The Queen v Dean [2004] NZCA 142; [2005] 2 NZLR 323; (2004) 21 CRNZ 77 (13 July 2004)

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The Queen v Dean [2004] NZCA 142 (13 July 2004); [2005] 2 NZLR 323; (2004) 21 CRNZ 77

Last Updated: 18 December 2011

IN THE COURT OF APPEAL OF NEW ZEALAND

CA172/03THE QUEEN

v

ALLAN KENDRICK DEAN

Hearing: 23 June 2004

Coram: Anderson P Hammond J William Young J Chambers J O'Regan J

Appearances: T Ellis and A Shaw for Appellant
S P France and M F Laracy for Crown

Judgment: 13 July 2004

JUDGMENT OF THE COURT DELIVERED BY ANDERSON P

[1] In November 1995 the appellant was sentenced in the High Court to preventive detention for indecent assault on a 13 year old boy. He had 13 previous convictions for similar offences and the crime in question was committed only three months after his release from prison. He subsequently appealed against sentence to this Court and his appeal was dealt with in 1996 in accordance with the procedures which the Privy Council has impugned in the cases of R v Taito & Ors [2003] 3 NZLR 577.
[2] In Mr Dean’s case, three Judges of this Court determined that legal aid should not be granted. No submissions were filed on the appellant’s behalf and his appeal was treated as dismissed ex parte. A proper hearing of the appeal by this Court is now pending.
[3] In September 2003, Mr Dean’s present counsel, Mr Ellis prepared an extensive draft of proposed grounds of appeal which included the following.

Ground 8: Criminal Appeal Sheet

Such further ground(s) that might transpire (if any) from a reading of the Criminal Appeal Sheet.

[Which is accordingly now formally sought.]

[4] “Criminal Appeal Sheet” was the name accorded to a memorandum prepared by a Judges’ Clerk for the assistance of Judges considering a criminal appeal. Similar documents are now called Criminal Appeal Briefs. Typically, the Criminal Appeal Sheet/Brief identifies the case by name and registry number, indicates the nature of the appeal (that is, whether it is an appeal against conviction, sentence or both), and notes relevant data such as dates of orders and whether there are any ancillary applications. The name or initials of the clerk who prepared the sheet and the date of its creation is noted. It contains the clerk’s brief summary of the relevant facts appearing from the record of the trial court, and of the stated grounds of appeal.
[5] The utility of a Criminal Appeal Sheet/Brief is its indication of the information, amongst all the data contained in the record of the case, which is likely to be relevant to a particular appeal. But in the pre Taito days the sheet was the document upon which three Judges would record their recommendations about the grant of legal aid. That seems to have been its primary purpose because immediately after the clerk’s comments there was a field headed “Recommendations”. Differences in the format and purpose of the pre Taito and post Taito sheets are significant. Formerly, they had the character of a decision document, albeit containing information prepared by a clerk for the assistance of Judges, but subsequently they have become a source of confidential information from a clerk to Judges for the purposes of preparatory research and consideration in respect of the hearing of an appeal. They are also perused by the President, or the President’s nominee, in the process of determining whether a criminal appeal would most suitably be heard by a Criminal Appeal Division or three Permanent Judges or a Full Court. The difference between the pre Taito and post Taito function of Criminal Appeal sheets has relevance to issues of disclosure and judicial privilege which the present application raises.
[6] Close to the time Mr Ellis prepared his draft grounds of appeal he thought it appropriate to obtain from the Registrar information relating to a decision made in 1996 by a Deputy Registrar to decline legal aid for Mr Dean’s appeal. Mr Ellis asked for the name of the Deputy Registrar, the names of the three Judges who recommended that legal aid should be declined, and a copy of the Criminal Appeal Sheet. It seems that one of his concerns was to satisfy himself that a Judge involved in the original recommendation against a grant of legal aid would not be assigned to hear the pending appeal. Subsequently Mr Ellis’ concerns have extended to the processing of the appeal. He contemplates a possible argument at the substantive hearing to the effect that Mr Dean’s rights affirmed by the New Zealand Bill of Rights Act 1990 have been breached and that such rights may be vindicated by way of a mitigation of the sentence imposed on his client. It is not appropriate for this Court at this stage to pass upon the merits of such an approach, either generally or in the particular case. We note it for the purpose of recognising potential relevance in the extant appeal.
[7] The issue raised before us at present is whether Mr Dean is entitled to the following information which has been sought on his behalf by Mr Ellis:

• (1) The name of the Deputy Registrar who formally declined legal aid following the recommendation of three Judges.
• (2) The names of those three Judges.
• (3) The Criminal Appeal Sheet in respect of Mr Dean’s appeal.

[8] On 23 February 2004 the President issued a Minute determining that although the exact juridical nature of Mr Dean’s application was unclear it nevertheless raised issues concerning the privilege of judicial notes and memoranda and should therefore be heard by a Full Court. At the hearing of the application we have been assisted not only by Mr Ellis’s submissions but also submissions advanced solely by way of assistance to the Court by Mr France. We make that point because the application is not in the nature of an inter partes proceeding. Nor is it in the nature of discovery against a non-party.
[9] We think the present application is appropriately characterised as an application by a party to a criminal proceeding to search, inspect, and take or be issued with a copy of the file relating to the proceedings. A conditional right to do so, without payment of a fee, is assured to such a party by R2(2) of the Criminal Proceedings (Search of Court Records) Rules 1974, which by virtue of R2(10) apply mutatis mutandis to proceedings in this Court. It follows that if a document is part of the file and is not subject in the particular case to R2(4), Mr Dean has a right to the information he seeks. Rule 2(4) provides:

No document shall be searched, inspected or copied, and no copies shall be issued of a document, which a Judge has at any time directed shall not be inspected without leave save in accordance with the direction.

