Mellon v Attorney-General CA224/04 [2005] NZCA 434; [2006] 1 NZLR 345; (2005) 22 CRNZ 26 (19 September 2005)

Last Updated: 15 January 2018

For a Court ready (fee required) version please follow this link

MELLON v ATTORNEY-GENERAL

Court of Appeal (CA224/04) 13 April; 19 September 2005

Anderson P, William Young, Chambers JJ

Criminal procedure — Preliminary hearing — Status hearing — Defence disclosed at status hearing — Police laid amended charge — No abuse of process — “Without prejudice” for status hearing purposes means evidence not admissible

— Does not prevent procedural or evidential response by either prosecution or defence — Crimes Act 1961, ss 312, 361B, 361C; District Courts Rules 1992, r 438; High Court Rules, r 442; Judicature Amendment Act 1972; Summary Proceedings Act 1957, ss 44, 44(2)(a).

The police searched a property owned by Mr Mellon’s landlord, and found cannabis plants that had recently been pulled out of the ground. Mr Mellon, who had told police he had helped his landlord pull out the plants but had no involvement in the cannabis growing operation, was charged summarily with cultivating cannabis.

At a status hearing, Mr Mellon’s counsel stated his defence ie, that his actions did not constitute the crime of cultivation. At the police prosecutor’s request, the case was adjourned. The prosecutor then laid a different charge of being an accessory after the fact to the cultivation of cannabis. The charge was, this time, laid indictably.

Mr Mellon had sought a stay of prosecution. In the District Court at first instance, and then on judicial review to the High Court, it was submitted that it was an abuse of process for the police to act on status hearing disclosures by laying a more serious charge. Both Courts concluded that there may have been an abuse of process. First, the accessory charge should have been regarded as a more serious charge. Secondly, the laying of the more serious charge in direct response to defence disclosures at the status hearing was contrary to the spirit of the status hearing process and was unfair. Thirdly, there was no justification for laying the new charge indictably. However, a stay was not warranted, because it was inevitable that the police would eventually have realised there was insufficient evidence for the cultivation charge.

On this appeal, the appellant’s counsel submitted that denying him a remedy was contrary to the public interest because it undermined the integrity of the status hearing process. That procedure was developed by the Courts for reasons of efficiency, and unless a stay of prosecution were granted the confidence of participants in the status hearing process would be undermined. The public interest in prosecuting Mr Mellon was not high because of his low culpability.

Held, it is obvious that for status hearings to be of any value, they must be conducted without prejudice. That means evidence should not be given at trial of

what may have been said by, or on behalf of, the prosecutor or the defendant. However, it does not exclude a procedural or evidential response by either the prosecution or the defence. The appellant’s case amounted to an assertion that knowledge gained from a status hearing cannot be acted upon. Many pretrial transactions are conducted on a without prejudice basis, such as judicial settlement conferences. Participation in a settlement conference does not prohibit any use of the information derived from it. That would be an entirely unrealistic response, and a grave deterrent to participation in settlement negotiations because of the potential for manipulation by deliberate disclosure in order to prevent lines of inquiry. (paras 36, 37)

Cases referred to

Fox v A-G [2002] NZCA 158; [2002] 3 NZLR 62; (2002) 19 CRNZ 378 (CA)

Moevao v Dept of Labour [1980] 1 NZLR 464 (CA)

Police v Cresswell [2002] DCR 43

Police v Southey [1999] DCR 1141

R v Sang [1979] UKHL 3; [1980] AC 402; [1979] 3 WLR 263; [1979] 2 All ER 1222

Appeal

Appeal against a High Court decision on an application for judicial review.

S A Saunderson-Warner for appellant

A M Powell for Crown

The judgment of the Court was delivered by

ANDERSON P (reserved):

Introduction

[1] This is an appeal against a decision of the High Court (Chisholm J) on an application, pursuant to the Judicature Amendment Act 1972, for judicial review.

[2] The litigation has its origin in a criminal proceeding in the District Court at Dunedin. That arose from a police search, pursuant to a warrant, of a property owned by Mr Mellon’s landlord. The police found some cannabis plants that had recently been pulled out of the ground. Mr Mellon told the police he had helped his landlord pull out the plants but that he had no involvement in the cannabis growing operation. He was charged summarily with cultivating cannabis.

