Part 3: Police decision making and practice

Question 1

3A Considerations about ‘whether’ to disclose

Answer 1

Determining Relevance
Relevance is the governing principle of disclosure under the CDA, and is defined in s 8 as ‘information or an exhibit that tends to support or rebut, or has a material bearing on, the case against the defendant’. A consideration of relevance by the OC case is therefore the first step in the disclosure process.

There are two dependent limbs to the statutory definition of relevance, which should be considered together to ascertain relevance. FIG 11 outlines the two inter-dependent questions that an OC case should consider in determining relevance. If the answer to these questions is ‘yes’, the information is relevant to the case, and disclosure should be considered.

CDA terminology

• ‘Supports or rebuts’ the case against the defendant = Will the information/evidence either help or hinder the defendant’s ability to defend the charges against them?
• ‘Has a material bearing on the case against the defendant’ = Would (or might) the information/evidence assist or detract from either the prosecution or defence case?

The duality of relevance questions

Noting the interdependent nature of these two relevance questions, in Tito v R (2019, NZCA 586: 23) the Court of Appeal stated: “an assessment of whether information has a tendency to support or rebut the case against the defendant requires an assessment of the issues in the proceeding. This is because information that can have no possible bearing on an issue in the proceeding cannot have a tendency to support or rebut the case against the defendant”.

The evaluation of whether information is relevant can start from the time the investigation file is first compiled, and should always have begun once criminal proceedings have been commenced. As the investigation progresses and new information is collected, assessments of relevance should be made regularly to ensure ongoing disclosure obligations are met.

Question 2

Relevance and rebuttal information

Answer 2

Regardless of whether it supports the Police position, all information that has a material bearing on the case is relevant and disclosable. Rebuttal information is that which materially challenges the prosecution case; for example, it might cast doubt on a suspect’s guilt, or implicate another person. Examples of rebuttal evidence could include the following:

• CCTV footage that did not record the crime, location, or suspect in a manner that is consistent with the prosecution case
• A police notebook record of a person, present at an alternative location to that of an alleged offence, at the time the offence occurred
• A fingerprint from a scene that cannot be identified as belonging to a known suspect

The inability to match crime scene samples with samples taken from the accused.

Question 3

Withholding information grounds: ss 15-18 Criminal Disclosure Act 2008

Answer 3

Once information or exhibits have been assessed as ‘relevant’ to the prosecution case, they must be disclosed, as stipulated within legislative parameters (primarily the CDA), unless the OC case determines that there is any reason for withholding the information (in full or in part). There are a variety of considerations (mainly set out in ss 15-18 of the CDA, and summarised in FIGs 12-15, below) which may justify the withholding of relevant information.

Where the OC case assesses that a withholding ground applies through ss 15-18 of the CDA, they should list the specific withholding ground relied upon, and the reasons for withholding the information, as the decision may subsequently be challenged by the defendant through an application for court-ordered disclosure.

Question 4

FIG 12: Withholding information, s 15 Criminal Disclosure Act 2008

Answer 4

15 Prosecutor* not required to record information or to obtain information for the sole purpose of disclosure

*As noted earlier in this chapter, the term ‘prosecutor’ has a wide meaning in the CDA. In this context, it refers to the OC case, as they are the responsibility holder for disclosure.

15 (1) ‘Nothing in this Act requires a prosecutor to disclose information if, at the time a disclosure obligation would, but for this section, arise or at the time a request for disclosure is made, as the case may be –

15 (1) (a) The prosecutor is not in possession or control of that information [Police is not required to disclose information that does not exist].

15 (1) (b) The prosecutor does not hold the information in recorded form’. [Police is not required to obtain or record information solely for the purpose of disclosure].

Question 5

Withholding information, s 16 Criminal Disclosure Act 2008

Answer 5

16 (1) ‘A prosecutor may withhold any information to which the defendant would otherwise be entitled under this Act if -

16 (1) (a) Disclosure of the information is likely to prejudice the maintenance of the law, including the prevention, investigation, and detection of offences [This might include some operational orders, operational plans for surveillance, Armed Offenders Squad callouts, covert operations, or other information that discloses a similar type of content.

Equally, it might include materials that refer to police informants, including: who they are, personal information, and/or any other identifying/contact details.]

16 (1) (b) Disclosure of the information is likely to endanger the safety of any person [This pertains to the threat of violence to any person, coupled with the ability to deliver on that threat

Note: Using this withholding ground in the Disclosure Index may exacerbate the threat. The OC should seek specialist advice before relying upon this withholding ground.]

16 (1) (c) (ii) A communication dealing with matters relating to the conduct of the prosecution, and between

(A) The prosecutor and another person employed by the same person or agency that employs the prosecutor

(B) The prosecutor and any adviser to the prosecutor
[This might include purely administrative communications (e.g. e-mails, faxes, memos) between a Police prosecutor and any other police employee, or legal or technical advisor, that does not include any undisclosed information relevant to the case.]

16 (1) (c) (iii) Analytical or evaluative material, prepared in connection with an investigation that led to the defendant being charged, by a person employed by a person or agency for another person employed by that person or agency or for the prosecutor. [ This might include charts, analyses, or schedules.

Note: in Ministry of Business, Innovation and Employment v Centreport Ltd [2014] NZHC 2751, the High Court confirmed that this withholding ground “relates to reports and assessments evaluating or analysing the evidence, case or investigation at the pre-charge stage of the case”. Evaluative reports on the investigation and a subsequent decision to charge can therefore be withheld under this ground.

Such reports are more likely to be compiled in serious or complex cases, such as sexual violence matters (where the only evidence may be that of the complainant, and an evaluative assessment of their credibility is made by the investigator).]

16 (1) (d) The information is subject to sections 108 and 109 of the Evidence Act 2006 (which relates to information about undercover police officers)
[This includes material that references undercover police officers who hold a Commissioner’s certificate attesting to their duty, and who are likely to give evidence in the case. Its purpose is to protect their identity.].

