R v Helmbright
[2016] NZHC 958
•12 May 2016
ORDER PROHIBITING PUBLICATION OF THE JUDGMENT AND ANY PART OF THE PROCEEDINGS (INCLUDING THE RESULT) IN NEWS MEDIA OR ON THE INTERNET OR OTHER PUBLICLY AVAILABLE DATABASE UNTIL FINAL DISPOSITION OF TRIAL. PUBLICATION IN LAW REPORT OR LAW DIGEST PERMITTED.
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
CRI 2014-085-003701 [2016] NZHC 958
THE QUEEN
v
CLINT JOHN TUIRANGI HELMBRIGHT LEWIS CONSTANTINE PADDEN NICHOLAS JOHN VAN DER WIEL CLARKE JOHN PERSICO
MICHELE SUSAN CHAPMAN ELIZABETH WENDY MORRISON
Hearing: 10 May 2016 Counsel:
G J Burston for Crown
T W Fournier for Morrison and on instructions from
A J McKenzie for Chapman
B S Yeoman as Amicus CuriaeJudgment:
12 May 2016
JUDGMENT OF BROWN J
[1] The several charges against the six defendants are scheduled for a trial of some
10 weeks’ duration to commence in Wellington on 20 June 2016. The issue before the
Court is an invitation by the Crown for the Court to act on its own motion under s 138(4) of the Criminal Procedure Act 2011 and order that the seven charges against
R v HELMBRIGHT & ORS [2016] NZHC 958 [12 May 2016]
the defendant Morrison and the three charges against the defendant Chapman be severed and be the subject of separate trials in Christchurch.
[2] The making of such an order is resisted by both those defendants. Of the other four defendants, only the defendant Van der Wiel has indicated, in a memorandum of his counsel Mr Coles, that he resists the course the Crown proposes.
[3] The matter has had, what Simon France J described in his Minute of
4 March 2015, “a level of procedural complexity”. The defendants Morrison and
Chapman were initially charged separately from each other but each jointly with
Mr Helmbright. As the above Minute of Simon France J explained:
[3] The Crown reviewed matters and sought to establish its preferred trial structure by use of s 138 of the Criminal Procedure Act 2011. Concerning these defendants the Crown proposed to try them together, but separately from
Mr Helmbright and other Nebraska defendants. However at the time of application the two defendants had already pleaded, thereby meaning the Crown could not make changes as of right. Accordingly, in order to achieve its desired charging pattern, the Crown needed leave pursuant to s 138(2). That application was made on 25 July 2014.
[4] A Protocol determination was made that the charges against Mr Helmbright (and Messrs Padden, Van der Wiel and Persico) should be heard in the High Court. A separate Protocol decision was made directing that the charges against the defendants Morrison and Chapman should be heard in the District Court.
[5] The Crown’s application for leave under s 138(2) was then heard and determined by Judge W K Hastings on 26 January 2015. It would appear that Judge Hastings put the Protocol decision to one side, seemingly treating it as a nullity. He declined the Crown’s application, relevantly stating:
[8] This offending is related in time and circumstance. Much of the evidence will be relevant to many of the charges faced by all defendants. To sever these charges would require, at a minimum, the Police witnesses to give evidence in at least two trials, and possibly in more trials because there are greater evidentiary links between Morrison and Helmbright, and Chapman and Helmbright, than there are between Morrison and Chapman, making an application to sever Morrison from Chapman more likely if Morrison and Chapman are severed from Helmbright. In my view, these practicalities indicate that there would be considerable duplication of time and effort for witnesses and the court system. Further, the jury will already be hearing evidence relating to 168 charges against four defendants in the Helmbright
trial. To my mind, it is no great additional burden for the jury to hear evidence relevant to 12 more charges against two more defendants, all of whom are alleged to have been involved in the same offending uncovered by Operation Nebraska, when robust jury directions with respect to multiple defendants will already be required. Two or more juries raise the possibility of inconsistent verdicts. Two or more trials also raise the question of how guilty verdicts and convictions in earlier trials (if there are any) are to be dealt with in later trials. I do not therefore consider it to be in the interests of justice to grant the Crown’s application for leave to amend its s 138 notification in order to try Chapman and Morrison separately.
[6] It appearing that the jurisdiction of Judge Hastings to so decide was open to question given that it was arguable that the Protocol decision already determined the issue, Simon France J sought and received memoranda from counsel with reference to the way forward. In a Minute dated 18 March 2015 his Honour made an order recalling the Protocol decision of 25 August 2014 in respect of the defendants Morrison and Chapman. He said:
[2] Having considered counsel’s memoranda, and in light of the history of the matter, I consider the fairest option is to direct that the charges of both defendants be heard in the High Court, and be joined to the trial of
Mr Helmbright and others. This is scheduled to commence on 29 [June] 2015. I do not consider the addition of these defendants will unduly affect that trial.
[7] The matter proceeded from that point with all six defendants and a trial was set down for six weeks to commence on 29 June 2015. That trial was abandoned on the fourth day and the new trial date of 20 June 2016 was allocated at a callover on
9 October 2015.
[8] It appears that on a number of occasions the trial Judge, Clifford J, has expressed concern about the plurality of charges. The memorandum of Crown counsel dated 9 May 2016 drew attention to comments made by the Judge in Minutes of
9 October 2015, 29 January and 4 February 2016. In a Minute dated
16 February 2016 Clifford J recorded that he remained of the view that this was a case in which representative charges under s 20(2) of the Criminal Procedure Act might be used.
