and common law disclosure obligations, particularly where information held by the Crown is not personal information but is nevertheless necessary for the promotion of rights guaranteed under the Bill of Rights Act.

[23] Cooke P in the Ombudsman case made it clear, however, that the obligation under the Official Information Act extends only to personal information and not to internal police memoranda, instructions, notes of police conferences and the like.We accept Mr Pike’s submission that the charts, being the computer equivalent of whiteboards or pins and ribbons, fall into this category of material.Cooke P said (at 397):

Other material on the 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 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.

[24] The High Court has since, on a number of occasions, held that what in North America is called “work product” is not normally subject to disclosure – see Janet November Disclosure in Criminal Cases (Butterworths, 1999) at para 7.5.For example, in R v Tamihere (No 2) (1990) 6 CRNZ 653, Tompkins J held that internal memoranda setting out methods by which an undercover operation was to be carried out was exempt from disclosure, as was a report from the officer in charge of the operation to the officer in charge of the investigation.Neither contained personal information about the accused and both did reveal police investigation methods.A job sheet recording discussions between the accused and an undercover officer in an adjoining cell was to be disclosed, as it contained personal information about the accused.

[25] The question was dealt with in some detail by Fisher J in Downey v District Court HC AK M271/95 29 June 1995, primarily on the basis that evaluative material is irrelevant.He said that purely evaluative documents which contain no primary material do not add anything to the material already produced to the defence and are thus not logically relevant.He went on to say that the object of disclosure is not to save the defence work.He said:

The object of disclosure ... goes no further than to fairly inform the defence as to facts and evidence which could logically be relevant to the conduct of the defence at the preliminary hearing...

Purely evaluative documents which add no facts or evidence to those which have already been disclosed are not logically relevant to the defence.It would be different if a legal opinion or internal summary were the only place in which some relevant fact or item of evidence were to be found...Documents which merely summarise, collate, analyse, comment upon or express legal opinions about facts and evidence disclosed elsewhere are not themselves discoverable because they do not add anything relevant to the information already provided.The personal opinions of prosecutors, their staff and their lawyers are inadmissible as evidence and are legally irrelevant.Internal prosecution comments, summaries and collations might save the defence some work but that is not the object of disclosure.

[26] More recently Rodney Hansen J in Tonkin v Manukau District Court & Anor HC AK M437/SW01 26 July 2001 held that the internal police documents sought in that case were entitled to protection under s6(c) of the Official Information Act.It was necessary to the administration of justice that, as long as documents do not contain primary evidence, police officers should be able to communicate internally in writing without fear that these communications would be later disclosed.He said (para [10]):

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 justice in their being protected by s6(c) of the Act.

[27] The above statements in our view correctly state the law.Under any statutory disclosure regime, as proposed by the reports noted above at para [20], the situation is likely to remain the same; see for example para 130 of the 1986 report which said that disclosure should not extend to the investigative process itself.Mr Hall was also not able to point us to any case in any other jurisdiction where disclosure of such material has been ordered.The purpose of disclosure is to ensure the defence has access to primary material held by the police (to the extent required by the relevant statutes and the common law).Requiring disclosure of additional material of the type sought here could unduly inhibit the police in their investigations and would have the attendant practical problems alluded to by the Crown.The system remains an adversarial one and it is not for the Crown to perform analytical and evaluative work for the defence.Having said that, we recognise that there may be very rare cases where the sheer volume of material could compromise an accused’s right to adequate facilities to prepare a defence.We thus leave open the possibility in future for applications to be made pre-trial for disclosure of evaluative or analytical material of this kind (if it exists) where, in the particular circumstances of the case, the interests of justice so require.

[28] In this case we are not prepared to make an order for disclosure.While there was a large volume of material, electronic disclosure allowed that material to be searched electronically.We are thus unpersuaded that this case would have come within that rare category of cases where a pre-trial application for disclosure may have been granted.There would also now be major practical problems in sanitising the charts, which provides an additional reason for not now ordering disclosure.The police can in no way have anticipated any need to disclose the charts, given the current state of the law.

[29] We are not by this decision precluding any argument at the substantive appeal that the disclosure of primary material was inadequate.Arguments as to this, including the complaints about the manner of disclosure of the telephone records, will be fully assessed in the context of the whole appeal.

Result

[30] Mr Taylor’s application that the Crown provide further and better disclosure is declined.

Solicitors:

Crown Law Office, Wellington