[1] Bhikubhai Patel faces some serious charges. His trial is due to take place in the High Court at Auckland next month. A key Crown witness is Sarwan Kumar. It turns out that, in advance of the trial, Mr Kumar has been interviewed by Keith Slater, a television reporter and the first appellant on this appeal. Mr Slater is employed by CanWest TVWorks Limited, the second appellant. CanWest owns and operates the TV3 television channel. It is CanWest’s current intention to broadcast a documentary featuring Mr Kumar as soon as Mr Bhikubhai Patel’s trial has finished.
[2] Mr Sanjay Patel is Mr Bhikubhai Patel’s counsel. (Because Messrs Sanjay Patel and Bhikubhai Patel share the same surname, we shall in these reasons refer to Mr Sanjay Patel as Mr Patel and Mr Bhikubhai Patel as the accused.) Mr Patel somehow found out that Mr Kumar had been interviewed by Mr Slater. He caused witness summons directed to Mr Slater to be issued, first out of the District Court and later out of the High Court. It is only the latter with which we are concerned on this appeal. The High Court witness summons was in due course served on Mr Slater. That summons, issued under the seal of the High Court, required Mr Slater “to appear personally as a witness at the High Court at Auckland on Monday, the 26th day of September 2005 at 10 am, in the trial of the abovenamed [Her Majesty The Queen] v Accused [Bhikubhai Patel], and to attend until the trial is concluded or [he is] discharged from attending further”. The summons also stated:

You are required to bring with you and produce the following:

Any material, whether in the form of notes, diaries, videotapes or in any other form, that has come into being as a result of discussions between you and any witnesses to this proceeding.
Any notes, diaries, in whatever form, that record meetings, attendances or discussions between you and any witnesses to this proceeding.

[3] We are not sure of the significance of the date specified in the summons, namely 26 September 2005. It may be that that was the anticipated trial date as at the time the summons was issued. There was in fact a hearing on 26 September 2005, but it was not the trial. On that date, Cooper J heard a number of pre-trial applications in the case of R v Patel HC AK CRI-2004-004-014009. Among those applications was an application by Mr Slater to set aside the witness summons. Cooper J delivered a reserved decision on 27 October 2005. He dismissed Mr Slater’s application.
[4] It was then the accused’s turn to make an application. He applied for an order that Mr Slater disclose in advance of trial the materials referred to in the witness summons. Mr Slater opposed that application. Rodney Hansen J heard argument on 1 November 2005. On 3 November 2005, he made an order that TV3 and Mr Slater disclose certain of the materials they held. The precise means by which disclosure was achieved was left to the parties, with counsel having leave to apply for further directions if required: at [41].
[5] Mr Slater and CanWest now seek to appeal against both judgments, so far as they affect them. (Both judgments also contain rulings on other matters relating to the accused’s forthcoming trial. None of those matters is dealt with in the current judgment or reasons therefor.)
[6] A judge of this court directed that the parties argue as a preliminary question whether this court has jurisdiction to entertain either appeal.
[7] Mr Mills, for the appellants, submits that there is jurisdiction for both appeals under s 66 of the Judicature Act 1908. Mr Patel and Mr Pike, for the Crown, dispute that. They both submit that there is no jurisdiction under s 66 or indeed under any other statutory provision. It is common ground that an appeal to this court lies only if such right is granted by statute.
[8] We shall consider the two applications in turn.

Mr Slater’s application to discharge the witness summons

[9] It is common ground that the High Court has inherent jurisdiction to issue witness summonses: Nottingham v T [2004] DCR 391 at [30]-[32] (HC). It is also clear that the High Court has inherent jurisdiction to set aside a witness summons: Re Golightly [1974] 2 NZLR 297 at 302; Rota v Tukiri [2001] 1 NZLR 715 at [19]. Mr Slater’s application relied on such inherent jurisdiction.
[10] Although the application was in form an application to discharge the witness summons, Mr Mills’s argument really turned on s 35 of the Evidence Amendment Act (No 2) 1980. The argument in brief was that any information that Mr Slater might be asked to give in the course of evidence, and the content of any documents he might be required to produce, would arise out of a relationship of confidence with Mr Kumar, with the consequence that the court would excuse Mr Slater from answering any question or producing any document by virtue of s 35(1) of the 1980 Act.
[11] Section 35(1) to (3) of the Act provides:

Discretion of Court to excuse witness from giving any particular evidence

(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 he 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:

(3) An application to the Court for the exercise of its discretion under subsection (1) of this section may be made by any party to the proceeding, or by the witness concerned, at any time before the commencement of the hearing of the proceeding or at the hearing.

