R v H HC Napier CRI 2010-041-720

[2010] NZHC 1050

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

CRI 2010-041-720

QUEEN

v

H
R

Hearing:         11 June 2010

Counsel:         R J Collins and N Graham for Crown

E J Forster for Accused H 
W C Pyke for Accused R 

Judgment:      11 June 2010

ORAL JUDGMENT OF MILLER J

[1]      This judgment responds to an application under s 28J of the District Courts Act 1947 for an order that the accused Steven R   be transferred to the High Court for trial.   Associated with it is an administrative decision under s 184Q of the Summary Proceedings Act 1957, whether to direct that other charges against Mr R   be tried in the District Court.  The decision on the s 28J application will dispose of that matter.

[2]      Mr R   was arrested on 24 July 2009 after the police executed a search warrant at his property in Hastings.   Evidence consistent with the manufacture of

methamphetamine  was  found,  and  two  charges  were  laid.    The  charges  were

R V JAMES ANTHONY HADEN AND ANOR HC NAP CRI 2010-041-720  11 June 2010

manufacturing   methamphetamine   and   having   possession   of   equipment   and precursors with the intention that they be used for that purpose.

[3]      On 2 November 2009 I directed that the case be tried in the District Court at Napier after considering counsels’ middleband forms.   On 2 November 2009 an indictment was filed containing 22 counts.  It was apparently not before me when I made the middleband decision.  Apart from the original counts, there were charges of  possessing material  with  the intention  that  it  be used  in  the manufacture of methamphetamine, a count of conspiracy to manufacture, and 17 charges of offering to supply methamphetamine which related to Mr R   only.

[4]      On 22 February 2010 Mr R   moved to quash counts 5 to 22 on the basis that those counts were not supported by the depositions, contrary to s 345(1) of the Crimes Act.  The Crown accepts that the evidence in support of these charges was not part of the depositions.

[5]      On receipt of the application, the Crown filed a memorandum acknowledging that it had erred in including counts 5 to 22, and sought an adjournment of the trial to allow new informations to be filed and a committal made.   It intended to seek to have all the charges joined in the one indictment by way of amendment under s 345D.

[6]      On 25 February the police laid an additional 15 informations against Mr R  . They were the subject of committal on 13 May 2010.   Those are the charges in respect of which a middleband decision remains to be made.

[7]      Other applications are pending.   There is a s 344A application relating to certain information in the search warrant application.   It has been redacted in a disclosed copy because it is said to concern informants.  And an application for stay has been filed on the ground that it was an abuse to lay the 25 February charges when identical charges were the subject of the indictment filed on 2 November.

[8]      It has been agreed that the present hearing should be confined to the s 28J

application, leaving the other applications for future determination.

[9]      The s 28J application alleges simply that it is in the interests of justice that Mr R   and his co-accused be tried in the High Court.  Although brought by Mr R   alone, the application contemplates, inevitably, that both accused would be tried in this Court.  Through his counsel, Mr H   takes a neutral position.

[10]    Mr Pyke’s memorandum elaborates on the grounds, contending that the additional 15 charges elevate the seriousness of the methamphetamine offending to a higher level.  Further, there is the “difficult issue” of whether the Crown ought to be permitted to amend the first indictment or whether the new proceedings ought be stayed as an abuse.  There is also the question of disclosure, which is the subject of this s 344A application.  The allegation of abuse of process rests on Leckey v District

Court at Auckland.[1]   It is said that it is an abuse to lay identical charges at different

stages of the Court process.   Although Leckey has been distinguished in Lewis v Wright.[2]   It has not been overruled, and the District Court might be bound to follow Leckey.

[1] Leckey v District Court at Auckland (1992) 2 CRNZ 535.

[2] Lewis v Wright HC Auckland, AP 151/96, 14 August 1996.

[11]     It is not in dispute that the s 28J discretion allows the Court to consider the issue of transfer afresh, on the merits.[3]   The overriding principle is the interests of justice.  Relevant considerations include the gravity of the offence as charged, the complexity of the issues likely to arise in the proceedings, the desirability of prompt disposal, and the interests of justice generally.

[3] R v Cozens HC Rotorua, CRI 2006-087-1443, 24 May 2007.

[12]     It is not the case that an indictment containing numerous charges alleging the supply and manufacture of methamphetamine and involving two accused must be tried in the High Court.   Such cases are tried in the District Court as a matter of routine.  There is nothing especially complex about them, and it does not appear that there is anything significant about the present offending, which covered a period of approximately two months, or the quantities involved.

[13]     Nor does the dispute over disclosure of information contained in the search warrant application require transfer.  Such issues arise routinely, and the principles

are well-established.   There does not appear to be anything especially significant about the associated issue of disclosure of underlying Vodafone call data.   Nor is there any reason to suppose that the trial would be held more quickly in the High Court than in the District Court.  On the contrary, a District Court trial might be held before the end of the year, while a High Court trial would be held (at best) in the first quarter  of 2011.    However,  there  are  no  lay witnesses  for  the  Crown,  and  the accused, who are on bail, are content with the delay.

[14]     Accordingly, the sole condition that might justify transfer is the question of stay of the fresh charges and amendment of the existing indictment, which is effectively the same question.  Retention of all matters in the High Court would be warranted if the District Court is bound to follow Leckey in the circumstances, and the Crown is to contend that Leckey ought not be followed.

[15]     In that case, Justice Hillyer held that where identical charges had been laid both summarily and indictably, that the Crown ought to have sought leave to withdraw  the  first  set  before  laying the second.    To  duplicate  the charges  was contrary to the statutory scheme under the Crimes Act and Summary Proceedings Act and ultra vires and invalid.  The case was distinguished on its facts in Lewis v Wright, Morris J noting that the Court is slow to control the actions of a prosecutor, but it does not appear that it is ever been overruled.

[16]     Mr  Collins’  submission  is  that  no  question  of  abuse  arises.    A  sensible process has been followed and no question arises of Mr R   standing trial on charges that were not the subject of depositions under s 345.  Jurisdiction exists to amend the existing indictment and under s 345 an indictment is not necessarily bad if it includes charges not founded on the depositions.

[17]     However, this would require that the Court decline to follow Leckey, which does not appear to be materially distinguishable.  Mr Pyke also intends to argue that the question of remedy is complex.  As to that I express no view.

[18]     Accordingly, I accept that the case should be retained in the High Court.  The s  28J  application  is  granted,  and  I will  direct  on  the  papers,  as  the  legislation envisages, that the new charges are to be retained.

[19]     That gives rise to an issue immediately.  The date for filing the indictment on the new charges falls next week.  By consent there will be an order extending the time for filing the indictment until a date seven days after this Court delivers its decision, on the first of two sets of interlocutory applications.

[20]     The first set is Mr R  ’s application to stay a new indictment and quash the additional counts in the old indictment, coupled with the Crown’s application to amend that indictment.  The second set is the challenge to the search warrant and the request for disclosure of underlying Vodafone data.

[21]     It is appropriate now to timetable the first hearing.  I direct that the first set of applications be heard on 6 July and a half day will be allowed.  If Mr Pyke is able to deal with the matter on 3, 4 or 5 August, it may be set down on that day instead.

Miller J

Solicitors:

Crown Solicitor’s Office, Napier.