[10] If any document or information should be protected by judicial privilege it ought be considered either not part of the file or else appropriately the subject of a judicial direction pursuant to R2(4) that it not be searched.
[11] Turning now to the matters of concern to Mr Dean, we are of the view that the name of the Deputy Registrar who made the decision not to grant legal aid must be part of the searchable file. The Deputy Registrar made or purported to make a statutory decision affecting Mr Dean’s rights and interests, pursuant to s7 Legal Services Act 1991. There can be no question of judicial privilege nor any other justification in terms of the interests of justice in withholding that file information from Mr Dean. The Deputy Registrar is noted on the file cover sheet for the appeal. It appears to be Mr Deputy Registrar A G Ogilvie.
[12] As to the names of the Judges who recommended that legal aid not be granted we start with the following notations on the cover sheet of the Notice of Appeal:

Requests: Legal aid

Recommended aid be, refused

“T M Gault J”

9/2/96

After consultation with 3 Judges legal aid refused; it not being

desirable in the interests of justice. Applicant to have 21 days

to file written submissions in support of appeal.

“A G Ogilvie”

Deputy Registrar

15/02/96

Thursday 21 March 1996

Before the Rt Hon. Justice Richardson

The Rt Hon. Justice Gault

and the Rt (sic) Hon Justice Temm

appeal dismissed

[13] We now turn to the Criminal Appeal Sheet. Under the heading “Recommendations” Gault J recorded his recommendation in handwriting and dated it 9/2/96. Also on 9 February 1996, as indicated by the Criminal Appeal Sheet, two other Judges considered the matter and recorded their views in their handwriting on the sheet.
[14] There are two possible approaches to the nature of the comments of Gault J and the other two Judges. The first is that they are internal communications amongst Judges in the discharge of their judicial functions, having no public character and necessarily protected by judicial privilege because the interests of justice generally require that members of a collegiate court should be able to discuss the merits of an appeal and indeed aspects of judicial administration in total confidence. The other view is that the communications do not attract judicial privilege because they are in reality, in the context of pre Taito appeal procedures, decisions so closely related to the disposition of the appeal itself and so determinative of rights and interests in connection with the grant of legal aid for the purposes of an appeal as to amount to reasons which are publishable as a matter of justice. If the latter is the case, then not only the names of the Judges but the reasons they gave, individually and compendiously, for the declining of aid with the almost inevitable dismissal of the appeal, should be made known to the appellant. We take the view that they do have the latter character.
[15] The three Judges were, as far as the particular initials indicate to us, Gault, Temm and Thomas JJ.
[16] The remaining issue is whether the Criminal Appeal Sheet as prepared by the Judge’s Clerk is searchable as a file document or should be immune to search by virtue of the principle of judicial privilege in respect of necessarily confidential communications amongst Judges and their secretarial and clerical staff. The absolute necessity of such confidentiality is obvious and is not challenged by Mr Ellis on behalf of the appellant. The argument on behalf of Mr Dean is that the criminal appeal Sheet in the pre Taito days falls outside the privilege. That proposition is based on the argument that in following the process of the consideration of legal aid applications by three Judges rather than allowing the Registrar to make a determination from which a right of review would lie to a single Judge, the Judges of this Court were acting unlawfully and, it is argued, judicial privilege could not apply to extra-judicial conduct. We note, but comment no further upon, the paradox of a complaint that an applicant for legal aid had the benefit under the pre Taito scheme of three Judges individually reviewing the application, any one of whom could have triggered the grant of legal aid by considering it should be granted, rather than adherence to a system where a Registrar or Deputy Registrar could make a decisions which would then be reviewable by only one Judge. The appellant’s argument overlooks the essentially judicial nature of the decisions made even if they did not conform to the statutory scheme.
[17] There is another argument, not advanced on behalf of the appellant but more cogent. This is that under the pre Taito system where three Judges noted their recommendations on the Criminal Appeal Sheet, the information on the sheet amounted, in reality, to part of the reasons for the Judges’ determining that legal aid should not be recommended. Such a recommendation amounted, in practice, to a determination that legal aid would not be made available and the information on the sheet is part of the record of the determination. In our view, therefore, the Criminal Appeal Sheet is searchable pursuant to the Criminal Proceedings (Search of Court Records) Rules 1974. We are also of the view that there is no justification for any direction pursuant to R2(4) constraining a search of it by a party to the proceeding.
[18] This is not to say that Criminal Appeal Briefs generated in what may loosely be called the post Taito era are searchable. Their object and function is quite different and confidentiality in respect of them is absolutely essential in the interests of justice.
[19] In the result, we hold that Mr Dean is entitled, without payment of fee, to search, inspect, and take or be issued with a copy of the Criminal Appeal Sheet prepared on 8 February 1996 in CA525/95 and endorsed with the handwritten recommendations and initials of the three Judges mentioned above.

Solicitors:
N Dunning, Wellington for Appellant
Crown Law Office, Wellington