Deys v R [2018] NZCA 466 (30 October 2018)

Last Updated: 3 December 2018

IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA

CA252/2018 [2018] NZCA 466

	BETWEEN	JARED DEYS Appellant
	AND	THE QUEEN Respondent

CA330/2018
	BETWEEN	RYAN NEIL TREWEEK Appellant
	AND	THE QUEEN Respondent

Court:	Kós P, Miller and Brown JJ
Counsel:	B A Crowley for Appellant Deys (CA252/2018) S J Gill for Appellant Treweek (CA330/2018) C A Brook for Respondent
Judgment: (On the papers)	30 October 2018 at 11.00 am

JUDGMENT OF THE COURT

The application for disclosure of parts of the Jury Trials Bench Book is declined.
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REASONS OF THE COURT

(Given by Miller J)

[1] This judgment addresses an application for disclosure of excerpts from the Jury Trials Bench Book to Mr Dey’s counsel before the hearing of his impending appeal against conviction. Prior to summing up at trial, the District Court Judge, Judge Kelly, cited the Bench Book in support of her decision about how she should sum up on the elements of the offence of aggravated robbery.^[1] The Judge contrasted several decisions of this Court,^[2] and the Bench Book, with a decision relied on by the appellant’s counsel (also of this Court), Feterika v R.^[3]
[2] The Ministry of Justice has denied counsel’s request for the Bench Book. Counsel for Mr Deys, Mr Crowley, contends that, given that the Judge relied on the Bench Book as containing authoritative statements of law, it ought be disclosed as a matter of natural justice. Crown counsel, Ms Brook, responds that its disclosure is moot given that the appeal will focus on whether the Judge gave the correct directions as a matter of law.
[3] We agree with the Crown’s submissions. Our reasons can be shortly stated.
[4] A public right to access information relating to the courts and the judiciary is provided for in the District Court Act 2016 and the Senior Courts Act 2016. The Bench Book is being sought pursuant to s 236 of the District Court Act, but the provisions allowing for access in both Acts are materially similar. A distinction is drawn in the District Court Act between access to court information, which is permitted in accordance with rules of court; access to judicial information, which is not permitted (either under the Act or other legislation, such as the Official Information Act 1982); and access to Ministry of Justice information, which is permitted in accordance with legislation providing for or regulating access to government information.
[5] In our view the Bench Book comprises judicial information. The categories of judicial information includes “judicial communications not relating to particular cases”.^[4] This properly describes the Bench Book.
[6] Further, whether the Judge erred in her summing up turns on the law as set out in the decisions of this Court referred to. The Bench Book itself is not authoritative, and it is apparent from what she said that it follows the authorities which she considered should be followed. Accordingly it will not assist the argument one way or the other.
[7] We recognise that bench books are published in other jurisdictions. There is merit in such a resource being available to the profession, provided it is kept current. Unfortunately the judiciary does not have the resources needed to keep the Jury Trials Bench Book current. It serves as a primer for judges, who are expected to rely on their own knowledge of the law and the assistance of counsel to ensure that directions are correct.

Result

[8] The application for disclosure of parts of the Jury Trials Bench Book is declined.

Solicitors:
Crown Law Office, Wellington for Respondent

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^[1] R v Treweek [2018] NZDC 3734.

^[2] At [9], citing Edwards v R CA60/00, 25 July 2000; R v Galey [1985] 1 NZLR 230 (CA); and R v Joyce [1968] NZPoliceLawRp 8; [1968] NZLR 1070 (CA).

^[3] Feterika v R [2007] NZCA 526.

^[4] District Court Act 2016, sch 1, categories of “judicial information”.