[3] When Mr Mellon appeared before the District Court he entered a plea of not guilty and elected summary jurisdiction. He was remanded to a status hearing. His then counsel (not Ms Saunderson-Warner) informed the Judge that Mr Mellon’s defence was that his actions did not constitute the crime of cultivation. The Judge’s response was to suggest that Mr Mellon’s actions might support a charge of being an accessory after the fact to cultivation. At the request of the police prosecutor the case was adjourned to a further status hearing. When that was reached the prosecutor laid, indictably, a charge of being an accessory after the fact to the cultivation of cannabis. The maximum term of imprisonment for such an offence is 3½ years. In due course Mr Mellon was committed for trial and the summary charge of cultivating cannabis was withdrawn by leave.

[4] Mr Mellon then applied to the District Court for an order staying the prosecution. The argument was that the actions of the police in bringing the indictable charge was an abuse of process. The application was heard by Judge J E Macdonald. He concluded that the police had made a mistake in laying a charge of cultivation because they never had the evidence to support the charge. It had not been suggested, for example, that Mr Mellon had pulled out the plants to assist in harvesting.

[5] Judge Macdonald concluded that although, arguably, there had been an abuse of process, in all the circumstances it would not justify dismissal of the charge. He was influenced by several factors, which he described as follows:

(a) I need to bear in mind that the authorities make it clear that dismissal for abuse of process is to be used sparingly. If, for example, dismissal was not upheld in Fox v A-G [2002] NZCA 158; [2002] 3 NZLR 62; (2002) 19 CRNZ 378 (CA) it is difficult to see how I could grant dismissal in this case.

(b) As just discussed, I am not convinced that for practical purposes the charge has to be regarded as more serious, especially given the unfairness outlined and the fact that the criminal conduct remains unchanged. To that extent the accused, in the event of pleading guilty, can effectively be restored to the position he would have been in, had the charge been amended appropriately at the status hearing.

(c) The accused could have pleaded guilty prior to the preliminary hearing under s 153A Summary Proceedings Act, and assuming that the Court accepted jurisdiction, he would have been in the same position had the cultivation charge been amended at the status hearing.

(d) As discussed, I think it virtually inevitable, even without any defence disclosures at the status hearing, that the issue of amendment would have arisen. The chances are that it would have been allowed, but if not, a fresh charge could have been laid in circumstances where there could be no complaint if it had been laid indictably.

Review

[6] Ms Saunderson-Warner argued on the application for review that the intervention of the High Court was imperative in this case if the integrity of the status hearing process was to be preserved. That procedure was developed by the Courts for reasons of efficiency and unless a stay of prosecution were granted the confidence of participants in the status hearing process would be undermined.

[7] For the Attorney-General, Mr Powell had submitted that there was nothing objectionable in the laying of the accessory charge. Notwithstanding Mr Mellon’s right to remain silent, his counsel had freely disclosed the defence at the status hearing without attempting to protect the disclosure. Under those circumstances, the prosecution was entitled to take any necessary steps to prove the commission of an offence. Even if the Court were of the view that there was an irregularity in this case, that would not be sufficiently serious to warrant the Court’s intervention. This was because there was no suggestion that Mr Mellon’s right to a fair trial had been compromised. Nor were there any exceptional circumstances justifying interfering with the District Court Judge’s discretion.

[8] In his judgment, Chisholm J referred to two District Court cases involving defence disclosure which led to prosecution responses disadvantageous to a defendant.

[9] In Police v Southey [1999] DCR 1141, the defendant was prosecuted for driving with excess breath alcohol. The interviewing officer had correctly noted on

his records the type of breath testing device he had used. Before a status hearing took place, Mr Southey’s counsel tried to persuade a police prosecutor to withdraw the information. This was on the basis that the breath testing procedures undertaken by the officer in charge did not conform with those stipulated for the device which had been erroneously named. The steps taken were those stipulated for a different approved device. That discrepancy was again raised at the status hearing also but the prosecuting officer refused to withdraw the charge.

[10] When the matter came to a hearing, the interviewing officer produced the device he had actually used and he gave evidence showing that the procedures stipulated for the produced device had been correctly followed. He did so after being informed by the prosecuting officer, with whom defence counsel had previously discussed the case, what the defence position would be. What occurred, in fact, was that the defence was deprived of the opportunity to exploit a careless but honest mistake in respect of the police officer’s notes.

