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R v King HC Hamilton CRI-2004-019-3825 [2005] NZHC 1204; [2007] 2 NZLR 137; (2005) 23 CRNZ 201 (14 October 2005)

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IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

_{CRI-2004-019-3825}

THE QUEEN

v

CHRISTINE HELEN KING

Hearing: 7 October 2005 (Heard at Hamilton)

Appearances: L Dunn for Crown

T Sutcliffe for Accused

Judgment: 14 October 2005

_{JUDGMENT OF ASHER J}

Solicitors:

Almao Douch, PO Box 19173, Hamilton

T Sutcliffe, Barrister, PO Box 19342, Hamilton

R V KING HC HAM CRI-2004-019-3825 14 October 2005

[1] Christine Helen King is due to stand trial for the murder of Wayne Maurice Roycroft. The trial is set down for a three-week fixture commencing on Monday 7 November 2005.

[2] It is alleged that Ms King murdered her husband, Wayne Roycroft, on

19 November 1988. It is the Crown case that he was poisoned by her and that she then buried his body. The Crown claims that at a later date, with the assistance of Paul Baxendale, she dug up his body and disposed of it.

[3] Mr Baxendale is to be called as a witness for the Crown. His evidence relates to the digging up of the body, and what Ms King allegedly told him about the circumstances of her husband’s death.

The application

[4] The application was heard on Friday 7 October 2005 in a truncated manner because of the involvement of Defence counsel in another trial. A further issue was raised by the Defence late in argument and the Crown filed their submissions on this point on 11 October 2005.

[5] The accused has sought an order directing that certain material that may relate to the credibility of Mr Baxendale be disclosed by the Crown to the accused through her counsel. It is stated that the accused’s right to a fair trial may be prejudiced by non-disclosure, and that the interests of justice require that the material be disclosed.

[6] The order is sought for disclosure of the following material:

1. All notebook entries, jobsheets or records of all discussions entered into by the New Zealand Police with the proposed Crown witness Paul Graham Baxendale with respect to his being granted immunity and/or any inducement of any kind offered to him to give evidence at the trial of Christine Helen King for Murder, including records of discussions entered into at any time prior to 2002 to the present;

2. All records of all communications between Officers of the New

Zealand Police as to the possibility of Paul Graham Baxendale being

granted immunity and/or any inducement of any kind offered to him to give evidence at the trial of Christine Helen King for Murder;

3. Records of all communications made between the Crown Solicitor, the Crown Law Office and the Solicitor-General with respect to the decision to grant immunity to the witness Paul Graham Baxendale which may be relevant to the issue of credibility to the witness Paul Graham Baxendale;

4. A complete list of all previous convictions of the witness Paul

Graham Baxendale; and

5. All further material that may be in any way relevant to the credibility of the witness Paul Graham Baxendale.

[7] The Crown in their written submissions advise that disclosure has been made to Defence counsel in respect of all documents except those referred to in paragraph 3. It was stated that the Defence took no issue with this, and I did not understand Defence counsel to contest this, or to seek any orders from me in relation to that part of the application. Further, the Crown accepts an obligation to disclose all primary information relevant to the cross-examination of Mr Baxendale. In particular, it is accepted that any factual material that would affect the credibility of Mr Baxendale, so as to show that all or part of his evidence might be untrue, must be given to the Defence.

[8] The Crown, however, takes issue with the assertion that it can be compelled to discover the material referred to in paragraph 3; namely, all communications which may be relevant to the issue of the credibility of Mr Baxendale made between the Crown Solicitor, the Crown Law Office and the Solicitor-General with respect to the decision to grant immunity to Mr Baxendale. While it accepts the obligation to provide information relevant to the issue of credibility of Mr Baxendale and says that it has done so, it objects to providing any documents that were created in the course of deciding whether to grant immunity. It says that those communications fall under the ambit of solicitor/client privilege and that, therefore, disclosure cannot be compelled, even if the documents are relevant to credibility. It is asserted that any factual material helpful to the defence has been disclosed.