16 (1) (e) The information is subject to a pre-trial witness anonymity order under section 110 of the Evidence Act 2006 or a witness anonymity order under section 112 of the Evidence Act 2006.
[This pertains to witness anonymity orders.]

16 (1) (f) The information is subject to section 16 of the Victims’ Rights Act 2002 (which relates to information about witnesses’ addresses)

16 (1) (g) The disclosure of the information would be likely to prejudice –

(i) The security or defence of New Zealand or the international relations of the Government of New Zealand

(ii) The entrusting of information to the Government of New Zealand on the basis of confidence by the government of any other country or any agency of such a government or any international organisation. [This might include information from Interpol or another international police agency, used for investigative purposes.

It might also include information sourced through diplomatic channels.
[This might include information from Interpol or another international police agency, used for investigative purposes.

It might also include information sourced through diplomatic channels.]

16 (1) (h) Disclosure of the information would be likely to facilitate the commission of another offence
[This might include information that creates vulnerability (of a person or of property) to victimisation, such as security/access codes to a building, or to a computer system.]

16 (1) (i) Disclosure of the information would constitute contempt of court, or contempt of the House of Representatives
[This might include name suppression orders, or any other information that is already subject to a disclosure restriction imposed by a court, or by the House of Representatives.

It might also include a briefing paper or departmental report to a Select Committee that has yet to report back to the House on the matter. ]

16 (1) (j) The information could be withheld through any privilege applicable under the rules of evidence.
[This might include information generated through a doctor-patient, or lawyer-client, relationship. It may also apply to Police informers (see below).]

16 (1) (k) Disclosure of the information would be contrary to the provisions of any other enactment.
[This is relevant when another enactment prohibits the disclosure of information. For example, see the Protected Disclosures Act 2000 (‘Whistleblowers Act’), or the Tax Administration Act 1994.]

16 (1) (l) The information is publicly available and it is reasonably practicable for the defendant to obtain the information from another source.
[This refers to information that has already been publicly released – e.g. through the media, or on a website.]

16 (1) (m) The information has previously been made available to the defendant.
[This refers to information has already been provided – e.g. pursuant to an OIA or Privacy Act request, through the previous disclosure of materials, or via another agency (such as MOJ).].

16 (1) (n) The information does not exist or cannot be found.
[This refers to information that is not recorded and therefore does not exist, or that has been genuinely misplaced.]

16 (1) (o) The information:

(i) Reflects on the credibility of a witness, who is not to be called by the prosecutor to give evidence, but who may be called by the defendant to give evidence, and

(ii) Is not for any other reason relevant’.
[For example, information that challenges the credibility of a defence alibi witness.]

Question 6

Part documents may still need to be disclosed

Answer 6

Police can only withhold specific information that relates to the withholding grounds in s 16 of the CDA. Where that ground does not cover all information within the document, those parts of the document that remain disclosable should be disclosed (s 16(2) of the CDA).

When withholding reasons no longer apply
Additionally, where previously withheld information is no longer covered by the withholding reason (thereby becoming disclosable), it must be disclosed as part of Police’s ongoing disclosure obligations (s 16(3) of the CDA).

Question 7

Withholding information, s 17 Criminal Disclosure Act 2008

Answer 7

17 (1) ‘This section applies to information that identifies, or that may lead to the identification of, the address of the place where a witness or informant lives (for example, his/her postal address, residential address, e-mail address, fax number, or phone number).

17 (2) The information may be disclosed to the defendant only with the leave of the court.

17 (3) The court –

(a) Must not grant leave unless it is satisfied that the disclosure of the information is necessary in the interests of justice, and outweighs any prejudice to the witness’s or informant’s interests, or any harm to the witness or informant, that is likely to be caused by the disclosure of the information

(b) May, if it grants leave, impose conditions in relation to the disclosure of the information

17 (4) This section applies to an informant regardless of whether the prosecutor intends to call the informant as a witness’

Question 8

Withholding witness and informant personal details/information

Answer 8

As outlined in FIG 14, s 17 of the CDA restricts the disclosure of a witness or informant’s home address and telephone number. However, this information may be provided to the defence if the witness or informant’s permission has been obtained to do so. An OC case should seek this permission only in instances where a request for this information (and the supporting reasons) have been sought by the defence, and are considered to be legitimate.

Conversely, the defendant may seek leave from the District Court (under s 17(2) of the CDA) for the disclosure of this information. The court must not grant leave unless it is satisfied that the disclosure of the information is necessary in the interests of justice, and outweighs any prejudice or harm to the witness’s interests that would likely be caused by disclosure. If Police opposes the release of any such information, the prosecutor should make submissions to the court to assist in its determination on disclosure.

Section 14A of the CDA also sets out when information relating to an “identification witness” must be given to the defendant. An “identification witness”, in relation to the trial of the defendant, means “a person who claims to have seen the offender in the circumstances of the offence.”

At any time after a defendant has been charged with an offence, and on their request, the prosecutor must supply them with:

The name and address of an identification witness
Statements of any descriptions of an offender made by an identification witness to the prosecutor
Any identikit pictures, or other drawings, made by an identification witness, or from information supplied by an identification witness.
However, s 14A(3) enables the prosecutor to apply for an order excusing them from disclosing the name and address of an identification witness, if Police has concerns about the safety of that witness or of any other person. For instance, this may be appropriate where the witness is also the victim and is not already known to the defendant.

Note: it is s 14A(3) of the CDA – and not ss 16-17 of the CDA, or s 16 of the Victims’ Rights Act – that should be used to withhold identification witness details.

Question 9

Withholding information, s 18 Criminal Disclosure Act 2008

Answer 9

18 Trade secrets may be withheld
[Note: ‘trade secret’ has the same meaning as in s 230(2) of the Crimes Act 1961]

18 (1) ‘The prosecutor may withhold any information to which the defendant would otherwise be entitled under this Act if disclosing the information:

(a) Would disclose a trade secret, or

(b) Would be likely to unreasonably prejudice the commercial position of the person who supplied, or who is the subject of, the information.
[This might include such things as manufacturers technical manuals – e.g. workings of a secret device or process not covered by patent – or costings/charging information.]

