R v Edmonds

[2016] NZHC 2908

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

CRI-2016-029-000351 [2016] NZHC 2908

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

JUDGMENT (1) 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 2908 [2 December 2016]

Introduction

[1]      Messrs  Edmonds  and  Nathan  are  both  charged  together  with  other  co- defendants that on 25 March 2016 at Ahipara, with intent to cause grievous bodily harm to Edward Murray, wounded Edward Murray (charge 1) and further, that on the same day and place with intent to cause grievous bodily to Ramon Herbert, wounded Ramon Herbert (charge 2).

[2]      In  respect  of  the  involvement  of  Messrs  Edmonds  and  Nathan  in  these charges, the Crown seeks to withdraw these two charges with the leave of the Court as allowed by s 146 of the Criminal Procedure Act.

[3]      If granted, the consequence of this withdrawal of charges is that the charges can be re-laid at any time.   The withdrawal of the charges does not amount to a deemed acquittal as is the consequence with s 147.

[4]      Section 146 carries over the previous ability under s 36 of the Summary Proceedings Act  1957  to  withdraw  a  charge  in  a  summary jurisdiction  without prejudice to future proceedings.

[5]      This application is opposed.

[6]      The Crown summary of facts is that at about 10pm on 24 March 2016, Mr Nathan and Mr Edmonds with other persons, in Mr Edmonds’ green Mitsubishi Challenger, arrived at an address in Kaitaia. Another defendant, Mr Spicer, entered a shed on the property and stood over the victim, Mr Herbert, who was sitting on the couch.  The defendant Spicer, began punching the victim Mr Herbert in the face with his right and left fist.  The other defendants, including Mr Edmonds and Mr Nathan, became involved  in  the assault  on  Mr  Herbert  and  Mr  Murray.   These victims received serious injuries.

[7]      However,  these two  victims  have refused  to  give evidence or make any statement.  The Crown says they are also gang members (of another gang) but are following the gang practice in this regard.

[8]      This application is opposed.   Mr Blaikie, counsel for Mr Edmonds, argued that  the  law  prior  to  the  Criminal  Procedure Act  2011,  allowed  charges  to  be withdrawn prior to the indictments being laid, essentially after the depositions.  So that there was a discretion as to charging prior to and during the depositions which ended after the depositions.

[9]      However, there now being no depositions, s 146 potentially would cause an unfair prejudice if it was possible at any later time to re-lay the charges.  He prayed in aid the Bill of Rights Act, s 25(b) which provides that every person charged with an offence is entitled to a prompt trial:

25 Minimum standards of criminal procedure

…

(b) the right to be tried without undue delay:

[10]     Mr McKean for Mr Nathan, spoke in support.

[11]     Ms Dore, for the Crown, relied upon the plain words of s 146.  She did not integrate the Bill of Rights into her argument.  It is obvious from the fact that she made the application under s 146 that the Crown implicitly accepted that an application if made under s 147 by the defendants was likely to succeed.   She emphasised that the power was deliberately given in s 146 to apply for charges with leave of the Court before trial.

Discussion

[12]     Plainly an application under s 146 can only be granted with the leave of the Court.  That means that Parliament has left a discretion with the Court whether to grant or reject such applications.  It is clear that s 25(b) of the Bill of Rights Act must be brought into consideration or, to put it another way, that s 146 must be interpreted as consistently as possible with s 25(b) by reason of s 6 of the New Zealand Bill of Rights Act.

[13]     In support of the Crown’s arguments, there is no doubt that Messrs Nathan and Edmonds were in the vicinity.  There is no real dispute that the green Challenger belonged to Mr Edmonds.

[14]     It is unlikely that the predicament of the Crown will change.  It would require the victims – members of another gang – to change their code.  But they might.

[15]     I questioned counsel as to whether or not implicit in the grant of leave by Parliament was the power of the High Court to set conditions of time.   Naturally enough Messrs Blaikie and Spencer disputed that proposition.

[16] In my view, however, a purposeful construction of s 146, applying s 5 of the Interpretation Act carries within it that the power given to the Court to grant leave includes the power to set terms as to the leave.

[17]     There is a possibility that the victims may make statements. Any leave has to be on terms consistent with the requirements of s 25(b) of the Bill of Rights Act.

[18]     Leave is granted to the Crown to withdraw these two charges, subject to the condition that if the Crown seeks to take advantage of subsection 2 of s 146, such

advantage must be taken within one calendar year of the withdrawal.

Fogarty J