Ministry of Business, Innovation and Employment v Centreport Ltd

• Jurisdiction: New Zealand
• Judgment Date: 06 November 2014
• Neutral Citation: [2014] NZHC 2751
• Date: 06 November 2014
• Docket Number: CRI-2014-485-000045
• Court: High Court

Between

MINISTRY OF BUSINESS, INNOVATION AND EMPLOYMENT

and

CENTREPORT LIMITED

[2014] NZHC 2751

CRI-2014-485-000045

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

Appeal against the granting in the District Court (DC) of mid-trial disclosure orders — appellant was prosecuting respondent in relation to a workplace accident at a port in which one of the respondent's employees was killed — respondent had requested disclosure of communications between prosecution expert witnesses and between those witnesses and prosecuting counsel — DC ordered disclosure of communications between expert witnesses — whether the information was privileged under 16(1)(c) Criminal Disclosure Act 2008 (CDA) (prosecutor may withhold information…) — whether the evidence prepared by expert witnesses was prepared for the Court or to assist the prosecutor — whether the terms of s16(1)(c) impliedly excluded litigation privilege under s56 Evidence Act 2006 (litigation privilege.

Counsel::

D R La Hood and G La Hood for Apellant

K P McDonald QC and M Quigg for Respondent

Background

1 This appeal relates to mid-trial disclosure orders made by Judge Hastings in the District Court in Wellington under s 30 of the Criminal Disclosure Act 2008. It raises squarely the ambit of the s 16 privilege exceptions to a prosecuting authority's disclosure obligations under that Act. The respondent sought, and was granted, orders requiring disclosure of information the prosecution/appellant considers it is entitled to withhold under s 16. The prosecution now appeals.

2 The background facts are these. The appellant is the Ministry of Business Innovation and Employment (MBIE). The respondent is Centreport Limited, the owner of the Port of Wellington. MBIE is prosecuting Centreport in relation to a workplace accident at the port in which one of Centreport's employees was tragically killed. MBIE alleges that Centreport failed to take all practical steps to ensure the safety of employees while at work in accordance with the requirements of s 6 of the Health and Safety in Employment Act 1992.

3 During the course of trial, an issue arose in relation to the adequacy of MBIE's disclosure under the Criminal Disclosure Act. Centreport wanted access to communications of and between prosecution witnesses, and communications between those witnesses and prosecuting counsel. Centreport argued that the information sought was relevant, disclosable and should have been disclosed prior to trial. MBIE countered that the information was subject to legal professional privilege. The matter was argued and the learned trial Judge issued an immediate ruling requiring disclosure of some, but not all of the information. MBIE then sought leave to appeal in the High Court, and (as evidence and submissions at trial had been completed) the learned trial Judge agreed to delay issuing his final judgment in the matter until after disposal of the appeal.

4 The information in respect of which the order for disclosure was sought was described by the learned Judge as fitting four categories:

• (a) any statement by Dr Callahan, a workplace safety specialist called as an expert witness for the prosecution;

• (b) witness to witness statements including those between Mr Birse (both an MBIE health and safety inspector and the informant in this proceeding) and Dr Callahan;

• (c) communications between Mr G La Hood (prosecuting counsel at trial) and MBIE witnesses including Dr Callahan;

• (d) communications with witnesses (including expert witnesses) the prosecution decided not to call.

5 Understandably, the trial came to focus on whether the systems and procedures for workplace safety in place at the port represented the taking of “all reasonable steps” to ensure the safety of workers. According to counsel, the evidence of workplace safety experts as to the appropriate standard in that regard thus became a dominant issue at trial. Centreport was particularly interested in information reflecting the process by which the evidence of Dr Callahan was developed in consultation with prosecuting counsel. This was to some extent reflected in the foregoing category descriptions. Information relating to the evidence of the informant Mr Birse was also important to Centreport because earlier in the trial, the learned Judge had ruled that, although he was the informant, Mr Birse nonetheless also qualified as an expert. He could therefore give opinion evidence on the dominant issue in the case.

6 It seems that an issue arose in the trial as to Mr Birse's objectivity in his role as an expert. It is unnecessary for me to go into just how it arose. It is sufficient for me to note that Centreport felt well justified in challenging Mr Birse in this way. It was in this context that Centreport developed its keen interest in how the evidence of the two experts, Dr Callahan and Mr Birse evolved, the content of communications between them, and between the experts and prosecuting counsel.