18 (2) Despite subsection (1), information must not be withheld under this section if, in the circumstances of the particular case, the interests in subsection (1) protected by the withholding of that information are outweighed by other considerations that make it desirable in the public interest to disclose that information’.
[This section outlines that any justification for withholding associated with 18(1) must be balanced against the weight of factors such as the public interest.]

Question 10

Withholding victim contact information

Answer 10

Provisions contained within the CDA (s 16(1)(f)) for withholding victim information are also replicated in the Victims’ Rights Act 2002. Specifically, s 16 prohibits the disclosure of a victim’s contact details in court (referred to as: residential address, postal address, e-mail address, home/business/mobile telephone number, fax number). Such details may only be given in evidence ‘with the leave of the judicial officer.’ Before granting leave, the judicial officer must be satisfied that:

The information is directly relevant to the facts at issue in the proceedings, and
The evidential value of the information (if any) outweighs any prejudice to the victim’s interests, or any harm to the victim, that is likely to be caused by the giving of the information.
It should be noted, however, that s 16A Victims’ Rights Act 2002, states that ‘nothing in s 16 applies to a criminal proceeding, if it is necessary to disclose the information in the charge in order to ensure that the defendant is fully and fairly informed of the nature of the charge’.

Question 11

3B Considerations about ‘what’ and ‘how’ to disclose

Answer 11

The following sections provide general advice about the disclosure of a range of documents/types of evidence (listed alphabetically) that Police sometimes, often, or always generates during a prosecution, and to which disclosure considerations will apply.

Note: the below content is not determinative of the decision to disclose a particular document, and is to be read as general guidance only. Considerations of relevance and withholding grounds are always case specific, and case specific factors override general guidance.

Alibi witness interview notes
Interview notes are generally disclosed. However, any information that reflects on the credibility of the alibi witness can be withheld under s 16(1)(o) of the CDA.

CARD reports
CARD reports are generally disclosed. However, they may be withheld if their release would be likely to prejudice the maintenance of law and order.

Commercial confidentiality
Any information that would either disclose a trade secret or unreasonably prejudice the commercial position of the person who supplied it, or who is the subject of the information, may be withheld under s 18 of the CDA.

Custody sheets
Custody sheets are generally disclosed.

Digitally recorded oral notifications
Digitally recorded oral notifications (containing information that is similar to written notes of evidence) should generally be disclosed as soon as required under the CDA.

The first requirement for disclosure of this information (but only if requested by defence) is at the initial disclosure stage (s 12(2)(e) of the CDA). If this information is not requested, it will subsequently become disclosable at time of full disclosure (through s 13(2)(a) of the CDA) when a not guilty plea is made.

Note: infringement offences (as defined in s 2(1) of the Summary Proceedings Act 1957) are not subject to disclosure requests in s 12 of the CDA. This means the obligation to disclose digitally recorded oral notifications arise as part of the full disclosure process (see s 13(2)(a) of the CDA) once Police has received a request for a hearing, or for mitigating factors to be heard in court (see s 9(d) of the CDA).

When disclosed, these files should be provided on a compact disc or by e-mail in the first instance. If defence cannot access the file, it can alternatively be transcribed and disclosed as a transcript.

While an audio file might generally be considered to be an exhibit to be played in court, audio files that are oral notations are unlikely to be considered exhibits. This is because these notations are generally prepared in a written format that would become disclosable at a fairly early point in the proceedings. A mere change to the information’s recording format should not alter the obligation to disclose the information.

EAGLE helicopter video footage
Where police have concerns about the unconditional disclosure of Eagle helicopter footage, consideration should be given to withholding that information, pursuant to s 16(1)(a) of the CDA. The defendant/counsel is then at liberty to seek a disclosure order through s 30 of the CDA. If they do so, conditions on disclosure should be sought by Police (via the prosecutor) at the hearing.

The below information (Ihaia v R [2022] NZCA 599) provides a recent case law example of how the courts have considered and responded to requests for the unconditional disclosure of Eagle footage.

Question 12

Event chronology

Answer 12

Event chronology is disclosed when it contains relevant information. However, any personal details must be deleted/redacted.

Question 13

Family violence (Family Harm Investigation Report)

Answer 13

Body injury maps, and risk and lethality reports, can be used in court to support the Police case. They are therefore relevant, and generally disclosed. Other information in the Family Harm Investigation Report (located in the OnDuty application) should be assessed for relevance and disclosed/withheld accordingly.

Question 14

Human Source/Police informant

Answer 14

A Police Human Source is defined by Police as ‘anyone who provides information to Police with the expectation that Police will protect their identity and, where they will not be a witness in any potential court proceedings connected with the information they have provided’. The term ‘Police human source’ is used to refer to either:

[a.] A confidential contact (i.e. ‘an individual who passively and infrequently obtains information, either as a result of their occupation or other normal day to day activities, and who passes such information to Police with the expectation that their identify will not be disclosed’. This person will not be tasked by Police, and will not receive any financial or other reward for providing information.

[b.] A covert human intelligence source (CHIS) (i.e. an individual who regularly provides confidential information to Police and as a result of an arrangement. As part of the arrangement, the individual will maintain or establish a relationship with others in order to provide information, and may actively seek information as a result of direct taskings from Police. They may receive reward (in some instances) for the provision of information.

As noted in part 8 of the Police Human Source chapter, ‘For practical and legal purposes, a human source and informer are the same’. A Police human source/informer has legally recognised privilege (subject to meeting the criteria set out in s 64 of the Evidence Act 2006) which protects their identify from disclosure.

Section 64 of the EA states:
(1) “An informer has a privilege in respect of information that would disclose, or likely disclose, the informer’s identity.
(2) A person is an informer for the purposes of this section if the person –
(a.) Has supplied, gratuitously or for reward, information to an enforcement agency, or to a representative of an enforcement agency, concerning the possible or actual commission of an offence in circumstances in which the person has a reasonable expectation that his or her identify will not be disclosed; and
(b.) Is not called as a witness by the prosecution to give evidence relating to that information.
An informer may be a member of the Police working undercover.

