Gibson v The Queen
[2015] NZCA 549
•2 November 2015 at 4.30 pm
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA615/2015 [2015] NZCA 549 |
| BETWEEN | SCOTT MICHAEL GIBSON |
| AND | THE QUEEN |
| Court: | Ellen France P, French and Winkelmann JJ |
Counsel: | A J D Bamford for Applicant |
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 Bamford also submitted it was “wholly unfair” to expect defence counsel to “chance their arm” making a decision to call Mr Jones as a defence witness.
[5]Relying on the criteria in R v Leonard [2007] NZCA 452, [2008] 2 NZLR 218 at [13].
We did not accept those submissions.
In our view, the proposed appeal was without merit, such that leave should not be granted. Much of the publicity in question had been nationwide and not confined to the Nelson area. Not all of it was adverse to Mr Jones. There are numerous articles remaining on the internet that would be available to jurors in any city, but 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. 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.[6] In our assessment, the evidence relied upon by Mr Gibson is not capable of satisfying that requirement.
Result
[6]McNaughton v R [2012] NZCA 16 at [6](d), citing Te Wini v R [2011] NZCA 617 at [18]. Those cases were decided under the previous provision for changes of venue, s 322 of the Crimes Act 1961. We are satisfied the same principles apply to a change of venue under s 157 of the Criminal Procedure Act.
The application for leave to appeal is dismissed.
Solicitors:
Bamford Law, Nelson for Applicant
Crown Law Office, Wellington for Respondent
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