R v Clements

[2015] NZHC 2131

ORDER PROHIBITING PUBLICATION OF THE JUDGMENT AND ANY PART OF THE PROCEEDINGS (EXCEPT THE RESULT) IN NEWS MEDIA OR ON THE INTERNET OR OTHER PUBLICLY AVAILABLE DATABASE UNTIL FINAL DISPOSITION OF TRIAL. PUBLICATION IN LAW REPORT OR LAW DIGEST PERMITTED.

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2014-063-3363

[2015] NZHC 2131

THE QUEEN

v

NICHOLAS CLEMENTS GEORGE GAITAU SCOTT MACPHERSON

MATTHEW TERRY SCOTT JOSHUAH TANIORA

STACEE LEIGH WAITI AND JAMES BRODIE YOUNG

Hearing:	3 September 2015
Counsel:	B R Northwood for Crown (Respondent) J I S Kovacevich for Mr Scott (Applicant)
Judgment:	4 September 2015

JUDGMENT OF ANDREWS J

[Application by Matthew Terry Scott for discharge]

This judgment was delivered by me on 4 September 2015 at 9.45am pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar

Solicitors:

Crown Solicitor, Auckland
 Counsel:

J I S Kovacevich, Auckland

R v SCOTT [2015] NZHC 2131 [4 September 2015]

Introduction

[1]    Mr Scott is one of seven defendants facing charges under a Crown Charge Notice containing 43 charges.1 In the main, the charges allege drug-related offending (principally, in relation to methamphetamine).

[2]Mr Scott faces two charges, as follows:

Charge 40:      That GEORGE GAITAU and MATTHEW TERRY SCOTT

on or about 5 November 2014, at Auckland, conspired to supply the Class A controlled drug methamphetamine to another person.

Charge 42:      That GEORGE GAITAU, JOSHUAH TANIORA and

MATTHEW TERRY SCOTT between 4 November 2014 and 5 November 2014, at Auckland, conspired together and with others to rob an unknown person of cash, while being together with another person or persons.

[3]    Mr Scott has applied for severance of his trial, under s 138(4) of the Criminal Procedure Act 2011.

Alleged factual background

[4]    As set out in the Police summary of facts, it is alleged that in the early afternoon of 3 November 2014, Mr Scott told Mr Gaitau that he had an associate who was looking for a “quarter pounder”. It is alleged that “quarter pounder” was a code word for a quarter of an ounce of methamphetamine. It is alleged that the following morning, at around 5.39am, Mr Scott sent a text to Mr Gaitau, asking if he could source the “quarter pounder” previously requested. Mr Gaitau responded that he could. Mr Scott later asked about sourcing it quickly, and was told to contact an associate.

[5]    It is further alleged that the following evening, Mr Scott asked for “half a big mac with lemonade”. It is alleged that “big mac” is a code word for an ounce of methamphetamine. Mr Gaitau later spoke with Mr Scott about his request and it appears that there was some confusion as to the amount of methamphetamine. Later the same evening, Mr  Gaitau and Mr Scott  communicated by text  message and   Mr Scott confirmed that he was seeking half an ounce of methamphetamine, and

1      One defendant, Elias Richard Robert Gaitau, was discharged on 3 September 2015.

would not pay for it in advance. Mr Gaitau then quoted a price of $5500 for half an ounce of methamphetamine.

[6]    In respect of Charge 42, it is alleged that Mr Gaitau, Mr Scott, and Mr Taniora conspired to commit aggravated robbery. It is alleged that on 4 October 2014 Mr Gaitau spoke with Mr Taniora and asked if he wanted to “do a mission”. This is alleged to be a code word for a robbery. It is alleged that Mr Gaitau indicated that there was a woman who could be robbed and that they would be able to make $7000. It is alleged that Mr Gaitau then spoke with another associate, saying that he had an “earn at around 5 o’clock”. It is alleged that this is a code word for making money.

[7]    Later the same evening, Mr Gaitau spoke with Mr Scott and asked if the “mission was still on”. It is alleged that Mr Scott confirmed that it was but said that it had been delayed. Mr Gaitau then confirmed with Mr Scott the identity of the victim. It is alleged that later that evening, Mr Gaitau spoke with Mr Taniora and advised that he was still waiting for a call advising when the victim was to be at a planned location.

