R v B HC Tauranga CRI-2007-070-1344

[2008] NZHC 1637

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

CRI-2007-070-1344

THE QUEEN

v

B
 K
 K
 M

Hearing:         15 October 2008 (Heard at ROTORUA)

Appearances: Mr G Hollister-Jones for Crown

Mr C Horsley for Accused

Judgment:      20 October 2008 at 3 pm

JUDGMENT OF LANG J

[on application for order transferring proceedings from District Court to High Court]

Solicitors:

Crown Solicitor, Tauranga

Adams & Horsley, Tauranga

R V B AND ORS HC TAU CRI-2007-070-1344  20 October 2008

[1]      The accused in this proceeding face charges laid under the provisions of the

Misuse of Drugs Act 1975.

[2]      On 7 August 2008 Asher J exercised his powers under s 168A(a)(ii) of the Summary Proceedings Act 1957 to transfer the trial of the proceeding to the District Court at Tauranga.   He did so in the belief that the District Court at Tauranga would be able to readily accommodate a trial involving four  accused.     Subsequently, however, concerns arose regarding the appropriateness of the District Court at Tauranga as a venue for a four accused trial.    On that basis the Court invited the Crown to apply for an order under s 28J of the District Courts Act 1947 transferring the trial back to the Rotorua High Court.

[3]      The accused oppose the application.    They say that the trial can be held in the District Court at Tauranga and that it should remain there.   They do not accept that any valid reason exists for the trial to be transferred back to the High Court at Rotorua.

[4]      The issue is really one of practicality.     It was common ground between counsel that the jury trial courtroom in Tauranga can physically accommodate a trial of four accused.   Counsel for the accused, Mr Horsley, told me from the bar that he had personally been involved in two trials at the District Court in Tauranga when four or more accused were tried.   He accepted that there might be some discomfort, but he pointed out that that would be suffered by his clients alone.  He said that they were prepared to accept that discomfort because they all wish the trial to proceed in Tauranga.   Several of the accused live in Tauranga.   All counsel are from Tauranga and the majority of the witnesses are also from the Tauranga area.   The events that have given rise to the charges also occurred in the Tauranga district.

[5]      In those circumstances I do not believe that I can go beyond the wishes of the accused.    In reality, they are the only people directly affected by the concerns that the Court has raised.   If they are prepared to accommodate the possible discomfort that a trial in Tauranga is likely to produce, they should be permitted to do so.

[6]      In reaching that conclusion I have not ignored the submission for the Crown that the wider interests of justice need to be taken into account.   These include the fact that the Tauranga District Court has a substantial number of trials awaiting hearing, and that this trial will simply add to the list.

[7]      This is, however, now a trial of only three or four days duration.     The transfer of a single trial back to the High Court will not realistically assist in clearing the backlog in Tauranga.   Timing is not an issue either.   Both the District Court and this Court would be able to provide a fixture in or about May 2009.

[8]      The wider interests of justice therefore do not require the proceeding to be transferred back to the High Court.

[9]      For the reasons I have given, the application is dismissed.

Lang J