7 On 24 June, Ronald Young J granted leave to appeal the learned District Court Judge's interlocutory rulings, so I need only address the substantive appeal.

A brief summary of the legislation

8 Before turning to the ruling under appeal, it is useful to set out the relevant provisions of the Criminal Disclosure Act. The regime was enacted to promote fair trials. It strives to avoid trials where the defence is outgunned or ambushed by a prosecution that chooses for strategic reasons to keep its evidential cards close to its chest. So full disclosure is promoted unless there is a good reason for non-disclosure.

9 The purpose of the Act is set out in s 3 as follows:

• (1) The purpose of this Act is to promote fair, effective, and efficient disclosure of relevant information between the prosecution and the defence, and by non-parties, for the purposes of criminal proceedings.

10 It will be seen that the Act signals at an early stage, the important threshold requirement of relevance. Section 8 sets out its meaning:

In this Act, relevant, in relation to information or an exhibit, means information or an exhibit, as the case may be, that tends to support or rebut, or has a material bearing on, the case against the defendant.

11 The basic scheme of the Act insofar as it relates to the present case is contained in ss 12 to 16 of the Act. Section 12 provides for initial disclosure and applies at the commencement of criminal proceedings or, “as soon as practicable” thereafter. 1 Following the s 12 initial disclosure phase, there is a further “full disclosure” phase the obligations for which are contained in s 13 of the Act. At that point the prosecuting agency must disclose “any relevant information”, including but not limited to the “standard information” described in subsection (3). In addition, the prosecutor must list any information that is withheld including the reason for so withholding and (if requested) the grounds in support of such reasons. 2 Subsections (5) and (6) make it clear that disclosure is an ongoing obligation and applies throughout the course of the relevant criminal proceedings.

12 Relevant provisions of s 13 are as follows:

• (1) The prosecutor must disclose to the defendant the information described in subsection (2) as soon as is reasonably practicable after a defendant has pleaded not guilty.

• (2) The information referred to in subsection (1) is—

  • (a) any relevant information, including, without limitation, the information ( standard information) described in subsection (3); and

  • (b) a list of any relevant information that the prosecutor refuses under section 15, 16, 17, or 18 to disclose to the defendant together with—

    • (i) the reason for the refusal; and

    • (ii) if the defendant so requests, the grounds in support of that reason, unless the giving of those grounds would itself prejudice the interests protected by

    • section 16, 17, or 18 and (in the case of the interests protected by section 18) there is no overriding public interest.

• (3) The standard information referred to in subsection (2)(a) is—

  • (a) a copy of any statement made by a prosecution witness; and

  • (b) a copy of any brief of evidence that has been prepared in relation to a prosecution witness; and

  • (c) the name and, if disclosure is authorised under section 17, the address of any person interviewed by the prosecutor who gave relevant information and whom the prosecutor does not intend to call as a witness; and—

    • (i) any written account of the interview, whether signed or unsigned, and any other record of the interview; and

    • (ii) any statement made to the prosecutor by the person; and

  • (d) any convictions of a prosecution witness that are known to the prosecutor and that may affect the credibility of that witness; and

  • (e) a list of all exhibits that the prosecutor proposes to have introduced as evidence as part of the case for the prosecution; and

  • (f) a list of all relevant exhibits in the possession of the prosecutor that the prosecutor does not propose to have introduced as evidence; and

  • (g) a copy of any information supplied to the prosecutor in connection with the case by any person or persons whom the prosecutor proposes to call to give evidence as an expert witness or witnesses; and

  • (h) a copy of any relevant information supplied to the prosecutor by a person or persons whom the prosecutor considered calling to give evidence as an expert witness or witnesses, but elected not to do so.

13 Section 14 provides a specific process by which a defendant may request further particular information of the prosecutor. The prosecutor must disclose that information unless it is irrelevant, there is a valid reason under the Act to withhold it, or the request is otherwise frivolous and vexatious. Any refusal to disclose must be accompanied by reasons (and grounds in support of those reasons where requested provided the grounds are not in themselves...