R v K HC Rotorua CRI 2007-087-411

[2008] NZHC 142

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CRI 2007-087-411

QUEEN

v

K

Hearing:         18 February 2008

Appearances: S Bridges for Crown

G Tomlinson and R Plunket for Accused

Judgment:      18 February 2008

ORAL RULING OF ASHER J

Solicitors:

Ronayne Hollister-Jones Lellman, PO Box 13063 Tauranga

Gowling & Co. PO Box 548 Whakatane

R V K HC ROT CRI 2007-087-411  18 February 2008

[1]      The Court has received this morning an application from the Crown   to restrain counsel for Mr K   from acting further in the trial.  The Crown submits that Mr K  ’s counsel, Mr Tomlinson, has a conflict of interest having either personally or through another member of his firm, previously acted for the Crown witnesses, Bronson Delamere, Tutanekai Rogers and Sian Schindler.

[2]      Mr Bridges for the Crown filed with his application careful submissions, which refer to a number of authorities.  Mr Tomlinson asks for an adjournment of the application to give him a full opportunity to prepare and to possibly brief alternative senior counsel given his personal involvement in the issue.  The Crown opposes that request for an adjournment and asks that the matter be ruled on today.

[3]      I propose granting the application for an adjournment even though this has the effect of the trial itself being adjourned.  If the Crown’s application is successful it will involve an adjournment of the trial in any event as Mr Tomlinson could no longer  act  and  new  senior  counsel  would  have  to  be  appointed.     I  accept Mr Tomlinson’s  submission  that  the  issue  is  of  considerable  importance  to practitioners working in provincial towns where there is inevitably a limited pool of available  lawyers  and  a  likelihood  of  contact  between  lawyers  and  potential witnesses from the same town.

[4]      The question arises as to whether there is any fault on the part of either the Crown or the defence in relation to the late raising of the issue.   Mr Tomlinson advises that although he knew that the stated witnesses were in the witness list he was not certain that any of them, save presumably Mr Delamere, would be called. He intended to inform the Crown of his contact with the Crown  witnesses  but decided to wait until he received a final witness list.  It seems that the final witness list did exclude quite a number of persons who had been previously prospective witnesses.  He only received that final witness list last Thursday, 14 February 2008. He sent an email to the Crown at 7:30 am the next morning advising the Crown of his or his firm’s contact with the three witnesses.

[5]      Mr Bridges for the Crown considered the matter throughout the day and by late  afternoon  was  minded  to  make   an  application.     He  formally  advised Mr Tomlinson  of  this  on  the  Friday  afternoon.    He  researched  the  matter  and reflected on it over the weekend, and filed the application this morning.   In the circumstances there can certainly be no criticism of the Crown for the late raising of the matter.  I also have some sympathy for Mr Tomlinson’s position, although, with hindsight, he should have informed the Crown earlier that the firm had acted for Bronson Delamere on a previous occasion.

[6]      I have accepted Mr Tomlinson’s submission that the issue is an important one for provincial firms.   The issue is important and does need some research. Mr Tomlinson is faced with the Crown’s reference to and reliance on the Rules of Professional Conduct, together with a number of articles and Canadian authorities on the topic.

[7]      I therefore propose granting the adjournment.  However, in the circumstances it need only be for a short time.  Counsel’s availability next week necessitates that it be   short   indeed   and   the   matter   is   adjourned   to   8:30 am,   Wednesday

20 February 2008.   Counsel will have the time otherwise set aside for this trial to prepare and, if Mr Tomlinson wishes, to brief further counsel.

[8]      I therefore make the following directions:

a)       The Crown application for an order restraining Mr Tomlinson from acting   for   Mr K     is   adjourned   to   10:00 am,   Wednesday

20 February 2008.

b)        The     trial    is    adjourned    for    call     at    10:00 am,     Wednesday

20 February 2008.

c)       Mr K   is also remanded on existing bail conditions to 10:00 am, Wednesday 20 February 2008.  However, he is not required to come to Court and his attendance is excused.   He will at that point be remanded to either a callover date or a date for the trial.

ADDENDUM:

[9]      I   have   now   received   a   memorandum   from   counsel   advising   that Mr Tomlinson will withdraw and new counsel will be appointed.  Therefore, it will not be necessary to  have  the  hearing on  Wednesday 20 February 2008,  and  the matter can be remanded by consent to the next Rotorua High Court callover on Thursday 6 March 2008.  Mr K  ’s attendance is excused.

[10]     A valuable three-day fixture has been wasted as  a consequence of  these events.  This is a serious matter, particularly given the great pressure for fixtures at present.  On reflection I consider that counsel for the defence should have alerted the Crown to the possible conflicts at a much earlier date, even if it involved going through a long list of witnesses who might not be called.   This should have been addressed at the latest in the weeks following depositions.  The issue could then have been addressed in a timely fashion and new counsel appointed in time for the trial.

[11]     I trust that the point will be noted.

……………………..

Asher J