The issue

[9] The issue that squarely arises is whether communications between the Police, the Crown Solicitor’s office, the Crown Law Office or the Solicitor-General in relation to the granting of immunity, are disclosable in criminal proceedings if they contain relevant information even if they are communications protected by legal professional privilege. The further issue raised by the Defence towards the end of submissions is whether the documents relating to immunity are, in any event, protected by legal professional privilege. I received submissions from the Crown on the point this week.

Submissions

[10] The Crown, which filed its submissions first, relies on the decision of Cornelius v Commissioner of Police [1998] 3 NZLR 373 at 381. In that case the Defendant sought judicial review of a District Court decision relating to disclosure. While commenting that the process of the matter coming before her was unsatisfactory, Goddard J proceeded to consider the issue of disclosure. In particular, she considered whether documents relating to the plaintiff concerning the granting of immunity from prosecution were discoverable. She held that they were not. She stated at pg 11:

In so far as the witness immunity granted by the Solicitor-General is concerned, all communications concerning that are clearly privileged. Those communications apparently consist of: an internal police report by Constable Cronin to Inspector Holloway; a communication by Inspector Holloway to the Crown Solicitor at New Plymouth seeking the Solicitor-General’s consideration of a grant of immunity; (presumably) some communication between the Crown Solicitor at New Plymouth and the Crown Law Office in Wellington; (presumably) an opinion prepared for the Solicitor-General by the Crown Law Office; and finally the immunity document itself, which has already been disclosed. All of those documents (existing or otherwise) leading to the grant of that immunity, constitute communications between the police and their legal advisers (the Crown) or are in the nature of legal opinion and are therefore subject to legal privilege. The criteria relevant to the granting of a witness immunity by the Solicitor-General are contained in the “Prosecution Guidelines”, which is a public document (App B: NZLC PP28, “Criminal Prosecutions” (1997)).

[11] The Crown relies on this statement and submits that the documents are not discoverable.

[12] The Defence relies on s 25 of the New Zealand Bill of Rights Act 1990 and the common law right to a fair trial and public hearing and their right to present a defence. It relies on the right to examine the witnesses for the prosecution and to obtain the attendance and examination of witnesses for the Defence under the same conditions as the prosecution. Reference was made to the fundamental right of a party to have the evidence against that party given in Court and to be subject to cross-examination. Reference was also made to the specific rights of disclosure under the Official Information Act 1982, and the well established right to disclosure from the Police referred to in Commission of Police v Ombudsman [1988] 1 NZLR

385 (CA).

[13] Reliance was also placed on R v Chignell [1991] 2 NZLR 257. Although this case did not concern a claim to privilege, information concerning the basis on which a witness was rewarded for getting immunity was held to be material that should have been disclosed. It is clear from that case that the terms of the grant of any immunity should be discoverable. The Crown does not contest this, and has discovered the grant of immunity.

[14] Counsel for the Defence sought to distinguish Cornelius, first, on the basis that it is not authority for a proposition that communications between the Police and/or the Crown Solicitor and the witness himself is the subject of privilege. This is undoubtedly so, but I do not understand the Crown to resist that proposition.

[15] Further, I have been invited to decline to follow the statement about privilege in Cornelius. It is submitted that it is inconsistent with the principles of criminal disclosure for such information to be withheld under the cloak of privilege. It is said that the need for the accused to have a fair trial, and the general public interest in being able to scrutinise grants of immunity, warrant an exception to privilege.

[16] The Defence also placed reliance on the decision of R v Taffs (No. 1) (1990)

6 CRNZ 262. In that case Tompkins J appeared to make an exception to the usual application of the doctrine of privilege in criminal proceedings, where the documents may enable an accused to establish his innocence or resist Crown allegations. He stated at page 264:

However, I do not consider that [the claim to privilege] is necessarily the end of the matter. If the documents contained information which, if disclosed to this Court may enable the accused either to establish his innocence or to resist an allegation made by the Crown, then it may well be that the Court should require they be produced even though they are not required to be produced under the provisions of the Act: R v Barton [1972] 2 All ER 1192. Mr Gresson for the Crown properly accepted this proposition. For that reason it seemed to me to be appropriate that I should examine the documents to see whether they did contain information of that kind.

