R v Taine [2017] NZDC 16159 (26 July 2017)

Last Updated: 18 January 2018

EDITORIAL NOTE: CHANGES MADE TO THIS JUDGMENT APPEAR IN [SQUARE BRACKETS].

NOTE: PUBLICATION OF NAME(S), ADDRESS(ES), OCCUPATION(S) OR IDENTIFYING PARTICULARS, OF ANY COMPLAINANT(S)/ PERSON(S) UNDER THE AGE OF 18 YEARS WHO APPEARED AS A WITNESS [OR NAMED WITNESS UNDER 18 YEARS OF AGE] PROHIBITED BY S 204 OF THE CRIMINAL PROCEDURE ACT 2011.

IN THE DISTRICT COURT AT MANUKAU

CRI-2016-055-002391 [2017] NZDC 16159

_{THE QUEEN}

v

_.

[KEREHI TAINE]

_Defendant

Hearing:	29 June 2017
Appearances:	S L Belk for the Crown R Roy for the Defendant
Judgment:	26 July 2017

REASONS FOR DECISION OF JUDGE R J EARWAKER

_{on Disclosure of Video Records}

[1] The defendant is due to stand trial before a jury on 18 September 2017 in relation to charges against two child complainants, [complainant 1] and [complainant

2], namely;

(i) Assault on a child ([complainant 2]) x 3 (all representative counts). (ii) Assault with a weapon ([complainant 2]) x 1

(iii) Assault on a child ([complainant 1]) x 1 (representative count)

[2] The defendant makes application for disclosure of the video recorded interview of each of the child complainants under s 106 of the Evidence Act 2006 (the Act).

[3] The Crown has given notice to the Court and defendant of the complainants’ proposed mode of evidence, namely evidence-in-chief is to be by way of playing of the evidential video interviews (EVI) and all questioning is to take place via close circuit TV (CCTV).

[4] The alleged assaults are said to have taken place between 1 January 2013 and

12 January 2016. The recorded interviews with the child complainants took place on

9 February 2016. The defendant was first required to appear in Court to answer the charges on 27 October 2016.

[5] Section 106 of the Act was amended on 8 January 2017. Prior to the amendment, the relevant part of s 106 of the Act read:

106 Video Record Evidence ...

(4) A copy of any video record that is to be offered as an alternative method of giving evidence in a proceeding –

(a) must be given to the lawyer for each party before it is offered in evidence, unless the Judge directs otherwise; and ...

[6] Following the amendment, the relevant parts of s 106 of the Act read:

(4A) Subject to subsections (4B) and (4C), a defendant’s lawyer is not entitled

to be given a copy of a video record under subsection (4) of—

(a) any child complainant; or

(b) any witness (including an adult complainant) in a sexual case or a violent case.

(4B) On the application of a defendant, a Judge may order that a copy of a video record or a part of a video record to which subsection (4A) applies be given to the defendant’s lawyer before it is offered in evidence.

(4C) When considering an application under subsection (4B), the Judge must have regard to—

(a) whether the interests of justice require departure from the usual procedure under subsection (4A) in the particular case; and

(b) the nature of the evidence contained on the video record; and

(c) the ability of the defendant or his or her lawyer to view the video record under subsection (3) and to otherwise access the content of the video record, including by way of a transcript of the video record.

[7] The Evidence Regulations 2007, Regulation 20 to 20D, 24D and 32 also came into force in January 2017. The new Regulations indicate how restricted access to video records now is. The Regulations include; the limited places in which viewing of the video record can take place, the custody and return of any copy of the video record and that a Judge may impose conditions on a defendant’s lawyer, including restrictions on access.

[8] Previously, both Crown and defence counsel were bound by the same rules in respect of lawyers’ copies of video records. The two are now treated differently. In general, the police and Crown have very few limitations on the use of video records, whilst defence counsel may only use video records for express and specific purposes. The Crown take the view that the combined effect of the amendments to the Act and Regulations is that defence counsel are entitled to view a video record at premises either agreed or under the control of Crown or police or other premises directed by a Judge or Judicial officer but defence is not entitled to receive a copy. Defence will only receive a copy if directed by a Judge.

[9] At the pre-trial hearing on 29 June 2017, I made an order that the recorded interviews of the child complainants [complainant 2] and [complainant 1] be provided to counsel for the defence, to be used strictly in accordance with the provisions of the Evidence Regulations 2007 and the Public Defence Service EVI Policy. Due to the number of other pre-trials requiring to be dealt with, I indicated I would provide reasons for my ruling at a later date, which I now do.

Defence Submissions

[10] Mr Roy sought to argue that the provisions of s 106 of the Act, as amended, did not apply as both the alleged offending and the recorded interviews occurred prior to the amendment coming into force, being January 2017. Mr Roy’s argument relied upon a combination of s 25(g) and s 26 of the New Zealand Bill of Rights Act 1990, which relates to penalties and s 7 of the Interpretation Act 1999, which provides that an enactment does not have retrospective affect.

[11] I do not accept Mr Roy’s argument. In my view, it is clear that the amended provisions apply to this trial, notwithstanding the alleged offences and the recorded interviews took place prior to the amendment coming into force. The changes introduced by the amendment are procedural in nature and do not introduce a penalty. Further, there are no transition provisions in the amendment. Importantly, s 5(3) of the Act provides:

(3) This Act applies to all proceedings commenced before, on, or after the commencement of the section, except –

(a) The continuation of a hearing that commenced before the commencement of the section; and

(b) Any appeal, from or review, of a determination made at a hearing of that kind.