There is a distinction between a member of the public reporting an incident, and a person confidentially providing information to Police about criminal offending. That difference is that the former may be called to give evidence, but the latter will not be. Therefore, the legal privilege referred to in s 64(1) of the EA, does not apply to those being called to give evidence.

Note: where an individual does not meet the statutory definition of an ‘informer’ but Police considers that their identity needs to be withheld, consideration should be given to other withholding provisions (e.g. ss 16(1)(a)(b) of the CDA).

Particular care must be taken in the disclosure of documents containing/derived from Police human sources, noting that inadvertent or negligent errors can have serious safety implications for individuals.

For more detail on Police Human Source information, including criminal disclosure, see Police Covert Human Intelligence Sources chapter.

Question 15

Information revealing Police investigative techniques

Answer 15

This information includes such things as operational orders, operational plans for surveillance, Armed Offender Squad callouts, covert operations, and other mechanisms relating to ways in which Police obtains information.

A key test pertaining to the disclosability of any such information is whether disclosing the method/technique would be likely to prejudice the maintenance of law and order (i.e. make the job of the Police more difficult).

Question 16

Job sheets

Answer 16

Job sheets are generally disclosed. However, any witness or informant contact details contained within job sheets must be withheld.

Question 17

Legal opinions

Answer 17

Legal opinions must be withheld on the grounds of legal professional privilege.

Question 18

MOJ bail application memorandum

Answer 18

The MOJ bail application memorandum should be considered for disclosure unless it has previously been made available to the defendant (as per s 16(1)(m) of the CDA).

Question 19

Notebook entries

Answer 19

Relevant Police notebook entries must be collected, included on the investigation file and disclosure index, and disclosed (unless they can be legitimately withheld). This includes the notebook entries of all officers who attended the event to which the case pertains, and/or worked on the investigation in some capacity.

Attention should also be given to the ongoing obligation to provide late annotations. These entries can often contain information that is important to both the defence and prosecution.

Note: any witness or informant contact details contained within notebook entries must be withheld.

Question 20

OC case availability form

Answer 20

The OC case availability document is generally not relevant for disclosure. However, it should be used by the prosecutor to enable discussions with counsel about hearing dates.

Question 21

Photo montages

Answer 21

Photo montages are generally disclosed.

Question 22

Report Form: Prosecutions (POL258)

Answer 22

POL258s are not withholdable as of right. However, this information should be withheld if it only contains internal communications between an investigator and a prosecutor (See s 16(1)(c)(i) for further). However, it should be (partly or fully) disclosed if it contains relevant information about the defendant or other individuals (e.g. witness statements not available in other disclosable documents).

Question 23

Search warrant applications

Answer 23

Search warrant applications are generally disclosed with redactions. However, they may be withheld if their release would be likely to prejudice the maintenance of law and order.

Question 24

Tactical Options Reports (TORs)

Answer 24

TORs are usually disclosable. If the defendant is charged with an offence for which the TOR is relevant – e.g. resisting arrest, or assault on Police – the report must be released (see Pearce v Thompson [1998] 3 CRNZ 268 for associated case law).

Question 25

TASER footage

Answer 25

For guidance on downloading TASER footage, see the ‘TASER evidential downloads and disclosures’ section of the TASER (Electronic Control Devices) Police Manual chapter.

In cases where the defendant is represented by counsel, follow the steps outlined in FIG 16 to manage the process for determining relevance and disclosability of TASER footage, and (if relevant and disclosable), disclosing to counsel.

Question 26

Process for disclosing TASER footage to counsel/self-represented defendants

Answer 26

1 - The OC case should first determine whether TASER footage is relevant to the charges before the court. In some situations the footage will clearly be relevant – e.g. when a defendant is charged with having assaulted a police officer and is arguing self-defence. In other situations, it may be less clear – e.g. charges where the defendant is seeking the exclusion of evidence on the basis of an unlawful arrest.

If there is any uncertainty as to the relevance of TASER footage, the OC should seek the advice of their supervisor, and thereafter specialist advice, as required (see ‘Seeking Specialist Advice’ section in this chapter).

2 - If the TASER footage is deemed relevant to the prosecution case, the OC should then consider whether there are applicable withholding grounds under the CDA.

If there are grounds for withholding:
The OC case should record the existence of the footage, and the grounds upon which it is withheld, in the Disclosure Index.

Note: If there are concerns that the unconditional disclosure of TASER footage may prejudice the maintenance of the law, the information should be withheld under s 16(1)(a) of the CDA, and the defendant/counsel invited to seek a disclosure order under s 30 of the CDA (as was the approach taken to Eagle footage in Ihaia v R [2022] NZCA 599).

In this instance, no further action is required, except at the direction of the court following the outcome of a s 30 CDA application by defence counsel/a self-represented defendant (see section 3 below).

If there are no grounds for withholding:

The footage will need to be obtained and disclosed. Note: when disclosing TASER footage there is no legislative basis for Police to set conditions for the viewing of that footage (such as requiring that it is viewed at a Police station, under supervision).

TASER disclosure practice may vary by district, and OCs should be familiar (and comply) with local expectations. However, the NZ Police TASER chapter (see ‘TASER Evidential Downloads and Disclosures’) states that:

CJSUs process TASER footage for disclosure, and
the OC should work through their District CJSU to arrange for the relevant TASER footage to be disclosed via an electronic link or provided on a portable disc.
The OC case must also ensure that all relevant information (whether disclosed or withheld) is recorded in the Disclosure Index. However, data that is not relevant only needs to be included in the Disclosure Index when the defendant has specifically requested it as ‘additional disclosure’. In these circumstances, the data should be withheld under s 14(2)(a) of the CDA, and recorded in the Disclosure Index accordingly.