The documents in question

[17] I sought information as to the nature of the documents in question. Crown counsel has summarised them as follows:

A Police report to Police Legal, a covering referral or substantive report from Police Legal to Crown Law Office, a report from the Crown Solicitor office, and legal opinions within Crown Law Office to the Solicitor General. With these documents is correspondence between Crown Law Office, Police and Crown Solicitor’s office for the purpose of gaining further information if required.

[18] In this respect the documents are similar to those summarised by Goddard J

in Cornelius v Commission of Police at p 11.

The nature of the privilege claimed

[19] It is necessary to consider the nature of the privilege claimed. No distinction has been made in submissions between what is called legal advice privilege, and litigation privilege. Different rationales have been expressed for the two concepts. Legal advice privilege has as its genesis the concept that the confidentiality of communications between a legal practitioner and client for the purposes of legal advice must be protected. Professional assistance can only be given effectively by lawyers if their clients can fully and freely communicate to them all relevant material, in the knowledge that the confidentiality of that material is certain.

[20] Litigation privilege arises when litigation is in prospect or underway. During that time any communications between a client and the client’s solicitor or agent or between one of them and a third party will be privileged if they have come into existence for the sole or dominant purpose of either giving or getting advice in regard to the litigation or collecting evidence for use in the litigation. This privilege

rests on the concept that a potential defendant should be able to seek evidence and prepare the case without being obliged to disclose the material created to the opponent.

[21] The two types of privilege overlap. Most documents created in a law office in preparation for litigation will come under both categories. It is sometimes said that litigation privilege is better regarded as just an addition to legal advice privilege, being a privilege that extends in the context of litigation to communications with third parties. It is stated in Phipson on Evidence, 15^th Ed para 20-06):

In order for litigation privilege to apply, there must be a confidential communication between client or lawyer or agent, or between one of these and a third party made for the dominant purpose of use in litigation, that is, to seek or provide information or evidence to be used in or in connection with litigation in which the client is or may become a party and when litigation is either in process or reasonably in prospect.

The precise definition of litigation privilege is open to debate. Whilst it is treated here under the heading “litigation privilege” on the basis that it protects communications in furtherance of litigation, such communications as between client and lawyer will in any event be protected by legal advice privilege. It has been said that this head of privilege is properly referred to under the heading “communications with third parties” as it is only in such circumstances that the head of privilege adds to legal advice privilege.

[22] There have been many views expressed on the extent of litigation privilege. For the purposes of this application it is sufficient to note that the Court of Appeal has stated that litigation privilege is a branch of legal professional privilege and is clearly part of our law: Ophthalmological Society of New Zealand v Commerce Commission [2003] NZCA 26; [2003] 2 NZLR 145 para [31].

Are the documents privileged?

[23] Counsel in their submissions have not sought to distinguish between the two types of privilege. In fact, a number of the documents probably attract both types of privilege. The Police as a client may be seeking advice in some of the documents. There will be solicitor client communications between the Police and the Crown solicitor or Crown law, and there will be advice given. The documents fall naturally also under the category of litigation privilege. The process of deciding whether immunity should be given essentially has as its dominant purpose the securing of

evidence for litigation. The reason for the grant of immunity is generally so that a witness will give evidence that would otherwise be in itself privileged by the privilege against self-incrimination. It provides the Crown with a means of obtaining evidence that would be otherwise unavailable in criminal proceedings.