[12] Mr Mills apparently submitted in the High Court that the application before the court was not only an application to set aside the witness summons but also an application under s 35(3) of the 1980 Act to excuse Mr Slater from answering any questions concerning the dealings he had had with Mr Kumar. If that was a good argument, then, Mr Mills submitted, it was a logical consequence that the summons should be set aside. There is no point in dragging someone to court if he or she will be excused from giving evidence and producing documents.
[13] Cooper J considered the application in light of s 35. He concluded that Mr Slater would not be able to rely on s 35. Accordingly, he ruled that the summons should not be set aside. The question we have to determine is whether we have jurisdiction to consider an appeal from his decision.
[14] We are satisfied that we do not have jurisdiction. There can be no doubt that Cooper J’s decision was made in the context of a criminal proceeding. The summons required Mr Slater to present himself at the High Court so that he could be a witness at the accused’s criminal trial. In so far as the decision turned on s 35, that was an evidential ruling made in the context of a criminal proceeding. The ruling could have been made during the criminal trial itself; in this case, it was made before trial, but that does not alter its essential character. It is common ground that the appeal provisions of the Crimes Act 1961 do not cover Cooper J’s decision. Mr Slater’s only hope is via s 66 of the Judicature Act.
[15] We are satisfied that s 66 confers no jurisdiction – on not one but two grounds. First, s 66 applies only to judgments, decrees, and orders made in the High Court’s civil jurisdiction. Cooper J’s decision was made in the High Court’s criminal jurisdiction. As this court said in Re Victim X [2003] 3 NZLR 220 at [24], “for at least a century the Courts have held that s 66 does not apply to criminal matters”. See the cases cited in that case, and in particular R v Clarke [1985] 2 NZLR 212 (CA) and Cooke J’s account of the history of the legislation at 214. Re Victim X was recently followed by this court in Mafart v Television New Zealand Limited CA92/05 4 August 2005. We are aware that Mafart is currently under appeal in the Supreme Court (SC50-05). It is tempting to wait to see what that court decides as to this court’s jurisdiction, but that luxury is not available to us because of the urgency with which this decision is required.
[16] Secondly, Cooper J’s decision was in any event an interlocutory decision. Certain interlocutory positions in criminal matters can be appealed under s 379A of the Crimes Act – but, in all cases, only with leave. It would surely be odd if this interlocutory decision in respect of which no appeal provision has been enacted could come here as of right when far more important interlocutory decisions can come only with leave.
[17] In this regard, R v B [1995] 2 NZLR 172 (CA) is instructive. That was a decision of the Full Court. The accused, who was charged with various sexual offences, had sought a pre-trial order that the relevant complainant undergo a medical examination, contending that the result would cast doubt on her allegations. The High Court judge refused to make such an order, and the accused appealed. This court held that it lacked jurisdiction. All the judges agreed that, except in cases falling within s 379A of the Crimes Act, this court has no jurisdiction to hear appeals in criminal cases (to be tried on indictment) before trial.
[18] Even in the civil jurisdiction this court does not have jurisdiction to consider appeals from every decision of the High Court in relation to the proceeding and before delivery of the substantive judgment. Rulings made in the course of the hearing of the proceeding or as part of the trial conduct or management process are not ordinarily susceptible to interlocutory appeal under s 66: Association of Dispensing Opticians of New Zealand Inc v Opticians Board [2000] 1 NZLR 158 (CA).
[19] We shall now deal briefly with Mr Mills’s attempt to circumvent the above authorities and why we consider that attempt must fail. First, Mr Mills submitted that this decision related to a criminal proceeding but was not made in that criminal proceeding. That distinction, if it ever had validity, no longer has: Re Victim X at [28]. In any event, whether the application is looked at in its pure form as an application to discharge a witness summons or in its “derived” form as an application under s 35 of the 1980 Act, it was clearly a decision in the proceeding. Nothing could be more directly associated with the proceeding than a decision as to whether a witness must parade or an evidential ruling.
[20] Secondly, Mr Mills submitted that s 35 “is concerned with confidences” and “confidences are a product of the civil, not the criminal, law”. That submission ignores, however, the true basis of Cooper J’s decision, in so far as it was made under s 35. It was quite plainly an evidential ruling in R v Patel; it could have been made during the course of the trial itself. Because of s 35(3), it was able to be considered pre-trial, but that changes nothing as to the nature of the decision.
[21] Thirdly, Mr Mills argued that rights under s 14 of the New Zealand Bill of Rights Act 1990 are in issue. He submitted that Cooper J’s decision affected “the freedom to seek, receive and impart information and opinions and the important role the media plays in giving full effect to these rights”. He further submitted that the proper affirmation of the s 14 rights required an interpretation of s 66 that permitted a right of appeal. We can see that s 14 of the Bill of Rights could be relevant in weighing the discretion under s 35 of the 1980 Act: R v Dobson CA25/95 8 June 1995 at 8. We cannot accept, however, that s 14 requires s 66 of the Judicature Act to be read as conferring an appeal right. After all, the decision in the High Court in R v B affected numerous rights under the Bill of Rights, but that did not assist the accused in that case.
[22] Finally, Mr Mills argued that s 379A of the Crimes Act applied only to appeals by parties. That section, he said, did not address and therefore did not determine rights of appeal by non-parties. Mr Mills made the point that at least part of the reason for restrictive appeal provisions with respect to interlocutory orders in criminal cases is that the accused has a full right of appeal on all matters (including interlocutory matters) if and when he or she is convicted. But the non-party never gets that opportunity – unless s 66 is given a broad interpretation.
[23] We see some merit in that argument, but we are not persuaded by it. It may be somewhat anomalous that a non-party in a criminal proceeding cannot challenge on appeal a ruling which affects him or her. But to construe s 66 so as to permit appeals by non-parties in criminal proceedings would lead to other anomalies. For instance, applications under s 35 are often, indeed usually, made by a party. It would be distinctly odd for there to be different appeal paths depending upon whether the application was made by the accused or the witness himself or herself. On Mr Mills’s argument, the non-party applicant could appeal the s 35 decision at any time under s 66 of the Judicature Act; the party who made the identical application would have to wait until he saw whether he was convicted and only then could bring the appeal under s 383 of the Crimes Act.
[24] Mr Slater’s inability to appeal the order affecting him has arisen because, perhaps rather unusually, both parties to the criminal proceeding are content for the defence to explore what it is that Mr Kumar did say to Mr Slater. Indeed, what makes the case even more unusual is the fact that Mr Kumar himself indicated at the preliminary hearing “that he would have no difficulty if any notes of the discussions between him and Mr Slater were made available to counsel”: Cooper J’s judgment at [87]. Such unusual circumstances may give rise to an apparent anomaly, but that should not lead to a strained interpretation of s 66.
[25] We might also add that, given Mr Kumar agreed to speak to Mr Slater in the expectation that the interview would be broadcast, it is difficult to see that there was any confidence to which s 35 of the 1980 Act could apply.
[26] While Mr Mills’s submissions were attractively presented, we cannot accept them. Section 66 of the Judicature Act does not confer jurisdiction for the proposed appeal.