[11] Judge Dalmer accepted a defence submission that procedural unfairness had occurred. He held that information provided by the defence at a status hearing should not be used against the defence at a defended hearing. He said:

If material given in confidence at a status hearing on the basis that it would go no further, is then relayed back to police witnesses so that gaps in a police case can be plugged, the integrity of the status hearing system would rapidly be lost. Defence counsel would simply not disclose any matters relating to the defence until the appropriate time during the defended hearing proper. Such action would be entirely proper and in accordance with a defendant’s rights, but from a practical viewpoint it would virtually put paid to status hearings as they presently operate. [P 1147]

[12] Later in his decision Judge Dalmer characterised what the prosecution had done as “a flagrant if inadvertent abuse of process”.

[13] Chisholm J then referred to another District Court decision, Police v Cresswell [2002] DCR 43. In that case the defendant was charged with supplying objectionable material contrary to the Films, Videos and Publications Classification Act 1993. During a conversation before the status hearing, counsel for Mr Cresswell disclosed to the police that the defence would be that the defendant had not in fact supplied material within the meaning of the Act. That prompted the prosecutor to lay further charges alleging possession. The defendant responded by seeking a stay on the basis that the disclosure was part of the without prejudice status hearing process and that it was an abuse of process and unfair for the police to do what they did.

[14] Judge Walker refused a stay, observing:

If every disclosure made by the defence was to be regarded as unable to be used to advance the prosecution case in any way, it would be open to the defence at an early stage, and before the file had been assessed by a prosecutor, to list all the available defences and apparent defects, potentially fatal to the prosecution or otherwise, and so stymie the prosecution from an early stage. That would not be a result which would be in the interests of justice, a concept which involves not only the interests of a defendant, but the interests of the public in having charges proceed to Court and be determined. [Para 16]

[15] Judge Walker distinguished Police v Southey on the grounds that in the case before him the discussions had taken place outside the Court and in circumstances

beyond the control of the Court. The distinction is less obvious to us because matters raised in Southey at the status hearing had already been canvassed in an earlier discussion between the prosecutor and defence counsel. However, as will appear later from the terms of this judgment, we think Judge Walker came to the correct view.

[16] Chisholm J recognised dangers in a rigid principle that disclosure of a defence at a status hearing should tie the hands of the prosecuting authority. He thought that whether that should be the case would depend on the particular facts, including any express or implied restrictions on the use of that information by the prosecution.

[17] Turning to the present case, Chisholm J considered that the indictable laying of the accessory charge was what called the police actions into question. He noted Ms Saunderson-Warner’s acceptance that if the new charge had been laid summarily it would have been very difficult to pursue an application for stay.

[18] The question was raised whether the new charge, being laid indictably, was or was not more serious than the summary charge. Chisholm J held that in practical terms the penalty threshold increased from 2 years, which is the maximum that the District Court could impose on the summary charge, to 3½ years, which was the maximum penalty under s 312 of the Crimes Act 1961 for an accessory charge laid indictably. Also, Mr Mellon had been forced into trial by jury which, in his view, is an entirely different proposition from a summary hearing.

[19] Chisholm J agreed with three broad conclusions reached by Judge Macdonald. First, the accessory charge should be regarded as a more serious charge. Secondly, the laying of the more serious charge in direct response to defence disclosures at the status hearing was contrary to the spirit of the status hearing process and was unfair. Thirdly, there was in fact no justification for laying the new charge indictably. This left the pivotal issue as whether the District Court should have exercised its discretion in favour of granting a stay. The approach to that issue was governed by the principles enunciated by a full Court of Appeal in Fox v A-G [2002] NZCA 158; [2002] 3 NZLR 62; (2002) 19 CRNZ 378 (CA). The headnote to that case conveniently elucidates the principles in the following terms:

Conduct amounting to an abuse of process was not confined to that which would preclude a fair trial. Outside that category it would, however, have to be of a kind so inconsistent with the purposes of criminal justice that for a Court to proceed with the prosecution on its merits would tarnish the Court’s own integrity or offend the Court’s sense of justice and propriety. The power of stay was not available for disciplinary purposes or to reflect a view that a prosecution should not have been brought. Conduct warranting a stay might be bad faith, an improper motive in bringing the prosecution, or conduct that created a prejudicial impact. A stay was an extreme step only to be taken in the clearest of cases. [Fox v A-G [2002] 3 NZLR pp 62-63]