[12] In R v J the Court of Appeal, in reference to an earlier draft of legislative amendments to the Evidence Act and Evidence Regulations, agreed that:1

“The Regulations are procedural in nature and, like the EA itself, apply to all hearings that take place after their commencement (under s 5(3) the EA applies to all proceedings commenced before, on, or after the commencement of the Act, subject to specified circumstances that are not relevant here)”.

[13] The position was confirmed in R v Bain where the defendant was facing a re- trial and argued that the Evidence Act which had come into force between the original trial and the re-trial, should not apply.2

[11] ... there can be no doubt that where a change is procedural, the usual rule is that it applies to trials which take place after the change irrespective of when the offence is alleged to have occurred. And this is the usual approach taken by the courts to changes in evidential rules, see for instance R v Cann [1981]

1 R v J [2009] NZCA 529 at [9]

2 R v Bain [2008] NZCA 585

1 NZLR 210 (CA), T (CA 175/97) v Attorney General CA 175/97 27 August

1997 and Rodway v R [1990] HCA 19; (1990) 169 CLR 515.

[12] So the transitional provisions in the 2006 Act are, in their broad effect, entirely conventional. The 2006 Act is forward-looking; it applies only to hearings that commenced after the date it came into effect. There was no question of criminalising conduct that was not criminal when it occurred or retroactively increasing penalties (cf s 10A of the Crimes Act and ss 25(g) and

26(1) of the New Zealand Bill of Rights Act 1990).

[14] Mr Roy, in developing his statutory interpretation argument, sought to persuade me that the new sections simply remove an entitlement rather than create a prohibition and the Crown retain a discretion to provide the EVIs without the need for a court order. He argued further that the effect of the section is to provide recourse to the court to appeal the exercise of the Crown discretion and provide guidance to the court on dealing with applications appealing the prosecution’s decision if there has been a failure to provide disclosure.

[15] The Crown, on the other hand, submits that the onus is on defence counsel to establish why a copy of a video record should be disclosed as per the criteria set out in s 106(4)(C), a presumption against which is contained in s 106(4)(A). It is further submitted that there is clear procedure set out in s 106(4)(A) which creates a presumption against defence counsel receiving a copy of the EVI where there is a child complainant or a witness (including an adult complainant) in a sexual case or a violent case. Where that presumption applies, the Crown argue that the onus is on defence to demonstrate that the criteria set out in s 106(4)(C) has been met in order to displace that presumption.

[16] Accordingly, the Crown argues that, given the procedural requirements of the Evidence Act and the Regulations, the Crown is not in breach of its disclosure obligations by withholding a copy of the EVI pending judicial directions.

[17] As the application is before me, I do not need to resolve the issue of whether or not the Crown retains a discretion to provide the video record to defence counsel. However, I am bound to say that, applying the provisions of s 5 of the Interpretation Act 1999, in my view the Crown is entitled to adopt the view that it has, namely it does not retain a discretion and the defendant is required to make an application for an

order that a copy of the video record be given to the defendant’s lawyer before it is

offered in evidence.

Merits of the s 106 Application

[18] It follows the starting point adopted by s 106 of the Act is that a defendant’s lawyer is not entitled to be given a copy of the video record but it is available to be viewed and a transcript of the interview would be provided by way of disclosure.

[19] The application having been made, I need to consider, applying the factors set out in s 106(4)(C) whether the video record should be provided to defence counsel.

[20] The first matter to consider is whether the interests of justice require departure from the usual procedure in the particular case. Mr Roy argues that the video records are central to the prosecution and, accordingly, examination of them is vital to the preparation of a defence. He argues that a transcript of the video record is no substitute for viewing the video where it is not possible to “judge demeanour or body language and intonation”.

[21] He further he argued that the onerous nature of the requirement that the defendant and the defendant’s lawyer must view the video records at a premise either controlled or agreed by the Crown or police, or a premise directed by the court, demand co-ordination and availability of parties. Efforts by both defence and the police to meet to review the record have, so far, been unsuccessful due to the unavailability of either party at proposed viewing times. The two EVIs are 47 and 46 minutes long respectively. The defendant works full-time and has only been offered three hours in the middle of the day for viewing, which is not practicable unless he takes time off work.

[22] The Crown appropriately adopted a neutral position to the defence application.

[23] I was persuaded that, having regard to the considerations set out in s 106(4)(C) of the Act, it was appropriate to order that a copy of the video record in respect of both [complainant 2] and [complainant 1] be given to defence counsel. I am satisfied that proper preparation of the defence case, given the nature of the EVIs, will require careful analysis of the interviews. Such analysis would not be able to be adequately completed by a single viewing at a police station. Accordingly, this would require arrangements to be made for multiple visits to a police station by both Mr Roy and his client, which would be extremely difficult to co-ordinate, given the fact that the defendant was working and the limited viewing times offered during the day. This is particularly so, given the length of both of the EVIs.

[24] During the hearing, I was also advised that, in addition to the provisions of the Evidence Regulations which place obligations upon a defence counsel who receive a copy of the video record, the Public Defence Service, who employs Mr Roy, has its own EVI policy which was annexed to the submissions. The stated purpose of the policy is “to ensure that the Public Defence Service (PDS) has clear processes to meet its statutory obligations regarding how evidential video interviews (EVIs) disclosed by police are stored on PDS premises and who is entitled to view EVIs”. Accordingly, I am satisfied that the EVIs will be used appropriately.

Decision

[25] For the above reasons, having ordered that the evidence-in-chief of the two complainants is to be by way of playing of the evidential video interviews and all questioning is to take place via close circuit TV, I ordered that a copy of both complainants’ EVIs were to be given to counsel for the defence to be used strictly in terms of the provision of the Evidence Regulations and the PDS EVI policy. I further directed that the EVIs were to be returned to the Crown at the completion of the trial.

R J Earwaker

District Court Judge