R v De Bruin CA217/03 [2003] NZCA 402; (2003) 20 CRNZ 782 (24 July 2003)

Last Updated: 23 January 2019

NOT TO BE PUBLISHED IN NEWS MEDIA OR ON INTERNET OR OTHER PUBLICLY ACCESSIBLE DATABASE UNTIL FINAL DISPOSITION OF TRIAL. PUBLICATION IN LAW REPORT OR LAW DIGEST PERMITTED.

IN THE COURT OF APPEAL OF NEW ZEALAND

CA 217/03
_{CA 218/03}

THE QUEEN

v

ROBERT CHARLES DE BRUIN AND ALEXANDER GAVIN SMITH

Hearing: 23 July 2003

Coram: Gault P Baragwanath J Panckhurst J

Appearances: R Wade for Mr De Bruin

R A Harrison for Mr Smith

R Burns for Crown

Judgment: 24 July 2003

_{JUDGMENT OF THE COURT DELIVERED BY PANCKHURST J}

[1] These appeals challenge an order granting leave to file an amended indictment and a direction against cross-examination of police officers designed to reveal the identity of an informer, respectively. The case concerns multiple allegations of drug importation and money laundering. It proceeded to trial earlier

_{this year in late March. On 10 April 2003 the jury was discharged and a retrial}

R V ROBERT CHARLES DE BRUIN And Anor CA CA 217/03 [24 July 2003]

ordered for reasons not of present relevance. A new jury is to be empanelled on Friday with the intention that the trial proceed on Monday next, 28 July. Hence it is necessary that this judgment be delivered without delay.

Background

[2] On 5 May 2002 customs officers intercepted a shipping crate packed with camping and outdoor equipment at Auckland. It was shipped from Durban, South Africa to New Zealand via Singapore. The crate was constructed with a false floor. Hidden beneath it were about 36,000 tablets of the class B controlled drug commonly referred to as Ecstasy. At a value of $80 per tablet the importation had a potential street value of $2.8m.

[3] A few days earlier on 3 May 2002 the police searched the house occupied by a man, Mr A. Controlled drugs, a pistol and $327,580 in cash was discovered amongst other items. Mr A had a criminal record, including drug convictions in Australia for very serious drug dealing offences. He appeared in court on 3 May and was granted bail in the absence of opposition from the police. Subsequently Mr A pleaded guilty to charges of possession of cannabis and possession of a firearm for which he received nine months imprisonment with leave to apply for home detention following a sentencing in the District Court. He also faced a charge of money laundering upon which he was sentenced in the High Court to two years imprisonment, again with leave to apply for home detention. Aside from the money laundering charge Mr A was not charged with any offences arising from the circumstances which form the basis for the twenty-three charges in the indictment faced by the present appellants.

[4] On 6 May 2002 the police obtained an interception warrant pursuant to the Misuse of Drugs Amendment Act 1978. We infer that information obtained pursuant to such warrant assisted the police in their ongoing investigations relevant to the importation of the shipping crate referred to earlier.

[5] In light of this chronology, the extent of the charges preferred against Mr A

and the sentence he received defence counsel suspected that he informed on the

appellants. The existence of other evidence which suggested Mr A had a connection with both the May 2002 importation and several earlier ones, (to which we will refer shortly) added to that suspicion.

[6] Investigations which followed discovery of the May 2002 importation resulted in the police establishing that there had been four previous similar importations from South African in July 2000, November 2000, January 2001 and May 2001. In addition evidence was obtained concerning large sums of money which had been either remitted out of New Zealand or expended in the acquisition of assets in New Zealand. Such financial activities were viewed as money laundering. In the result the Crown preferred an indictment prior to the first trial which charged five importations of controlled drugs, four counts of selling controlled drugs (from the four earliest importations), one count of possession of controlled drugs on 12

May 2002, and seven counts of money laundering. Mr de Bruin was charged in relation to all seventeen offences and Mr Smith in relation to all but one of the money laundering charges.

[7] The case proceeded to trial in the High Court at Auckland on 24 March 2003 but, as mentioned earlier, a mistrial was declared on 10 April. By that point Mr Smith’s defence in relation to the May 2002 importation in particular had been declared. It was that he had been asked by a man named West in South Africa to lend assistance in relation to the sale of camping and outdoor equipment in New Zealand. For that reason he flew to New Zealand and was involved in the unpacking of the incriminating shipping crate when he and another man were apprehended by the police on 12 May. However, according to Mr Smith, he was unaware of the presence of the Ecstasy tablets and had been set up by those who were in fact involved in their importation, including Mr A.