[20] What seemed to Chisholm J to be conclusive was that it was virtually inevitable that the problem with the charge of cultivating cannabis would have been picked up by the police sooner or later. Then they would have taken steps to lay another charge which would more accurately reflect the plaintiff’s alleged criminality. Assuming that the problem was picked up, the only issue would be whether the Court would be prepared to allow the summary charge to be withdrawn in favour of an indictable charge alleging that the plaintiff was an

accessory. That had happened and under the circumstances it was difficult to see how the plaintiff could demonstrate actual prejudice.

Arguments on appeal

[21] Counsel for the appellant argued that both the District Court and High Court had come to the view that an abuse of process had occurred but neither was prepared to grant a remedy. There was no cross-appeal against the High Court’s finding that an abuse had occurred and counsel submitted that such finding should stand. That provoked the issue whether or not a remedy should be accorded for the claimed abuse. There was, she said, a public interest in favour of granting a remedy because, in effect, of the utility of status hearings in the administration of justice in the District Court. The countervailing public interest in prosecuting Mr Mellon was not high because even in terms of the prosecution case the appellant’s culpability was low.

[22] Counsel for the appellant pointed out that at the heart of the concept of abuse of process is the integrity of the Courts and the judicial process in the perception of the public.

[23] Ms Saunderson-Warner submitted that in all the circumstances a stay was the only appropriate remedy. The alleged offending was neither serious nor a risk to public safety. But, on the other hand, the prosecution had abused the procedure of status hearings and that had prejudiced the appellant. Counsel’s submissions ended with an exhortation that status hearings should be conducted on a without prejudice basis.

[24] Counsel for the first respondent submitted that although the lower Courts mentioned during the course of their reasoning that there was an arguable abuse of process, (Judge Macdonald), or a prima facie abuse of process, (Chisholm J), they did not find that there actually was an abuse of process. He submitted that the abuse of process argument relied on an unwarranted view of the nature of status hearings, the primary function of which is to achieve administrative expediency. He submitted that a defendant cannot preserve an inalienable benefit of a defect in the prosecution case by disclosing it in the course of a status hearing.

[25] Mr Powell pointed out that the power to order a stay is founded on the Court’s need to prevent its own processes from being abused. Accordingly, any exercise of the power must be approached with caution. As Richmond P observed in Moevao v Dept of Labour [1980] 1 NZLR 464 (CA):

any exercise of the power must be approached with caution. It must be quite clear that the case is truly one of abuse of process and not merely one involving elements of oppression, illegality or abuse of authority in some way which falls short of establishing that the process of the Court is itself being wrongly made use of. [P 470]

[26] Mr Powell developed the argument that the Court’s power to order a stay for abuse of process must be examined in the context of the Court’s constitutional status. It is not for a Judge to initiate or stifle a prosecution, R v Sang [1979]

[1979] UKHL 3; 3 WLR 263; [1979] 2 All ER 1222.

[27] Mr Powell submitted that the judgments of this Court in Moevao and Fox recognise that the trigger for intervention by way of stay is not unfairness to an accused but abuse of executive power which, should it be unchecked, would undermine public confidence in the due administration of justice.

[28] Turning to the nature of status hearings, Mr Powell submitted that one of the difficulties of generalising in this area is that there is no standardised practice operating across New Zealand, as the Law Commission noted in its Criminal Prosecution, Report No 66, New Zealand Law Commission, Wellington,

2000. But the underlying justification for status hearings was administrative expediency and in particular the avoidance of last minute changes of pleas from not guilty to guilty. It has always been the case, as the Law Commission paper notes, that informal discussions have taken place between the police and the defence as to the charges to be faced and, to some extent, the content of a fact summary to be put before the Court.

[29] Nor, submitted Mr Powell, is there any justification for enforcement of confidentiality at status hearings other than to prevent evidence being given of admissions or acknowledgements made on behalf of a defendant at such hearings.

