R v C HC Hamilton CRI-2006-419-167

[2006] NZHC 1579

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI-2006-419-167

THE QUEEN

v

C

Defendant

Hearing:         14 December 2006

Appearances: Ms L Dunn for Crown

Mr R Laybourn for Accused Judgment:  14 December 2006 at 3.15 pm Reasons:  14 December 2006

REASONS FOR JUDGMENT OF LANG J

[on severance and transfer of charges to District Court]

Solicitors:

Crown Solicitor, Hamilton
Counsel:

Mr R Laybourn, P O Box 936, Hamilton

R V C HC HAM CRI-2006-419-167  14 December 2006

[1]      Mr C   currently faces 15 charges.     All of these arise out  of a police operation known as Operation Seal.   Mr C  , along with numerous other accused, is  scheduled  to  stand  trial  on  these  charges  in  a  lengthy  trial  commencing  on

5 February 2007.

[2]      Mr C   has now applied for an order that 12 of the charges that he faces be severed from the forthcoming trial and for a further order transferring those charges to the District Court for hearing.

The charges

[3]      Counts 4, 5 and 11 of the current indictment have as their basis the assistance that Mr C   is said to have provided, along with other persons, to a fugitive by the name of Kim Smith.   The Crown case is that Mr C   and others assisted Mr Smith to remain at large between 12 November 2004 and 19 August 2005, and that they thereby assisted him to prevent outstanding criminal charges from being determined.

[4]      The Crown contends that Mr C  , who lived in close proximity to a hut in which Mr Smith was residing, provided Mr Smith with supplies of food, drugs and ammunition.

[5]      Counts 18 to 29 arise as a result of a search that the police carried out of Mr C  ’s house at the time of his arrest on 26 July 2005.    When they searched his house they found a large number of firearms and also eight cannabis plants.   These charges relate to those items.

Severance

[6]      Mr Laybourn contends that the counts in respect of which severance is sought are  completely different  in  nature  and  have  no  relevance  to  the  other  charges. Moreover, he submits that the evidence relating to the items that were found at Mr C  ’s house will have a prejudicial effect and are likely to influence the jury in their consideration of the remaining three charges.

[7]      The Crown accepts that there is no evidence to suggest that Mr C   actually supplied Mr Smith with firearms or ammunition.   Its case against Mr Smith was also based on the premise that he had taken the firearms that were found at his hut with him when he  fled  from a  property at  Waingaro  where  he  had  previously  been residing.

[8]      In my view the evidence to be adduced in respect of Counts 18 to 29 will have no relevance to the charges that will be the focus of the trial commencing on 5

February 2007.    It may, in fact, tend to divert the jury’s attention away from the principal issues to be determined in that trial.    Moreover, I accept Mr Laybourn’s submission that there is likely to be an element of prejudice to Mr C   in the event that those charges are heard at the same time as the other charges.     Moreover, Counts 18 to 29 could be disposed of, in my view, in a trial of one to two days duration.

[9]      For these reasons I consider that Counts 18 to 29 should be severed from the other charges and I have made an order accordingly.

Transfer of proceedings to District Court

[10]     There is no reason why Counts 18 to 29 cannot be tried in the District Court. I make an order that they be transferred to that Court accordingly.

[11]     Mr C   is remanded on bail on existing terms to appear in the Hamilton

District Court on 26 January 2007 at 9 am.

Lang J