The accused’s application for pre-trial disclosure

[27] As we have indicated, the accused sought to have Mr Slater and CanWest disclose to the defence prior to trial the materials listed in the schedule to the witness summons. Rodney Hansen J considered that some of them should be disclosed, but not others. For current purposes, it does not matter which he ordered to be disclosed and why he made a distinction between the materials. The only issue with which we are currently seized is whether Mr Slater has the right to appeal against the disclosure order.
[28] Mr Mills, in presenting his submissions, did not draw any distinction between Cooper J’s decision and Rodney Hansen J’s decision. His arguments were the same in respect of both decisions. He saw both as effectively decisions under s 35 of the 1980 Act and as appealable for the same reasons.
[29] We are satisfied that there is no appeal under s 66 of the Judicature Act, as Rodney Hansen J's decision, like Cooper J's, was made in the context of a criminal proceeding. This appeal too must be dismissed for want of jurisdiction.

Costs

[30] We reserve costs, with liberty to apply. We assume the accused is legally aided. Mr Pike did not advise as to whether the Crown sought costs in the event of the appeal’s failure.
[31] If costs are sought and the parties cannot resolve them, memorandums may be filed.

Solicitors:
Russell McVeagh, Wellington, for Appellant
Crown Law Office, Wellington, for Second Respondent

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