R v Walton [2017] NZDC 20822 (15 September 2017)

Last Updated: 16 August 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 APPELLANT(S)/RESPONDENT(S)/ACCUSED/DEFENDANT(S) PROHIBITED BY S 201 OF THE CRIMINAL PROCEDURE ACT 2011.

IN THE DISTRICT COURT AT MANUKAU

CRI-2016-055-000372

[2017] NZDC 20822

THE QUEEN

v

[TOBY WALTON]

Hearing:	15 September 2017
Appearances:	Z Hamill for the Crown E Faleauto Johnson for the Defendant J N Burns for the Chief Executive of the Ministry for Vulnerable Children, Oranga Tamariki
Judgment:	15 September 2017

ORAL JUDGMENT OF JUDGE G T WINTER

[1] Mr Faleauto Johnston is the barrister representing Mr [Toby Walton], who is to face charges on allegations of sexual offending. The trial, which the Crown are keen to preserve, is set to start now on 24 October 2017.

[2] I am giving an oral decision this morning under urgency. Let me explain that further. This issue has been on foot since 29 December, where Judge Andrée Wiltens directed that any pre-trial applications were to be filed by 5.00 pm on 7 July, with submissions by 15 August. [Judge Andrée Wiltens] also directed that any pre-trials were to be heard on 23 August at 10.00 am.

R v [TOBY WALTON] [2017] NZDC 20822 [15 September 2017]

[3] On 23 August before Judge McNaughton, Mr [Walton’s] counsel appeared and, putting it bluntly, was not prepared for that appearance. Accordingly, [Judge] McNaughton made directions for any non-party application to be filed, and allocated today, 15 September, as a hearing date.

[4] It was, accordingly, of some surprise to the Court for counsel to appear and file from the floor of the Court his purported application for non-party disclosure. I say “surprise” because the application had not been served on the Crown or the Ministry until 20 minutes before the Court was due to sit, the practical effect of that, of course, being that the Ministry for Vulnerable Children, Oranga Tamariki did not have standing in the matter until some 20 minutes ago. I say that the “purported” application was filed because its form and content is misconstrued by counsel.

[5] Despite those practical difficulties, learned counsel Ms Burns appearing on behalf of the Ministry has used her initiative to advance things, and over four days has inspected 1170 documents and has those available in Court today. I have heard from Ms Burns, who is a counsel I respect, and in her view the underlying principles of the application indicate to her that this is no more than a fishing exercise. I have heard from learned counsel for the Crown, who urges the Court to appoint an amicus to inspect the documents and determine their relevance.

[6] The statutory framework governing non-party disclosure is set out between ss 24 and 29 of the Act. Section 24 provides that once a defendant is committed for trial, he or she may apply to the Court for an order granting a hearing to determine whether information that is held by a person or agency other than the prosecutor should be disclosed to the defendant. That section sets out what the application must contain, and the requirement to give a copy of the application to the prosecutor, who is allowed a reasonable time to make written submissions. The Court may also seek submissions from the agency said to hold the information.

[7] The Court may then grant the application for a hearing if it is satisfied that the information sought is likely to be held by the agency and it appears to be relevant. The only matter for determination at this stage is whether the Court should grant a

non-party disclosure hearing. If such a hearing is granted, the Act contains certain mandatory requirements for service of the summons.

[8] Section 27 establishes the procedure relating to a non-party disclosure hearing. Under s 27(1), the prosecutor, the defendant and the person or agency who the defendant alleges holds the information sought by the defendant may call evidence or make submissions. Under s 27(2), the Judge may examine the information that is subject to the application.

[9] Section 29 provides for the determination of the Court following the non-party disclosure hearing.

29 Determination of court following non-party disclosure hearing

(1) After the hearing under section 27, the Judge may order the person or agency who holds the information to disclose it, or part of it, to the defendant, subject to any conditions imposed under subsection (4), if the Judge is satisfied that—

• (a) the information or part of it is relevant; and
  
• (b) the disclosure of the information or part of it is necessary in the public interest.
  