[30] On the issue whether the appellant has suffered prejudice, it ought to be recognised, submitted counsel for the first respondent, that if the appellant does not wish to have his case heard before a jury he could have applied under s 361B of the Crimes Act 1961, and may still apply under s 361C, for trial before a Judge sitting alone.

Discussion

[31] On the prosecution case, the appellant was always in jeopardy of a charge of being an accessory after the fact. That is not to say that a charge of cultivating cannabis would necessarily fail. It may well be arguable that the uprooting of old crops is part of an overall cultivation process in respect of those crops. In any event, we have difficulty in accepting that the appellant is, in reality, unfairly prejudiced by having to face an accessory charge.

[32] Theoretically, he might be in jeopardy of an increased sentence but in reality that is far from the case. His landlord, who on any approach must be significantly more culpable, was sentenced to 15 months imprisonment, the sentence having been discounted from 21 months because of a guilty plea. It is inconceivable that the appellant would receive a sentence of more than 2 years imprisonment which is the term a District Court Judge in the summary jurisdiction could have imposed on the original charge.

[33] Further, even on the original summary charge, the District Court could at any time have declined to deal summarily with the offence, in which event the case would have proceeded as if the offence were an indictable offence not punishable summarily: Summary Proceedings Act 1957, s 44. Thus, it is not correct that the maximum penalty he faced on the original charge was 2 years imprisonment; he was potentially liable for 7 years imprisonment. Even if the case had proceeded summarily through to conviction, the District Court could at that stage have declined to deal summarily with the offence, and could have committed to him to the High Court for sentence: s 44(2)(a). The principal point of Ms Saunderson- Warner’s submission was therefore based on a false premise as to the appellant’s potential risk under the original charge.

[34] It is the case that having been proceeded against on indictment the appellant faces, prima facie, a trial by jury. But given the history of the prosecution we would

think it highly likely that a Court would give favourable consideration to an application for trial before a Judge alone.

[35] The real nature of the appellant’s complaint seems to us to be that, by disclosing at a status hearing a technical hurdle in the path of the prosecution (one which, in our view, was not necessarily insurmountable) the appellant gave cause to the prosecution to consider whether it should take an alternative route.

[36] It is obvious that for status hearings to be of any value, they must be conducted without prejudice, as they are. That means that evidence should not be given at trial of what may have been said by or on behalf of the prosecutor or the defendant. But we are not prepared to declare that anything arising in the course of a status hearing necessarily excludes any procedural or evidential response by either the prosecution or the defence. Yet that is the position to which the appellant, it seems, wishes to bring this Court.

[37] The appellant’s case here amounts to an assertion that knowledge gained from a status hearing cannot be acted upon. We reject that. Many transactions are conducted on a without prejudice basis, such as judicial settlement conferences in both the High Court (r 442) and the District Court (r 438). This Court is unaware of any suggestion that participation in a settlement conference prohibits any use of information derived from such conference. That would be an entirely unrealistic response, and a grave deterrent to participation in settlement negotiations because of the potential for manipulation by deliberate disclosure in order to prevent lines of inquiry.

[38] What has happened, in reality, is that counsel appearing for the appellant at the status hearing disclosed an arguable legal defence on the facts and that led the prosecution to respond in a way that was legally open on those same facts. The prosecution could have done so at the end of the informant’s case on the summary proceeding, albeit subject to leave. In that respect we think it so unlikely that a District Court would think it proper not to amend the information that the issue of prejudice to the appellant becomes merely one of timing rather than substance.

[39] In short, the appellant was always liable and likely to face an amended information aptly responding to the presently unchallenged facts. In fact, the appellant is now liable to a shorter sentence than had the police continued with the cultivation charge. The potential penalty dropped from 7 years imprisonment to

3½ years imprisonment. It is rationally inconceivable that should he be convicted he would receive a term of imprisonment exceeding that of the principal offender and taking his actual jeopardy beyond the summary jurisdiction of the District Court.

[40] We do not accept that the prosecutor acted unfairly, let alone abusively of the Court’s process. There is no proper basis for reversing the decision of the District Court or the High Court on review.

Result

[41] The appeal is dismissed. The appellant is legally aided with no personal contribution. In the circumstances there will be no order as to costs.

Appeal dismissed; order prohibiting publication of name, address or particulars identifying appellant until final disposition of trial; publication in law report or law digest permitted

Reported by Claire Browning