R v Crichton HC Auckland CRI 2009-404-251

[2010] NZHC 1257

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2009-404-251

REGINA

v

DANIEL WILLIAM CRICHTON

Hearing:         19 July 2010

Appearances: Warren Cathcart and Steve Symon for Crown Daniel William Crichton in person with P Neutze (in attendance as a potential McKenzie Friend

Judgment:      19 July 2010

[ORAL] JUDGMENT OF HUGH WILLIAMS J.

[1]      There are two issues that need to be dealt with prior to the substantive aspect of this trial commencing tomorrow morning, 20 July, at 10:00am.

[2]      The present position is that Mr Crichton was arraigned this morning and pleaded not guilty to the 10 counts in the indictment relating to methamphetamine in May and June 2007 and one count relating to Class B.  He pleaded not guilty to all those counts but he was deliberately not put in charge of the jury to see whether a resolution, satisfactory to all parties, could be achieved before the putting in charge

occurs on 20 July.

R V DANIEL WILLIAM CRICHTON HC AK CRI-2009-404-251  19 July 2010

[3]      The two outstanding issues relate to it being asserted the Crown has failed to make all disclosure which it is obliged to make to Mr Crichton, and the question of Mr  Crichton’s  representation  or,  to  put  it  more  particularly,  his  wish  to  have Mr Neutze act as a McKenzie Friend for his trial.

[4]      Dealing with the question of disclosure first.  There has, for some time in this matter,  been  correspondence  between  the  parties  concerning  the  ambit  of  the Crown’s disclosure obligations.   Perhaps the most convenient to begin any consideration of that issue is a memorandum filed by Mr Crichton but probably drafted by Mr Neutze or another lawyer and dated 2 September 2009.  That includes a quote from a letter dated 31 August 2009, paragraph 17 of which reproduces three paragraphs concerning disclosure from a letter dated 15 August 2009.

[5]      The first matter where the Crown is said not to have made proper disclosure is “in respect of the disclosure obtained on Friday, assistance is required to obtain the briefs of evidence to be adduced at trial”.

[6]      Mr Crichton was initially charged concerning this matter jointly with another. Disclosure was undertaken at an earlier stage of this matter though of course on a combined basis.  That meant that the material delivered to Mr Crichton or his then counsel was rather broader in scope than that relevant to the charges Mr Crichton currently faces.

[7]      Over the period since 2 September 2009 the Crown has winnowed down the briefs and other material to isolate the documents and witnesses it considers relevant to the present charges.

[8]      It must be observed that because the current charges stem from interception warrants granted during the period of the alleged offending, the material is of considerable bulk and contains lengthy transcripts of the intercepted conversations.

[9]      It  also  needs  to  be  noted  that  during  the  course  of  this  prosecution Mr Crichton has been represented by a number of counsel – Mr Comeskey has acted, Mr Couchman has been consulted and acted for a time, Mr Newell, Ms Pecotic was

apparently involved at one point, and for quite a lengthy period Mr Roger Chambers was acting for Mr Crichton.

[10]     Mr Crichton, however, has parted company with all those lawyers for various reasons during the currency of the trial and has now opted to represent himself although he has signed a certificate that he is aware of his obligations and his rights under s 30 of the Sentencing Act 2002.

[11]     Part of the nub of the present complaint is that in the transmission of the disclosed material from one defence counsel to another, not all the material given to one counsel has been given to the next, and in fact Mr Neutze complains that a lot of the material had not been disclosed to him up until a conference on 15 July 2010. Mr Neutze, of course, was not counsel for Mr Crichton and was not entitled to disclosure to him.   He makes the point, however, that Mr Crichton has been a sentenced prisoner with only limited facilities to prepare for trial.    That notwithstanding, Mr Crichton has been on bail for part of the period.

[12]     The  current  position  concerning  this  particular  aspect  of  disclosure  is, however, that at the direction of the Court, a full additional copy of all the briefs, the documentary exhibits and the transcripts were delivered to Mr Crichton at Paremoremo on Thursday, 15 July, and a copy has been furnished to Mr Neutze. Nothing further, therefore, requires to be disclosed under this heading.

