R v M HC Auckland CRI 2006-092-12705

[2009] NZHC 150

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2006-092-12705

THE QUEEN

v

M

Hearing:         17 February 2009

Appearances: Mr Glubb for applicant

Respondent in person

Judgment:      17 February 2009

JUDGMENT OF WINKELMANN J

Crown Solicitor, Auckland

R V M HC AK CRI 2006-092-12705  17 February 2009

[1]      This is an originating application by the Crown for orders that Benjamin M   be convicted of an offence under s 351 of the Crimes Act 1961 for failing to attend at court in response to a witness summons, and that he be remanded in custody until an order to produce is issued for the taking of his evidence.

[2]      Mr  Glubb  appears  for  the  Crown.    Mr  M    is  unrepresented.    I  have discussed with Mr M   whether he wishes legal representation, but he says that he does not seek legal representation.   As to the circumstances surrounding his non- attendance in response to the witness summons he gives the explanation that he thought that the date he was required to attend at court, 9 February 2009, was a Wednesday but  when  he  looked  at  the  calendar  he  realised  that  the  9th   was  a Monday.    I infer that he checked  after Monday. He  confirms  that  he  made  no attempts to contact the police.  Mr Glubb informs me that Mr M   was difficult to

locate and when he was located he attempted to flee the house he was found in.  On the positive side, when he was stopped by the police he was co-operative and came with them without any difficulty.

[3]      Mr M   is required to attend as a witness in the trial of R v Key in which Mr Key stands trial for the murder of Riki Mafi.  It is important that his evidence be available, not only to the Crown but also as I understand it to the defence.   I am concerned that if I were to release him at this point Mr M   would again not attend to give evidence tomorrow morning.  I note that he says that he will, but given his inability to respond to the earlier summons and what I consider to be his inadequate explanation for that I am going to order that he be remanded in custody overnight so that he can be brought to court to give evidence tomorrow morning.

[4]      I do not propose to convict Mr M   of the offence under s 351 because he has given some sort of explanation for his non-attendance and this is to my knowledge, his first instance of non-attendance.  My concern that this is simply not a priority of Mr M  ’s so that he will make no effort to make himself available tomorrow and that he cannot be reliably located.

[5]      I therefore propose to deal with the situation by remanding him in custody overnight in respect of the contempt of court, namely the failure to attend in response to the witness summons.   He can expunge the contempt by appearing tomorrow morning and giving his evidence.  There will be no conviction for failure to appear.

[6]      Mr M   is therefore remanded to the Cook Street (Auckland Central) police jail until he is brought before the court tomorrow in response to an order to produce.

Winkelmann J