B v R HC Auckland Cri-2007-044-6651

[2009] NZHC 1993

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2007-044-006651

B

v

THE QUEEN

Hearing:         20 October 2009

Appearances: Mr B   in person

Y V Yelavich for Crown

Judgment:      21 October 2009 at 10:00 am

JUDGMENT OF COURTNEY J

This judgment was delivered by Justice Courtney on 21 October 2009 at 10:00 am

pursuant to r 11.5 of the High Court Rules

Registrar / Deputy Registrar

Date.......................................

Solicitors:           Meredith Connell, P O Box 2213, Auckland

Fax: [phone] – Y Yelavich

Copy to:             L B  , 66 Gulf View Road, Murrays Bay, Auckland

B V R HC AK CRI-2007-044-006651  21 October 2009

Nature of appeal

[1]      Mr B   is facing a charge of threatening to kill, for which there is a fixture scheduled in the District Court on 27 October 2009.   He appeals Judge Bouchier’s dismissal of his application for an order dismissing the charge because of the  Crown’s  failure  to  make  full  disclosure  to  him.    Although  not  specifically brought under s 347 it appears that the application was treated as one under s 347

Crimes Act 1961.

[2]      Mr B   filed his appeal against Judge Bouchier’s decision on 16 October

2009 requesting that it be dealt with urgently.  It was listed in the Duty Judge List 20

October 2009, with Mr B   being advised that he would only have a very brief amount of time.  Mr B   endeavoured to explain the background to the appeal. His two concerns were the fact that he is unrepresented in relation to next week’s trial and that the Crown has not made full disclosure.  Of the two, it was his lack of legal representation that seemed to be of most concern to him.  He asserted that his application for legal aid had been declined without any reason given.

[3]      Ms Yelavich for the Crown indicated that she had been unaware that it was to be called today but said that she could arrange for Ms Buckley who was prosecuting the substantive charge to attend Court at 2:15.  After some discussion I said that I would stand the matter until 2:15 pm to allow Ms Buckley to attend Court and would hear his appeal then.  Mr B   indicated that he wished to go home to get the documents relating to his legal aid application and would return.   I therefore adjourned the matter to 2:15 pm.

Hearing at 2:15 pm

[4]      Mr B   did not appear at 2:15.  I waited until 2:30 pm and then heard from Ms Buckley.   I concluded the hearing at about 2:50 pm, by which time Mr B   had still not arrived.

[5]      Ms Buckley provided me with two documents.  The first was a memorandum of  Mr  Staines,  a  team  leader  with  the  Legal  Services  Agency.    Mr  Staines’

memorandum had been filed in the District Court in response to a summons served on him by Mr B   to answer questions in respect of legal aid.   In his memorandum Mr Staines refers to Mr B   having been in receipt of a number of grants of legal aid from about 2002.  He has been represented by eight counsel over that time, each of whom have had their retainer terminated.  In March 2009 Mr Weir, who had been appointed counsel by the LSA, sought leave to withdraw citing a breakdown in the relationship between he and Mr B  .   As a result of this development the LSA withdrew legal aid.  In these circumstances, there is nothing that I can do to address Mr B  ’s concerns about his lack of representation.

[6]      Ms Buckley advises, however, that in anticipation of problems that are likely to arise as a result of Mr B  ’s lack of representation next week, the District Court has appointed amicus to attend at the trial.

[7]      I turn, then, to the substantive appeal, which related to the issue of disclosure. Ms Buckley provided me with a copy of the same memorandum that was provided to Judge Bouchier by the Crown for the purposes of the application.   It included a request by Mr B   for information/documents.  Judge Bouchier concluded that the list of information/documents being sought by Mr B   was collateral to the issues before the Court, would not be admissible under the Evidence Act 2006 because it was not relevant for the purposes of s 7 and would probably be excluded under s 8(1)(b) as needlessly prolonging a hearing.   For those reasons the Judge declined the application to dismiss the charges against Mr B  .

[8]      It  is  immediately  apparent  from  Mr  B  ’s  list  that  not  all  of  the information sought is either contained in documents or necessarily available to the police.  For example, Mr B   asks for:

Calls made on 20 November 2005.

A few calls were made that day.  Please check the number that they came from and look for other calls from that number.

and another example:

Legal reason why Mr L W B   was sent to jail after being severely beaten by police in police cells.

[9]      The threatening to kill charge arises from an incident in September 2007. Most of the information/documents sought relate to incidents said to have occurred in 2005 and 2006 and allegedly connected with incidents involving the complainant. Judge  Bouchier  was  right  to  conclude  that  Mr  B  ’s  request  for  further disclosure would not have yielded any information that was either relevant or admissible in the proceeding.  Some of it was not even obtainable by the police.

[10]     I note that Mr B  ’s complaints do not appear to relate to any documents directly relevant to the case and Ms Buckley advises that full disclosure including statements of the complainant and witnesses, have been provided progressively to Mr B  .

[11]     I find that the Judge did not make any error in her decision to dismiss Mr

B  ’s application and the appeal is therefore dismissed.

P Courtney J