R v KS

[2015] NZHC 755

ORDER PROHIBITING PUBLICATION OF NAME, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS OF DEFENDANT PURSUANT TO S 200 CRIMINAL PROCEDURE ACT 2011.

IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY

CRI-2014-042-001878 [2015] NZHC 755

THE QUEEN

v

KS

Hearing:	1 April 2015
Counsel:	E J Riddell for Crown S J Zindel for defendant
Judgment:	20 April 2015

RESERVED JUDGMENT OF DOBSON J (Severance)

[1]      The defendant has applied for severance of the trial of charges he faces under s 142 of the Immigration Act 1987 from charges faced by two other defendants, SS and JSS.

[2]      The Crown perspective on the circumstances relevant to the charges faced by all three defendants treats them very much as components of a single, on-going narrative.

[3]      SS and JSS are alleged to have recruited 25  Indian workers to come to

New Zealand from India, charging each of them significant sums for facilitating their entry into New Zealand and allegedly finding work for them.  After the recruits had

R v KS [2015] NZHC 755 [20 April 2015]

arrived and work was not available, one or more of the defendants proposed that the men make application to remain in New Zealand as refugees.  The defendant was allegedly introduced to each of the recruits for the purpose of drafting for them statements in support of applications that they be treated as refugees.  In terms of timing, the human trafficking charges faced by SS and JSS cover a relatively lengthy period before the defendant’s involvement, and after it, with the allegations against the defendant being confined to the period of approximately one week during which he prepared statements for the purported refugees.

[4]      JSS is charged jointly with the defendant in relation to the Immigration Act charges.

[5]      The defendant has applied for severance on the basis that the charges he faces should be seen as discrete from the rest of the co-defendants’ activities, that the charges he faces are not nearly so serious and, if separated, would take substantially less time to be heard.

[6]      The  application  contemplates  that  JSS  would  be  tried  separately  as  the co-defendant on the Immigration Act charges, necessitating the numerous witnesses to be called in relation to those charges having to give evidence twice. Alternatively, Mr Zindel suggested that the defendant and JSS  could be tried together on  the Immigration Act charges, but separately from JSS and SS on the trafficking charges.

[7]      Mr Zindel argued that either extent of duplication, and other disadvantages, were outweighed by the prejudice the defendant would suffer if his charges are heard by the same jury as hears the human trafficking charges.

[8]      Mr Zindel’s analysis overstated the extent to which the facts in relation to the Immigration Act charges faced by the defendant and JSS can be treated as discrete from the rest of the narrative in relation to the remaining charges.  The Crown proposes to fly all of the complainants from India to New Zealand, and all will have to give evidence through an interpreter.  That promises to be a relatively protracted process.   Very substantial prejudice to the defendant would need to be made out before the extensive duplication of evidence would be justified.

[9]      Mr Zindel suggested that two trials could occur consecutively so that the witnesses would not be required to remain in New Zealand for an inordinately longer period, and  that it  was  reasonable to  anticipate that their  evidence would have “settled down” when they came to give it at the second trial.  I am not satisfied that that would be so.  It would be perhaps a more daunting task for apparently poorly educated, non English speaking Indian workers to recall the same events twice, through an interpreter, in the stressful environment of a New Zealand Court witness box.    This  means  priority  should  be  given  to  the  public  interest  in  efficient

disposition of trials.1

[10]     Further, I am not satisfied that any material prejudice to the defendant does arise from the trials occurring jointly.  His part in the alleged activities, and relative distance from the co-defendants, is likely to be appreciated relatively easily by a jury.

[11]     An additional argument raised by Mr Zindel in support of severance was the defendant’s contemplation that he may wish to call his co-defendant, JSS.  He would be able to do so if there were separate trials.   Mr Zindel submitted in the most general terms that there were prospects for JSS to give exculpatory evidence that would be helpful to the defendant’s defence.  Without more than that unsupported assertion, there must be at least equal prospects for JSS giving evidence wishing to minimise his own involvement in the preparation of the statements, which would logically involve attributing blame to the defendant.

[12]     The Court of Appeal  has  observed  in  R  v  Taylor that a  person  seeking severance on the basis that the defendant wishes to call a co-defendant needs to provide material in support of the application, indicating that there is a reasonable prospect the co-defendant will give evidence if made compellable.  Further, the material should reflect the nature of the evidence that the co-defendant will give, so as to show there is a reasonable possibility that the evidence could affect the verdict

favourably for the defendant seeking severance.2

1      See, for example, R v Fenton CA223/00, 14 September 2000 at [25].

2      R v Taylor [2007] 2 NZLR 250 (CA) at [34] and [39].

[13]     The defendant cannot achieve that threshold as a consideration in favour of severance on the present application.

[14]    Viewing the prospects for determination of all the charges in the round, a primary consideration is that all the charges faced by JSS should be determined at one trial, given the thread of the narrative from start to finish.  Next, the close connection between JSS and the defendant in the narrative involving the charges they face jointly under the Immigration Act would make it very unwieldy for them to be separated.

[15]     The consequence is that this is not a situation in which severance should occur to meet the relatively lesser concerns raised by the defendant. As observed by the Court of Appeal in Fenton,3 the reasons for having a joint trial of those who are alleged to have jointly committed a crime are primarily to avoid the risk of inconsistent verdicts, to have all aspects of a joint enterprise considered at one and the same time, and to prevent duplication of time and effort for witnesses and the Court system generally.  The concern to avoid duplication is unusually compelling here, given the high proportion of the Crown witnesses who are travelling from India

and will require interpreters.

[16]     For all these reasons, the application for severance is declined.

Dobson J

Solicitors:

Crown Solicitor, Nelson

Zindels, Nelson for defendant

3      R v Fenton, above n 1, at [25].