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…

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 Clements

Details

AGLC: R v Clements [2015] NZHC 2131
Case: [2015] NZHC 2131
Decision Date: 4 September 2015

CaseChat Overview and Summary

The case of R v Scott involved an application for severance of trial by Matthew Terry Scott, one of seven defendants facing multiple drug-related charges. The Crown Charge Notice contained 43 charges against the defendants, with Scott facing two charges related to conspiracy to supply methamphetamine and conspiracy to commit robbery. Scott applied for severance of his trial from the other defendants under section 138(4) of the Criminal Procedure Act 2011. The legal issue for the court was whether severance of Scott’s trial was in the interests of justice. The court considered the established principles for severance and joinder of trials, including the potential for prejudice, the relevance and connection between charges, and the public interest in efficient administration of justice. The court found that Scott’s charges were interconnected with those of his co-defendants, and severance would not be in the interests of justice due to the risk of inconsistent verdicts and duplication of evidence. The application for severance was dismissed.

The court acknowledged that the trial of Scott alongside his co-defendants could potentially prejudice him, given the large number of charges and the fact that Scott was only charged in relation to two of them. However, the court found that the potential prejudice was outweighed by the benefits of having all aspects of the joint enterprise considered at once, avoiding inconsistent verdicts, and preventing duplication of evidence and effort. The court held that appropriate directions to the jury could address any prejudice to Scott and that the public interest in efficient administration of justice and avoiding inconsistent verdicts mandated a joint trial. The application for severance was therefore dismissed.

Orders