[13]     The second ground of objection relates to a Ms Nguyen and what are said to be inaccuracies in her statement to the Police.  She was a co-accused of Mr Crichton up to the point where she pleaded guilty and, importantly, was prepared to assist the Police at that stage by giving evidence.   She is no longer a witness to be called by the Crown and accordingly nothing further needs to be disclosed in relation to her.

[14]     The third category of documents is described as “disclosure of all primary evidence materials including all inquiries referred to in the call data search and interception warrants” plus a number of other categories to which reference will shortly be made.

[15]     The short answer to that is that all the call data and interception warrant material has been disclosed – at least last week, if not previously.  There may have been  material  preliminary  to  those  warrants  which  has  not  been  disclosed  but Mr Symon, who argued this part of the case for the Crown, says that if Mr Neutze cares to identify additional material which is properly discoverable, the Crown and Police will endeavour to assist.

[16]     The next category relates to a “digital copy of Northcoms Communications re

19/10/08”.   That, it appears from Mr Neutze’s submissions, relates to a suggested accommodation if not agreement between the Crown and Mr Crichton concerning the corollary matter of Mr Crichton’s participation in the return to the Waiouru Army Museum of a number of medals stolen from it.  That forms no part of this trial and accordingly no further discovery is required.

[17]     The next category relates to “copies of all correspondence between the Police and Vodafone and Telecom”

[18]     The answer to that is that not only does Mr Crichton have the transcripts, he has evidence in brief form from Vodafone and Telecom officers, evidence of the search warrants which were executed on those institutions and of course evidence of the SIM cards as they were investigated by an expert and the transcribed conversations.  It also ought to be noted that the probability is that at an earlier stage of this matter a CD-ROM was available to the defence of all the intercepted communications, and that it was for the defence to decide whether they wanted more material in the transcripts than currently appears.

[19]     The  next  category is  “copies  of  first  generation  re  all  call  data,  all  call data/interception warrants, handwritten monitor logs, associated Police inquiries as delineated in the warrants”.   Again, this is a category which now  seems to be covered to the required extent in the material served on Mr Crichton and Mr Neutze including the copies served last week.

[20]     On that basis, subject only to Mr Neutze or Mr Crichton identifying any further material to which they claim Mr Crichton was entitled and which is properly discoverable, all the issues of further discovery pass from consideration.

[21]     The next major matter relates to Mr Crichton’s wish to have Mr Neutze act as his McKenzie Friend during the trial.

[22]     The Crown  acknowledges that it is Mr Crichton’s right to  choose to  be legally represented or not and he can also apply for leave to have a McKenzie Friend to assist him during the trial.

[23]     However, the Crown says that in this case it would not be right to allow Mr Neutze to be a McKenzie Friend.  In support, they point to the reserved decision of the Full Court of this Court in Auckland District Law Society v Neutze[1]  which suspended Mr Neutze from continuing as a legal practitioner under the Law Practitioners Act 1983.

[1] Auckland District Law Society v Neutze CIV-2005-404-6154, 28 February 2006.

[24]     It is unnecessary to recount all the detail in the Full Court’s painstaking analysis of the complaints made against Mr Neutze save that it concluded that:[2]

[2] At [119]-[121].

[119]... it is not a case where Mr Neutze’s behaviour has been simply errors of judgment or tactical blunders.   The evidence shows persistent and serious shortcomings.  It has led to the abandonment of one trial and may lead to a re-trial in the Cavanagh case.

[120]If Mr Neutze is allowed to continue in practice there is a very real likelihood that further trials will have to be stopped or there will have to be re-trials on the grounds of his incompetence.

[121]... Persistent and serious incompetence of counsel, as we have found established in this case, is not in the interests of the public and they are entitled to be protected against it.  Furthermore, it is against the interests of justice.  It not only impacts upon the integrity of the legal system   and   Court   processes,   but   also   upon   jurors,   accused, witnesses, counsel and Judges, as well as the public at large who have a very real interest in the integrity of the legal system and the trial process.

[25]     The Crown takes the stance, in relation to this matter, that notwithstanding Mr  Crichton’s  right  of  choice  of  counsel  or  his  right  to  seek  leave  to  have  a McKenzie Friend, Mr Neutze should not be approved as that McKenzie Friend.  They suggest that Mr Neutze, by his acting with Mr Crichton in this matter, is likely to undermine the integrity of the trial process because of his continuing to act in the way the Full Court found warranted his suspension.

