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)…

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 Edmonds

Details

AGLC: R v Edmonds [2016] NZHC 2908
Case: [2016] NZHC 2908
Decision Date: 2 December 2016

CaseChat Overview and Summary

In the High Court of New Zealand, the case of R v Edmonds and Nathan involved a Crown application to withdraw two charges against the defendants. The defendants were charged with wounding with intent to cause grievous bodily harm to Edward Murray and Ramon Herbert. The Crown sought to withdraw these charges under section 146 of the Criminal Procedure Act, allowing for the charges to be re-laid at any time, without amounting to a deemed acquittal. The withdrawal was opposed by the defence, who argued that it could cause unfair prejudice and violate the defendant's right to a prompt trial under section 25(b) of the Bill of Rights Act. The court considered the statutory framework, the nature of the proposed withdrawal, and the potential impact on the defendants' right to a timely trial.

The legal issues before the court were whether the Crown could withdraw the charges under section 146 of the Criminal Procedure Act without contravening the defendants' right to a prompt trial, and if the court could impose conditions on the withdrawal to ensure compliance with the defendants' rights. The court also had to determine whether the power to grant leave to withdraw charges included the ability to set conditions to protect the defendants' rights. The Crown argued for the plain language interpretation of section 146, while the defence highlighted the need for a balanced approach that considered the defendants' right to a prompt trial.

Justice Fogarty concluded that section 146 must be interpreted consistently with the defendants' right to a prompt trial under section 25(b) of the Bill of Rights Act. The court found that the power to grant leave to withdraw charges inherently included the power to set conditions to protect the defendants' rights. Given the potential for the victims to change their stance on providing evidence, the court imposed a condition that if the Crown wished to re-lay the charges, it must do so within one calendar year of the withdrawal. This condition aimed to balance the Crown's discretion with the defendants' right to a timely trial.

The final orders of the court were that leave was granted to the Crown to withdraw the charges against Edmonds and Nathan, subject to the condition that any re-laying of these charges must occur within one calendar year of the withdrawal. This decision ensured that the defendants' right to a prompt trial was protected, while still allowing the Crown the flexibility to manage the prosecution in the context of the ongoing circumstances.

Orders