Approach to severance

[8]    Pursuant to s 138(4) of the Criminal Procedure Act, the Court may order that charges against a defendant be heard separately if it “thinks it is in the interests of justice to do so”. In Churchis v R,2 the Court of Appeal summarised the law applying to applications for severance and joinder. The Court observed:

[28] Counsel were agreed that the principles applicable under s 138(4) are materially the same as those under the former s 340 of the Crimes Act 1961. These are well settled and include the following:

(a)Offending that is unrelated in time or circumstance should not be tried together, unless the evidence of one incident is relevant to another to an extent that its probative value outweighs its prejudicial effect. That relevance may arise in a variety of circumstances, such as where the facts are so similar or the allegations interconnected to a point that it would be artificial to present them separately.

(b)Joinder may be granted if evidence relevant to one count is also relevant to one or more other counts.

(c)The practicalities of the criminal process may be taken into account including the degree of connection between the charges; the impact of

2      Churchis v R [2014] NZCA 281 at [28].

successive trials on the accused and witnesses; and the likely effect of publicity of the first and subsequent trials.

(d)Prejudice to the accused is a factor to be taken into account. The fact that the accused may be obliged to give evidence is a relevant but not a decisive consideration.

(e)The discretion is wide. In the end, what is required is a balancing between the legitimate interests of an accused and the public interest in the fair and efficient despatch of the Court’s business.

(references omitted)

[9]    It is also necessary to bear in mind that “joint trials of those involved in a joint criminal case are in the public interest, and are the norm”.3

Submissions

[10]   Mr Kovacevich referred me to the number of charges in the Crown Charge Notice, and the fact that Mr Scott is charged with only two charges, out of a total of 43 charges. He submitted that the prejudicial effect of Mr Scott being tried on two charges, when so many other charges will be before the jury outweighs any benefit in having a single trial. He further submitted that the allegations against Mr Scott are not so interconnected with the other charges as to warrant a joint trial. Mr Kovacevich also noted that Mr Scott is named as a recipient of methamphetamine in Charge 34, but is not charged with possession on that charge. He submitted that this was another potential source of prejudice against Mr Scott.

[11]   With respect to the “norm” of defendants who are jointly charged being tried together, Mr Kovacevich submitted that there are many cases where separate trials are held in respect of various defendants. He submitted that that course of action is adopted as a matter of practicality, and could be employed in the present case.

[12]   On behalf of the Crown, Mr Northwood submitted that the “norm”, pursuant to which Mr Scott should be tried with those with whom he is jointly charged, should prevail. He submitted that to sever Mr Scott’s trial would create an improper state of affairs, with Mr Taniora and Mr Gaitau being tried in one trial, and Mr Scott in another.

3      See R v Smith [2008] NZCA 266 at [14] and F v Fenton CA223/00, 14 September 2000 at [25].

[13]   Mr Northwood acknowledging that if Mr Scott’s trial is not severed, he would be required to remain in a trial which, in large part, does not concern him. However, he submitted that that is not unknown in trials of this nature, and juries can and do accept directions as to confining their consideration of charges to the particular evidence relating to those charges (that is, not assuming any guilt by association). Similarly, he submitted that the matter of the charge in which Mr Scott is said to be a recipient of methamphetamine can be dealt with by way of an appropriate direction to the jury. He added that this is a relatively minor matter, involving an alleged supply of no more than one gram of methamphetamine.

[14]   Further, Mr Northwood submitted that if Mr Scott were to be tried separately from Mr Taniora and Mr Gaitau, there would inevitably be a duplication of the evidence relating to the two charges. He submitted that it is important to keep the co- defendants in the one trial, so as to avoid any risk of inconsistent verdicts.

[15]   Finally, Mr Northwood submitted that other cases where there were separate trials of various defendants did not, in his experience, ever involve splitting the trials of charges as between defendants.

Analysis

[16]   I am not persuaded that this is a case where severance should be ordered. This is particularly because Mr Scott is, in relation to both of the charges against him, charged with one (Charge 40) or two (Charge 42) co-defendants. The two co- defendants are also charged under other charges in the Crown Charge Notice. I am satisfied that it would be inappropriate to have separate trials of Mr Scott and his co- defendants on those charges. The reason is obvious, as set out in R v Fenton:4

… to avoid the risk of inconsistent verdicts, to have all aspects of a joint enterprise considered at one and the same time, and to prevent duplication of time and effort for witnesses and the Court system generally.

[17]   I am satisfied that separate trials would involve a duplication of evidence. Quite apart from the risk of inconsistent verdicts, it is not in the public interest, or the

4      R v Fenton, above n 3.

interests of the proper administration of justice, to require witnesses to attend at Court to give the same evidence on different occasions.

[18]   Further, I am satisfied that any possible prejudice to Mr Scott by being required to remain in a trial with his co-defendants is well capable of being addressed by appropriate directions to the jury.

Result

[19]The application for severance is dismissed.

Andrews J