[24] The process of the Solicitor General deciding to grant immunity is different from the usual processes of preparation for trial. It involves the exercise of a power. This has been described as a prerogative power administered by a law officer; R v Weightman [1978] 1 NZLR, 79, 81. The power to grant immunity derives from the Attorney General’s statutory powers to stay prosecutions: J McGrath QC, “Principles for Sharing Law Office Power – the role of the New Zealand Solicitor General”

18 NZULR 197, at p 209. The Police when they communicate on the issue of immunity are seeking the exercise of a power. The Crown Law Office in advising the Solicitor General is advising on the exercise of that power. Nevertheless, the purpose of the exercise is to make a decision on an issue relating to the litigation. The lead up to the power being exercised presumably involves a legal and factual analysis that is dominated by the purpose of obtaining the best evidence for litigation, balanced against whether in all the circumstances a grant of immunity is in the public interest.

[25] All the documents that have been referred to as relating to the grant of immunity appear to me to come within the broad ambit of legal professional privilege. They would not have been created but for the litigation. Many will also involve the giving of advice and the creation of legal opinion. For these reasons I am satisfied that the documents in question, save for the actual terms of the grant of immunity, are privileged.

[26] Goddard J in Cornelius v Commission of Police held that the material generated by the Police, a Crown Solicitor’s Office and the Crown Law Office in Wellington in granting immunity is privileged. I respectfully agree with her decision.

Are privileged documents relating to Crown immunity nevertheless discoverable in criminal proceedings?

[27] It is quite clear that legal privilege can be claimed in criminal proceedings in the same way as it can be claimed in civil proceedings. This was a specific issue considered by the House of Lords in R v Derby Magistrates’ Court, ex parte B [1995] UKHL 18; [1996] AC 487. The decision is of importance in New Zealand, as it was specifically considered and followed at length in the New Zealand Privy Council decision of B v Auckland District Law Society [2003] UKPC 38; [2004] 1 NZLR 326.

[28] In R v Derby Magistrates’ Court, ex parte B an application was made to obtain privileged documents in criminal proceedings. The application was firmly rejected and it was stated at page 503 by Lord Taylor:

... the privilege is the same whether the documents are sought for the purpose of civil or criminal proceedings, and whether by the prosecution or the defence and ... a refusal of the Crown to waive this privilege, for whatever reason, or for no reason, cannot be questioned or investigated by the Court.

[29] This principle was expressly referred to in B v Auckland District Law Society

at para [444]:

Secondly, the privilege is the same whether the documents are sought for the purpose of civil or criminal proceedings and whether by the prosecution or the defence.

[30] It was emphasised in B v Auckland District Law Society, following R v Derby Magistrates’ Court, ex parte B that legal professional privilege is a doctrine fundamental to the administration of justice. It is not a legal principle to be balanced against other legal principles.

[31] In R v Derby Magistrates’ Court, ex parte B the origins of the doctrine of privilege were traced back to the 16^th century. Its modern articulation was stated by Lord Brougham LC in Grenough v Gaskell [1833] EngR 333; (1833) 1 My & K 98, [1824-34] All ER Rep 767 and Bolton v Liverpool Corp [1833] EngR 409; (1833) My & K 88, 39 ER 614. A client must be able to consult a lawyer in confidence, otherwise the client might not be able to disclose all that is necessary to get proper, accurate legal advice. To be able to

obtain adequate advice, full disclosure to the lawyer is needed, and the client must be sure that what is told the lawyer in confidence will never be revealed without consent.

[32] In this respect legal professional privilege is much more than an ordinary rule of evidence. It is a principle fundamental to the way in which legal advice is given in common law countries. There is no weighing process to be carried out between the public interest and legal professional privilege. The balancing has already been carried out in setting the boundaries of legal professional privilege. It was stated by McMullin J in R v Ulgee [1982] 1 NZLR 561 at 576:

It is not now a question of weighing the public interest in each case to see whether the rule [of legal professional privilege] should be applied. Whether the principle operates as a bar to the emergence of the truth and to the overall public detriment is not now a relevant legal consideration.

[33] The paramouncy of legal professional privilege over any public interest claims has also been recognised in Australia (Carter v Northmore Hale Davy & Leake (1995) 183 CLR 121 and Waterford v Commonwealth of Australia (1987) 163

CLR 54 at pages 64-65).

