Who informed?

A recently reported case, although decided over a year ago, on 24 July 2003, illustrates how pressure of time can result in the Court of Appeal accepting unsoundly based submissions; R v De Bruin (2003) 20 CRNZ 782 (CA). The judgment was delivered the day after argument, because this was a pre-trial appeal and the trial was due to start within a short time.

The defence wanted to ask the police at trial who it was who had acted as a police informer, because grounds for attacking the credibility of that person may then have been apparent to the defence. It is only in rare cases that the identity of an informer will be a relevant matter, as for example where the informer may have planted evidence against the accused, or where the informer was in fact the offender and is seeking to pass blame on to the accused.Normally, if the police refuse to disclose information about an informer prior to trial, an application can be made by the defence for a court order for disclosure. Such an application will rely on the court’s inherent jurisdiction, in which case there is no right of appeal; it could not be made under s 344A of the Crimes Act 1961, which carries a right of appeal to the Court of Appeal, because until disclosure is made there is no evidence about which a ruling as to admissibility can be sought: R v Moore [2001] 2 NZLR 761; (2001) 18 CRNZ 519 (CA).

In De Bruin the Crown invited counsel for the defence to take the 344A approach, and in due course that was done. The invitation may have been disingenuous, because in the Court of Appeal the Crown changed its tack, arguing that:

"The essence of public interest immunity is that it protects from disclosure information which is otherwise relevant and admissible. The informer’s identity is admissible but protected."

Of course at the stage at which this application was made, the trial was imminent, and the question was whether evidence of the informer’s identity could be elicited at trial, not whether it should be disclosed to the defence prior to trial. The Crown was deflecting the Court from the issue of the admissibility of an answer that a question at trial would elicit, by suggesting there was no issue about admissibility for the court to rule on under s 344A..

The Crown’s submission was, essentially, an argument that the informer’s identity could not be the subject of a 344A application or an appeal pre-trial because the issue was not the admissibility of the evidence of the identity of the informer; rather, suggested the Crown, the issue was for the trial judge, and was whether public interest immunity should be declined. That is, it was a matter for the trial judge in the exercise of the inherent power to prevent an abuse of process.

Unfortunately, the Court accepted this submission. However, the submission was flawed. If the identity of the informer was "protected", it was inadmissible at trial; the real Crown submission was that although the informer’s identity was relevant, it should be ruled inadmissible. Indeed, in apparently conceding relevance (by accepting admissibility), the Crown could have been taken to be admitting that disclosure would assist the defence at trial.

If correct, the Crown’s submission would mean that no ruling about evidence that was sought to be excluded under the court’s inherent power to prevent an abuse of process would be a ruling about admissibility, because it would be a ruling about the discretionary exclusion of admissible evidence. In fact, such issues are routinely dealt with as admissibility issues and rulings are the subject of appeals. The usual construction of the legislation involves using the concept of admissibility in a broad sense: if the jury cannot learn of evidence, that is because it is "inadmissible", even though, technically, it is "admissible but excluded pursuant to the court’s inherent jurisdiction."

Analysing decisions into admissibility decisions, and decisions about the discretionary exclusion of admissible evidence, is useful in the context of determining the procedural rules concerning the operation of the discretion, but such analysis is not appropriate as an aid to statutory interpretation of s 344A.If the defence had used s 344A itself, applying for an order that questions it proposed to ask the appropriate witness (possibly the officer in charge of the case) would yield admissible evidence, the position would have been clear.

Another aspect of De Bruin is objectionable, although the Court can hardly be criticised for not anticipating the way the House of Lords would develop the law in R v H [2004] UKHL 3 (5 February 2004). In De Bruin it was presumed that the information could be withheld from the defence, subject to the defence satisfying the court that disclosure was necessary in the interests of trial fairness. In contrast, R v H held that full disclosure is to be presumed to be appropriate, and it is for the Crown to satisfy the court that information should be withheld; furthermore, if withholding of the evidence is permitted, the question then is whether the result would be a fair trial for the accused. If there would be unfairness to the accused, disclosure must be ordered even though the prosecution may then decide not to proceed with the case.

See also: Mathias, "Public interest immunity and fairness to the accused" [2004] NZLJ 301.