(2) The Judge may refuse to order disclosure of the information, or part of it, if the Judge is satisfied that—

• (a) any of the reasons described in section 16 or 18 for which information could be withheld apply to the information; or
  
• (b) the application of section 17 requires that the information not be disclosed.
  

(3) In addition to subsections (1) and (2), in determining whether to order the disclosure of the information or part of the information to the defendant, the Judge must take into account—

• (a) the extent to which the information will assist the defendant to properly defend the charge; and
  
• (b) the probative value of the information; and
  
• (c) the nature and extent of any reasonable expectation of privacy with respect to the information, including any expectation of the person to whom the information relates; and
  
• (d) the effect of the determination on the fairness of the trial or hearing process.

(4) If the Judge orders the disclosure of the information or part of the information to the defendant, the Judge may impose conditions on the disclosure to protect the public interest and, to the greatest extent possible, any privacy interests of any person to whom the information relates, including, for example, any of the following conditions:

• (a) that the information be edited as directed by the Judge:
  
• (b) that a copy of the information, rather than the original, be disclosed:
  
• (c) that the defendant not disclose the information to any other person, except with the approval of the court:
  
• (d) that the information be disclosed only to counsel for the defendant and not to the defendant himself or herself:
  
• (e) that no copies of the information be made, or that restrictions be imposed on the number of copies of the information that may be made:
  
• (f) the person’s address, telephone number, or place of employment, not be disclosed.
  

(5) If any information is disclosed under this section to the defendant’s counsel and, before the proceedings are determined, that counsel ceases to act for the defendant, the counsel must return the information and any copies of it in the possession of the defendant or the defendant’s counsel to the court or Registrar, together with a declaration that those copies have been returned.

(6) If any person fails to comply with subsection (5) without reasonable excuse the court may, on its own motion or on the application of the prosecutor, deal with the failure as a contempt of court.

[10] I am left, by virtue of counsel’s delay, with having to adopt a very pragmatic approach. By that, I mean on the one hand I must ensure the absolute protection of the obvious privacy interests involved, and on the other I must ensure that this very serious trial proceeds, and ensure the trial date of 24 October is maintained. The other practical reality is that it took experienced counsel four days to examine some 1170 documents determining their relevance.

[11] Bearing in mind all of these features, I have determined that this is a special circumstances situation where s 27(3) of the Act applies. The provisions of s 27(3) say that the Judge may, if he or she considers that there are special circumstances that warrant it, and on such conditions as he or she directs, permit the prosecutor and, if appropriate, the defendant to view the information for the purposes of arguing the

application, and in order to assist the Court in determining whether the information should be disclosed.

[12] Because of the practical realities I have described in this very brief judgment, I am driven to that course of application. The information which is the subject of the application is to be retained solely by the Crown. It is to be examined solely for the purpose of arguing the application. It may be disclosed to associated counsel from

the Crown office, but only those tasked specifically to assist in the preparation of this particular hearing. None of the material is to be copied or retained, and the material is to be returned by the Crown to the Ministry at the conclusion of this process.

[13] The defence will be entitled to inspect the documents only under respect for the privacy conditions contained in this order, and at the absolute discretion of the Crown.

[14] Any further disclosure of the documents to any other person who may be a party to the non-party disclosure hearing is to be determined by a District Court Judge.

[15] I make it clear that the defendant is not to have access to this information.

ADDENDUM:

[16] The information to be disclosed will relate only to the allegations of sexual offending by [Toby Walton] against the complainants, as well as any information which relates to allegations of sexual offending by any other men against the complainants. No other information detailed in the purported application under s 24 is to be disclosed.

[17] Leave is granted to the Crown and the Ministry and the defence to return to me for any further directions required to facilitate the urgent nature of the process.

G T Winter

District Court Judge