[34] It appears that in Canada the Courts do conduct a balancing exercise by reference to the facts of the particular case. In Smith v James [1999] 1 SCR 455, para [53] R v Derby Magistrates’ Court, ex parte B was not followed, and it was held that solicitor/client privilege must yield to the right of accused persons to fully defend themselves (para [52]). This different approach was expressly noted in B v Auckland District Law Society. It was held that the New Zealand Courts had not adopted that approach, but, rather, have applied the established principles of English law. For that reason the English law of privilege was applied in New Zealand.

[35] Thus, if legal professional privilege applies to the documents in question, no order can be made that the documents be disclosed.

[36] It is clear from the position taken in B v Auckland District Law Society (paras [50] – [56]) that a Court should not carry out the sort of balancing exercise referred to in R v Taffs (No. 1). It was stated specifically in R v Derby Magistrates’

Court, ex parte B, para [503], that it is not appropriate for a Court to investigate a claim to privilege. The balancing exercise has already been carried out in setting the boundaries for legal professional privilege. It is not the Court’s function to then carry out its own further balancing exercise.

[37] The R v Taffs (No. 1) statement on privilege was made without argument on the point, and in reliance on an English decision of R v Barton [1972] 2 All ER 1192. In R v Barton it had been held that based on the rules of natural justice, documents that might help establish the innocence of a person, or help that person, or resist an allegation made by the Crown had to be made available to the Defence. This was a similar rationale to that put forward by the applicant in this case.

[38] However, in R v Derby Magistrates’ Court, ex parte B, R v Barton was held to be wrongly decided. It was noted by the House of Lords that the decision was given as an interlocutory ruling in the course of a criminal trial on circuit (p.502). The decision was overruled as was another English decision R v Ataou [1988] QB

798, [1988] 2 All ER 321. In R v Ataou it had been held that in a criminal trial there could be a balancing exercise where the public interest in securing that all relevant and admissible evidence was made available should be weighed against public interest in maintaining legal professional privilege.

[39] Thus, the English authority relied on in R v Taffs (No. 1), is no longer good law in New Zealand. The sort of balancing exercise proposed in R v Taffs (No. 1) has been disapproved in B v Auckland District Law Society and R v Derby Magistrates’ Court, ex parte B. While those cases do not specifically address the question of a judge examining the documents, this is implicit in their statements that the Courts should not “investigate privilege”. I decline to follow R v Taffs (No. 1).

[40] In my view, the fundamental nature of the doctrine of legal advice privilege applies to both traditional solicitor/client privilege and litigation privilege. There was no suggestion of a distinction in any of the authorities that emphasise the fundamental nature of privilege, and it would not be practical to make any distinction between the two types. The policy reasons behind litigation privilege, in particular the unrestricted ability for lawyer and client to communicate and prepare for

litigation, would appear to apply just as much in the criminal context as in the civil context. There is no suggestion in any of the authorities that there cannot be a balancing exercise for traditional solicitor/client privilege, but there can be a balancing exercise for litigation privilege. There can be no justification for such a distinction.

[41] The documents that I have referred to, and in respect of which privilege is claimed, are exactly the sort of documents to which the policy that lies behind legal privilege rests. The Police and the legal advisers to the Police go through a process in deciding an important technical decision relating to litigation. This is likely to involve a frank assessment of the merits of granting immunity; of balancing the disadvantage of abandoning the opportunity to prosecute someone who may well have been guilty of a criminal offence, as against the positive advantage of helping to secure a conviction of the more serious offender. To carry out this balancing act properly, the parties need to be able to discuss the merits of the case, where its strengths and weaknesses lie. This is exactly the sort of information that a party to litigation does not wish to give to the other side.

[42] There are reasons for allowing this process to be carried out properly, and without the inhibition of possible disclosure. Immunity has been recognised as a process, carried out by the Solicitor General in the public interest. It is a prerogative exercisable at the Solicitor General’s discretion; R v Weightman. It is in the public interest that the process continues, and is not inhibited by the prospect of disclosure. It can be easily seen that on occasions the grant of immunity can help secure the conviction of someone who it is very much in the public interest to convict. When the Police communicate with the Solicitor General on the topic, they should not be restrained from expressions of view about the merits of the case or particular evidence by the prospect of disclosure. Similarly, the lawyers at Crown Law should not be so inhibited.