[26]     The question of McKenzie Friends is discussed by Robertson et al in Adams on Criminal Law[3]where the following appears:

[3] Adams on Criminal Law (looseleaf ed) vol.2 ch 5.3.04 p 5-109-110.

An accused who has chosen to conduct his or her case personally may, at the discretion of the Court, be permitted the assistance or benefit of another person who may sit with and advise the unrepresented accused.   Such an assistant is generally referred to as a “McKenzie Friend”: see McKenzie v McKenzie [107-] 3 All ER 1034; though the term “lay assistant” may be more technically correct (see R v Leicester City Justices ex p Barrow [1991]

3 All ER 935 (CA) and R v Taylor (No 1) 21/7/06, Miller J, HC Wellington

CRI-2004-091-4321).  The lay assistant may prepare submissions which the accused is to make:   R v Thompson 3/10/01, CA161/01;   and may make notes for, and suggest questions to, the litigant:   Mihaka v Police [1981]

1 NZLR 54. However, the assistant may not address the Court: R v Hill

[2004] 2 NZLR 145 (CA). There have been occasions where High Court

Judges, without referring to R v Hill, have permitted persons such as McKenzie Friends to take a more active role by way of making submissions or addressing the Court or questioning witnesses (see the recitals in R v McKinnon 4/5/05, CA240/04;   Thompson v Police 3/6/05, Cooper J, HC Auckland CRI-2005-404-57;   and Hemara v Superintendent, Wanganui Prison 13/12/04, MacKenzie J, HC Wellington CIV-2004-483-388).

The Court may place limits on the use of a lay assistant either as to the nature of that person’s involvement or as to the choice of the assistant:  R v Mitchell (1992) 9 CRNZ 537; ...

In R v Hill (above), the Court considered that it might be permissible for a legally qualified person to act as a McKenzie Friend, but was of the view, (without formally deciding the point), that a legal practitioner could not properly so act.  A lawyer is under no obligation, legal or professional, to act in this capacity against his or her will.

In Australia, it is regarded as a matter to be regulated by the Court in the trial Judge’s discretion:  Smith v R (1985) 159 CLR 532 (HCA). In New South Wales and Queensland, the Courts now generally refuse to allow the use of McKenzie Friends: R v E J Smith [1982] 2 NSWLR 608 (NSW CCA); R v Burke (1992) 56 A Crim R 242. In those jurisdictions, it seems that it is not permissible to have as a McKenzie Friend a legally qualified person who could have acted as counsel for the accused: R v E J Smith (above);  Re B

[1981] 2 NSWLR 372 (CA); NSW Bar Assn v Livesey [1982] 2 NSWLR

231 (NSW CA); R v Burke (above).

[27]     The position concerning McKenzie Friends is probably best described in one of the earliest decisions on the point in New Zealand, Mihaka v Police:[4]Hardie Boys J in that case cited from the original McKenzie case saying:[5]

[4] Mihaka v Police [1981] 1 NZLR 54.

[5] At 55-56.

In brief the situation is that subject to usage or statutory provisions Courts may exercise a discretion whether they will allow any and what persons to act as advocates before them.   Qualified barristers and solicitors have by usage become entitled to practise as advocates and could not lawfully be prevented from doing so.   An unqualified person may act in a purely ministerial capacity eg where a friend assists a litigant in person without attempting to act as his solicitor.  In the case McKenzie v McKenzie [1970]

3 All ER 1034 it has been held that:

“Any person whether he be a professional man or no may attend as a friend of either party, may take notes, may quietly make suggests and give advice.

In my view this would permit an unqualified person acting as a friend of a litigant to -

” (1) sit beside him in Court; (2) to take notes;  (3) to quietly make suggestions to the litigant and give advice;  (4) to propose questions and submissions to the litigant who may put the same;  and ... (5) the friend  should  not  be  permitted  to  address  the  Court  by  way  of making submissions or asking questions.”

[28]     To similar effect, see R v Mitchell[6] and R v Hill.[7]In the latter, the Court of Appeal considered whether a properly qualified lawyer holding a practising certificate, who had formerly acted for one of the accused, should have been appointed a McKenzie Friend given that his retainer by the accused had been terminated and he was not prepared to accept appointment as an amicus curiae.  The Court of Appeal discusses that somewhat different situation in detail and recounted the principal passage mentioned from R v Mihaka.   Counsel also referred to R v

Taylor,[8] a ruling by Miller J not permitting Mrs Taylor to act as a McKenzie Friend

for her husband but the personal circumstances attendant on that decision make the case of little precedent worth.