[9] In a Minute dated 7 March 2016 Clifford J reiterated his concerns and asked the Crown to update him by memorandum. The subsequent developments were explained in the memorandum of Crown counsel of 9 May 2016:
[15] In light of Clifford J’s concerns about the number of charges and the jury’s ability (sic) consider those charges the Crown reviewed the charges with the view to amalgamating some of the charges into representative charges. As the Crown understood it, the defendants Padden, Persico, Chapman and Morrison did not wish to have their charges amalgamated into representative charges.
[16] Following the Crown’s review of the charges, an application for leave to amend the current Crown Charge Notice to a draft Crown Charge Notice attached to the application was filed. The draft Crown Charge Notice withdrew the conspiracy charges as they would have added a significant level of complexity to the trial which was undesirable and avoidable. A number of charges were also amalgamated so that there were instead just over 120 charges.
[17] Since the filing of that application, counsel for Mr Van der Wiel has now indicated that Mr Van der Wiel does not wish to have his charges amalgamated either. An amended draft Crown Charge Notice will therefore need to be filed. This will likely have the effect of adding approximately half a dozen charges.
[10] As a consequence of the amalgamation of charges in respect of Mr Helmbright and the withdrawal of the conspiracy charges, the total number of charges has fallen from 180 to approximately 130. Of those, seven relate to Ms Morrison, only one of which is a standalone supply charge. The other six are all possession for supply charges related to charges of supply by Mr Helmbright to Ms Morrison.
[11] There are three charges relating to Ms Chapman, each of possession for supply and each related to a charge of supply by Mr Helmbright to Ms Chapman.
[12] The Crown submission explains that a large part of the Crown case relies on intercepted communications, both text messages and audio conversations. Of those intercepted communications, there are text messages and approximately 24 minutes of audio conversations relevant to the charges against Ms Morrison, and text messages and approximately 55 minutes of audio conversations relevant to Ms Chapman. Of course the same material will have to be adduced in relation to Mr Helmbright. Most of the remaining witnesses relevant to the defendants Morrison and Chapman are Christchurch police officers who will give evidence of observation and searches of their addresses.
[13] The Crown memorandum of 9 May 2016 explained:
25.It is submitted that at the time his Honour Judge Hastings heard the application for joinder, and indeed subsequently when Simon France J considered the protocol decision following the District Court judgment, the Court did not have any in-depth knowledge of the evidence or the likely issues the jury would need to consider in the main trial. Clifford J, as the trial judge, is best placed to consider the issues associated with the trial and he has expressed concerns about the number of charges before the Court, and expressly noted the s 138(4) discretion in para 9 of his Minute of 9 October, set out above.
26.The Crown is not suggesting the complexity of this trial is reduced simply because the nine charges relating to the defendants Morrison and Chapman would no longer be before the jury; rather severance of the charges would reduce the complexity of the trial by removing two additional lines of cross-examination and defences that the jury would need to follow and consider throughout the trial. It would also reduce the number of closings and the length of the Crown closing address and the trial Judge’s summing up that the jury would need to consider.
27.The Crown is not attempting to re-litigate the matter. The issues regarding the potential difficulties for the jury raised by the number of charges before the jury has been raised by the Court. Severance of the defendants Morrison and Chapman is a straightforward method of reducing the complexity of the matters the jury has to consider. As Clifford J noted, the Court has the ability to order severance on its own motion.
[14] Mr Burston drew attention to R v Tukuafu,1 a case involving seven accused tried on 118 counts, where a ground of appeal against conviction was that the complexity and length of the trial resulted in such unfairness to the accused as to amount to a substantial miscarriage of justice warranting the quashing of the guilty verdicts. Although the Court of Appeal found that there had been no miscarriage of justice and that the case had not been one of unmanageable complexity, Mr Burston emphasised the importance of avoiding the risk of a contrary outcome.
[15] I am conscious of the Crown’s concern to avoid a challenge to a verdict of the nature run in Tukuafu. I also recognise the Crown’s efforts to respond to the concerns expressed by Clifford J. Although some progress has been made, the number of
charges is still substantial.
1 R v Tukuafu [2003] 1 NZLR 659 (CA).
[16] However I am not persuaded that the interests of justice warrant my intervening at this comparatively late stage of the matter to order a severance of the trial so far as the defendants Morrison and Chapman are concerned. My reasons are:
(a) the matter has proceeded on the basis of a trial of all six defendants since the Minute of Simon France J of 18 March 2015;
(b) counsel for the defendants have prepared for trial on that basis;
(c) I consider that the analysis of Simon France J as to the “fairest option”
in March 2015 remains valid today;
(d) the factors which weigh against severance as explained by
Judge Hastings are considerable;
(e) so far as nine out of the 10 charges involving the defendants Morrison and Chapman are concerned, there is a substantial overlap with the evidence to be led against Mr Helmbright;
(f) there has been a significant reduction in the total number of charges which goes some way to ameliorating the position.
[17] Consequently while I accept that the Crown’s invitation is well intentioned, in all the circumstances I decline to make an own-motion order under s 138(4).
Brown J
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