R v Bothamley [2016] NZDC 7353 (27 April 2016)

Last Updated: 8 November 2016

_{EDITORIAL NOTE: NO SUPPRESSION APPLIED.}

IN THE DISTRICT COURT AT ROTORUA

CRI-2015-069-001314 [2016] NZDC 7353

THE QUEEN

v

ROBERT BOTHAMLEY TEINA WILLIAMS

Date of Ruling:	27 April 2016
Appearances:	D McWilliam for the Crown M Dorset for the Defendant Bothamley A Schulze for the Defendant Williams
Judgment:	27 April 2016

_{RULING 3 OF JUDGE A J S SNELL}

[1] Both defence counsel made application to cross-examine the complainant in this trial about potential previous involvement as a police informant effectively on the basis that it will help discredit him as a witness. I found no Higher Court decisions where s 64(2) Evidence Act 2006 has been used in terms of whether or not a privilege should be waived where the informant is said to have given information in relation to matters not before the Court.

[2] The case law that I did find related to where an informer had supplied information to the police concerning the offending that was before the Court at the relevant time. They do not concern privilege that the informer may have held in the past in relation to previous offending where the informant had provided information.

_{It is my view that that privilege previously held is not lost when the witness is called}

R v ROBERT BOTHAMLEY [2016] NZDC 7353 [27 April 2016]

by the prosecution to give evidence in the present matter. The wording of s 64(2)(b)

states:

“(b) is not called as a witness by the prosecution to give evidence relating to that information.”

[3] For the current purposes in this trial, the witness has not been called to give evidence relating to previous information provided, but rather has been called to give information in relation to this case where he has not been a police informant at all and there is no suggestion that he was a police informant in relation to this case. He is a normal complainant who made a complaint at the police station following an incident in the normal way.

[4] On first principles, I am of the opinion that s 64 relates to informers in the context of a case currently before the Court who have provided relevant information concerning that case. It would seem strange that any witness called to give evidence who may have previously been an informer could be called before the Court and would automatically lose the privilege that they had previously held.

[5] Both defence counsel sought to invoke s 67 in the context of disclosure of this complainant being an informant (if he actually is and I do not know that he is) on the basis that it is necessary to assist their clients to present a defence before the Court.

[6] There is some guidance in the way that this can be used and I refer to R v de Bruin, HC Auckland T021790, 4 August 2003, which was a decision before the enactment of the Evidence Act, but it provides a useful formula for determining s

67(2) issues. Following reviewing the authorities, Justice O’Regan indicated that the test would determine whether or not to order disclosure, and he gives this at paragraph [13], which was:

“... the test that I have to apply is to determine, first, whether the defence that has been put forward by [an] accused ... in this case can be described as

‘tenable,’ and secondly, whether the disclosure of the name of the informer is necessary for the case to be put in its best light, assuming that it meets the first

requirement.”

[7] What that really echoes is that the privilege ought to be waived if it is necessary to enable the accused to present an effective defence. In this case, I do not believe that there is any basis to say that there cannot be an effective defence without disclosure of the fact or permission relating to this complainant potentially being an informant.

[8] Counsel are simply seeking to cross-examine on the basis that that may undermine this complainant’s credibility and there is no nexus between this case and whether he potentially informed or acted as an informant in relation to other issues unrelated to this case at all. What counsel seeks to cross-examine on is not relevant to the issues of this case, the key issue being whether an aggravated robbery has occurred and in my view, s 67(2) is excluded as it is not relevant and therefore not admissible.

[9] I decline to allow any form of questioning relating to this complainant being an informant. However, I re-emphasise that that does not stop either defence counsel raising with this complainant whether he has received any form of inducement, reward or such like in relation to the giving of evidence in this case and that is quite appropriate to put to him in the context of this trial and in the context of the defences being raised.

A J S Snell

District Court Judge