Is there a case for any particular exception in New Zealand?

[43] Counsel have referred to s 25 of the New Zealand Bill of Rights Act 1990, in particular ss 25(a), (e) and (f). This section provides for the right to present a

defence, but it does not refer in any specific way to privilege. In addition s 24 also sets out certain rights of persons charged, which have been relied in other cases on to justify the Police obligation of disclosure.

[44] The New Zealand Bill of Rights was referred to in argument in B v Auckland District Law Society, but does not appear to have influenced the Privy Council in its declaration of the fundamental nature of privilege in both civil and criminal proceedings. That case stands for the emphatic proposition that the English approach applies in New Zealand.

[45] It is stated in McGechan on Procedure:

HR307.14 Privilege may be overridden in criminal proceedings

Any information shared with the police in the course of the investigation of a crime may be accessed by the defendant in criminal proceedings, so long as the information held by the police is “personal information” in terms of the Official Information Act 1982: Commissioner of Police v Ombudsman [1988] NZCA 211; [1988] 1 NZLR 385, also reported as Pearce v Thompson (1988) 3 CRNZ

368 (CA); Tyson v Police [1989] 3 NZLR 507; (1989) 5 CRNZ 310. In the latter case, an insurance company had undertaken considerable research into

the cause of a fire, with a view to denying liability under a fire policy over

the premises. When the police decided not to prosecute, the insurance company shared information with the police to encourage them to pursue a

prosecution. The information would have been privileged in civil

proceedings, but had to be disclosed when it was sought by the defendant in the criminal prosecution that followed.

Legal professional privilege cannot be maintained when to do so would deprive an accused of a defence in criminal charges: R v Barton [1973] 1

WLR 115; [1972] 2 All ER 1192. In that case, a legal executive charged

with fraudulent conversion, theft, and falsification of accounts (offences committed during the course of his employment) issued a subpoena on one of the partners in the firm which incorporated a notice to produce certain documents. The solicitor moved to set aside the notice to produce documents on the ground that they were privileged. Caulfield J described the application as a novel one, and on the particular facts in that case, he held that privilege could not attach to them. Despite s 35 Evidence Amendment Act (No 2)

1980, this reasoning is likely to be applied in New Zealand.

[46] These comments were made on the basis that R v Barton was still good law in New Zealand. For the reasons already mentioned, following B v Auckland District Law Society, this decision is not good law in England, and is not good law here. The extract also refers to Police v Tyson [1989] 3 NZLR 507, but the documents in question in that case emanated from a third party who had given them to the Police.

The disclosure could well have been justified on the basis of waiver or the recording of matters of primary fact.

[47] It might be said that upholding privilege runs contrary to the strong theme in recent New Zealand cases of the necessity for full disclosure in criminal proceedings. The obligation on the part of the Police and the Crown to disclose all admissible material that might help an accused in defending a case has been emphasised. However, the Crown in its submissions has not contested that overriding obligation. What it contests is the ability to force disclosure of documents generated in the process of preparing for litigation. If any of the documents generated in the process of considering immunity refer to factual material of assistance to the Defence, that will have been disclosed in any event. The material that is prepared in the process of considering immunity will largely, if not entirely, fall under the category of “work produced”, or “evaluated material”, rather than primary material.