[8] Accordingly on two occasions application was made to the trial Judge by Mr Harrison for leave to cross-examine police officers as to the identity of any informant who provided information relevant to the May 2002 importation. Counsel argued that confirmation of the fact that Mr A was an informant was essential to the defence case. In rulings dated 3 April 2003 and 7 April 2003 the trial Judge refused

leave. He accepted the argument for the Crown that the special rule of public policy which prevented disclosure of the identity of informants must prevail.

[9] By 10 April the prosecution case had been closed and Mr de Bruin had given evidence in his own defence. He had also been cross-examined by Crown counsel. In the course of cross-examination Mr de Bruin was questioned concerning entries in his diary which was produced as a Crown exhibit. Such cross-examination unearthed new or additional evidence which gave rise to the expanded indictment for which leave was subsequently granted.

[10] On the basis of the additional evidence the Crown sought to amend the first four importing charges in the indictment. As originally framed these alleged an importation of unspecified controlled drugs. In the amended indictment the allegation became that the drugs were Ecstasy, as was the case with the May 2002 importation. But in addition the Crown wished to prefer six new counts. These alleged further importations in September 1999 and December 2001, sale of the Ecstasy thereby brought into New Zealand, and two new charges of money laundering. On 14 April 2003 application was made for leave to file the amended indictment pursuant to s345D of the Crimes Act 1961.

[11] That same day the prosecutor suggested to Mr Harrison that if the question of leave to cross-examine police officers in order to identify any informer was to be pursued at the retrial, such should be the subject of a s344A application to be heard by the new trial Judge. An application was filed on 16 April by defence counsel seeking a ruling on this question.

[12] Following argument on 16 May a ruling was delivered on 17 June in which the Judge gave leave to file the amended indictment, but refused leave to cross- examine as to the identity of the informer (assuming there was one). It is this ruling which is the subject of the two appeals.

The amended indictment

[13] The argument advanced by Mr Wade in support of the contention that leave to file an amended indictment should not have been granted was based on sections

345 and 345D of the Crimes Act. The short point was that s345 required that any count contained in an indictment be “founded on the evidence disclosed in the depositions” and that since the evidence which prompted the amendments only emerged at trial (when Mr de Bruin gave evidence) the statutory requirement was not met. Evidence given at trial by an accused was not evidence disclosed in the depositions. Hence, it was said, the Judge erred in granting leave.

[14] Section 345 relevantly provides:

Filing indictment - (1) Where any person is committed for trial, or any 2 or more persons are so committed, whether jointly or severally, an indictment may be filed in the High Court or in a District Court (as the case may require) for any charge or charges founded on the evidence disclosed in any depositions taken against such person or persons.

Subsection (2) provides who may file an indictment, being the Attorney-General, a Crown Solicitor and the informant in the case of a private prosecution. Pursuant to ss(3) the Attorney-General, or anyone with the written consent of a High Court Judge or the Attorney-General, may file an indictment even absent a committal for trial in terms of ss(1).

[15] Then there is the subsection upon which Mr Wade placed principal reliance:

(5) Except where an indictment is filed under subsection (3) of this section, the accused may, at any time before he is given in charge to the jury, apply to the Court to quash any count in the indictment, on the ground that it is not founded on the evidence disclosed in the depositions; and the Court shall quash that count if satisfied that it is not so founded.

On the basis of this subsection counsel submitted that it was futile to grant leave to file an amended indictment in the present circumstances, because the end result would inevitably be an application to quash. Given it was a matter of record that the evidence required to support the amendments was not disclosed in the depositions the amended counts must be quashed on account of that deficiency.

[16] Mr Burns submitted that s345 did not cover and was effectively irrelevant in the present situation. It applied when the original indictment was filed, which was indeed to be based upon the evidence disclosed in the depositions. But matters had moved on. New evidence emerged at the last trial. It was with reference to this that the Crown sought and the Judge granted, leave to proceed on an amended indictment. Importantly, such was done pursuant to a special power.

[17] This is contained in s345D which relevantly provides:

345D. Leave to file amended indictments - (1) A Trial Judge may, at any time before the commencement of the trial, upon application by the prosecutor, grant leave to allow the prosecutor to file an amended indictment if it appears to the Trial Judge that the filing of an amended indictment would be conducive to the ends of justice.

