Gibson v The Queen - [2015] NZCA 549

IN THE COURT OF APPEAL OF NEW ZEALAND

CA615/2015
[2015] NZCA 549

BETWEEN	SCOTT MICHAEL GIBSON Applicant
AND	THE QUEEN Respondent

Court:	Ellen France P, French and Winkelmann JJ
Counsel:	A J D Bamford for Applicant K S Grau for Respondent
Judgment: (On the papers)	2 November 2015 at 4.30 pm
Reasons:	17 November 2015

JUDGMENT OF THE COURT

The application for leave to appeal is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by French J)

Introduction

At the time this application for leave to appeal was filed, the applicant Mr Gibson was facing trial in the Nelson District Court on methamphetamine-related charges.
Mr Gibson’s co-defendant a Mr Jones had sought an order under s 157 of the Criminal Procedure Act 2011 transferring the proceeding from the Nelson District Court to the Wellington District Court. Mr Gibson supported the application which was heard in the Nelson District Court by Judge Ruth.
Judge Ruth declined to transfer the proceeding.[1] Subsequently, following a sentence indication, Mr Jones pleaded guilty and was sentenced to 22 months’ imprisonment.[2]
[1]R v Jones [2015] NZDC 19301.
[2]R v Jones [2015] NZDC 20303.
A week before the trial was due to commence, Mr Gibson applied to this Court for leave to appeal Judge Ruth’s decision. Leave was required because the decision was a pre-trial decision.[3]
[3]Criminal Procedure Act 2011, s 217(1)(a) and (2)(h).
The Court determined that the leave application should be heard on the papers and timetabling orders were made for the filing of submissions. Although Mr Gibson was technically not a party to the original application before Judge Ruth, it was in substance a joint application by both him and Mr Jones. The Court proceeded on that basis.
In a results decision delivered on 2 November 2015, we dismissed the application for leave to appeal.[4] Our reasons now follow.

Analysis

[4]Gibson v R [2015] NZCA 511.

The reason Mr Gibson wanted Judge Ruth to transfer the proceeding to Wellington was because there had been reasonably extensive and ongoing publicity about Mr Jones, particularly in the Nelson/Marlborough area. The publicity included media reports referring to Mr Jones’ associations with a gang. Mr Gibson contended he would be adversely affected by the fall-out from this publicity because it would contaminate the jury and so prejudice his right to a fair trial if the trial were to remain in Nelson.
In support of Mr Gibson’s application for leave to appeal, his counsel, Mr Bamford, submitted the proposed appeal was arguable and involved issues that in the interests of justice needed to be determined before the trial.[5] The issues could not, in his submission, be adequately addressed in a post-trial appeal. Mr Bamford further submitted Mr Jones’ subsequent guilty plea had strengthened the argument in favour of a change of venue. Mr Jones’ admission of guilt was said to have increased the risk of the jury being prejudiced against anyone who might be associated with him and who was facing similar drug dealing charges. Mr…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Gibson v The Queen

Details

AGLC: Gibson v The Queen [2015] NZCA 549
Case: [2015] NZCA 549
Decision Date: 2 November 2015 at 4.30 pm

CaseChat Overview and Summary

Scott Michael Gibson applied for leave to appeal a decision of Judge Ruth declining a transfer of a methamphetamine-related proceeding from the Nelson District Court to the Wellington District Court. The appeal was heard by Ellen France P, French and Winkelmann JJ in the Court of Appeal of New Zealand. Gibson's co-defendant, Mr Jones, had originally sought the transfer of the proceeding, and Gibson supported the application. Following a sentence indication, Mr Jones pleaded guilty and was sentenced to 22 months' imprisonment. Gibson argued that the publicity about Mr Jones, particularly in the Nelson/Marlborough area, would contaminate the jury and prejudice his right to a fair trial if the trial were to remain in Nelson. However, the Court of Appeal held that the proposed appeal was without merit. The Court found that much of the publicity in question had been nationwide and not confined to the Nelson area. There was no evidence that a Nelson jury would be less likely to follow standard directions about publicity and no evidence of any additional publicity about Mr Jones following his conviction and sentence. The Court held that before ordering a change of venue, a Judge must be satisfied there is a real risk a fair and impartial trial is not possible at the existing location. The Court found that the evidence relied upon by Gibson was not capable of satisfying that requirement.

The Court of Appeal dismissed the application for leave to appeal Judge Ruth's decision. The Court held that the proposed appeal was without merit, and that the evidence relied upon by Gibson was not capable of satisfying the requirement that there is a real risk a fair and impartial trial is not possible at the existing location. The Court found that the publicity about Mr Jones was not confined to the Nelson area, and that there was no evidence that a Nelson jury would be less likely to follow standard directions about publicity. The Court further held that the subsequent guilty plea of Mr Jones did not strengthen Gibson's argument for a change of venue. The Court dismissed the application for leave to appeal and no further appeal will be heard.

Orders