R v Helmbright
[2016] NZHC 375
•7 March 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-2014-085-3701
[2016] NZHC 375
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: 26 February 2016 Counsel:
E M Light for Crown
E J Forster for Helmbright L C Padden in Person
S N Hewson for Van der Wiel S J Gill for Persico
A J McKenzie for Chapman
T W Fournier (via AVL) for Morrison B S Yeoman as Amicus Curiae
Judgment:
7 March 2016
JUDGMENT OF CLIFFORD J
R v HELMBRIGHT [2016] NZHC 375 [7 March 2016]
[1] The defendants are to be tried in the High Court at Wellington on a range of drug offending charges. Essentially, the Crown alleges that Mr Helmbright was at the centre of a group of people, comprising the other defendants and others, with and through whom he dealt in methamphetamine, BZP and cannabis. At the trial, evidence is to be called by the Crown from a number of witnesses who have already pleaded guilty to the charges they faced based on their involvement with Mr Helmbright.
[2] The Crown has applied under s 103 of the Evidence Act 2006 that the witnesses Robinson, Hemopo, Dinsdale-Dette, Forsyth, Reed and Osbourne give their evidence behind a screen so that they will not be able to see Mr Helmbright. As required by the Evidence Act, Mr Helmbright would be able to see the witness. It is, I am told, not possible to only screen Mr Helmbright. Accordingly, a witness giving evidence from behind a screen at this trial would also not be able to see Mr Helmbright’s co- defendants.
[3]The grounds for the Crown’s application are:
(a)that given the nature of the evidence the witnesses are expected to give at trial, such directions are necessary to reduce the stress on the witnesses;
(b)that given the history of this matter such an order will ensure the trial is not disrupted by intimidating behaviour by any defendant;
(c)that given the nature of the relationship between the witnesses and the defendant, such directions are necessary to reduce the stress on the witnesses; and
(d)that the fairness of the proceeding can still be ensured if the witnesses given evidence in this way.
[4] Mr Helmbright, and Messrs Padden, Persico and Ms Chapman take a neutral position. Mr Van der Wiel and Ms Morrison oppose. They do so on the basis of the prejudice that could arise by their being associated with Mr Helmbright and by reason
of possible jury speculation as to the circumstances that had given rise to the use of the screen.
[5] The background to this application is somewhat unusual, but for these purposes can be briefly stated.
[6] The forthcoming trial of the defendants is a re-trial. The first trial was aborted only days after it began, following incidents in the courtroom when Mr Helmbright was observed making what were considered to be (by two members of the jury and a Corrections officer) intimidatory gestures when the witnesses Hemopo and Dinsdale- Dette were giving their evidence. Subsequently Mr Helmbright was charged with two counts of attempting to pervert the course of justice by attempting to intimidate each of those witnesses when they were testifying against him. Mr Helmbright was tried before a Judge alone in this Court in late-September last year.
[7] Mr Hemopo was a witness for the Crown at that trial. Ms Dinsdale-Dette was called by Mr Helmbright. On 13 October 2015 Mr Helmbright was convicted on one of those charges (involving the witness Dinsdale-Dette) and found not guilty on the other.
[8] As regards the charge Mr Helmbright faced in relation to Mr Hemopo, the Judge was left with a real doubt as to exactly what gestures Mr Helmbright made when Mr Hemopo gave evidence, although – as the Judge put it – he was left with real suspicion. In finding Mr Helmbright guilty of the charge of attempting to intimidate Ms Dinsdale-Dette, the Judge accepted the evidence of the member of the jury who had observed what he regarded as intimidatory gestures. He also accepted that person’s evidence that Ms Dinsdale-Dette had seen Mr Helmbright make those gestures, although Ms Dinsdale-Dette herself denied that. The Judge accepted, moreover, that Ms Dinsdale-Dette had “fallen away” from her written statement at the very time when the member of the jury observed what he regarded as a threatening look and a message from Mr Helmbright to Ms Dinsdale-Dette to “shut her mouth”.
[9] Ms Dinsdale-Dette gave no evidence that Mr Helmbright made gestures as alleged by the Crown, said she was already intimidated by Mr Helbright, and had not
seen the gestures Mr Helmbright was said to have made. The Judge did not accept that evidence. In the course of reaching his verdict, the Judge also recorded that Ms Dinsdale-Dette exhibited a degree of fearfulness in giving evidence at the “intimidation” trial. That explained, in part the Judge said, why he did not regard her evidence as credible.
[10] Section 103 of the Evidence Act provides that an alternative evidence direction may be given in a number of circumstances, including by reference to “the witness’s fear of intimidation”. In the case of Ms Dinsdale-Dette, there is little doubt that that criterion is met. I consider it appropriate that Ms Dinsdale-Dette give her evidence behind a screen. A direction to the jury, recording that the Court considers that appropriate given the nature of her evidence against Mr Helmbright, and that the Court’s decision has nothing to do whatsoever with any other defendant, will address any prejudice.
[11] Mr Hemopo was not intimidated and, based on his own evidence, does not fear intimidation. There is no information before me relating to the other witnesses (Robinson, Reed, Forsyth or Osbourne). I am, therefore, not minded to make such a direction in the case of anyone other than Ms Dinsdale-Dette, at least as at the present time. In reaching that conclusion, I note that I consider it most unlikely that there will be any repeat of the circumstances at the first trial.
Clifford J
Solicitors:
Crown Solicitor, Wellington
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