[48] The distinction between these two types of material has been recognised in a number of New Zealand decisions. These were considered by the Court of Appeal in R v Taylor (CA 130/02, 17 December 2003). The general position was summarised as follows:

[21] Disclosure obligations in New Zealand are a mixture of statutory and common law rules. There are some specific disclosure obligations in the Crimes Act, for example s344C which relates to identification evidence. The main piece of legislation that bears on disclosure obligations is, however, the Official Information Act 1982. Even though this is not specifically a criminal discovery statute it was held in Commissioner of Police v Ombudsman [1988] NZCA 211; [1988] 1 NZLR 385, 397 that that Act gives to a defendant in a criminal proceedings the right to all information held by the Police which is personal information about that person and which contains or bears on the evidence of the offence charged. The Privacy Act 1993 is also relevant in this context, particularly in relation to personal information held by public sector agencies. Both Acts, however, contain exemptions that may apply to prevent the disclosure of some information. Section 6(c) of the Official Information Act provides as a good reason for withholding official information that making it available would be likely to prejudice the maintenance of the law, including the prevention, investigation, and detection of offences. Section 27 of the Privacy Act permits an agency to withhold personal information on the same basis. In addition, at common law, public interest immunity, or Crown privilege as it was formerly known, is a ground for excluding relevant evidence from disclosure where the public interest in non-disclosure outweighs the public interest in ensuring that the

courts should have the fullest possible access to all relevant information (see the discussion in Janet November Disclosure in Criminal Cases (Butterworths, 1999) Chapter 7).

[22] Finally the New Zealand Bill of Rights Act 1990 requires, under s24(a), that an accused person be informed promptly and in detail of the nature and cause of the charge against him or her. There is also a guarantee of adequate time and facilities to prepare a defence under s24(d) and a right to a fair trial under s25 which reinforce and in some cases may supplement statutory and common law disclosure obligations, particularly where information held by the Crown is not personal information but is nevertheless necessary for the promotion of rights guaranteed under the Bill of Rights Act.

[49] The Court of Appeal specifically distinguished between “work product” and “evaluated material”. The Court referred to the statements in Fisher J in Downey v District Court (HC AK, M271/95, 29 June 1995). It was noted that documents generated as part of an evaluation process which contained no primary material do not add anything to the material already produced to the Defence and are thus not logically relevant. It was stated in R v Taylor, at para [27]:

The purpose of disclosure is to ensure the defence has access to primary material held by the Police (to the extent required by the relevant statutes and the common law). Requiring disclosure of additional material of the type sought here could unduly inhibit the police in their investigations and would have the attendant practical problems alluded to by the Crown.

[50] It may well be the case that the documents that have been generated in the course of considering immunity are not relevant in any event; the opinions of Police and solicitors on the trial are unlikely to be admissible because they are irrelevant and because they are opinion evidence. Nevertheless, they could help the Defence insofar as they disclose the considerations of the opposite party in a trial. The Crown accepts its obligation to provide primary material and says it has been disclosed.

[51] I do not consider that the Applicant’s right to a fair trial is affected by the withholding of this material, generated, as it was, in the course of preparing for trial. To adopt the reasoning in R v Taylor, it would unduly inhibit the Police and the Crown in their investigations and presentation of their case to require disclosure of this privileged material.

Should the Court inspect the documents?

[52] I have set out earlier the statements in the leading English authorities that a refusal by the Crown to waive privilege in criminal proceedings cannot be questioned or investigated by the Court. If the privilege is on its face properly claimed, the balancing exercise that has led to the development of the doctrine of privilege has already been carried out. Its limitations, such as the exception of documents prepared in furtherance of fraud or a crime, are well understood. It is not for the Court to do a further check.

[53] I have already set out why I do not consider that I am bound by R v Taffs (No.1). I recognise that on occasions Courts will inspect documents in civil cases. If privilege is claimed for documents that, on the basis of their description or type, the Court considers may not be privileged, inspection may be appropriate. Such a concern could arise in a criminal case if there was material which caused a Court concern as to whether privilege was claimed correctly. Here, for the reasons that I have set out, I do not consider that any such issue arises. I am satisfied that privilege in the documents in question has been properly claimed by the Crown.

Conclusion

[54] I record the Crown’s acceptance of the obligation to disclose all communications with Mr Baxendale, and all primary material that may assist the Defence.

[55] The application for an order for disclosure of the material referred to in paragraph 3 of the application is refused. The request made that the documents be inspected by the Court is also refused.

........................................

Asher J