(2) Without limiting the generality of subsection (1) of this section, leave may be granted under that subsection to allow the filed indictment to be amended by –

(a) Amending any particulars; or

(b) Removing or adding or substituting charges; or

(c) Adding or removing the name of any accused.

(3) An application under this section shall, unless a Trial Judge otherwise directs, -

(a) Be in writing; and

(b) Include a statement of the reasons why an amendment to the filed indictment is necessary or be accompanied by a copy of the amended indictment in respect of which leave is sought.

The balance of the section provides for the application to amend to be served (ss(4)), a right to be heard (ss(5)) and for a Registrar to exercise the power to grant leave if the accused consents (ss(6)).

[18] No issue was raised in relation to the procedural requirements of s345D. The required steps of notice, particulars and a hearing were all provided. Mr Burns submitted that the power to permit amendment was a broad one, based on whether the amended indictment “would be conducive to the ends of justice”. The safeguard provided for in the section was that of judicial oversight, in granting leave, as opposed to the safeguard of a preliminary hearing, and a committal followed by an indictment based on evidence disclosed in the depositions in terms of s345.

[19] In the High Court the Judge accepted this submission. He said:

[17] In my view the wording of the two sections clearly differentiates between the situations of the filing of an indictment and the amendment of an indictment after it has been filed. Section 345D of the Act contains no express or implicit limitation that a charge which is added to an indictment be subject to the requirement of s345 of being founded on evidence disclosed in the depositions. The test and sole criteria is that “... it appears to the trial Judge that the filing of the amended indictment would be conducive to the ends of justice.”

We agree. The sections deal with different situations. And s345D enables, as this case demonstrates, post-committal developments to be brought to account. Where additional evidence is obtained subsequent to the filing of the initial indictment, leave to amend may be granted provided the ends of justice require it. Given the power of the High Court under s345(3) to consent to an original indictment it would be surprising if the power did not exist in relation to amended indictments.

[20] The scheme of the sections is we think reinforced by the terms of s347(1)(c). Thereby a Judge is empowered to discharge an accused at any stage of the trial process where the evidence is insufficient if:

after perusal of the depositions and consideration of such other evidence and other matters as are submitted for his consideration by the prosecutor or the accused,

that course is indicated. It follows that the argument founded on s345(5) is untenable. That subsection is most referable to an indictment filed after committal when the depositions alone may define the available evidence. In a situation such as the present, where there have been further developments, and in this instance in a trial setting, it is necessary that the power to discharge be exercisable in light of all the evidentiary material.

Cross-examination to identify an informant

[21] The applications made by Mr Harrison for leave to cross-examine the police officers were based on Court of Appeal decisions in R v Agar [1990] 2 All ER 442 and R v Turner (1995) 2 CrimAppR 94. In the former it was reaffirmed that the special rule of public policy which inhibited the disclosure of the identity of informants may be outweighed by the public interest in ensuring a fair trial for an accused. The test was whether disclosure of the informer’s identity was indeed

necessary to enable the accused to put forward a tenable defence. In Turner, in response to an increased tendency for accused to seek disclosure of informants’ names, the Court stressed the need for Judges to be alert and to scrutinise such applications with great care in order to be satisfied that disclosure was essential to the conduct of the defence. Where disclosure was not essential, a robust approach to declining leave was required.

[22] Before we can turn to the merits of the ruling in this case, it is necessary to consider whether there is jurisdiction to consider the appeal. The two rulings of the trial Judge at the first trial were given in response to applications by counsel in the course of the hearing. The most recent ruling on 17 June was in response to a “s344A application” filed by counsel, Mr Harrison. Accordingly the appeal was presented as one pursuant to s379A(1)(aa) of the Crimes Act, whereby a s344A ruling may be the subject of appeal to this Court at any time before trial. However, Mr Burns questioned whether the subject ruling was in substance one as to the admissibility of evidence in terms of s344A. Counsel submitted:

The essence of public interest immunity is that it protects from disclosure information which is otherwise relevant and admissible. The informer’s identity is admissible but protected.

It followed, said Mr Burns, that in reality the application made and the ruling upon it was one by the Court acting in its inherent jurisdiction. In the absence of a ruling pursuant to s344A there was no right of appeal.

