Max John Beckham v R

• Jurisdiction: New Zealand
• Judge: O'Regan J
• Judgment Date: 07 July 2015
• Neutral Citation: [2015] NZSC 98
• Docket Number: SC 18/2013
• Court: Supreme Court
• Date: 07 July 2015

Between

Max John Beckham

Appellant

and

The Queen

Respondent

[2015] NZSC 98

Court:

Elias CJ, WilliamYoung, Glazebrook, Arnold and O'Regan JJ

SC 18/2013

IN THE SUPREME COURT OF NEW ZEALAND

Counsel:

S J Mount, A F Pilditch and A H H Choi for Appellant

D J Boldt, D G Johnstone and M J McKillop for Respondent

JUDGMENT OF THE COURT

A The application for leave to appeal against conviction is dismissed.

B The appeal against sentence is dismissed.

REASONS

(Given by O'Regan J)

Table of Contents

	Para No
Appeal and application for leave	[1]
Factual background	[9]
Allegations of breach of privilege dealt with by High Court and Court of Appeal	[45]
New allegations of breach of privilege	[48]
(a) Alleged breaches of solicitor/client privilege	[52]
(b) Alleged breaches of litigation privilege	[63]
Conclusion – new allegations of breaches of privilege	[100]
Evaluation of the facts: five propositions	[101]
Proposition 1	[102]
Proposition 2	[107]
Proposition 3	[111]
Proposition 4	[116]
Proposition 5	[119]
Conclusion on propositions relating to the facts	[123]
Alleged breaches of the Bill of Rights Act: two propositions	[124]
Proposition 6	[125]
Proposition 7	[131]
Remedies: two propositions	[148]
Proposition 8	[149]
Proposition 9	[151]
Result	[179]

Appeal and application for leave

1 The appellant, Mr Beckham, appeals against a decision of the Court of Appeal in which his appeal against conviction for serious drug offending and money laundering was dismissed. 1 A Crown appeal against sentence was allowed. His sentence was increased to a term of imprisonment of 18 years with a minimum period of imprisonment of nine years.

2 Mr Beckham sought leave to appeal to this Court on the basis that the Court of Appeal had wrongly stated and wrongly applied the test for sentence reduction as a remedy for police misconduct amounting to a breach of the New Zealand Bill of Rights Act 1990. Leave to appeal was granted. 2 The approved ground was:

Should the appellant have received a reduction in his sentence for the breach of his rights under the New Zealand Bill of Rights Act 1990?

3 The breach of the Bill of Rights Act on which the appeal was founded involved actions taken by the police that meant the police obtained access to recordings of calls made by Mr Beckham to his trial lawyer, Mr Murray Gibson, and in one instance, a call made by Mr Beckham to his son, Gary Beckham, who then handed the phone to a property lawyer acting for Mr Beckham, Mr Rick Palmer.

The focus of the appeal was therefore on breaches of legal advice privilege under s 54 Evidence Act 2006 (“solicitor/client privilege”). 3 We will explain the nature of the allegations of breach of solicitor/client privilege later.

4 Shortly before the scheduled hearing date for the appeal on 1 April 2014, counsel for Mr Beckham, Mr Mount, filed a memorandum seeking leave to file further submissions regarding allegations of additional breaches of privilege by the police. These allegations had not been made in the High Court or Court of Appeal. Mr Mount said these breaches had only come to light when he received a schedule prepared by police officers who had listened to recordings of calls made by Mr Beckham from prison to members of his family and others. This schedule recorded discussions during recorded telephone calls in which Mr Beckham had discussed trial strategy, actual and possible defence witnesses and possible defence evidence. The principal focus of the new submissions was, therefore, litigation privilege, rather than solicitor/client privilege.

5 At the hearing on 1 April 2014, the Court granted leave to Mr Beckham to file further written submissions dealing with potential breaches of litigation privilege and set a new timetable for submissions. The Court then adjourned the hearing. On the same day, the Court also ordered the Crown to provide any further schedule prepared by the police in respect of recordings of Mr Beckham's telephone calls from prison and to provide details of the police officers to whom any such schedule was provided or shown. Subsequently, the Court granted extensions of time for the filing of further submissions.