3 -
If defence counsel/a self-represented defendant wishes to challenge a Police decision about the disclosure of TASER footage, the mechanism for doing so is through an application to the court (under s 30 of the CDA).

In such instances, the Prosecutor should consider whether to prepare and file any written submissions in advance of the hearing. Any proposed conditions of disclosure should then be sought at the disclosure hearing.

If the defendant is in custody, sought conditions may be that the defendant has viewing access to the footage, but not possession or control of it (see Ihaia v R [2022] NZCA 599, paragraph 27).
If the defendant is on bail, appropriate sought conditions might include that they do not have possession or control of the footage, and that their temporary access to it is facilitated by a third party (such as Police or counsel). Also that it is returned to Police at the conclusion of proceedings.
The Prosecutor preparing submissions should seek advice from the PPS National Legal Counsel in regard to this work, as required.

Question 27

Victim Impact Statements (VIS)

Answer 27

No person (other than the victim, or a person acting under the victim’s authority) may give the offender a Victim Impact Statement (hereafter ‘VIS’) to keep. However, s 23 of the VRA requires a prosecutor (directly or via the offender’s defence counsel) to show the VIS to the defendant, unless the prosecutor or defence counsel:

(a.) Intends to apply for an order under s 25 of the VRA in respect of part of the statement, or

(b.) Knows that an application of this kind is to be made, or has been made, but has not yet been determined.

In administering this process, and for the purpose of protecting a victim’s physical safety, s 25 of the VRA permits a judicial officer to order that any part of a VIS not be shown to the offender or every lawyer (if any) representing the offender. This provision links directly to s 16(1)(k) of the CDA (see FIG 13), which permits a prosecutor to withhold any information to which the defendant would otherwise be entitled under the CDA, if ‘disclosure of the information would be contrary to the provisions of any other enactment’.

FIG 17 outlines the process staff should follow in withholding a VIS from general disclosure packs, and/or in response to specific requests for VIS disclosure.

Question 28

Video interviews and transcripts

Answer 28

A video interview or transcript (VRI) is an electronic means of recording what a witness or defendant has to say about an event, and may or may not form part of the evidence in a proceeding. Determining relevance is key to assessing whether full or partial disclosure of the VRI is required. Their disclosure (and any transcript) is governed by the Evidence Act and Evidence Regulations, not the CDA.

Question 29

Suspect/defendant interviews

Answer 29

A suspect/defendant VRI is an electronic record of what a suspect/defendant has said about an event. To determine the relevance (and therefore disclosability) of a defendant’s/suspect’s VRI, the OC case should follow the steps set out in FIG 18.

1 - Consider whether [a.] the entire interview, [b.] part of the interview, or [c.] none of the interview is relevant for disclosure, and therefore disclosable.

2 - If the material is not relevant for disclosure: nothing further is required.

If it is relevant, but withholding grounds apply: disclosure is not required, but the details of this decision should be noted on the Disclosure Index.

If the material is disclosable and no withholding grounds apply, it should be disclosed either:

Upon written request of the defendant/defence as part of further disclosure (s 12(2) of the CDA), or
As part of full disclosure (s 13 of the CDA), whichever is the earlier.

3 - If the video is to be shown at trial (i.e. either a judge-alone trial, or a jury trial), the OC case should prepare a transcript as soon as practicable after the Case Review Hearing, and provide that transcript to the defence and the judge before the trial.

Question 30

Victim and witness interviews

Answer 30

A victim/witness interview, or ‘Police video record’ (‘PVR’), is an electronic record of what a victim or witness has said about an event. The CDA does not apply to PVR’s (s 42(2) CDA). Rather, all PVR’s are governed by the Evidence Act 2006 and Evidence (Video Records and Very Young Children’s Evidence) Regulations 2023 (‘the Regulations’).

Part 2 of the Regulations sets out the rules around accessing, showing, and disclosing PVR’s in criminal and civil proceedings. The definition of ‘access’ means that, rather than Police giving a person a DVD copy of a video record, the standard way of providing access to PVR’s will be through giving electronic access to view the digital file.

The Evidence Act 2006 continues to govern defence lawyers’ entitlement to access video records. Section 106(4) and (10) of the Act provides that access to (or a copy of) the video record must be given to the defendant’s lawyer when it is to be offered by the prosecution as an alternative way of giving evidence (i.e. when a mode of evidence application is to be made). However, this is subject to section 106(4A), which restricts entitlement to access video records of child complainants and witnesses in sexual or violent cases. Sections 106(4A) to (4C) provide that the defendant’s lawyer is not entitled to be given access to (or a copy of) an especially sensitive video record, but they can apply to a Judge for access.

Regulations 21 and 22 set out what occurs when a defendant’s lawyer is permitted or required to be given access to the video record, including the purposes for which they may access or use the video record and transcript; and stipulate that the defence lawyer may not allow the defendant to view the video record unsupervised. Defence lawyers may show the video record to experts, and give experts access to video records that are not especially sensitive video records; but they need permission from the Judge if they want to give an expert access to an especially sensitive video record.

Police must ensure that a typed transcript of a PVR is given to the defendant or the defendant’s lawyer as soon as practicable after the defendant has pleaded not guilty (reg 22).

If a person requests that access to a PVR be given in another way (e.g. by receiving a copy on DVD), under reg 38(1) Police must first:

(a.) Be satisfied that it is not reasonably practicable for the person to be given access by electronic means; and

(b.) Consider:

The privacy of the witness
The likelihood that the witness is vulnerable
The desirability of minimising the number of copies of the video record that circulate independently of a Police storage system or facility or court-controlled storage system or facility
The need to ensure the Police video record is not viewed or accessed by any unauthorised person
The public interest in ensuring that video records of the type dealt with in the Regulations are protected from misuse
The interests of justice.

