Privacy Law and Policy Reporter
Police investigating allegations of fraud/murder made enquiries of 395 people who they did not propose to call to give evidence at the trial. The defence applied for discovery of the details of those investigations. The police provided copies of the job sheets, interview notes etc with the names and addresses of the persons who provided the information 'blacked out'. Police proposed to only provide name and address details to a process server for the purpose of service of a defence witness subpoena. Otherwise, the defence would be required to ask the police to notify witnesses that they wished to interview, and the police would then ask them to contact the defence for this purpose.
The Crown contended that R v Mason  2 NZLR 122 (CA), which required disclosure of such names and addresses, must be read in light of Principle 11 in s 6 of the Privacy Act.
Hammond J rejected the Crown argument on this application. First, the Court of Appeal had expressly said in Mason that names and addresses should be supplied, and there was 'no reason to depart from the usual rule here'. Second, Principle 11 expressly recognises that personal information can be disclosed when this is 'necessary ... for the conduct of proceedings before any court ... that have been commenced'. He held that it was necessary in the conduct of these proceedings that the defence be given the names and addresses of the 395 persons. Factors taken into account were that it was implicit in Mason that the defence should be free to approach potential witnesses 'in any manner the defence thinks fit'; to 'filter' approaches to witnesses through the police, as proposed, 'seems ... fundamentally objectionable'; and it was questionable whether the accused could feel comfortable dealing with a witness who had been approached in this way.
The wording of exceptions to Principle 11 in Australia's Privacy Act 1988 is rather different, but the persuasive reasoning applied in this case could be relevant to arguments concerning exception 11.1(d) ('the disclosure is required or authorised by or under law') or 11.1(e) ('the disclosure is reasonably necessary for the enforcement of the criminal law'), in that 'enforcement' requires justice not only effectiveness.