[6] R v Mitchell (1992) 9 CRNZ 537 at 539-540.

[7] R v Hill [2004] 2 NZLR 145.

[8] R v Taylor High Court Wellington, CRI-2004-091-4321, 21 July 2006, Miller J.

[29]     The situation, therefore, is whether Mr Crichton should be given permission to have Mr Neutze act as his McKenzie Friend.

[30]     Mr Cathcart, who argued this part of the case for the Crown, made the point that Mr Neutze, because he remains enrolled as a barrister and solicitor of this Court, is still an officer of the Court even if he holds no practising certificate entitling him to appear because of the suspension earlier mentioned.  He made the point that the Court has, at most, very limited control over a person who might still be an officer of the Court but has no entitlement to appear, and raised the spectre of other suspended lawyers wanting to appear and the possibility of it becoming an habitual practice. He also made the point that were suspended lawyers to be permitted to appear as a McKenzie Friend and receive any “gain or reward” from their so acting, a criminal offence would be committed under s 24(1)(a) of the Lawyers and Conveyancers Act

2006 (see also ss 26 and 27).

[31]     When the issue is rendered down to its essence, there is only one argument for allowing Mr Crichton to have Mr Neutze as his McKenzie Friend at this stage of the proceedings.  It is that this is a long-standing matter which has been adjourned on previous  occasions  and  has  been  subject  to  a  lengthy  interlocutory  history  and Mr Crichton has now reached the point where he has entered pleas of not guilty and the substantive trial has effectively already commenced by the empanelling of the jury.  It must be emphasised that this is an indulgence to Mr Crichton and, through him, to Mr Neutze, an indulgence effectively dictated by Mr Neutze’s involvement in the prosecution process to date and the fact that, the trial having started, there is really little alternative but to permit Mr Neutze to help Mr Crichton on legal matters in the unusual – even unique – circumstances.   It is also an indulgence without precedent value.

[32]     It is unknown, of course, what defences Mr Crichton may raise in opposition to the charges should he continue to defend them, but it must at least be conceivable

that difficult areas of law may come to the fore during the trial.  Mr Crichton is quite unable to argue those areas of law and as a result leave is granted to him to have Mr Neutze  act  as  his  McKenzie  Friend.    That  is  simply  an  expedient  because Mr Crichton has embarked on the trial and, in fairness to him and to endeavour to safeguard  the  integrity  of  the  trial  process,  he  is  entitled  to  have  somebody endeavour to look after his legal interests as the trial proceeds.

[33]     It must be emphasised however – both to Mr Crichton and to Mr Neutze – that Mr Neutze’s role is to be strictly confined to the way in which it was defined in Mihaka.  Mr Neutze is able to sit alongside Mr Crichton, take notes, quietly make suggestions  or  propose  submissions.    He  is  not  at  liberty to  make  submissions himself.  He is not to interrupt during the trial.  He is not to participate in any way beyond the Mihaka precedent.   And, if he does, then he and Mr Crichton need to understand that there will be every possibility that the Court will revoke the leave just given and refuse to allow Mr Neutze to carry on as Mr Crichton’s McKenzie Friend.

[34]     It has to be said - in the hearing of both - that Mr Neutze’s submissions during the argument on these matters this afternoon strongly suggest that he may still be subject  to the circumlocution and inability to answer direct  questions which characterised the cases discussed by the Full Court in the suspension proceedings.  If so, his assistance to Mr Crichton may be diminished.  But that, hopefully, will not arise  in  the  future.    For  the  present,  leave  is  granted  to  Mr  Crichton  to  have

Mr Neutze as his McKenzie Friend on the strict conditions outlined.

Solicitors:

.................................................................

HUGH WILLIAMS J.

Crown Solicitor, PO Box 2213 Auckland 1140

Email:   warren[email protected]/stev[email protected]

Copy To:

Daniel William Crichton, Auckland Prison, Private Bag 50 124 Albany, North Shore City 0752. Mr P Neutze, 34 School Road, Kingsland, Auckland 1021.

Case Officer:                   Raj[email protected]