Question 31

Witnesses’ previous convictions

Answer 31

The previous convictions of witnesses must be disclosed if those convictions are relevant to the credibility of the witness (s 13(3)(d) CDA). However, convictions that are not relevant to the witness’s credibility do not have to be disclosed. The test for determining relevance in regard to credibility is set out in (Wilson v Police [1992] 2 NZLR 533, at p 537).:

Wilson v Police [1992] 2 NZLR 533
As to the kind of conviction within the scope of the duty, the test must be whether a reasonable jury or tribunal of fact could regard it as tending to shake confidence in the reliability of the witness”.

Convictions that are likely to be relevant, and should therefore generally be disclosed, include:

Convictions for perjury or attempting to pervert the course of justice
Convictions for assault or violence-related offending, when the witness is the alleged victim (as a defence may be that the witness – who has previous convictions for violence – was, in fact, the aggressor)
Dishonesty convictions, which exhibit a propensity to be untruthful.

Note on Criminal Records (Clean Slate) Act 2004
The Criminal Records (Clean Slate) Act 2004 will not form legitimate grounds for withholding witnesses’ convictions, as s19(3)(b)) of the Clean Slate Act permits Police to disclose criminal record information if it is relevant to criminal proceedings before a court.

The disclosure of any convictions should be provided by the OC case, concurrent with full disclosure, or (e.g. if a witness with relevant convictions is later identified, or convictions become relevant) as soon as possible thereafter. If the witness has convictions which are deemed not to be relevant, the OC should disclose the fact of their existence and cite a lack of relevance as the applicable withholding ground.

Question 32

Section 30, CDA 2008 Court orders for disclosure information

Answer 32

The withholding grounds listed in ss 15-18 of the CDA (and other legislation, above) are not absolute. Under s 30 of the CDA, the defence may apply to the court for disclosure of information that Police has failed or refused to disclose. The court may then order disclosure of the information sought, on the basis that the withholding ground(s) relied upon do not apply to the information (in the case of a refusal under ss 16-18), or that the information ought to have been properly disclosed under s 17(3) or s 18(2) (in the case of witness addresses and trade secrets respectively) (s 30(1)(a) CDA).

Alternatively, if the court finds that the information may be withheld under the CDA, it retains a residual discretion to make an order for its disclosure if satisfied that the interests protected by the withholding of that information are outweighed by other considerations that make it desirable, in the public interest, to disclose the information (s 30(1)(b) CDA).

In considering whether it is satisfied that the defendant is entitled to the disclosure of any particular information, the Court should have regard to the overall context in which the issue arises, including:

The purpose of the Act to promote fair, effective, and efficient disclosure of relevant information
The right to receive information (see Hutton v R [2018] NZCA 419).
In carrying out this balancing exercise, and assessing the public interest, the court should also consider the purpose of the proposed disclosure, and its potential helpfulness to the defence. For example, see Hutton v R, at [35], for the Court’s articulation of the balancing exercise as an assessment of the need to preserve the confidentiality of the prosecution’s investigative technique, against the public interest in the fair disclosure of information to the defendant to assist in his defence (including his ability to mount an effective defence and receive a fair trial).

Thus, s 30 of the CDA (in part) provides a balancing test, to remedy rare situations where the legitimate withholding of relevant information is likely to cause an injustice.

If a s 30 application is made by the defendant, and the court determines either that the defendant is entitled to the requested information, or that the information should be disclosed in the public interest, it will be required to be disclosed by the OC case.

Question 33

Appeals against court orders for disclosure

Answer 33

Where the prosecutor has concerns about a court order for the disclosure of information, s 33 of the CPA provides a route for appeal. In these circumstances, the prosecutor and/or OC case should urgently refer the decision in question to the PPS National Legal Counsel (or, in the case of a Crown prosecution, the Crown prosecutor) for consideration of an appeal, together with a copy of the submissions filed in opposition to the application, and any further details about the nature of the information ordered to be disclosed.

As a notice of application for leave to appeal against a disclosure order must be filed within 3 working days of the date of the decision, it is imperative that the prosecutor and/or OC case seek urgent advice from the PPS National Legal Counsel/Crown prosecutor on the merits of an appeal.

Question 34

Managing exhibits

Answer 34

Responsibility for exhibits
In most instances, the OC case is responsible for managing exhibits. When they receive a request from defence to inspect an exhibit they should:

Notify the defence of when and how this may take place, as soon as is reasonably practicable
Copy and disclose to defence any exhibits that can reasonably be produced.
If inspection conditions or the withholding of an exhibit are necessary, the OC case (or potentially the CJSU, dependant on how case management activity is organised within the district) is responsible for advising defence of this fact, as soon as is reasonably practicable – first by phone and then confirming by email. This ensures that defence has early awareness of the circumstances relating to their request for an exhibit, and that there is also a written record of the details of that communication.

Question 35

Allowing inspection of exhibits

Answer 35

Police must allow the inspection of exhibits under s 19(1) of the CDA when:

The defence asks Police to allow inspection, and
The exhibit/s specified are referred to in a list of exhibits, supplied under ss 13(3)(e) or (f) of the CDA.
This means that the work to facilitate inspections can arise only after full disclosure requirements have been triggered, and lists of exhibits Police is holding (as documented on the exhibit schedule) and/or intends to use during prosecution (as documented on the exhibit list) have been disclosed to defence.

It should be noted that the inspection of exhibits is not absolute. Police may place conditions on the inspection of exhibits if this is necessary:

To ensure the security and integrity of the exhibit/s, or otherwise maintain its evidential value
If the exhibit/s will be used for ongoing law enforcement purposes, and/or
For compliance with any conditions the court imposes under s 31 of the CDA.
Police may also refuse the inspection of an exhibit, if:

That exhibit is needed for use on an ongoing basis for enforcement purposes
The imposition of conditions would not enable the inspection to take place without prejudicing ongoing law enforcement.

Question 36

Defence access to ESR examinations

Answer 36

All requests from defence for details of ESR analysis reports should be dealt with through the provisions set out in the CDA. Further advice is provided in the following sections.