6 The police provided a further schedule to Mr Beckham's counsel in compliance with that order. That led to Mr Beckham filing a further application for leave to appeal. He sought leave to appeal against the decision of the Court of Appeal to dismiss his appeal against conviction. In effect, this intended appeal challenged the decisions made in the High Court on two occasions to refuse to stay the proceedings on the basis that the police action leading to breaches of the Bill of Rights Act would have made the trial an abuse of process. However, the argument

intended to be pursued in this Court relied not just on the breach of solicitor/client privilege but on the new allegations of breaches of litigation privilege.

7 The result of all this is that, at the hearing on 3 and 4 March 2015, the Court dealt with the appeal against sentence for which leave had been granted and the application for leave to appeal against conviction. The Court heard full argument on the issues relating to the proposed appeal against conviction.

8 Mr Mount advanced the case for Mr Beckham on the basis of nine propositions. We will address each of those propositions in turn. In order to give context to these propositions, it is necessary to set out the factual background in some detail. We will also set out and evaluate the new allegations of breaches of privilege before turning to Mr Mount's nine propositions.

Factual background

9 It is convenient to set out the factual background in the form of a chronology.

22 October 2008

10 Mr Beckham was arrested on 22 October 2008 and charged with a number of serious drug offences. He was remanded in custody. The arrest followed the termination of a police operation known as “Operation Jivaro”. The officer in charge of Operation Jivaro was Detective Sergeant Schmid.

10 August 2009

11 Following receipt by the police of information to the effect that Mr Beckham was planning to escape from custody and had made threats against Detective Sergeant Schmid, the police commenced a new investigation on 10 August 2009. The investigation was undertaken by the Special Investigations Group (SIG) and was led by Detective Sergeant Lunjevich. This operation was called “Operation Valley”. The investigation was undertaken by different officers from those involved in Operation Jivaro. 4

12 During the period Mr Beckham was on remand, he made calls on a regular basis from prison to nine numbers. These calls were made from public pay telephones in the prison, which are known by prisoners to be monitored. In particular, there is a notice to this effect prominently displayed above the telephone and there is a recorded message at the outset of each call advising that the call will be monitored. Prisoners are given a PIN number to identify the maker of the call. The monitoring system operated by the Department of Corrections in prisons requires that the numbers to which calls are made from the public phone must be approved by Corrections. In Mr Beckham's case, nine numbers were approved, including Mr Gibson's number. A recording of calls made from the public phones is stored as a digital file in the Corrections computer system, and in addition a file recording the date, time and the number to which the call was made is recorded. Provision is made for “exempt” numbers for calls to counsel and others attracting exempt status under s 114 Corrections Act 2004. Such calls are not recorded.

13 In the case of Mr Beckham, the telephone number of his lawyer had not been noted as an exempt number, so, contrary to normal practice, calls made by Mr Beckham from the public phone to Mr Gibson were recorded.

14 Calls to counsel may also be made by prisoners from an office telephone which is not monitored. Accordingly, no calls from the office telephone are recorded. However, access to this phone is not always available. A log is made of calls from the office telephone.

11 August 2009

15 On 11 August 2009, the New Zealand Customs Service issued a requisition to Corrections requiring it to produce Mr Beckham's call data for the period from 3 to

11 August 2009. This was made under s 161 of the Customs and Excise Act 1996, which empowers the chief executive of Customs to require a person to produce for investigation documents or records considered necessary or relevant to, among other things, an investigation under the Customs and Excise Act. Calls to Mr Gibson were not excluded from the requisition or from the call data provided by Corrections to Customs. This was contrary to the provision in s 162 of the Customs and Excise Act that communications between a lawyer and client for the purpose of obtaining legal advice are not to be disclosed under s 161.

17 August 2009

16 Detective Sergeant Lunjevich obtained a search warrant on 17 August 2009 from the District Court at Auckland in respect of, among other things, call data for Mr Beckham's calls from the public (monitored) phone in the prison in which Mr Beckham was being held on remand. Before applying for the warrant, Detective Sergeant Lunjevich had obtained from Corrections an information report which listed the approved telephone numbers. Detective Sergeant Lunjevich had made inquiries about these numbers and was aware that one of the numbers was Mr Gibson's number. Corrections had apparently been unaware of this and Detective Sergeant Lunjevich did not advise Corrections of this fact. Despite this knowledge, Detective Sergeant Lunjevich included all of the approved numbers including Mr Gibson's number in the application for a...