[23] Attention was drawn to the decision of this Court in R v Coleman (1996) 13

CRNZ 663. In that case the Crown obtained orders before trial that the court would be cleared and a screen provided to protect the identity of a particular witness while giving evidence. These directions, coupled with name suppression, were designed to achieve witness anonymity (at a time when witness anonymity orders were not statutorily available). The pre-trial ruling was the subject of an appeal which was heard before a Full Court.

[24] Henry J in delivering the judgment of the Court said this at 666-7:

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. He is competent, compellable and his intended oral evidence does not impinge any of the rules governing admissibility. The matters under challenge are an 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 is also of some significance that neither the Crown nor the Judge sought to invoke s344A as the basis for the present pre-trial orders, reliance being placed only on the Court’s inherent jurisdiction. It would require an unacceptable straining of the words of s344A to bring these orders within their perview.

[25] Reference followed to there being good reasons for restricting appeals against pre-trial rulings. It was important that trials proceeded expeditiously. A proliferation of pre-trial appeals would frustrate that end. Moreover, many issues not within the confines of s379A were of a kind unsuited to pre-trial determination. That is their resolution depended upon an assessment of fairness and overall justice in the context of the trial itself.

[26] Mr Harrison sought to distinguish the reasoning in Coleman. He naturally pointed out that the most recent ruling, being the one which is the subject of the appeal, was made in the context of what was in form a s344A application. Further, he argued that the ruling did concern the content of evidence. An informer, or alleged informer, was not to give evidence. Rather the desire of counsel was to cross-examine police officers in order to confirm that Mr A was an informer in relation to the May 2002 importation. Hence, it was said, the content of such officer’s evidence was at stake and therefore the issue was one of admissibility.

[27] We do not think, and Mr Harrison did not suggest, that the fact a s344A application was filed and ruled upon, is determinative. If in reality the ruling represented the exercise of an inherent jurisdiction, the form of process by which it was obtained did not alter that fact. The real question is whether the ruling concerned the admissibility of evidence or was an exercise of an inherent jurisdiction to uphold a rule of public policy by which the identity of informants is protected against disclosure.

[28] We are in no doubt it was the latter. Although there are differences between the present case and the circumstances which existed in Coleman, they do not give rise to a distinction between that case and this. The passage from the judgment of

the Full Court set out above, paragraph [24], is of equal application in the present circumstances.

[29] We are fortified in this view by the amendments made to s379A subsequent to the Coleman decision. Subsections (1)(e) and (f) were added in late 1986 and

1997, respectively. The former provides a right of appeal in relation to a ruling in terms of s13A of the Evidence Act 1908 relating to the identity of undercover constables, while the latter does likewise in relation to a witness anonymity order made in terms of s13C of the same Act. The very existence of defined rights of appeal against rulings which concern the identification, or anonymity, of particular witnesses, indicates that an admissibility of evidence ruling pursuant to s344A does not extend to those areas. Put another way if the issues of the identity of an undercover constable or the anonymity of a witness were within the ambit of s344A, there would have been no need for these additions to s379A(1).

[30] For these reasons we are satisfied there is no jurisdiction to entertain Mr Smith’s appeal. That is not a surprising outcome. A ruling of this kind is very much one to be made in a trial context. Only when a trial Judge has a full understanding of the evidence and the opportunity to assess the defence case, is he or she in a position to make the anxious judgment whether it is necessary in the public interest to deny protection of the identity of an informer in order to ensure that an accused can properly mount his defence. The assertion that absent disclosure a miscarriage of justice may result, requires a decision by the Judge in light of all the circumstances and having regard to the flavour of the case as it has developed before the jury. Often that judgment may only be made well into the trial.

[31] Before we part from the case it is appropriate to mention an aspect which was discussed with counsel during submissions. The second ruling at trial, which was effectively adopted in the subsequent pretrial ruling, seemed to be founded on the view that because there was “an ample factual basis” for defence counsel to invite the jury to infer that Mr A was the police informer, disclosure of the fact he was (if such is the case) was not required. We questioned whether this represented a correct application of the relevant test which involves a focus on the ability to effectively advance the defence case. The availability of an argument based on inference may

be no substitute for direct evidence. But in any event for the reasons already expressed we think a ruling in advance of the trial would be premature, which on an issue like this could never be final at this stage.

Result

[32] For these reasons the appeals are dismissed.

Solicitors:

Crown Solicitor, Auckland