Blood alcohol charges
In cases relating to blood alcohol charges, defence requests to discuss the case with an ESR analyst, or for a sample for private analysis, should be made in accordance with s 74(5) of the Land Transport Act 1998. ESR will refer any such requests, made directly to them, to the PPS Traffic Prosecution Advisor for on-referral to the ‘authorised person’.

Accessing ESR examinations in criminal cases
Formal requests to Police, by defence, to access and inspect exhibits, will be made under ss 19 or 31 of the CDA. These requests require careful consideration, to ensure both that Police obligations under the CDA are met, and that adequate safeguards to any examination are applied for under the CDA. Police can refuse or restrict access to the relevant exhibit in certain circumstances, and defence is not permitted, as of right, to test the actual Police exhibit – e.g. a blood-stained shirt. Reasons for applying conditions, or withholding access to exhibits, must always be recorded.

The following defence requests, and their response, sit within the remit of the OC’s role. Requests:

To discuss the case
To test a Police exhibit
To have ESR perform a particular test on a Police exhibit
For defence experts to be present during the examination of an exhibit or experimentation by ESR
For ESR to test materials supplied by the defence
For information about general techniques employed by an analyst during testing.·
The OC case will consider and determine the Police position to any such defence requests in consultation with the Police Prosecutor/Crown Solicitor, District Crime Scene Manager, and the ESR, as required. Having done so, where any doubt exists as to the handling of any such defence requests, the OC case should seek advice (via their supervisor) from the National Crime Manager at PNHQ, the PPS National Legal Counsel, and/or a District Police Legal Advisor, as necessary.

Non-party orders for disclosure by ESR
Under s 24 of the CDA, defence may seek a hearing to determine whether information held by a person or agency other than Police (i.e. a non-party) may be disclosed. For instance, this provision may be used by defence to obtain information directly from ESR. Any s 24 non-party disclosure order requests should be referred to the OC case. They will then consult with the Crime Services Manager, ESR, the Police Prosecutor/Crown Solicitor, PPS National Legal Counsel, and/or District Police Legal Advisor, as necessary.

Based on the outcome of those consultations, appropriate submissions should be prepared by the prosecutor to assist the Court in its determination of the application.

Question 37

Court exhibit orders

Answer 37

Section 31 of the CDA enables both Police and the defence to apply to the court, or the court registrar, for an order regarding:

Whether the defendant may inspect a particular exhibit under the CDA, or in accordance with an order under the CDA.
The conditions that will apply to the defendant’s inspection of a particular exhibit.
The powers enabled under s 19 of the CDA are substantial, so it is only likely to be in rare circumstances that Police will apply for these types of (s 31) orders.
Defence applications will be a more common scenario, making the recording of reasons for applying conditions or withholding exhibits essential. Prosecutors will need this information, if they are to provide properly informed submissions on defence applications under s 31 of the CDA.

In making a determination, the court or court registrar must have regard to the public interest, ensuring the security and integrity of the exhibit, and whether the exhibit is required for ongoing law enforcement purposes.

Question 38

3C Determining ‘how’ to disclose

Answer 38

The following section provides general information and guidance about how to disclose material.

ICT systems/processes for managing disclosure
NZ Police does not employ a singular investigation management system or process for administering prosecution cases. Instead, districts utilise one or more of a range of tools (typically NIA or IMT, but in some instances SWIFT) for this purpose. Correspondingly, therefore, local-level administrative processes and practices vary, as do the forms and templates on which information is recorded.

Furthermore, NZ Police case management specialists (such as Criminal Justice Support Units), operate differently, by district. Collectively, this means that (beyond the generic requirements that are outlined in this document, and which can be applied to local practice) this disclosure policy cannot provide specific guidance as to the details of local-level operational disclosure process.

Generic disclosure principles and approaches
While NZ Police maintains multiple processes and systems in respect of investigation management, there are certain generic disclosure principles that govern all of these systems and processes – such as the need to maintain a complete and current record of disclosure, or the need to properly and fully remove/redact all information that is to be withheld. The following sections highlight these general requirements.

Creating and managing a Disclosure Index
The OC case must create a Disclosure Index when an investigation case file is commenced, and maintain and update this index throughout the advancement of the prosecution case. The Disclosure Index satisfies CDA requirements to maintain a list of the relevant contents of the case file (CDA ss 12(2)(k), s 13(2)(b) and s 14 (3)), and provides an open and transparent basis for disclosure decisions by recording:

All of the relevant information on the investigation case file
Who created and disclosed each relevant document, and when it was disclosed
Decisions regarding the disclosure/non-disclosure of each relevant document.
The Disclosure Index also:

Enables supervisors, Police and Crown prosecutors, and any other police staff with responsibilities for the advancement of the prosecution case, to effectively and efficiently review disclosure materials and disclosure decisions.
Provides defence counsel with a summary table of all relevant documents on a file, and disclosure decisions in relation to that information, compliant with the CDA.
Enhances judicial knowledge and confidence, by giving the judge a table of all relevant documents on file, including what has been disclosed and the reasons for withholding information. This is particularly useful when an application to review a decision to withhold information is made.
A Disclosure Index can be generated through both the NIA and the IMT systems.

Note on updating the Disclosure Index
A new and updated version of the Disclosure Index should be provided to defence every time new documents are disclosed. The OC case should keep a copy of every version for reference. Whenever a copy of the Disclosure Index is provided, it must also be added to the case file, and attached to the NIA Disclosure Record or IMT file (dependant on which system is being used).
If the Disclosure Index is only held in an electronic format, the OC case must save a copy of the disclosed version in an electronic file that can be made available to the Police prosecutor or Crown prosecutor, when necessary.
Tasking and actioning disclosure requests
Disclosure requests are typically received by the OC case or Police prosecutor. While defence counsel should be encouraged to make requests in writing, requests for additional disclosure can also be made orally. All requests for disclosure under the CDA that are made of Police staff other than the OC case, must be tasked to the OC case. To do so a task can be created in NIA or IMT depending on the tool being used.

As soon as is reasonably practicable after a task has been created, the OC case will review the request, assess its relevance, and (where disclosure is required) prepare the necessary materials.

