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R v Antonievic

R v Antonievic

Case [2012] NZHC 2686 24 October 2012

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IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY

CRI 2011-042-000884
CRI 2011-042-000869
CRI 2011-042-001092
CRI 2011-042-000890
CRI 2011-042-000904
CRI 2011-042-000882
CRI 2011-042-003516
CRI 2011-042-000903
CRI 2011-042-000874
CRI 2011-042-000876
CRI 2011-042-000888
CRI 2011-042-000899
CRI 2011-042-000907
CRI 2011-042-000877
CRI 2011-042-000871
CRI 2011-042-000881
CRI 2011-042-001549
CRI 2011-042-000879
CRI 2011-042-000878
CRI 2011-042-000900

CRI 2012-042-000684 [2012] NZHC 2686

THE QUEEN

v

TAYLOR IVAN ANTONIEVIC THOMAS JOSEPH BASHFORD NATALIE JEAN BUSCH
COLIN CHINNOCK JORDAN JOHN DALY

JASON PETER GEORGE FRIEND JASON PAUL GRIFFITHS GRANT ROY HAYWARD TERRY JONES
HAYLEY JOANNE KIRKWOOD MARK JAMES LEE
RUSSELL PHILLIP LLOYD JOSEPH MARK PAHL GREGORY JON PAGE

R V TAYLOR IVAN ANTONIEVIC HC NEL CRI 2011-042-000884 [24 October 2012]

ROGER PAUL PATRICK GLYN PATRICK RUTLEDGE CRAIG PETER SMITH DAMIAN JOHN STACEY ROBERT JOHN STEWART GLEN ROSS THOMPSON
TREVOR JOHN MOMO WILSON

Hearing: 10 July 2012

Counsel: J Webber for Crown
H W Riddoch for Daly and Smith
P B H Hall and S W Rollo for Stacey, Lee, Bashford and Patrick
S W Rollo for Pahl and Friend
A N D Garrett for Chinnock
K H Cook for Griffiths and Kirkwood
L Acland (on instructions) for Jones, Lloyd, Page and Rutledge
No appearance for Busch, Hayward, Stewart, Thompson and Wilson

Judgment: 24 October 2012

JUDGMENT OF SIMON FRANCE J

Introduction

[1] This judgment addresses an application to halt the prosecution of twenty-one people charged with a variety of drugs and other offences. The charges stem from a covert investigation of the Red Devils Motorcycle Club in Nelson. Ten of the accused who were most involved with the Club also face charges of participating in an organised criminal group.

[2] It is established law that in exceptional circumstances a court should prevent charges being heard in order to protect the integrity of the wider criminal justice system. The accused in this case submit that the actions of the police during the investigation are so contrary to proper and acceptable practice that they amount to an abuse of process necessitating a stay of proceedings.

Relevant law

[3] The framework for consideration of an application such as this can be found in the judgment of Richardson P in Moevao v Department of Labour.1 There have been more recent discussions in the United Kingdom which explore more fully the conceptual underpinning of the abuse of process doctrine,2 but in my view Moevao defines the role of a New Zealand court in this area:3

It is not the purpose of the criminal law to punish the guilty at all costs. It is not that that end may justify whatever means may have been adopted. There are two related aspects of the public interest which bear on this. The first is that the public interest in the due administration of justice necessarily extends to ensuring that the Court’s processes are used fairly by State and citizen alike. And the due administration of justice is a continuous process, not confined to the determination of the particular case. It follows that in exercising its inherent jurisdiction…

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 R v Antonievic

Details

AGLC: R v Antonievic [2012] NZHC 2686
Case: [2012] NZHC 2686
Decision Date: 24 October 2012

CaseChat Overview and Summary

The case involves an application to halt the prosecution of twenty-one people charged with various drug and other offences, which stem from a covert investigation of the Red Devils Motorcycle Club in Nelson. Ten of the accused who were most involved with the Club also face charges of participating in an organised criminal group. The accused submit that the actions of the police during the investigation are so contrary to proper and acceptable practice that they amount to an abuse of process necessitating a stay of proceedings. The court considered the relevance of the abuse of process doctrine in exceptional circumstances where charges should be halted to protect the integrity of the wider criminal justice system. The court found that the police actions amounted to a serious abuse of the court's processes, including the use of a fake search warrant and the laying of false charges, which reflected a significant misunderstanding of the role of the court. The court concluded that a significant response was appropriate, and all prosecutions of the twenty-one accused in relation to charges fairly said to flow from the Operation Explorer investigation were stayed by order of the Court.

Orders