R v Edmonds

[2016] NZHC 2909

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

CRI-2016-029-000351 [2016] NZHC 2909

THE QUEEN

v

JESS LEIGHTON EDMONDS MARK NATHAN

Hearing:	1 December 2016
Appearances:	N J Dore for Crown D J Blaikie for J L Edmonds W D McKean for M Nathan
Judgment:	2 December 2016

JUDGEMENT (2) OF FOGARTY J

This judgment was delivered by Justice Fogarty

On 2 December 2016 at 2.30pm Pursuant to r 11.5 of the High Court Rules Registrar/Deputy Registrar

Date:…………………………

Solicitors/counsel:

Crown Solicitor, Whangarei
D J Blaikie, Whangarei

WRMK, Whangarei

R v EDMONDS & Anor [2016] NZHC 2909 [2 December 2016]

Introduction

[1] Messrs Edmonds and Nathan are charged with two charges: 3 and 4. Charges 1 and 2 are addressed in a separate judgment [2016] NZHC 2908.

[2]      Mr McKean, counsel for Mr Nathan, in respect of charges 3 and 4, advises that he withdraws the s 147 application on behalf of his client.  He asked the file to be noted that resolution is possible and asked that the matter be remanded to 9

February 2017.

[3]      In  respect  of  Mr  Edmonds,  his  counsel  Mr  Blaikie,  argues  for  a  s  147 discharge.

[4]      A drink can was found at the scene.   DNA testing could not exclude Mr Edmonds.  It was a partial DNA match.  However, it did not prove that the DNA was that of Mr Edmonds.   Mr Blaikie made an appropriate concession that it could be presumed that the green Challenger van identified by the victims, was Mr Edmonds’ but that did not prove that Mr Edmonds had driven it.

[5]      In his video statement, one of the complainants, Mr Diego Soriano, says that he saw four people behind the van.  A tall guy, skinny and wearing a hat, punched him and pushed him.  Two of the remaining three followed, one was a tubby man with a beard who pushed him to the floor and hit him again.

[6]      Mr Soriano noted that there was a fourth man – four or five steps away – looking.  His arms were folded. A photo montage was presented to both tourists and neither could identify Mr Edmonds.  The fingerprints of Mr Spicer and Mr Nathan were on the van where they would have been placed as the incident started with several of the men rocking the van.   It needs to be kept in mind that all this took place at around about 4am in the morning, in the dark.  Mr Williams, another co- defendant, was placed very much on the scene as a spot of blood of the female complainant, Ms Kurylowicz, was found on him.

[7]      Mr Blaikie submitted that no jury properly directed could convict the fourth male standing back with his arms folded, and that no jury properly directed could consider that the evidence excluded Mr Edmonds as being that man.

[8]      Ms Dore in reply, did not dispute the proposition that one of the males stood back, arms folded, and that there was no proof beyond a reasonable doubt that that male was directly involved in any of the violence.

[9]      Rather, she relied on the fact that properly directed, the jury could find that that person was a party, applying s 66.  She agreed that the tall skinny guy identified by Mr Soriano was clearly Mr Spicer and confirmed that Mr Williams had the woman’s blood on his clothing.  She produced photos of Mr Edmonds showing him having a short beard and submitted that the man with the arms crossed had no beard. She pointed out that Mr Soriano had been grabbed by a big man with a beard but that the man with crossed arms had no beard.

[10]     She pointed out properly though, it needed to be kept in mind that this was at

4am in the morning with very poor light.

[11]     In my view, the jury would never be sure as to who was the man with crossed arms who took no part, and that he was nonetheless a party to the offending.   It follows that no jury properly directed could find proven beyond reasonable doubt, that Mr Edmonds was one of the three involved in the violence and not the fourth man who stood by.

[12]     The application for discharge under s 147 in respect of charge number 4, in respect of Mr Edmonds, is granted.

Fogarty J