In the event of any expected delay, the OC case will:

Advise their supervisor (and seek their advice and guidance, as necessary)
Advise defence counsel/the defendant of any delay and the likely timeframe
Advise the Police prosecutor (including of the need for any formal application to the court – e.g. an application for a time extension to initial disclosure under s 12 of the CDA)
Having actioned the disclosure requirement/s, the OC case will update the NIA task to indicate that it is complete. They will also log any associated disclosure in the Disclosure Index.
Logging disclosure requests and monitoring processes
All requests for (as well as provision of) disclosure under the CDA must be logged and tracked by the OC case. Logging ensures that disclosure obligations can be monitored and managed effectively (including by supervisors), and that there is clarity, transparency, and currency in regard to what has been disclosed.

Logging processes may vary according to the specific case management approach within a district. However, typically the Disclosure Index will be used as the disclosure log.

If there are to be delays related to any type of disclosure (beyond the timeframes stipulated in the CDA), the OC case should notify defence counsel as soon as practicable. Good communication between Police and defence is expected practice, can assist in the timely progression of a case, and may limit defence applications to the court for undisclosed information.

Disclosure format
Disclosure can be provided in a hard copy or electronic format, or in person (ss 10(1)(a) and (b) of the CDA), and information need only be disclosed in the format in which it is held (see s 10(4) of the CDA).

If defence raises any issues about the format within which disclosure information is provided, it is good practice to engage in practical discussions with defence about how these issues can best be resolved. A record should also be kept of these discussions/any agreements. This approach maintains good faith on the part of Police, and is likely to resolve issues efficiently so as to enable the timely progression of the case.

Maintaining an electronic file and electronic disclosure process
Delivery of disclosure in an electronic format requires disclosure information to be held electronically (and therefore the creation of an electronic disclosure file). Police has systems – such as IMT – that can be used to electronically manage a file and disclosure. However, not all prosecution files need to be managed electronically, and, even when they are, this does not necessitate the universal use of electronic disclosure.

An OC case should consider the following issues, when determining whether to maintain an electronic file and/or electronic disclosure process:

The anticipated scale of the investigation and prosecution process (e.g. it may be more efficient for smaller, straight-forward prosecutions to provide disclosure in a hard copy format)
Technical capability/familiarity with the relevant electronic file management process (e.g. IMT)
The availability of technology in the office to manage electronic disclosure (e.g. scanners)
The format in which much of the material is held
Defence agreement to receive disclosure in a particular format
Whether the broader investigation is being run as an electronic file, hard copy file, or combination of both.
Redacting materials for disclosure
Police is obliged to disclose all relevant information where no reason to withhold it exists (s 16(2) of the CDA). In practical terms, this means that parts of documents may need to be redacted prior to being disclosed.

All decisions about what should be disclosed/redacted need to be made by the OC case (in consultation with/the agreement of their supervisor). However, advice can be sought and provided by legal specialists (via the OC’s supervisor – see ‘seeking specialist advice’ section in this document).

For the purposes of redacting materials, a copy should be made of all original relevant documents on the prosecution file, as only copied information is disclosed. This is the responsibility of the OC case; however, administrative staff can sometimes assist the OC case by collating and copying materials.

While disclosure can be made in either electronic or hard copy format, the NZ Police Electronic redaction chapter states that electronic disclosure is the preferred method of disclosing: ‘Because of the volume of correspondence, electronic disclosure of documents can be a more efficient method of disclosing a file to interested parties than disclosure in paper form. In general, except for small files or some specific information, electronic disclosure is Police’s favoured method of disclosure’.

Manual redaction processes are prohibited
The NZ Police Electronic redaction chapter provides guidance on how to prepare and redact information for disclosure. As outlined in this chapter, manual redaction processes, such as ‘covering over information intended to be removed’, or ‘using a marker pen and photocopier’ ‘must NOT be used in any circumstances’.

Lessons Learnt: Redaction Disclosure Error [published 19-06-2017]
‘Ensure that any redaction necessary is undertaken using the redaction function in Adobe Acrobat Pro. The use of pen/felt pen or other form of redaction is unacceptable’.
Electronic redaction
For written documentation, electronic redaction (using Adobe Acrobat Pro DC or a later version of this software) is the correct method of removing non-disclosable content from documents, and the process for doing so is set out in the NZ Police Electronic redaction chapter.

This chapter states that: ‘all employees must comply with the electronic instructions detailed in this chapter [and] it is critical that supervisors of employees who are making electronic redactions ensure the disclosure complies with these instructions, to prevent compromising the confidentiality of information’ [P.4].

Similarly, the NZ Police Privacy and Official Information Chapter, ‘Disclosure under the Privacy Act 2020’ document states that: ‘Police uses Adobe Acrobat to redact information that is being withheld … no other method is acceptable’ [P.24].

For non-written forms of evidence – e.g. CCTV footage – other disclosure software, approved by NZ Police should be used.

Delivering disclosure
If it has not already been provided by first appearance, initial disclosure can be delivered by the OC case handing materials to the Police prosecutor to pass to defence counsel at the hearing, or by placing them on the prosecution file for that purpose. All further disclosure should be delivered by the OC case (or other party managing the disclosure) by mail, electronically, or by handing it directly to defence counsel (s 10 of the CDA). Electronic disclosure using IMT Partner File Share may also be available for disclosing materials (see here for guidance).

If defence refuses to accept materials, making the defendant or defence counsel aware of those materials will fulfil Police obligations for delivery under s 10(1) of the CDA. Therefore, in such situations the OC case should bring the existence and availability of the materials to the attention of the defendant and/or defence counsel.

If double-sided documents are included among disclosure materials, the OC case should bring this to the attention of the defendant or defence counsel. This will help to avoid unnecessary requests for information that has already been disclosed, but mistakenly overlooked by the recipient.

Receipt of disclosed materials
Disclosure materials that are posted, are considered to have been received within five working days (s 10(3) of the CDA). These timeframes also apply to electronic disclosure.