OCCUPATION OR IDENTIFYING PARTICULARS OF PERSON KNOWN AS “WITNESS A” PURSUANT TO S 202 CRIMINAL PROCEDURE ACT 2011.
SEE
IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY
I TE KŌTI MATUA O AOTEAROA TE PAPAIOEA ROHE
CRI-2017-054-850 CRI-2017-054-2016
[2023] NZHC 2948
THE KING
v
JOSEPH WILLIAM JOHNSON CHEA BRATTLE-HEMARA HAENA
Hearing:
20-21 March 2023
Counsel:
S C Baker for Crown
C W J Stevenson and S J Parry for Johnson E A Hall and R E O’Hagan for Hemara
Judgment:
20 October 2023
JUDGMENT OF ELLIS J
[1] In 2017 Mr Joseph Johnson and Mr Chea Hemara1—together with Mr William Hines—were charged with murdering Mr Palmiro (Powsa) MacDonald.2 The Crown
1 At an early stage of the criminal proceedings Mr Brattle-Hemara Haena indicated he preferred to be known as Mr Hemara.
2 Mr Johnson was charged with the murder of Mr MacDonald on 14 March 2017. Mr Hemara was charged with murder on 30 June 2017.
R v JOHNSON & ANOR [2023] NZHC 2948 [20 October 2023]
case was that Mr MacDonald was killed on or about 23 March 2016, although his body was not found for another six months.3
[2] Mr MacDonald was a patched member of the Nomads. Mr Johnson was a patched member of the Mongrel Mob. While Mr Hemara was not a patched member nor unequivocally established to be an associate of any gang, he has historic and present-day family gang connections, including with the Head Hunters. Mr Hines is also associated with the Head Hunters, although was formerly associated with the Nomads. Mr Hines and Mr Hemara are first cousins.
[3] As is often the case in criminal proceedings involving an inter-gang backdrop, the path to trial—and later the trial itself—were littered with issues about witness anonymity and prison informants. Such issues are often fraught and difficult to navigate for all concerned. Those matters, together with the sheer magnitude of the file and of the Police investigation into Mr MacDonald’s disappearance and death, gave rise (among other things) to disclosure problems. As a result of some of these, in May 2018, Mr Hemara’s then counsel made an application for costs. I directed that the application would be dealt with after trial.4
[4] The charge against Mr Hines was dismissed in August 2018.5 The eight-week trial of Messrs Johnson and Hemara took place in mid-2019. The jury was hung, and a retrial was ordered. But before that retrial could take place, both Mr Hemara and subsequently Mr Johnson were also discharged, albeit for different reasons. The prosecution came to an end.
[5] But not so the question of costs. Instead, as a result of further disclosure matters—including in relation to the events that led to the dismissal of the charge against Mr Johnson—further costs issues were raised.
3 There is no doubt that Mr MacDonald was murdered. The principal issue at trial was whether Mr Johnson and/or Mr Hemara were responsible for, or involved in, his death.
4
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.
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AGLC
R v Johnson [2023] NZHC 2948
Case
[2023] NZHC 2948
Decision Date
CaseChat Overview and Summary
Joseph Johnson and Chea Hemara applied for an award of costs against the New Zealand Police and the Office of the Crown Prosecutor for Palmerston North pursuant to s 364 of the Criminal Procedure Act 2011, following the dismissal of the charges against them in relation to the murder of Palmiro MacDonald. They argued that the Crown had failed to disclose material information relating to a witness known as Witness A and others, in breach of the disclosure obligations under the Criminal Disclosure Act 2008. Johnson and Hemara claimed that this resulted in unfair trial proceedings and prejudiced their defence. The High Court agreed that the Crown’s failure to disclose the existence of a letter of assistance given to Witness A and the redaction of Witness A’s statements to exclude reference to Dyllan Vaughan were significant procedural failures. The Crown’s failure to record all conversations and meetings with Witness A in contemporaneous notes, the failure to ensure disclosure was provided in a usable format, and the failure to enquire and/or disclose the fact that the shotgun pellet lodged in Mr MacDonald’s hand was unrelated to his killing were not significant procedural failures. The Crown’s failure to conceal the Crown prosecutor’s presence at the meeting with Witness A was a failure in terms of s 364, but the failure was not particularly significant in terms of prejudicial effect on the defence in this case. The Crown accepted that the failure to disclose the letter of assistance given to Witness A was a significant procedural failure. The Court found that an award of $40,000 was appropriate, and the costs ordered were to be borne equally by the New Zealand Police and the Office of the Crown prosecutor for Palmerston North.